Prenda Law Researches Streisand Effect, Says "I Gotta Get Me Some Of That"

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150 Responses

  1. John Ammon says:

    I believe this counts as Lawful Evil? Or is it Lawful Moronic?

  2. Thank you. Well written and to the point. I had to laugh at the "pony" comment. DTD :)

  3. Thank you so much for offering your services to the bloggers and commenters that are in need, and for bringing further attention to this important issue. It is truly appreciated by many.
    -CopyrightClerk

  4. tsrblke says:

    @John Ammon,

    Is there a "Lawful Rube Goldberg?" (meh that joke doesn't work as well as I hoped but it's staying.)

    It's almost looking like Prenda has far too many moving parts and can't work fast enough to keep them all on at least the grey side of the law. Watching this collapse should be interesting.

  5. John David Galt says:

    Just a heads-up: The good guys at FightCopyrightTrolls have been fighting Prenda and its predecessors for a while now. I'm glad that you appear to have joined them, but it may mean you're now an opponent of your friend Marc Randazza.

  6. Ken says:

    @JDG:

    Your proposition seems to be:

    1. Fight Copyright Trolls criticizes Marc Randazza.

    2. Fight Copyright Trolls gets sued not by Randazza, but by somebody else entirely, in a questionable and problematical defamation case.

    3. I offer to help defendants in that case find competent counsel.

    4. Therefore I am now "an opponent" of Randazza.

    Consider, for a moment, the logical implications of that. I guess that means that every time I offer help to Defendant X when they are sued in a questionable case, I become an opponent of everyone Defendant X has criticized or opposed.

    That reflects a fundamental misunderstanding of free speech and the defense thereof. It's not about factionalism.

    Marc Randazza is a friend and a co-counsel in numerous cases. I hold him in high esteem. Anyone mad at me for that can EABOD. Period.

  7. Patrick says:

    Commenters, please accept my friendly warning that everything you write here is being read by someone at Prenda Law.

    No one has written anything out of line, of course, nor do I expect that to happen, but this is as good a time as any to remind everyone that anything you write on the internet may be read by people who don't have your welfare at heart.

    We are under no obligation to act as censors on your behalf, so do be prudent.

  8. Kevin says:

    Can someone fill me in on the backstory here? What beef does Fight Copyright Trolls have with Marc Randazza?

  9. naught_for_naught says:

    Has someone hacked the website for Prenda Law? I googled them to see what the firm is about. I clicked through to their domain, wefightpiracy(dot)com, but was redirected to thepiratebay(dot)se, just as the Prenda law site was loading. Interesting.

  10. Ken says:

    @Kevin, I'm sure that question can be best answered by going to that website and looking there.

  11. Josh C says:

    Regarding Randazza:
    I sometimes have disagreements with with folks at work (including folks I respect greatly) over technical matters. I don't think less of them just because we hold opposing views.

    On topic, was that Florida showdown legitimate? Amusing as it was (very), the judge put various counsel under oath, and a 'random' spectator too, for some broad-ranging inquisition.

  12. Dan Weber says:

    Does Prenda Law eat paste? If not, why won't they deny it?

    I'm a big defender of the right of copyright. That doesn't mean I support anyone who brings forth a claim in court about same.

    I don't know anything about Prenda besides that I've learned today, but you would think that suing people who pirate porn would be an easy enough job without resorting to weird legal tricks.

  13. Going after porn pirates requires a real investigation which requires much time, effort, and money. One recent case in IN had a Prenda local attorney only doing 5 hours of work – only one hour for the investigation. These outfits were not designed to do this. IMO it is a business model more than any effort to protect the content owners. As none of these porn copyright infringement cases have gone to full trial – judged on the merits (since 2010), it speaks volumes. Dismissals and default judgements only. Saying that, copyright infringement does happen and the content owners do have a right to take action. I just happen to disagree on how they are doing it.

    DTD :)

  14. David Schwartz says:

    "We can do whatever we want. Nobody's going to ask any questions. I tell you, copyright infringement is a gold mine."

  15. Patrick H says:

    @Patrick Is that a challenge? Haha

  16. Another Woman says:

    I had NO IDEA the law and courtrooms could be so entertaining. Certainly the cases where I served on the jury (3 in Los Angeles, even) were nothing like this stuff. Did I just get stuck on dud cases? I feel cheated!

  17. Caudex says:

    Naught, that's a pretty simple redirect there. Generally it's used against spammers/DDOS attacks, but given where it's redirecting to, I'd guess it's a hack. Don't know how hard the hacking part is, but the redirect can be done in minutes by anyone who is even slightly computer-savvy.

  18. Dan Weber says:

    I compared the source of the current site against an old version, and it looks like a few paragraphs got replaced by the redirect code. I suspect the page is dynamically built and someone hacked into their provider and just replaced that section with the exploit.

  19. Oomph says:

    I wait with baited breath for trolldown.com to publish their hard hitting expose. trollololo

  20. Marc Randazza is my co-counsel in the Malibu Media bellwether cases here in Philadelphia. We are defending someone accused of downloading copyrighted material via bittorrent. It is set for trial in April.

    While I have no idea what Marc's position on this lawsuit is (or if he even has one, he very well may not even give a shit), it's not fair to put words in his mouth.

    I've known Marc for a long time and I will say this about him – he tends to do what he feels is right, not religiously stick to a "side." Copyright litigation certainly isn't a religion.

  21. Charley says:

    I wanted to see the page to see if had actually been hacked, and figured that the easiest way was to fire up firefox where I can quickly disable redirects and javascript… but I wasn't redirected in firefox.

    It seems that window.location.href (which is the javascript that someone used to put in the redirect) is a readonly property in firefox. So firefox users will continue to see the page rather than the pirate bay one.

  22. Regarding beef with Marc (and me), we are known to defend and prosecute copyright lawsuits. We've been both criticized and praised by the blogs at issue here. It comes with the territory.

    On the flip side, keep in mind that not everyone who gets named in a bittorent lawsuit is innocent. A lot of people who get caught are indeed thieving pirates. Collectively, millions of dollars is essentially stolen each year from people who have an exclusive right to their content.

    While I'm not weighing in on the merits of this suit, there is nothing wrong, illegal, or unethical about pursuing pirates. Congress passed strict copyright laws. Ergo, lawyers are allowed to use those laws to pursue people they have a legitimate basis to accuse of theft.

    There is a belief out there that it's illegal, immoral, or unethical for law firms to file these suits against. Hate to tell you this, but that's isn't the case.

    I don't know enough about this particular case to weigh in one way or another that would be fair to anyone involved. But I will be following it closely.

  23. Sorry for the third comment, but it was a gutless and uncool move to hack Prenda's website.

    It was juvenile and only made the "anti-troll community" look like shitheads.

    It wasn't even funny.

  24. naught_for_naught says:

    It wasn't even funny.
    I don't think anyone here said that it was funny or clever.

  25. BDP says:

    For those coming to the discussion without context on Prenda's past antics, how they ended up here, and why they seem to have made such a mess out of pursuing cases that shouldn't be that hard to litigate properly (assuming, of course, that is the Plaintiff's actual motivation)… It's a long story.

    The closest thing to a summary that goes well with this post is this response to Wright's OTC Re: sanctions filed by Morgan Pietz, the attorney representing the John Doe in the case headed to next week's ominous hearing before Judge Wright. It gives a basic rundown of their game plan and various machinations, alleged frauds, ID thefts and ties between Prenda's founders and their "clients."

    http://ia701508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.52.0.pdf

    It's a wild ride, and believe it or not that is only a taste of the insanity that Prenda, its predecessor and successor firms have unleashed on the court system over the last few years.

  26. Patrick says:

    Mr. Rushie, you have unlimited comment privileges here, so kindly don't apologize.

    As for Mr. Randazza, we're fans and all of our readers (the ones who matter anyway) know that.

    So let's leave him out of this, says the heavy-handed bigfoot author who isn't as nice, or remotely as subtle, as Ken.

  27. tsrblke says:

    Re: Patrick's comment.

    I don't think you were calling me out specifically, but after re-reading my post:
    D'oh your right. I suppose someone with malicious intent could infer I was making statements I wasn't intending to.
    Although I should say "looks like" is (IMHO) the non-lawyer version of "allegedly."
    I suppose if they want to sue me for expressing my thoughts that they're at best in the "grey zone" of the law then I'll have to come begging Ken for help.
    I'll also say that not until I re-read the original post did I notice this had moved to federal court. Once again we see need for a Federal Anti-SLAPP statute, and post haste!

  28. Huh, Ken said I need to pay him $3 per comment, and then if it exceeds 5 comments, it goes up to $15.

    Has he been lying to me?

  29. BDP says:

    @Jordan, I wouldn't be so quick to blame the anti-trolling community per se. There are lots of wannabe vigilantes hackers out there, and the most telling thing is that this did not happen during the previous several years of Prenda's activities, as they have worked tirelessly to make tens of thousands of people angry, but only now that they are being exposed to a much wider audience and attempting to stifle criticism.

    I would also not completely rule out a false flag operation to try to give their defamation suits additional credibility. I think it is unlikely and paranoid, but they have tried crocodile tears numerous times in their legal filings, citing the "anti-copyright" blogs and supposed "death threats" and "harassment", which of course they have never taken seriously enough to back up with copies of police reports or anything other than their claims.

    Even if you take out the more outlandish claims of ID theft and fraud they have established quite a track record of saying things that are simply untrue, and it's on the public record. Starting with, in their early days, filing copyright infringement cases for works that had not been registered with the Copyright Office, but claiming they were registered and asking for statutory damages that require the registration as a prerequisite.

  30. Patrick says:

    Who said anything about the money Mr. Rushie?

    You're welcome to comment here as often as you like, but the price stands.

  31. Nicholas Weaver says:

    What I found remarkable in a skim of Prenda's complaint is that not only do they not attribute any quotations that may or may not be libelous, they don't attribute ANY quotations to either of the named plaintiffs that I could notice!?!?! WTF?!!?

  32. I did tweet that I thought the Web redirect was funny. I stand by that thought/tweet. Maybe a bit juvenile (my tweet), but I think I'm allowed to have that opinion. Thank you BDP for pointing out it happened only after the law suit made the news. Very easy to assume someone like myself (or in the community) did it. I didn't and don't know who did. I would advise people not to take such actions, but it is still funny in a Karma way.

    BTW Jordan and Marc, I do value your thoughts on this case and others.

    DTD :)

  33. Kevin says:

    @Jordan Rushie

    There is a belief out there that it's illegal, immoral, or unethical for law firms to file these suits against. Hate to tell you this, but that's isn't the case.

    As far as "illegal", obviously you're correct. But "immoral" and "unethical" are questions about which reasonable people can, and do, disagree.

    …thieving pirates…
    …essentially stolen each year…
    …legitimate basis to accuse of theft…

    I have no idea whether you're one of the good guys or one of the bad guys, but using this type of rhetoric is certainly not helpful in convincing me of the former. Copyright infringement is not theft. It is copyright infringement. Theft is when you take something from someone – they no longer have it, and you do. COPYING something from someone without their permission is not theft. They still have it. It IS copyright infringement, and copyright infringement IS illegal, but it is not "theft", any more than it is murder, or rape, or arson.

    Insisting on using this kind of emotional, prejudicial, and simply inaccurate language makes you come off sounding like a know-nothing maximalist troll. And again, I have no idea whether or not you actually ARE a know-nothing maximalist troll, but insisting on using this kind of overheated rhetoric certainly is not a good strategy for making friends on the other side of the aisle of the IP policy debate. Certainly not for actually changing anybody's mind who doesn't already agree with you.

  34. Ken says:

    As a producer of content that is occasionally scraped by people who feel entitled to it, I have no problem with whatever mild rhetorical violence is done by calling pirates "thieves."

  35. MattS says:

    Ken,

    You shouldn't call them pirates either. Piracy is something that happens on the high seas, with ships. :-)

  36. Kevin says:

    @Ken, that kind of surprises me. Not that you disagree with me on IP policy (pretty much everyone does), but that you're OK with using emotionally charged, false-connotation-laden, and legally inaccurate language to describe your opponents in a policy disagreement.

    People have a natural, visceral reaction to the word "theft", (and for very good reason). Using it to describe something-other-than-theft is an attempt to smuggle connotations into the discussion unanalyzed.

    Would you be equally OK with describing copyright infringement as "rape"?

