Surefire Way To Stifle Innovation 350
denissmith writes "C|NET has a very funny piece by Patrick Ross, where he pooh-pooh's Congressman Rick Boucher's (D-VA) efforts to protect Fair Use by claiming that it will stifle innovation." From the article: "If HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider. No sane business operator enters a contract in which one party has the right to disregard its terms at will, but that's what HR-1201 permits. That hated TPM would disappear from the market, as there's no reason to employ a lock if everyone has a legal right to the key. But as TPM leaves, so do the digital offerings that come with it."
Neither bill matters anymore (Score:5, Interesting)
It really peeves me when we add laws on top of laws rather than repealing bad ones and drafting new ones to cover changes. Innovation has occurred for thousands of years without copyright or patent protection. Free use wasn't even a phrase until we started to see tyrannical laws that abuse basic rights, inherent to all humans regardless of what their governments say or do.
Whatever movement is made in the law books, nothing will matter. The Internet combines the wishes of billions, disregarding every law. Funny thing is, the Internet really lets the free market shine without trampling on the basic human rights.
The Net won't murder, won't rape, won't rob from your home or incur taxes you don't want to pay. It won't restrict your right to speak freely, it won't take your guns away, it won't harbor troops in your home.
As more people embrace the Net, more will use the rights they were born with. More will commit legal crimes that are morally acceptable.
In the long run, maybe we'll see laws that protect life, liberal and property rights rather than laws controlling thought or non-violent actions.
Do bloggers worry about copyright? Do musicians on purevolume worry? Do researchers posting their theses care?
Everything I dream of in my free market world is coming true online, and no law is stopping it. Boucher's bill won't do jack. Repeal copyright and you'll see more innovation than ever.
Why release good music freely? Fans may pay you for more, or a production company might hire you to write something for them, or you might gain customers for your live shows, or you might get people to your site to gain AdSense revenue. Copyright won't protect your income-via-monopoly much longer.
EULA != Contract (Score:1, Interesting)
What? Rarely does someone enter into a "contract" with their content provider. I might be wrong but signing your rights away through a contract requires signature. Shrink-wrap EULAs or terms of use don't carry nearly the same legal weight as a contract.
They should just keep their content to themselves (Score:4, Interesting)
> a legal right to the key. But as TPM leaves, so do the digital offerings that come with it.
We always hear this crap, that all these just over the horizon but so wonderous digital offerings will go away. But they are all as bad or worse as Divx (the Circuit City crap that was rejected by 'Consumers', not the popular codec) so good riddance. I really don't see how my life will be worse if these wonders never come and can all too quickly see how they will be worse with everything DRMed. So if DRM that actually works is the price for Hi-Def or online content I am more than content to keep buying CDs and DVDs.
Surefire way to stifle innovation (Score:3, Interesting)
Re:Confused (Score:4, Interesting)
And this guy (AKAImBatman) who's come out of nowhere
To quote tweety bird, "He don't know me wery well, do he?"
claiming to be confused and making bizarre convoluted claims which come down with the non-obvious conclusion that the article is correct in declaring that Fair Use is bad and will stifle innovation.
No, that would be your interpretation of what I said. Free yourself from the groupthink man! Fight the... err... anti-man... um... after you fought "The Man"... eh... and all that jazz. Or you could just think for yourself.
Seriously, these things are always more complicated than Slashdot often makes them out to be. Creating a law that redefines Fair Use to an extreme *may* be as bad as the DMCA itself. It's important to understand what it's all about before getting behind it. Personally, I think that this at least shows that some of our representatives are thinking about their actual constituants. Unfortunately, I can't say if I support this bill until I've read it. (And yes, I've read the DMCA. And no, it's not entirely bad.)
Chilling effect: Court cases cost money. (Score:2, Interesting)
No chilling effects? How much money did that Lexmark case cost Static Control? Could you personally afford to fight Lexmark in court? No, I didn't think so. So you think DMCA precedent was set in the Lexmark v. SCC case? Then why is SCC now suing ISV [rechargermag.com] for doing the exact same thing? Here's a clue, the law is a sham. It forces out smaller players who can stand up to hundreds of thousands of dollars in court costs. THAT is a chilling effect on innovation and Rick Boucher is on of the few people on the hill I don't consider to be an absolute slime ball.
The Library of Congress is soliciting feedback [cryptome.org] on the DMCA's anti-circumvention provisions again. Without doubt, they have heard it all before, [theinquirer.net] but with this particular piece of legislation, the complaints bear repeating. Since that time, the DMCA anti-circumvention clauses have been used against manufacturers of garage door openers, [wired.com] against owners of robot dogs, [slashdot.org] and to stifle competition in the mobile phone service [slashdot.org] market just to name a few. You have until December 1, 2005 to submit your written comments.
Re:some correct, some wrong (Score:3, Interesting)
EULAs and the rest of it are just varieties of fraud, pure and simple. They exist only to make the consumer give up rights and safeguards that should be, and actually often are, protected by law.
