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Frank Petronio
24-Jun-2011, 19:01
The massive disconnect here is astounding, and it doesn't bode well for the future. The internet's top digerati are defending the thief and mad at the victim for sticking it to him.

Truly bizarre. Jay Maisel won the case but if this is how the "smart people" are thinking, we're screwed.

TOP has the best summary:
http://theonlinephotographer.typepad.com/the_online_photographer/2011/06/kind-of-screwed.html

Here is the perp's self-rightous blog: http://waxy.org/2011/06/kind_of_screwed/

He helped start Kickstarter, an irritating web service that whiners use to beg money.

Ari
24-Jun-2011, 19:23
That he has the nerve to cry foul (i.e. "But, your honour, I didn't know I'd get caught"), and ask on his blog (rather innocently) "Where do you draw the line?" is even more disgraceful.
But that's where we are with the internet; the onus falls upon the creator of a work to make sure he/she is not being plagiarized.
Otherwise it's fair game for anyone.

dsphotog
24-Jun-2011, 20:11
My question is, how did Jay find out his image had been stolen?

Ari
24-Jun-2011, 20:16
My question is, how did Jay find out his image had been stolen?

It's a famous photo (cover of a landmark jazz album) by a well-known and very well-established photographer; it was inevitable.

Greg Blank
24-Jun-2011, 23:18
Not siding with anyone but as an artist one can derive a new work from existing work and not be in conflict with any existing copyrights. What are the parameters of use that disqualify one from being sued? I have submitted work to places and seen very similar imagery suddenly appear in printed materials that they marketed as some other photographers work. Although cropped from what appeared to be a portion of my submission.

engl
25-Jun-2011, 01:44
Astounding. Take the art of another person, lower the resolution, use it commercially as album art. Infringement, who, me?

Could you point to some blogs or web media that take Andy Baio in defense in this one?

Edit: Nevermind, it was easy enough to find Googling "kind of bloop cover"...

Mike Anderson
25-Jun-2011, 06:43
It's a win-win-win-win-win situation. More "Kind of Bloop"s will be sold, more "Kind of Blue"s will be sold, Maisel wins (I never knew he took that photo until now), the lawyers win (well that's unfortunate), and people will be more careful about fair-using other peoples stuff.

...Mike

Bill_1856
25-Jun-2011, 07:18
A lot of words, but I have yet to see the two pictures.

Eric James
25-Jun-2011, 07:33
Did you read the whiner's blog - the two pictures are there.

ic-racer
25-Jun-2011, 07:49
This is one of those things I have difficulty following. Andy Baio settled the case for $$ but I don't see that Baio was a musician on the album or the creator of the cover


For the cover, the obvious choice was to do an 8-bit rendering of the original Davis cover, and he, Andy, got a friend to put it together http://www.techdirt.com/articles/20110624/01393814836/kind-blue-using-copyright-to-make-hobby-artist-pay-up.shtml

Mike Anderson
25-Jun-2011, 08:09
That he has the nerve to cry foul (i.e. "But, your honour, I didn't know I'd get caught"), and ask on his blog (rather innocently) "Where do you draw the line?" is even more disgraceful....

I think "Where do you draw the line?" is a fair question. In that series of increasingly pixelated pics, personally, I say #7 is fair use, #6 is not. That's where I'd draw the line as a layman on the jury.

...Mike

Eric James
25-Jun-2011, 08:57
I'd say the cut off is at image ten in the progressively-pixelated images because it's with image ten that the original image's iconic nature is no longer recognizable - that's the infraction in my mind, capitalizing off of someone's work through recognizable imitation.

Marko
25-Jun-2011, 09:39
The massive disconnect here is astounding, and it doesn't bode well for the future. The internet's top digerati are defending the thief and mad at the victim for sticking it to him.

Truly bizarre. Jay Maisel won the case but if this is how the "smart people" are thinking, we're screwed.


That he has the nerve to cry foul (i.e. "But, your honour, I didn't know I'd get caught"), and ask on his blog (rather innocently) "Where do you draw the line?" is even more disgraceful.

Some rather strong words being thrown around here...

Well, apparently the guy did go all out and acquired all of the other rights associated with the project - he just did not clear the rights to an image.

Upon reading through the entire thing, it definitely does NOT sound like an intent to steal. If anything it DOES sound like:

a) A confusion between "derivative" and "transformative" concept on Any's part. Whether he was right or not we will never find out, because he committed a basic mistake of testing the boundary without having enough cash to see the entire fight through. He settled, which is neither here nor there, but just a legal form of extortion.

b) A mean-spirited approach by Jay himself. Given the extent to which Andy went to correctly handle and attribute all the other rights, would it really be too unreasonable to approach him directly and try to settle the matter without the vultures (lawyers)? Either deny the right to use or make a fair settlement.

But no, he "felt violated that his image was pixelated" (sic!) so he decided to send a hit squad and extort somebody's annual salary from the guy.

My bottom line:

Andy might really be completely mistaken, but it still feels like an honest mistake rather than illicit intent.

Jay may be completely legally right, but his entire approach feels anything but morally correct.

Until yesterday, both of them were completely annonymus to me, but after reading all of this, I wish there were more people like Andy doing business on the 'Net (as opposed to the likes of Zuckerberg et al) even if they did make honest mistakes here and there.

I also wish there were fewer mean-spirited and shallow-minded "celebrities" like Andy who don't think twice about squashing somebody out of existence if they dare look cross at them but to whom the entire concept of honesty, mistake or not, seems to be more alien than the guys who do their lawn every morning.

Frank Petronio
25-Jun-2011, 10:05
Oh you're just falling for some whining hipster douchebag's characterization of the little poor kid versus some rich guy. Can't you see the manipulation?

Andy probably makes ten times your rate and while $32K isn't chump change, it's a speedbump, not a derailment.

Maisel was once a struggling child artist too. That he bought a decrepit old building for peanuts once he started making a little money doesn't make him Donald Trump. He busted his ass for over fifty years and doesn't deserve this kind of rip-off.

Back before the internet and conceptual art culture made it semi-OK to rip off famous photos, professional artist who stole images risked much more severe penalties... since Andy should have known better and is a popular online figure -- he should pay a significant amount here.

Marko
25-Jun-2011, 10:22
Frank, I didn't say $32K is Andy's rate, I said it was somebody's annual salary. ;)

It doesn't really matter what Andy's rate is (or Jay's for that matter), it's about principle.

Where we differ is the definitions. I still see it as an honest mistake rather than an attempted ripoff on Andy's part. And I still see it as a mean-spirited all-out on Jay's part.

It doesn't mean Andy was right, it only means that it doesn't not seem to me that he was a sleazebag. It doesn't mean that Jay is wrong either, but the way he reacted does make him look like one.

Most of the world exists and operates in the huge continuum of nuances somewhere between the extremes, but internet fora seem to be largely unaware of that. ;)

Bill_1856
25-Jun-2011, 10:25
Did you read the whiner's blog - the two pictures are there.

Thanks. I had a look -- it's clearly a derivative, same as the Obama picture, not to mention Warhal's tomato soup can.
You can get away with it if you're rich/famous enough, otherwise the lawsuits are going to be financially ruinous -- you lose if you fight it, you lose if you settle.
It's blackmail -- the copywrite laws have become for the benefit of those with deep pockets, no longer in the best interests of the public.

Greg Miller
25-Jun-2011, 10:31
Ignorance of the law has never been a valid excuse. And if it was really an honest mistake, Andy would (should) have admitted so when the legal proceedings began, and I bet there would have been a different outcome.

Lastly, Jay would have courting more copyright abuse by NOT suing. The act of doing nothing would have jeopardized any future copyright infringement suits he might bring. Letting this one go sets a precedent that could be used against Jay going forward. If you are aware of a possible infringement case, you have to pursue it (whether you win or not) or risk losing future suits due to lack of pursuing a former case.

Mike Anderson
25-Jun-2011, 10:42
Frank, I didn't say $32K is Andy's rate, I said it was somebody's annual salary. ;)

It doesn't really matter what Andy's rate is (or Jay's for that matter), it's about principle.

Where we differ is the definitions. I still see it as an honest mistake rather than an attempted ripoff on Andy's part. And I still see it as a mean-spirited all-out on Jay's part.

It doesn't mean Andy was right, it only means that it doesn't not seem to me that he was a sleazebag. It doesn't mean that Jay is wrong either, but the way he reacted does make him look like one.

Most of the world exists and operates in the huge continuum of nuances somewhere between the extremes, but internet fora seem to be largely unaware of that. ;)

As I read it (http://waxy.org/2011/06/kind_of_screwed/) he's still claiming he's not wrong, what he did was "fair use", he just didn't want to (or couldn't) finance the legal battle. This implies he'd do it again if it weren't so expensive.

... Mike

Marko
25-Jun-2011, 10:57
As I read it (http://waxy.org/2011/06/kind_of_screwed/) he's still claiming he's not wrong, what he did was "fair use", he just didn't want to (or couldn't) finance the legal battle. This implies he'd do it again if it weren't so expensive.

... Mike

Yes, he makes it very clear that he has a clear opinion and that he is sticking to it. And I agree with him. In fact, I agree enough that I am going to buy the album and contribute my $5 to offset his damage.

I just don't think he would win this particular case because the final art is too close to the original one, but I do agree with him that a clearer interpretation of the law IS needed concerning the difference between derivative and transformative works threshold. The fact that the likes of EFF got involved only confirms that.

I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.

The fact that there was a settlement means that neither side was completely sure of their legal standing so they both essentially chickened out of a process that could have cost them much more to really prove their case.

That didn't do a thing to really protect neither Maisel's nor anybody else's rights in the future, nor did it solve anything - the entire process only kicked the can further down the road and added some $15-20K to some lawyers' pockets.

engl
25-Jun-2011, 11:10
I do not understand how you could consider it a "mistake", since Andy is basically still saying that he is right and has not done anything wrong. Andy is also not some poor blogger up against "the big guy", he sold his business upcoming.org to Yahoo 6 years ago and surely has enough money to take it to court. He would have, if he'd have any chance of winning. Instead he can fold, pay a small cost, and make a blog post about how he is the victim. He gets publicity, does not have to lose in court, and a sob story for why he had to pay the settlement.

Fair use would never have covered using a photo in its entirety as album art for something sold commercially. The fact that it was changed to the 8-bit look does not change this, you are not allowed to import any copyrighted photos into a Nintendo 8-bit game and claim "fair use" since the image is simplified, at least not if you intend to sell the game commercially.

Greg Miller
25-Jun-2011, 11:28
I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.

Jay teaches digital workshops so I'm not sure where you get the "sticking it to the digital crowd" bit.

And you don't know the intent behind the suit. Better odds are his IP attorneys did not allow a cease and desist letter. Doing so sets precedent that must be followed in any future infringements suits. It basically says "I'll allow the infringement that has happened so far, just don't do it anymore". So Jay would be setting himself up for anyone else to infringe his work as long as they stop it only after he becomes aware of it and then asks them to stop.

Calling him a dushbag (sic) is a pretty douchebag thing to do unless you are privy to what was discussed between Jay and his counsel.

Marko
25-Jun-2011, 11:35
As I said in the post to which you (clarification added: engl) are replying:

1. They settled, therefore neither of them was proven either right or wrong.

All that did was to make a few lawyers richer and prevent Andy from using the art further. He is still entitled to his opinion. He settled to avoid incurring litigation costs which would have been substantially higher.

If the thing was so clear cut as it seems to be in your mind, why did Maisel settle instead of fighting it to the end? He has even more money AND he has the copyright.

Taking this thought a bit further, Maisel was in a position to prove a positive (that he has a copyright and that somebody used this copyrighted art as a basis), while Andy was expected to prove the negative (that his interpretation of Maisel's work was NOT derivative but rather transformative), which is much taller order.

And yet, they BOTH settled. Which entitles both of them to maintain their respective opinions.

2. His income is completely irrelevant in this case or any other, and so is Maisel's. Income level does not indicate one's guilt, innocence nor right. At least not yet, although we seem to be moving steadily there, but that's another ball of wax.

In fact, using someone's income to either somehow implicate sinister motives or to prove innocence or whatever else is a fairly common and quite banal logical fallacy used regularly by tabloids and other media.

3. I said very clearly I DO think that he would have lost THIS particular case had it gone to trial.

He DID obtain and pay for all the other rights for the project, which gives a lot of credence to the notion that he made a mistake in judgement about the nature of the work.

That is why I think it was an honest mistake and not an intent to steal. If you can't see the difference between the two, I don't know how to make it any clearer.

Marko
25-Jun-2011, 11:53
Jay teaches digital workshops so I'm not sure where you get the "sticking it to the digital crowd" bit.

Here a quote from Jay's article quoting Maisel's lawyer:


And it's worth noting that trying to license the image would have been moot. When asked how much he would've charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. "He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world."

Since he stated very clearly at the top of the article that the post was reviewed by Maisel's counsel, I have no reason to doubt the authenticity of the quote.


And you don't know the intent behind the suit. Better odds are his IP attorneys did not allow a cease and desist letter. Doing so sets precedent that must be followed in any future infringements suits. It basically says "I'll allow the infringement that has happened so far, just don't do it anymore". So Jay would be setting himself up for anyone else to infringe his work as long as they stop it only after he becomes aware of it and then asks them to stop.

So why did he settle instead of fighting to the end? I don't see how a settlement sends any different message. Even worse, it is saying that "it is quite OK to infringe if you are rich enough to fight my claim as I have just demonstrated that I am not all that sure of..."

The settlement specifically proves no guilt, it simply resolves the conflict. On the other hand, had he sent a cease-and-desist, and had Jay responded positively to it (i.e. took the art down and stopped using it, same outcome as with this settlement only faster) the clear implication would have been that Jay was wrong and admitted it, so don't do it unless you want to get sued in the future.


Calling him a dushbag (sic) is a pretty douchebag thing to do unless you are privy to what was discussed between Jay and his counsel.

I didn't call him a douchebag, I said I thought he acted like one in this case. I may well be wrong, but that's how it looks to me (and using the old spelling "argument" is not too far either... ;)).

But as I said, that's just my opinion. We are all entitled to it, including those who called Jay various names with equally limited knowledge of the goings on.

Or to quote Jay himself again:


Reasonable discussion about the case is fine; personal attacks, name-calling and abuse are not. We're all humans here. Be cool.

D. Bryant
25-Jun-2011, 11:55
I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.



The word is 'douchebag' not 'dushbag' Maisel's motivation was not to stick it to the digital crowd since he shoots 100% digital and has for several years now. His motivation, IMO, was punative.

Copyright laws are very clear and not ill defined as you suggest, to cite Wikipedia as you are fond,

Copyright is literally, the right to copy, though in legal terms "the right to control copying" is more accurate. Copyright are exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if they do.

The legal costs are the price of doing business whether we like it or not. At some point a judge or jury may have to interpret whether infringement has occured. I assume that Andy didn't want to suffer the potential unknown cost of a court judgement.

Marko
25-Jun-2011, 12:03
The word is 'douchebag' not 'dushbag' Maisel's motivation was not to stick it to the digital crowd since he shoots 100% digital and has for several years now. His motivation, IMO, was punative.

Did you mean punitive?

:rolleyes:


Copyright laws are very clear and not ill defined as you suggest, to cite Wikipedia as you are fond...

I am? Really? Was this meant as another put down, like the spelling error one above?


I assume that Andy didn't want to suffer the potential unknown cost of a court judgement.


There is something to be said about assumptions and those who make them, a lot really, as you tend to demonstrate so often...

Marko
25-Jun-2011, 12:25
Greg,

A followup to our exchange, after looking up Maisel's work:

It was Maisel's lawyer who's words made me think that about "the digital crowd". I do have a largish bucket of ashes here and I don't mind perusing it when I realize I deserve it. But those words have been said and not denied upon review, so I am inclined to retract my statement but still leave the ashes alone... :D

I will also say that the douchebag thing was a bit too strong and perhaps I should use a different term to describe the feeling I got. And besides, my spell checker doesn't like it even in this form (it wants to either break it or hyphenate it) so I don't feel like attracting any more ... interventions ;).

As for the rest, I still think it is valid to ask why Maisel chose to settle too if he really thought he had such a bullet-proof case?

Mike Anderson
25-Jun-2011, 12:34
...
So why did he settle instead of fighting to the end?...

I think he (Maisel) got what he wanted in that Andy Baio can no longer use the pixelated version of his photo.

...Mike

Greg Miller
25-Jun-2011, 12:59
So why did he settle instead of fighting to the end? I don't see how a settlement sends any different message. Even worse, it is saying that "it is quite OK to infringe if you are rich enough to fight my claim as I have just demonstrated that I am not all that sure of..."

Filing the suit preserves to right to so so in the future, if necessary, for other infringements. Settling simply says the two party found a mutually satisfactory resolution outside the courts. It does not diminish the ability to protect copyright going forward, which failing to file the suit would have done. And nobody starts negotiations with the $ amount they they expect to get. That wouldn't be very smart. Perhaps they started the process expecting to get $1,000, and were happy to get anything more than that. We'll never know since we were not in the room when the attorney's devised their strategy. And like Andy himself said, settling was least expensive way to proceed. The same could have been true for Jay. The vast majority of suits never go to court. Even in slam dunk cases, there is always a risk when leaving things in the hands of a judge or jury.

What happens when attorneys are involved rarely reflect what the person would do left to their own devices. Attorneys do what is prudent to protect their client. I'm sure the attorney's knew the best options for protecting Jay's intellectual property and his pocketbook.

Greg Miller
25-Jun-2011, 13:11
People who have been around the NY photography scene a while know that Jay gets around and has a reputation for generally being a giving and nurturing person. It is unfortunate that the actions of someone else put him in the position to be criticized.

engl
25-Jun-2011, 13:54
If the thing was so clear cut as it seems to be in your mind, why did Maisel settle instead of fighting it to the end? He has even more money AND he has the copyright.


You will have to ask Maisel about that. Perhaps he just not an evil guy, as you seem to presume he is? I don't know the details of what has happened between the two, or what motives have driven either side to do what they did. Neither do you.



2. His income is completely irrelevant in this case or any other, and so is Maisel's. Income level does not indicate one's guilt, innocence nor right. At least not yet, although we seem to be moving steadily there, but that's another ball of wax.

In fact, using someone's income to either somehow implicate sinister motives or to prove innocence or whatever else is a fairly common and quite banal logical fallacy used regularly by tabloids and other media.


I agree. But, your initial message gave the impression of Andy being some poor underdog, both due to the "annual salary" (I thought the "somebody" referred was Andy) part, but even more due to the last paragraph, "squashing somebody out of existence".



That is why I think it was an honest mistake and not an intent to steal. If you can't see the difference between the two, I don't know how to make it any clearer.

Of course I can distinguish between the two, no need to insinuate that I can't. I just do not think this was a "honest mistake". Andy seems quite knowledgeable about copyright. In his own words, he is a "big fan of borrowed/remix culture", and he has been hosting "The Grey Album". When taken down, he continued linking to the page "Illegal Art" for the MP3 downloads:
http://waxy.org/2004/02/danger_mouses_t/
("The Gray Album" is pretty much one big copyright violation, "sampling" the entire White Album by The Beatles).

He is not the kind of guy who is oblivious to the potential consequences of "borrowing" an album cover for something he sells.

PViapiano
25-Jun-2011, 14:00
It was a blatant copy of the photograph, period.

As someone may have mentioned earlier, if the copyright holder does not defend an infringement they may relinquish a large part of the right to do so in the future.

He could've used the "color block" version example of the cover he shows on the blog and achieved the same feel. He supposedly did the right thing with the music, why not the artwork?

Case closed...

PS..read Lawrence Lessig's books on copyright in the electronic age. He definitely takes the anti-copyright stance for the commons, but that's exactly why I wanted to read them. Always good to hear a persuasive argument to keep your mind open and alive to new ideas that may be contrary to your thinking.

Mike Anderson
25-Jun-2011, 15:04
...I just do not think this was a "honest mistake". Adam seems quite knowledgeable about copyright. In his own words, he is a "big fan of borrowed/remix culture", and he has been hosting "The Grey Album". When taken down, he continued linking to the page "Illegal Art" for the MP3 downloads:
http://waxy.org/2004/02/danger_mouses_t/
("The Gray Album" is pretty much one big copyright violation, "sampling" the entire White Album by The Beatles).

