Oh For &#%$! Sake…

Yes, they keep killing it and killing it, but like a bad horror movie killer, the broadcast flag keeps coming back. Call a legislator.

Comments

[Captain Awesome]

I just read about this again on boing boing. And I already know my representatives are useless (California). I wrote them last time and just got back bot messages from them explaining how cool they thought the flags were. Douchebags.

[sciencer]

If you want to do more than complain, go to this address

https://secure.eff.org/site/Advocacy?JServSessionIdr006=rb08nna2q1.app2a&cmd=display&page=UserAction&id=205

to join the fight.

[stan]

welcome to american democracy - you are obviously on the wrong side of this issue - you would feel better if you were for the broadcast flag -

[Rick Barton]

What language does %$! mean "God's" in?

[Rimfax]

I think that he meant "Oh For Fuck's Sake" in Cartoonish, but he forgot the apostrophe. It should have been "Oh For *%$! Sake". Good catch, Rick!

[Rimfax]

Anybody here from Oregon? According to the article, this incarnation of the bill was introduced by the Honorable Senator Gordon Smith from Oregon.

[Allen T]

I'm from Oregon and, as an Oregonian, I support this legislation's right to die.

I just sent Mr. Smith a HappyGram.

[crimethink]

I take it back -- there is a worse source for legislation than a fifth-grade classroom.

[Dave]

Call a legislator.

What should I call him?

[mediageek]

Dave, judging by C-SPAN, I'd say something along the lines of "My esteemed colleague."

Roughly translated into English, this means "My fuckwitted, insufferable asshole of a co-worker."

[Sean]

I'm curious, what would all of you prefer be the solution for the wholesale theft going on then? I'm not a fan of DRM either, but until no one has that asshole friend who rips DVDs from NetFlix or downloads episodes from BitTorrent, what are we to do? If there's no longer any money in film or television because everyone with a cable modem is stealing the work, what good has come of that?

I mean seriously, there is NO business model that can cope with illegal downloading. If given the choice between paying the people who worked hard to produce a show and downloading it for free, the vast majority of people are going to choose the free option. How do we combat this? I think if we're going to be criticizing legislature, we should at least come up with some legitimate proposals to solve the huge problem. It won't just go away because we keep whining about it.

[Lost_In_Translation]

I don't think we have to propose the "correct" legislation to be allowed to complain about the "incorrect" legislation.

But I know one thing. There will always be hackers that will break down the system and the tighter you make the system, the more you alienate the people legally buying and using the system because things don't work well anymore and the more they turn to hacked versions which allow them more versatility.

You say there is no competition with "free", but there's plenty of ways to enhance the experience that hackers can't match like free tickets to future movies, special perks that come in the DVD box (like bonus tracks). As much movie as the entertainment industry claims its losing, its not real loss in terms of failing to make back money on their products, its more imagined loss thinking "how much money they could have made". They base these estimates on broad statistical measurements, not by knowing exactly "how many people have pirated copies".

They can lockdown content so that it is very inconvinient to play disks in the future, but they will find that all the R&D and copy protection in the world will not make them more profitable. The determined hacker will still break their code and disseminate it out and customers frustrated at their inability to use the product will turn to the hackers version and the industry will moan again and ask for more control. Its a vicious cycle with no end.

[Lost_In_Translation]

movie should be "money"

my brain is only partially working

[Sean]

I think you should have some sort of argument at least. So far, the objection amounts to nothing but noise. Until there is some sort of directed objection that tells me why I should be upset that the entertainment industry is protecting its assets, I and most of the country isn't going to be all that riled up about it.

Explain to me why the industry shouldn't be able to protect people from trading recordings? It is illegal, after all. The only fair use of such programming is recording for personal use, which would not be restricted by the broadcast flag, correct? I'm not being contrary for fun here, I'd seriously like to know what risk we are running by allowing the entertainment industry to prevent a user from illegally trading recordings.

[Sean]

But what about the flag specifically is bad? I definitely respect property rights, but we have to respect the intellectual property of the providers. We have an implicit contract with the entertainment provider that we will not trade programming, backed up by applicable federal law. So many people are breaking this contract that legislature has to be drafted. If the flag isn't the answer, what is?

Can't we agree on the flag, then argue the usage of it? I certainly don't want anyone restricting my ability to watch my programs on my iPod, TiVo, or computer, but why not make it harder to distribute that programming to others? All the flag does is mark the program, from there it is a matter of how it is read.

[Sean]

Let me be clearer... the vast majority of people who complain about this have no qualms about property rights, they just want to keep stealing. Plain and simple.

Therefore, in order to be taken seriously by anyone, one does have to have some sort of solution. If the best you can muster is "the flag sucks," you'll have a hard time convincing ANYONE that there is a solution. Come up with a good way to prevent theft, and you'll catch my ear. Otherwise, you're going to be seen as just another person supporting wholesale theft to most people.

And let's not pretend that there is no economic impact from this. I mean seriously, people. When millions of people are downloading movies rather than paying for them, you can't convince me that that isn't money lost for the industry. The decline in theater attendance isn't just related to the shit they shovel into a film canister these days, it's also quite related to the amount of people stealing the movie off the internet. Don't pretend that that isn't happening, it completely ruins any hope of people taking your point seriously.

