EU commisioner proposes to extend copyright for performing artists to 95 years.

Posted in copyright, freedom, ifpi, riaa on February 15, 2008 by qplqyer

And yet another copyright post.

Today the news was announced that an EU commissioner might consider extending copyright for “performing artists” to 95 years. It was assured that this was not for the known and rich artists, but to support the anonymous, unknown, “session musicians” that played on recordings that later became hits. According to the EU commisioner, it would be necessary to extend the copyright given to these artists since people live longer and therefore would otherwise have no income from successful songs that they record in their late teens, which is most of the time their only pension.

Now, first of all there are absolutely no reasons to give session musicians copyrights. Copyright is (or better: was supposed to be) a balance between artists and the society, where a monopoly is given to the artist for a limited period of time (this is probably not totally correct regarding the European interpretation; according to Lawrence Lessig in “Free Culture”, copyright in the EU is regarded as a natural right, not as a trade-off between artists and society, but I find that a resentful thought) to give an incentive to create. All fair and square one would think, since this prohibits an evil company from taking a song from someone and producing it much cheaper, therefore hindering that person for profiting from his own works.

But, copyright should never be allowed to exists until infinity: music and other works should be released as a public good once enough time has been given to the artist to be able to gain an income(*) from his creation. After this work enters the “public domain” (i.e. is free for anyone to copy, alter, etc) the artist can still make money from his work by performing, selling the number through his website etc. (he will face competition, but that is only in the best interest of society, since this results in lower prices, without leading to bankruptcy of the artist, unless he chooses to never release a number again. But if the artist never releases a number again, the copyright did not succeed in creating an incentive to create, rather it succeeded in creating a one-time incentive and thus this is bad for society).

(*) Note that I did not say the word “profit” here. In my opinion, it is not a task of society to make sure someone makes a profit. Rather, it is the task of society to make sure artists can cover their living, therefore a “breaking-even” should be necessary. In fact, maybe copyright should be abandoned once the artist has surely made a break-even.

Now that we have gotten out of the way what copyright actually means, consider the case of session musicians. These are people who get paid to play songs other persons have written. Either on a record or in a performance. Knowing what copyright is supposed to do (creating an incentive to create by allowing one to not go bankrupt while pursuing a career as an artist), why would any session musician need copyright? If one wants to profit from the fact that he played in a successful number, he can change the contract he signed regarding his performance to include a fee for every record sold. Furthermore, if a number is successful, then he probably can be asked to accompany the performer on the road, hence gathering an income that way.

So, any session musician can get an income from any number he played and get a higher income if the number he played on was successful. Why would they need a copyright then? I surely cannot provide any answer to that, since any reason for introducing the burden of copyright can be solved by means of a contract.

Furthermore, this extension is supposed to give session musicians a pension, since royalties are most of the time their only income. Now let us pause for a moment. There are probably tens of thousands of session musicians. Most of them will never have played on a successful number and hence will never have made big money from their royalties. So these artists will not benefit from any copyright extension as well. It can be assumed that these musicians will have made sure to have a pension when they are old, through means of some pension scheme, savings and other incomes. Then, why would we have to place an extra burden on society for a monopoly (tax even) that only benefits the musicians that would not need this pension the most? Or to give a monopoly to persons who should have ensured their pension during their career instead of counting on an extension further on?

The EU commisioner tries to obscure the fact that these copyrights were only introduced a couple of years ago by stating that people live longer now, making it seem as if he just wants to update an old law to come to terms with the current state of affairs, but who can honestly believe that the drafters of the former law did not know that people ten years from then would all of a sudden live longer than 50 years? And if I would be wrong, and there were laws for these musicians before the EU directive that I know of, then these laws can maximally only have been drafted when the concept of a session musician on recordings has occurred, which is in the 20th century, when the recording industry and recordings emerged. I do think that people back then had the same problem of a pension than they did now (if not earlier, since they started working on an earlier age).

The only reason I can think of why this copyright extension would be needed, apart from greed from the session musicians of those records, (but it is pure speculation) is that the recording industry, in all of their greed, persuaded a lot of sessian musicians in their late teens to play on a record without a contract, without a big renumeration, but with the guarantee of royalties. Session musicians would sign a contract in which they signed away all of their copyrights to the record company and so the record company could make a recording at a very low rate, only having to pay people for a recording if a song was successful.

But is that a good reason to extend this copyright? This again shows that these copyrights for session musicians do not benefit the session musicians, but, as in the case of regular copyright, only the recording industry wins from this. And again, if this were the case, then these people knew long beforehand that they would not get royalties from this 50 years from then. So they should have made sure to build up a pension.

