Date: Fri, 04 Jul 2008 01:38:21 -0400
From: "Mike B." <omni at omniphile.com>
To: WSFA members <WSFAlist at KeithLynch.net>
Subject: [WSFA] Re: Ever use YouTube?
Reply-To: WSFA members <WSFAlist at KeithLynch.net>

lees103 at verizon.net wrote:
>     The current US legal system allows judges to appoint qualified experts
> to advise them when the judges realize that they're out of their depth.  The
> generic term is "special masters."  The special master is supposed to be
> familiar with both law and functional expertise.  He/She boils the issues
> down for the judge and the judge can then make an intelligent decision.

Well, hopefully...if the judge realizes they are out of their depth and
doesn't let ego get in the way.

Even so, at best you are in a "pointy-haired boss" situation...i.e.
similar to what happens in engineering organizations when the engineers,
who understand the problem very well, are trying to explain it to the
decision-maker (manager), who doesn't always (usually?) have the
background to really understand things, even when explained carefully.
Poor decisions are common.

>     I personally think that the attitude that it's easier to get rich by
> litigating rather than by inventing and building is more dangerous than
> judges who don't recognize their own limitations.

Neither is good, and it's arguable which is more dangerous.  They can be
synergistic...

 > Most legal systems allow litigants to appeal unjust results.

If they can afford it...we have the best justice money can buy.

>     Not sure what Mike's getting at when he talks about rethinking
> copyrights.  The idea of having copyrights and like limited monopolies in
> other areas is to encourage people to develop ideas because they will have
> the exclusive right to exploit the idea for a limited period of time.
> Society gets the benefit of the idea and the developer gets the money.
> After a time, the idea becomes freeware and anyone can exploit it.  If any
> idea became freeware the instant it was articulated in public, a lot of
> people would say "Why bother publishing?  I'll keep it to myself and gain an
> advantage that way.  The advantage that I will gain is not as good as the
> advantage that I would gain if I could sell copies without fear of stealing
> but it's better than having others help themselves."

I think you are thinking of patents, not copyrights.  Patents are good,
when done right....the judge problem comes up with patent examiners
sometimes too.  I've read some really bad patents lately...

Copyrights don't let you protect an idea...only a particular expression
of an idea.  Copyrights are there to encourage people to create new
works (written, painted, photographed, sung, etc.) by letting them get
all the profit from the sale of the work for a period of time.  The key
ideas here are "encourage creation of" and the method of doing this:
"profit from creation of".

The problem is, that that paradigm worked fine when it required a
serious investment of time, money or both to create a copy of a work,
and it was easy to trace who had made the copy due to the infrastructure
requirements (printing presses, labs, studios, etc.) and distribution
methods (mail, trucks and stores, theaters, galleries).  Copyright law
makes it illegal to create copies without license, and since it's easy
to find the folks doing it and sue them, the law inhibits infringement
and the system works.  The risk of getting caught, and the cost of
getting caught, generally outweighs any profit to be made by
infringement, so infringement is relatively rare (though not unknown).

Digital reproduction methods and the Internet have broken that model.
It is now trivially easy for almost anyone to make a copy of most works,
with almost no investment of time or money, and distribution can be done
anonymously if desired, from almost anywhere in the world.  It is now
easy to infringe, and very hard (impossible?) to stop this, or even
detect it without giving up all of our civil rights (and allowing random
raids on people, homes and businesses, requiring monitoring systems in
all devices, etc.).  In some cases you can sue a few folks who weren't
very smart about how they went about it and maybe scare some others
(that's the RIAA method...is it working?), but you won't stop
infringement, or even slow it much that way.  The current paradigm for
how to encourage creation of works is broken and copyright law is, while
not pointless, nearly useless in most cases other than major organized
infringement situations (and not always there...see: "China").

We need a new method of encouraging folks to create works, assuming we
still want works to be created (I do!).  Since Star Trek's economic
system hasn't been invented yet, where fame alone might be enough, the
best way to encourage people is with money...so how do you get creators
paid, if you can't stop people from making copies?

This is a good area for discussion.

At the moment I can see at least one method...the same one used by the
broadcast industry for the last 60 years or so, and used by movie
theaters for extra income for at least a couple of decades: paid product
placements.

If Hersheys pays you for each person who sees your video that includes
someone eating a Hershey Bar, you won't mind people making and
distributing copies of your video...in fact you'd encourage it.  Please!
  Make copies!  Give them to everyone you know!  The more the monier!
Same goes for stories, songs, pictures, or anything else.

Rick Sternbach put a bottle of Tang in his cover painting of Venus a
while back...I suspect he didn't get paid for that product placement,
but maybe he should have arranged for that?

This plan turns the easy copy and cheap distribution "problems" of the
Internet/digital world into advantages.  Furthermore, the same
technology can make tracking copies easy too, so you'll know how much
you should get paid for your "views".  I won't say how...it might be
patentable... ;-)

-- Mike B.