[Captain Awesome]

Sean;

The proposed legislation specifically doesn't allow you to copy your own purchased property. It would require you to specifically request permission/buy permission from the studio to do so. There's also really nasty language in it about rolling back "fair use" such that it would pretty much go away or be very difficult to use. Also this isn't respecting the property rights of Sony and Samsung, etc. such that is forces them to use this specific technology to make their products crappier. With these proposed rules Tivo becomes illegal as well as the slingbox, you aren't allowed to convert digital content you buy to work with your ipod or PSP (there's language specifically addressing these two technologies), and it puts the FCC in charge of these "standards". All this, and it doesn't do shit to stop piracy, it just fucks with what us legal respectfull types are allowed to enjoy. I'd rather the studios just went out of business because of piracy than got a free ticket to tell me what I can't do in my own home.

[Sean]

You ruin all legitimacy when you tell me that this provision makes TiVo illegal. That's patently false. Try again.

[Phil]

Sean, as far as TV goes, I'm not terribly sympathetic to any argument which claims that we need to protect a revenue stream that doesn't exist -- that is, why flag any program that's already broadcast in the clear?

As far as this goes:When millions of people are downloading movies rather than paying for them, you can't convince me that that isn't money lost for the industry. The decline in theater attendance isn't just related to the shit they shovel into a film canister these days, it's also quite related to the amount of people stealing the movie off the internet.

First of all, I don't know that there are "millions" of people downloading movies; I suspect the numbers is somewhere south of that, but if you have accurate information otherwise, I'm willing to be corrected.

Second, I wish I could find it now, but I recently read an excellent piece about how the sales and rentals of DVDs and the sales of home-theater equipment are increasing at a rate that helps explain why theater attendance is decreasing.

Why pay, in a big city, $40-60 for tickets for a family of four, $5 for parking somewhere, $20-30 for snacks, sit through 25 minutes of commercials and trailers, and deal with the hassle of getting out of the parking garage, when for a one-time equipment investment and $3 per rental or $15 per purchase you can view things at your leisure in an environment you prefer, that nearly duplicates the audio-visual quality of a theater?

I'm not saying there's one-for-one going on here, nor am I saying there's not illegal downloading going on, but it's far too facile for the studios to claim that all the decline in attendance is because of downloaders. Most people, in my estimation, wouldn't even know how to download a current theatrical release; they're waiting with their new 50" plasmas and 6.1 surround for the DVD.

[Phil]

More relevant to the immediate point: The FCC, despite Congress's attempts to keep bringing back this legislation, still does not have the authority or the power to mandate how electronic equipment manufacturers how to build their equipment. That's so far outside the FCC's rulemaking authority, it's like allowing the FDA to dictate how plates, forks and knives must be made.

[BarryJV]

Sean

I mean seriously, there is NO business model that can cope with illegal downloading.

I can think of a few. Legal downloading at a fair price would encourage people to go to the source instaed of to a ripped off version. Several US TV shows (e.g. Lost) are available on Bittorrent (for free) to the rest of the world, they're also available on iTunes new video section for a couple of dollars. I went there the other day and guess what, because I'm in the UK US TV shows are not available on iTunes. I can't pay for these things even when I want to, yet I know people that download them for free. That is a failing business model.

If given the choice between paying the people who worked hard to produce a show and downloading it for free, the vast majority of people are going to choose the free option.

I disagree. Most people don't download at all at the moment, if the business model that is established is one of fair fees for downloading most people will never get involved in free downloading.

I don't know if you have a DVD collection of any sort, I do and amongst it are films like (off the top of my head) Lawrence of Arabia, the Ealing comedies, complete collection of Monty Python etc. All of which had been broadcast several times before I bought the discs. So why would I buy them? The answer obviously lies in the fact that the product offered improved quality in terms of packaging, disc quality (dedicated pressing rather than DVD-R) etc. at a fair price. That's a working business model.

Even without downloading, bad business models do badly. In the UK the introductory price of DVDs was ?20-?25 (approx $35-$45). In the US they were selling at $25, the publishers were trying to establish a new price point for DVDs that would earn them massive profits. The region flag was meant to stop people from the UK importing DVDs from the US, in fact it just lead to the sale of 'region free' DVD players and a short-lived arms race between DVD manufactures and hackers. In the end the price of DVDs was dropped to US levels and the format has been a great success.

How do we combat this?

Offer a good product at a fair price in a timely manner. Simple but true. It's amazing how many businesses forget this, especially when they have a monopoly.

[BarryJV]

Sean

You ruin all legitimacy when you tell me that this provision makes TiVo illegal. That's patently false. Try again.

I don't whether it's this provision, but there certainly have been attempts by the broadcast industry to get digital video recorders banned or at least severely limited.

[John]

Luddities.

There is something odd about the reactions you get from the move conservative end of the Libertarian perspective on this. Theft they say, its not fair they say.

If some poor slob working in a factory or some such thing has the business model for his labor undercut by technology saving the consumer and producer money, well, that just to bad. That's progress and progress must go on no matter what.

However, if its wealthy producers and over paid pop stars who get the business model for their labor undercut by technology, well, gosh that's just different. In that case its theft and unfair.

But of course its not, they have been relying on a business model that is no longer viable because of technology. Ironically, before technology performers got paid per performance and producers and managers got a cut for producing and managing performances. When they first started making more money otherwise it was becuase technology made intellectual property viable by publishing sheet music, books, or play scripts. Technology then made them a lot richer by giving them the ability to charge per record, reel, tape, and then plastic disk. They really made a bundle, particularly when it got to the cheap to produce but expensive to buy rigged cd market. And now due to advancements in technology the plastic disk market is no longer as viable. The producer and overpaid pop star?s labor has been undercut. On the other hand, the performer who figures out how to play the independent market right with the new technology can find that his labor is suddenly worth more than it was before as a cottage industry. And yes people like Steve Jobs who figure out production and marketing with the new technology have money to make as well.

