Kind of Screwed - Andy Baio sued for 8-bit rendition of "Kind of Blue" photo

[djpretzel]

Yeah, you missed something. We agreed that Fair Use is a nice concept, but you said it's a necessary concept, and that it's nuance is part of it's strength. I explained that it's not necessary at all, that in fact it makes copyright law as a whole worse, and that it's nuance is what causes all of it's problems.

In the absence of Fair Use, any criticism, satire, parody, or educational utilization of ANY copyrighted material would be de facto infringement. Modern discourse would be severely crippled. If that's the type of clarity you want, you're welcome to it; sounds pretty crap to me. Yay for thinking things through to their logical outcome? Since you proposed no viable alternative, that's the implication.

This argument of, "In order for it to be protective, you need to go to court" is bullshit, and not how laws should work. I don't have to go to court to know if I'm speeding or not, and I shouldn't have to go to court to know whether I'm infringing on copyright or not.

It's protective without going to court. It's protecting us right now. Can you feel the warm tingle in your pants? That's Fair Use. It protects every single Wikipedia article you see with an image that falls under Fair Use. It's not really that a court case is required for it to be protective - we enjoy its protections every day, we take it for granted - it's just in order for it to be protective AGAINST LAWSUITS, yes, a court case is required. That's how the judicial system works. Your example about speeding tickets is actually factually incorrect, depending on the nature of the speeding it's either an infraction, in which case you don't need to go to court, or a violation, in which case you do. I think you're also way off the mark in that most copyright lawsuits are CIVIL matters, NOT criminal, and thus either take place in civil hearings or are settled, as in this case. It's not "The People vs. Dude Who Copied Kind of Blue Cover", it's between private parties, and so the type of elegant, speeding ticket simplicity you're so wanting & craving is more or less a pipe dream.

Listen.... do some reading. You're not awful at reasoning, but... read the above paragraph I just wrote like, five times over. Let it sink in. Marinate in its corrections. Do some basic Googling and what not. Due diligence.

[JackKieser]

OCR provides interpretive works, while giving full credit to the original composers and game creators, distributed for free. So, in fact, it is free advertising and creative arrangements available for no cost to anyone anywhere except the bandwidth, which we pay for via donations.

That's a very rosy description, to be sure. Much less rosy than "OCRemix is a site that allows anyone to create unauthorized derivative works that are then distributed online freely; this increases the worth of the OCR brand, allowing them to sell merchandise like T-shirts and hoodies. In addition to this, artists featured on the site increase their rapport and portfolio size with these songs, with some OCR featured artists actually making money from live shows. Finally, these free remixes take market share from legally released OSTs by creating higher quality or more interpretive versions of existing material without permission and without compensation."

Sounds less nice when put in corporate-speak, doesn't it? And, what's crazy is this corporate-speak version is still technically correct, as technically correct as your version, to be sure.

Despite Fair Use's ambiguity, it needs to be as such because there could be billions of cases that are different and not one universal Fair Use clause could cover them. Fifty couldn't. A thousand couldn't.

See, you see that as a positive. It's a very large negative as far as the law is concerned, however. Law is not perfect, and will never reach the point where all innocent men tried in court go free and all guilty men go to jail, but that's the goal. A good law will allow innocent people to go unpunished and guilty people to get fairly punished. Fair Use does not do that; Fair Use has a horrible courtroom track record because it's so indiscreet. Read Lawrence Lessig's Free Culture and you'll see many more instances of Fair Use's "nuance" screwing over well-intentioned people just trying to create. Fair Use kills more than it allows, by a long shot.

A much more clear and legally workable version would be something like "The copyright holder has exclusive rights over his work, including all transformative or derivative works, for 14 years, a non-renewable time period. After original copyright expires, the work is automatically placed in the public domain, and the original copyright holder holds no rights to the work." That's pretty damn clear, and it gives the original holder time to make his money, while giving the public clear rules for what they can and can't do.

Interestingly enough, this is how copyright law was originally designed; Fair Use, as a doctrine, wasn't placed into US copyright law until 1976, and copyright worked just fine until then. Although, I'd argue that modern copyright law should reduce the term of copyright to 5-7 years, since it's so much easier to make money now (with digital sales) and since art and technology move so much faster now. Hell, a case could be made for 3-5 years.