He is not the kind of guy who is oblivious to the potential consequences of "borrowing" an album cover for something he sells.

Hmmm. The plot thickens. Little-mister-innocent-victim-of-the-rich-evil-photographer has a history of fighting for

the universe of creative works stifled by the United States' archaic copyright laws and the corporations that lobbied for them (from the above link). I had some sympathy for him (Andy Baio) but not after reading the above linked page.

...Mike

Marko
25-Jun-2011, 17:35
Filing the suit preserves to right to so so in the future, if necessary, for other infringements. Settling simply says the two party found a mutually satisfactory resolution outside the courts. It does not diminish the ability to protect copyright going forward, which failing to file the suit would have done.

[...]

What happens when attorneys are involved rarely reflect what the person would do left to their own devices. Attorneys do what is prudent to protect their client. I'm sure the attorney's knew the best options for protecting Jay's intellectual property and his pocketbook.

Sending a cease-and-desist letter in no way prevents filing the lawsuit in the future if the result is not what the sender expected, nor does it diminish one's ability to protect copyright. In fact, it can even enhance the chances of winning because it demonstrates the "good faith", if such a thing matters any more at all in the current climate.

Successful CAD can save a lot of time, effort and money to everybody involved. Unsuccessful one can always be and usually is escalated to a full-blown lawsuit.

On the other note, protecting one's pocketbook has next to nothing with protecting one's other interests. It's simply the most cost-effective cop-out for all involved. If an attorney thought that the lawsuit had better than even odds of winning, I'm pretty certain he would go for maximizing his client's and by his own pocketbook and not settle in for less.


People who have been around the NY photography scene a while know that Jay gets around and has a reputation for generally being a giving and nurturing person. It is unfortunate that the actions of someone else put him in the position to be criticized.

Well, I haven't been around either NY nor photography "scene" at all, so I don't know Jay. All I know about him was the way he (re)acted to this situation and I did not like it at all. I didn't know Andy either prior to this either but I did liked his stance to all this much better.

There's (usually) a reason why first impressions are so powerful.

Mike Anderson
25-Jun-2011, 17:53
...
On the other note, protecting one's pocketbook has next to nothing with protecting one's other interests. It's simply the most cost-effective cop-out for all involved. If an attorney thought that the lawsuit had better than even odds of winning, I'm pretty certain he would go for maximizing his client's and by his own pocketbook and not settle in for less....

But it's not the attorney's decision it's the client's.

...Mike

Marko
25-Jun-2011, 17:59
You will have to ask Maisel about that. Perhaps he just not an evil guy, as you seem to presume he is? I don't know the details of what has happened between the two, or what motives have driven either side to do what they did. Neither do you.

I so love these loaded rhetorical questions that simply have to toss them back to those who ask them...

"If he did no wrong, why did he settle?"

Well, duh, "if he's so sure he's right why did HE settle"? And if he's just been protecting his interests, why would he leave some sure money on the table? Because he's a nice person?


I agree. But, your initial message gave the impression of Andy being some poor underdog, both due to the "annual salary" (I thought the "somebody" referred was Andy) part, but even more due to the last paragraph, "squashing somebody out of existence".

I was very careful not to imply Andy was poor or something - that's why I used the word "somebody's". As for squashing somebody out of existence is exactly why most lawsuits of this nature are filed in general - to force a settlement even when the odds are iffy, simply because it is cheaper to settle then stand your ground.


Of course I can distinguish between the two, no need to insinuate that I can't. I just do not think this was a "honest mistake".

Not agreeing with someone's opinion is very different from not understanding it.

I didn't insinuate anything, you said yourself that you could not understand the way I came to my opinion. That's a very old - and cheap - rhetorical trick that risks either leading people to take your word seriously or perhaps the opposite of it. Which of these two outcomes would you prefer?

Marko
25-Jun-2011, 18:01
But it's not the attorney's decision it's the client's.

...Mike

Yes, they both had attorneys and they both decided to settle. This way neither of them is guilty and they are both wrong, each in their own way.

Had they gone to the end, one would have won. Apparently neither of them was sure enough to go that far.

Mike Anderson
25-Jun-2011, 18:38
Yes, they both had attorneys and they both decided to settle. This way neither of them is guilty and they are both wrong, each in their own way.

I don't understand this.

Had they gone to the end, one would have won. Apparently neither of them was sure enough to go that far.

You're assuming being unsure is the only reason to settle. It's not. If you can achieve your goal through settlement, then that is a good reason to settle. It happens all the time. We only know one party wasn't happy with the settlement, because he said so in his blog.

...Mike

Greg Miller
25-Jun-2011, 18:51
Sending a cease-and-desist letter in no way prevents filing the lawsuit in the future if the result is not what the sender expected, nor does it diminish one's ability to protect copyright. In fact, it can even enhance the chances of winning because it demonstrates the "good faith", if such a thing matters any more at all in the current climate.

Successful CAD can save a lot of time, effort and money to everybody involved. Unsuccessful one can always be and usually is escalated to a full-blown lawsuit.

Sorry that you are not getting it. Sending a cease and desist letter sets the precedent that that is how you handle infringements (its OK- just stop now and all is forgiven). You are granting that right to future infringers. The next infringer can cite the precedent and demand the same outcome. Perhaps you should talk to an IP attorney before you write your next reply. I can suggest a good one if you need a referral.

Let's talk about what typically happens in a copyright infringement. The attorney will draft a cease and desist letter stating the infringement has occurred, demand payment for lost profits, and demand an accounting of of all profits derived from the use of the copyrighted image (as opposed to Marko's thinking that a cease and desist letter does not talk $). From the sounds of it that is exactly what Jay's attorney's did. And they stated a dollar amount that was considered high, which helps elicit an accurate accounting of the profits that shows a lower $ amount of profit. It seems a bit silly to blame Jay for following his attorneys' advice, which was standard practice for this type of event.

Ramiro Elena
25-Jun-2011, 23:45
As an artist (musician) heavily involved with the 8-bit community and knowing most of the people involved I can say all projects of this kind are based on admiration to the artists being homaged and respect. There was no intention to steal or degrade the original photographer.
Most of our music and art is released through net labels for free. Our gigs are free too. You need to visualize who is really behind all this "evil-doing." Most of the time, 18 year old nerds.
So yes, it is in fact a mistake from someone who's part of a warm hearted community that missed on that small detail and now is being crushed big time.

This has little to do with copyright infringement in my opinion and more with getting the dough when you see the chance (by the photographer and of course... always the lawyer).

Kikstarter is a platform for those who don't have access to big publishers. Sort of like when you try to sell photography books through Blurb because you would never get picked by a "real" media publishing company.

Legally wrong, morally... not so in my opinion. But who cares, right? We're talking MONEY!!!

Marko
26-Jun-2011, 01:50
Sorry that you are not getting it. Sending a cease and desist letter sets the precedent that that is how you handle infringements (its OK- just stop now and all is forgiven). You are granting that right to future infringers. The next infringer can cite the precedent and demand the same outcome. Perhaps you should talk to an IP attorney before you write your next reply. I can suggest a good one if you need a referral.

Let's talk about what typically happens in a copyright infringement. The attorney will draft a cease and desist letter stating the infringement has occurred, demand payment for lost profits, and demand an accounting of of all profits derived from the use of the copyrighted image (as opposed to Marko's thinking that a cease and desist letter does not talk $).

Maybe I am indeed not getting it.

"It" being the tendency to get personal and make things up. It is so great to be graciously forgiven in advance, especially since I already said what I had to say about the topic and don't really care for "getting" this kind of "discussion".

So I'll bow out at this point and let you carry on all you want.

engl
26-Jun-2011, 02:29
I so love these loaded rhetorical questions that simply have to toss them back to those who ask them...

Well, duh, "if he's so sure he's right why did HE settle"? And if he's just been protecting his interests, why would he leave some sure money on the table? Because he's a nice person?


Yes, possibly. Not that it matters, there are many reasons for settling. I certainly do not agree with your opinion that anyone who believe they can win a case will absolutely certainly take it to court and not settle.

As I said, you seem to presume Maisel is the devil and would surely do every last thing he could to get the most amount of money from Andy. I have no reason to believe he is, rather the opposite really, based on the comments about Maisel in this thread.



I was very careful not to imply Andy was poor or something - that's why I used the word "somebody's". As for squashing somebody out of existence is exactly why most lawsuits of this nature are filed in general - to force a settlement even when the odds are iffy, simply because it is cheaper to settle then stand your ground.


Well, the last paragraph was not about "in general" since you included names (I'm assuming "Andy" here is a typo and should read "Jay").



Not agreeing with someone's opinion is very different from not understanding it.


I understand your opinion, that it was a "honest mistake" with no "intent to steal". With the background of Andy being who he is and the blog post basically saying that he still thinks he did no wrong, I did not understand how you came to have that opinion. I have a bit better understanding now, and disagree strongly.



I didn't insinuate anything,

Haha, whatever...

engl
26-Jun-2011, 02:51
As an artist (musician) heavily involved with the 8-bit community and knowing most of the people involved I can say all projects of this kind are based on admiration to the artists being homaged and respect. There was no intention to steal or degrade the original photographer.
Most of our music and art is released through net labels for free. Our gigs are free too. You need to visualize who is really behind all this "evil-doing." Most of the time, 18 year old nerds.
So yes, it is in fact a mistake from someone who's part of a warm hearted community that missed on that small detail and now is being crushed big time.

This has little to do with copyright infringement in my opinion and more with getting the dough when you see the chance (by the photographer and of course... always the lawyer).

Kikstarter is a platform for those who don't have access to big publishers. Sort of like when you try to sell photography books through Blurb because you would never get picked by a "real" media publishing company.

Legally wrong, morally... not so in my opinion. But who cares, right? We're talking MONEY!!!

Andy was talking money too, the album was sold for profit. You get to steal art for commercial purposes as long as you are part of a "warmhearted, fuzzy community"?

You talk about "music for free" and music "made by 18-year old nerds". This was not free, and Andy Baio is not a "18-year old nerd", he is a 34 year old businessman.

By the way, I love chip music, old Pluxus and Slagsmålskubben, Rymdkraft, Rymdreglage, Rob Hubbard, Ben Daglish, demo scene music etc. They are either non-commercial, or commercial and copyright-respecting.

Marko
26-Jun-2011, 03:13
...you seem to presume Maisel is the devil and would surely do every last thing he could to get the most amount of money from Andy. I have no reason to believe he is, rather the opposite really, based on the comments about Maisel in this thread.

[...]

Haha, whatever...

You are, of course, free to believe and say whatever you want.

But perhaps you (and a select few others in this thread) could do yourself a big favor and stop making up things that I never said nor implied.

It is cheap and not too bright, and it only makes you look the same.

But I will agree with your conclusion: Whatever indeed.

Ramiro Elena
26-Jun-2011, 03:36
That's why I said "most of our music" Stefan. Out of all the actual 8-bit music made today, there's probably 4-5 projects that are sold for money.

Nobody says anyone can "steal" as long as they are part of a "warmhearted community". I certainly did not say that. I am ponting out the lack of balance or proportion in the whole matter.

I don't know the exact numbers but I bet the cover artist did not get paid, at least that is usually the case. I even doubt the musicians got paid (I'll ask my friend Sergio who did one of the tracks.) Finally I doubt the project made a lot of money, I sincerely doubt anyone involved was after money or getting rich.

So, while I think it was wrong of Andy not to clear rights for the image used, it is obvious he did not because he thought he was doing things right. He wasn't trying to "steal" (a word you all like to use so much.)
Most of the tribute album covers are done this way to enfasize the concept (I've taken part in a couple of them without getting paid).

I am glad to hear you're an old schooler :) Do you follow the scene?

rdenney
26-Jun-2011, 03:47
Yes, they both had attorneys and they both decided to settle. This way neither of them is guilty and they are both wrong, each in their own way.

Had they gone to the end, one would have won. Apparently neither of them was sure enough to go that far.

Actually, settling may have been Maisel's decision to be a nice guy. I assure you that his lawyer would have gotten a very large share of that amount. Copyright law has both criminal and civil consequences, and in court it would probably have gone mich worse for the other guy.

And Marko, I would be astonished to discover that Maisel's attorney did not start with a cease-and-desist letter, with a request for prior sales information to demand a license fee.

We take the guy's clearance of the music copyrights as an act of good faith, but it may have been acquiescence to reality not driven by honest motives, based on his other statements. One thing I know, the Internet is utterly inept at separating black and white hats.

Rick "who wears a white hat" Denney

engl
26-Jun-2011, 04:04
I am glad to hear you're an old schooler :) Do you follow the scene?

Nowadays I mostly only listen to the music, and occasionally let myself be amazed by 4k and 64k intros. Quite a while ago I was more into it, going to Finland for Assembly every year etc. I was never very productive, except for winning a best video award at Dreamhack that I totally did not deserve :rolleyes: I still have that Golden Jolt around here somwhere...

Ramiro Elena
26-Jun-2011, 04:58
and occasionally let myself be amazed by 4k and 64k intros

So Stefan being a (let me correct myself here) hardcore oldscholer, you know how the scene is more than anyone, more than me probably. Even more so in the demoscene. You know those guys are nerdier than simple chiptuners :P

While Andy might fall in a different league, I actually don't know him personally, these people are not after money hardly ever. This particular project was a tribute to one of the greatest musicians that ever lived. I would think Maisel loved Miles Davis music as much as those who put together the project. Why not share that instead of going against it?

Again, I do not have information on the figures but most of the money earned goes to a sound technician who masters the recordings and to CD pressing.

Sevo
26-Jun-2011, 05:19
Andy was talking money too, the album was sold for profit.

I strongly doubt that the turnover was even remotely close to $30.000 - most of my electronic musician friends these days quote something in the 1000-2000€ net income per "internet album" (and even that only provided that none of the involved net labels, payment systems and publishers proves to be dishonest).

So a fair payment (and the amount a German or French court would have awarded him), punitive doubling inclusive, might have been in the $100-200 range, even assuming a (amazingly big) 5% expenditure on album artwork.

Greg Miller
26-Jun-2011, 05:34
I strongly doubt that the turnover was even remotely close to $30.000 - most of my electronic musician friends these days quote something in the 1000-2000€ net income per "internet album" (and even that only provided that none of the involved net labels, payment systems and publishers proves to be dishonest).

So a fair payment (and the amount a German or French court would have awarded him), punitive doubling inclusive, might have been in the $100-200 range, even assuming a (amazingly big) 5% expenditure on album artwork.

But how much in attorney fees had Jay accrued by then? I'll bet the settlement amount was designed to recover related expenses (which he would be entitled to if the case went to court and he won the case).

Frank Petronio
26-Jun-2011, 07:28
Because Andy took the stand that he was right and didn't fold right away, Jay's lawyers could have easily spent 28 hours on the case at $400 per hour to hit their one-third percentage of $32K. Had the case dragged out, they would have needed a lot more to be satisfied.

Ramiro Elena
26-Jun-2011, 09:11
I strongly doubt that the turnover was even remotely close to $30.000

It didn't get to one third of that.

Marko
26-Jun-2011, 10:22
Actually, settling may have been Maisel's decision to be a nice guy. I assure you that his lawyer would have gotten a very large share of that amount. Copyright law has both criminal and civil consequences, and in court it would probably have gone mich worse for the other guy.

Probably.

But it didn't go to court, so neither of them lost in the legal sense of the word. Neither of them won anything either. They both lost something and even the lawyers didn't get all that much.

Probability is what Vegas is built on, so that everybody loses, only the House wins a little. A little bit here, a little bit there...


And Marko, I would be astonished to discover that Maisel's attorney did not start with a cease-and-desist letter, with a request for prior sales information to demand a license fee.

Well, me too, that was my point. Nobody mentioned CAD, everybody keeps talking about the lawsuit. We can guess and assume, but I hate guessing and I hate assumptions even more. All I said was based on what was published - and I was basing most of it on Andy's blog simply because what he published was reviewed by both sets of lawyers and is presumably unchallengeable.


We take the guy's clearance of the music copyrights as an act of good faith, but it may have been acquiescence to reality not driven by honest motives, based on his other statements. One thing I know, the Internet is utterly inept at separating black and white hats.

Another base point for me was the vitriol in this thread from the get go and then on even in responses.

If we insist on legalese, then his reasons for going clean on all the other rights in his project do not matter, all that does is that he did bona fides clear all of them in advance, except this one.

But if we look at it from either human, common sense or just plain logical angle, then his overall approach does matter, a lot, as it establishes a certain pattern of doing things making an honest mistake much more believable then otherwise.

But most of the posters ignored any of those angles and just went all out - "perp", "thief", "digerati" (the only pejorative with at least a trace of sophistication), "bizarre", "disgraceful" and on and on... At least four of the posters turned to personal insults against me too, right away, simply because... why? Because I was willing to cut the guy a little slack while still saying that he was probably indeed mistaken in his belief? Or is it because I missed the memo from higher up that banished mistakes and required everything to be classified as either outright crime or the lowliest of the low, including those who dare suggest otherwise?

I should be shocked by this simple mindedness and incivility, but I am not really. It is just another indicator of the overall downward slide of our larger society. Just look at any other site on the Internet that allows readers' comments and you will see the same and much worse.

That's because there are no white and black hats out there, there are only gray hats. And pointy hats. Lots and lots of those.

Greg Miller
26-Jun-2011, 10:52
I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.


Well, you resorted to name calling (later recanted) and assumptions/guesses ("all-in", "cease and desist letter", "sticking it to the digital crowd" - 3 guesses in one sentence - good job) in one sentence.

I think Rick's point was that there most likely was a cease and desists letter - which is what I stated earlier as well. A typical first step in a matter like this is a cease and desist letter, with a demand for an accounting, and a demand for compensation. That is pretty much what Andy describes in his blog - he just did not use the words "cease and desist". What you were asking for seems to be something not typically done - a cease and desist letter with no demand for compensation. Even if Jay did not want compensation, you still lead with that because that is what gets the other party's attention.

Marko
26-Jun-2011, 13:54
Greg,

Rick is doing just fine getting his points across and I am doing alright myself getting them. Neither of us needs an interpreter. And if I ever feel a need for an IP lawyer, I have no problem finding a decent one either, they're dime a dozen down here.

As far as name calling goes, a few messages up, you asserted that I was "not getting it". I conceded the point and bowed out, so what's the point in rehashing the whole thing? But, if you really feel like beating a dead horse, have at it by all means, just leave me out of it. Please?

Greg Miller
26-Jun-2011, 14:10
You bowed out by continuing the same discussion with Rick? I guess I'm the one not getting it now. But I'm done if you are.

Marko
26-Jun-2011, 14:18
I bowed out of further discussion with you because I am not too keen on the personal attack thing and I don't feel like responding in kind.

I hope we are both getting it now?

Greg Miller
26-Jun-2011, 14:24
I get it now. My remark "sorry you are not getting it" was not intended to be a personal attack - I truly was sorry. So I apologize if it came across that way.

Feel free not to respond to anything I post here, but I don't see why that should compel me to sit on the sidelines if I see you make comments that I do not agree with.

Greg Miller
26-Jun-2011, 14:48
And just to avoid any hard feelings about my last statement, I say that because this is a public forum - there are other people reading your comments besides me. So if you write something that I feel warrants a response, I will do so. If the conversation were private, then that would be a different matter.

Marko
26-Jun-2011, 15:26
I get it now. My remark "sorry you are not getting it" was not intended to be a personal attack - I truly was sorry. So I apologize if it came across that way.

Feel free not to respond to anything I post here, but I don't see why that should compel me to sit on the sidelines if I see you make comments that I do not agree with.

Fair and clear enough.

And just so I make myself equally clear, this being a message board, I don't mind disagreeing, quite to the contrary, that's what makes for a good and lively discussion. I respect your opinion even when or especially when we disagree.

What I do mind, however, is taking disagreement personally. It wasn't just the "not getting it" thing, it was also the spelling thing and the insistence on something I said and then retracted. I don't mind offering a mea culpa when it's called for, I don't mind even being the only one to do so, but those who feel like beating it further will have to do it without me. It is this what I had in mind when I asked to please leave me out.