So, instead of extending this copyright, we should be abandoning it. Its only use is of a tool for the record industry to pay lower wages to session musicians, but all of this can be done with contracts instead of the burden of copyright. Who wants to try and make this clear to some other (or this) EU commisioner and change this absurd race for copyright extensions we are seeing?

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Why copyright should never exceed an author’s lifespan.

Posted in copyright, freedom, ifpi, mpaa, riaa on February 4, 2008 by qplqyer

Whilst reading the excellent book “Free Culture” by Lawrence Lessig, I came across a paragraph where he briefly mentioned a possible reason as to why copyright would need to exceed the lifespan of an author. The reason that was mentioned (not put in stone, Lessig did not say it was a necessity, but only mentioned it in passing) was to give an income to the widow of an artist.

This is however an argument that holds no water at all. Copyright is a provision that a society gives to an author to ensure they can have an income, this means royalties stemming from copyright should be seen as a paycheck given by society to the author. If copyright is a paycheck given by society however, then copyright should end when a person dies, since I don’t believe any widow gets a paycheck from the employer of her husband when her husband dies. Pensions were designed to give people who cannot work due to their age still some form of income and it is a pension that the widow should receive as a gift from society, not copyright. Furthermore, if the widow does not want to live off of a pension alone, then, like any other person that works for his or her money, it is the artist itself that should create savings, created out of royalties or other work, to pass on to his offspring and/or widow when he passes away. It is not society (i.e. the employer of the artist) that should carry the burden of the siblings and spouses of these persons after his life, but the artist himself. Exactly as any other person.

There is simply no reason to differentiate between artists and other persons in this case, because the only discrepancy that existed between the income of regular persons and artists was solved by introducing the copyright for this person.

Likewise, there is no reason that when a person receives pension from society, he would still need to receive royalties from works and in this way getting paid double by society. This is the reason why copyright should also be limited in time, shorter than the average lifespan of an author. We can consider a renewal term however, which though should have a negative impact on the pension a person can receive as to make sure only works that will still have an economic value get a renewal of copyright. The same could hold for widows of artists.

IFPI wants content-filtering

Posted in audiblemagic, censorship, copyright, eff, freedom, ifpi, mpaa, riaa with tags , , , , , , , on November 28, 2007 by qplqyer

Today I read that the IFPI, once again, is pressing the EU to make internet service providers (ISPs) block websites, protocols and content that infringes their copyrights. They propose three possible solutions, described in detail at http://www.eff.org/files/filenode/effeurope/ifpi_filtering_memo.pdf

I present to you the following breakdown which shows how each and every one of the so called “solutions that are not overly burdensome, nor expensive and that do not cause problems for regular service of ISPs” in fact only do those three things and do not solve the copyright-infringement problem in any way. It goes even further than that, in that these measures would actually block users from exercising the fair-use rights they were given in copyright law. Here are the details:

    Content filtering:

Content filtering, such as proposed by the IFPI, would be implemented by placing a device in the network of the ISP that checks all traffic for infringing content.

First, I would like to make some technical objections. The backbone of an ISP obviously has a bandwidth that has to be much bigger than those provided to their customers. They can generate these speeds through the way the internet (and networks in general) work: when deciding where some piece of information on the network (a packet) has to go, only a small part of this packet (the header) has to be looked at. What lies deeper in this packet is not necessary for sending the packet to the right computer, but is of use to the receiving computer (this contains the real data and is much bigger than the header). What the IFPI proposes is to insert a device in this network that also looks at the data contained in the packet, instead of only looking at the header. It is important to note that looking at the data in the packet takes up a lot more time than only looking at the header of a packet (which is what a switch and a router does). This does not impact network speed, since these devices will not be responsible for sending the packets to their destination. These devices do however insert data into the network, which might have an impact on the speed of the network.

Furthermore, data is split up in different packets, which means that only a small part of a song will be contained in one packet. If any device would reliably want to conclude that a certain song is being downloaded, it would have to keep track of a number of packets that all come from a certain server and go to a certain computer (this is called a stream). This would mean keeping track of every connection of every client of the ISP, something which is impossible to store in memory due to the amount of connections at any given time, and thus storing parts of these connections on a disk to compare with the previously captured traffic. Due to disks being very slow, and especially much slower than network traffic, it does not seem possible that any device might reliably inspect the traffic, since the slow disk will always hinder the speed of the copyright check. This is not the only problem with speed: searching a database can take a lot of time, especially if it as big as a database with all copyrighted works that exist. After a full stream with enough data is captured, this device would still have to search this database (again this operation is also limited to the speed of a disk!) to see if it matches any fingerprint.