  37. BDP says:

    Indeed, best to be cautious lest they band together and sue you for defamation.

  38. Kevin says:

    @MattS Well, it is at least hypothetically possible for an act of copyright infringement to also be an act of piracy. Say if I forcibly board a container ship full of DVDs, copy them them all, then leave.

  39. Ken says:

    Not that you disagree with me on IP policy (pretty much everyone does), but that you're OK with using emotionally charged, false-connotation-laden, and legally inaccurate language to describe your opponents in a policy disagreement.

    There are times when I can bring myself to care that someone is offended by my choice of words.

    This is not one of those times.

  40. @Kevin

    This is exactly what I'm talking about. It's like a religion for some people.

    How would you like me to frame the discussion? What else do you call someone who takes something that doesn't belong from them, without paying for it, other than a thief or a pirate?

    There is one issue that gets lost in this debate – people are stealing (yes, stealing, as in, taking stuff without paying for it) massive amounts intellectual content that does not belong to them instead of purchasing it. If you went into a DVD store (in some cases, broke into the store), stuffed a DVD down your pants, and then ran out we would call that theft. If you then made a bunch of copies of the DVD you stole and gave it to your friends, that's even worse! When people steal (take without asking? rook? pocket) the content, it's harmful to the people who created it, along with their employees.

    There is this false notion that everyone caught up in a bittorrent suit is completely innocent, and was just randomly selected to be shook down for money. You have my assurance that isn't the case. Having defended and prosecuted torrent cases, I am often shocked just how rampant internet piracy is. The story of the 80 year old lady is great. But what you don't hear about are the guys who steal massive amounts of intellectual property. Then they ignore these lawsuits because of advice found on the internet, until they get served with a lawsuit and now they're (correctly) worried about this becoming a big issue. That never gets in the blogs.

    You might not like how Prenda has gone about their business, but you at least have to acknowledge that internet piracy is a problem. And Prenda represents clients – not causes. And their clients have a lawful right to pursue individuals who steal and distribute their intellectual content. If you don't like that, lobby Congress to modify that Copyright Act.

    If saying that makes me a troll, a bad guy, or causes you to lose respect for me, so be it. But it's the truth. And I would be a horrible advocate to just ignore the law and reality of the situation.

    I spend a great deal of time explaining this to people who call me about these lawsuits – often other lawyers thinking about defending one. The second you start to demonize your opponent, rather than the merits of the suit itself, you've become an ineffective advocate.

  41. naught_for_naught says:

    I have just one question after reading the summary of the Florida hearing that the post links to on TechDirt, can't the judge just call Pants-on Fire?

    Mr. T: I was hired to appear on behalf of a firm that has no knowledge of me or the client I'm here to represent, and if you could let me out that would be terrific.

    Mr. L: I represent a company of which I have no knowledge — can't tell you who works there or where they're located. All I can say is that the envelope containing my check is post-marked in California.

    Mr. S: I am not an attorney licensed to practice in Florida. The only other thing that I'm sure of is that I like to hang out in courtrooms where I have absolutely no connection to the case or any of the parties, including Mr. L who, you know, used to work for me. My presence is purely coincidental.

    Holy Shit!

  42. Ken says:

    I like the part where the corporate representative showed up in court without a coat or tie.

    However, I have it on good authority that he was wearing shoes. So they have that going for them.

  43. Kevin says:

    @Ken, I think you may have mis-read my intended tone. I'm definitely not "offended" by anything you've said. I just think the "piracy == theft" meme is not helpful to moving the policy debate forward, or changing anybody's mind.

    agreetodisagree.jpg

  44. Ken says:

    But I'm not trying to move the policy debate forward. I'm speaking my mind. And I think pirates are assholes. I will continue to think pirates are assholes even as I criticize frivolous and abusive lawsuits brought by Prenda against people who may or may not disagree with me.

  45. That Anonymous Coward says:

    Ohai Ken, Jordan, DTD and others…

    The redirect, a horrible thing really…*stifles laugh* if only for it adding to the confusion. On the other hand, its funny… my vote would have been for meatspin, but then I'm not quite right that way.

    As to Mr. Randazza, we aren't on each others holiday cards exchange list, however I respect his 1st Amendment work and the work done on the defendants side of the table. We disagree about other things, but this does not mean we are constantly at war or engaged in the childish 'if your friends with him you can't be friends with me!' game. Cause, huh, I reached out to Ken when I found out about the cases. He was gracious and helpful, we might disagree on copyright (not sure not chatted about that) but the more important issue is an attack on free speech/blogging.

    I've said a couple times that I would seek Mr. Randazza's representation if it came to the point I needed help (He's good I hear.). One must not assume that 'vigorous' posting is the whole picture, merely a facet. Jordan can attest that surprising things can and do happen.

    Thank you once again Ken for the assistance and posting about this. Trolls fear the light and these filings turned on some high intensity lights.
    I remain,
    TAC

  46. Jack B. says:

    It's as if the folks at Prenda studied the failings of Righthaven's business model and came to the conclusion that in order to succeed where Righhaven failed, they needed to ramp up the incompetence.

  47. Patrick says:

    Whatever one thinks of Prenda Law, the comparison to Righthaven is unfair.

  48. JR says:

    I would say that Counterfeiting sounds more apropos than theft or piracy. As Kevin stated, there is nothing missing after the act.

  49. Kevin says:

    @Jordan Rushie

    What else do you call someone who takes something that doesn't belong from them

    That's just the thing though. Nobody's TAKING anything. Copying does not equal "taking".

    Is it a good thing for society that copying somebody else's idea should require paying money to the originator of the idea? Maybe, maybe not. There are upsides and downsides to treating intellectual works as if they were "property". A rational policy would balance those upsides and downsides against each other, in an evidence-based manner. But what you're trying to do is to shut down that kind of evidence-based analysis by just declaring, "Nope, it's THEFT, and everyone knows THEFT is wrong, so it would be immoral to even contemplate liberalizing policy in any way, no matter what the evidence may say about net economic effects… and in fact even THINKING about the question in economic terms is blasphemy, because PROPERTY is an inalienable MORAL RIGHT, not subject to utilitarian considerations!!"

    Remind me, which side of this debate is the one that treats it "like a religion"?

  50. Patrick says:

    Kevin, you don't seem to have much of a problem with theft, so why does the comparison bother you?

  51. Kevin says:

    @Patrick Huh? I absolutely do have a problem with theft. I'm a libertarian, and consider property rights to be morally inviolable. Where did you ever get a contrary idea?

  52. Patrick says:

    This:

    and in fact even THINKING about the question in economic terms is blasphemy, because PROPERTY is an inalienable MORAL RIGHT, not subject to utilitarian considerations!

    Call me crazy.

  53. Chris R. says:

    @Jordan Rushie,

    I agree that some people take the copyright issue to almost religious zealotry. When Napster first came out a lot of people my age new it was wrong, but did it anyways. Why? Probably because CDs cost like $17.99 or so back then and it was not possible for high school kids to buy a lot of music. People felt like Robin Hood. However like speeding it happened so often and was so easy to do especially with how it's evolved, that people know it's illegal but don't particularly feel like it's immoral. Again, a lot of them think they're Robin Hood. However CDs have come down in price, you can buy a single track for $0.99 and often times get entire albums for $5.00 on sale.

    Personally I think if you can have every track of music you've ever even semi wanted, it sours the whole experience. There is no choosing what is valuable enough to purchase or not, just steal it all. If everyone could have everything they wanted for free, there would be no need to work and everything would be common, boring, and unfulfilling. Scarcity drives the human condition and without suffering there would be no distinguishing happiness.

  54. Chris R. says:

    knew it was wrong (though it was new at the time)

  55. Kevin says:

    @Patrick, the statement you quoted, "even THINKING about the question in economic terms is blasphemy, because PROPERTY is an inalienable MORAL RIGHT, not subject to utilitarian considerations!" was intended literally, not mockingly. As in, that is actually what I believe. What I was mocking was the idea of treating IDEAS as "property," subject to the same analysis as actual property.

  56. @Chris R.

    I agree. And back in the days of Napster it made sense, sort of. My CDs were old and scratched, and they were useless at the gym. MP3 format? I could back them up, take the MP3 player to the gym, and never have to worry about song 3 skipping. Why would anyone want to pay for a $17 CD that's just going to break, when it's in a better format on Napster?

    Today we live in a very different world. I can buy songs off iTunes with the click of my mouse, and it's automatically saved in the cloud. It syncs with my iPod automatically, too. When I want video games, I can purchase them with one click off Steam, and now I can even get books electronically thanks to the Kindle. Hell, if you're too poor to shell out $1.29 for a long, just listen to it on Spotify. It's all virus free and totally legal.

    Hell, if you want porn, it's completely legal on YouPorn. Even better – many content producers have an arrangement with YouPorn, so they're getting paid.

    Given the ease of buying stuff legally, there is no excuse for stealing it. That is why I have trouble feeling bad for actual pirates who would rather steal their content rather than shell out a paltry few dollars for it. Or at least consume it in a way that would get the content producers paid by legally streaming it.

  57. @Kevin

    This is the difference. An idea is "Hey, it would be really cool to take a trip down to Miami and pick up chicks." That costs me no money to convey.

    Content is different. It involves hiring artists (or actors), camera people, equipment, employees, and paying taxes. There is no difference between a CD or a DVD than an .mp3 or an .avi just because nothing physical is associated with it.

    You would certainly call taking a DVD from a store theft, and condemn it. Why doesn't the same hold true for stealing the movie in a different format? Just because of the physical nature of the DVD itself? You're forgetting that the big cost isn't with the production of the physical DVD, but all the stuff that went into making it in the first place.

  58. JR says:

    An interesting piece on this subject was done by The Oatmeal.

    There are several factors involved that need to work together in order to bring the piracy (counterfeiting?) crisis to a close.

    A black-market exists because there is a need that is not being fulfilled or is being fulfilled in a manner that prevents individuals from attaining the product.

    The legal definition could certainly benefit with some distance from the inaccurate and/or misleading terms used by the sensationalist media and topically uninformed congressmen.

    These matters, and more, are being addressed right now with the new markets available to content creators.

  59. @JR

    C'mon, you're telling me that is no practical legal way to obtain the porn you want?

    There is. You go on the website and buy it. A lot of it is legally available on streaming sites, too.

    The only need not being met, in my view, is that all porn isn't entirely free all the time. I think there are many people out there who believe digital content should be available to everyone all the time, instantly, and completely free of cost.

    I call them "freetards."

  60. naught_for_naught says:

    A black-market exists because there is a need that is not being fulfilled or is being fulfilled in a manner that prevents individuals from attaining the product.

    Yes, a need for products at or below fair market value.

    C'mon man, it's theft. According to Kevin's logic, it's only theft if you break into the studio and steal the recording masters before you start selling illegal copies. The rights holder must be denied any and all revenue from his property before it's theft.

    If China turns a blind eye to pirates operating in the open, bootlegging movies and DVDs, taking in hundreds of millions of dollars that would otherwise go to the copyright holder that's not theft? It's not theft because the owner of the asset still has the master? Really?

  61. JR says:

    IANAL, However…

    If someone scrapes this website and hosts it somewhere else as if it were their own work while charging for access; that would be theft-by-deception, right?

    Alternatively, if someone scrapes this website and hosts it somewhere else as if it were their own work without charging for access; that would be counterfeiting and/or forgery, right?

    Both are abominable ideas, but for different reasons.

  62. John Ammon says:

    @JR – I think you're possibly arguing semantics, it's entirely possible that counterfeiting and forgery are forms of theft. And it seems like they are, in more abstract ways.

    To me, reposting a website without charging for access is still stealing potential profits from the copyright holder. I.E. theft.

  63. JR says:

    @Jordan Rushie
    @naught_for_naught

    I did not say there is no practical legal means of obtaining anything, just that certain individuals in certain situations will not be able to do so. A minor is not capable of buying porn just as a convict is not able to buy a gun. But I bet they both get it somehow or another if they want it bad enough.

    And idea theft is just plain ludicrous outside of the patent office. Nowhere else is "I thought of it first" a valid reason for withholding an idea from the rest of the world.

    We are not all equally capable of obtaining the things we want in life, no should we be. I am not arguing for either side of this debate. Just pointing out, as Kevin tried, that lumping it all together in one big heap is disingenuous. Why not charge them with counterfeiting or forgery? Why the obsession with theft?