So, all being said, apology accepted, no hard feelings. Let's move on.

William McEwen
26-Jun-2011, 18:03
Too many people raised in the Internet culture believe "if I can get my hands on it, it's mine." That Andy is a real horse's ass, and I would have liked to see him get jail time or community service had he not settled for a paltry sum.

sanking
26-Jun-2011, 19:30
Too many people raised in the Internet culture believe "if I can get my hands on it, it's mine." That Andy is a real horse's ass, and I would have liked to see him get jail time or community service had he not settled for a paltry sum.

As someone earlier remarked, it was a blatant copy of the original photograph. Too bad Andy does not admit to the mistake on his blog (which he has defacto done by settling the case) and move on. But he can whine all he likes, won't change the facts. He copied a photography, got called on it, had to pay up, and does not have the integrity to admit to doing anything wrong.

Sandy King

rdenney
26-Jun-2011, 19:32
Some points:

Copyright law, for better or worse, does not cut any slack for non-profit or non-commercial uses. It applies in all these cases.

I happen to agree that copyright law has been too much driven by Disney's desire to keep Mickey Mouse protected. The purpose of copyright law was to get stuff into the public domain, not to keep stuff out of it. It provided a reasonable period of time for the author to gain benefit, and then fell into the public domain so that it would further whatever art was reflected by the work. (Patents still work that way.) Before 1979, the copyright term was 28 years and it could be renewed only once by the holder. In 1979, it changed to 70 years after the death of the author, or after the date of publication if the author was anonymous. That term has been increasing as a result of lobbying by Disney and Sony (who owns a large music archive). But that's a matter for the political process, not for anarchy, and since the law does not codify immorality, I don't see much argument for civil disobedience.

Even under the old law, Maisel's picture would still be protected--I don't think it was photographed more than 56 years ago.

One good aspect of the new law is that it's easy to know what is protected. Everything is protected, and should be assumed to be protected unless it specifically is not. We might have to do some research to determine that, but we always know whether or not we actually created the art we are using.

Copyright allows fair use, which includes excerpts for critical and academic purposes. This is not one of those cases, and had it been, I suspect there would have been a different outcome.

Pixelating an image is the visual equivalent of sampling, it seems to me. It takes a lot to be transformative and not derivative. The burden of proof is on the accused infringer, if the original expression was registered with the Copyright Office, which I'd be shocked if it is not the case. Thus, it would be "Andy" (I don't know this guy) who would have to prove in court that he either 1.) did not start with Maisel's photo, or 2.) that he transformed the art profoundly enough for it to be a new form of art. The music on this album was transformed to a far greater extent than the picture, it seems to me based on descriptions of it. Given Andy's understanding that he needed to clear copyrights for the music, it would be hard for him to argue that he didn't believe it would also be necessary to clear the copyright for the photo.

Now, I do not agree with Maisel's stated reasoning, which is to be offended that the guy pixelated his image. Maisel clearly was offended as a photographer that someone would deface his image (in his view). Being offended may or may not be justified, but that in and of itself is not actionable, as evidenced by art that is sufficiently transformative even if it offends the original artist. The problem was not the revision, it was the infringement--it was not transformative enough to avoid it.

This is not a moral argument--it is a legal one. The only morality involved rests with the legal argument--one could argue that it is immoral to break the law, unless the law codifies immorality and therefore demands disobediance. I really don't know how one could make that case here. The benefit of the doubt may be granted to one who was ignorant and who is contrite on being informed. That certainly did not happen here.

(Marko, you cannot really complain that people use strong words. You yourself are not shy about using strong words. If you defend yourself against attack by claiming to be plainspoken, you can't much complain when others are plainspoken, even if in ways that offend you. The word "stolen" is a case in point. When a copyright is infringed, the property of the holder has been removed from his control by the infringer, such that the holder no longer benefits from ownership. That is indeed thievery, even if it doesn't require robbery or burglary.)

Rick "sometimes hard lessons are also expensive" Denney

Marko
26-Jun-2011, 20:22
Rick,

Thank you for a thoughtful and eloquent analysis, as usual. Most of it is my thoughts exactly, expressed better than I could hope for.

There are two exceptions, though. One, I still would not call it a theft because based on everything else I still think it could be construed as an honest mistake, first and foremost in the interpretation of the law. To be clear, it is still a transgression and I think I made that clear from the beginning. But the intent does play a role in law and based on Andy's overall approach to the entire project there is very little that could prove deliberate intent to infringe or steal.

That was my case here. I took exception to the names the guy was called right from the beginning. Most commenters were offended with the fact that he has his opinion, stands by it and tries to explain it. I still can't see what's wrong with that. That's the essence of our system.

Two, I am not complaining about people using strong words, I am complaining about people arguing me instead of my argument - using false statements and personal attacks (spelling, wikipedia, etc.). I am no stranger to strong words, but I don't do ad hominems and I do not offend on purpose. It's cheap, it's low and it reflects back.

rdenney
26-Jun-2011, 21:12
I am no stranger to strong words, but I don't do ad hominems and I do not offend on purpose. It's cheap, it's low and it reflects back.

If it indeed reflects back, it needs no further elucidation. That's the way to avoid getting into an argument about the argument. I realize that isn't always easy, but the provocation in this thread seems pretty mild. I've been accused of worse without even trying to incite argument.

Again, I think it would be hard to use the accused infringer's clearance of music copyrights as a reason to establish honest intent. He clearly knows copyright law, and he knows how to address copyright concerns. He also knows the limits of transformative art versus derivative art. Such knowledge is demonstrated by his clearance of the music copyrights. That undermines any claim of innocent ignorance. (It is true that intent is required for for a charge of larceny--the stealing of personal property--but copyright infringement is not larceny even if it is thievery. And those rules are clear. Even with larceny, intent can be established as simply as "I wanted it." Intent isn't even required for copyright infringement.)

But that aside, the lack of contrition shows intent. When you are I make a "mistake", we seek to correct it when made aware of it. That did not happen here, so clearly the accused infringer used the art on purpose. He thus had no excuse when made aware of its copyright status, unless he thought his treatment of it transformative. I haven't seen him make that argument. Plenty of disinterested observers have made the reverse argument.

There have been many cases where people have claimed ownership of creative property for not other purpose than to extract royalties or penalties from those who create something similar. I cannot imagine how this could be the case here. I bet you'll find a copyright notice in plain view on the old album, not that copyright law actually requires it any more. Clearly the accused infringer saw it.

Rick "it depends on what the definition of 'is' is" Denney

Ramiro Elena
27-Jun-2011, 00:53
Too many people raised in the Internet culture believe "if I can get my hands on it, it's mine."

Too many people raised before Internet culture have no idea about Internet nor Internet culture.


That Andy is a real horse's ass, and I would have liked to see him get jail time or community service had he not settled for a paltry sum.

You don't know the guy... why not the gas chamber while we're at it?

I see so much personal frustration and unresolved anger in most of the arguments it is embarrassing. The guy made a mistake, paid for it. He barely made any money with it, if any at all (the musicians got paid for their contribution.)

Steve Smith
27-Jun-2011, 02:57
As someone earlier remarked, it was a blatant copy of the original photograph.

Isn't this parody? That is classed as fair use as fair as copyright is concerned.


Steve.

Greg Miller
27-Jun-2011, 04:20
I thought this was was over but I see it is not. I really had no intent on commenting further despite what I saw as an inaccurate portrayal in post 59). Post #19 uses the worst pejorative and ad hominem in this entire post (sorry but saying someone "acted like a douchebag" and saying someone "is a douchbag" just aren't that far apart - and in which you did retract in post 26). The fact that Jay is not here to defend it made it all the worse in my mind. This fed on post #13 which also made strong negative assumptions and guesses about Jay and his motives. That is exactly what set the tone for any of my responses - so any of my words that were found offensive were indeed a reflection back. (you say you were "took exception to the names the guy was called right from the beginning" yet you resorted to name calling yourself - see again post 19). So I was totally blown away by post 52 that accused others of name calling and assumptions and guesses. To me it was a case of "Pot, meet Mr. Kettle" and decided to point it out in post #53. If you look at my posting history that I don't go personal unless someone else goes there first. You even took exception to my use of "(sic)" even though you used the same tactic in post 13. So in the end, everything you accused me of doing, you had already done yourself.

Hopefully that explains a little bit about where I was coming from (as opposed to an attempt to incite you further), even if you do not agree about how I interpreted the chain of events. Now let's really move on.

Marko
27-Jun-2011, 06:28
If it indeed reflects back, it needs no further elucidation. That's the way to avoid getting into an argument about the argument.

Sage words. But why not get it one step further and avoid the argument per se, if it cannot be civil? I should've known better than to step into a thread that starts with the words "thief", "perp" and such. It's no argument, it's a lynching mob.

And the funniest thing of all is that that kind of behaviour is becoming a norm in the main area, just like it is most everywhere on the Net, while The Lounge has become awfully sedate and civil lately.

So, if I were to avoid discussion per se, why even participate in any of the Interned fora? Something to ponder...


Again, I think it would be hard to use the accused infringer's clearance of music copyrights as a reason to establish honest intent. He clearly knows copyright law, and he knows how to address copyright concerns. He also knows the limits of transformative art versus derivative art. Such knowledge is demonstrated by his clearance of the music copyrights. That undermines any claim of innocent ignorance. (It is true that intent is required for for a charge of larceny--the stealing of personal property--but copyright infringement is not larceny even if it is thievery. And those rules are clear. Even with larceny, intent can be established as simply as "I wanted it." Intent isn't even required for copyright infringement.)

But that aside, the lack of contrition shows intent. When you are I make a "mistake", we seek to correct it when made aware of it. That did not happen here, so clearly the accused infringer used the art on purpose. He thus had no excuse when made aware of its copyright status, unless he thought his treatment of it transformative. I haven't seen him make that argument. Plenty of disinterested observers have made the reverse argument.

There are mistakes and there are mistakes. He never claimed ignorance of the law, his mistake lays in the interpretation of one portion of the law and then only in one particular portion of his project.

His overall pattern, including precisely his lack of contrition, in that project lead me to conclude that he made a mistake of interpretation and not the mistake of intent and I still think so. The lack of contrition stems from the fact that he maintains his opinion, and I still think he is mistaken, but I also still think the word "theft" is completely inappropriate in this case.


There have been many cases where people have claimed ownership of creative property for not other purpose than to extract royalties or penalties from those who create something similar. I cannot imagine how this could be the case here. I bet you'll find a copyright notice in plain view on the old album, not that copyright law actually requires it any more. Clearly the accused infringer saw it.

This was never the question in this case. Again, it all came down to an interpretation of the portion of the copyright law as it applied to a single aspect of the entire project.

I still remain convinced that all the hullabaloo here (and elsewhere) is completely out of proportion - as Ramiro said, why not simply gas the guy and be done with it? And all those who dare defend him? Or even just understand him, what's the difference anyway?

(Sarcasm alert and it was not aimed at you! I know you know, but a disclaimer seems to be a safe thing to do here... :D)

Marko
27-Jun-2011, 06:56
I thought this was was over but I see it is not. I really had no intent on commenting further despite what I saw as an inaccurate portrayal in post 59). Post #19 uses the worst pejorative and ad hominem in this entire post (sorry but saying someone "acted like a douchebag" and saying someone "is a douchbag" just aren't that far apart - and in which you did retract in post 26). The fact that Jay is not here to defend it made it all the worse in my mind. This fed on post #13 which also made strong negative assumptions and guesses about Jay and his motives. That is exactly what set the tone for any of my responses - so any of my words that were found offensive were indeed a reflection back. (you say you were "took exception to the names the guy was called right from the beginning" yet you resorted to name calling yourself - see again post 19). So I was totally blown away by post 52 that accused others of name calling and assumptions and guesses. To me it was a case of "Pot, meet Mr. Kettle" and decided to point it out in post #53. If you look at my posting history that I don't go personal unless someone else goes there first. You even took exception to my use of "(sic)" even though you used the same tactic in post 13. So in the end, everything you accused me of doing, you had already done yourself.

Hopefully that explains a little bit about where I was coming from (as opposed to an attempt to incite you further), even if you do not agree about how I interpreted the chain of events. Now let's really move on.

I understand where you are coming from and that's why I accepted your apology even though we still disagree on many things.

Now, I'd like to make a few remarks here, just so we are both clear on the disagreement:

1. I don't see how the word "douchebag" could be any worse than the words "thief", "perp", "disgrace" and select others. In both cases, the terms were applied to an individual exercising their legal right(s) who were not present to defend themselves.

The only difference is, I took mine back because I realized it was too strong to describe the sentiment. Which is still there, btw, but that's another topic.

2. As far as name calling and personal attacks, I was referring to their usage as a substitute for argument. I try to argue the issue and it is perfectly OK to argue my argument, however strongly, that's why we're here. But it is decidedly not OK to turn it into a personal attack. That's where the spelling, falsehoods and such come in.

You had a good point about the 'douchebag' being inappropriate and I acknowledged that. Taking it up with my spelling error was something else. It was as unnecessary as it was cheap. My use of (sic!) applied to the argument per se, you applied it to something unrelated, which is a well known fallacy.

3. If you look at my history, you may notice that I don't do personal attacks either and if an odd one does slip, I tend to own up to it. I do appreciate and respect your willingness to discuss this.

Hopefully, we are now in full understanding. Agreement is entirely optional. Kettle out.

Frank Petronio
27-Jun-2011, 07:25
I should have the last word since you jokers won't ever stop. I started the thread. Someone was a dushbag ;-p

rdenney
27-Jun-2011, 08:15
Sage words. But why not get it one step further and avoid the argument per se, if it cannot be civil? I should've known better than to step into a thread that starts with the words "thief", "perp" and such. It's no argument, it's a lynching mob.

And now you are engaging in ad hominem.

Frank started this thread. Frank is one of the guys that keeps things entertaining here. Enjoy it.

Rick "who prefers firing squads" Denney

Frank Petronio
27-Jun-2011, 08:26
I have two demerits already, one more and Kirk will boot me, so I only start the kindling, I let you guys flame each other hahaha

rdenney
27-Jun-2011, 08:35
Isn't this parody? That is classed as fair use as fair as copyright is concerned.

Parody is like transformative art--there is a gray area and it would be up to a jury, based on prior examples from case law. But parody has as its basis humor, so if the jury doesn't laugh, they probably won't buy it as parody. It didn't seem humorous to me, or sardonic, sarcastic, or anything else that might feed parody. It did seem to me that it hoped to use the iconic original to promote the transformation, which is one indicator of intent.

My suspicion is that a lawyer gave the advice, "When you find yourself at the bottom of a hole, stop digging." Pure speculation, of course. The longer it went, the more it was likely to cost.

I'm not much of a fan of using the word "mistake" when it comes to breaking the law, especially in this case when the accused had already demonstrated understanding of the law. I can't channel him, but I can imagine how he might have been treading a line between enough transformation to avoid infringement but enough like the original to trade on it.

Rick "damn--a gate change to a different terminal--time to run" Denney

Greg Miller
27-Jun-2011, 08:35
We love you Frank, even if you are a master instigator;)

Mike Anderson
27-Jun-2011, 08:58
I should have the last word...

Dream on. ;)

...Mike

Ramiro Elena
27-Jun-2011, 09:15
I'm not much of a fan of using the word "mistake" when it comes to breaking the law, especially in this case when the accused had already demonstrated understanding of the law. I can't channel him, but I can imagine how he might have been treading a line between enough transformation to avoid infringement but enough like the original to trade on it.

Man you're stubborn...

I have no idea what makes you cling to this delirious idea. Probably the fact you don't want to admit to being mistaken... just like Andy in fact! :p

My friend Sergio who was part of the project tells me Andy screwed up but he really is a jazz lover and he only wanted to put out a nice homage record.

As for Frank, he might entertain you, not me. He is one hell of a good photographer though.

Frank Petronio
27-Jun-2011, 09:23
Thanks I think...

My point, that I made at the beginning, is not to gloat that Jay "won" although I do support his side of the argument. But the bigger picture is that our culture is shifting so that these young whippersnappers like Ramiro -- and wannabees like Marko! (jk) -- think that appropriating images is OK.

The courts may side with the copyright holders for years to come, but if our society moves in this direction, eventually the courts and laws will too.

That said, I am glad Andy lost and has to pay a significant penalty as I think he is wrong. Photographers won a battle, but not the war.

Ramiro Elena
27-Jun-2011, 09:35
But the bigger picture is that our culture is shifting so that these young whippersnappers like Ramiro -- and wannabees like Marko! (jk) -- think that appropriating images is OK.

Thanks I think... but wrong again.
I was quite active back in the 90's defending photographer's rights. You're just mad because a chinese hotlinked one of your "sexy" photos and you couldn't collect your 3 cents. Now you think the whole world is going to hell.

Also, Rick, Frank... what was all that jabber about third world countries stealing images? You're probably busy trying to find a Chinese or African relative in Andy's family huh? :D

Frank Petronio
27-Jun-2011, 10:16
I didn't mention any third-world hotlinkers or anything of the sort.

You're implying motives and arguments that I haven't made or even thought of yet... and using ridiculous examples that only undermine your credibility.

If you're going to argue, do it with some integrity....

Ramiro Elena
27-Jun-2011, 10:33
Lighten up Frank. If you are going to entertain with threads like this you need to have a sense of humor.
Those motives and arguments are recorded in another thread. I am just using your own words. Not trying to argue, just an inside joke to show the bull you pour.

Frank Petronio
27-Jun-2011, 10:41
Eh haha no problem

Ramiro Elena
27-Jun-2011, 10:57
By the way and now that you bring it up. You do realize the album cover is not a filter or pixelated image of the original album cover right?

It is an image done from scratch pixel by pixel.

Greg Miller
27-Jun-2011, 11:35
Eh haha no problem

Hey - that would be a great album cover - I think I'll use it. I'm putting out a new album soon. It will only sell for $5 so I won't be making much, if any profit - just enough to pay my friends who are the musicians. :D

Ramiro Elena
27-Jun-2011, 11:48
Hey - that would be a great album cover - I think I'll use it. I'm putting out a new album soon. It will only sell for $5 so I won't be making much, if any profit - just enough to pay my friends who are the musicians. :D

No problem with me. Now go tell Getty that and see what they have to say :D

Greg Miller
27-Jun-2011, 11:51
No problem with me. Now go tell Getty that and see what they have to say :D

Just like Andy did, right? :D

Ramiro Elena
27-Jun-2011, 12:27
No but seriously, if you asked nicely and proved your project was small budget, I might think about it. Specially if it was related to something we both share.
It wouldn't be the first time. I've definitely done it with music a few times in the past.

It would be different with that particular image Frank picked, because it happens to be licensed with Getty Images and I presume those guys don't kid around.

Like I said earlier, Andy did not use Maisel's photo and twicked it. It's an image created from scratch (based on Masiel's of course).

Greg Miller
27-Jun-2011, 12:46
I really don't see how Andy arrived at the image copy makes any difference. It is a knock off regardless of the process. It is a bunch of pixels that very closely resembles the original. Maybe Frank created a copy of your image the same way (I'm pretty sure he did not but it is certainly possible).

And without asking, how do we know that Getty (or some other stock agency) does not license the Miles Davis photo? Wouldn't it be prudent to do the due diligence before using the image? And, as you have suggested, wouldn't it be the polite thing to do to politely ask Jay for permission in advance too? That would have saved all involved a lot of time, aggravation, and money. We don't have to assume that this did not happen. If Andy had asked, he would have either had permission, or known that there would trouble ahead.

Andy is probably lucky that it was a team of Jay Maisel attorneys going after him rather than a team of Getty Images attorneys.

rdenney
27-Jun-2011, 12:54
Lighten up Frank.

With all due respect, your argumentation method precludes that.

If Andy made a mistake, as your friend-of-a-friend account suggests, then why didn't he just say so? I'm going by what he said and what he did. I do speculate, but transparently.

Maybe you are right, but your "victim" isn't supporting your argument very well.

Rick "the road to Hell and all that" Denney

patrickjames
27-Jun-2011, 12:56
I love the internet! People argue about a blade of grass in a field.

This is real simple. He did it, he got busted, and he wants to whine about it. It is black and white no matter how much grey people try to paint over it.

