Copyright – Past, Present and Future

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Published on: November 6, 2014

I wrote this document over 4 years ago, but never published it really, until now, because I believe that it is still current and at relevant for most people today.

Carsten Cumbrowski, Fresno, CA, November 2014

The current copyright laws are so messed up that it is impossible for an average person to make heads or tails out of them, that it requires a highly specialized person or better even group of persons who can up with the best tale to tell, to convince a judge, who is also unable to make up heads and tails in most curt cases what the head is and what the tail (or who) and thus, who has to be right and who could possibly not. 

I was affected by the copyright laws myself in more than just one single case and also made in more recent days more and more eyewitness account of events that I would have a hard time believing myself, If I would not have seen them happen with my own pair of eyes. I was talking about some of those experiences already in the past at my personal blog and elsewhere and actually wanted to something about this subject. This is now my first attempt of doing just that. 

I collected a lot of material and information to the subject of copyright laws and the problems with them in the current society over the past few years*1, which are the basis for this article. I put it on “Google Docs” and made the documents accessible publicly *1. In case you are interested, I also published many of my own cases and experiences with video sharing web sites via Google Docs as well *2.

*1 http://docs.google.com/a/cumbrowski.com/View?id=dnh4sm6_106hdgrq49s

*2 http://docs.google.com/a/cumbrowski.com/View?id=dnh4sm6_1837ghqg8ccr

I will take you along on a historic journey to the early beginnings and roots of modern day intellectual property laws and their interpretations by lawyers, big companies who benefit today from the laws how they are working today and about ordinary people like me and probably you as well, who were, are and will continue to be made to criminals even though not realizing this by themselves, until they find out first hand viva a “nice” and well formed message from some Lawyer from across the country who claims over-ship on some of your stuff or what you did and making all hell suddenly break loose for you all at once.

History

  • Monarchy. The first copyrights were publishers’ rights to print copies. Licensing Act of 1557 by Queen Anne, which expired in 1694, granted exclusive printing monopoly to the Stationers Company and ensure control over which books were published or banned
  • Republic. The Statute of Anne*1 passed in 1710 by Parliament. The Statute declared authors (not publishers) to be owners of their works and limited the copyright term. The Statute’s aim was not to create an author’s copyright but to break the Stationers Company’s monopoly.
  • 20th century. Increase of the duration of copyright to lifetime plus 70 years, redefining the means of protection and the types of intellectual property. 
  • Until the middle of the 19th century, copyright meant only protection against verbatim copying. End of the 19th century, this was redefined so that the property protected by copyright consisted (against Fichte’s definition) in the substance, and not in the form alone – which meant translations were also subject to copyright. Later this protection was extended to any close approximation of the original, like the plot of a novel or play or the use of the characters from a movie or book to create a sequel. 
  • Types used to be limited to printed matter, changed with new technology of reproduction: words, sounds, photographs, moving images, digital information. At the beginning of the 20th century copyright was extended from covering texts to covering “works.”  

 

“If property is theft, as Proudhon famously argued, then intellectual property is fraud. Property is theft because the owner of property has no legitimate claim to the product of labour. Except by denying workers access to the means of production, property owners could not extract any more than the reproduction costs of the instruments they contribute to the process.

In the words of Benjamin Tucker, the lender of capital is entitled to its return intact, and nothing more.  When the peasants of the pre-industrial age were denied access to common land by the new enclosures, it can be said that their land was stolen.  

But if physical property can be stolen, can intelligence or ideas be stolen? If your land is stolen, you cannot use it anymore, except on the conditions set by its new private “owner.”  If ownership of an idea is analogous to the ownership of material property, it should be subject to the same conditions of economic exchange, forfeiture, and seizure – and if seized it would then cease to be the property of its owner.  But if your idea is used by others, you have not lost your ability to use it – so what is really stolen? 

The traditional notion of property, as something that can be possessed to the exclusion of others, is irreconcilable with intangibles like ideas. Unlike a material object, which can exist in only one place at a given time, ideas are non-rivalrous and non-exclusive. A poem is no less an authors’ poem despite its existence in a thousand memories.” 

COPYRIGHT, COPYLEFT AND THE CREATIVE ANTI-COMMONS by “Anna Nimus”*2 

*1 http://en.wikipedia.org/wiki/Statute_of_Anne

*2 http://subsol.c3.hu/subsol_2/contributors0/nimustext.html

Public Misconception about What Copyright is

The Public’s Perception of Copyright — Video Interviews with Randomly-Selected People in Chicago by QuestionCopyright.org*1 

*1 http://www.questioncopyright.org/node/10 

In order to document the public perception of copyright today, QuestionCopyright.org went around Chicago with a video camera over two days in the summer of 2006, asking strangers what they think copyright is for, how it got started, how they feel about file-sharing, and for any other thoughts they have on copyright.