Case in point: the photographer was most likely in his right to sue for use. It sucks, and the guy is definitely a dick who lives in a 72-room mansion, but it was in his legal right most-likely. He'd need a very solid case for not licensing the art if he licensed all the music. If he inquired and the guy said he wouldn't license, it was really stupid to go ahead and do it anyway. It is possible that it just slipped his mind, but this is what happens when you don't cover every angle airtight. He was just unlucky enough to get a huge douchebag who owned the rights.

The same way the Westboro Baptist Church shows the worst side of Free Speech, so to does this show the worst abuse of defending copyright against allegations of Fair Use, and without the satisfaction of a trial. Sucks, and yes as I've said, Maisel is a total asshat, but yeah.

The difference here is tha Westboro shows the seedy underbelly of Free Speech; Free Speech is definitely not characterized by WBC; never has been, never will be. WBC is an exception, not a rule, and that vast majority of people do not act or speak like WBC.

Kind of Bloop's situation is very indicative of how the vast majority of Fair Use claims end up. Party A tries to make legitimate art, Party B sues, Party A thinks the art is legally protected, but either stops or settles anyway because it's not worth the risk. This is the rule, not the exception, to Fair Use proceedings. That's. A. Problem.

[zircon]

So, you're not really proposing a viable alternative to Fair Use. You're just suggesting a radical re-altering of copyright law by making it unambiguously stricter, but only for an extremely short period, after which it's just public domain. That's not going to happen.

Fair Use kills more than it allows, by a long shot.

Can you explain how, all other things being equal, Fair Use actually causes a net reduction on artistic output? Even if only 1 out of every 1,000 Fair Use cases was decided in favor of the party arguing Fair Use, that's still one more artistic work created than would have been created WITHOUT the doctrine.

[WillRock]

I think this is pretty sad tbh. Regardless of if its the copyright holders right, settling for that amount out of court is really bullshit imo. Might be the way the law works, but when people can potentially ruin others lives over some fair use clause or technicality which the accused party missed, then something is really wrong with the way the law works in that aspect. Like BGC said, if the guy had just asked for X amount to license the artwork, then thats totally cool by me. However, all this says to me is that the photographer is just a greedy asshole that will take unreasonable measures to get as much money out of any sucker who is unfortunate enough to get on the wrong side of the decidedly questionable laws of fair use, simply because he can.

[djpretzel]

I think this is pretty sad tbh. Regardless of if its the copyright holders right, settling for that amount out of court is really bullshit imo. Might be the way the law works, but when people can potentially ruin others lives over some fair use clause or technicality which the accused party missed, then something is really wrong with the way the law works in that aspect. Like BGC said, if the guy had just asked for X amount to license the artwork, then thats totally cool by me. However, all this says to me is that the photographer is just a greedy asshole that will take unreasonable measures to get as much money out of any sucker who is unfortunate enough to get on the wrong side of the decidedly questionable laws of fair use, simply because he can.

Yes... and no?

As mentioned, he's said he wouldn't have licensed it at all. For any amount, ostensibly. He loves the photo so damn much that he doesn't want commercial derivative works out there, at least of this fashion.

Just to be 110% clear, we're all saying that he simply should NOT have that right, as an artist? That NONE of us should have that right?

Regarding being greedy, I honestly doubt he gives a shit, if as also mentioned he's sitting on $50 million+ in real estate. $32K is chump change to people like that. Wouldn't that be nice?

So I just want to be clear... people saying he's a greedy asshole are saying that no artist, anywhere, should be able to exert control over commercial derivative works, and also that multimillionaires who settle for $32K are ecstatic about the goldmine of cash they're getting?

Something seems slightly off...

I'm not saying he's not an asshole - I really don't know that for sure. He could just be... peculiar. Eccentric. Aspergers. Who knows. Are Led Zeppelin assholes for not licensing their music for inclusion in Guitar Hero or Rock Band? Same as this photographer, they look down on their work being used in that context, PERIOD. At least so far. Shame, because I'd LOVE to play Kashmir or Black Dog in RB4. But I'm not prepared to label them assholes, and the situation seems comparable, albeit sans litigation.