  64. naught_for_naught says:

    >JR

    if someone scrapes this website and hosts it somewhere else as if it were their own work without charging for access; that would be counterfeiting and/or forgery, right?…Both are abominable ideas, but for different reasons.

    You can answer your own question if come up with a definition of theft and then apply it to your own question. Webster's Collegiate defines theft as the act of stealing, which in turn is defined in numerous ways including, to take surreptitiously or without permission.

    just because you can't easily define a financial loss with the act of misappropriation doesn't make any less of a theft. Just because one act of taking something is more or less douchie than another act of misappropriation doesn't change the what the act is. Just because the guy ain't Milo Minderbinder doesn't mean he isn't stealing.

  65. Kevin says:

    @Jordan Rushie

    Just because of the physical nature of the DVD itself?

    Ummm… yes? Things of a "physical nature" are excludable – only one person can have possession of them at a time. That's not that case with intellectual "property". And it turns out that that's a distinction that Really Matters to the economic (and, IMHO, ethical) analysis.

    As you point out, there are initial capital costs associated with creating "content" (protip: musicians and creative types tend not to take too kindly to their work being referred to as "content"), but it has a MARGINAL COST of ZERO… i.e. it may cost X dollars to make the FIRST copy of something, but then zero dollars to make each copy after the first. That's fundamentally different from how physical goods work. And it just so happens that that it's a difference that really matters to how the math works out on the economic analysis. Zero is kind of a magic number like that – you plug it into an equation and it often ends up breaking the generality of the equation.

    Now of course there is that initial capital cost to deal with, and society has a legitimate interest in incentivizing future creation… but what's the most effective way to go about accomplishing that? That's a tough question, and one I don't claim to know the definitive answer to. The answer may change over time as technology and society changes. That's why the founders, quite wisely, chose to grant Congress the authority to implement IP laws at their discretion, towards the end of "promot[ing] the progress of science and the useful arts" rather than enshrining IP as an inviolable property RIGHT, off limits to utilitarian economic analysis.

    Did you ever wonder why the Copyright Clause is worded the way it is? Did you ever wonder why it wasn't instead inserted in the Bill of Rights, as an individual right? It's because the founders actually understood this distinction – they understood that there are some things – individual rights – which are morally inviolable, and off limits to utilitarian horse-trading, but that there are other things which are not like that at all, and that "IP" is squarely in the latter category.

    If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.

    Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society

    – Thomas Jefferson

    So what's going on here is that there's one side of this debate which is actually trying to have… you know… a debate about what kinds of policies would maximize utility (as the founders intended), while the other side just wants to shut down debate by applying conclusory labels like "property" and "theft", which carry with them connotations of inviolable moral rights, despite the fact that the law, the Constitution, and common sense all dictate that IP issues NOT be treated as such.

  66. Kevin says:

    @Jordan Rushie

    "freetards."

    Ok, you know how before I said I wasn't sure whether or not you were a actually a maximalist troll, or were just adopting the rhetoric of maximalist trolls?

    Well, now I know.

  67. DieTrollDie says:

    More interesting news concerning Prenda Law and crew – 11 March 2013 is going to be ____________________ (fill in the blank).

    - http://dietrolldie.com/2013/03/06/guess-who-is-comming-to-dinner-on-11-march-2013-judge-wright-wants-a-troll-feast-212-cv-08333/

    DTD :)

  68. JR says:

    @John Ammon

    I am arguing semantics, but so are they. We all agree that whatever we call it, the actions are wrong. I think we even agree that there is no room for gradation in a right/wrong argument such as this. The main point of our disagreement is in defining just how it is wrong and what can be defined as property.

    And my comments on the black-market were intended to imply a root cause, not a justification. Sorry if there was any confusion on that.

    @naught_for_naught
    The definitions of each word I have used as defined by Merriam-Webster's Collegiate dictionary. They (or some combination thereof) are all applicable in almost every instance of "pirating", and you still have not explained why one is used while the others are not. Is it a question of one being more or less legally/socially defensible?

    Theft

    Stealing

    Forgery

    Counterfeit

  69. Ken says:

    DieTrollDie: Judege Wright's order of today's date, through your link, ought to be of the gravest concern to Prenda and its principals.

  70. Kevin says:

    @naught_for_naught

    You seem to be assuming that when I say "copyright infringement isn't theft" that what I mean is "copyright infringement isn't wrong". I don't. I just mean it in the sense of "copyright infringement isn't arson." That doesn't mean I'm (necessarily) saying that it shouldn't be illegal, just that it's a different crime from theft. That is an inarguable legal fact – try actually prosecuting someone for copyright infringement under a theft statute and see what happens. The facts of the crime simply don't fit.

    And there's a good reason for that: In "theft", two things happen – 1) the rightful owner of something loses possession of it, and 2) the non-rightful-owner obtains possession of it. In copyright infringement, only one of those two things happens.

    Does that matter ethically? Well, at a minimum it would certainly seem to argue for less severe punishment of one vs the other, since one is strict subset of the other. How much less severe? Drastically? Only slightly? Not at all? Those are policy questions, which should be resolved through rational debate and evidence-based analysis. Applying conclusory terminology like "property" and "theft" is an attempt to shut down that debate and just dogmatically insist "copying is exactly like stealing in every way, la la la la la I can't hear you"

  71. That Anonymous Coward says:

    @Jordan – Having been called "freetard pirate scum" on multiple occasions I humbly disagree with the assessments.

    Copyrightholders should be able to make money, they should not be able to record 1 hit song and expect to be paid for 120 years.
    Copyrightholders should use the laws, but those laws need to be updated significantly in an age when copy paste and not a printing press is required to make a copy.
    Copyrightholders should pursue commercial copyright infringers, but not be awarded those same numbers against "regular" people.
    Copyrightholders should put the product in the market without consulting a release chart they have been using since 1950.

    "Piracy" is always portrayed as bad people stealing from good people.

    Can we agree that sometimes "piracy" is a symptom of refusing to acknowledge that they desires of the consumer are not being met? (not the zomg want it now now now for free ideal, but the idea that I can not download a childhood favorite show at any price in the age we live in is a huge failure on the part of the Copyrightholders.)

    Game of Thrones, I've heard, is one of the most downloaded shows. Not because people want it for free (sure some do), but the cost to get a single episode is = Cable Bill + HBO fee. You could try HBO GO! but then your paying more. There might be other legal avenues to get the media, but there are so many strings attached to make sure that the Copyrightholders get to decide how, where, when, on what, with whom, for how long your allowed to use the content you "purchased".

    This show is discussed and watched globally, as it enters Season 3 HBO is FINALLY making the show available globally in a "reasonable" timeframe. More time, money, effort is spent trying to make sure the world conforms to their charts, rather than putting the content in the market.

    In 4 years and untold dollars the result from the **AA's was… 6 Strikes.
    In 4 years (maybe less) and untold dollars Apple created iTunes.
    While the RIAA won't admit it, iTunes has heavily helped their market. They will drone on and on and on about the drop in CD sales screaming "ZOMG PIRATES" while blissfully ignoring the rise in digital sales. (There is also a huge drop in the sales of home CD players, but Sony isn't screaming for a handout for their loss in those sales.)

    The **AA's produce nothing, they exist to lobby. If they admitted anything other than the war they declared on consumers was working they would be out of a job. They call anyone who disagrees a "freetard pirate bastard". The membership of the **AA's only listen to what they are told and often seem to ignore reality, because they like money and if we spend just a few million more we will get those billions the chart says they lost.

    Copyright we need it, we do not need what it has become. The corporations can't understand that when they declared war on the "pirates" they declared war on their consumers. No pirate watches 3 minutes of forced don't you dare copy this or we'll come execute your dog warnings and skits, followed by 10 minutes of here are trailers for other dreck we made that has nothing to do with what you purchased but we are forcing it down your throat anyways.

    Respect is a 2 way street, they have contempt for the people who pay them and are shocked, shocked I tell you, that those people show contempt for them trying to get laws to search electronics at the border and demand proof of ownership of content, to get final say over what can be on a global network of people.

    As to copyright trolls, I hate bullies.

  72. naught_for_naught says:

    >Kevin

    Dude, you are mixing apples and oranges here and supporting your argument with a misquote of Jefferson. Copyright and Patent are two different things. You've spent the entire time defending the misappropriation of copyright.

    The Jefferson quote refers to patents, not copyrights. Moreover, your selected quote is Jefferson musing about the nature of natural law. According to Jefferson's reasoning in this same passage, real property as well belongs to all people,

    It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common

    He then goes on to make the case of ideas having no ownership as an extension of this premise. So, if you believe that people in a capitalist system actually have a right to own real property then you must concede that have a right to own an idea because, according to your guy Jefferson, the two are linked.

    If you read the letter to end you will see that he is not saying at all what you assert that he says. Here is the closing passage of the letter:

    Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured.

  73. naught_for_naught says:

    All that aside. I used Napster. I burn CD's for friends. Often, I will actually buy a CD because I really liked one bootleg song that i happened to have. I admit it. I'm a lower-case-t thief. I feel better now. I'm going to go listen to The Basement Tapes now, one of my top-5 all-time favorite records, available for download through Amazon.com. Please purchase your copy through the Popehat widget.

  74. Terry Towels says:

    This may be tl;dr, I'll try to break it up.

    Aha. I've been trying to get my head around this discussion for years– what is piracy, theft, counterfeiting in a digital age.

    Jordan Rushie at 4:54 PM clarified it for me– It's content that's different from an idea. Now I understand the basis for lawsuits on plagiarizing.

    So, starting with the assumption that the average joe gets that stealing content will lead to no content available at all, I've some thoughts/questions.

    1. Once I've purchased content, how long do I hold rights to that content for my personal use?

    For my lifetime, or for the lifetime of the media used at the time I purchased the content.

    I'm old enough to have purchased the Beatles on 45s. Which my younger sibs trashed. So then, I bought the albums (which I kept away from their sticky little paws). Then tapes appeared! I still had a perfectly good album, but I couldn't play it in my car. So, I made tapes for the car. Then, CDs arrived. I bought them; and when the technology arrived, made CDs for car use and kept the original as backup. Then, MP3 arrived, and I converted my CDs to that format (to use in the car and at the gym).

    I've purchased the Beatles songs 3 times. And, given the rate of technology change, I may be forced to do it again. So, the question is, have I violated copyright?

    2. Which leads to the question, do we rent or own content?

    I purchase a print book. I lend it, or give it to others. Once it's out of my hands, it's not useable by me. But as long as I've got in my library, I can read it at any time.

    So, what if I bought an e-book on a technology that no longer exists? Currently, I am forced to re-purchase the book.

    So, what if I purchase a book online for a PC, strip the DRM so I can load it onto my handheld and back it up (so I don't have to buy it again if my PC or handheld blow up). Once again, for my personal use. Is that a problem?

    I've read cases which would indicate that I only "rent" a digital book, that the company that sold me the book can take it back from me at any time. (I'm thinking about the woman (in England, I believe) who had her reader wiped by Amazon, with no explanation).

    3. The "Not being fulfilled" question.

    This is about content that exists, but is not available in purchasable format. There are some terrific old science shows that are not available for purchase. The only way to view them is online, say at YouTube, where someone has taken the time to upload some old recording they made of the content. Many people would purchase the content, but it's not available. (I often see requests at science blogs for a source for such-and-such show)

    Or the example I read elsewhere: A show available only in Europe, for which there is no US access.

    Can you call it theft if the content is not available for purchase?

    4. these are the things I've been pondering for many, many years.

  75. @The Anonymous Coward

    You're not a freetard. At least in my opinion.

    A freetard is someone who thinks they should be allowed to steal anything they want because it's online, and that the very notion of a copyright holder enforcing its rights is evil and bad because everything should be free.

    It's very different to say you have a problem with copyright laws in their current inception. A lot of rights holders would agree with your position, since it's not easy for them to litigate in federal court.

    I am hopeful that in the near future we will be able to establish a copyright small claims court. And I know you disagree with me, but I think Six Strikes was a step in the right direction.

  76. Joe Pullen says:

    Here is my non copyright troll get rich quick plan.

    Step 1 – produce following said movie.

