If you initially propose something "middle of the road," you get negotiated to 3/4 down the road. If you propose something idealistic and way far to one side, then you give the opposition things to negotiate away. Then they feel like they win, and in reality you come up with something much more moderate and "middle of the road" than you would have otherwise.

I wish I could find the article, but I once read a story about a web designer who knew his clients ALWAYS had to have some feedback. "I love it, but can you change the color of this" or "make this bigger." No matter how perfect the design was, they HAD to give feedback to feel like they were doing a good job.

So the designer would make a beautiful website, and then put a really ugly snowman in the background. Then the clients would say "I love it!" But can you remove the snowman?"

Say you want reduced copyright terms, reduced damages, and expanded fair use for DJs. Then give up the DJs.

You know you have to give them something, so add things in you're okay giving up.

Now. Why is the first point about the size of the industry relevant? Unless you're talking about their ability to bribe...I'm sorry..."lobby" Congress to pass the laws they like? That shouldn't happen anyway, regardless of their size. Laws should be passed on common sense and what's good for the people at large, not based on how big is your bank account.

What is dubious about his argument about copyright? First off, copyright is not "property", and shouldn't be treated as property. It's more like a permit. The government allows you to use a certain idea for a "limited time period" as it says in the Constitution. Unfortunately, because of the bribing..sorry, again, I meant lobbying...the "limited time period" turned from 14 years to almost 10x more. That doesn't sound limited at all to me. Copyright was meant as an "incentive" system - not as a welfare system.

Ideas can and should be reused. Whoever gets something copyright, most definitely got "inspired" or copied parts of someone else' ideas. That's why there isn't really something like "intellectual property", because nobody owns an idea 100%. And since you used someone else' ideas, you have to get paid for whatever you added only for a limited period of time, and then allow others to benefit from it, too, and expand the public knowledge. The whole point of the copyright system was to benefit the "public". It doesn't say "the creators" in the Constitution.

The fact that you dismiss DJing and remixing so easily shows that you have zero understanding about why fair use even exists in the first place. I suggest going through these, and hopefully it will change your mind:

http://www.youtube.com/watch?v=83lhAlmp5vY

http://www.youtube.com/watch?v=xyf_0SMAsFA

http://www.youtube.com/watch?v=7Q25-S7jzgs

http://www.youtube.com/watch?v=zL2FOrx41N0

http://www.youtube.com/watch?v=yAmmtCJxJJY

http://www.youtube.com/watch?v=wq5D43qAsVg

And here's a law professor discussing some of my points above such as why copyright is not real property:

http://surprisinglyfree.com/2012/12/04/tom-bell/

So, your comment actually doesn't have much to do with mine. I am well aware that HN is full of copyright doves, and I respect that position (I feel like I'm going out of my way to be respectful of them). All your comment says is, "there's the opposite side of this copyright issue". Which is about as banal as telling me that water is wet.

If you can't defend a position, perhaps you shouldn't be taking it.

I mean look at what mtgx said: "Now. Why is the first point about the size of the industry relevant? Unless you're talking about their ability to bribe...I'm sorry..."lobby" Congress to pass the laws they like? That shouldn't happen anyway, regardless of their size. Laws should be passed on common sense and what's good for the people at large, not based on how big is your bank account."

This is an absurd response to what tptacek said. If mtgx wants to advocate some kind of political revolution that is fine, but it is not an appropriate response to what tptacek is saying about Republicans spending political capital to effect change.

From your quote about DJs your copyright values seem to be at the opposite side of openness (whatever the antonym of openness is), but having been reading and enjoying your comments for a while I suspect that comment might just be misguiding. I think I'd like to read more about what your values on copyright are.

[1] http://www.youtube.com/watch?v=xyf_0SMAsFA

It's very nice that you dragged this into HN's millionth debate on whether copyright is property or not (seriously, don't people ever get tired of the same rehashed arguments?). But this has nothing to do with tpacek's point. At least, that's how it looks to me.

Is an argument only valid when it's fresh? Is e no longer equal to mc^2 because so many people keep rehashing the same tired formula over and over again?