I'm not saying he's not greedy, either... Perhaps, even with his millions in Real Estate holdings, he spends every waking hour trying to squeeze money out of anyone and everyone, and takes Scrooge McDuck money baths in his winnings. But it seems at least POSSIBLE he just really didn't want his work used this way, didn't much care about the money, wanted to prevent it from happening again, and authorized his lawyers to do what it took. I doubt he oversaw the process or micromanaged, but what do I know... maybe he was there at every step, cackling maniacally and rubbing his hands together in anticipation of the thousands of dollars to come...

Not admirable, because it's unnecessarily litigious. But I do wonder about the extreme certitude so many seem to have about the "greedy" and "asshole" labels... and I wonder if he were poor and Andy were rich, if we'd feel the same. Or if he were an individual and Andy were a corporation...

Am I missing something?

[PriZm]

Just to be 110% clear, we're all saying that he shouldn't have that right, as an artist? That none of us should have that right?

If you look at what people usually get up in arms about, the general sentiment seems to be that you should not have any right at all if you become rich/successful.

[Level 99]

If you look at what people usually get up in arms about, the general sentiment seems to be that you should not have any right at all if you become rich/successful.

Kind of. It is somewhat expected of more sucessful people to show a certain degree of philanthropy. Even if he was just "making an example" out of Andy, the fact that one is super rich and the other is not does paint things a bit of a nasty color.

[Malaki-LEGEND.sys]

So Jack if I'm understanding this correctly, you want to promote creativity by getting rid of the law that prevents copying unfairly?

[JackKieser]

In the absence of Fair Use, any criticism, satire, parody, or educational utilization of ANY copyrighted material would be de facto infringement. Modern discourse would be severely crippled. If that's the type of clarity you want, you're welcome to it; sounds pretty crap to me. Yay for thinking things through to their logical outcome? Since you proposed no viable alternative, that's the implication.

Damn straight, that's the implication. What are we, socialists? Come up with your own ideas, commie.

What you seem to be missing it how far-reaching all of this is. We're already part of a permission culture; the DMCA and related modern international copyright laws have ensured that. Fair Use is so poorly worded that it's no better than the common law equivalent we used before '76. With the exception of "obvious" Fair Use, like parody or criticism (a la The Daily Show), few people actually know what Fair Use is; this situation is a perfect example, as is Lessig's example of a Clint Eastwood documentary (read: Free Culture, linked above), and countless others.

In addition, copyright law is getting tighter and tighter as the digital era goes on. The logical result, as you already said, is a permission culture. Political commentary, news commentary, and comedic parody are so ingrained in our culture that no law would be able to take them away; it's like worrying that one day Congress is going to pass a bill that makes us a dictatorship: if you're legitimately worried about that, we have larger problems. Fair Use, however, will be weakened so much that those are the only protected forms of Fair Use; digital copyright and new international copyright is ensuring that (for instance, the new rules to make lip-synching on YouTube illegal).

We already have a problem; the question is whether you want to allow it to get worse, or fix it now.

It's protective without going to court.

Tell that to the above Clint Eastwood documentary people.

It's protecting us right now.

Which, by Liontamer's own admission a few threads ago, was shaky, at best. Fair Use, by NO means, is guaranteed protection for OCR.

Can you feel the warm tingle in your pants? That's Fair Use.

No, that's pornography and trolling. ^_-

It protects every single Wikipedia article you see with an image that falls under Fair Use. It's not really that a court case is required for it to be protective - we enjoy its protections every day, we take it for granted - it's just in order for it to be protective AGAINST LAWSUITS, yes, a court case is required. That's how the judicial system works.

Then, we have two different definitions of "protective". Fair Use isn't "protective" out-of-court unless it stops the lawsuit from happening at all, and there are countless examples of transformative fan-projects of various kinds being shut down all over the internet because Fair Use wasn't clear enough to tell the people getting sued before they even started that they would be breaking the law (or the people bringing suit that the suit would be frivolous). I'm concerned with reducing frivolous lawsuits, which clog the legal system, shift our focus away from legit cases that judges SHOULD be presiding over, and raise general legal costs (see: medical malpractice suits). If the law isn't clear enough to prevent going to court in the first place, it needs to be re-written; this, of course, precludes morons who take people to court anyway just because.