The points that showed up consistently were:   

  1. Most people felt that copyright is mainly about credit, that is, about preventing plagiarism.
  2. Everyone was on the artist’s side — everyone wants to feel that they’re treating the artist’s right. Over and over again, we heard the sentiment that when someone goes to a concert they’ll buy the CD “to support the band”, even if they already have all those songs on their computer already.
  3. Many people felt that copyright was about giving creators the means to make a living, but that in recent times it’s been abused and corrupted by corporate interests.
  4. No one — not even the interviewee who had just read a book on copyright — knew where copyright comes from. Most people had the feeling it had been around for a while, though estimates varied widely on how long. One interviewee knew of the Constitutional clause that is the legal basis for copyright in the United States, but wasn’t familiar with the history leading up to that clause.
  5. People were ambivalent about file-sharing. They don’t feel like it hurts anyone, except perhaps the music distributors, but they still feel some residual guilt about it anyway.  

 

Some Facts

  • Legal issues, exceptions yes, but vary between countries  
  • appropriation  in art is almost always located in the legal grey area, especially in the United States with its copyright laws and fair use exceptions, which are blurry and not clear defined  
  • Issue in the united states is also the constitutional nature of copyright (Article I, Section 8, Clause 8 or Copyright Clause*1)   “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”,  
     whereas in any other country copyright is only a statue to a right. In a case of copyright infringement does the constitutional right of copyright goes head to head with the first amendment to the US constitution*2, which is part of the bill or rights and protects the freedom of speech and (artistic) expression. Since both are constitutional rights is it less clear which side has a better chance to win, although praxis shows that it more favors the side of the copyright holder (which is IMO directly related to who is usually on which side of the conflict and the financial and economic might that usually represents the party who claims the infringement). In other countries is the balance shifted due to the fact that the freedom of speech and expression is usually also a fundamental right there, but copyright is not.
  • The number of copyright infringement cases, specifically for cases of appropriation, is generally low, but only because there are not many cases making it to the court, does not mean that there is no bigger issue behind it. Most cases settle before it comes to a court case, although “settle” might not be the right term for the takedown, destruction or removal of the allegedly infringing material by the artist (or the publishing website, e.g. YouTube and other video sharing websites in case of video art), after he received a legal notice by the copyright owner with the thread of legal actions that are always costly, regardless if you feel to be right or not. The act of infringement also becomes in most cases only an issue, if your art is noticed and becomes popular and potentially commercially relevant. Many infringements are just ignored, but that only means that many artists, especially the ones who work in the area of appropriation or might qualify for any fair use clause are potentially endangered to be sued one day, if their works is recognized.

 

There are also recommendations made to get permission from the copyright owner beforehand. The problem is that it is in most cases very hard to impossible to determine who owns what rights on material, how to contact them or how to find out the price for using the content. The price can be anything or the owner can entirely refuse the permission, which is also very common, mostly because the owner does not want to spend the time to look at the request and come to an agreement; this however restricts the artistic freedom of the artist significantly. Since you hear time and again that this is the usual case, recommendations are made to avoid anything that was produced by somebody who still lives and isn’t dead for 70 years (when copyright protection automatically expires). This is censorship, not enforced at gun-point but via economic threats, worse; it’s now a self censorship, by the artist himself or by the artist’s publisher out of fear, even if probably no lawsuit or legal notice will occur. This has impact on the artistic development of the society in general, because art is not a reflection of society anymore, at least the contemporary art, which is by default cut off or limited in access to contemporary content. 

*1 http://en.wikipedia.org/wiki/Copyright_Clause

*2 http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution

Remix Culture or Read/Write Society

Remixes, Appropriations, Mash-Ups – is an artistic expression of the current digital age. It is taking somebody else’s content (copyrighted or/and free) and re-interpreting it, creating something else, something new out of it that was not inherent in the original content and also not intended or even imagined by the original creator. There is the presumption today that this type of activity is illegal and immoral. Methods are being revised and refined by companies to detect any copyrighted material and automatically remove it or take “ownership” of it, without evaluating if the fair-use exemption might applies or how many work was going into this new piece of art that should be protected by copyright also. I am referring to YouTube’s Video Identification tool. “Rights owners can choose to block, track or monetize their content.” Who gives them this right? What about the rights of the creators of the new content? 

Common sense is not the term I would use to describe the application of the current laws to today’s realities. Kids of today use common sense and ignore the law. The enforcement of the laws alienates those kids even more and out of disrespect becomes hatred against the current laws and disrespect.

