Further more I am still unconvinced that the licencing powers that are implicit in copyright ownership will be restricted by DRM.

There may have to be a case on the matter but I think we can safely assume that breach of the DRM under a CC or other similar sharing licence or permission will be free of penalty – if it is not already explicit in the Act.

There isnt a court in the land or your land who would uphold a law that restricted the common right to licence other to use a work.

In any event if you have a copy of the proposed terms of the DRM I would be happy to have a look at it.

I realized that you are not American when
I read your comments. This may explain the
differences between your and my countries.

I doubt that the DRM will be subject to the
exceptions. The way the DRM is designed,
there is no way to break DRM to exercise
the exceptions without breaking the law, as
mentioned by Branko Collin. If law is
written very explicitly that users can break
DRM to exercise any of the exceptions, this
will be no problem with me. But, I doubt
that most authors and artists would want the
users to have the power to break DRM.

You may be correct that some or many materials
on p2p are not legal under the copyright law.
At the same time, law provides authors and
artists the means to sue the infringers. There
is no guarantee that providing them the power
to control DRM will improve the situation
because as pointed out by some people, DRM
would affect the future authors and artists
and it will reduce two-way street, that original
copyright is designed to be, to almost one-way
street.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions in this
comment in the public domain.

As you are probably aware the copyright acts of each jurisdiction create several rights for authors or creators of works.

In my home jurisdiction of Australia the rights are:-

Section 31 –
(a) in the case of a literary, dramatic or musical work, to do all or any of the following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to communicate the work to the public;
(vi) to make an adaptation of the work;
(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and

Therefore the creator of a work may give permission on a restricted or specific basis for another person to reproduce, perform, adapt or communicate the work to the public.

So for instance, if I was using a CC licence I would state that you have permission to reproduce this work for non commercial purposes. Or you may perform this work at ‘Carols in the Candle light’ concert in Brisbane on 21 April 2005.

If someone does not have permission and they exercise one of these rights they are infringing copyright.

The ability to permit others to exercise and restrict thier rights on a contractual (or more correctly licence) basis is one of the essential gounds to dealing with copyrights as well as the essential ground for CC licences.

Furthermore, the ability to commence infringement proceedings (which generally are not very valuable) backs up these rights and deters infringement.

Using particular text and clauses an artist can control the works – this is a large part of the work that I have to do in the firm (although my specialty is computer software licences).

I hope this has made the practice of copyright law a little clearer.

PS to JPR: those exceptions include fair dealing where there is a consistent line of precedents that do not allow for widespread commercial sharing of protected works to be excepted from copyright infringement.

The exceptions are necesary for the basic sharing of knowledge on an academic basis – stuff like photocopying a book from a library and I note that those provisions are given a rather narrow view.

You may have noticed your local library has all these copyirght notices up these days.

Also remeber that 107 to 122 are alterations of the common application of copyright to certain works due to thier nature as works IE computer programs, sound recordings, architectural works and others. They are not exceptions per se but alterations of the rights in copyright for those works.

I doubt very much that the materials on p2p (except documents) would fall under the majority of these exceptions. Furthermore, the DRM will also be subject to these exceptions – wont it??

Maybe Joseph Pietro Riolo should consider that and get back to me. (And remember to be easy on me Im not american)

Hi ACS, I am going to ask you to do me the same favour that you asked of me a couple of days ago: where in the law does it say that the author has such rights? Exactly what rights are we talking about? I only know about the right to control copying.

(Joseph Pietro Riolo replied for me back then, I hope that was sufficient.)

Of course not. I mean, how can you own the idea of music? “Hi, I patented the making of noises using at least one of voice or instruments, wherein an instrument is any device that can produce a tone, rhythm, or sound of any sort. I would like a royalty from Og the Caveman who first banged on a log with a rock.” It’s just silly.

I mean, if you classify programming into the same realm as art, though, then software IP is just as silly — the difference being that software supposedly DOES something, so it is possible for your work to detract from my userbase. Then again, who cares? If all you and I both care about is achieving goal X as well as possible, then as soon asyour program surpasses mine, I should start working for you. We can’t own the idea, all we can own is the specific implementation (which is covered by copyright!).

“I don’t agree that Queen/Bowie would be wrong in taking Vanilla Ice to court over a remix if he didnt ask permission.“

I said:

“Regardless of one’s opinion on the songs, it was rather silly (but understandable considering that the CC did not even exist at that point) that there was a lawsuit.”

I don’t agree that Queen/Bowie would be wrong in taking Vanilla Ice to court over a remix if he didnt ask permission. Where is the balance between the public domain and the artists rights to choose how thier works are used?

That is after all one of the rationales for copyright legislation.

In any sense the public may be drawn into the deception that the original artist approves or condones something which is abhorrent to thier own tastes. I believe this may be as strong an impoteus for an artist to launch a law suit viz a vie Moral Rights.

DO you not agree?

“”how on earth can my remixing your song do ANYTHING bad to the one that you wrote?” As long as the attribution is there, isn’t a remix just a form of free advertising?“

In Chapter 14 of Free Culture, Lawrence exposes the “copyright warriors'” extremism in regard to the Eldred Act. He rightly points out that their attempt to block the EA is not simply about “protecting their content”. It is more extreme than that. It demonstrates a viciousness toward the public domain itself. The EA, being completely reasonable, is viewed by some as a threat – something that, if not controlled will eat into the $bottom line$. Opposing the EA is simply absurd and shows that some are truly blinded by the desire to have complete – and I mean complete – control.