The only difference between this and the peasants following King Ludd is nice suits and lawyers. In either case what they want is for progress and technology to stop and artificially inflate their labor.

[BarryJV]

The Real Bill

What kind of libertarian doesn't respect property rights?

What kind of libertarian supports monopolies?

Intellectual property isn't property, it's a term dreamt up by people that wanted to create a false connection.

Copyright laws are a compromise to allow artists to earn a share of the profit from the remote distribution of their work (as opposed to live performances), the currect extension of copyright laws is an abuse and completly outside of the original intent of the law.

[John]

So folks how does the Libertarian truly support intellectual property rights in this kind of case?

The Libertarian ideal is supposed to be against government regulation.

This business model relies on government regulation to make money. It relies entirely on laws that define something as being of value but not on the actual free market.

Intellectual property makes sense as something by which people can be sure that others do not steal and profit from what their labor. But here it is really being defined as a way to construct laws to make money when technology and the free market have made it no longer viable. Its protectionism.

To do it you have to criminalize the actions not of pirates who set up business models that rely on theft but the criminalization of what normal, average people do with technology. But most importantly it uses government and law to mess with the market and make a proftit where one would not otherwise exist.

[The Wine Commonsewer]

Intellectual property isn't property, it's a term dreamt up by people that wanted to create a false connection

I think there's some Indians out there who have made that same argument about real estate law in the US.

I've seen the no such thing as..... argument before, on the pages of Reason and other places. I've also heard the argument that, constitutionally, trademark and copyright were put in place to provide just enough protection to encourage innovation. That argument is often made by libertarians who are fond of proclaiming that it's none of the got dam government's business to interfere in the market place.

With respect to property rights, the proper role of government is to establish a framework of law that protects these rights.

The fact (as John points out above) that the government has/is doing a poor job in the area of intellectual property isn't evidence that intellectual property rights don't exist.

[The Wine Commonsewer]

BarryJV, Just want to add that I agree with almost everything you posted about markets, downloading, illegal downloading, price, etc. I'm only nit picking about the concept of intellectual property as property and nothing else.

[The Wine Commonsewer]

Phil, you are so right. I hate going to the movies anymore. Last time I took the curtain climbers to a matinee it was $40.00. I'd much rather sit home on a Friday night with Mrs TWC and the kids, her Big Screen (with the surround sound), a glass of wine (which you cannot get at the movies), and the peace and quiet that you cannot get at a movie theater anymore because there is always that group of people sitting behind you who wandered in thinking it was a bar and just can't figure out why the cover was so high and where the hell the cocktail waitress is.

Thank you technology. Thank you Netflix. Thank you Sam's Club for cheap DVD's.

[stan]

the right to bears arms is in the constitution because gov't might feel it has the right to listen to your conversations.

[Josh]

Sean wrote:

"But what about the flag specifically is bad? I definitely respect property rights, but we have to respect the intellectual property of the providers. We have an implicit contract with the entertainment provider that we will not trade programming, backed up by applicable federal law. So many people are breaking this contract that legislature has to be drafted. If the flag isn't the answer, what is?"

What the broadcast flag (and other similar attempts to control technology via law) attempts is to give digital information the same attributes as physical goods. In other words, it's a fight against reality waged by the entertainment industry via the legal system.

The two attributes that the RIAA/MPAA want to somehow bolt to digital information are exclusion and rivalry. If a property is excludable, then its owner can prevent others from using it and/or set terms for its use. Also, most physical property has the property of rivalry: it cannot be effectively used jointly - only one or a few people can extract the most gain from its ownership.

Digital information has neither of these attributes. If a single person has a digital file and access to the Net, then the owner cannot prevent it from being copied and used by anyone else with access to the Net and the technology to use the file. And the same digital file can be jointly used by any number of people as well.

Copyright law was conceived and written into law when information was more or less inextricably linked to a physical substrate; novels were distributed on paper, paintings on canvas, music on vinyl, movies on celluloid. In the past decade, information has escaped its bond to physical matter, aided by audio/video compression algorithms, cheaper and larger information storage devices, and faster, ubiquitous access to a global network.

Copyright law and the business models based on it haven't caught up yet.

You ask what's bad about the broadcast flag? Primarily, it's a fight against reality that cannot be won. But in waging a war against reality to protect its business model, the RIAA/MPAA is more than happy to stifle innovation in the technologies that have brought so much wealth and prosperity to the human race - namely, the Internet and all the technologies that underlie it.

Because in reality digital information doesn't behave the way the RIAA/MPAA would like it to, they must through legislation force the technology that deals with digital information behave the way they want it to - in a way that protects their business model.

Since digital information, once free, can be copied and viewed anywhere, they must shore up *every single hole through which that information can 'escape'*. The laws that they propose place restrictions on how technology producers can implement devices that copy, store, play, and use digital information. In other words, every music or video player, computer, software program that can use or copy digital information, and every network device that can transmit it.

Placing control over one of the most vibrant and productive industries into the hands of a demonstrably Luddite group of managers and paper-pushers protecting an obsolete business model, *and* at the same time, into the hands of *politicians* looks like a recipe for total disaster.

History has many examples of what happens when people like this are given power that this legislation will give them.

"Can't we agree on the flag, then argue the usage of it? I certainly don't want anyone restricting my ability to watch my programs on my iPod, TiVo, or computer, but why not make it harder to distribute that programming to others? All the flag does is mark the program, from there it is a matter of how it is read."