Your example about speeding tickets is actually factually incorrect, depending on the nature of the speeding it's either an infraction, in which case you don't need to go to court, or a violation, in which case you do.

If the speed limit is 60, either I'm going <=60 mph, in which case I'm ok, or I'm going >60 mph, in which case I'm speeding. What the officer decides to do with me (infract, warn, whatever) is his buisness; if I have an on-board computer built into my car that logs my speed by time / geo-position, I can prove to the officer whether or not I'm speeding. If he decides to ticket me and I have to go to court anyway, that's his fault, not the law's.

I think you're also way off the mark in that most copyright lawsuits are CIVIL matters, NOT criminal, and thus either take place in civil hearings or are settled, as in this case. It's not "The People vs. Dude Who Copied Kind of Blue Cover", it's between private parties, and so the type of elegant, speeding ticket simplicity you're so wanting & craving for is more or less a pipe dream.

I already gave you an example (although it posted after you, so it's ok that you missed it): "The copyright holder has exclusive rights over his work, including all transformative or derivative works, for 14 years, a non-renewable time period. After original copyright expires, the work is automatically placed in the public domain, and the original copyright holder holds no rights to the work." Clear. Ok, you want to add in parody / political criticism / new as exceptions? That's fairly easy to word, too: "Exceptions to the above law include works of comedic parody, non-opinion based news reporting, and commentary of copyrighted political works." Bam.

Listen.... do some reading. You're not awful at reasoning, but... read the above paragraph I just wrote like, five times over. Let it sink in. Marinate in its corrections. Do some basic Googling and what not. Due diligence.

Do you know how many links / threads / articles I've posted in copyright threads on OCR? No one reads a damn thing I link to. I assure you, I'm not the one who doesn't do his due diligence. When someone links to something, I read it; I won't, however, do someone else's research for him. If you want to make an argument, make it; don't expect me to do your research and back up your own claims for you, though. If you have something you want me to read, link to it and I'll respond.

[psychowolf]

tl;dr

I smell trolling

Your calling the creator of this site a commie?

...yeah... i'm staying out of this shit

Its a shame what happened and all but this argument is getting nowhere

Arguing on the internet will get you far in life let me tell you. :U

[Liontamer]

It's protecting us right now.

Which, by Liontamer's own admission a few threads ago, was shaky, at best. Fair Use, by NO means, is guaranteed protection for OCR.

I didn't say it was "shaky," I said I believe what we do here falls under fair use, and also made clear I'm not a lawyer and won't pretend to have the authority of one.

[psychowolf]

"if I have an on-board computer built into my car that logs my speed by time / geo-position, I can prove to the officer whether or not I'm speeding. If he decides to ticket me and I have to go to court anyway, that's his fault, not the law's."

....yeaahhhh i dont know shit about the law but i know that isn't right due to the fact machines aren't 100 percent correct every time.

And the matter of personal tampering seeing as the machine is of your own and therefore can be tampered with.

Either way you lost me there dude i stopped paying attention to you.

[herograw]

It's been a while since I saw someone miss the point as hard, and as thoroughly as Jack. Well done.

[The Damned]

It's been a while since I saw someone miss the point as hard, and as thoroughly as Jack. Well done.

I take it you weren't around for the video game economics thread, then. That was just... fuck, it was magical.

He was wrong on all counts, but it was still magical.

[Malaki-LEGEND.sys]

I take it you weren't around for the video game economics thread, then. That was just... fuck, it was magical.

He was wrong on all counts, but it was still magical.

Are "I was there for the great Video Games Economy debate..." badges in order?

[The Damned]

It wasn't a debate.

It was more like "Jack gets his points shot down repeatedly by people that actually know what they're talking about while ignoring anything that counters his arguments".

And I don't think it would be a badge. More like... some sort of a piece of sticky-note paper. Because badges would imply a certain amount of importance regarding the event itself.

[Malaki-LEGEND.sys]

Well admittedly I was trying to nice about it.

It was pretty entertaining to watch though.

[Monobrow]

Well let's not turn this into a "crucify one person" thread and let the posters speak for themselves. The side commentary isn't really necessary you know?

I thought it was at least interesting to read.