I am completely with Frank on this one. Without copyright protection creative people won't be able to make a living being creative; and what good is that for society as a whole? There are too many people who want to take others' ideas, because the ideas are good and they have no good ideas of their own, and use those ideas to make money. It is becoming rampant in society. Just look around. One recent video from Rihanna (IIRC) generated lawsuits from two different artists! It is funny how the people that take the IP say they should be able to and whine on about fair use. Or should we say fair for them because they are profiting from it.

There are those who think that IP rights should be abolished. There was a professor of something or other for one of those ivy-league-douchebag producing schools who made an argument against IP rights a few years ago when Congress was trying to pass the Orphan Works bill. My response to him at the time was that we should all go to his house and live there for a while, drive his car, eat his food and f#$@ his wife. Maybe then he would understand what property rights are all about.

Frank is also right about how the system works. Eventually, if lawmakers deem it good for society (i.e. corporations) copyright will go the way of the dodo. The attitude of the people who benefit from creativity is already evident with the amount of "crowdsourcing" going on today. It is only a matter of time before this erodes copyright to the point that it is a joke. Society is already paying for this as a whole as well and it illustrates my point. How many creative musicians are there these days compared to the past? "Artists" (ya right) like Kanye West rip off music for every song (probably legally though). They don't create anything really new. And people eat it up. True creativity gets marginalized by those with the capability to do it and benefit from it.

Ramiro Elena
27-Jun-2011, 13:19
You're absolutely right Greg. He should have gone that way and save himself and Maisel a lot of trouble and money. The lawyers won. Again.


I really don't see how Andy arrived at the image copy makes any difference. It is a knock off regardless of the process.


The difference might be small, but there is one. Another thing to consider that you're missing is Andy was not trying to pass that image as his. It is a tribute record, the image has to resemble the original or it wouldn't make any sense nor be any cool.


Rick, the fact that Andy made a mistake is my friend's opinion, that's why Andy will not say anything about it. Sorry if I wasn't clear about that. I too think he screwed up.

Nothing is black and white. This forum should know that more than anyone :D

Greg Miller
27-Jun-2011, 14:15
The lawyers won. Again.

I agree in the sense that I don't think Andy feels he won, and I am guessing that Jay doesn't feel he won either (he probably just feels the whole thing was a hassle he prefers never happened in the first place). But I'll bet that the attorneys made some profit.

But I think artists in general won too. I'm sure some people will disagree, but I think this helps put more of a burden on the "copier" to prove that a copy is transformative (see the description at the bottom of this post for what is required for a patent), as opposed to the creator having to prove it isn't. Otherwise a creator could spend their entire life (and bank account) protecting their creations (intellectual property) against people trying to copy their work as closely as possible without crossing the line.

This settlement sends a message that if you are copying work, you should be very confident that the work is transformative, or risk the consequences.



The difference might be small, but there is one. Another thing to consider that you're missing is Andy was not trying to pass that image as his. It is a tribute record, the image has to resemble the original or it wouldn't make any sense nor be any cool.

I had considered that. I don't think it changes anything. If you are going to use someone else's intellectual property as a basis for something you are creating, I don't think it matters if you are claiming it as your own or not. It is either transformative or it is not. If it is not, then you need permission from the creator. In this case, it resembles the original and it is not transformative, so permission should be obtained from the originator. A professional photographer does not make a living off of a tribute; A professional photographer make a living off of licensing fees (among other things). It should be up to the photographer to decide if he wants to donate the work, or demand a licensing fee. This is very similar to other intellectual property, such as those protected by patents. If I have a unique idea and achieve a patent; other people cannot fuzzy up the idea and use it without permission, even if their intent is as a tribute to the original. They have to add something unique (transformative) that makes it different and that must "be new, non-obvious, and useful or industrially applicable". And the onus is on the patentee to make the case for this.

Ramiro Elena
28-Jun-2011, 01:02
Greg, the case of patents is different. Don't get me wrong, I am all for copyright laws. I don't think it is cool for anyone to walk in a use someone else's photograph with commercial intents.
If you commercialize a product that's equal or too close to one protected by a patent, you're actually ruining its sales. You are competing.

Even so, it is not always the way the big names want to make us believe. People who buy a Louis Vuitton handbag in the street are never going to buy the real deal. They don't have the money for it. It works the other way around, those who can buy the real deal are not going to walk around with a fake.
So, being an ilegal business and all, I am sorta glad that some people can pretend to have a Louis Vuitton.

Will people choose to buy "Kind of Blop" instead of "Kind of Blue" because it is cheaper?

I'd like to believe the artists won, but in this particular case? I am not sure. Like I said earlier, the lack of proportion in the whole matter will make Maisel look bad to the digital crowd I am afraid.
I wonder if he isn't regretting the chain of events, I wonder if his lawyers saw a chance to make some money at the expense of Maisel and Andy and went for it *. I sure feel different about Maisel now, I see him less cool when he was actually among the coolest of the cool.

Its use was intended for a derivative/transformed cultural project totally related to the original. We're not talking of an image used to sell cat food. That's a detail important enough for me.

While I agree with all who say the image should have been cleared and Andy acted wrong, I refuse to accept his lynching and the false image of someone trying to break the law with obscure tactics.


* My father (a lawyer) told me; "Company culture is driven from the top - if it's the people who make the product, you're good; sell the product, you're OK. If the accountant takes over, look for another job, and if the lawyer takes over, run as fast as you can!" - Alden Hart

Brian Ellis
28-Jun-2011, 06:36
Actually, settling may have been Maisel's decision to be a nice guy. I assure you that his lawyer would have gotten a very large share of that amount. . . .

Really? How can you assure us of that? Do you know the lawyer's fee arrangement?

Brian Ellis
28-Jun-2011, 06:50
Because Andy took the stand that he was right and didn't fold right away, Jay's lawyers could have easily spent 28 hours on the case at $400 per hour to hit their one-third percentage of $32K. Had the case dragged out, they would have needed a lot more to be satisfied.

So where did you learn of this fee arrangement?

Frank Petronio
28-Jun-2011, 07:04
I don't, just speculating that taking a third is customary and a middling NYC lawyer charges $400 per.... Nobody knows the full facts to this case -- and people like Ramiro haven't even read the responses -- so we're just talking....

Brian Ellis
28-Jun-2011, 07:05
You're absolutely right Greg. He should have gone that way and save himself and Maisel a lot of trouble and money. The lawyers won. Again. . . .

Really? So how much did the lawyer get paid?

Ramiro Elena
28-Jun-2011, 07:21
I could ask Andy if you're really interested but I am kind of bored with the whole thing already. I don't usually get too involved in these silly threads passed three or four replies (except for this one since I know people in the project.)

But you're right, a lot of talk and little facts.

Brian Ellis
28-Jun-2011, 07:23
I don't, just speculating that taking a third is customary and a middling NYC lawyer charges $400 per.... Nobody knows the full facts to this case -- and people like Ramiro haven't even read the responses -- so we're just talking....

I actually haven't even seen anything indicating the relationship between Jay and his lawyer. For all I know - or anyone else here knows (except apparently Rick and Ramiro) - the guy is a friend of Jay's and did if for free or for a greatly reduced hourly rate or on the basis of getting a percentage of everything recovered over a certain amount and nothing if under that amount or on the basis of a reduced hourly rate up to a certain amount and a percentage if it went to court and a different percentage if it was settled or nothing if it was settled before the lawyer devoted a certain number of hours to it and a reduced hourly rate after that against a percentage of the amount recovered - or on any other of the innumerable bases on which a lawyer and a client can agree on the terms of the representation.

But of course why should a complete lack of any knowledge about the terms of this particular representation were stop anyone from telling us all about it?

Greg Miller
28-Jun-2011, 07:26
I'd like to believe the artists won, but in this particular case? I am not sure. Like I said earlier, the lack of proportion in the whole matter will make Maisel look bad to the digital crowd I am afraid.
I wonder if he isn't regretting the chain of events, I wonder if his lawyers saw a chance to make some money at the expense of Maisel and Andy and went for it *. I sure feel different about Maisel now, I see him less cool when he was actually among the coolest of the cool.

I'm just guessing, but I doubt that Jay regrets the actions. He is 80 years old, his place in photographic history is secure, and he has made a strong statement to anyone else who might be thinking of copying one of his images. He is a very smart man and I'll bet the steps taken were carefully crafted. We don't really know what the objectives were for him and his legal team. I doubt it, but it could have just been a big publicity stunt.

I don't know what the "digital crowd" is, but I'm guessing I'm a part of it since much of my work these days is digital. But I doubt if he cares if he looks bad to me. I think the outcome was positive. I don't want someone copying my work, whether personal or commercial, without having a discussion, in advance, about what I will permit, and how much (if any) compensation is required. I think that most people who create original art will see this as a step in the right direction. People who copy art will not. And I am OK with that.

Brian Ellis
28-Jun-2011, 07:47
I could ask Andy if you're really interested but I am kind of bored with the whole thing already. I don't usually get too involved in these silly threads passed three or four replies (except for this one since I know people in the project.)

But you're right, a lot of talk and little facts.

No problem. It's just that I so rarely really know anything about most of the things posted here that when I do happen to know a little (in this case about fee arrangements between a lawyer and client and know how varied they can be) I sometimes go off half-cocked, which I did here.

Mike Anderson
28-Jun-2011, 09:23
I actually haven't even seen anything indicating the relationship between Jay and his lawyer. For all I know - or anyone else here knows (except apparently Rick and Ramiro) - the guy is a friend of Jay's and did if for free or for a greatly reduced hourly rate or on the basis of getting a percentage of everything recovered over a certain amount and nothing if under that amount or on the basis of a reduced hourly rate up to a certain amount and a percentage if it went to court and a different percentage if it was settled or nothing if it was settled before the lawyer devoted a certain number of hours to it and a reduced hourly rate after that against a percentage of the amount recovered - or on any other of the innumerable bases on which a lawyer and a client can agree on the terms of the representation.

But of course why should a complete lack of any knowledge about the terms of this particular representation were stop anyone from telling us all about it?

We do know a little about the relationship between Jay Maisel and his lawyers:

http://harmonseidman.com/

Their fee is a percentage of the settlement.

...Mike

cyrus
28-Jun-2011, 10:05
Let me beat a dead horse some more...

In intellectual property right law, when you have notice that someone has infringed on your intellectual property - whether copyright, trademark, trade secrets or patents -- you're obligated to sue. If you don't sue or otherwise assert your rights, that could be seen as a waiver of your rights, in effect meaning that you've implicitly acquiesced to place your intellectual property into public domain, so that any Tom Dick & Harry can then use your product or photo or whatever.

As for the question of fair use, I don't think it is all that clear cut. You can use someone else's photos if you're using them for commentary, parody, editorializing or educational purpses about that photo. I can therefore quite legally take a famous photo, put it on my blog, makes changes to it etc. if I am making a comment about that photo. (Which makes sense if you think about it - after all I can't talk about or criticize a photo without showing it.)

Was the pixelation intended as such? A statement or commentary about the photo itself? Seems to me that would have been a winning argument.

Steve Smith
28-Jun-2011, 10:47
when you have notice that someone has infringed on your intellectual property - whether copyright, trademark, trade secrets or patents -- you're obligated to sue.

Whilst it might be a good idea to sue (in some cases) it's certainly not an obligation.


Steve.

cyrus
28-Jun-2011, 11:46
Whilst it might be a good idea to sue (in some cases) it's certainly not an obligation.


Steve.

But if you don't assert your rights - somehow - you can lose them. It may be just a simple telephone call, of course, if the other side is amenable.

Jay DeFehr
28-Jun-2011, 12:00
In this particular case, I agree with Andy that the work was transformative. I also agree that this case makes Maisel look bad, just like all those musicians fighting Napster looked bad. Intellectual property is inherently communist, and resists privatization. Consider fan fiction; a genre based entirely on copyright infringement. Has JK Rowling ever sued a fan for infringing her copyrights by writing fan fiction? Some of these FFs run longer than the original works that inspired them. But the answer is, no she hasn't. Why? I can't speak for her, but I think it's never a good idea to threaten or sue one's fans. I further think that photographers who worry a lot about "protecting" their images are living in the past. The world no longer has much need of a professional class of photographers, and the remaining need is withering daily, and I think the same can be said for artists, in general, since so many are willing to work for the intrinsic rewards alone.

Andy's mistake was not in failing to sufficiently transform Maisel's work, it was in failing to sufficiently transform the marketing of Kind of Blue. Since Andy offered Kind of Bloop for sale, and put in place mechanisms to control its use, he was not able to make the kinds of distinctions he otherwise could have when making his argument about fair use, which is why (I suspect) he settled. If Andy had made Kind of Bloop freely available, even if he had solicited donations to benefit the artists, he could have made the kind of cultural distinction on which his project was based a central part of his defense, if he needed to defend himself at all. Maisel failed to understand how his work was transformed, at least in part because Andy's use of the transformed image was too similar to Maisel's use of his own work.

Now I intend to download a pirate version of Kind of Bloop and the the pixelized cover art to go with it. I hope both sides of this dispute will learn from their mistakes.

Mike Anderson
28-Jun-2011, 12:02
Jay Maisel made a mistake in not giving more direction to his law firm for cases like this. He should have told them something like:

I'd like you to help enforce my copyrights, but in cases where the infringer is a cool young guy with blog and a family, and he really truly didn't think he was doing anything wrong, let's try and be compassionate and not so heavy handed. In these cases let's not go after any monetary damages because it can be very stressful. And since we won't be seeking any money I'll pay your fees out of my own pocket.


...Mike

Greg Miller
28-Jun-2011, 12:12
Jay Maisel made a mistake in not giving more direction to his law firm for cases like this. He should have told them something like:

I'd like you to help enforce my copyrights, but in cases where the infringer is a cool young guy with blog and a family, and he really truly didn't think he was doing anything wrong, let's try and be compassionate and not so heavy handed. In these cases let's not go after any monetary damages because it can be very stressful. And since we won't be seeking any money I'll pay your fees out of my own pocket.


...Mike

How do you know that did not happen?

Mike Anderson
28-Jun-2011, 12:19
How do you know that did not happen?

Because Maisel and his lawyers got 32K from Andy Baio. (Or maybe he did instruct his lawyers not to go after money and they disregarded them.)

...Mike

Greg Miller
28-Jun-2011, 12:22
Because Maisel and his lawyers got 32K from Andy Baio. (Or maybe he did instruct his lawyers not to go after money and they disregarded them.)

...Mike

Or the lawyers advised him as to why that would not be wise form a legal perspective.

You do not know.

Mike Anderson
28-Jun-2011, 12:28
Or the lawyers advised him as to why that would not be wise form a legal perspective.

You do not know.

I see what you're getting at. Yes, that certainly could be the case.

...Mike

cyrus
28-Jun-2011, 12:43
Has JK Rowling ever sued a fan for infringing her copyrights by writing fan fiction? Some of these FFs run longer than the original works that inspired them. But the answer is, no she hasn't.

Yup, she sure has.
http://tinyurl.com/5o3ru7
What's particularly galling about this is that the fan fiction in this case was an encyclopedia based on the Harry Potter series, a reference guide which amounts to commentary on a piece of fiction. Rawlings complained mainly that it would interfere with her own planned encyclopedia. In other words, a book she hadn't even written yet. (The fan's mistake apparently was to take wholesale quotes from the book.)

Jay DeFehr
28-Jun-2011, 13:34
Yup, she sure has.
http://tinyurl.com/5o3ru7
What's particularly galling about this is that the fan fiction in this case was an encyclopedia based on the Harry Potter series, a reference guide which amounts to commentary on a piece of fiction. Rawlings complained mainly that it would interfere with her own planned encyclopedia. In other words, a book she hadn't even written yet. (The fan's mistake apparently was to take wholesale quotes from the book.)

I stand corrected. I think her case is also a mistake.

PViapiano
28-Jun-2011, 13:46
just like all those musicians fighting Napster looked bad. Intellectual property is inherently communist, and resists privatization.

Really??? I mean, really? :eek: The musicians only looked like demons to the ones who didn't want to pay for the CDs. Songwriters only make money when the CD/album they appear on sells a copy or is played on public media.

If a songwriter expects remuneration for their work, you think that's communistic? That any creative act should be a part of the public commons? Really?

cyrus
28-Jun-2011, 13:57
Anyway, personally I don't have a problem with creative people being able to make money off their product by giving them exclusive rights.

BUUUUUTTTTT... for life of the author plus an additional 70 years? Come on, that's just too long.

In comparison a patent last only 20 years -- even though far more expense and effort may be put into creating something patentable (a new invention which has to be new and different from everything already invented) than something copyrightable (a photograph or song etc - doesn't have to be new or very different from things already created.)

That extention of copyright was the doing of Disney Co who wanted to protect their Mickey Mouse stuff.

If we had a reasonable term for copyright protection much of these disputes would be moot.

Jay DeFehr
28-Jun-2011, 15:40
Really??? I mean, really? :eek: The musicians only looked like demons to the ones who didn't want to pay for the CDs. Songwriters only make money when the CD/album they appear on sells a copy or is played on public media.

If a songwriter expects remuneration for their work, you think that's communistic? That any creative act should be a part of the public commons? Really?

If a songwriter expects remuneration for his work, it's capitalistic, not communistic. My point is that it's very difficult for the songwriter to prevent anyone from singing his song, because intellectual property is inherently communistic, and resists privatization.

The Napster-fighting musicians didn't look like demons, they just looked ridiculous, because millionaire rock stars threatening their teen-aged fans is ridiculous. There is no good reason rock stars should be millionaires. The fact that they can be is an accident of history, and nothing more.

It used to be that rock bands toured to promote their album sales. That arrangement made rock stars possible, because there was potentially no limit to the number of records they could sell. Post-Napster rock bands upload their music for free to promote their live concerts. This arrangement is far less likely to produce millionaire rock stars, because there is a limit to how many live performances they can give. This is a perfect example of intellectual property resisting privatization.

Kirk Gittings
28-Jun-2011, 16:28
The fan's mistake apparently was to take wholesale quotes from the book.
That's not galling thats clearly and unmistakably copyright infringement.

Disney? Disney did all artist a favor.

Napster? Organized Crime.

rdenney
28-Jun-2011, 19:49
...For all I know - or anyone else here knows (except apparently Rick and Ramiro)...

Oh, please. Yes, the lawyer might have been a buddy who did it pro bono.

But it is a reasonable assumption that such is not the case.

Frank's arithmetic is quite reasonable. There is a lot that goes into a civil action, including the initial letters, the demand, the filed lawsuit, the discovery, the expert witnesses (which is the first on this list that is optional in a case like this), and much of this gets spent before a lawyer even knows how good the case is. And that's the basis for deciding how much to demand in a settlement.

It is also quite common for lawyers who work on a contingency fee to get one-third of the settlement or judgment.

I'm NOT one who complains that lawyers don't deserve their share, and my statement in no way means that. They know things non-lawyers don't know, and they worked hard to learn those things. But I have seen many cases firsthand where the size of a settlement was determined by the contingency fee being large enough to cover the lawyer's minimum expectations.

Rick "not seeing this assumption as a statement about character" Denney

rdenney
28-Jun-2011, 19:52
Was the pixelation intended as such? A statement or commentary about the photo itself? Seems to me that would have been a winning argument.

Not when it's used as the cover of a music CD. In that application, it's use is purely commercial.

Rick "noting that one standard of fair use is whether the alleged infringement causes confusion in the marketplace" Denney

rdenney
28-Jun-2011, 19:56
In comparison a patent last only 20 years

Actually, patents are good for a 14-year period that can be renewed once.

Rick "who agrees that current copyright periods are at odds with the original purpose of copyright law which was to get IP into the public domain" Denney

PViapiano
28-Jun-2011, 21:34
First, I don't believe in treating copyright for corporations the same way as individuals. I don't agree with the way Disney has renewed copyrights ad nauseum, but try getting the Court to find otherwise is an exercise in frustration.

Second, life plus 70 years (it used to be around 28 years, I believe) has as its basis the fact that the fruits of a songwriter's business should be able to be passed on to heirs, the same as any other business built by any individual.