On the face of it, this seems reasonable and straightforward. It's the way it's presented to the public and in the laws they pay their politicians to write.

However, in order to protect digital content in this manner, they must control how *all* technology is created and used. For if a single manufacturer creates a device that doesn't implement the broadcast flag - for instance, it ignores it and allows copying of flagged material - then the cat's out of the bag and anyone with such a device can copy and distribute the digital info.

So, say we do the 'reasonable' thing and allow these guys to pass broadcast flag legislation that controls how all devices that can copy/view/play digital information. Will there be some new government bureaucracy that give the official stamp of approval to each and every new music player, video player, information transmission technology, storage technology, software technology, etc? What happens to open source software and hardware in this instance? Now that politicians and a business model have control over all this, what do they do?

The broadcast flag, while it may seem reasonable, is just the first step of a disasterous master plan to force the reality of digital information technology into a mold that satisfies the business model of the entertainment industry management class. And it dovetails quite nicely with these politician's fevered wet dreams: control and approval over the means the citizens get their entertainment, news, and information.

[joshua corning]

sean,

I just paid to watch 3 episodes of battle star galactica 1.99 each. also I can buy music by the song or by the album.

I also know how to download using p2p and could get any of these for free...yet somehow i don't. It think it has something to do with garanteed quility and speed of download and not having to deal with 500 pop-ups and spyware.

The reality is that the movie and music and tv industry just don't want to be forced to compete and they want the US government to use the threat of violance to protect thier scam.

[FCCdog]

Here is what the FCC thinks it is supposed to do:

Your child plays with a radio-controlled airplane,

Fine. We don't want the kids controlling commercial and military aircraft. Not just now, anyway.

Your teenager upstairs sends their homework assignment to the printer downstairs via your new wireless home network,

The teenager can do this for two reasons: 1) the 802.11 (WiFi) standard, which is not a legititimate FCC concern, and 2) the properly enforcable (low) EIRP and (short) frequency dwell times, which are valid FCC and local government concerns in the 2.4GHz and other ISM spectra.

Your toll fee is automatically deducted from the little plastic box attached to your windshield without having to stop at the booth,

Huh ?

You swipe your credit card at the gasoline pump,

Huh ?

You push the button on your garage door opener,
You heat your breakfast waffle in the microwave,

This is a valid FCC concern, but only to the extent that the garage door opener or microwave oven does not interfere with the operation of other RF equipment.

The cashier at the coffee shop rings up your favorite morning drink using an electronic cash register and inventory control system,

Huh ?

The local video store contacts its remote, central computer network to find out if you have enough bonus points to qualify for a free rental,

Contact ? How ?

You lock your car with your remote entry system,

Again, just a technical matter of limitting the EIRP and frequency range.

You activate your home alarm system before going to bed.

How was the alarm activated ?

As some of those examples point out, sneaker-net, according to the FCC, is within their domain.

[Captain Awesome]

Sean

You ruin all legitimacy when you tell me that this provision makes TiVo illegal. That's patently false. Try again.

Except that in press releases the MPAA came forward and stated their dismay that their product was bringing this value to consumers without thm getting a cut of the action. Their proposal is that the value added to consumers by time shifting is created by their product, and that the additional value a Tivo brings you is rightly theirs. They further posit that with a broadcast flag they could control and sell that right to Tivo/end consumers. The flag is about using violent monopoly power to extract huge rents from every media consumer. How is a flag imposed on every new technology and consumer a property right of these guys?

[Pro (C), Anti-Flag]

There is an argument against the broadcast flag besides all the usual tiresome rhetoric (e.g, "IP is a myth," "you weary giants of flesh and steel are denying reality," "the media is interfering with my vital human right to consume as much music and movies as I want for free," etc.)

Whether you are a libertarian of the copyright loving or hating variety, the broadcast flag is a bad idea because it would expand the powers and jurisdiction of the FCC. It would give the FCC authority over what happens to a signal *after* it is received by a device. The courts rightly rejected this power grab by the FCC. Now some congresscritters want to give it to them. Surely this would be the first step in the FCC making itself czar of all digital content (regulatory expansion being sadly inevitable). The FCC is *already* a bad idea as is. Why give it regulatory authority over all technology that could be used to record digital signals (e.g., computers, PDAs, modern cell phones, DVRs, game consoles, etc)? Ugh. Just say no.

[Evan]

Sean,

I think your arguments have been thoroughly addressed by others here, quite adequately.

So, going back to your assertion that, unless we offer up viable alternatives, we come across as punk hackers, I offer this: a viable alternative would be, let individual companies implement their own versions of the broadcast flag, instead of mandating it for an entire industry. This is the free market at work. $ony/BMG has done something similar to this with their DRM-protected audio discs. And they've taken it a bit far---which has led to widespread consumer backlash. But, that's what the movie industry chumps are afraid of. They're all afraid to go into this thing alone, so they want the government to force everyone into it, to basically create a falsely level playing field.

They think that they're owed this revenue stream, and that they shouldn't have to work any harder to get it. Ha. I don't go to the movies anymore---why? Well, I pay $17/month for Netflix. I get movies whenever I want, which I watch on my big screen with surround sound. And I should pay $10/person to sit in uncomfortable chairs in a noisy theater, for what? The opportunity to pay $6 for a quart of popcorn and watch 30 minutes of ads?

