Funniest/Most Insightful Comments Of The Week At Techdirt

Once in a while, when a thread stays heavily active, our top comments of the week actually come from the previous week's post - and this is one of those occasions. Two of our winners (one on each side) come in response to our post about Nina Paley's talk on copyright as a form of brain damage. Naturally this drew come kickback and vitriol, and Karl won first place for insightful by responding at length to one of the detractors:

I think that Nina Paley sort of is on par with Larry Leesig [sic], two people who have convinced themselves of a truly extreme viewpoint on copyright.

First of all: the viewpoints of Nina Paley and Larry Lessig are not the same at all. Lessig is not a copyright abolitionist (no matter what copyright maximalists would have you believe).

Second of all: Paley, at least, is convinced of her view, because copyright has directly interfered with her creation of artistic works. She didn't "convince herself," she was convinced because working within the copyright system convinced her that it was wrong. It was the copyright system itself that convinced her.

Does copyright stop the flow of information? Generally no, because we still discuss what is copyright anyway (did you see the blahblach movie or did you real the new so-and-so book?).

Copyright law absolutely interferes with people who are trying to utilize copyrighted works for their own creation, and/or people who are trying to utilize copyrighted works for the purpose of general dissemination to the public. And since this sort of "collective conversation" is much of which drives culture, yes, it does stop the flow of information (or at the very least, the flow of expression).

It doesn't stop ordinary humans from talking about the works, that is true; it does stop ordinary humans from using the actual expressive works (by e.g. sharing a sample on YouTube). Or it would, if anyone cared whether they were infringing or not.

Except in exceptional cases, nobody wants to use copyright to stop distribution, they want to use it as a legal basis under which distribution can occur.

Plenty of people want to use copyright to stop distribution. There are plenty of copyright holders who outright state, often by writing Congress, that they should have the right to stop distribution for content-based reasons. Here's just one example:

Artists can, and should continue to be able to, deny a use that they do not agree with. For one, an artist should be able to turn down uses in connection with messages that the artist finds objectionable. [...]

For example, Melissa Etheridge is a known lesbian and animal rights activist. A compulsory license would allow someone to remix or sample her music into a new work filled with homophobic epithets, and she could not say "no". In the same way, a compulsory license would allow someone to remix or sample music by Ted Nugent, noted gun ownership advocate, for a song promoting stricter gun control without Nugent's pelmission.

- LaPolt Law, P.C. and Steven Tyler comment to the USPTO

Were this done directly by the government, this would be called "content-based censorship."

Also, the mere fact that copyright can only be licensed by those who can afford the license (however much it may be) means that copyright stops distribution. It doesn't stop all distribution, of course - but it does limit distribution to those with enough money to enter into deals with corporate rights holders.

It would be incredibly difficult (if not impossible) for artists to be able to get compensation for their works if they had no legal standing.

"Legal standing" does not mean "copyright." There are plenty of ways for artists to get compensated without holding the copyright to their works. Obviously, crowdfunding is one example, but even historically, the vast majority of artists did not hold the copyright to their works - think people who are work-for-hire, like graphic designers, actors, studio artists, etc. In fact, most artists have always been paid more if they were work-for-hire than if they signed away their copyrights for a commission (a.k.a. royalties).

The idea that copyright gives creators a legal right to leverage against publishers is a good one, in theory, but in practice it's not as significant as people think. For one thing, even without copyright, artists would always have "first publication" rights, and those can be (and usually are) more important than their post-publication monopoly rights.

For another thing, the fact that publishers (including labels, studios, etc.) are assigned the copyrights to thousands or millions of works, mean that they tend to have collective monopolies over entire markets. Aside from being destructive to artistic markets in general, this significantly reduces the bargaining power of creators within those markets.

So, while copyright may give creators rights, in order to bargain with copyright assignees, it eventually makes those barganing rights nearly inconsequential.

The result is what you see in the modern piracy economy, the only artists thriving are those who are willing to forego the creation process and instead work on the cult of celebrity, which pays far more. It's a stupid system where people pay more for a "personal appearance" of celebutards like a Kardashian than they do for a musician or writer.

This is exactly what has been happening since celberety existed. It has zero to do with a "modern piracy economy," whatever that is supposed to be.