Third, while we all exist on the backs of giants to a great extent, the direct use of another artist's work as the basis for a new work that is clearly derivative, is in fact, not creative in the least and is an excuse used by those without original ideas wanting to feel good about their so-called creativity.

Marko
28-Jun-2011, 22:03
I don't know what the "digital crowd" is, but I'm guessing I'm a part of it since much of my work these days is digital. But I doubt if he cares if he looks bad to me. I think the outcome was positive. I don't want someone copying my work, whether personal or commercial, without having a discussion, in advance, about what I will permit, and how much (if any) compensation is required. I think that most people who create original art will see this as a step in the right direction. People who copy art will not. And I am OK with that.

"Digital crowd" are not the people who simply use the digital media, it's the people who create (or at least produce) them. So, I wouldn't count you as one of those, at least until you do something more than use a digital camera and/or Photoshop to create photographs or music and such. Write software programs, engineer digital sensors... or develop websites at the very least.

The concept of Intellectual Property doesn't apply just to photography, nor just the visual arts, nor even just the arts. It also applies to computer software, web applications and other rather technical but still creative and intellectual - and mostly digital - creations.

I used to work in the music industry (or should I rather say "for"?) at the time MP3 and Napster were invented. I remember very well the derision at first, then dismisal and finally the screaming and rage when "they" realized they were being dinosaured by the entire concept. "They" being primarily the music industry execs, but also some musicians. Funny thing is, most of those musicians were the well established ones, who have already made their pile and were more interested in running their little empires than in creating new music. The up and coming ones, the hungry ones if you will, were mostly if not exclusively supporting the entire concept of music sharing. For them, it was a golden opportunity to get their music into people's ears. They weren't concerned about the rights, they wanted to get their music heard.

The whole fight was essentially about distribution rights, not about artists' rights. Most musicians, except those well established ones, make the most money by selling concerts, not by selling records. They get smaller percentage from the sale of their own records then the shoe salesmen! To them, the records are just the vehicle for driving fans into concerts. Those artists are not all that keen on the jihad the RIAA has been waging on their fans in order to supposedly "protect" them. They saw it as Don Corleone's sort of protection that had very little to do with the musicians' rights and a lot to do with RIAA's profits.

Waging war on your fans is simply not a very effective way of protecting your rights. It is actually not effective at all. Just ask the Beatles - when you say Apple today, the immediate association is iPod/iTunes, few people, mostly aging boomers, rembmer the record label by that name. And it is the ultimate twist of irony that the sales of their music that they were protecting all these years finally took off when the very entity they were protecting it from took up selling it for them.

I keep coming back to the statement by Maisel's lawyers about him "feeling violated that his picture was pixelated". Not "copied", not "infringed upon", not even "stolen" but... pixelated? I just can't shake the impression of Maisel's main intent being a vendetta against the method and medium used much more than simply protecting a right. I wonder if the statement about "feeling violated" was delivered with a flick of a wrist... :D

Rayt
29-Jun-2011, 00:44
But aren't the well established rock stars more likely to get pirated then some one album unknown? So by logic shouldn't artists like U2 or the Stones be more likely to protect their rights since they have more at stake? How can you compare the motivations of music legends to people who just made their demos a week ago? When I got out of college I just wanted to work. I didn't care what or for what pay. I just wanted to get my life started. But for someone like Jay Maisel who has paid his dues deserves much more than just a rant on corporate America.

As for he rest I am sure the lawyers were just being specific to the facts of the case.

Ramiro Elena
29-Jun-2011, 00:53
Napster? Organized Crime.

Or the response to a much bigger (not larger) organisation that has been stealing from the artists and their audience for years without competition.

Large corporations have made their own rules in all fields by jumping from the private to the public sector (revolving doors), creating or advising on new policy that helped them stay at the top making millions of dollars.
They even own media corporations that sell you the idea of evil Napster, even tell you what to listen to.

When a new technology appeared... (Marko already explained what happened very well)

They've always managed to turn things into their profit. I remember when the CD came out and we were all sold the idea that records were finished, the new format was so much better! Go out and buy all your music AGAIN but in this nifty great new format! but... at the same price!!?? Even though it costs cents to produce the new format?

That change in technology worked to their profit, the new one did not. What to do? Call it ilegal. If we're not making money, it has to be ilegal.

I am a part time musician and half of my income last couple of years came from gigs. Never charged a dime for my records. 900€ for one night of fun, 4 star hotels, paid flights... oh yes!

Rayt
29-Jun-2011, 01:07
So you prefer the music industry to collapse? Sticking it to the establishment? Kill the fat cats? I pay USD 14 for a CD and am grateful I still can.

Ramiro Elena
29-Jun-2011, 01:47
They dug their own grave. Saw it coming, chose not to do anything about it... I didn't stick anything to anyone except my wife.

Same applies to the car industry. Now, just now, barely... started producing hybrid cars because "they care for the enviroment". I recommend a documentary called "Who killed the electric car."

One's gotta adapt to new times even if we don't like it. Defend some of the good things from past times too, by buying film, chemicals, doing exhibitions, being active in fora etc... but embracing all that's new and use it to our advantage.

I don't want to become a grumpy old man sitting in my rocking chair complaining at all those ilegal things people do on the Internets.

Marko
29-Jun-2011, 06:09
The logic behind it has two aspects:

1. It is not about protecting Intellectual Property from theft (that would be plagiarism), it is about protecting commercial interests, i.e. securing the profit stream. Correction: it was about protecting commercial interests until Mickey Mouse stepped in and turned it into perpetuating commercial interests.

The young and aspiring musicians I mentioned (and I'm pretty sure there are young and aspiring photographers who follow the same logic) have rights too, but the irony is that the Music Cartel is not the least bit interested in protecting their interests, quite to the contrary, they are interested in twisting their arm and having them sign up under conditions as favorable to the label and as adverse to the artist as possible. Only then they start protecting those interests, because now those interests are their own. The musicians largely keep starving until or unless they hit the concert ring.

A free distribution channel that would get their music into people's ears and get them to buy concert tickets would serve the musicians' interests just fine. It was the owners of the established distribution channels that were against this and it is them who support and lobby for increasing "Copyright Protection" laws.

2. Times change, especially when new technologies emerge to nudge them along. Digital technology turned out to be one hell of a change, as we are well aware on this board. ;) Same as above, it is always the established interests that resist it because they have a lot to lose and it is always the up and coming interests that promote it because they have a lot to gain with it.

But the Devil is in the fact that those who resist it end up losing much more. Remember Metallica? That cool rock band that kept resisting the new way and decided to fight their own fans in order to protect the existing order. Whatever happened to them? How many new kids even know about them, much less buy their music?

@Ramiro: I prefer to be a grumpy old man rocking along some cool music in my chair and grousing about other old grumps complaining about everything else... :D

Marko
29-Jun-2011, 06:15
So you prefer the music industry to collapse?

It's already collapsing. But yes, I do.


Sticking it to the establishment? Kill the fat cats?

Yes, by all means! Maybe not kill them, but make them run/work for their money.


I pay USD 14 for a CD and am grateful I still can.

Serves you right. I pay $0.99 per track and I am happy to support the musicians and the new technology while being able to listen to my music anywhere.

But then again, I tend to buy the kind of music that was always very hard or even impossible to buy in the old-fashioned music stores because it would be taking precious rack space from the mainstream pop garbage that was their main milk cow.

You bet I'd like to see those kinds of "music stores" to go away. And I am largely getting my wish these days.

Greg Miller
29-Jun-2011, 06:20
Waging war on your fans is simply not a very effective way of protecting your rights.

So your saying that Jay's lawyer's who specialize in IP law don't know how to protect his rights? It wasn't a bunch of fans that Jay was fighting, it was one guy who he, and his attorney's felt infringed upon his copyright for commercial reasons.

BTW, I write software and develop web sites. I've been writing software since 1977.



I keep coming back to the statement by Maisel's lawyers about him "feeling violated that his picture was pixelated". Not "copied", not "infringed upon", not even "stolen" but... pixelated? I just can't shake the impression of Maisel's main intent being a vendetta against the method and medium used much more than simply protecting a right. I wonder if the statement about "feeling violated" was delivered with a flick of a wrist... :D

I'll bet that the word pixelated was chosen quite deliberately. Not for the reasons you think it was, but for legal reasons regarding whether or not the work was derivative or transformative. Anything the legal team says is much more likely to do with legal positioning than insulting some other art form group. Besides this one sentence, show me one thing, any thing, else that Jay has stated publicly that would support this vendetta theory.

Marko
29-Jun-2011, 06:42
So your saying that Jay's lawyer's who specialize in IP law don't know how to protect his rights? It wasn't a bunch of fans that Jay was fighting, it was one guy who he, and his attorney's felt infringed upon his copyright for commercial reasons.

I am not talking about lawyers at all. They are in business of protecting the rights of those who can afford their services. If the rights didn't need protecting, the lawyers would find themselves out of business.

My opinion is that Jay's rights, along with his image, could've been much better and more efficiently protected with a gentler, more intelligent approach. But as you say, he's a well established, old man who might not care too much about his image and he chose to go nuclear. Too bad for him, too bad for Andy but good for the lawyers and their business.


I'll bet that the word pixelated was chosen quite deliberately. Not for the reasons you think it was, but for legal reasons regarding whether or not the work was derivative or transformative. Anything the legal team says is much more likely to do with legal positioning than insulting some other art form group. Besides this one sentence, show me one thing, any thing, else that Jay has stated publicly that would support this vendetta theory.

It's not a theory, it is simply a feeling I got watching the spectacle. And I still think that both "pixelated" and "violated" (adjective) were chosen for their emotional impact rather than any legal reason. Legal reasons are "theft", "infringement" "transformative" and "violation" (verb!).

"Violated" as an adjective is almost exclusively used to describe the feeling of innocent young girls ogled by dirty old men and as such has a certain indefensible emotional impact.

Except that Maisel is an old man himself, however innocent. How in the world do you get ogled by a pixel? :D

In the end, he didn't even win anything legally speaking, because a settlement establishes nothing, neither guilt nor innocence, it simply settles the matter between the two parties. The only thing he may have won is the satisfaction that he made Andy lose some money, ergo a revenge. And over what? A $5 tribute to an artist whose image made him famous to begin with?

Marko
29-Jun-2011, 06:45
Just to be clear, I still have a very strong impression of an old, established man resisting the change much more than defending his rights. Everything I read and heard points in that direction.

Not a theory, not even a hypothesis - just an impression. An opinion.

cyrus
29-Jun-2011, 07:54
In the end, he didn't even win anything legally speaking, because a settlement establishes nothing, neither guilt nor innocence, it simply settles the matter between the two parties. The only thing he may have won is the satisfaction that he made Andy lose some money, ergo a revenge. And over what? A $5 tribute to an artist whose image made him famous to begin with?

Well, its not that simple. It does establish something: that he retains his rights in his copyright and has no intention of allowing it to fall into public domain. Like I mentioned in this thread previously, if you have knowledge that someone is infringing on your intellectual property rights, you must assert those rights (by filing lawsuits if necessary) or else you risk losing those rights and appearing to have acquiesced to having your intellectual property become part of the public domain.

So (in addition to winning some money) he also made it legally clear that he still retains his rights in this photo, and thus no one else in the future can use the photo and legitimately claim that they thought it was "abandoned" to the public domain. That, I'm sure, was the real victory, not the money. This would be particularly important for an older artist, because copyright protection extends to years after the death of an artist.

Jay DeFehr
29-Jun-2011, 08:02
As the means of production continue to fall to the "group formerly known as the audience", and the cost of sharing drops through the floor, the industrial complex becomes obsolete. This is true in all media. Anyone with eyes can see the music industry as we've known it since the advent of commercial radio is living on borrowed time

When I was a kid I had a stereo with a tuner and a dual cassette recorder/player that allowed me to record music from the radio onto cassette tapes. It was time consuming and laborious, and technically illegal, but I and every other kid I knew made mix tapes from songs played on the radio, and traded them among ourselves. How were we different from the Napster generation? They had better technology. Making and sharing mix tapes was expensive; sharing digital files is not. Nothing changed with digital media but the technology, and the opportunities.

Substitute the photocopier for the cassette recorder, and the same dynamics apply to photography. People want to create, and we want to share, and given the opportunity, we'll do both to the extent the opportunity provides.

cyrus
29-Jun-2011, 08:10
Actually, patents are good for a 14-year period that can be renewed once.

Rick "who agrees that current copyright periods are at odds with the original purpose of copyright law which was to get IP into the public domain" Denney

14 years is for design patents only. For utility patents filed after 1995, the term is 20 years. In either case, significantly shorter than copyright protection.

Patents are supposed to protect the investment of the inventor. An inventor who obtains a patent is required to show that his invention is significantly different from what is already invented/common knowledge. That involves significant investment, not only in inventing something new but also proving that it is different from everythig known to date. So, protecting that investment makes sense.

So, in comparison, does a songwriter, painter or photographer, who need not have created anything novel to obtain copyright protection, and mostly did not make the same sort of investment into his product, really deserve exclusivity rights that extend multiple times longer than a patent? IMHO No, frankly.

cyrus
29-Jun-2011, 08:17
As the means of production continue to fall to the "group formerly known as the audience", and the cost of sharing drops through the floor, the industrial complex becomes obsolete. This is true in all media. Anyone with eyes can see the music industry as we've known it since the advent of commercial radio is living on borrowed time.

Yes and that's why the corporations like Disney were keen to try to get the law to stand in the way of this, much like how the horse-and-buggy industry tried to stand in the way of the auto industry by passing silly laws that - for example - required a runner to jog ahead of all cars carrying a latern and firing a warning shot into the air at every intersection.

That passed.

Jay DeFehr
29-Jun-2011, 08:46
I'd like to start a website where photographers can submit photos directly to the public domain. Anyone could use any of the photos in any way, without anyone's permission, and for free. Maybe something like this exists already?

Jay DeFehr
29-Jun-2011, 08:51
Ah, the Creative Commons at Flickr. Close enough.

PViapiano
29-Jun-2011, 08:59
I think that most folks who tout the Creative Commons would change their minds the minute Merck uses their image in a nationwide advertisement campaign that goes internationally viral.

Jay DeFehr
29-Jun-2011, 09:11
There are several different types of licenses available through the CC, some of which prohibit commercial use. The license I would prefer would allow any use whatsoever, and prevent anyone from placing any restrictions on its use. I sincerely doubt Merck would be interested in using any image anyone else could also use, in any way they choose, but if they did, why should I care?

Jay DeFehr
29-Jun-2011, 09:27
There are over 44 million images licensed through the CC for commercial use at Flickr alone, and over 125 million for non-commercial use.

Kirk Gittings
29-Jun-2011, 10:05
why should I care?

Maybe because they are a 45 billion $ for profit corporation that would charge you up the ars for everything they do/

Jay DeFehr
29-Jun-2011, 10:13
Maybe because they are a 45 billion $ for profit corporation that would charge you up the ars for everything they do/

So I should allow their business model to influence how I share my work? That doesn't make sense to me.

Kirk Gittings
29-Jun-2011, 10:17
Makes perfect sense to me. I donate tons of my work to real charities, real non-profits etc. Because of the work they are doing I am willing to share my work with them. Because of the kind of business Merck is doing I wouldn't give them the time of day wihout being properly compensated.

Jay DeFehr
29-Jun-2011, 10:34
I think the Merck argument is a red herring, but even so, it makes a point; Your default is to not share, while mine is to share. For me, if Merck decides to join the CC and accept my share-alike licensing, I say "welcome".

Mike Anderson
29-Jun-2011, 10:51
I'd like to start a website where photographers can submit photos directly to the public domain. Anyone could use any of the photos in any way, without anyone's permission, and for free. Maybe something like this exists already?

Have you ever heard of "copyleft" (promoted by software guru/activist Richard Stallman)? That might be a framework already worked out you can use. I'm not sure it's completely in alignment with your ideals, but maybe.

...Mike

Jay DeFehr
29-Jun-2011, 11:11
Hi Mike,

Yes, the CC Share-alike license is similar:


This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

Frank Petronio
29-Jun-2011, 11:25
Ah Utopia, isn't it outside of Eugene?

Where everyone is an artist and musician and poet. Magical Mexicans pick up the trash and harvest the ganja. And we all gather around to beat drums and have a nice sweat.

If everything is shared and free it becomes valueless. Nobody will be critical and nothing will be done all that well.... and our culture and civilization will dribble away.

Sorry I rather fight and make messes....

Conflict = Achievement = Money = Art. We're animals. Deal with it.

Jay DeFehr
29-Jun-2011, 11:56
Frank,

Fortunately I don't have to deal with your misanthropic view of culture because it's pure fiction. Nearly all of the work done by members of this forum is done for the intrinsic rewards of creating and sharing. Sure, some hope to profit by their work, but I think that's incidental and not the primary motivation for doing the work, except in a very few cases.

The idea that the only work that's well done is work that's done for profit is cynical at best, and also just plain wrong.

The Apache web server was developed (and continues to be) under a "copyleft" license, and is the dominant web server and has been since its introduction, not despite it's licensing, but because of it.


If everything is shared and free it becomes valueless

The above illustrates not only a shocking lack of imagination, but a near complete ignorance of the world around you. How much does it cost to use Facebook? How much is Facebook valued at?

But even the above example is crass, because it limits value to revenue. A better example of value might be Wikipedia, an free resource without advertising created and maintained by volunteers. Compare Wikipedia to its for-profit competitors and your worries about our culture and civilization should dribble away.



Conflict = Achievement = Money = Art. We're animals. Deal with it.

The above, though it explains nothing of substance, does explain your "art". Deal with it.

Kirk Keyes
29-Jun-2011, 13:19
Ah Utopia, isn't it outside of Eugene?


You mean Springfield???

Frank Petronio
29-Jun-2011, 14:42
Well I know Facebook advertising costs real money, and if you go and use the Facebook logo to advertise another business you're going to be sued for real money.

And while Linux and Apache and all that Open Source stuff was done for free, many if not nearly all the contributors work in the digital industry... for money. They collaborated to build and share tools they needed... so they could do their paid jobs better.

I bet you do work for money too.

Even if you give your photos away, you shouldn't be if you respect and value any of the professional photographers you've learned, befriended, and benefitted from. You're only undercutting and destroying the market... bringing the lowest common denominator to your level.

bdkphoto
29-Jun-2011, 15:36
Just to be clear, I still have a very strong impression of an old, established man resisting the change much more than defending his rights. Everything I read and heard points in that direction.

Not a theory, not even a hypothesis - just an impression. An opinion.

For those of us that know Jay and his reputation in the photo community your "opinion" makes you look foolish.

As to the rest of your thoughts, the bottom line is that the case is NOT a precedent setting case for the digital age, just a simple infringement case with an out of court settlement- common in the business. As to Andy Biao, he might also be a great guy, I think Kickstarter is a great tool, but he just spent $32,000 to NOT use artwork for his album.

rdenney
29-Jun-2011, 16:24
Patents are supposed to protect the investment of the inventor.

Actually, that is not the original intent. The original intent was for patents to provide a means by which the inventor could recoup his investment and make a reasonable profit. That isn't quite what you said, and the difference is that it has an end point.

The intent of patent law was to get patented technology into the public domain sooner rather than later, so that the remainder of industry could benefit from it and improve the state of the art.

This is also the case for copyrights.

Rick "who wasn't aware of the 20-year term on utility patents--thanks" Denney

Jay DeFehr
29-Jun-2011, 16:29
Well I know Facebook advertising costs real money, and if you go and use the Facebook logo to advertise another business you're going to be sued for real money.

And while Linux and Apache and all that Open Source stuff was done for free, many if not nearly all the contributors work in the digital industry... for money. They collaborated to build and share tools they needed... so they could do their paid jobs better.

I bet you do work for money too.

Even if you give your photos away, you shouldn't be if you respect and value any of the professional photographers you've learned, befriended, and benefitted from. You're only undercutting and destroying the market... bringing the lowest common denominator to your level.

Frank,

You've managed to miss every point I made. Facebook can charge advertisers because it's free for users. Facebook wouldn't have the users it does if it wasn't free. Facebook didn't sell advertising until it had millions of users. If the implications of the above facts are lost on you, so be it.