    Introducing the new deliciously taint-laden censoriouss asshat movie of the year
    Brought to you by the producers of The Carreon Affair…
    Written by Ken Matherne
    Directed by Teri Buhl.
    With a special cameo appearance from Craig Brittain
    Movie score by Chance Trahan
    Starring . . . Pretenda Law in . . . . .
    The Streisand Effect

    Coming soon to a courtroom near you..

    Step 2 – Invest in corn (popcorn) and barley (beer) futures

    Step 3 – Wait for the cash to roll in baby!
    >>
    oh except I stole part of #1 from some poster on TechDirt – oh well

  77. "1. Once I've purchased content, how long do I hold rights to that content for my personal use?"

    You only own the right to what you buy. For instance, if you bought Super Mario Brothers 3 back in 1996, that does not give you a legal right to download another copy off the internet. You bought the cartridge, and it it breaks, you have to buy another one.

    This is particularly important to companies like Nintendo, who have found they can repackage and re-sell games they made in the 80s and 90s on mobile devices, Wii, etc. They also have a right to "control" how valuable certain cartridges are.

    So, just because you bought that Counting Crows album back in the 90s doesn't mean you have a right to download it again off bittorrent in 2013 because the CD broke.

    "There are some terrific old science shows that are not available for purchase. "

    Still a copyright violation. However, usually the rights holders elect not to enforce it. In the video game community, it's called "Abandon Ware". Still technically a copyright violation, still technically a crime, but no one does anything about it.

    In many cases, the legal entity with the right to the intellectual property has dissolved without selling or assigning their rights, so it would be impossible to enforce.

  78. Dan Weber says:

    And idea theft is just plain ludicrous outside of the patent office. Nowhere else is "I thought of it first" a valid reason for withholding an idea from the rest of the world.

    This is silly. In fact, it gets the patent office completely backwards. One of the points of patents is that you are required to disclose to the world how your invention works.

    This model is vastly superior to the guild model, where tradesmen would hold their secrets very tightly. In exchange for publishing how your invention works in sufficient detail that a normal person of your trade can replicate it, you are granted significant but temporary legal protection against others attempting to market your invention.

  79. Terry Towels says:

    @Jordan Rushie. You addressed questions 1 and 3, so I guess the answer to question 2 is we only rent content, we buy technology.

    Huh, I would have thought it was the exact opposite. Now I understand TAC's points.

    I don't think that this is a sustainable model. I predict that the companies are building their own slide to disintegration.

    And with the Freetards, if they get a mass hold on the net, a new age will dawn!

    Live concerts will be the only way to see the fresh and new in music, books (remember they came from the Bards), and theatre (movies). Nothing will be on the net, live will be the only way for artists to earn their living.

    ***Toddling off to once again check the Grateful Dead business model and go to a local performance*****

  80. @Terry Towlels

    Content owners retain the exclusive right to distribute their content.

    However, the digital age is a new era. Everything I've bought from iTunes is secure in the iCloud. Whenever I get a new devices, it downloads right to it. Same with my Amazon purchases.

    But yes, if Amazon or Apple were to go out of business, chances are I would lose what I purchased.

  81. AlphaCentauri says:

    If I ride in your taxi, then refuse to pay you, I haven't taken your cab away from you. But I have committed "theft of services." "Theft" doesn't just refer to physical items.

    If I hire you to play music and refuse to pay you, I have also stolen your services. Recorded music makes it possible for people with small budgets to enjoy music without hiring live musicians. You can argue about what is a fair price, and you can argue that one can't claim the right to be paid for your work and simultaneously prevent people from obtaining it legally (for instance, by only selling to people who are physically located in Japan), but it's disingenuous to claim it's not theft.

  82. Terry Towels says:

    @ Jordan Rushie. Don't forget, Apple Itunes can change the format of their music files at any time, which only load onto a new type of equipment, AND, require you to buy all the music in a new format.

  83. Grifter says:

    I'm going to bed and don't have time to read ALL the comments yet (and there will undoubtedly be 303 more by the morning), but 2 things:

    1, I feel like hedonism-bot "ooooohhh, delicious".

    2, EABOD is my new favorite acronym, and I will be stealin' it.

  84. JR says:

    @Dan Weber
    Yes, the current patent and trademark system is better than that used in the 1800's. That does not make this one good. Taking a patent out on an idea may serve to ensure the idea does not die with the person that came up with it. But it is then used to prevent other people from using that idea without paying gratuities to the person who shouted "Bingo!" first. Or worse, fight off the lawyers of the big corps defending their clients sole rights to have rounded corners on a phone. It is a very much abused system that has spun off its own micro-industry of patent lawyers and lobbyists.

    @AlphaCentauri
    How about if I get together with some friends and we play a song you wrote for a friends birthday? Are we stealing your service of writing the song? Or are we taking money that you might have received had they chosen your band to play, even though we did it for free as a present?

    I can understand ownership of non-objects such as services. I am not so sure about ownership of concepts.

  85. That Anonymous Coward says:

    @Terry Towels
    Most of the big acts today only see real money from touring live. Many of them are trying to avoid signing a 360 deal with the labels, to avoid the fun "accounting" that happens (also could be read as plagues) the industry.
    Macklemore has one of the top songs in the country, no deal with a 'real' label. Psy got a HUGE influx from that song we dare not name less Jordan start dancing.
    Once upon a time all you got to hear was what the labels created. They might have found people with 'star' potential but they put time and effort into them… now there is a guy in a warehouse in Florida who was churning them out every 6 weeks.

    The model is not what it once was and many of todays stars know it. The music is what gets them noticed, the side deals are what get them paid because the labels hide the cash. See Eminem vs Label that expensed the cost of defend the lawsuit against them to his account. We learned they aren't turning over money, they are playing games with terminology sale vs license with different meanings based on what lets them keep more money.
    The Black Eyed Peas aren't pimping fridges yet, but they get lots of revenue from other than albums.

    @Jordan – You can see the inherent flaw with the system in the case in Canada correct?
    Labels for years used artists material and just put them on a list to be paid when they got to it. They never got to it until the artists were demanding their money. If they had faced the same fines they impose on the public the liability was 6 Billion. They paid just over 50 Million, and one label sued its insurance carrier to pay their portion for violating the rights of the artist.

    Something like 6 Strikes is a bad way to go, I could see its value 20 years ago. Its badly implemented, the alternatives getting top billing are pay obscene amounts for cable with 500 channels to see this 1 show… unless you want to DVR it to watch it in your schedule and then we are going to sue, and skipping commercials is stealing, and putting it on your ithingy is illegal unless you pay us for each device you plan to use it on. Instead of – here is your $3 episode in an open format for most popular devices.
    Ultraviolet… here log into 4 different web sites and hope you can get the magic to work…

    They are far to obsessed with control above and beyond what is acceptable. The old systems they still use need to be torn down and rethought.

    You said its hard for them to enforce their copyrights, why then do they make it just has hard for people to give them money for content they want?

  86. Kevin says:

    @naught_for_naught You're of course correct that TJ was speaking about patents in that particular quote, but in arguing the point he refers only to the much more general "ideas"… the logic of the argument applies equally well to copyrights as to patents. And the point I was trying to make was only that the founders understood that "IP" was a matter of policy, not a matter of rights.

    The side point he makes about real property is off-topic, and addressed more towards denigrating Natural Rights theory (or at least its applicability to the question at hand) – he's not actually saying that real property rights cannot or should not be enforced, only that they cannot be derived from the laws of nature.

    I don't see how you think the closing paragraph you cite contradicts me – it in fact reinforces exactly what I'm saying – that Jefferson saw the question of where to draw the line on "IP" policy as a public policy question, to be decided in the interests of society, rather than as a question of rights. And also that he considered the idea of the government granting state-enforced monopoly rights over ideas was an "embarrassment" to his libertarian ideals.

  87. Kevin says:

    @Jordan Rushie

    So, just because you bought that Counting Crows album back in the 90s doesn't mean you have a right to download it again off bittorrent in 2013 because the CD broke.

    Wow… that's a really…. extremist position. Not that there's anything wrong with holding extremist positions – I hold many myself…. but… I mean, you DO realize how wacky that sounds to most ordinary people, right?

    Also, it completely contradicts your earlier logic that copying is exactly morally equivalent to shoplifting a CD, since the value of a CD is in its contents, not in the physical disc. When you buy a CD, what are you paying for exactly? The plastic disc? Or the IP? Your answer to that question seems to flip-flop depending on whichever happens to be more convenient to the rightsholder.

  88. Josh C says:

    @ Jordan Rushie

    I respectfully, but strenuously disagree with you on the moral part of copyright infringement. Unfortunately, it's late and I'm tired, so I'm afraid the strenuousness will come through more than the respect. Please forgive that.

    A few posts back, you said:
    "If you went into a DVD store (in some cases, broke into the store), stuffed a DVD down your pants, and then ran out we would call that theft. If you then made a bunch of copies of the DVD you stole and gave it to your friends, that's even worse!"
    You also assert that copying the DVD is theft, just like stealing any other good. Your own example undermines this completely though. Replace "DVD" with any normal good, and that statement is ludicrous (admittedly, most of that ludicrousness is from stuffing things in pants, but still).
    Consider: Casting gold rings is worse than stealing gold rings? Making bottles of wine is worse than stealing a bottle of wine? Building Go-Karts from scratch is worse than joyriding? Cooking fried chicken for your family is worse than breaking in to KFC?

    I think not. There is a fundamental difference, obvious to even casual inspection. As other folks have pointed out, calling copyright infringement "theft" is no more persuasive than calling it "false arrest".

    I do respect your point that the law is whatever our representatives decide it is (within defined limits), and that it's not immoral to enforce whatever rights you are granted under that law. That's a profoundly amoral view (amoral, not immoraI) of law, but also a principled one.

  89. M. says:

    Hey, Prenda Law: Feel free to go fuck yourselves right off the planet.

  90. M. says:

    Also, I think this counts as "front-line research."

  91. Kevin says:

    Casting gold rings is worse than stealing gold rings? Making bottles of wine is worse than stealing a bottle of wine? Building Go-Karts from scratch is worse than joyriding? Cooking fried chicken for your family is worse than breaking in to KFC?

    I think you're going a bit far with these analogies, as they fail to capture any element of copying an original work. More apt analogies would be:
    -casting a gold ring based on someone else's design
    -building a go-cart copied from a commercially available model
    -cooking your family a meal of fried chicken, but using the secret mix of 11 herbs and spices!!!… etc etc

    But even with these modified versions of your analogies, your point still stands: none of these activities are even anywhere remotely close to morally equivalent to stealing. They all involve reducing the market value of the original, by increasing supply of a previously-artificially-scarce good, without the permission of the originator of the idea. But none of them involve actually TAKING anything away from the originator. I can certainly see how these kinds of actions could be considered morally wrong, but to say that they're exactly AS WRONG as STEALING is just silly.

  92. That Anonymous Coward says:

    @M – careful they left openings to expand the lawsuit against anyone else who speaks ill of them. :D

    @Jordan – The counting crows reference leads me to a question.
    Did I buy an album, a license, or what? They have muddled the waters so badly in this area.
    Once they decided that format shifting was stealing millions from them, this mattered more.
    In the old model that they want the current world to be constrained to it was much simpler.
    You bought an album, it was yours. If you broke it, buy a new one. You could listen to it on your record player, not a record player with a special needle and an electric eye to make sure there were not more people than they allowed you to have in the room.
    Then when you purchased a CD you were buying a license to the music on it, but not a real license but only in that you had to accept their rules for what you could do with the content. Your not allowed to rip it to MP3! Your not allowed to mix only the tracks you like to your own CD to listen to in the car. And in exchange for these limited rights, we paid a premium price.

    Every innovation is met with the answer of how its going to kill the content industries, VHS is still the best example. The Boston Strangler that went on to make them huge piles of cash. They are much to focused on keeping control of the content, gotten themselves 120 yrs to try and make a buck, and are collecting tolls at every turn (and often never pay the share of the tolls due to the actual artist.).

    Rather than try and reform just how they can pursue the evil scofflaw pirates, it really is time to suggest that if you can't make money in less than 120 years you shouldn't be in the business of selling content. 'For a limited time' needs to be defined to less than 2 lifetimes, the public needs to get something from allowing these monopolies once again. Public Domain Day this year had the same list as it has for the last few years… it was empty.