Professor Larry Lessing, Lawyer for internet law stated in his Ted.com Talk “How Creativity is being Strangled by the Law”*1 the following: 

“You can’t kill the instinct the technology produces, we can only criminalize it. 

We can’t stop our kids from using it; we can only drive it underground. 

We can’t make our kids passive again; we can only make them “pirates”.” 

I highly recommend watching the 19 minutes video with Professor Lessing. He did a good job illustrating this particular aspect of the issue, but this is not the only issue. There is more to it. 

*1 TED Talks – Larry Lessig on laws that choke creativity – March, 2007 

 http://www.ted.com/talks/view/id/187 or 

 http://www.ted.com/index.php/talks/larry_lessig_says_the_law_is_strangling_creativity.html 

Educational purposes, interpretation, review, documentation, historic authenticity preservation. Non-Commercial uses of copyrighted material for those purposes must be free in a democratic society. The first amendment must take precedence over the Copyright Clause. The ability to use of copyright law to control distribution and access to information must be demolished.  The ability to suppress and withhold historic content and information was and still is used to this day to manipulate the opinions of people and to control them. Every dictatorship in the history of mankind relied on the suppression of facts that would have allowed people to draw their own conclusions, which would have been the end of any dictatorship before it would have been able to materialize. Many dictatorships came to an end after the mounting pressure of suppressed facts could not be hold back enough anymore. However, if the content is of none historic significant, social or political character, interests of creators of content and “art” should be protected, but without restricting other artists to do art also. Since current laws are inadequate, everybody with social responsibility should help to find alternative ways and options to come to a solution where nobody loses and everybody wins. This is possible, but hardly done today. 

While content sharing sites like the video sharing web site “YouTube”, which is today owned by Google, implement more and more sophisticated tools to detect possibly infringing material (video and audio) and provide owners of intellectual property with new tools to make an ownership claim of content that was published on the YouTube web site, only little to nothing is done to help protect publishers rights or to help them and the entities who claim rights on the whole or only parts of a published video to reach a mutual beneficial consensus. The only option a publisher gets is filing a counter notice or accept whatever the claiming party and Google does, which can be several things, from allowing the content to stay up on the site, but with additional ads that benefit the claiming party, muting the audio of a video, if only that part allegedly infringes 3rd party rights or worst case, the complete removal of the content and a warning to the publisher, followed by an account termination after the 3rd warning, regardless of the accounts activity beyond that (like ratio between claims made and amount of content published altogether).  This happened to me twice already and I won’t go into the details of it. I wrote an open letter to YouTube, which can be accessed at my personal blog*1. The filing of a counter notice is not really helping publishers, specifically the non-professionals, because this typically requires the involvement of an attorney, starting a costly process, which most publishers cannot afford or are not willing to pay for a non-commercial “hobby” activity. There are options in between, which could and probably would benefit all parties involved, including Google, if they are serious and willing to come to a consensus. The laws need to change, no doubt about that, but that won’t happen quickly, so it is everybody’s responsible to work out practicable solutions that might translate later into actual law, if they have proven to be effective. 

*1 http://www.roysac.com/blog/2010/04/open-letter-to-youtubegoogle-from-an-active-you-tuber/

The Losses Through Piracy Myth

Publishers bring virtually always up the argument how piracy creates huge losses for them and for the intellectual property owners/artists etc. They use this argument as one of the key reasons for their demands to tighten and extend copyright laws further and further. Even lobbying for the effectively dismantling of fundamental privacy rights*1 in order to protect their own commercial interests regardless the cost for society as a whole. The biggest problem with this argument is the proven fact that it is actually not true. Independent studies*2 and well researched reports*3, not funded by the media companies themselves and not done by copyright activists or “extremists” show that the claimed losses are only a myth without substance and that piracy even benefits producers of quality content financially in the long run. 

  • Negative effect of file sharing on CD sales statistically indistinguishable from zero
  • Sales of the top 25% with 600,000+ copies sold increased because of file sharing
  • For every 150 copies downloaded 1 sale that would not have occurred otherwise

 

*1 The Losses Through Piracy Myth

German Law for the “Vorratsdatenspeicherung” from 2008 (Data Stockpiling)

This law required ISPs and Mobile Phone Network operators to store connectivity and location information of all users (including IP addresses and locations visited on the internet) for 6 months. This law in combination with the introduction of an additional article to the Copyright law in Germany (Paragraph 101 UrhG), which grants the right to access such information for civil claims of copyright infringement, resulted in a flood of legal notices/cease and desist letters sent to consumers who allegedly downloaded music of software from the internet (similar to the RIAA cases in the U.S., but on a grander scale). Those letters also demand the payment of a flat rate lump sum fine of 400-600 EUROS ($550-$900 USD) in order to settle the matter and refrain from further legal actions. This business can be more lucrative financially than the generated revenue of the product itself. The Stockpiling law was abolished and declared void entirely by a decision of the German equivalent of the “Supreme Court” (Verfassungsgericht) in March 2010 following the largest class-action suit and complaints filed in the history of the court. The German magazine C’T reported about those cases in great detail.