Yes, people who share and collaborate also participate in the economy. That's quite a revelation, Frank. Tell me, what is the motive for all of the millions of contributors to Wikipedia? Does it matter at all that they probably have paid jobs unrelated to Wikipedia?

I shouldn't share my photos because it weakens the photo market? In what century are you living? If professional photographers can't compete with amateur photographers, then we don't need professional photographers. And that's just the point, we don't need professional photographers any more than we need journalists or publishers, or DJs, or TV Weathermen. These professions belonged to another era, before the means of production was available to nearly everyone, and before the cost of sharing, or making work public was almost nothing. These professions are vestigial, and will fade into history in the coming decades, along with telephone booths, drive in movies, newspapers, corporate radio and television. Wake up, man.

Frank Petronio
29-Jun-2011, 18:03
Jay D., etc.

Eh we're not going to change each other's minds. Goodnight!

Jay DeFehr
29-Jun-2011, 18:06
Goodnight, Frank.

Marko
29-Jun-2011, 19:45
Well, its not that simple. It does establish something: that he retains his rights in his copyright and has no intention of allowing it to fall into public domain. Like I mentioned in this thread previously, if you have knowledge that someone is infringing on your intellectual property rights, you must assert those rights (by filing lawsuits if necessary) or else you risk losing those rights and appearing to have acquiesced to having your intellectual property become part of the public domain.

So (in addition to winning some money) he also made it legally clear that he still retains his rights in this photo, and thus no one else in the future can use the photo and legitimately claim that they thought it was "abandoned" to the public domain. That, I'm sure, was the real victory, not the money. This would be particularly important for an older artist, because copyright protection extends to years after the death of an artist.

As you say, it's not that simple. This wasn't a case of anyone claiming the rights to his work, nor copying it outright. This was a case of interpretation - quite possibly wrong in my opinion, as I said earlier - of the fine line between "transformative" vs. "derivative" nature of the work, which would consequently be the difference between "infringement" and "fair use".

Also, I agree that the rights owner needs to actively assert those rights, but there are quite a few steps that could be taken before filing an actual lawsuit. I like your qualification of "if necessary". We as a society seem to have lost any sense of nuance and seem all to happy to just go for the throat.

A little good will can go a long way, and a careless lack of it even longer.

rdenney
29-Jun-2011, 20:14
Also, I agree that the rights owner needs to actively assert those rights, but there are quite a few steps that could be taken before filing an actual lawsuit.

Again, I find it impossible for me to contemplate that those steps were not taken. The end point of those steps is contrition on the part of the infringer. Without that contrition, the rights have not been pursued sufficiently to defend them in the future. Even in a settlement where there was no fault acknowledged, there was a judgment, and that judgment was public enough to provide that precedent in case of future infringements.

And to other points, yes, there are business models that involve giving stuff away. It's not just Facebook and it is not unique to the digital age--many local newspapers are free to readers (and have been for decades, if not centuries) because of what they charge to advertisers--but those are business models, not non-business models. Those business owners adopted those models for purely commercial reasons, and those models are identical to Google, etc. Just because the free rags that depend on advertising are successful in their own way doesn't mean that it is somehow wrong for the big dailies to charge their readers. Nor does it mean that the free rags are somehow morally elevated above those that are not free.

There are some in the open-source community that do indeed adopt a software-commune economic model, but I agree with Frank that many of them can afford to do so because of the wealth they earned (and in many cases still earn) the old-fashioned capitalistic way. Even music groups that give away their MP3 files expect those files to bring in audiences for live performances, or to build support for radio airtime that will bring them royalties through ASCAP.

I don't agree with Frank that those who give photography away are morally obligated not to in support of those who intend to make money from photography. If there is value in photography worthy of charging for it, then those who charge are obligated to provide that value. It may be as simple as being able to produce enough work to satisfy the demand, or it may be that one who is successful commercially has found a way to uniquely fill a need. It is always challenging to be successful in an activity that is so fun to do that people are willing to do it without compensation.

I was reminded recently that I am a mere weekend hobbyist who does not display the skill obtained by someone who has done commercial work for 34 years, as if that had ever been in question. That's fine with me--I already have a job.

Rick "who has done many weddings for free for those who had to choose between that and having no competent photographs" Denney

Marko
29-Jun-2011, 20:59
For those of us that know Jay and his reputation in the photo community your "opinion" makes you look foolish.

As the old maxim about opinions goes, everybody has one. You are quite welcome to yours.


As to the rest of your thoughts, the bottom line is that the case is NOT a precedent setting case for the digital age, just a simple infringement case with an out of court settlement- common in the business. As to Andy Biao, he might also be a great guy, I think Kickstarter is a great tool, but he just spent $32,000 to NOT use artwork for his album.

Jay Maisel might in reality be as great a guy as you claim, but it is completely irrelevant to all this. Everybody sets their own price and he just set his and his lawyer's price combined to the level of a used Toyota. Whooopie.

This, along with his quoted reason for this kind of approach, has just sent a message that he does not really understand the way times are changing and how important perceptions are. Sooner or later, somebody like Andy will come along but with enough money to back up their principles and go to court to defend them. Once there, it will only take one out of 12 with an impression and opinion similar to mine who would look at their claim and think "$150,000 because you felt violated by your image getting pixelated and all for a $5 tribute project? You gotta be kidding me!" and there will be a REAL precedent set, regardless of all the silly quotations and name-calling.

Marko
29-Jun-2011, 21:14
Again, I find it impossible for me to contemplate that those steps were not taken. The end point of those steps is contrition on the part of the infringer. Without that contrition, the rights have not been pursued sufficiently to defend them in the future. Even in a settlement where there was no fault acknowledged, there was a judgment, and that judgment was public enough to provide that precedent in case of future infringements.

I find it impossible to contemplate they were without them being mentioned. Again, both sets of lawyers approved Andy's account of it and he clearly states that they opened up by asking for $150,000 per infringement, which is to say per each $5 in revenue (not even profit) plus another $25,000 per DMCA.

Try as I might, I can't even begin to fathom how is it proportional to the violation (there's that word again)! As I said in my previous post, that law and those kinds of penalties were created to protect against an abuse by big corporations, proportionate to the level of profits they stood to gain in the process. It was definitely not meant to be used for "educating" and deterring school kids and $5 enthusiast tributes.

Even as much as he might be right, I still think Maisel used a sledge hammer to kill a mosquito, without even realizing the damage he did to the very cause in the process. I routinely create or produce both copyrighted and trademarked pieces in my daily work, I can certainly understand the need to protect the rights. But if his approach made me feel this way at my age (my kids were the original Napster generation), then I can only imagine how some of those new kids who don't have any touch with IP can feel. And they will and already do get to be jurors and even judges... It is only a matter of time before one of them gets a case like this.

Smart thing to do, IMHO, was to consider the goal, the reach and the impression and then accommodate in the way that would both protect his rights and generate a REAL precedent for handling cases like this in the future. Where there is a will, there is a way. He simply didn't seem to have had the will to work on it.

Ramiro Elena
30-Jun-2011, 00:59
Again, I find it impossible for me to contemplate that those steps were not taken.

“I began monitoring my photography licenses for copyright infringement in August 2005 at the urging of my friend, former professional photographer and now full-time copyright litigator, Maurice Harmon of Harmon & Seidman LLC, the law firm he established with his partner, Christopher Seidman. These people have done amazing work for me where other lawyers have been ineffective. They are passionate about protecting the rights of artists and writers. They know photography; they know copyright law; and they know how to litigate in federal court.

Harmon, Seidman and their associates represent clients across the country and overseas. They limit their practice exclusively to copyright infringement, always representing the copyright holders and never the infringers. They earn their fee by charging a percentage of what they obtain for you; no money for you, no fee for them. I highly recommend them.”

World-renowned photographer, Jay Maisel

From this, I get the impression Maisel's line of action is pretty clear which is "go after them".
That being said, I would have contacted Maisel before doing anything with the album cover.


We as a society seem to have lost any sense of nuance and seem all to happy to just go for the throat.

A little good will can go a long way, and a careless lack of it even longer.

Appart from agreeing with every single thing you've said on the topic, I am liking you a lot Marko. "Nuance", what a great word and so related to photography by the way.

Greg Miller
30-Jun-2011, 02:06
I find it impossible to contemplate they were without them being mentioned. Again, both sets of lawyers approved Andy's account of it and he clearly states that they opened up by asking for $150,000 per infringement, which is to say per each $5 in revenue (not even profit) plus another $25,000 per DMCA.



We as a society seem to have lost any sense of nuance and seem all to happy to just go for the throat.

Andy's blog states that both sets of lawyers "reviewed" his account, not "approved".
There is nothing to indicate if the account was complete or even accurate. There may or may not have been prior communication between the two, and if there was you do not know how either Andy or Jay behaved. There is a quite a bit that we just do not know.

So at the end of day you have made your "opinion" based on a bunch of assumptions, and mostly based on what Jay's adversary chose to post on his blog (totally unbiased and complete information of course). With the lack of complete and impartial information, it is impossible for nuance to even enter the equation, yet based on what you have written here, were all too happy to go for the throat against Jay.

Marko
30-Jun-2011, 06:33
Andy's blog states that both sets of lawyers "reviewed" his account, not "approved".
There is nothing to indicate if the account was complete or even accurate. There may or may not have been prior communication between the two, and if there was you do not know how either Andy or Jay behaved. There is a quite a bit that we just do not know.

Nobody mentioned anything about the account being complete, but the fact that both sets of lawyers reviewed it prior to publishing pretty much guarantees that the account was not inaccurate.

(Gotta love those double negations - as repulsive as they may be, they sure have their uses. Just like lawyers... :D).


So at the end of day you have made your "opinion" based on a bunch of assumptions, and mostly based on what Jay's adversary chose to post on his blog (totally unbiased and complete information of course). With the lack of complete and impartial information, it is impossible for nuance to even enter the equation, yet based on what you have written here, were all too happy to go for the throat against Jay.

Yes, there is quite a bit that none of us knows about this, that's why I made it clear that it was just my impression and my opinion. Everybody else seems to be much more certain in their own assumptions.

As for going for the throat, just go back and re-read the qualifications thrown around. In my vocabulary, the terms "thief", "perp", "whining hipster", "disgrace", "astounding", etc. have no place in the same book as the word "nuance", much less in the same sentence.

BTW, I mentioned nuance, or the seeming lack of, in the context of Maisel's enforcement actions. I know better than use that term in the context of this, or any other Internet forum.

Marko

P.S. What's up with the silly quotation marks game? Do you guys really think that they will somehow make my opinion less valid then yours? Don't you have better "arguments", maybe even some real ones? :rolleyes:

cyrus
30-Jun-2011, 08:43
Also, I agree that the rights owner needs to actively assert those rights, but there are quite a few steps that could be taken before filing an actual lawsuit. I like your qualification of "if necessary". We as a society seem to have lost any sense of nuance and seem all to happy to just go for the throat.
.

I for one don't know if this was tried or not, so I can't comment. I would expect a "cease and desist" letter to be issued first, before litigation is started. That's the usual course of things.

Jay DeFehr
30-Jun-2011, 09:23
Again, I find it impossible for me to contemplate that those steps were not taken. The end point of those steps is contrition on the part of the infringer. Without that contrition, the rights have not been pursued sufficiently to defend them in the future. Even in a settlement where there was no fault acknowledged, there was a judgment, and that judgment was public enough to provide that precedent in case of future infringements.

And to other points, yes, there are business models that involve giving stuff away. It's not just Facebook and it is not unique to the digital age--many local newspapers are free to readers (and have been for decades, if not centuries) because of what they charge to advertisers--but those are business models, not non-business models. Those business owners adopted those models for purely commercial reasons, and those models are identical to Google, etc. Just because the free rags that depend on advertising are successful in their own way doesn't mean that it is somehow wrong for the big dailies to charge their readers. Nor does it mean that the free rags are somehow morally elevated above those that are not free.

There are some in the open-source community that do indeed adopt a software-commune economic model, but I agree with Frank that many of them can afford to do so because of the wealth they earned (and in many cases still earn) the old-fashioned capitalistic way. Even music groups that give away their MP3 files expect those files to bring in audiences for live performances, or to build support for radio airtime that will bring them royalties through ASCAP.

I don't agree with Frank that those who give photography away are morally obligated not to in support of those who intend to make money from photography. If there is value in photography worthy of charging for it, then those who charge are obligated to provide that value. It may be as simple as being able to produce enough work to satisfy the demand, or it may be that one who is successful commercially has found a way to uniquely fill a need. It is always challenging to be successful in an activity that is so fun to do that people are willing to do it without compensation.

I was reminded recently that I am a mere weekend hobbyist who does not display the skill obtained by someone who has done commercial work for 34 years, as if that had ever been in question. That's fine with me--I already have a job.

Rick "who has done many weddings for free for those who had to choose between that and having no competent photographs" Denney

Hi Rick,

I'm not sure what point you're trying to make with your comparison of free newspapers to google. It seems to me you think I believe everything should be free, which is not the case. I responded to Frank's claim that the only work done well is paid work, and the only kind of value worth considering is financial. I could cite hundreds of examples in which volunteer work has created real value, but Wikipedia is convenient because it's so well known, and it's hard to ascribe some ulterior financial motive to its contributors. Frank's suggestion that the contributors to Linux act selfishly for financial gain is typical coming from someone who is blind to intrinsic value; call it theory induced blindness. Someone could make a similar claim about Frank's participation in this forum; that he participates to gain exposure for his photography, and thereby increase his profit from it, but even Frank knows that if it's true, it's only partially true. People are generous, and like to share, and given the opportunity, we will. People also like to solve problems and to collaborate, and the rewards derived from contributing to a group effort can be largely intrinsic. It has been shown that offering extrinsic (financial) rewards for work done largely for intrinsic ones, can create a "crowding out" effect, in which the participant feels less rewarded instead of more.

Regarding my claim that intellectual property is inherently communistic, by that I mean that the barriers to sharing are low and largely artificial. The tragedy of the commons doesn't apply to intellectual property the way it does to real property, because intellectual property, like a digital file, can be shared without loss to the sharer. Culture is largely based on the communal nature of intellectual property. Before written language existed, knowledge was transmitted orally, from speaker to listener, or listeners. It cost the speaker no more to speak to a dozen listeners than it did to speak to just one, and by speaking to multiple listeners communal value was created, because each of the listeners could go on to become a speaker, and in this way knowledge was disseminated, and culture evolved. Privatization of intellectual property required technology, a market, and a legal system, but keeping intellectual property private is a constant struggle against the natural order.



It is always challenging to be successful in an activity that is so fun to do that people are willing to do it without compensation.


The above is the essence of my point, but I would argue that the people who participate in these activities are compensated intrinsically. That industries have been created to convert intrinsic value to extrinsic value is an accident of history, based on limitations on sharing, and this is the essence of the digital revolution. It's no coincidence that the same artificial mechanisms employed to privatize intellectual property have been employed to privatize digital content, because it's the same problem, but with important differences. Before the digital age, there were media producers and media consumers, broadcasters and audience, publishers and readers, and the means of production was controlled by one group (media) for consumption by a larger group (audience). The means of production was expensive and required professionals to operate, and broadcast and distribution were expensive. These barriers to participation kept the two groups separate and allowed the media to profit, and more importantly, to control media content.

The digital revolution has put the means of production in the hands of the "group formerly known as the audience", and erased the distinctions between the media producers and the audience/consumers, and in so doing has erased an accident of history. Media professionals of any kind, and those who depend for their existence on the control of media content should consider this fact very carefully. To be sure, there are still dinosaurs walking among us, like Maisel, who cling to that accident of history, and some slightly more evolved hybrids, like Andy, who struggle to adapt that accident of history to the digital age, but both will either adapt or be doomed to extinction in the near future.

Mike Anderson
30-Jun-2011, 11:21
Hi Rick,

I'm not sure what point you're trying to make with your comparison of free newspapers to google...

I think it's a good analogy. Most of the free software and services available aren't produced for altruistic reasons, it's a business strategy. I'll bet even apache.org is largely corporate supported because it's in the corporations' strategic interest.

But you're right in that Wikipedia is largely altruisitic - it is a charity, there are many charities, and charities are good. A level of altruism is built into our species, it's evident all over the place, and right here in this forum.

...Mike

Greg Miller
30-Jun-2011, 12:04
You quoted: Again, both sets of lawyers approved Andy's account of it.
Andy's actual statement (taken from his blog): Again, both sets of lawyers reviewed Andy's account of it.

There is a huge difference between "approved" and "reviewed".

So as for those "silly quotations marks", it indicates that I am quoting you verbatim. It is common practice. Nothing to do with silly games. In this specific case it was used to correct your quote:

But I think you knew this about the quotations marks, since you have used them yourself many times in this thread.

(Gotta love people that use the same tactics that they complain about when other people use them. In this thread alone there has been complaining about quotations, assumptions, guesses, pejoratives, (sic), missing nuances, personal attacks)


My bigger point all along has been that there is more that we do not know than we do now. In connecting the dots, while there may be a couple of dots that lead to Jay being as terrible as the opinion you have for him. But there are many more dots, and dots that are not know to us, that can lead to a very different opinion of Jay.

Just a few things we do not know:
. What relationship, if any, existed between Andy and Jay prior to the album cover incident
. What communication happened between Jay and Andy prior to the demand letter form Jay
. How did Andy respond to any communication, and what was the time of it.
. What was discussed during the months of negotiation after the demand letter (if Jay was out to screw Andy, would he have bother to negotiate at all, much less for months?)
. It would be common practice for any business to contact their attorney prior to contacting someone perceived to be an adversary (possible copyright infringer). Is it possible that the attorneys advised against any other steps (and the consequences of doing so) that what we know and don't know ocurred. Would it be foolish for Jay to go against such advise if it happened?
. What were the objectives of the legal action. Was it money, was it a principle a point, was it sticking to Andy, was any number of things that are possible.
. What previous experience (if any) did Jay have with copyright infringers and how antagonistic were those events? How could those flavor this situation.
What else was going on in Jay's life at the time that may have affected his response. Was his prostate acting up, did his cousin just get killed by a drunk driver?
. What is Jay's perspective of the whole affair. We do not know. Perhaps he would tell us great things about Andy. Or perhaps he would have some not so nice things to say.

What we do know:
. Andy has no-one but himself to blame for putting himself into the position to be sued. He has no-one else to blame for that.

You are entitled to your opinion, but in effect what you are doing is trying Jay with very little information, and much of that little information coming from the alleged victim. Perhaps your opinion is accurate. I have always felt that it was possible, but given the lack of information and given that the biggest source of information could be considered biased (at a minimum in terms of omission of information, if not tone) then there is plenty of room to consider other valid opinions. So the attacks against Jay, which there were plenty, were out of line.

But that is just my opinion.


I mentioned the nuance remark, because I found it ironic that you accuse the internet fora for not being aware of the huge continuum of nuances that exist in the world, yet in this case the nuances are not even know because the larger facts are not known. Yet you chose to ignore all of that and strongly state an opinion which paints a very derogatory picture of a man, that is hardly provable based on known facts, let alone the nuances of those facts, and seem to put little credence on the other possibilities that are equally supportable given the dearth of information.

Jay DeFehr
30-Jun-2011, 12:04
I agree that in some ways google is like advertiser supported newspapers, but that's not very interesting. What's interesting is that Linux can compete with Microsoft. Even if everyone who ever contributed to Linux did so for selfish, financial reasons, which is a fairly wild assumption to make, the fact remains that there is no payroll, no contracts, no corporate structure, in short, no institution. There are no recruiters, or managers, and no demands of any kind placed on the contributors, and no extrinsic rewards promised or given. There is absolutely no evidence that contributing to Linux, or even using it provides an extrinsic advantage over using Windows, yet millions of people do contribute to and use Linux, even when doing so requires them to make certain sacrifices to convenience, or put another way, is more expensive. The business strategy explanation is not very persuasive.

Is Wikipedia a charity? It does solicit and accept donations, but that's where its similarity to traditional charities ends. One cannot write off donations to Wikipedia, for example. Traditional charities consist of one group raising money to benefit another group, so beneficiaries of a charity are typically not also contributors to it. But that's exactly the case with Wikipedia; the contributors and beneficiaries are the same group, and that makes it a very special case.