    BT is a symptom of the problems in the copyright system. I enjoyed the paper written by that poor Republican fellow they crucified for daring to suggest it was broken and offered some really good ideas to reform it. I liked the idea of allowing them to extend their copyrights, but with a cost to the holder to do so.

    A question I've asked time and time again is where is PornTunes? Porn, that innovative force that used to push tech forward, can see the iTunes model and copy it. The volume of sales would let them lower prices and earn more. Charging the same (or more) for a digital file as what they charged for large chunky plastic tapes is trying to cling to the past. If one studio built it, they could be Apple getting a cut for offering the platform. Linking the data might increase sales of older material as people tend to have favorite stars… and might have missed them working for another studio under a different name. There are amateurs out there making money from the 'Free' tube sites producing their own content, and those sites are most likely getting rent for the 'booth' and some from ads (well from those of us not running ad blockers).

    I think the biggest problem out there is people stuck with their notions. You can't tell me the first time you became aware of me you thought much of me. As time has gone forward I hope that you can see I'm not what people assume I MUST be: trendy avatar, active in the 'anticopyright' sphere, out to steal everything I can get my hands on. I'm a trendy avatar, I'm anticopyright troll, and I just want to try and drag the content providers at least 15 years ahead of where they are trapped in the 80s.

  93. Chris R. says:

    @Kevin,
    You are allowed to make a backup of your CD or create mp3s under current law, which even the RIAA begrudgingly admits. However if you were to not make a backup and then lose the CD or break it, it would illegal to download it from bittorrent. I don't see that as extremist. I see that as not properly insuring your property.

  94. Chris R. says:

    @Anonymous Coward,
    [blockquote]Your not allowed to rip it to MP3![/blockquote]
    You are allowed to. Check the RIAA page, they even admit it.

    [blockquote]BT is a symptom of the problems in the copyright system.[/blockquote]
    I would believe this if people only pirated stuff 15+ years old, but if you check out the top 100 for the pirate bay, it's all new releases. The symptom of the problem is it is available free, with relatively little risk. It's the same issue of speeding on the highway, everyone does it, so you can be assured that the actual chance of you getting nailed for it is pretty low. I've gotten 1 speeding ticket in 15 years of driving, and I probably speed at least once per day. So I have effectively a 0.018% chance of getting a speeding ticket which is why I probably speed (even a little bit).

    In the end, human happiness depends on scarcity and the less scarce people make things like creative arts, the less happy they'll be with them. Water is never more enjoyable than in the desert.

  95. Chris R. says:

    Aw, wrong tags.

  96. Kevin says:

    @Chris R. Obviously I'm aware it's illegal, the question is should it be. "Extremist" is a word that is theoretically possible to objectively quantify, as it refers to an individual's position at the extremes of a political spectrum. I think if you did a scientific poll (especially if you restricted your sample to the under-40 crowd), you would find very low rates of agreement with the quoted position.

    As to your "insurance" analogy – If I damage my car and have to file an insurance claim, that causes my insurer to actually have to pay out money to me to fix it. If I damage a CD, then download a replacement from the pirate bay, nobody loses anything! So the "loss" that you're "insuring" against is actually an entirely artificial "loss" created solely for the purpose of issuing "insurance" against it. It's economic deadweight.

    You know how mobsters like to refer to their extortion rackets as "protection"? You know why that's bullshit?

    Charging someone money in exchange for DOING something GOOD is called "commerce".

    Charging someone money in exchange for NOT DOING something BAD is called "extortion."

  97. Kevin says:

    In the end, human happiness depends on scarcity

    Uhhhhhhhhhh…. I don't think that's a statement you're going to get many mainstream economists to agree with.

    Nor many non-mainstream economists for that matter.

  98. Noah Callaway says:

    "In the end, human happiness depends on scarcity and the less scarce people make things like creative arts, the less happy they'll be with them. Water is never more enjoyable than in the desert."

    I see this as inaccurate. People dying of thirst in the desert aren't suffering from extreme happiness due to the scarcity of water. Scarcity absolutely does not create happiness.

    Scarcity does create economic value. It's actually one of the major drivers of value. Your example neatly points that out, in that water becomes much more valuable to someone dying of thirst than it is to someone staying up too late to write comments on the internet.

    In my opinion, given Article 1, Section 8, Clause 8 of the U.S. Constitution the scope of the monopoly rights granted by copyright should be limited to the absolute minimum necessary to make the economic value of producing a work enough to justify creating the work. I would argue that our current copyright system grants monopoly rights far beyond those necessary to promote the progress of science and useful arts.

  99. G Thompson says:

    Well this thread went sideways into the realms of Copyright reform (tort reform for the win), Theft vs Infringement (when Steele-ing would of been a better word) Who is friends with Randazza and who isn't (WTF.. How is that even relevant to anything) ….

    Is this Popehat or has it gone into the realm of Techdirt .. Please someone for the love of all that is decent..

    Release the ponies!

  100. Kevin says:

    @Noah Callaway: +1

    This is a really key point. Those who rely on arguments of the pattern "The Law is The Law (and therefore don't even attempt to engage in debate about what the law SHOULD be)" fail to recognize that the plain, straightforward reading of the copyright clause (i.e., the Supreme Law of the Land) quite unambiguously authorizes Congress to enact IP laws only to the limited extent that such laws instrumentally "promote the progress of science and the useful arts", NOT to maximize the size of the estate of the IP's creator.

  101. Kevin says:

    @Ken : I realize this thread has diverged very far off topic, largely due to my influence. If you want me to stop, just say so. Personally I think it's an important debate to be having, even if off topic, but it's your living room, so if you're getting pissed at me right now, please give me a nod and I'll cut it out.

  102. AlphaCentauri says:

    @JT: re: the birthday song analogy. If you perform someone else's work, they do have rights. If it's a friend, they likely implicitly grant you permission for noncommercial performance, and if it's a private party it's likely covered under fair use (IANAL).

    If they own "Good Morning to You" and everyone on the planet borrows their tune to sing "Happy Birthday to You," they may not be able to do anything about noncommercial performance on a practical basis, but if a movie or restaurant uses the tune, they do have to pay for the right to perform it (and the movie will provide proper credit to the authors).

    This is how songwriters and musicians make a living. If you don't think other people should be paid for that work, write and perform your own music and only download music from people who allow it. It takes time and money to produce the type of music that is being pirated most commonly. If you insist on a system of amateur music production, you can't also insist on getting music that has had a lot of money and time put into its production.

  103. naught_for_naught says:

    >Kevin

    I spent some time last night listening to The Band and reading about the concept of Natural Law in an attempt to better understand your argument and the Jefferson letter you cited.

    From my current perspective, as of this morning, I would say that many, if not most, who refer to Natural Law do so as a basis for criticism of statutory or Common law. (This is certainly the case with your argument.)

    It's an easy feat to identify arguments that are clearly rooted in a belief in Natural Law:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

    It's much harder, however, to actually define what common law is. Several have tried. Their arguments are fascinating, but there is no consensus. At best, all that a natural law argument can tell us is that the current statutory law misses the mark if we were to compare the outcome of jurisprudence with what our conscience tells us is right and fair.

    This us brings us right back to the beginning. People have a right to own property — real property, intellectual property, whatever. If people have a right to property, then they also have a right to protect their rights of ownership. I would argue that these too are principles supported by Natural Law.

  104. a_random_guy says:

    Jordan writes: "people are stealing…massive amounts [of] intellectual content"

    The thing is: those people would disagree with you. Many of them would point out that copyright, as originally conceived, is intended to grant a "short" term of protection. By this reasoning, the law is wrong, anything more than X years old properly belongs in the public domain. Where X is a number smaller than 20, possibly much smaller.

    If you believe a law to be wrong, and you want to campaign for change, you have two choices: you can try to work within the system, or you can flagrantly flout the system. In this case, working within the system isn't going to produce results: the government has been captured by corporate interests. Hence, only the second choice remains viable.

    I'm not saying that all "pirates" have thought this through. Some just want free stuff. However, I think this protest against the imbalance present in current law is in the back of a lot of people's minds, and drives the widespread flouting of the law.

    So, no, I do not "have to acknowledge that Internet piracy is a problem". Internet piracy is a solution, a lever that may drive change in this area, that may eventually restore the balance between producers and consumers.

  105. Dan Weber says:

    By this reasoning, the law is wrong, anything more than X years old properly belongs in the public domain. Where X is a number smaller than 20, possibly much smaller.

    As has been pointed out, the most popular things pirated aren't older works.

    (I think copyright terms are too long. I feel 100 years is way more than is needed. I also feel that 20 years is too short. I'm willing to join you in lobbying for shortening terms to, say, 40 years, but if people are going to react to that as "well, it's still more than some number I imagined, so I'm going to continue to break the law," then I don't see any reason to help them.)

    you can try to work within the system, or you can flagrantly flout the system.

    So this is civil disobedience? Please. If I think, say, that the marijuana laws are unjust, look at two courses of action:

    1. announce that I am going to light a joint on the steps of City Hall tomorrow at 3pm, invite news crews, have my lawyer standing next to me, light up at 3pm, get arrested, go to jail, and then fight my unjust detention in front of a jury

    2. hide in my basement, smoking doobies all day, talking with my friends about corporate power, man, and when I someone knocks on the door we all rush to the toilet to flush our joints down the toilet as fast as possible.

    One of those actions is civil disobedience and working towards changing the law. The other is not, although the people pursuing it might try to tell themselves it is.

    working within the system isn't going to produce results: the government has been captured by corporate interests

    How would you disprove this statement?

    Also, how would you account for the fact that just about every other modern country on Earth has similar copyright provisions? Part of the reason for the length of American copyright terms is that it is trying to follow the treaties with other governments that it has entered into.

  106. Chris R. says:

    Kevin,
    So by the insurance analogy you used, you expect every person who downloaded thousands of copies of an album that came out 2 weeks ago to have broken their CD? That's not reality (it's even less reality when something is available on bittorrent before it goes on sale). Again you are provided a free insurance process under current copyright, that allows you to make backups of all your music.

    No one is entitled to possess music, it's not a basic human right. When we talk about war torn countries like Syria we don't say we need more humanitarian aid and a whole bunch of Frank Ocean CDs.

    If you don't like a company's business practices you have an available relief, it's called boycott. Not "I'm not going to pay you a dime, but I am going to copy your work for free." This is going to be particularly a matter of interest to many other companies as 3D printing becomes more available.

    I completely agree that copyright should be limited, however even if we were to limit it to 15 years like I said above (which will probably never happen) most of the infringing work on bittorrent is from the last 2 years.

  107. Kevin says:

    @Chris R

    So by the insurance analogy you used, you expect every person who downloaded thousands of copies of an album that came out 2 weeks ago to have broken their CD?

    You're shifting the goalposts. The insurance analogy you used, and my critique of it, were specifically applied only to the context of replacing a damaged CD, not piracy in general.

    No one is entitled to possess music, it's not a basic human right.

    Nor is it a basic human right to have state-enforced monopoly rights issued to you.

  108. Kevin says:

    @Dan Weber

    hide in my basement, smoking doobies all day …snip…
    One of those actions is civil disobedience and working towards changing the law. The other is not

    So are you suggesting that it's ethically legitimate for the government to initiate force to stop people from smoking doobies in their basement? Huh… I was under the impression that the demographic here at Popehat skewed libertarian.

    As has been pointed out, the most popular things pirated aren't older works.

    You've pointed this out several times now, but I'm not sure I understand the point you're trying to make. Can you elaborate?

    Also, how would you account for the fact that just about every other modern country on Earth has similar copyright provisions?

    How would you account for the fact that a country having looser IP laws is positively correlated to economic growth?

    Part of the reason for the length of American copyright terms is that it is trying to follow the treaties with other governments that it has entered into.

    Oh please… you don't actually buy that line do you? Here, let me explain to you how this process actually works:

    Step 1: Lobby foreign governments to sign on to treaties strengthening IP laws to greater than they currently are in America.
    Step 2: Lobby the US government to sign on to the treaty. When the public objects, reassure them "don't worry, this treaty doesn't actually modify existing US IP law, it's just a treaty"
    Step 3: Once the treaty has been passed, begin lobbying for strengthening domestic IP laws, on the grounds that "well we're just bringing ourselves into compliance with our treaty obligations."
    Step 4: Lather, rinse, repeat.

  109. naught_for_naught says:

    Errp: It's much harder, however, to actually define what common law is should read, "It's much harder, however, to actually define what Natural Law is."