See: “Paukenschlag als Pyrrhussieg” by Dr. Marc Störing, C’T issue 7/2010, page 52 (http://www.heise.de/kiosk/archiv/ct/2010/7/52_kiosk) and “Die Abmahn-Industrie” by Holger Bleich, C’T issue 1/2010, page 154 http://www.heise.de/kiosk/archiv/ct/2010/1/154_kiosk

 

Conclusions 

  1. Don’t push for more severe copyright laws that only serve the purpose of controlling distribution and availability. 
    Copyright is about protecting visual, audio or written content producers from getting booted out of their share of business made with what they created, it’s not meant and never was meant as a tool to control distribution. 
  2. If somebody is not a potential customer of yours, due to availability, pricing and other restrictions, do not consider that person to be somebody who is causing a loss in revenue for you (if he does, that probably means that this person exposed you and your attempt to rip paying customers off). If your content is great, this person will actually help increase your revenue, because if he likes it, then he will recommend it to people who ARE your customers. Meanwhile think about ways to make more of those “not your potential customers” to potential customers, via changes in availability, pricing and the removal of other restrictions and reasons that prevents people from becoming a potential customer.*1

 

*1 Conclusions 

A Classic “Potential” Customer Case

The classic example is the commercial photo editing software “Adobe Photoshop”, which costs several hundred dollars for a single license. A 12 years old kid in Bangladesh or even most art students in the first world cannot afford a license. However, a huge number of artists use the software. I claim (without having proof) that there are more users of a pirated version of the software than users who own a paid license. I also claim that this did not ruin the company or actually harmed it, quite the contrary. I claim that “Adobe Photoshop” would not have sold as much and maybe would not have became the de-facto industry leader without pirated versions making it to thousands or more computers of kids and students of whom many started working as professional artists to make a living using the software, buying a license themselves or requested (maybe also demanded) from their employer to acquire a license in order for them to be able to do their work. I am not aware that there exists an actual study to back up my claims, but I am sure that even Adobe would have a hard time to deny them.

 

  1. Don’t add protection to your content that interferes with the usage of your content by your paying customers. If a “crack”  works like a fix, you ask people to go and look for that crack. They may never come back, because they are still mad at you that they got screwed because they paid money for something that was not usable as it should have been.
  2. If something is ****, then there is nothing to protect, except the interest of the **** producer who asks for payment before providing access to his content and then makes it virtually impossible to return it when the ripped off customers looked through the scam.
  3. If something is good and honest, people will give, pay, support, evangelize etc. That is what the vast majority of people are doing who were taught at least some basic social skills and always did. If you watched a street artist who was giving a great performance that you liked, you will give him money, if you have money to give. However, if you are forced at gun-point to pay up, regardless if you liked it or even watched it in full (or at least most of it) and if the pay is on top of that unreasonable high, people will be pissed off and they would have all reason for it.
  4. If your content is being appropriated by somebody else, find a solution that benefits both of you. Virtually anybody will give due credits and will do so, if they forgot or did not knew and are contacted by the original creator.
    Depending on the amount of content used in relationship to the complete work where it was used and its nature (non-profit, hobby, educational, semi-commercial etc.) try to find some acceptable solution that can work for everybody. This could be anything, from adding a link to your web site, a special ad that benefits you, an agreement for revenue share, if revenue is generated (or might be generated in the future, if it becomes popular) that can be shared in the first place. Look at the publisher and check, if this might be a potential partner and evangelist for your products or could benefit your business in other ways. A legal threat is not the way to make new friends and acquire new partners and might backfires, if you don’t know who you are dealing with (it does not have to be an economical force to damage your business, a social force can do that just as good, if not even better).

 

The publishers today are doing exactly that, putting a gun at peoples head and cry for the cops to even back up their claims. That is not the best way to make friends and create a supporter base… I’d say. 

Carsten Cumbrowski, Fresno, April 2010.

Legal Note

This article can be re-published freely for non-commercial and educational purposes, if due credits are given to the author of the article. A link to my web site would also be appreciated. For commercial re-publishing contact me directly. My contact information can be found at http://www.Cumbrowski.com/contact

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