You make an excellent point about “free advertising”. This is part of the beauty of the Creative Commons – it encourages this so both artists profit. One point I think the Mice and I agree upon was that Vanilla Ice’s remix of Queen/Bowie’s “Under Pressure” was tortuous to listen to (although if you ask my grade 8 students the original was the lame one). Regardless of one’s opinion on the songs, it was rather silly (but understandable considering that the CC did not even exist at that point) that there was a lawsuit. I have no financial records to prove it, but I would bet my entire (legally purchased!) CD collection that Vanilla Ice brought about increased revenue for the original Queen/Bowie song. Surely it must have reenergized its value. Although I don’t want to stop someone from having totalitarian rights over their work (or a gun in their home), it just goes to show how insane such an approach can be when an artist remixes your song, you profit, and then you take that artist to court (or shoot a family member coming home late one night). I mean really…how messed up of a culture is that?!

But those that want complete control don’t see the fact that they are shooting artists, as a whole, in the foot. They are not seeing the enormous potential of the CC and will do anything to make sure it is “separated” from the “All Rights Reserved” approach on p2p networks. So they suggest strong DRM dependent upon proprietary p2p software, and lawsuits against individuals and ISPs as “ways to fight piracy”. So sad.

As for FOSS juxtaposed with music/movies? They share similarities, but it’s dangerous to lump them into one. Stallman warns about the dangers of the term “Intellectual Property”. As any informed person simply stating the facts will tell you, patents are not copyright! But the IP Believers really love that word – “property” when they try to simplify and dumb-down their arguments to convince the uninformed of their own biased view in order to achieve thier own self interests.

That last comment really jogged my brain. Could it be that we’re a little too zealous to draw the connection between F/OSS and cultural copyright questions? Alternatively, are we not taking this far enough?

The comparison is tempting, to be sure. Here you have this apparently successful, virtuous, wholly new business model (F/OSS) that thrives/subsists on sharing, trading, and remixing of intellectual property. In fact, without this type of strong infrastructure, the whole endeavor would just curl up and die. Distribution is taken care of by various online means, but it’s the cooperative, evolutionary forces that really make the thing work. I have a project. You contribute to it, it makes the overall project stronger. You spin off your own fork of a project with a similar idea, and if yours is better than mine, mine dies, yours survives, but my idea lives on in your project. The net progress is upwards.

I’m just not sure if the same is true with music, movies, and the like. I write a song. You snip out a part of it and use it as the backbeat of a remix you’re writing. Our works both exist within the same cultural space, but suddenly they’re interacting ONLY through your use of my music. How much overlap can there be when it comes to something as subjective as taste? It’s not like your music is, in every way, more effective than mine, or that mine, by virtue of being original, completely encompasses everything you might do with my music.

I’m not saying that we should just give in and say “software’s a special case, old-style copyrighting is all that’s possible for music/movies/everything else.” I’m saying that perhaps we should go back to first principles a bit. Invoking the “it worked for F/OSS” argument seems to gloss over a lot of the subtleties that come into play when dealing with the broader spectrum of cultural work.

Forgetting financial rewards for a moment, let’s think about the driving forces that make content distribution and remixing work in the first place. Maybe the best argument isn’t “forgoing/mucking with copyrights worked for the codemonkeys,” but instead swing the opposite direction: “how on earth can my remixing your song do ANYTHING bad to the one that you wrote?” As long as the attribution is there, isn’t a remix just a form of free advertising?

“is there a way to protect the legitimate IP interests of the copyright holders, without polluting remix culture?“

After looking at this question for days now, I feel that the answer to it is – NO. Unless I’m missing something, I don’t see how it is possible. Please if someone has any idea I would love to hear it. I would like the answer to be YES but I don’t see it as feasible given technological developments during the late 20th century.

If there is agreement that the answer is NO, the next question would then be…

Is there a way to further the legitimate IP interests of the copyright holders, without polluting remix culture?

This is where Fisher’s book comes in. Whether one likes the ideas of Fisher or not I believe is irrelevant. I believe some sort of alternative incentive system (not protection system) will eventually have to be put in place and the ideas in (chp. 6) Fisher’s book are an excellent start.

A comment was made by Ian on the “semiotic democracy” discussion –

“Before we consider such drastic measures to save the entertainment industry we should ask whether society really needs it. The free software movement has taught us that creativity does not suddenly grind to a halt when creators are denied (or voluntarily reject) the control afforded to them by copyright.“

I think we should recognize a key difference between FOSS and music/movies. When a software developer creates software, he/she is an “expert” in their program – after all, THEY wrote it. Therefore, they automatically have a sort of natural “leverage” when it comes to future technical support and program improvement/modification. Practically speaking this is of tremendous significance. After all, if you want a FOSS program modified and you do not know how to do it, often the first person one will seek is the author him/herself and only go elsewhere if the price is too high or there is unwillingness to do so. However, a musician or movie maker is not in this position. They may be initimate with their work, but the possibilities of financial reward for being in such a position are minimal as compared to a software developer. The natural “leverage” that a musician has is the ability to perform his/her work for money whilst the software developer is unable to do so. That is, I’m convinced I would not pay Richard Stallman a dime to hear him recite the source code to Emacs…he’ll need to integrate his recorder if he wants money in his hat. 🙂