  110. a_random_guy says:

    Dan, perhaps I didn't express myself clearly. Let me try again: I don't suppose that too many people are going to smoke their "piracy" joints on the steps of city hall. However, I do think that the general sense of unfairness in the current laws drives attitudes and a sense of self-justification. This need not be on a conscious level – it's more of a general meme.

    You also ask how one could disprove the statement that the government has been captured by corporate interests. That's backwards, I want to prove it, and I can: Why else would Congress have extended copyright terms just as Disney was about to loose copyright on several of their classic cartoon characters? If that's not direct evidence of political corruption, I can't imagine what would be, and it's hardly an isolated case.

    This is exactly the kind of stuff that makes people feel justified in pirating stuff, as a way of "getting back" at corporate interests that they have no other way of attacking.

    Why do other countries have similar copyright provisions? Because a lot of these countries have been seriously pressured by the US government. Search for "2012 Special 301 Report" and read between the lines: basically, the US uses economic blackmail to force countries to sign agreements like ACTA.

  111. Dan Weber says:

    So are you suggesting that it's ethically legitimate for the government to initiate force to stop people from smoking doobies in their basement?

    No.

    You've pointed this out several times now, but I'm not sure I understand the point you're trying to make. Can you elaborate?

    I've only mentioned it once.

    "I object to copyright terms that say I can't pirate Star Wars for 35 years ago, and I'm going to voice my objection by pirating The Avengers from 3 days ago" has obvious logical flaws. If you don't see them, that's fine.

    How would you account for the fact that a country having looser IP laws is positively correlated to economic growth?

    I would assume the person saying it, if they knew the actual facts, was talking about places like China, which have tremendous disrepect for property (including real property, as any NPR broadcast of the country will remind you), but are going through a tremendous catch-up phase as their previously-retarded economies ramp up to modern levels. Eventually they will need to transition from the economic activity of building roads to the activity of making ideas, and we will see them come into line with the IP rights of other countries.

    you don't actually buy that line do you?

    Most politicians believe the things they say. They think, perhaps incorrectly, but still sincerely, that strong property rights are wealth-creating, and "make jobs," and there is nothing a Congressman likes more than making jobs, especially in the current environment.

    Here, let me explain to you how this process actually works:

    Don't insult my intelligence by pretending you knew or cared about the implications of treaties on American law before I brought it up just now. If you want me to believe that the American government is owned by corporations, don't set up a scenario that requires all the Europeans to be more owned by corporations first.

  112. naught_for_naught says:

    >a_random_guy

    Why shouldn't Disney be able to retain exclusive rights to Mickey Mouse? That is an asset of their business.

    Should Six Flags have the opportunity to use the lovable little rodent's likeness to attract kids?

    If you could get Musketeer ears at the local carnival, why would anyone pay to visit the Magic Kingdom?

    Parents on a budget could just lie to their kids, No honey, this is Disneyland, I swear. Now get on the spin and puke before Carny-Goofy starts swearing at us again.

  113. Dan Weber says:

    Why else would Congress have extended copyright terms just as Disney was about to loose copyright on several of their classic cartoon characters?

    Some folks decided they wanted a law passed, so they called their local Congressman, and he said "you're right, there ought to be a law," and he sat down and wrote it up and introduced it to Congress.

    Here, this might help: http://www.youtube.com/watch?v=tyeJ55o3El0&feature=youtu.be&t=48s

  114. Kevin says:

    @Dan Weber

    "I object to copyright terms that say I can't pirate Star Wars for 35 years ago, and I'm going to voice my objection by pirating The Avengers from 3 days ago" has obvious logical flaws. If you don't see them, that's fine.

    OK, I understand what you're saying now… I guess you were replying to somebody else with that bit. Yes, I do see the obvious logical flaws with that argument (which is why I never made it).

    Don't insult my intelligence by pretending you knew or cared about the implications of treaties on American law before I brought it up just now.

    I'm not sure what you mean by this. If you're just saying that I'm not a formally qualified expert on treaty law, then yes, guilty as charged – I'm not a lawyer. But if you're suggesting that this is a topic I knew absolutely nothing about prior to reading your comment, and that the ratcheting process I described was just something I pulled out of my ass on the spot…. no. I follow these issues closely, and the scenario I presented is not at all hypothetical.

    I would assume the person saying it, if they knew the actual facts, was talking about places like China, which have tremendous disrepect for property (including real property…snip…

    Sure, I don't doubt that there's a certain element of that at play. But still, the fact remains that while strong real property rights are positively correlated with economic growth, strong intellectual property rights are negatively correlated with economic growth.

    If you want me to believe that the American government is owned by corporations

    Nope, that was the other guy, the Anon guy, who said that. I would never suggest something so daft. But the fact that the passage of these IP treaties – and the resulting ratcheting of domestic laws to match them – has been primarily the result of lobbying by the "content industry", is just a fact. I mean, they put out press releases about it, it isn't like it's a secret.

  115. azteclady says:

    @ Kevin Ordinary person here.

    I don't find the position extremist at all. You bought one copy of the content, in that specific format. Once the format wears out, you are out of luck–exactly as when you buy that one physical copy of that book, or that pair of shoes. Paying once doesn't give you a right to access until death.

    Mind you, I do think that corporations–Disney particularly–have wrecked havoc on the spirit of copyright law, but from there to "well, I paid once, so I should never have to pay again" there's a long gap in logic.

  116. SJD says:

    Sorry for the cross-comment (initially posted this news in a slightly wrong thread): John Steele has dismissed "his" lawsuit (the one filed in Florida) without prejudice today. The other two are still lingering in Illinois.

  117. SJD says:

    Without any intention to participate in the opened-can-of-worms copyright debate (not that I run from these questions, but it is not an appropriate time and place for me), I want to note that it is impossible to have a "beef" with the entire Randazza: he is undoubtedly a large individual. I agree with him and praise him on many topics, while vigorously oppose some of his positions, sometimes admittedly too emotionally. Much less, my disagreements with Marc affect his friends and admirers. For example, I believe that we are in a state of the mutual respect with Jordan Rushie, despite the fact that he treats of copyright as a religion.

  118. Chris R. says:

    Kevin,

    Copyright isn't state enforced monopolies. That is absolutely ludicrous. Unless you mean Macrovision being required by the DMCA for analog recorders (which is in fact a monopoly created by regulation). It's like saying that if I author a book, I now have a monopoly on my own book.

  119. Noah Callaway says:

    @Ken The whole copyright thing is a soapbox issue for me. I've been trying to bite my tongue for the most part since this discussion is mostly off-topic. If you'd prefer we ceased this dialogue in this thread, just say the words and I'll get back on topic.

    "It's like saying that if I author a book, I now have a monopoly on my own book."

    In fact this is exactly what it is saying. Copyright is a monopoly grant over the fixed-expression of the ideas that you've laid down (the content of your book). You have a monopoly over the tiny market-segment that is the content of your book, granted to you entirely by copyright law.

    This is a monopoly over a (admittedly small) market segment because the government has restricted any other entities from selling your content. It should go without saying that you do not hold a monopoly over the wider market segment of books; however, no one else can offer your book for sale without first getting your permission.

    It's also clear that the government granted monopoly is a given to you by copyright law. As soon as copyright protections expire and the content of your book enters the public domain you no longer have a monopoly over the (tiny) market segment. At this point other people can begin to sell the content of your book for any price. You no longer have a monopoly on the market segment of the content of your book. Not surprisingly, this will often create a free market around that tiny market segment and drive the price of these books to their marginal cost to produce. As evidence of this I'll cite the wonderful and amazing Project Gutenberg: http://www.gutenberg.org/.

  120. JR says:

    @AlphaCentauri

    Sorry for the delayed reply, but there was a lot going on last night. Both at home and the with the newer posts here.

    I object to your generalization of money creating art. The oldest cliche about art is that it only pays after the artist has died. With luck, that will change now that artists are able to sell their products on the global market without signing contracts with "producers".

    The biggest impact of this would be the reduction in overhead. An artist can host the products on their own or via one of the major web markets for next to nothing. The prices are significantly lower and the artist gets a much larger cut of it.

    It costs money to create content the same way it costs money to get educated. Dropping a lot of money impresses certain types of people, but there are much cheaper ways to get the same result. And lower prices make available a larger and more consistent customer base.

  121. JR says:

    @Noah Callaway

    I think he opened the other post, sacrificing this one, in an effort to stem the infection.

    My apologies to Ken for aiding and abetting the disruption of what is turning into a Monty Python script featuring the classic shell and pea game. Using coconuts of course.

  122. That Anonymous Coward says:

    @Chris R – the RIAA and MPAA have both held for a very long time that format shifting is the devil and it takes hitting them in the face with the law to get them to admit well maybe in this 1 time, in this one way you might kinda sorta have a right to do it. They spend much time, effort, and cash to make sure that people are always confused if its legal or not.

    @G OHAI! I WANT A PONY!

    @SJD That is what he said… :) and by he I mean me because talking in 3rd anon is fun…

  123. Kevin says:

    @Chris R

    Copyright isn't state enforced monopolies.

    Oh really???

    Then answer me this: in a hypothetical, utopian, Anarcho-Capitalist (as opposed to Libertarian, purely stateless) society, who exactly would enforce IP laws/covenants/conventions?

    If not the state, then who?

  124. flip says:

    I wasn't going to comment, but here goes anyway…

    @JR

    Sorry for the delayed reply, but there was a lot going on last night. Both at home and the with the newer posts here.

    I object to your generalization of money creating art. The oldest cliche about art is that it only pays after the artist has died. With luck, that will change now that artists are able to sell their products on the global market without signing contracts with "producers".

    The biggest impact of this would be the reduction in overhead. An artist can host the products on their own or via one of the major web markets for next to nothing. The prices are significantly lower and the artist gets a much larger cut of it.

    It costs money to create content the same way it costs money to get educated. Dropping a lot of money impresses certain types of people, but there are much cheaper ways to get the same result. And lower prices make available a larger and more consistent customer base.

    Speaking as an artist that self-produces, sells and controls my own content, and has low overhead costs:

    I still deal with rampant plagiarism and yes, it does affect my income. Profit margins can't be increased by reducing costs if no profit is made because my customers go elsewhere and get my stuff for free.

    This also assumes that lower overhead costs outweigh other things, like creation of content, purchase of electronics, and so on. I've had to borrow money just to replace a broken camera this year. Yes, I don't have to pay a 30% commission to a local gallery for posting my stuff: but I do still have to pay for materials and other things. What you think that just because a photo is digital it's somehow cheaper to sell online? (Let's not forget marketing – overhead may be cheaper but heck you have to spend 20 million more hours on marketing, and who gets wages for that?)

    We may have more control over how/where/when we show our work, but that doesn't do much for convincing anyone to buy something they can rip from someone else's website for free. Especially when few people care who made what, so long as they get their precious now and for nada.

    Oh and the whole "artists should just make things cheaper" line is bull hockey. We already shortchange ourselves out of profits to compete with the market. Any lower and we go out of business. And I speak from personal experience here, I'm not charging anywhere near enough to pay myself wages, but can't raise my prices because the general public aren't interested in paying what I actually need to cover my costs. ("Why does a painting cost $5000? It's just a frame and some paint…" Seriously, how do you expect to lower prices when you spend X hours on labour and want wages included in the pricing?) I have several part-time/casual jobs so that I can pay my bills. Making art and getting paid for it is not made easier simply because you can cut out the middleman.

    Frankly, people who speak like this sound like they have no fricking clues as to how much time is spent making the content. Hence people would rather pay nothing, than something – they're too busy worrying about making it cheaper for themselves, and feeling entitled to have more for less. The content creator has become nothing more than that mean middleman who is preventing me from having my stuff; instead of that awesome artist who I love and should be able to live as comfortably as I do, so here have some money.

    I agree with many issues of copyright reform; but so many people here talk about it like it never actually effects anyone, except for millionaire rappers and big movie producers. But it doesn't. The people who you hear complaining about copyright infringement are the ones who can afford the lawyers. That doesn't mean they're the only ones hurting from it.

  125. AlphaCentauri says:

    Don't use China as an example of how wonderful lax copyright laws are.

    China can produce art with lax copyright because so much is state-sponsored. If art was produced with public money, it's right for it to be public property.