[PROTO·DOME]

I'll just leave this absolutely unique creation here

You've completely ruined my artwork. You have insulted me, Dish, halc and everyone at Overclocked Remix.

I'm suing.

[Monobrow]

How dare you WARP MY PHOTO until it is nothing more than a REPRESENTATION of my WORK which is actually a REPRESENTATION of REALITY seen through a glass lens!

[The Phalanx]

No one reads a damn thing I link to.

That is entirely due to you being a smarmy asshole who can't prove his point without grossly insulting anyone and everyone around you.

And I don't think it would be a badge. More like... some sort of a piece of sticky-note paper

A soap box would be more fitting.

[The Damned]

How the fuck would you wear a soapbox? If it's one of the old fashioned ones, it's big and heavy, and full of splinters.

If it's a modern one, then it's just cardboard. Not even the good stuff, like corrugated cardboard, but that thin flimsy stuff.

It's like I'm taking crazy pills! None of this makes sense!

[DarkeSword]

Try to stay on-topic folks.

[JackKieser]

Just to be 110% clear, we're all saying that he simply should NOT have that right, as an artist? That NONE of us should have that right?

If you look at what people usually get up in arms about, the general sentiment seems to be that you should not have any right at all if you become rich/successful.

Well, personally, I would be ok with saying that no one should have that right after a preset, non-renewable time period. Look, I'm all for artists thinking they're the shit, but the whole concept of the public domain is essentially "all of us is better than one of us". Yes, Led Zepplin made some awesome music. They are not gods. Someone can make their music better.

If that makes them butthurt, then fuck them.

Jay Maisel, I'm sure, is a great photographer. As far as I'm concerned, the Kind of Bloop album cover is a better picture. Some people will agree, some people won't. That's cool. But part of what's causing such a problem here is the cognitive dissonance between the competing thoughts of "well, artists get exclusive rights" and "well, we're part of a free society where people can make things" with a dash of "well, no idea is really an original one / everything that is thought has been thought before". You can't have it both ways, of course, and as the YouTube generation of re-tweeters, re-bloggers, re-posters, and yes, remixers grows up, this kind of dissonance will continue because, at it's base level, you can't say that artists have exclusive rights in the same breath that you use to claim the importance of public domain.

At some point, artist's "rights" end and public domain begins. Besides, no one ever definitively proved that artists deserve the exclusive rights they now enjoy. Copyright, shockingly enough, didn't even affect them until recent history; US law originally only applied to the "sciences and useful arts", but in 1700's speak, "useful arts" meant "artisan crafts", such as metalworking or weaving. You know, making useful shit.

[zircon]

This is why it's pointless even discussing copyright with you at all, Jack. You don't fundamentally believe that creators deserve exclusive rights, as you just said. I was going to make this point earlier, but I figured it would be more clear if you stated your own extremist view. Nobody needs to "definitively prove" that artists deserve exclusive rights because we shouldn't have to. People are fundamentally entitled to the fruit of their labor. Saying otherwise is literally either absolute communism or absolute totalitarianism.

That isn't to say that there aren't plenty of cases where the individual must sacrifice something for the good of society (namely, income -> taxes) but in these cases, the question isn't "Why should the government let you keep any money at all?" but rather "Why should the government take 25% of your income?"

Copyright, shockingly enough, didn't even affect them until recent history; US law originally only applied to the "sciences and useful arts", but in 1700's speak, "useful arts" meant "artisan crafts", such as metalworking or weaving. You know, making useful shit.

Just because the original scope of copyright was different 300 years ago doesn't make it necessarily better. That's poor logic. But let's assume art (in the sense of paintings, music, etc.) doesn't qualify as "useful shit". By definition then, "useful" things are more useful to society than things that are not-useful. In that case, how does it make any sense at all to put MORE copyright protection on the "useful" stuff? You've made the argument repeatedly that restrictive copyright laws are bad for society (etc) by stifling innovation and derivative works, yet you also seem to think that only "useful" stuff deserves copyright... so essentially, you're saying that the things that could benefit society the most should be most restricted.

That is stupid. If anything, if art really doesn't matter or isn't useful to society, then society shouldn't care if a creator has 50, 100, or even 500 years of copyright protection. It's of no value to society, so there is (by definition) no harm in allowing the creator total control.