What is even more so surprising is that current “solutions” for this problem, such as “Audible Magic”, come in small boxes, the same size as a server, without a large disk full of fingerprints, or a large disk for saving streams. This comes as a surprise because one would expect that, if a device really only blocks copyrighted content, the database of copyrighted works would be saved in the device. If this was not the case, and the database server would be on the internet, this means that every check the device has to make would generate traffic, causing the ISPs network to slow down.

So is it not possible at all? It might be possible, but it would mean setting up one of these devices at a lot of switches to make sure that the device can check all traffic. With a wet finger approach I would say these devices are capable of managing 1000 users at most (especially if these users regularly watch streaming content such as youtube movies), so an ISP with 1.000.000 customers would need something in the size of 1000 of these devices. At a cost of probably something in the areas of 2500$ (which is probably even an approximation on the low side) this would mean 2.500.000$ in installation costs. Costs that the users of this ISP will pay in the end. So we get to pay for being able to do less on the internet and to protect the interests of big media companies with enough money to lobby, sounds great, doesn’t it?

So we can conclude that technologically, there are a lot of questions that can be raised as to whether content filtering is possible without introducing a lot of costs. It can also be easily defeated by using encryption.

But there are even more objections, this time juridical in nature. We are given the rights in copyright law to do certain things with copyrighted works without needing the permission of the author, these are “fair-use” rights and include, among other things, the right to make parodies of protected works. Now, content-filtering devices do not see a difference between lawful use of a certain work and unlawful use. Therefore, by blocking everything that just checks out as sounding the same (it is acoustic fingerprinting after all), it does not seem impossible that these fair uses of works are blocked too. Especially if we do not know how the fingerprinting works (and if it does not flag too many false positives).

Furthermore, there is the issue of web-commerce and the downloading of legal songs, such as from itunes. If a webstore would want to distribute the songs one can legally purchase through torrent-files to reduce bandwidth-costs (and by this, reducing the price of songs), these solutions would block these legal downloads.


For the record: I know that solutions such as Audible Magic are mainly targeted against P2P networks, but this does not mean that in the future the IFPI will not start proposing to block these downloads from websites as well. Of course, by limiting the protocols that must be checked for downloaded content, it becomes more technically feasible, but it would still introduce quite soms costs for any big internet service provider.

Protocol blocking:

Every protocol can be used legally. BitTorrent, one of the most contested protocols by the movie (and probably recording) industry, for example, is being used to save bandwidth costs for projects that do not have much money. The most cited example of this are linux distributions, which use the BitTorrent protocol to distribute 4.7GiB files, which would cost them lots if every person that wanted the distribution would download these files from their servers.

The question is one about freedom though, should we allow companies, with commercial motives, to determine what protocals are deemed appropriate and which ones are not, just because they lose revenue because of them? If even one legal use of a protocol is hindered by a block, imposed by commercial companies, we have lost freedom. The freedom to choose which technology we would like to use for a certain (legal) task. I do not think this is a price we have to pay.

URL Blocking:

The same arguments as above apply to this proposition. But Url blocking goes even further than protocol blocking since if we allow this, it means commercial companies get control over what information we can read. Press freedom is one of the most important things we have and we should never consider to give this up for the commercial interests of the same companies. We win nothing out of it and they gain everything. The examples they give are a clear example of this: thepiratebay only hosts torrent files, which are files that do not infringe copyright themselves, they just give directions on where you can find files that are shared. The illegality of torrenthosting is still being disputed, but these companies want to block these sites already because they think it should be illegal (even if no legislation exists in a country that they would want to impose this block upon). Furthermore, the site also contains texts with critical comments against the music and movie industry. By blocking this website, we lose access to these texts as well.

Allofmp3 is a russian site, which operated under the russian law and did not breach russian law. Blocking a website when it does not breach the law of the country where it is hosted, because these companies consider it illegal, is once again an example of how these companies would restrict our perfectly legal use of the internet.

What is most important, however, is that, such as with all censorship, these companies would be playing the judge and noone would be able to verify if their decision was correct, because the website would be blocked.

Blocking URLs is always censorship and censorship should never be taken lightly. If a censorship is proposed to protect the commercial incentives of companies, we should strongly oppose this and suggest that these companies take the regular route to try the persons that they consider are doing illegal things, instead of trying to play judges themselves.

Don’t let this happen. Write to your EU-representative or whomever you know that might have an influence.