    But China's system also puts most of the control of art in the hands of the government bureaucrats who are paying the piper. With a billion citizens, there are still some willing to risk imprisonment without any chance of making a living producing art, but I'm sure it's a much smaller number than it would be with copyright laws similar to the US.

  126. Jonathan W. says:

    Ken – as one lawyer to another, I swear to whatever deity may exist that I will spend what is left of my career trying to find a way to use the phrase "do not bury the proverbial pony in such an epic pile of horseshit" in a professional capacity. Magnificent stuff.

  127. azteclady says:

    @ flip: Thank you–I quoted your entire comment in my blog, please let me know if you'd rather I only posted excerpts.

  128. JR says:

    @flip • Mar 7, 2013 @5:00 am

    You don't mention what sort of art you create in your post so I can't determine what other mitigating factors might be present.

    How much demand is there for your work? How strong is the competition? What quality are you capable of producing? What venues are available to you and suitable to your field? How good is your relationship with the local Chamber of Commerce (or whatever they call the dinner party convention center in your town?)?

    Just saying that it is a lot of work doesn't invalidate what I said in my previous comment. It just makes me think that you are not as determined as you could be. I agree that artists are not adequately compensated for their efforts. I also agree with TAC where he states that it is due to efforts of the content industries fighting change. Being able to self-publish on a global scale from your house is something very new. It still needs a lot of work, but has advanced very quickly.

  129. Matthew Cline says:

    Soooooo, getting back to the original topic:

    Through vague and ambiguous pleading, the complaints seek to hold all defendants … liable for each others' statements, without any apparent basis for doing so. … To the extent they seek to hold everyone liable for everything bad anyone else said about Prenda, they run afoul of, well, you know, the law.

    Perhaps they're accusing the defendants of coordinating with each other? (I'm not willing to wade through the legal documents to find out if they are in fact doing so)

  130. James Pollock says:

    "This is a monopoly over a (admittedly small) market segment because the government has restricted any other entities from selling your content. It should go without saying that you do not hold a monopoly over the wider market segment of books; however, no one else can offer your book for sale without first getting your permission."

    Not quite. First sale doctrine does allow others to traffic in authorized copies.
    There is considerable effort to sideline first sale doctrine by some content producers by insisting that what is being sold is a "license", subject to revocation and not transferable, rather than an "authorized copy".
    IF what is sold is a personal license rather than an authorized copy, THEN format-shifting is irrelevant, but first-sale doesn't apply… you don't own a copy.

  131. James Pollock says:

    I think the argument that copyright infringement (specifically, unauthorized duplication) isn't "theft" because the owner is never deprived of anything physical, is a foolish one. Not because it's wrong (although I do think it's wrong) but because it relies on hair-splitting of the sort that serves absolutely no one. Theft by conversion is certainly one form of theft, and copyright infringement by duplication is not a conversion. However, there are other forms of theft that do not require depriving the victim of something physical, with theft of services being the obvious example.

    Consider: A hotel makes its money by renting rooms. Sometimes, the hotel runs at capacity, but frequently it does not. Suppose there is an empty room in the hotel, for which the hotel is unable to find a paying guest, at any price. Does this make it OK to sneak in to the hotel, and sleep in the room, then clean it up to its original state before leaving? After all, the hotel hasn't been deprived of any income-generating opportunity… that room would have been empty.
    Now suppose that an employee of the hotel, knowing that some rooms will be empty, provides access to someone who doesn't pay the hotel. Has the employee stolen anything from the hotel? Does it make a difference if the employee gets paid by the rogue guests?

    It comes down to whether or not the IP owner is allowed to exercise absolute control of the rights granted, or not. For example, there's been a significant number of cases where political campaigns have used copyrighted songs without the permission of the copyright owner. There are other cases where the owner of the copyright of a song declines to license it to advertisers, at any price. Historically, there have been authors who declined to publish their literary works during their own lifetimes. All of these are cases of the copyright owner refusing to allow others to use their works… not arguments over the pricing. Should copyright owners be allowed to do this? In some cases, the official answer is no. Consider the cases of copyrighted music and broadcast radio, or of songwriting copyrights and cover bands, or the limitations on the copyright owner's power following sales of authorized copies.

    Anti-copyright folks tend to publicly argue that A) since unauthorized copies don't directly cost the copyright owner anything, no harm, no foul. (comparable: if someone trespasses on my land while I'm not there, I have nothing to complain about, since obviously my enjoyment of the use of my land has not been affected. This certainly is relevant to the level of damages I can expect to recover, but it doesn't change the trespass into something else.) B) the argument that the price of something should be directly related to the cost to produce it. (Since the cost of making a digital copy of a digital original is a trivial amount of computing power plus some storage capability, the price of a copy should be trivial… perhaps even rounded to zero.)

  132. Colin says:

    Wow. DieTrollDie is reporting that Prenda has sent a subpoena to WordPress seeking the ISPs of all persons who have accessed (not just posted on) FightCopyrightTrolls and DieTrollDie since Jan. 1, 2011.

    http://dietrolldie.com/2013/03/07/battle-stations-prenda-law-sends-wordpress-an-overly-broad-subpoena-for-information-on-who-accessed-dtd-fct/

  133. JR says:

    I would have to reread the entire thread to be sure, but I cannot recall anyone commenting here say or imply that copyright infringement was not theft. Yes, even services.

    Everything a person owns/does is unique to that individual. Compensation should be provided for transference (temporary or permanent) of possession or performance of a service on behalf of another.

    Speaking as a hotelier, I have had many occasions like that which you describe. I make an effort to know what my employees are doing and regularly check my vacant rooms to prevent it. When it does happen, I politely ask them to leave. If they refuse, I warn them that I will call the cops if they persist. Finally, I call the cops and have them escorted off the property with an admonishment from the officer that returning will result in their arrest. A trespasser would receive similar treatment. Both of these examples involve occupying physical property without permission.

    My objection has always been the prevention of others from producing or performing a task that would otherwise be something they are fully capable of doing without seeking permission from the first to call dibs. I call that stifling the competition.

    It seems to me that some of the comments are relying on some ability of law to negate a basic component of human nature in order to achieve some sort of utopia.

  134. James Pollock says:

    "I would have to reread the entire thread to be sure, but I cannot recall anyone commenting here say or imply that copyright infringement was not theft."

    Look here:
    http://www.popehat.com/2013/03/05/prenda-law-researches-streisand-effect-says-i-gotta-get-me-some-of-that/#comment-992818

  135. JR says:

    I stand corrected on that point. Thank you for that, James. If I have gotten anything else wrong, please do let me know (not sarcasm, genuine interest).

  136. flip says:

    Hooboy… forgive the long comment, trust me this is the short version.

    @Azteclady

    Thanks. This is the first time my alias has ever been quoted on someone else's blog. I'm really flattered :) … Oh, and happy for you to quote it all. I don't think there was a "copyrighted by flip 2013" addendum anywhere ;)

    @JR

    You don't mention what sort of art you create in your post so I can't determine what other mitigating factors might be present.

    I purposefully used examples in order to avoid revealing my real identity. I'd rather not mention my specific job as that easily identifies me on the internet. I am more than happy to reply privately via email to your questions as my post would only end up either in a tirade or in identity-reveals, or probably both. If you do, email me at flippingflipperburgers at gmail.

    I will say though that most of your questions have nothing to do with the problems of copyright infringement and the fact that overheads don't make it easier. This has nothing to do with customers wanting something that doesn't exist elsewhere or at a too high a price, and everything to do with the fact that most of the infringers either don't care about or don't understand copyrights.

    In fact, the reason my business sells stuff online is *because* it's cheaper; however, the cheapness of overheads does not reduce the problems fraught with copyright infringement… including but not limited to damage of reputation as the work gets 'edited' to avoid infringement which changes the quality, confusion of my product with the infringer's, damage of income with lack of attribution, wasted time/money on chasing it, and so on.

    I will also note publicly that most people I talk to are shruggies when it comes to copyrights. Yes the laws haven't caught up; but you know what, neither has the technology to make copyright infringement easier to deal with. I'm not a fan of DRM, and I do dislike the idea that if iTunes disappears I'll lose my purchases: but I am also a big fan of paying artists what they're worth. Most people have no idea of how much costs we eat upfront, and in one particular line of work we simply do not EVER expect to break even let alone make profits. This is not the business model, this is a reality of working in the arts. And most of the time, it's hard enough to convince someone to pay a few bucks for some content, we don't need it piled on by having our business stripped away bit by bit.

    I'm not arguing for or against any policy moves, and I agree it's complex and fraught with semantics, and I don't have any ideas of how to make it better, I really have no means to do so as I haven't looked into it. (The exception being that I too get annoyed at regions for DVDs, but understand that getting all the countries in the world to negotiate on copyrights would be too much to expect. And oddly enough I agree with most of this excepting that people forget it's not just corporations who are affected) But I find the attitude of "but it's online now, it's better than mean managers" is such a false dichotomy. It's not that easy, it's not that profitable, it's still unfair to us and our hard work to see it all used without our permission. — I'll point out that many artists, including myself, offer various products under creative commons.

    This doesn't mean people get to ignore other copyrighted items at their leisure, nor does it mean we should always be forced to accept that the entitled customer is in the right simply because they have a demand and we have the supply. I have a right to limit my products in the way I want; particularly as the way I limit them makes it cheaper for me to produce and cheaper for the customer to buy. And yet still people request and/or expect me to offer the products for free – or others to offer them for free, or for me to offer other people's products for free – because they don't want to shell out the money. People don't think twice about treating a plumber as a professional; but rarely do they treat artists as professionals who deserve to get paid.

    I'm sorry, in those cases, the problem is not with me and my business model, but with the idjits who don't want to pay enough to cover my costs, morons who think "I know it's wrong/illegal but I'll never get caught", and the misguided innocents who think it's a nicety to reuse my work without permission and without attribution.

    And if you still believe that false dichotomy, I have one more phrase: there are gazillions of websites and products on the net and we have to compete with every single one of them.

    … So much for no tirades ;) This topic sets me off every time which is why I was reluctant to post in the first place.

    My objection has always been the prevention of others from producing or performing a task that would otherwise be something they are fully capable of doing without seeking permission from the first to call dibs. I call that stifling the competition.

    I'm not stifling competition. In fact, in every single case but one, the copyright infringers have been spammers, well-meaning but ignorant people (not quite fans, not quite other businesses, sort of in between). The single case is a sort-of competitor who has been called out repeatedly by news outlets let alone little people like me.

    The problem with your comment is that you assume that other people have the right skills to do it well. Yes, even your grandmother could do what I do; but can she do it of the quality that the professionals do? The reason people contact me about my services is because they can't. In fact, 9/10 times when a customer turns down my quote I then give them information about cheaper options, which *includes* ways they can do it themselves. In my particular case there's no way I could be considered stifling the competition, since part of the (free) service I offer is *connecting people with my competitors*. It just so happens that I also offer complementary services that require payment, which whilst do compete with my fellow artists, doesn't mean I have a monopoly over the content: it just means I want to be able to pay the bills so I can offer all the free services that everyone loves.

    Actually there's a useful point to be made here: you're talking about it like there aren't exceptions. In several cases I've happily given away free products – not as marketing fodder, in fact no one knows about these cases at all – simply because I was kind-hearted. Going back to the permissions, I have known, have received, and have offered, free content where it was otherwise copyrighted. That is, content normally requiring payment of royalties, was given for use for non-fair-use situations, without expectation or receipt of said royalties.

    I think you'll find that when asked politely, we artists are more than happy to share. It's when it's ripped without permission that we get annoyed and rightly so.

    @James Pollock

    Should copyright owners be allowed to do this? In some cases, the official answer is no.

    Not sure how it is in the USA, but here in Australia we have 'moral' copyrights as well as 'royalty' ones. The latter deals with income earned; the former deals with the artist's 'moral' right to see the work used in a way they want it to. To take it to an extreme, if I disagreed with a political party's policies I could legally refuse to let them use my song for their campaign ad because it violates my 'moral' copyrights. I'm not sure how I feel about such a clause but I personally can see legitimate reasons for not wanting to allow some people to use my work. On the other hand, I'm a bit more like Freddy Mercury: I see my work as a product, once it's out of my hands and in the customer's I take no interest in what they do with it. I might not like what they do with it, but that doesn't reflect on me or my work. I do admire his take on his work and his willingness to be so open with how it was used.

    since unauthorized copies don't directly cost the copyright owner anything, no harm, no foul

    It does, see my reply to JR above. Just because it's digital it doesn't mean it doesn't lose the business money.