I know some people have a hard time understanding an economy based on intrinsic value, but that doesn't mean it isn't real.

rdenney
30-Jun-2011, 12:19
Jay, my point was that one does not need to dig down for "intrinsic" value (and I'm using quotes merely because it's your word) to justify gratis business models. And my point was also that such business models are not new.

People have all sorts of reasons for doing things. If those things cost money, then somebody must pay for it. This is true irrespective of economic model.

Rick "succinct when using an iPhone" Denney

Mike Anderson
30-Jun-2011, 12:51
I agree that in some ways google is like advertiser supported newspapers, but that's not very interesting. What's interesting is that Linux can compete with Microsoft. Even if everyone who ever contributed to Linux did so for selfish, financial reasons, which is a fairly wild assumption to make, the fact remains that there is no payroll, no contracts, no corporate structure, in short, no institution. There are no recruiters, or managers, and no demands of any kind placed on the contributors, and no extrinsic rewards promised or given. There is absolutely no evidence that contributing to Linux, or even using it provides an extrinsic advantage over using Windows, yet millions of people do contribute to and use Linux, even when doing so requires them to make certain sacrifices to convenience, or put another way, is more expensive. The business strategy explanation is not very persuasive.

Many, many programmers have been paid big bucks to contribute to Linux. Lots of corporate money has gone into Linux. Many people who contributed were not paid, but it's hardly an all volunteer effort.

Don't get me wrong: free/opensource/copyleft is a great, almost magical force. But just because the end product is free doesn't mean it's completely (or even mostly) the result of unpaid altruism.

...Mike

Kirk Keyes
30-Jun-2011, 13:11
One cannot write off donations to Wikipedia, for example.

The following is from http://wikimediafoundation.org/wiki/Deductibility_of_donations

"Donations are tax-deductible in the U.S.

"The Wikimedia Foundation Inc., a Florida not-for-profit corporation, is registered as a charitable organization with the State of Florida's Division of Consumer Services, a division of the State of Florida's Department of Agriculture and Consumer Services, and may lawfully solicit donations under Florida law. The Foundation has been granted official tax exempt status (section 501(c)(3) of the Internal Revenue Code) from the United States Internal Revenue Service. Tax-exempt status was granted in April 2005 and is retroactive back to the date of creation of the Foundation: June 20, 2003. You may deduct donations from your federally-taxable income. Please contact a tax professional for the details of deducting such a donation."

rdenney
30-Jun-2011, 13:18
Don't get me wrong: free/opensource/copyleft is a great, almost magical force. But just because the end product is free doesn't mean it's completely (or even mostly) the result of unpaid altruism.

Or that it is sustainable without some revenue stream feeding it, even if it's not visible. I wonder how many of those volunteer efforts occurred on company time.

Rick "who does many things just because they need to be done" Denney

Jay DeFehr
30-Jun-2011, 13:52
Rick,

I'm not sure how "gratis business models" are relevant to the discussion, but I agree they exist and are not new.



People have all sorts of reasons for doing things. If those things cost money, then somebody must pay for it. This is true irrespective of economic model.

People do have all sorts of reasons for doing things, and that's a big part of my point. The "if those things cost money" part is important. Which things cost (there are costs apart from money, too), how much do they cost, and who pays are all important questions. Much of what used to cost no longer does, or doesn't cost as much, or doesn't cost the same people, and the list is growing, and it's the implications of these facts that are important.

Mike,


Many, many programmers have been paid big bucks to contribute to Linux.

How many, and how big?


Lots of corporate money has gone into Linux

How much is lots?


Many people who contributed were not paid..

How many?

The answers to my questions are very important if we're to have a reasonable sense of the differences between Linux and Microsoft. That people have been paid to contribute to Linux is insignificant when gauging the overall effort, and if people were paid to contribute to Linux, they weren't paid by Linux, and that is significant. Microsoft budgeted $9.5 billion for R&D in 2010. Linux budgeted $0. I'm not claiming it doesn't cost anything to develop Linux, just that the way it's funded is completely different than the way Microsoft and other traditional institutional models fund their work. The histories of Linux and Microsoft are well documented, and it's fair to say that Linux was developed overwhelmingly by unpaid contributors, and that Microsoft has spent hundreds of billions of dollars in R&D, and that they are competitors.

Kirk,

Thanks, that's good to know! Still, it doesn't change my larger point about the differences between Wikipedia and traditional charities.

Kirk Keyes
30-Jun-2011, 14:17
Kirk,

Thanks, that's good to know! Still, it doesn't change my larger point about the differences between Wikipedia and traditional charities.

Ah, but's it's good to confirm to myself that the $25 I gave them last year was truly deductable!

rdenney
30-Jun-2011, 14:32
I'm not sure how "gratis business models" are relevant to the discussion, but I agree they exist and are not new.

I don't think either one of us would want to be judged on the basis of whether we were staying relevant to the discussion. :) The discussion concerns a photographer whose work was used by someone else, and he successfully sought legal redress.

Some raised questions of whether that copyright should be aggressively protected, or whether doing so was mean-spirited and greedy. Both sides were strongly defended. The existence of digital sharing services and the approach used by many modern artists of various media in giving away their work in the digital realm was used as an example of the obsolescence of the notion of intellectual property, and there was some back and forth about whether that was a good thing or not. And that led to a discussion of whether giving any services away at all was good or not. That's how it seemed to me that the thread drifted.

I merely reacted to the already drifted notion that stuff gets done in a business realm without needing remuneration in dollars. Aside from barter arrangements (for which dollars are a surrogate), it seems to me that the very definition of business is that products or services are provided in return for remuneration, and particularly that the remuneration exceeds the value, however the business person chooses to identify that, of the cost of those products or services. That doesn't mean the business person doesn't also derive satisfaction from the enterprise beyond the merely remunerative, of course.

It seems to me that providing products or services gratis is either 1.) part of a business model that returns a revenue stream in some other way 2.) funded surreptitiously, or 3.) not, in fact, business at all but rather a hobby or a charitable act. All three are common. None are unique to the modern world, it seems to me, but they have been presented, perhaps unintentionally, as some sort of a paradigm shift. In the larger scale, I don't think this is the case.

There are people who make things like Linux (and Wikipedia) happen, but they have to eat, too. When they do work without compensation, they have a motive. That motive might be to build tools they then use to generate revenue, which is quite similar to the gratis model of the advertising newspaper. Or, they sneak the work into the workplace (I suspect this happens quite a lot). Or, they are doing it as a hobby or for altruistic reasons. Or, finally, they are giving away some of their professional work for hire, with or without the permission of their employer, who actually owns that intellectual property. Only one of these does not provide a revenue stream, and that one (hobby; charity) requires external wealth to sustain. None of these are creations of the digital world, of course.

No, I don't know what this has to do with Maisel, but threads sometimes drift.

Rick "closely involved in some crowd-sourcing technologies, as it happens" Denney

Mike Anderson
30-Jun-2011, 15:08
...
Mike,
How many, and how big?
How much is lots?
How many?


Here's a report (http://apcmag.com/linux-now-75-corporate.htm) that says from Dec. 2008 to Jan. 2010 2.8 million lines of code were contributed to the Linux kernel. 75% from corporations (by "people paid to do it"), 18% with no corporate affiliation, and 7% unclassified. ("Lines of code" is a goofy metric but it's somewhat useful.)

So recently most of the work was paid work. I don't know what percentage of the current free product is the result of paid vs. unpaid work - I don't know if that can even be determined. But the corporate contribution is significant.

...Mike

Jay DeFehr
30-Jun-2011, 17:46
Rick,

I think you've missed my point. It's not about "modern artists of various media in giving away their work in the digital realm" as much as it's about redefining what an artist is, and not just artists, but all media professionals. You made the point yourself when you said it's hard to to be successful doing something others do for free, or words to that effect. I interpret your use of the word successful to mean financially successful, because competition has little to do with artistic success, nor does others working for free. A professional photographer competing with an amateur is one example, and an open source software program competing with Microsoft is another. It doesn't matter if the amateur photographer pays a lab to develop his film, or if corporations pay their employees to work on open source software, both examples illustrate a confrontation between economic models which is challenging the old definitions of business, and it does represent a paradigm shift. Sharing is changing the world, and it's made possible by being connected.

PickupPal is a ride sharing service that connects drivers with riders. It's 100% free for users. By using GPS and social networking technologies PickupPal has identified and made available a huge, largely untapped resource. It is so effective a lawsuit was filed by a regional bus company to stop PickupPal from operating in its region. The suit was upheld and PickupPal ordered to cease and desist. A petition was launched by the users of PickupPal and the local government reacted by changing the law to allow PickupPal to operate. This is a paradigm change. It doesn't matter that PickupPal is advertiser supported, or that the riders negotiate payment with the drivers, the important point is that the service is based on sharing, and providing people with the opportunity to do so creates value. The bus company was forced to compete with a network of individuals who owned and operated their own equipment, had no employees, paid no taxes, and were subject to no regulation. The irony is that the goal of public transportation is aligned with those of ride sharers but an institution has to defend itself, even against those with sympathetic goals.

In your breakdown of the reasons people might contribute without remuneration you left some important potential reasons out. People could be interested in the project to which they contribute, they might like collaborating with others who share their interests, they might like the recognition/approval of their fellows, or to demonstrate their expertise. The fact is there are a whole range of reasons someone might be willing to contribute without the promise of extrinsic reward. People have always been this way, but connectivity and a low threshold for sharing is providing opportunities that have never existed, and the ramifications of this new condition are widespread and profound.

What does this have to do with Maisel? He's a member of a soon-to-be-extinct profession fighting a losing battle against the very nature of his own work.

Mike,

Thanks for the article. What's interesting to me is that the corporate world has embraced an open source project to the point of assimilation. The most salient part of the article for me, is the last bit:


While some devices such as network adaptors still needed reverse engineering to work under Linux because vendors would not share information about their architecture, Corbet suggested those examples were rare and that alternative equipment was usually available. "The best thing to do is avoid those vendors. We really don't need them anymore."


The players unwilling to embrace the open source concept are being forced out of the market. That's a paradigm shift.

Frank Petronio
30-Jun-2011, 18:56
Anyway....

The little whiney arty assholes are taking revenge:

http://hyperallergic.com/28169/millionaire-extorts-poor-artist/?wt=2

Marko
30-Jun-2011, 19:27
There is a huge difference between "approved" and "reviewed".

So, what was the point then of having both sets of lawyers go to the trouble of "reviewing" the article prior to publishing if not to clear - i.e. "approve" - it for subsequent publishing? The article did get published and the author did not get sued, ergo the review seems to have resulted in the approval. De facto if not de iure.

I suppose there is also a huge difference between the hair that was split and the one that wasn't. Or even between the hair that was finely split and the one that was just... well, split. :rolleyes:


So as for those "silly quotations marks", it indicates that I am quoting you verbatim. It is common practice. Nothing to do with silly games. In this specific case it was used to correct your quote:

But I think you knew this about the quotations marks, since you have used them yourself many times in this thread.

Actually no, I was talking about completely different sort of quotations marks (bold and red mine for added emphasis):


So at the end of day you have made your "opinion" based on a bunch of assumptions...

You know, the ones you and bdkphoto are wrapping around the word when you refer to my opinion. A method for either assigning it the opposite meaning or to negate any meaning, commonly used in sarcasm, irony and personal attacks. If I remember correctly, it's called "metalinguistic negation" or something along those lines.

That's what made it a "game". Very "smart" but also pretty funny, because as opposed to the two words I just negated through the use of quotes, 'opinion' has no opposite. "Nice" try, though. And "deep" too. Oops, I just did it again…

Are we getting the point yet?

But whatever, if this is the level you want to be at, there's no point arguing about more complicated concepts. I'm gone for the long weekend anyway.

Have a great Independence Day!

Marko

Alan Gales
30-Jun-2011, 19:36
Anyway....

The little whiney arty assholes are taking revenge:

http://hyperallergic.com/28169/millionaire-extorts-poor-artist/?wt=2


Yeah, they're mad at Jay Maisel for being rich after years of producing his own art. They look like fools!

Mike Anderson
30-Jun-2011, 19:42
Anyway....

The little whiney arty assholes are taking revenge:

http://hyperallergic.com/28169/millionaire-extorts-poor-artist/?wt=2

From the article, talking about the poster they made:


One thing I liked about this is that it is actually another form of appropriation- a second degree copy (with further imperfections) of Andy’s copy of Jay’s work.

:D :D :D :D

...Mike

Mike Anderson
30-Jun-2011, 20:04
Anyway....

The little whiney arty assholes are taking revenge:


They don't seem very arty. Apparently making the poster was a "challenge".

...Mike

Marko
30-Jun-2011, 20:25
If we're to quote some people from "the other side", why go for whiney arty (sic!) assholes, why not go with something a bit more mainstream?

http://kottke.org/11/06/andy-baio-was-sued-for-kind-of-bloop

Gizmodo (http://gizmodo.com/5814820/kind-of-a-dick-move)

Techdirt (http://www.techdirt.com/articles/20110624/01393814836/kind-blue-using-copyright-to-make-hobby-artist-pay-up.shtml#c1261)
More Techdirt (http://www.techdirt.com/articles/20110625/01030814852/if-jay-maisels-photograph-is-original-artwork-then-so-is-pixelated-cover-kind-bloop.shtml)

Thomas Hawk (http://thomashawk.com/2011/06/photographer-jay-maisel-extorts-opinion-32500-out-of-andy-baio.html)
More Thomas Hawk (http://thomashawk.com/2011/06/more-thoughts-on-jay-meisel-vs-andy-baio.html)

Marko
30-Jun-2011, 20:26
And here's from a lawyer (http://www.litigationandtrial.com/2011/06/articles/attorney/trademark-copyright-infringement/kind-of-bloop-an-statutory-damages/)

(I don't know him, never heard of him, but he popped out in Google. Take it for what it's worth. I'm just listing different takes I found with a 2-minute search.)

Jay DeFehr
30-Jun-2011, 20:32
Anyway....

The little whiney arty assholes are taking revenge:

http://hyperallergic.com/28169/millionaire-extorts-poor-artist/?wt=2

I hate to say I told you so, but......It was inevitable. Jay won $32,000 and a reputation among young artists as a "sue-happy dick". They really made my point about the communistic nature of intellectual property, and the futility of trying to keep it private. Instead of having an homage to his work on a non-profit music project, he has a monument to his greed on the street where he lives. Expect more of the same.

sanchi heuser
30-Jun-2011, 20:53
They don't seem very arty. Apparently making the poster was a "challenge".

...Mike


ahhh, and the glue makes our fingers so dirty - better to pay someone
for getting our graffiti art installed:D

Rayt
30-Jun-2011, 21:15
A person by virtue of his hard work reaches the top of his profession along with fame and fortune. Someone comes by and takes an iconic image created by this person, alters it without permission and publishes it. This person is upset, calls the lawyers and a process begins and ends with this person with some money. And now according to the sages of Largeformat this person is a greedy bastard.

Suppose it was a large soulless corporation and not that artsy dude? And this evil corporation puts an altered version of this iconic image on an advertisement on. So which side would you take now?

I hear that people really don't appreciate intellectual property until they have something worth protecting themselves. I guess that is true.

PViapiano
30-Jun-2011, 23:21
Kottke says he's disgusted that Maisel sued a "fellow creative artist".

Kind of Bloop wasn't creative...taking Miles Davis tunes and recreating them, note for note, solos and all, with an 8-bit synth, and then using the original cover art (with an 8-bit look). Maybe interesting and a novelty to some, but not creative...

Kind of Blue is a classic jazz masterpiece. Jazz is arguably the apex of musical creativity. Improvisation is the act of responding to a set of chord changes and song forms and interacting with input from other musicians, in that exact moment. That is pure sublime creativity...not transcribing what others did and playing it back with a Pac Man cum Mario Bros cum Commodore 64 sound board.

That's my artist's view...

The business view? If he paid for the rights to the music, why didn't he pay for the image? If he's a good businessman, it was a dumb oversight. If it was a mistake, he's not a good businessman. If it was neither, he was trying to get away with something or create a test case for his ideas of intellectual property.

Ramiro Elena
1-Jul-2011, 00:48
http://kottke.org/11/06/andy-baio-was-sued-for-kind-of-bloop
Gizmodo (http://gizmodo.com/5814820/kind-of-a-dick-move)
Techdirt (http://www.techdirt.com/articles/20110624/01393814836/kind-blue-using-copyright-to-make-hobby-artist-pay-up.shtml#c1261)
More Techdirt (http://www.techdirt.com/articles/20110625/01030814852/if-jay-maisels-photograph-is-original-artwork-then-so-is-pixelated-cover-kind-bloop.shtml)
Thomas Hawk (http://thomashawk.com/2011/06/photographer-jay-maisel-extorts-opinion-32500-out-of-andy-baio.html)
More Thomas Hawk (http://thomashawk.com/2011/06/more-thoughts-on-jay-meisel-vs-andy-baio.html)

...and the street posters, and the hate mail, blogs etc...

32k for all this? Not worth it under my little whiney arty asshole point of view. More so if I was Miles freakin' Davis photographer.


The business view? If he paid for the rights to the music, why didn't he pay for the image? If he's a good businessman, it was a dumb oversight. If it was a mistake, he's not a good businessman. If it was neither, he was trying to get away with something or create a test case for his ideas of intellectual property.

At $5 the album (clearing rights to each track and paying the musicians)... definitely not a good business man.

engl
1-Jul-2011, 01:53
Anyway....

The little whiney arty assholes are taking revenge:

http://hyperallergic.com/28169/millionaire-extorts-poor-artist/?wt=2

Internet mob rule at its finest. The "digital crowd" sure are sticking it to that 80 year old artist.

Most are of course clueless about what they are fighting for or against. Several of the articles/blog posters believe "Kind of Bloop" was either charity or non-profit, which reading from Andy's blog waxy.org, it clearly was not.

Everyone reads one side of the story, told by the self proclaimed victim. "Andy was legally in the right and his usage would have been covered under fair use in court, because that is what Andy said". That is apparently enough to harass Maisel both privately and and in public.

Marko
1-Jul-2011, 04:35
Kind of Bloop wasn't creative...taking Miles Davis tunes and recreating them, note for note, solos and all, with an 8-bit synth, and then using the original cover art (with an 8-bit look). Maybe interesting and a novelty to some, but not creative...

Kind of Blue is a classic jazz masterpiece. Jazz is arguably the apex of musical creativity. Improvisation is the act of responding to a set of chord changes and song forms and interacting with input from other musicians, in that exact moment. That is pure sublime creativity...not transcribing what others did and playing it back with a Pac Man cum Mario Bros cum Commodore 64 sound board.

That's my artist's view...

If I ever saw an irony, this is it, especially coming from a photographer and a musician (in random order)! Could you possibly not be aware of the history and the way jazz itself was viewed in the first few decades?

And seeing an artist trying to define creativity in an attempt to deny it to someone else... it's just rich. :eek:


The business view? If he paid for the rights to the music, why didn't he pay for the image? If he's a good businessman, it was a dumb oversight. If it was a mistake, he's not a good businessman. If it was neither, he was trying to get away with something or create a test case for his ideas of intellectual property.

Except that he didn't even set the entire thing as a business, he basically set it as a non-profit tribute, in action if not words. Venues he set up as businesses seem to be doing just fine.

I think most everybody serious out there agrees that it was just a mistake. Likely a dumb one. Whoever never made one of those is welcome to cast the first stone and all that.

Marko
1-Jul-2011, 04:37
Internet mob rule at its finest.

[...]

Most are of course clueless about what they are fighting for or against.

[...]

Everyone reads one side of the story

None of this, of course, applies to this thread, right? :rolleyes:

rdenney
1-Jul-2011, 08:23
I interpret your use of the word successful to mean financially successful, because competition has little to do with artistic success, nor does others working for free.

...
In your breakdown of the reasons people might contribute without remuneration you left some important potential reasons out. People could be interested in the project to which they contribute, they might like collaborating with others who share their interests, they might like the recognition/approval of their fellows, or to demonstrate their expertise.

...
What does this have to do with Maisel? He's a member of a soon-to-be-extinct profession fighting a losing battle against the very nature of his own work.