All I asked was whether people are tired of having the same argument over and over. The reason I asked that is because tptacek was specifically not doing so, and someone was dragging the conversation in that direction. You have to understand, people like tptacek, myself and others that have been on HN (or anywhere on the internet) for a while, have seen these exact threads, with these exact arguments, probably hundreds of times. At some point, you realize that no one is bringing anything new to the table. Then someone like tptacek comes along and does bring something new (and relevant) to the table, and he can't even do that without the same old debated coming up.

It's tiresome, is all I'm saying.

(For example, right now the committee’s Web page links to an op-ed advocating a flat 15% income tax. The President—any President, of either party—will sign a flat income tax into law some time after the Air Force trades its fighter jets for flying pigs.)

What's dubious about it? Isn't that the standard constitutional interpretation? I've always heard that it's supposed to work like a balance with incentives for creators on one side and public domain access on the other side, with the goal being to maximize invention and innovation.

Yes, you said that already. What you haven't said is why you believe this, except to cite an obscure (and not at all on point) comment on HN. I've done a little bit of searching, and it is easy to find extensive well-reasoned arguments that Khanna is spot on. e.g.:

http://open-spaces.com/article-v2n1-loren.php

I can't find a single coherent defense of the opposing position.

http://www.theamericanconservative.com/an-anti-ip-turn-for-t...

tzs is probably correct, but he was actually responding to this:

http://news.ycombinator.com/item?id=4862752

(His comment is here: http://news.ycombinator.com/item?id=4862752)

So long story short, even if tzs is correct I don't think that means that khanna is wrong, as his interpretation of the constitution doesn't depending on the 'sciences' part in any way. In fact, the way he is using 'sciences' seems to be consistent with the way tzs defines it.

I guess I still don't see how you're getting that. Khanna's criticism of the current copyright law is that it is being used to enrich creators rather than to maximize innovation. TZS's comment is about what can be copyrighted or patented, which Khanna never takes issue with.

What specifically do you think he is wrong about with regards to his interpretation of the constitution?

Here's the recent HN example of how idiotic these have gotten: http://news.ycombinator.com/item?id=4867216 (Movie Studios Ask Google To Censor Their Own Films, Facebook and Wikipedia (torrentfreak.com))

Section 506(c) [1]:

Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Section 512(f) [2]:

Misrepresentations. - Any person who knowingly materially misrepresents under this section —

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

[1]: http://www.copyright.gov/title17/92chap5.html#506

[2]: http://www.copyright.gov/title17/92chap5.html#512

Why does issuing a DMCA counter-notification not automatically trigger an investigation by the FBI?

Then there is the problem that DMCA is woefully inadequate to deal with Fair Use. Fair Use is often cited inappropriately to justify unauthorized copying that does not rightfully fall under Fair Use exceptions. However. DMCA makes no such distinction, and it is up to the entity hosting the allegedly-infringing content (i.e., the one to which the DMCA notice is sent) to determine whether the content is actually infringing. Even when an unauthorized copy of a work passes each of the four parts of Fair Use test with flying colors, the DMCA takedown requester is still not in violation of the law you cited. So there is no disincentive to issuing spurious take-down requests.

He was stupid, but a friend lost a load of legitimate, original work; he'd been using it as an external hard drive and sharing mechanism for his large project files.

Megaupload may have been tuned toward being a 'piracy product' but that does not mean it was anything other than user-generated piracy.

A few minutes later: Okay I just skimmed through the indictment again and I can't find what you're talking about. There's points 54 and 55 about how they didn't cancel the affiliate accounts of people that had uploaded infringing files, but I can't find anything about them actually arranging pirated material, or specifically encouraging its upload. Also point 69d says out that copyright-violating uploads were disqualified for rewards, though Megaupload rarely terminated the accounts.

This isn't reading-between-the-lines stuff. It's there in black and white.

If you uploaded a popular infringing file, you might get $100, or you might get disqualified.

If you uploaded a popular non-infringing file, you would definitely get $100.

Megaupload knew about some of the piracy. That does not mean they arranged it. They treated it like any other file.

This is called "Doing it right."

