You can’t complain about “lost sales” through piracy when you refuse to sell

February 28, 2012 on 5:40 pm | In Copyright, Intellectual Property, Logic | No Comments

You can read the whole background here. A web comic author complained that when he went to buy or pay to watch the TV series Game of Thrones, he was unable to do so. The producers of that show simply do not allow anyone to pay to watch it except on HBO.

To summarize, he was willing to pay to watch the show, but the producer refuses to take his money.

A columnist by the name of Andy Ihnatko wrote that this shows the erroneous sense of entitlement internet users have. “Entitlement” being a derogatory comment, of course. He argues that HBO has no duty to offer its shows in a format to please its audience. And that internet users should simply buy what HBO offers or sit down and shut up.

He’s right. But he’s still wrong. He won the battle but lost the war. Let me explain.

Imagine if a meat-space retailer operated the same way HBO is acting. Imagine if Wal-Mart was only open a few utterly inconvenient hours per week, they had all of these “windows” (aka, timelines) for selling fresh fruit and meat, and sometimes they would simply refuse to even sell fresh fruit or meat. “Sorry, we have the steaks in the Wal-Mart vault.” Analogous to the famous “Disney vault.”

And to make the analogy complete, Wal-Mart would only barely lock their doors. Anyone could walk in anytime they wanted and take whatever they wanted.

Who would the police blame each and every time Wal-Mart called for another robbery? Wal-Mart, of course. And after a while, I’d guess the police would even stop coming.

But in the wonderful world of intellectual property, it’s never the copyright industry’s fault. It’s always the consumer’s fault.

So, Ihnatko is correct. HBO does not have to offer its shows in a format its customers want. However, once HBO refuses to take money from its customers, it no longer can complain about piracy taking away lost sales.

HBO has a solution to piracy: offer a product people are willing to pay for. The sole reason HBO is losing sales is because it’s refusing to sell.

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Using Copyright to Encourage More Infringement

February 1, 2012 on 8:11 pm | In Copyright | No Comments

There are law firms out there which are basically extorting money from victims. Their M.O. is to get IP addresses for an entire swarm of people downloading porn via bittorrent and then sending out “settlement” offers via the ISP.

For those who don’t settle the firm files a lawsuit against the IP addresses and requests subpenas from the courts to force the ISPs to turn over the customers names and addresses.

Then more “settlement” offers are made. And if those are rejected, the remaining swarm are added to the lawsuit by name.

Of course the threat of having your name publicly attached to a lawsuit about porn infringement embarrasses enough people to just settle.

What’s odd is that the files they’re suing over are almost always porn parodies. In looking through their cases on Westlaw we have the following: XXX Avengers, Supergirl XXX An Extreme Comixxx Parody, Big Bang Theory: A XXX Parody, The Office: A XXX Parody, My Little Panties #2, and Batman XXX: A Porn Parody.

As others have commented on, it seems odd to rely on parodies for copyright infringement lawsuits because there’s the whole additional layer of whether or not the producer of the porn even has a valid copyright on it. You certainly have a fair use right to make a parody Batman, but you probably don’t have the right to take the copyrighted Batman character and stick him into your parody.

But, upon thinking about it, relying on porn parodies makes sense because these firms are intentionally trying to maximize the pool of infringers so they can force more settlements. If the file was merely entitled “blonde.takes.it.all.avi,” who would find it? maybe a few. Maybe it’d get a hundred downloads.

But if you name it after a popular TV show or movie, suddenly it’s showing up in hundreds of thousands of search results. What fan of the Big Bang Theory wouldn’t think, “Oh my god, a porn parody of my favorite show, I’ve got to check it out.”

This is how desperate these firms are for money. They don’t want to stop infringement. They’re not trying to protect copyrights. No. They want to encourage infringement. Even by trying to trick people who would never typically download porn into downloading porn.

Typically such behavior is called extortion. But in the crazy world of copyrights, it’s a perfectly legal business model.

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Copyright Maximalists or Middlemen Protectionists?

January 19, 2012 on 6:37 am | In Copyright, Intellectual Property, Logic | 1 Comment

Every so often a Copyright Maximalist gets caught violating copyright. For example, France’s President, Nicolas Sarkozy, was accused of violating copyright. SOPA sponsor Lamar Smith has been accused of infringing a photographer’s copyright.

People are outraged by this. They consider it hypocritical. How can someone demand stronger copyright laws, but then ignore the laws currently on the books?! It doesn’t seem to make any sense.

However, it does make sense. Copyright Maximalists don’t give a frick about protecting copyrights. A better term to describe them would be Middlemen Protectionists.

These people don’t give a frick about the rights of some photographer. But they are highly concerned if Viacom or Disney feels their profits are insufficient.

When a powerful status quo corporation, which derives all of its profits collecting government granted monopoly rents, wants government protection, the Middlemen Protectionist are the first to jump up to help. They’ll demand new draconian laws. They’ll gladly dump the first amendment and due process to give their middlemen buddies higher profits.

But if a photographer wants a bowl of gruel to compensate him for his work, the Middlemen Protectionist just lights up another cigar and laughs.

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Copyright Explained in Three Panels

July 21, 2011 on 3:26 pm | In Copyright | No Comments



I think this comic is actually about the TSA. But it certainly pertains to the copyright industry.

They argue that we need artificial walls i.e., government granted monopoly rents, for them to collect (under penalty of criminal punishment if we bypass those walls). When we ask why we need that system… they’ll argue that their anti-freemarket and anti-competitive system provides jobs.

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Gee, I’d hate to own a major music label nowadays

April 5, 2011 on 6:01 pm | In Copyright, Music | 2 Comments

Gee, I’d hate to own a major music label right now. As I’ve written about previously, song writers and recording artists are going to be able to start getting back their copyrights in 2013. That means the labels might lose control over a huge backlog of music.