Nina's problem I think is that she has never been on the other side with a product people widely pirate

Nina has, and does, encourage people to pirate her product. And they do - widely.

If there's anyone who has "been on the other side," it's her.

If all that effort went instead into artistic creation... opportunity costs, right?

Ironically, you're making her point for her. She - like many, many artists (especially professional creators) - spent far too much time considering if her use of a work is allowed under copyright law. The self-censorship, plus the multi-year legal wrangling with copyright holders, the hundreds of thousands of dollars required to license songs from the 20's and 30's, etc... all of these created "opportunity costs" that she didn't choose.

It was only by completely ignoring copyright law that she was able to put that effort into artistic creation.

She went over this later in the video, especially the part before she showed "This Land Is Mine." I suppose you didn't make it that far.

For second place, we head to our post about the DOJ's latest tactics for forcing Apple to decrypt iPhones, which included the "how could one iPhone be such a big deal?" argument. That One Guy took second place by addressing that argument:

One phone on it's own may not do much, but the ripple effects could be enormous, as the damage to Apple's reputation in protecting their customers' privacy would be significant. If people know that the encryption set up by a company can be compromised any time the government comes asking the company, then anyone interested in security that actually works is liable to start looking elsewhere.

And it's not like the government doesn't know what one action, or one person can do to the reputation of a large company, or government. Just see their mad scramble for damage control when a whistleblower leaks some of their actions, and the resulting blow to their reputation and credibility.

Even if Feng knew the passcode, attempting to compel him to unlock the Target Phone would not provide an adequate alternative to an order directed to Apple. Compelled decryption raises significant Fifth Amendment issues and creates risk that the fruits of the compelled decryption could be suppressed. See, e.g., In re Grand Jury Subp. Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1349 (11th Cir. 2012) (holding that the Fifth Amendment protects a defendant's refusal to decrypt electronic storage media). The government should not be required to pursue a path for obtaining evidence that might lead to suppression.

This? This is all sorts of nasty, in large part because of what it reveals about the ones making the argument. They know that if they were actually doing what they should be doing, that is serving the warrant to the owner of the device, there would be a good chance that any resulting evidence from compelling the owner to decrypt the device would be tossed out as having violated the person's Fifth Amendment rights.

They flat out admit this.

And yet, despite admitting that forced decryption would likely be treated as a fifth amendment violation, they instead choose to completely ignore the fifth amendment, and force someone else to do the decryption, so that they can use the resulting evidence, hands squeaky clean.

They're not even pretending to respect the constitutional rights of the public, they're flat out admitting that they see those 'rights' as obstacles to be worked around when they can't be ignored outright.

For editor's choice on the insightful side, we start out on our post about James Comey's endorsement of the so-called Ferguson Effect and the "War on Cops" narrative. One anonymous commenter neatly explained that this supposed war doesn't exist, and they know that:

We don't have a War on Cops. We have War on Police Corruption. That's what really scares them.

Next, after a problematic Australian right-to-be-forgotten ruling that deemed Google to be a publisher, several commenters tried applying the ruling's logic to other situations, with DB supplying one of the most salient comparisons:

I would hate to be delivering newspapers in the modern age. Under this theory, I could be sued over any story. I was an essential part in delivering it, even if I couldn't possibly evaluate the legal standing of what countless other people wrote.

But over on the funny side, we kick things with an even more amusing example of that contradiction, from Torrey Hoffman who takes first place for funny:

Now the Australian Court is guilty too...

Oops! They just published a judgement which contained all the defamatory information!

Now they're guilty too!

For second place, we return to last week's post about Nina Paley, where one detractor put forth the "very simple basis" of copyright as "I MADE IT, IT'S MINE" - prompting one anonymous commenter to relent and agree:

You nailed it: the very simple basis of copyright is childishness.

For editor's choice on the funny side, we start out on our post about UK Prime Minister David Cameron, where another anonymous commenter noted a detail with potentially wide-ranging implications:

You missed the newsworthy bit: David Cameron read the Daily Mail, this explains so much...

And finally we've got an editor's choice from one of our Daily Dirt posts, discussing the likely future of genetically modified dogs. Yet another anonymous commenter had an idea about where to set our sights on that front:

Genetically engineered, customized dogs? I say we give 'em all thumbs so they can finally play poker for real.

That's all for this week, folks!

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