If Showtime would sell me a license to view their content, I wouldn't even be tempted to download it for free. Since they refuse to, it's going to be tough to work up any righteous dudgeon towards Schmitz and crew, especially when they go out of their way to adopt a customer-oriented approach.

Copyright is a government entitlement that we spun from whole cloth. Capitalism, on the other hand, comes naturally. You can't fight Mother Nature.

That's... novel.

As humans we've always had the concept of "property" to some extent, independent of government. That's not true of copyright law. That was something we invented in response to a specific need, but we invented it at a time when few/no other legal or intellectual tools were available. Copyright should never be treated as the sacred cow that property rights in general are, IMO.

This "natural rights" talk sounds like theology to me. From an anthropological perspective, humans invented intellectual property around the time it became useful, just as humans invented land ownership around the time that became useful. You can say the same about owning shares of a business or owning currency. These are exactly the artificial property rights you need for capitalism, and you need government for those rights, and hence capitalism, to actually work.

As does the idea that governments are a magical prerequisite for property rights.

... just as humans invented land ownership around the time that became useful.

Try taking a bone away from a dog, and my point might seem clearer.

What you need for capitalism is centrally enforced rights to things like land and corporate equity. That is not a simple extrapolation for protecting one's personal possessions any more than copyright is. And like copyright, they require a government.

I just finished a Law 101 class so I'm by no means an expert, but I think the above explains the theory behind why we need laws. Whether you think the theory is legitimate or not is up to you. When I started the course, I was surprised to learn that our entire legal system was designed around the concept of property rights.

The long-term political goal for the Republican Party is to win elections, praticularly the presidency.

Younger and tech-savvy voters tend to vote Democrat. This is a problem for Republicans because their voter base is literally dying. If they embraced copyright reform and pushed it as an issue, there may be a lot of votes in it for them. I would regard that as "politically effective".

Another point is that Holywood and the music industry massively support the Democrats. This would mean that if the Republicans adopted copyright reform as a policy, the Democrats would be in a bind: either adopt copyright reform too (and annoy the copyright industry, and give up all the money it gives) or don't (and annoy lots of Democrat-leaning voters). It's therefore a wedge issue that could be tactically effective for the Republicans.

It most be pretty obvious to intelligent, thoughtful Republicans that their current strategy -- of getting lots of white men to vote for them by exploiting prejudice against blacks, Hispanics, women, and gays -- has no future. So they're going to need a new one; copyright reform as part of an overall libertarian agenda might be part of it, and by shutting down the debate on the issue, the Republican Party is not doing itself any favours.

But I suspect it will take them one or two more election cycles before it sinks in to them that they need to do thinks differently.

I also think a tactic like this one could be extremely valuable to a rational Republican party. However, that doesn't mean the numbers work for this particular wedge. Thomas's point is that it isn't politically effective if it costs more than you make in profit and this particular policy position costs more than it's worth. You have to count the voters you gain versus the ones you lose, but you also have to worry about your cash flow.

Say this move netted the Republican party 4% of the vote. That would probably be enough to swing an election by itself. But if the move costs them $10B in funding, we have to weigh how much of that 4% the Democratic party can win back with a $10B advantage (or more, if Republican donors become Democratic donors). If they gain 4% of the voters but lose 2% due to cashflow problems they wind up in more-or-less the same place they were before. Following this example, it would have to gain them more like 6%+ to be worth the cost, and unless 6% of our country would swing on this one issue it's not likely.

If Thomas is right and the reforms weren't well-posed (I'm in no position to judge, but his point is well made) then it's a high-risk proposition of dubious value.

I wouldn't be surprised if they returned to this topic with a more modest proposal that doesn't anger all of their copyright-holding donors but still has a certain kind of appeal. But like you said, I would be surprised if it happened in the next four years—maybe in more like 6-8.

If I'm a photographer, do I need to pay extension fees on all my thousands of works? Does my neighbor who makes movies only need to pay one fee? What if I make a book containing my photographs -- is that just one free? Can Disney make one long 40 hour movie containing all their stuff together and count that as one work?