I could agree with this sentiment. I look forward to the "contracts" line at Best Buy. My intended general point is that -this particular bill- gives too much carte blanche in the whole area of dominion of Fair Use over -real- contracts. I.e., the kind where we have a lawyer, or a handshake.
Indeed, it is painfully obvious that anything printed on the box is not a contract if you attempt to take back a game because its not "The greatest FPS ever" or whatever it says in lurid letters on the front. The same companies that want their tiny print on the back treated like a signed, considered, negotiated contract would be fucked if they were held to the same standard that they want to hold the consumer.
Fantastic line of reasoning. I like it. Things printed on the box should be enforced.
And, since we mention the consumer, where does he/she go to register additional conditions on the seller? Where do I write in "must not require patching for basic game functions on pain of 200% refund"? How odd! There doesn't seem to be a place for that. Again, the idea that a DVD box is some sort of contract benefits only one party: the seller.
I disagree. If the DVD box was a contract it could certainly benefit the consumer. As you pointed out, if it said "the best film of the year" on it and it was not the best film, you would be entitled to a refund. If it said "this product is protected by DRM, and by purchasing this disc you agree to not circumvent it" then you would know "hey, I don't want to accept this, I'll by a different movie".
But this is all digression, the main point is that a "real contract" should not and must not ever be subservient to a "generic fair use" argument. Thank you for clarifying and helping me to clarify.
If someone prints "Must send us first-born child" on a box it is ridiculous to imagine that anyone should be held to that.
That is already illegal based on already existing law, and thus such a contract would be invalid to begin with. That is the balancing act between a parent's "right to sell their children" and the child's "right not to be sold". All rights are fictions, created in society for its benefit. A society that disgregards the basic tenets of contract law is a defunct society, for that kind of law is quite nearly as innate as it gets, and harkens back to "I'll give you this pointy rock if you give me that apple".
Contracts? (Score:3, Interesting)
Assuming for the moment that these "contracts" actualy exist outside of publishers' heads, the only reason they exist is because Congress is constitutionally authorized to allow protection of intellectual property to begin with. It isn't a case of Congress giving more powers to the people but less power to the copyright holders, which, as representatives of the people (if only in name), is their prerogative.
There is no entitlement, no inherent right to intellectual property. And Congress has the right to trash these contracts just as it has the right to let hired killers break their contracts.
Re:Fair Use is Codified (Score:3, Interesting)
Akk, someone mod parent down! It is -5 Missinformative not +5 Informative (as currently rated). It is a serious missunderstanding of how Fair Use operates.
What he is thinking of are the four Fair Use tests listed in US law Title 17 Section 107 [cornell.edu] which reads:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Note that it says those four factors "shall be considered". They are most certainly *NOT* four exclusive test that must all be passed. They are merely factors to consider and be weighed in evaluating Fair Use. It is entirely normal to "fail" one or more of those points. For example using a VCR to "timeshift" a TV show is indeed making a copy of an entire copyrighted work, and teh Supreme Court has explicitly ruled that is Fair use. In another case, the Campbell v. Acuff-Rose Music Oh Pretty Woman [wikipedia.org] case it was explicitly rules that even copying for outright commercial sale can qualify as Fair Use.
In fact one coud, in theory, FAIL ALL FOUR TESTS and still qualify as Fair Use. Those four factors are merely four factors that "shall be considered". The courts are entirely free to consider other factors, and routinely do consider other factors. For example one factor they often consider is whether a use is "transformative". Cutting up photographs to create an entirely new collage artwork is transformative and mitigates the copyright protection in the photos themselves. Creating a parody of a song is transformative. The novel "The Wind Done Gone" is an extremely transformative version of "Gone With The Wind", and it rewrites the entire novel from the point of view of the slaves.
The court is required to consider the four listed factors, but they are also free to consider any and all other factors they deem appropriate. They are also entirely free to give the four listed factors absolutely zero weight relative to any other factor they choose to consider.
It would be most difficult and most exceptional, but one could indeed "fail" all four listed factors and still qualify as Fair Use based on other factors.
If you read "Fair Use Section 107" carefully you'll see that all it really says as a matter of law is:
the fair use of a copyrighted work [list of examples] is not an infringement of copyright.
Period. The rest just says that the courts get to determine what is and is not fair use, and as I've explained it does not actually place any binding constraints on the courts.
There's good reason for that. The courts invented and defined Fair Use in the first place. They did so because copyright law was technically unconstitutional. Copyright law claims to restrict some things that it would be unconstitutional for it to restrict. For example prior to Fair Use copyright law did not permit even small quotations, and as such it prohibited any effective
The article itself IS Flamebait... (Score:2, Interesting)
I'm irked that because I have an opinion contrary to most on slashdot my response is considered flamebait.
I find the idea of people P2P-ing to steal content flamebait itself.