But I digress. Lost revenue has many culprits---illegal downloading included---but the problem is, the industry heads always play up that one side of the equation, in order to mobilize lawmakers. Will some horsehockey like the broadcast flag get them their revenue back? I highly doubt it---any increase they see from decreased pirating will almost certainly be offset by angry consumers who boycott their products.

But in Sean, I see someone who has bought their line about pirating hook, line and sinker. Sean, whatever you think about pirating, know that it's not as big of a problem as you surmise. So when you put forth the ol' "something MUST be done!" line, just think about that for a second. Perhaps something should be done, but we're not in such dire straits that we should even ever think of considering something as eggregious as the Broadcast Flag---even in the face of no viable alternatives, it's bad news.

[Sean]

Evan, I JUST graduated from College. I have friends in the network administration department on campus, I lived in the dorms/student apartment for 4 years with high-speed networks. Don't give me any bullshit about what I don't know about pirating. Anyone who tries to pretend that movie piracy is not affecting the industry is straight up LYING. 18-24 year olds is the #1 demographic for movies and shows, and they are the ones most likely to pirate.

Now, that being said, I'm not entirely sure I like the broadcast flag either. I'm never happy about the government stepping in... I am a libertarian after all. However, remember that one of the few powers the government is supposed to have is the ability to protect someone from theft. Now you can give me all the rhetoric you want about "digital files" and "lack of physical substrate" and "stifling development," but the fact remains that we're talking about preserving the right to pirate movies. Moreover, that is the single biggest reason that people don't like this bill, conscientious libertarians and technophiles excluded.

But let's think about this for a second. Apple has been cited quite a bit about their business model with iTunes. It's the service I use, and I admit that I stopped using Limewire the second it came out. Hurray for me and my mortal soul... but don't try to tell me that it's making a huge dent in piracy. What that did for the most part is bring in NEW customers who weren't downloading anything before. The vast VAST majority of p2p users weren't convinced they wanted to pay what they could still steal for free. Furthermore, the only incentive Apple has for their DRM is to satiate the RIAA and to lock in the use of the file onto iPods and iTunes. What we're talking about here is either a national standard that everyone has to follow, or in Evan's solution, 25 different players so I can listen to Sony/BMG music on one, NBC/Universal movies and shows on another, etc. And the companies have the right to make the DRM as restrictive as they want, rather than the public process that they'd have to go through with a federal solution.

My point isn't that the broadcast flag is perfect, or even that it's a really good solution. My point is SOMETHING needs to be done, and anyone who says otherwise is arguing that because someone invented a really easy-to-use lockpick, it's okay to let myself into Target and start pocketing DVDs. I mean really, why don't they get with the times and realize that no matter what they do, someone will come up with a better lockpick?

[Phil]

What that did for the most part is bring in NEW customers who weren't downloading anything before. The vast VAST majority of p2p users weren't convinced they wanted to pay what they could still steal for free.

ISTR an article right here at Reason which showed that people who had used file-sharing networks were also X% more likely to have legally purchased music or movies online than were people who had never downloaded before. Anyone else remember that?

[Captain Awesome]

I just graduated from college too. And I also know plenty of people that downloaded and also bought legit coppies after download. I'm not saying that piracy doesn't hurt and suck. But I am saying that the idea that pirating hurts hollywood; therefore, hollywood gets to tell Sony, Samsung, Squidware... what kind of electronics and technology they are allowed to develope is at best a non-sequitr and at worst one of the more fucked up things our law-makers can persue. And I've got the perfect alternative for someone who proposes this, "No." And we have no further obligation to proposeways for them to deal with it.

[speakerboxxx]

My point is SOMETHING needs to be done, and anyone who says otherwise is arguing that because someone invented a really easy-to-use lockpick, it's okay to let myself into Target and start pocketing DVDs.

Continuing this analogy, the argument I find even more inane is that because most people don't steal from Target even given the opportunity that there should be no penalties for those who do. Or also closely related, the argument that because those who steal from Target also buy more from Target than those who don't steal, stealing isn't really stealing.

If I can flip sides for a moment, though, "something" only needs to be done if as a society we want to continue to produce expensive movies and records. Allowing free downloading (illegal or not) will kill the incentive to invest in films and some recorded music, and only fools would say otherwise. But it doesn't follow that we actually need this investment, just because that's how it's always been. And this is where the argument for the impossibility of preventing piracy has at least a little traction. If the costs of preventing theft by downloading exceed the benefits of making blockbuster movies, then the entertainment industry might just have to suffer for it.

This issue will always be contentious, by the way, between people who disagree about what is obviously "property" and what isn't, based on the powers of their pure intellectual apprehension. Unfortunately for them, IP is just a messy means to an end, and its problems should be debated accordingly.

[Captain Awesome]

And I see the Target analogy a little off. It's more like saying some people steal from target with this nifty new lockpick. Therefore, before entering any department store all customers must be searched for lockpicks and must be accompanied by a security guard to every isle they visit, also these guards must follow you home to make sure that once you do have department store goods, they are used only in a way that said department store approves of.

[violent_k]

My point is SOMETHING needs to be done...
The road to hell is paved with this type of thinking.

[jp]

Hopefully, piracy will just further encourage the research and development of a personal holodeck.

[Rhywun]

I JUST graduated from College.

Obviously then, you don't know how completely technologically incompetent the average American is. I work with average, well-educated people who still need to be shown how to find a file on their PC. In short, you're WAY overestimating the impact of p2p.

18-24 year olds is the #1 demographic for movies and shows

Only to appear "hip". 25- to 100-year-olds continue to spend the vast majority of money. So, you're also overestimating the impact of your age group 🙂

[foobie]

There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped or turned back, for their private benefit.