This is just a way of saying that the vast majority of individual photos don't represent a lot of creative work, and hence are a lot less worthy of protection. I would imagine that even a major photographer such as Ansel Adams wouldn't have more than a dozen photos earning good money more than a decade after the photo was first published.

My objection to steko's idea would be more that it is precisely the most important works that we are going to want to copy / create derivatives from, and yet these are precisely the works that will be the most able to perpetuate their protections.

Maybe you can declare the value of your IP and the government taxes you like 2% on it. I don't think this would really work but I'm tossing it out anyway.

But aside from that, I thought it was a fairly sensible move, precisely because the policies were a) pretty benign - they're not really going to hurt the interests of the content industry, b) neutral politically - they won't offend the conservative base, and c) naturally appealing to a constituency that's outside the typical G.O.P. base.

We do a good job appealing to married, religious, older, self-employed, or rural voters - if only we could run a competent campaign, we could potentially win on the strength of those constituencies alone. But that doesn't mean we can't find simple ways to appeal to other groups of voters that are consistent with (or at least don't contradict) conservative principles.

I don't expect 'the Redditor vote' to ever go Republican, but policies like this can shift it a couple of percent, lower donations, and reduce turnout - all quite-useful things.

The copyright debate isn't about one industry against another, it's about an industry versus the rights of individual citizens.

There was copyright renewal until 1992. It seems like a useful requirement. I'd support increasingly-onerous payments and renewal requirements -- maybe you get free copyright for 14-28 years, and then each year renewal after that costs an exponentially increasing amount of money.

That said, it's not sensible in terms of political capital; even if the Republican party decides to leap in the 21st century and propose radical reforms, there are bigger fish to fry in the next Congress, like tax/entitlement reform, immigration and so forth.

Of course I think we need a third party and my occasional hobby is drafting its manifesto, but that isn't exactly a short-term project either.

But of course, this memo doesn't just say "reform copyright terms". It also says, "we need to address the problem of DMCA abuse" (everyone in the content industry and lots of reasonable outsiders, although by no means most of them in Internet circles, would say the opposite --- that's it's so hard to address blatant outright "no copyright intended" infringement today that new vectors for suppressing piracy are needed) and "we need to enable DJs".

I like Girl Talk O.K., and "It Takes A Nation" is among my favorite albums, but the needs of DJs and remix artists are (a) not at the top of the national agenda even for copyright reform, and (b) mostly not a real problem given the economics of electronic/remix music today anyways, most of which isn't and, like most music, can't be compensated through traditional label-style recorded music sales anyways. It's not like DJs are being raided at live shows for their samples.

http://en.wikipedia.org/wiki/Members_of_the_111th_United_Sta...

http://www.crisp360.com/hosted-infographic/where-did-congres...

Khanna's specific proposal says:

A. Free 12-year copyright term for all new works – subject to registration, and all existing works are renewed as of the passage of the reform legislation. If passed today this would mean that new works have a copyright until 2024.

B. Elective-12 year renewal (cost 1% of all United States revenue from first 12 years – which equals all sales).

C. Elective-6 year renewal (cost 3% of revenue from the previous 12 years).

D.Elective-6 year renewal (cost 5% of revenue in previous 6 years).

E. Elective-10 year renewal (10% of ALL overall revenue – fees paid so far)

This proposal would terminate all copyright protection after 46 years.

Hello! Where do these numbers come from? Thanks.

   http://www.bea.gov/iTable/iTable.cfm?ReqID=5&step=1

Why settle on the pre-Bono copyright term? Why do you pick that instead of the original 14 years + 14 year renewal?

I think you've already decided you want copyright more or less the way it is, so you throw copyright doves a bone (breadcrumb?) by offering a single undo, and hope someone bites.

If you try to examine copyright law from basic principles, rather than from the perspective of the status quo, it becomes very tough to support even the pre-Bono copyright terms of life+50 years (personal) or 75 years (corporate), automatic, with registration only required to collect punitive damages, but not required to sue (harass) arguably legitimate fair users of content.

How does compulsory licensing work without capping license fees? Content creators have a monopoly. Forcing them to charge something for licensing does no good; they can set the price arbitrarily high.