If that’s not bad enough, the labels might owe billions of dollars to artists for the digital licensing of their music, e.g., music “sold” on iTunes and Amazon.

And not to mention that Rebecca Black was able to get a top ten single without any label support. If a no-talent nobody can do it and get to keep most of the money and the copyright for herself, why would anyone sign to a label? Especially established artists.

These problems make the loss of sales to P2P look mighty insignificant in comparison.

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First Amendment Right to Totally Make Stuff Up

April 5, 2011 on 5:10 pm | In Copyright, General | No Comments

Sometimes we take our Constitution for granted in the US. It’s hard for us to even imagine a society that does not provide a right to free speech or the right to practice the religion of our choice. (Or to not practice a religion, in some cases.)

Case in point: China’s General Bureau of Radio, Film and Television is banning time travel movies and shows. Specifically, situations where people travel back into time.

Why? Well, the Bureau feels that these shows disrespect history. And even worse, “many” of the “stories are totally made-up.” (God, the horror! Is there anything more insidious than historical fiction?)

Also in the same blog post we learn the same Bureau is banning any filmed remakes of the Four Great Classical Novels of China. The problem with these modern remakes is that they’re rushed “with lots of changes of the original stories.”

In our country, someone can add vampires to Lincoln’s story and those who like it can enjoy it, while those who feel disrespected are free to feel so.

Well, unless there are copyrights to protect. Then it’s perfectly legal to ban books.

Update – April 7, 2011

Mike over at Techdirt.com has written this up also.

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Who owns Friday?

April 4, 2011 on 8:53 pm | In Copyright, General, Music | 1 Comment

I was going to spend a lot of time writing about the copyright intricacies involved in the awesome Rebecca Black song Friday.

The issue is interesting (well, at least to me) because Miss Black is not signed to a label. Usually, i.e., always and forever, the label holds the copyright to the music and collects all the money while the artists get paid in peanuts.

However, the song Friday was released by Ark Music Factory, which is not a music label. That company will write and record songs and videos for kids whose parents are rich enough to pay. Apparently, Black’s mom paid 4 grand for the song and video of Friday.

Well, legal blogger Aaron Moss already beat me to it. He wrote a very thorough over-view of the legal issues at play here. Check it out.

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Is the use of JavaScript required by the DMCA?

March 23, 2011 on 1:21 pm | In Copyright, Intellectual Property, Law | No Comments

I use Firefox with PrefBar installed. I love PrefBar because it allows you to turn off and on JavaScript with a single click. I love surfing with JavaScript turned off because it eliminates nearly everything annoying about web, e.g., no more flash. background music, and pop-ups, etc. When I need JavaScript, like when working on this blog or I want to watch something on youtube, I can quickly turn it back on.

Anyway, I bring this up because apparently you can avoid the New York Time’s new paywall by simply not using JavaScript. Mike over at TechDirt.com asks, Does not using JavaScript violate the DMCA?

It would certainly appear that I’m using a circumvention device to access protected copyrighted materials.

Now if I am violating the DMCA, essentially that means that we’re required by law to surf with JavaScript enabled. You wouldn’t want to be accused of copyright infringement, would you?

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The Copyright Industry Does Not and Cannot Compete in a Free Market, Part II

March 10, 2011 on 9:43 pm | In Copyright, Law | No Comments

Not too long ago I explained how the copyright industry does not operate in any sort of competitive free market. In a nutshell, the copyright industry collects government granted monopoly rents. When the collection of those rents are interfered with by competition, the copyright industry has new laws passed making the competition illegal. This has been going on for centuries.

Confirmation of the fact that the copyright industry simply cannot compete comes from Dr. Francis Gurry, the Director General of WIPO. He comes straight out and says it, the copyright industry could not survive in a free market and that it’s the government’s job to set up a non-competitive system to ensure that the industry survives.

I am firmly of the view that a passive and reactive approach to copyright and the digital revolution entails the major risk that policy outcomes will be determined by a Darwinian process of the survival of the fittest business model. The fittest business model may turn out to be the one that achieves or respects the right social balances in cultural policy. It may also, however, turn out not to respect those balances. The balances should not, in other words, be left to the chances of technological possibility and business evolution. They should, rather, be established through a conscious policy response.

If copyright law disappeared today, the current music, film, and literary industries would certainly disappear soon after, but new music, films, and literature would continue being created. If these art forms could exist without copyright law, exactly why do we need copyright law? Maybe the government should simply step out of the way and let the market sort this sort of stuff out.

If a business cannot survive without constant and continual government intervention, it should go bankrupt.

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The Copyright Industry Can Compete!

January 22, 2011 on 2:00 pm | In Copyright, General, Intellectual Property, Law | No Comments

I’ve written before that the copyright industry simply cannot and will not compete in a free market. Whenever competition arises, they’ll sue. If they can’t sue. They’ll have laws enacted to allow them to sue. If they can’t get laws passed, they’ll have treaties passed, which will force new laws to be enacted.

As another example in the pseudo IP realm, D’Addario, which makes guitar strings, also wants government protection from China. He wants the government to act as his own private police force to protect his trademarks.

But one person in the copyright industry has learned that competition is a good thing. She’s the CEO of a company which makes and sells software. When an employee left the company and started selling her own nearly identical version of the software, the CEO’s first instinct was to go legal. She sued. That’s what the copyright industry always does when faced with competition.

But after spending a ton of money with no solution in sight, she decided to drop the legal action and compete. She listened to her customers and made a better product. Her sales are higher as are her profits.

Let’s hope the music and movie industries learn the value of competition before they go out of business.

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