I doubt I have to explain the provenence of the above quote to the majority of posters on this site. It is, nonetheless, the correct answer to the kinds of efforts (like the broadcast flag) engaged in by those who would have the government guarantee their business model.

Theft and other non-moral behaviour has always existed, and will continue to exist, as long as humans continue to exist. I'm not opposed to reasonable protections for intellectual property, but placing an undue burden on equipment manufacturers and honest customers (not to mention increasing the scope of government power yet again), is not, by any meaningful measure, a reasonable action.

While there will always be those who will never pay for content, the majority of customers will, as long as they aren't treated like criminals even after they've paid for it. iTunes is a good example. There's nothing on iTunes that cannot be acquired for 'free', and yet it does very well, by virtue of the fact that it it convenient, the controls on the content are reasonable and generally unobtrusive, and it's at a price point that people feel comfortable with.

No matter how hard they try to avoid it, the old business model IS going to go away (sooner or later), and the winners will be those who embrace the new technology, not the ones who try to squash it.

[David Nieporent]

Phil: More relevant to the immediate point: The FCC, despite Congress's attempts to keep bringing back this legislation, still does not have the authority or the power to mandate how electronic equipment manufacturers how to build their equipment. That's so far outside the FCC's rulemaking authority, it's like allowing the FDA to dictate how plates, forks and knives must be made.

You're right about the FCC's current authority, Phil, but you're missing the point. This is not a unilateral initiative of the FCC; as you yourself note, this involves "Congress's attempts to bring back this legislation." The whole point here is that Congress wants to give the FCC that authority.

It doesn't matter whether it fits within the FCC's traditional mission; Congress can do what it wants in terms of assigning responsibility to federal agencies (*). If Congress decides the FCC should regulate automobile gas mileage, you can't argue, "That doesn't have anything to do with the FCC's role."

(*) Yeah, within constitutional limits, except we all know that there are none anymore.

[complexisomorphism]

Here is a little bit of translating for Lost in Translation

But I know one thing. There will always be shoplifters that will break down the system, and the tighter you make security, the more you inconvenience the people legally buying and using the products.

You say there is no competition with "free", but there's plenty of ways to offer products that that thieves can't take, like products behind glass cases and special perks delivered directly to the customer, (like bonus items).

As much movie as the retail industry claims its losing, its not real loss in terms of failing to make back money on their products, its more imagined loss thinking "how much money they could have made". They base these estimates on broad statistical measurements, not by knowing exactly "how many people have stolen goods."

They can lockdown the merchandise so that it is very inconvenient to purchase it, but they will find that all the security measures in the world will not make them more profitable. The determined thief will still break their systems and sell their products on the black market. Customers frustrated at the higher prices created by theft will turn to the black market, and the retail industry will moan again and ask for more protection. Its a vicious cycle with no end.

But guess the fuck what: property rights must be protected.

[science]

Business model that works here.
Artist doesn't need a label anymore. Sells Cd's or download codes at shows. Cuts out the greedy middle men. Encourages people to share the old creation to increase liklihood that the next creation will be a viable product. Make most of your money from sharing music with an audience instead of trying to pay off the loan you got from the record industry.

Fuck off about intellectual property here. The people pushing this bill are protecting intellectual property that they only have access to because they used to have the only means of distributing it. Now they are losing control of the means for strong arming the intellectual property of artists and they are freaking out.

File sharing and downloading are good for artists, bad for those who wish to exploit them.

Check out the website for the band 50 Foot Wave. Their new album is FREE. Why? 'cuz they use the above business model.

[MainstreamMan]

By the way. As long as there has been radio, free music has been had by all. Another viable business model-- Rhapsody and other on-demand music services (works for movies too). Easy access to way more files than I would ever have time to steal for a reaonable fee. That beats free anytime, 'cuz my labor costs a lot. Sadly, again, this will result in a larger cut for the artist, and the studios and labels will not make as much as they are used to. Boo hoo. Only luddite suckers could support this bill.

[Brendan Perez]

As much movie as the entertainment industry claims its losing, its not real loss in terms of failing to make back money on their products, its more imagined loss thinking "how much money they could have made". They base these estimates on broad statistical measurements, not by knowing exactly "how many people have pirated copies".

Indeed.

Entertainment companies seem to think that they are entitled to yearly sales levels equal to or greater than the previous year(s). This is incredibly asinine given that the products they release in any given year vary in every sense from those released in the previous year(s). Is downloading to blame because Gigli (random example) didn't sell as well as other movies released at the same time, or perhaps the same time last, or as well as the last movie that starred one or more of those leads?

Had been downloading been around in 1980, I wonder if the studios would have blamed downloading for the poor box office performance of Heaven's Gate compared to the Deer Hunter-both were directed by Michael Cimino. I only remember Heaven's Gate because of an entry in the Guinness Book of World Records that pegged it as the worst performing movie-$44mil production netting $3 mil or so.

Imagine if any other industry tried what the entertainment industry does in scapegoating others for their poor performance. An example would be firearms. Imagine if the firearm industry came without new models every year that looked, felt, functioned, etc. differently then those released last year and complained that the reason they had fewer sales this year was because people were copying their designs and making their own firearms at home and sharing the designs and/or finished products with their friends. This would be met with severe ridicule. We don't have to like every model they produce and we don't have to buy the new releases in the same quantities that we did the previous release.