If you cap the fees, you have to have a very complex formula so that you can arrive at a maximum license fee, given an arbitrary piece of intellectual property, and some arbitrary proposed licensed use of that IP.

Complex regulation like that invites abuse by anyone with the resources to lobby, so it becomes a lobbying contest rather than an attempted equitable settlement (how do you judge what's fair pricing for license of IP that's held by a monopoly?). If that wasn't bad enough, by capping fees you've effectively partially socialized the IP content industry: The free market and private industry would no longer be the primary drivers of the economics of IP.

I think everyone, even copyright doves like myself, fantasize about creating some incredibly desirable piece of IP that we can live off of for life. We just differ in the judgment of effectiveness, actual financial benefit, and collateral damage related to taking legal action against non-for-profit filesharers.

I am only addressing the political and legal problems here; not the practical, ethical, and technological enforcement problems, of which I think there are many.

Exactly, Republicans' strongest constituency (rich white guys[1]) don't care all that much, if at all, about details of copyrights, something that costs their households a few hundred dollars a year at most. On the other hand, people who care either already lean libertarian enough to vote red, or will never, ever even consider voting for a Republican.

A senator will get more votes going door to door than by pushing through any reform like that.

[1] http://anepigone.blogspot.com/2012/11/2012-electoral-maps-by...

But in another sense, I'm saying something more about the memo; not only that it was inappropriate for its venue, but that its policy goals were dumb. The Khanna memo would not have made it any less fraught to run a consumer Internet company. It would not have prevented the content industry from leveraging potential bankruptcy against infringers. Apart from reducing copyright terms, it seemed to consist mostly of extravagantly costly political expenditures in the service of cosmetic goals.

A bit of a decrease would be possible, from life+70 to life+50, but since the U.S. acceded to the Berne Convention, it's committed itself to terms no shorter than life+50. I think expanding statutory protections for fair use would probably be a more effective approach, although expanding compulsory licensing is an interesting possible alternative.

Where did you get that number? Americans spend that much on cable TV alone.

I think we can probably stipulate that information technology is a larger industry than entertainment and media; to the extent that it isn't, though, my point is stronger, right?

I'm supposed to care... why? Horse buggies, beanie babies, etc.

>really? spend political capital to modify regulations on a $100bn industry for... DJs?

The point should be whether it's for the overall public good, not just for some industry. Lets assume the $100bn industry just rolls over and dies tomorrow, ignore the losses of art and entertainment for a second. What would consumers do with a $100bn extra in their pockets? Would they spend it on buying electric cars thus jumpstarting them? Would they invest it thus making new companies easy to start? Would it kickstart alternative business models that would employ some of the unemployed? Perhaps not. But the fact that it hurts a particular $100bn industry by itself should not be a veto against such a measure, or else we would still be riding horse buggies.

>Ask instead, "was this a politically effective policy memo?" Were its goals in the 113th congress realistic? Were its arguments persuasive? Something like 35% of all congresspeople are lawyers, and this memo starts out with a highly dubious argument about the meaning of the copyright clause.

Just like in courtcases, even in Congress you need to push for the extremes in order to get something done. If you push for realistic measures, it is sure to get watered down to essentially nothing. It's like a salary negotiation, if you start with a reasonable number, HR will never agree to that and will themselves offer a very low offer which you will have trouble in getting it where you want. You need to shoot for 10 to 20% more than what is "reasonable" in order to have any hope of getting a reasonable offer. Same with the bill here. Have you not been keeping up with how bills are negotiated in Congress? If anything reasonable is suggested, the Hollywood lobbyists with bags of cash in their hand will water it down. Hollywood spends a ton of money on lobbying, and legislators are cash strapped at election time with candidates raising millions.

On the former point, about DJs: making it simpler for DJs to sell music with rights-encumbered samples isn't going to fundamentally change the economics of either the content industry or the consumer Internet. Fair use for DJs is an issue that applies to a subculture of a subculture of a subculture, and even more weirdly, is an issue that has mostly been metabolized by that subsubsubculture: Girl Talk, for instance, wasn't going to make a lot of money selling his currently non-salable tracks, because almost nobody makes money selling recorded music anymore.