    Since the cost of making a digital copy of a digital original is a trivial amount of computing power plus some storage capability, the price of a copy should be trivial… perhaps even rounded to zero

    An mp3 file can cost little unless you include: time it takes to find or create music, including the time it takes to research, write, edit, develop, test, etc; the time it takes to edit the file; the equipment used to do all of the above; the hosting costs of wherever you store the file; costs of backup storage. Does anyone really think that costs of all of that will be covered after the first sale? And in $3 per sale no less? That sort of model *does* work for the big corporations who can afford to market the thing, but for everyone else, not so much. It took me a few years to break even on the costs of *one* of my products that is sold digitally.

  137. flip says:

    Clarification to my post (which is currently in moderation):

    "In fact, in every single case but one, the copyright infringers have been spammers, AND well-meaning but ignorant people"

  138. James Pollock says:

    "Not sure how it is in the USA, but here in Australia we have 'moral' copyrights as well as 'royalty' ones."
    At present, a copyright owner has an absolute right to duplication and distribution of their works… including a right to refuse it's use in certain contexts… with a few exceptions, which I listed in my previous comment.
    In the case of a political campaign, it makes perfect sense… becoming popularly identified with one political party can have a substantial effect on sales to members of the other ones.
    The question, however, is whether the rights of the copyright owner should be altered to achieve a closer fit between what the law requires and how people actually behave. The ultimate purpose of copyright law is NOT to ensure that people who create things get paid. Rather, it is to ensure that things that are created get shared. It's true that paying the creator is probably the best way to encourage the creators to continue to create and share, but the current opinion that the copyright holder shouldn't have to give their exclusive rights to creative works until they've wrung every last dollar out, pushed by corporate creators with lobbying money to spend, probably isn't sustainable in the digital age.
    The decision we will eventually face is similar to the case of an organization with a nice lawn that people cut through frequently enough to wear paths into the grass… do you put up fences and "keep off the grass" signs, or do you put sidewalks in that connect the places the people want to go to? Do you continue to fight a losing battle against casual copyright infringement, or do you adjust the law to match what the people want to do?

    The current situation encourages creators to "sit on their laurels", and collect royalties on works they've already created. A substantially shorter copyright term would encourage creators to keep creating, to keep the income flowing in. That would be bad for, say Harper Lee, the Disney corporation, and the Tolkien estate… but good for consumers.

  139. JR says:

    Let me get the long-winded theoretical work out of the way first. This section is what I have determined to be true from my experiences in life. I have not done any scientific work or polling or research other than to spend my free time trying to figure out why people do what they do.

    I will admit up front that I have no knowledge of Australian law and commerce, so I won't even speculate on it. It is, however, a strong personal belief of mine that the laws and social contracts of any country are only binding to those who choose to be so bound. Thus we have criminals in spite of many laws telling people not to do the things that earn such a label.

    What we are seeing happen with the flagrant abuse of copyrights today is a conflict between the current socio-economic paradigm and something new brought forth by an ever-increasing connectivity between individuals. The result of this is that national and cultural borders are no longer the insurmountable barriers they once were. Almost every market will soon have to compete on a global scale in a world with almost seven billion potential competitors/customers.

    People have always wanted as much as they could get in exchange for as little as they can get away with paying. Buyers want the largest quantity of product possible and sellers charge the highest prices possible. The result is that they find common ground in the middle or decline making the transaction. This is a very generalized oversimplification though. Value is very much a personal determination and different people can have wildly different values. This is why prices are constantly in a state of flux. This is also why those on the fringe of the spectrum feel as though they are being cheated. In an effort to balance that perceived injustice, they steal what they think is their due. The natural response to such actions by the more moderate individuals is to use the law of the land in an effort to deter such actions and block access of said fringe elements. This is something that people have always done, but the scale is increasing with the size of the population and therefore affects more people.

    I hope that covers the philosophical portion well enough. If anything I stated is unclear please let me know. I'm not terribly good at expressing myself in my own opinion. I will try to respond to your specific questions at the mentioned address soon. If you do not wish to be known here, then they are not a proper subject for this forum. As if we haven't abused it enough with the current novella-length tangent. :P

  140. Delvan Neville says:

    Had a thought reading through the way-off-topic direction of the comments (but its good, its a conversation that needs to happen).

    Copyrighted material you buy access to via iTunes, Google Play, etc. stores the material "in the cloud" (distributed network of computers piece-wise storing and transmitting your legal copy of the material). How about someone claiming that they saved their single legal DMCA backup copy to such a cloud network, and that said network is a torrent?

    Its certainly going to violate the terms of the agreement for their license, but I don't think the DMCA allowed backup copy is something the terms of use can force you to waive. It is unlike Play/iTunes/etc. in that the operator of the backup service also has a license to possess the material, but neither do any non-cloud data backup service e.g. keeping your music collection in your Dropbox folder means there's at least one (probably more than one) copy stored electronically elsewhere.

    I'm not a lawyer, and its quite early, so hopefully the question is clear and not too verbose. It also has a huge hole that would stop most valid infringers from using such a defense, since for the above they'd have to actually own a legal version of the copyrighted material and thus just be someone getting sued for distribution via Prenda's "Connect to a torrent for this file, see which IPs will send us parts of the file."

  141. James Pollock says:

    "Copyrighted material you buy access to via iTunes, Google Play, etc. stores the material "in the cloud" (distributed network of computers piece-wise storing and transmitting your legal copy of the material). How about someone claiming that they saved their single legal DMCA backup copy to such a cloud network, and that said network is a torrent?"

    First, I don't think "in the cloud" means what you think it does. Things stored "in the cloud" are stored redundantly on high-availability systems. They aren't stored "piecewise" except in the sense that high-performance servers use RAID arrays for storage, which has nothing to do with being "in the cloud".
    Second, I don't think bittorrent works the way you think it does, either. Bittorrent isn't a storage mechanism, it's a distribution mechanism. Creating a torrent does nothing to create a backup copy of a file. Further, the mechanism of bittorrent is optimized for high-volume distribution, that is, making lots of copies. Someone who stood in front of me and claimed that they wanted to use bittorrent to create a single copy would get their face laughed in.
    Finally, though, the real flaw in your premise is the "one allowed copy" of copyrighted materials. Can you point out where the law allows this? (I think there's a fairly strong argument that fair use does allow for backup copies, but it doesn't explicitly allow it.) Backup copies of computer programs are specifically allowed, but other than the fair use argument, I'm not aware of a "one backup copy allowed" provision in copyright law.

  142. Delvan Neville says:

    Yes, cloud storage is not often piece-wise for a specific file (with the exception of, say Cloud Shredder). While the cloud storage term is certainly applied pretty broadly, such storage exists not of exact, discrete copies limited to fixed servers: it is a virtualized resource pool, the number of redundancies that exist and where (and how many) copies of your data exist at any given time is not static. My point with the difference of cloud storage is that the copyrighted work an individual is storing there results in distributing that work to multiple computers. A torrent results in distributing that work to multiple computers. That is the parallel I was addressing.

    I agree, a torrent is not designed to be used as a storage medium. But there seems little difference in distributing data to a computer you call a server and distributing data to a computer you don't call a server if you are using it for the same purpose. People have used torrents specifically so they have a backup copy that is not stored on an easily identified/subpoenaed computer: that wikileaks "Collateral Murder" video of a news reporter being killed by US forces and that so-called "warhead" from the USSC website attack. I'm not defending them nor suggesting that their use makes it a legal technique, merely that I think the use of "distributed servers" makes the line between storage and distribution fuzzy so long as we are still able to legally store things in such a fashion.

    My understanding of the DMCA and prior US copyright law is that backing up copyrighted material is considered fair use so long as you are not circumventing copyright protection software to do so and so long as you are not distributing it. Trying to dig up a specific clause, it seems the limit on a single backup copy is not something I can find written anywhere, so there's no point including that further. I, too, don't know where (or if) backing something up is explicitly identified as fair-use, but I would think it would have been addressed in precedent in the last few decades where backing up data has been so common. Much of the point of asking my question was to get feedback from folks who have more familiarity with the complexities of fair use than I.

    Maybe it's completely illegal for, say, someone's music collection to be saved on Google Drive, or Dropbox, or any sort of virtualized online storage, because while they are not used to distribute the media to other human beings, the act of using them is distributing that media to computers you do not own.

  143. James Pollock says:

    "Maybe it's completely illegal for, say, someone's music collection to be saved on Google Drive, or Dropbox, or any sort of virtualized online storage, because while they are not used to distribute the media to other human beings, the act of using them is distributing that media to computers you do not own."
    It's hard to do fair use evaluation in advance, which means that people on either side tend not to push their luck (for large corporations, this goes back to Sony's win against the studios on the legality of VCRs)
    For now, it seems likely that uploading your music collection to MegaUpload is probably not legal.
    Format-shifting, in general, is a bit of a sore spot. It's not definitely known to be legal in the U.S. (some foreign jurisdictions differ) but copyright owners generally won't contest it if there's no distribution involved. The practice is widespread enough that a consumer revolt would probably result from an attempt to enforce a ban on format-shifting. Copyright owners could use DRM to block format-shifting, but again, the marketplace would punish them for the attempt.

    The main reason why cloud storage of a copyrighted work might not fall under fair use would be if the cloud storage permitted access to the file in more than one place at a time. Itunes, the last time I read the licensing agreement, permitted access to up to 5 devices, and the same was also true of Amazon's Kindle service… which means that the corporate owners of these services arranged these terms with THEIR contractual authority to sell licenses for copyrighted works. This multiple licensing, however, does not INHERENTLY exist for copyrighted materials originally distributed in other media formats, notably CD and DVD. Note that you CAN buy video (movies and TV) that includes multiple licensing, and typically includes a Blu-ray copy, a DVD copy, and a digital copy… if you pay extra.

  144. princessartemis says:

    "Why does a painting cost $5000? It's just a frame and some paint…" Seriously, how do you expect to lower prices when you spend X hours on labour and want wages included in the pricing?

    flip, this made me chuckle sadly. I'm an artist also, though not professionally. (I can't market worth anything.) I've sold a couple things but don't believe I have sold something that would work out to me getting minimum wage plus materials for it.

  145. flip says:

    @princessartemis

    In my line of work one product would be competitively priced at around $20 each. This would cover my materials, but in no way does it cover my time to design and make the item. Even ignoring time for initial design, my items are handmade (vs competitors who can afford time-saving equipment) and several hours at the very least is what it takes to make them. There's no way I could include wages in my pricing structure. I do not know of many who do, except for those who offer higher-end items on commission basis and are considered the top of the field so worth the pricing scale – even though that's not representative of actual pricing. Even then, I am aware that pricing is still pretty low compared to the hours they would spend on it. Most people would blanch at the thought of spending several thousand on such a product – and yet that's exactly what it would cost if wages were included.

    Currently if I want to include 'wages', I charge a few bucks an hour; this is on top of materials cost and a 10% profit margin. I originally priced wages higher, but over the years have learned that customers walk away at the true quotation. At the current few bucks an hour the pricing seems more reasonable to the customer and I have been able to get more slightly more work because of it.

    Wages I do not pay to myself. This is part of the reason why I harp on the income side of copyright infringement issues more than other – just as pertinent – issues. For the small independent artist we need all the help we can get.

  146. izraul says:

    Please elaborate for sake of logic.

    Acquiring free or shared, for private or commercial use, for profit or non profit, is or is not illegal or immoral, theft or infridgement?

    As opposed to sharing what you buy? lol

    It nonsense for profit

    Free or shared is illegal or immoral, theft or infridgment?

    yours to do as you like?

  147. SJD says:

    Have you seen that? Document 12.

    Being a putative defendant in this lawsuit I'm really reluctant to throw theories here. Let's say someone I met online tried to convince me that (in his opinion), the second complaint is not exactly genuine when it comes to filing dates. I said no, no, forget about it. These guys are not model lawyers, but they wouldn't go that far.

  148. Delvan says:

    Ah, so Judge Wright's court lacks jurisdiction over Steele because he's claims to have never been to California, but their own case has jurisdiction over the person you allegedly are (or however one should properly address a claim filed against an anonymous individual) regardless of whether you're from Minnesota. That makes perfect sense.

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