Movies are the same way. I may decide that certain newly released DVDs will never be allowed to touch anything I call mine, while I may buy others the day they come out.

The movie industry is one industry that seems to survive releasing more turds then they do diamonds. They should consider themselves lucky.

[Brendan Perez]

As much movie as the entertainment industry claims its losing, its not real loss in terms of failing to make back money on their products, its more imagined loss thinking "how much money they could have made". They base these estimates on broad statistical measurements, not by knowing exactly "how many people have pirated copies".

Indeed.

Entertainment companies seem to think that they are entitled to yearly sales levels equal to or greater than the previous year(s). This is incredibly asinine given that the products they release in any given year vary in every sense from those released in the previous year(s). Is downloading to blame because Gigli (random example) didn't sell as well as other movies released at the same time, or those released the same time last year, or as well as the last movie that starred one or more of those leads?

Had been downloading been around in 1980, I wonder if the studios would have blamed downloading for the poor box office performance of Heaven's Gate compared to the Deer Hunter-both were directed by Michael Cimino. I only remember Heaven's Gate because of an entry in the Guinness Book of World Records that pegged it as the worst performing movie ever-a $44mil production netting $3 mil or so.

Imagine if any other industry tried what the entertainment industry does in scapegoating others for their poor performance. An example would be firearms. Imagine if the firearm industry came without new models every year that looked, felt, functioned, etc. differently then those released last year and complained that the reason they had fewer sales this year was because people were copying their designs and making their own firearms at home and sharing the designs and/or finished products with their friends. This would be met with severe ridicule. We don't have to like every model they produce and we don't have to buy the new releases in the same quantities that we did the previous release.

Movies are the same way. I may decide that certain newly released DVDs will never be allowed to touch anything I call mine, while I may buy others the day they come out.

What other industry could survive with such a high turd-to-diamond ratio?

[Brendan Perez]

Sorry about that. It hung and timed out when I clicked post and I decided to re-word some things.

[dead_elvis]

The people pushing this bill are protecting intellectual property that they only have access to because they used to have the only means of distributing it. Now they are losing control of the means for strong arming the intellectual property of artists and they are freaking out.

The parties pushing for this kind of bill are simply middle men, and unfortunately they have convinced the actual content producers that this kind of bill is needed. Normally, the Musicians' Union is an *adversary* of the RIAA in negotiating contracts; now they've lined up behind the forces of Extreme DRM. Any time you see a union line up with a big business, everybody watch your wallets and your freedom! Personally, I'm pissed off about this and it's a large reason why I sympathize with efforts to prevent unions from spending dues on political efforts.

[JimL]

All that has to happen is for the entertainment industry to make a better product for people to buy. There have been some great innovations from the entertainment industry's inability to stop or make illegal technology. When the VCR entered American's homes and kept them away from the theaters, theaters moved to create experiences that most people could not get at home: incredible, chair-rattling surround sound with the big picture.

As people invested in home theater technology, studios realized the money maker DVD sales are, and made sure to include high end audio and video (such as widescreen) in most DVDs.

And as the technology increases for people to enjoy even better audio and video, the entertainment companies should continue to take advantage of this by creating better products. For example, MP3s when played on a good stereo show flaws in their super compressed format. As better audio equipment becomes available to the masses cheaply, people will want a better format.

The legislation is a lazy way to fight inevitable changes. No matter what flag or encryption they create, somebody is going to come up with a way to crack it. So not only will it stifle innovation, create more government meddling, but it simply won't work.

[Evan]

Sean:

"Evan, I JUST graduated from College. I have friends in the network administration department on campus, I lived in the dorms/student apartment for 4 years with high-speed networks. Don't give me any bullshit about what I don't know about pirating. Anyone who tries to pretend that movie piracy is not affecting the industry is straight up LYING. 18-24 year olds is the #1 demographic for movies and shows, and they are the ones most likely to pirate.

If you're so sure, why not give me some hard data...and make sure it isn't financed by the movie industry, too. The anecdotal fact that you were recently in the presence of college-age pirates does not lend any credence to the overall facts of the issue.

"However, remember that one of the few powers the government is supposed to have is the ability to protect someone from theft.

True, and the broadcast flag is the wrong way to go about it. Just because enforcing copyright laws is logistically difficult doesn't mean that that's an excuse to enforce soem sort of sorry-assed monopoly. Yeah, you know, the government could do alot of things easier, like protect us from theft, if we gave up certain liberties. So?

"Now you can give me all the rhetoric you want about "digital files" and "lack of physical substrate" and "stifling development," but the fact remains that we're talking about preserving the right to pirate movies."

Says you. I don't pirate movies. Never have. It's that whole libertarian conscience thing--you know, respect people and they will respect you. "We're talking about" retaining fair use rights of content that I have already downloaded or recorded legally. You can't frame this in stark terms of "right to pirate", just because you want to. That's disingenuous.

"Moreover, that is the single biggest reason that people don't like this bill, conscientious libertarians and technophiles excluded."

Yes, and some criminals don't like gun bans. Doesn't make those gun bans any less unconstitutional.

"And the companies have the right to make the DRM as restrictive as they want, rather than the public process that they'd have to go through with a federal solution."

Yes, they have the right to make the DRM as restrictive as they want...but in a free market, the goal is to please your customers. Companies that made over-bearing DRM would be taught a lesson by market forces. A federal solution is just not a good idea for anyone but the movie industry.

"My point is SOMETHING needs to be done, and anyone who says otherwise is arguing that because someone invented a really easy-to-use lockpick, it's okay to let myself into Target and start pocketing DVDs. I mean really, why don't they get with the times and realize that no matter what they do, someone will come up with a better lockpick?"

I know there's a name for the logical fallacy you just put forth. Something like "you're either with us, or you're a terrorist". Anyway, "something" needs to be done, but my point is, the problem isn't as big as you make it out to be, and the "something" that must be done is not so urgent and immediate that it has to be taken care of at a federal level.

[grylliade]

My main objection to things like the broadcast flag, and other efforts by copyright holders to make their intellectual property more like physical property, is that it can only be enforced by governmental action. The more I've looked at it, the more I believe that it isn't that information should be free; it's that information is, fundamentally, free, especially in the digital age. A copyright isn't a governmental recognition of a fundamental fact, i.e., that the information belongs to the copyright holder. It's a temporary monopoly given to the copyright holder to encourage them to produce more information. In other words, the copyright holder only has those rights over the information that government gives them, because the rights to the information fundamentally belong to the people, not to the holder.

So what's happening here is the copyright holders are saying that their rights are being violated, which they indeed are. But to protect those rights that are being violated, they are trying to arrogate some of the rights that aren't theirs to themselves. In other words, I have a fundamental right to fair use of information. It isn't something that is graciously granted by the copyright holder, to be taken back if I abuse it. It wasn't ever a right granted to the copyright holder in the first place. So I have the right to fair use of copyrighted material I purchase. It cannot be taken away simply because some people use it for piracy. Even more strongly, the copyright holders have no right to enact a law to protect their rights that violates my rights. Piracy is already illegal; that's as far as the protection of their rights should go. It should not go to the extent of making piracy impossible, even at the cost of violating my rights.

The major problem with things like the broadcast flag is that they will, in the end, restrict innovation. Copyright is intended to encourage innovation; anything that goes against that purpose, even if it protects current copyright holders, is wrong. Innovation, both technological and cultural, has been the driving force behind growth in the West for millenia. We cannot allow content providers to stifle innovation just to protect their copyrights, especially when they continually violate the terms of the contract under which they were granted their copyrights.

Of course, in the end, this battle is already lost. Information is the most important thing in the world right now; those in power will find ways to cement their control over information, because that's what they do. But that doesn't mean we shouldn't fight efforts to restrict information as much as possible. The broadcast flag is a bad idea, and content providers should have to find a new business model that works, rather than forcing the rest of us to continue our old roles. I support reasonable efforts to avoid piracy, but not ones that restrict legitimate users more than pirates.

[smalls]

sean,
your Target argument lacks logic. The flag model is more like telling companies that sell products at Target that they MUST include rfid tags, and MUST force customers to register their products in order to use them. Yeah, stuff gets stolen from target. All that means is that we should enforce theft laws already in place (and maybe Target should voluntarily increase their own security measures).

[BarryJV]

The Wine Commonsewer

I think there's some Indians out there who have made that same argument about real estate law in the US.

The fact (as John points out above) that the government has/is doing a poor job in the area of intellectual property isn't evidence that intellectual property rights don't exist.

I didn't say that IP doesn't exist I said that IP isn't property, it doesn't have the same characteristics as property. I don't know what the Indians said about US real estate law, something along the lines of "why do you own it when we were here first?" I would guess, but it doesn't change the fact that real estate does have the characteristics of property and IP doesn't, at least, IP lacks one of the important characteristics, that of exclusivity. If you take my car, I no longer have a car, if you fence off my land and put your cattle on it, I no longer have the use of that land, if you download a copy of a film the original film reels, DVD masters and broadcast tapes are completely unaffected.

The analogy of the new improved lock pick doesn't work. If Target spends $100,000 buying XBox360s, and store workers arrive to open up in the morning and they're all missing, that's cost them $100,000. If they arrive in the morning and someone has been in during the night, cloned all the machines leaving them in exactly the same condition and locked the door, would they even notice?

That's the difference between a lock pick and filesharing, unless your lock pick includes a SciFi cloning device, there's no analogy. Referring to copying as 'theft' is simply wrong, no theft has occured. It's an emotive term used to try to establish a false connection in people's minds.

Now, if Target's customers all call to cancel their reservations and buy from the cloning machine people, that has cost them money. In the real world, if people start buying copied DVDs from car boot sales [1] they aren't buying them from the licenced supplier, that's obviously costing sales. This is what the law should be about, copyright should offer a monopoly for sales of copyrighted material, not a ban on all copying. That's how it's been interpreted in the past and how it's intellectual sister (patent) law works. In patent law the details of the invention are freely available for anyone to see, but only the patent holder can profit from it.

Once you start treating IP as property you can't oppose things like the broadcast flag. There is no such thing as Fair Use of my property. You can't drive my car without my permission, you can't drive your cattle over my land without my permission and you can't freeze frame my TV programme with your TiVo without my permission.

[1] I don't know what the American equivalent of this is, yard sales perhaps.

[BarryJV]

grylliade

It should not go to the extent of making piracy impossible, even at the cost of violating my rights.

That's the punchline to this joke of a law. It doesn't make piracy impossible, large criminal gangs can still pirate this material by hacking the hardware to ignore the flag and other copyright protection measures. If this law passes you won't be able to borrow a film that your friend recorded from TV, but you will be able to buy that film from an illegal supplier. This will empower criminal copyright theft by opening up new markets to them (the guy that doesn't want to buy a $20 DVD he just wants to see the episode of Lost he missed the other night) in the same way that drug prohibition enriches the pushers.

[ertwes]

dhrbstbsetbse