"Financially successful" usually means "getting rich" to lots of people, but really I mean "commercially productive". By that I mean that the activity puts food on the table. When it doesn't (as in your series of examples which are all variations of the one I presented--hobby; charity--) the person doing it has to put food on the table some other way. Maybe they beg for donations, in which case the activity becomes revenue-generating with a different means of collecting revenue (Wikipedia is becoming like this). Maybe they get their grocery money from somewhere else. Those somewhere elses, though, operate the old-fashioned way.

I happen to agree that indefinite intellectual property is not productive in a society, and that's the reason why U.S. patent and copyright law was written then way it was originally. But the opposite extreme of intellectual property not being property at all will necessarily result in less of it. People who create it still will have to eat.

As to Maisel being a member of a soon-to-be-extinct class of people, I doubt that is good news for those aspiring to put food on the table by being creative. In any case, many of those who are blogging against him don't seem to me to be considering different approaches to business, but rather they seem to be engaged in class warfare, or in complaining that somebody isn't giving them what they want, with the sole justification that they want it. Maisel himself is 80--soon to be extinct.

I have developed significant software products because I needed them, because I knew how to develop them, and because I enjoyed doing it. My use of the product and my enjoyment was its own reward. But I already had a job, and had I been married, the time I spent developing this software would have come straight from family time. When those products did become commercially viable, I negotiated a licensing arrangement with a commercial distributor. When I could no longer provide a high level of support, I sold the copyright to that distributor. The money from that fueled my photography (such as it is) for a long time back when my salary was even more modest than it is now. If someone wants to use my images for a purpose I agree with, I let them. Yes, that has happened. But the key point is: I don't put food on the table with photography. Expecting people who put food on the table with their creative effort to work without a revenue stream does seem like business at all to me. Thus, some of the new business models may prove not to be sustainable, no matter how much they are cheered by those who don't depend on them for sustenance.

Rick "who, again, is closely involved with technologies that will blossom once a revenue-generating business model is found" Denney

cyrus
1-Jul-2011, 08:58
A person by virtue of his hard work reaches the top of his profession along with fame and fortune. Someone comes by and takes an iconic image created by this person, alters it without permission and publishes it. This person is upset, calls the lawyers and a process begins and ends with this person with some money. And now according to the sages of Largeformat this person is a greedy bastard.

Suppose it was a large soulless corporation and not that artsy dude? And this evil corporation puts an altered version of this iconic image on an advertisement on. So which side would you take now?

I hear that people really don't appreciate intellectual property until they have something worth protecting themselves. I guess that is true.

Ditto.

But frankly I think the fair use argument had a good chance, if someone was willing to risk a trial. It was commentary on the original photo, and by pixelating it the "artsy dude" was characterising how it (and the music) would be in "bloop" form. But that's a moot point. anyway.

Jay DeFehr
1-Jul-2011, 13:30
Rick,

I hope you understand I really enjoy these discussions with you, even though it seems we often disagree.

It seems you want to say something about the necessity of our capitalist system, about which I have some reservations, but accept as the current reality, and about which I have not disagreed. I understand that people in this society need to earn money to participate, but I don't see what that has to do with the fact that people are willing and eager to do a lot of things people also get paid for, without being paid, and for lots of reasons, many of which you characterize under the very broad umbrella of altruism/charity. Doing something for recognition seems to me to be neither altruistic or charitable, for instance. It's a selfish motive that happens to have nothing to do with earning money. The satisfaction gained by being recognized is an intrinsic reward. The same can be said for being part of a group, or demonstrating expertise. And, as you've pointed out, work can offer both extrinsic and intrinsic rewards, so we're really talking about a spectrum spanning from work so universally unpleasant that it offers little or no intrinsic rewards, and which few if any would do without some kind of extrinsic reward, to the other end of the spectrum you described as work so fun people are willing to do it for free, often termed labors of love.

Before the digital revolution, there were only a few ways work got done; by institutions (these could be private, public, for profit, or not for profit, large or small), and by individuals, or small groups of individuals working in collaboration, without a management hierarchy. Let's call the first group the institutional model, and the second the collaborative model. The collaborative model was very limited in the pre-digital age, because the number of collaborators was limited by the difficulty and expense of sharing information among themselves, so the collaborative model was limited to small, mostly local projects, and big projects were left to institutions. Even within these limitations, the collaborative model has been responsible for many of the major breakthroughs in history, from the Invisible College's development of the scientific method and the establishment of chemistry as a science, to the development of the Apple computer by a couple of Steves. We could also include the printing press, aviation, photography, and a nearly endless list of innovations, inventions and discoveries attributable to the collaborative model in the pre-digital age. The digital revolution has provided unprecedented opportunities for the collaborative model and has made projects previously beyond its scope practical, allowing the collaborative model to challenge the institutional model, and often to dominate it. This is made possible by the same conditions that make social networking possible; what's been termed Ridiculously easy group forming, by Sebastien Paquet. This is what allowed a small group of web designers to design a platform for connecting drivers with riders and challenge a multinational transportation corporation, and a programmer to call for help from the online community to develop Linux and challenge one of histories wealthiest, most successful institutions.

The fact that some of the work done in these collaborative models is done for the intrinsic rewards alone is an interesting phenomenon with profound implications. I don't think we should be surprised that people do work without extrinsic rewards, because we all do it to some degree. Have you ever straightened a picture frame in a hotel room, or a public place? If so, why? Was it a charitable act? I don't think so. Not when I've done it. I do it because it bothers me to see a crooked picture. It's unsettling in the same way it's unsettling to see trash on the ground in an otherwise clean place. I do it because it's easier to do it than to be unsettled by it. This point is more important than it might seem. There is a threshold for intrinsic reward. It can't be too difficult or the effort required outweighs the reward. If there are 20 crooked picture frames, or a lot of trash lying around, the effort to set things right outweighs the reward for doing so. Wikipedia is a big project, but anyone can contribute as much, or as little as they like. In other words, the barriers to participation are very low. Wikipedia works because many people can straighten one picture frame instead of one person straightening many.

Look here (http://webs.wofford.edu/pechwj/Motivation%20Crowding%20Theory.pdf) for a description of the Crowding Out Effect as it relates to intrinsic/extrinsic motivations. It's a fascinating read.


But the opposite extreme of intellectual property not being property at all will necessarily result in less of it.

The above is certainly true. The kinds of intellectual property that are expensive and/or provide little intrinsic reward would be less likely to be produced if the property was unlikely to produce an extrinsic reward. Most of what can be considered art falls outside of this category, and many projects few would deem intrinsically rewarding are seen as such by others. Development of a web server seems like just the kind of project that would not get done without copyright protection, and yet it's one of the examples of how effective the copyleft strategy can be. I think the list of intellectual properties that provide so little intrinsic reward, or are so expensive to produce, producers must be paid to develop them, and which benefit society at large and therefore merit copyright protection is much shorter than we might expect. I don't want to get too philosophical, but I think there's a lot of evidence to support the notion that creativity is more of a natural resource than it is private property.


As to Maisel being a member of a soon-to-be-extinct class of people, I doubt that is good news for those aspiring to put food on the table by being creative.

Lots of creative people put food on their tables without the benefit of copyright protection. Maybe it's best to look at the situation in evolutionary terms. Culture evolves, and copyright protection represents artificial selection pressure. When in the process of evolution a component is selected for extinction, the extinction benefits the system as a whole. Capitalism + art = unfitness in an unconstrained system.


...many of those who are blogging against him don't seem to me to be considering different approaches to business, but rather they seem to be engaged in class warfare...

Whether the people offended by Maisel's tactics are motivated by class distinctions or strongly held beliefs about the nature of intellectual property is almost irrelevant. In either case they're reacting to perceived injustice, and they're right. There is nothing just, lawful though it may be, about one creative person suppressing the creativity of another, and the disparity in the parties' wealth is not incidental to the injustice, but emblematic of it.


Expecting people who put food on the table with their creative effort to work without a revenue stream does seem like business at all to me. Thus, some of the new business models may prove not to be sustainable, no matter how much they are cheered by those who don't depend on them for sustenance.

I think you're looking at this the wrong way. It's not that creative professionals will be expected to work for free, but that there will be fewer creative professionals as much of the work they now do is increasingly done by others who earn their bread by other means. It's not some supposed business model that is unsustainable, but the professional status of those who do the work. Consider a wedding photographer (we probably have some lurking among us even now); no one expects a Professional wedding photographer to work for free, but many nuptials are photographed by amateurs/friends/relatives for free, as a gift to the wedding couple. With the state of prosumer digital cameras and the ubiquity of image editing software, the quality disparity between the amateurs and the pros is mostly insignificant to the clients. This isn't a clash of business models, it's a displacement, like the Cro Magnon displacement of Neanderthal.... sort of. In one sense the wedding photographer and Uncle Joe are competing for the wedding, because there are a finite number of weddings, but not for the wedding business. Uncle Joe has no overhead, no schedule, and nothing at stake if he doesn't "get the job", which makes him the worst kind of competition for the Pro. If the Pro loses enough competitions to Uncle Joe, he goes out of business, because his business model is not sustainable.

Ok, that was a long post, but I really do enjoy our discussions, Rick. Thank you for being so thoughtful and civil.

rdenney
1-Jul-2011, 14:47
It's not that creative professionals will be expected to work for free, but that there will be fewer creative professionals as much of the work they now do is increasingly done by others who earn their bread by other means.... If the Pro loses enough competitions to Uncle Joe, he goes out of business, because his business model is not sustainable.

I don't see a difference between a creative professional losing his status as a professional and a collapse of the business model. The business model is indeed built on the assumption of the professional status, and if that status loses out to non-professional competition, the business model will no longer be sustainable.

All business models are based on a revenue stream--this has been my point all along. If the pursuit no longer earns a revenue stream, it will cease to be business. This may be fine with those who use such services, and with those who provide them--I never argued that it wasn't. But we should not think of service provision that provides no revenue stream as a business.

No, I'm not specifically arguing for the capitalist system, which is not really what we are discussing in any case. The capitalist system is when someone who wants to make something and who thinks there is a profitable business in it persuades people of such by selling shares of the company that will do it. The funding of the business plan therefore comes from the owners of the enterprise. This is distinct from models where the enterprise is, for example, created and owned by the state using tax revenues or other levies. We have plenty of examples of both, and each approach has its positives and negatives. Making consumer products favors the former, while maintaining, say, traffic signals and roadways or raising an army favor the latter for the most part. Most of these models have, of course, been tried many times, and there is certainly some gray area where some activities aren't comfortable in one model or the other.

As opposed to the notion of raising capital, we are really talking about property rights, and how they are defined and defended. Copyright law was based on the notion that tangible creative expressions were the property of their creator, who should therefore have a reasonable opportunity to gain commercial benefit from it. ("Reasonable" may be variously defined, of course.) People may choose to give up their property for any of a range of reasons.

(By the way, your conversion of my word hobby to your word altruism changes the meaning considerably--and in doing so excludes the factors you suggested that I did not consider. In fact they are all mixed up in the motivations to undertake a hobby, including the entirely selfish desire to show off one's skills to those who are unskilled. All hobbies are in some measure self-indulgent--let's not pretend otherwise. We often justify hobbies with the possibility of altruistic or charitable application, but often we are just kidding ourselves.)

But there is a difference between giving property up (for whatever reason) and an expectation of those who don't own the property that it should be theirs just because they want it or think they are doing something more important with it. When tracing whatever arguments back to the start of this thread, it seems to me that it comes right down to that.

Rick "who has been both in business and in government" Denney

Jay DeFehr
1-Jul-2011, 16:29
Rick,


I merely reacted to the already drifted notion that stuff gets done in a business realm without needing remuneration in dollars.

My example of the Professional wedding photographer was meant to illustrate just this point. The Professional wedding photographer has a business plan, but Uncle Joe doesn't, yet Uncle Joe is "competing" with the Professional, even if Uncle Joe only photographs one wedding in his entire life. Whether the Pro or Uncle Joe photographs the wedding, stuff is getting done in the business realm, because either way, it affects the Pro's business. Changes in the business environment (the increasing number of weddings photographed by amateurs for free) have put negative selection pressure on the Pro, whose business plan is no longer sustainable.


All business models are based on a revenue stream--this has been my point all along. If the pursuit no longer earns a revenue stream, it will cease to be business. This may be fine with those who use such services, and with those who provide them--I never argued that it wasn't. But we should not think of service provision that provides no revenue stream as a business.

I'm not sure who you're arguing with. I don't remember anyone but you mentioning "gratis business models". The point is that you don't have to be a business to compete with one, or to render a business plan unsustainable/ obsolete.


As opposed to the notion of raising capital, we are really talking about property rights, and how they are defined and defended.

Capitalism was founded on the notion of property rights (and labor as commodity) as a means of raising capital, and the two are inextricably tied. But thinking of real property rights and intellectual property rights in the same terms is a mistake because of the differences in the natures of the categories.

I think reasonable people can agree that the notion of intellectual property is unnatural, in that there is no precedent for it in nature, and that it is itself an idea meant to benefit a few at the expense of many. It is in its essence selfish and greedy. Because we were born in an era of copyrights should not place the institution beyond critique. I think most people who uphold and support the privatization of intellectual works do so because they expect to benefit personally by the practice, and not because they believe it benefits society as a whole.


But there is a difference between giving property up (for whatever reason) and an expectation of those who don't own the property that it should be theirs just because they want it or think they are doing something more important with it.


I don't think the above is a fair description of the opposing points of view. Imagine your example above referred to slaves instead of intellectual property. Yes, all manner of things can be treated as property if there's a collective will. Slave owners considered their slaves their property, and were not inclined to give them up just because someone else objected. It's not that the Union wanted slaves to belong to them instead of to the Confederates, it's that they objected to the idea of owning people. I think this is closer to the ideals of the art appropriators; they don't want to own the art, they just don't want anyone else to, either, and it seems to me it comes right down to that.

Mike Anderson
1-Jul-2011, 17:45
...
I think reasonable people can agree that the notion of intellectual property is unnatural, in that there is no precedent for it in nature, and that it is itself an idea meant to benefit a few at the expense of many. It is in its essence selfish and greedy. Because we were born in an era of copyrights should not place the institution beyond critique. I think most people who uphold and support the privatization of intellectual works do so because they expect to benefit personally by the practice, and not because they believe it benefits society as a whole....

I totally disagree. Imagine if writing (fiction, nonfiction, journalism) had no copyright protection. If nobody could make a living writing all we'd have to read is the work of a bunch of Uncle Joe's.

Imagine if I could simply duplicate someone's blog word for word and replace the name of the author with my name - even bloggers would lose their incentive to communicate.

Rules protecting and rewarding authorship is for the common good. Exactly what those rules should be, well that's another (longer) argument.

...Mike

Jay DeFehr
1-Jul-2011, 18:21
Hi Mike,


I totally disagree. Imagine if writing (fiction, nonfiction, journalism) had no copyright protection. If nobody could make a living writing all we'd have to read is the work of a bunch of Uncle Joe's.

First, I did make an exception for works that benefit society, but claim the list of those works is relatively short. There was literature before there were copyright laws, and some of it was pretty good! William Shakespeare, Thomas Dekker, Miguel de Cervantes, Galileo Galilei, Francis Bacon, John Milton, René Descartes, Thomas Hobbes, Molière, John Locke, and many others wrote seminal works without the protection of a copyright. Hardly a lot of Uncle Joes.


Imagine if I could simply duplicate someone's blog word for word and replace the name of the author with my name - even bloggers would lose their incentive to communicate.

What do you imagine motivates bloggers to communicate? We're communicating now, and copyright protection plays no part in my motivation for doing so, except as a subject for discussion. And there's a distinction to be made between attribution and copyright. A copyright would prevent you from copying the blog even if you left the original author's name in place. I think that's an important distinction.


Rules protecting and rewarding authorship is for the common good. Exactly what those rules should be, well that's another (longer) argument.


Protection of authorship should be for the common good, and that is the argument.

Mike Anderson
1-Jul-2011, 19:06
Jay,

Is it your position that removing all laws governing copying would be for the common good?

...Mike

Monty McCutchen
1-Jul-2011, 20:01
Jay,

It is interesting that several names on your list of writers who did quite well without copyright laws have in fact come into question by many scholars as to whether or not they are the true authors of many of the works they have been credited for. Of course there is no way of knowing and literature departments all over the world have feasted on these debates at a much higher level that you or I could here, but nonetheless it could very well be that those we now credit with genius did in fact pixilate others work right into a place in literary history. Or maybe Homer really did write The Iliad on some bark and history got it right, but my head on collisions with history make me doubt it. My guess/belief is that Cervantes, Shakespeare, Homer et. al were an accident of history where many contributed. To your point yes we have all benefitted from that melting pot with works of literature that continue to inspire, but I'm left to wonder if John Doe down the street toiling away on his sonnets only to have them claimed as fair usage was quite as thrilled as we are that ol' Bill got all the credit.

Monty

Jay DeFehr
1-Jul-2011, 20:31
Mike,

No, that's not my position. I don't know all the laws, and as I've said, repeatedly, I make exceptions for the common good. I think we, as a society, need to consider these questions in the context of the common good, and not in the context of creating wealth for those who are protected by our copyright laws.

Monty,

I'm aware of the attribution controversies, but that's what they are attribution controversies, not copyright controversies. There's no reason to believe copyright protection would have correctly identified the authors' various contributions, since attribution controversies are not limited to pre-copyright literature. And, it should be said that even attribution controversies are a rare exception to the rule. We can be fairly certain the great majority of the authors on my list are correctly identified with their works, and the common good hasn't suffered by the rare uncertainties.

Kirk Gittings
1-Jul-2011, 21:02
I think we, as a society, need to consider these questions in the context of the common good, and not in the context of creating wealth for those who are protected by our copyright laws.

Wealth? Hmmm......it seems to me that for every guy getting wealthy or corporation chalking up another booming quarter are 100,000 guys like me that are just trying to make a living with our art. That is the common good that copyright laws are protecting.

Jay DeFehr
1-Jul-2011, 21:10
Kirk,

No offense, but how is subsidizing your photography good for society?

Kirk Gittings
1-Jul-2011, 21:25
No offense taken, but no one is subsidizing my photography. Its my property. If someone wants to use it they can compensate me for it (or I might choose to give it to them if it is a worthy cause-but its my property and my decision). Copyright protection should not have a time limit to it. My great great grandchildren should benefit from my work.

Night all vacation starts tomorrow.

Jay DeFehr
1-Jul-2011, 21:40
Kirk,

My point is that copyright laws are a kind of subsidy, in that they artificially create conditions that allow you to profit from your work. I'm approaching the issue from the position of no protection, and considering what kind of work deserves protection based on its contribution to the common good. No offense, but I don't think society suffers much by the absence of your work, because so many people do similar work without being paid for it, or requiring copyright protection. In other words, there's no special need for the kind of work you do that warrants special incentives to do it. The same goes for my work, and the work of just about everyone else here, allowing for some special circumstance of which I'm not aware.

Kirk Gittings
1-Jul-2011, 21:47
There is probably nothing more important for society to protect than creativity.

Night night!

Jay DeFehr
1-Jul-2011, 21:51
Kirk,

That a great sound bite, but it doesn't mean much in the context of this discussion. There's no reason to believe unpaid artists are less creative than paid ones, but there are reasons to believe the opposite.

Sweet dreams!

Jim collum
1-Jul-2011, 22:19
your scenario assumes the lack of quality of work, or the lack of desire of quality. Granted.. there are people (probably a lot of people.. considering what the mass of people now consider good entertainment .. ie Housewifes of whereever-the-hell.) who don't care about quality, who consider good-enough is good-enough. But there's another kind of client, who demands quality, and demands that the quality job be done in a certain manner in a certain time-frame, non matter what barriers may arise.

Uncle Joe can't begin to deliver the quality of work that Kirk, or a large number of professionals produce. For those who still believe in 'quality', there will always be professionals like Kirk (architectural vs cheap real estate photography), and those people will happily pay for that quality. Just because Uncle Joe (or the million of other Flickr contributors) can pick up a camera and point it at a wedding, home, advertising campaign, fashion model, doesn't make them qualified to produce the work necessary to satisfy those clients who demand quality. These clients will be around for a very long time, as will the professional photographers who can satisfy them.

Kirk's work (as an example of the professional photographer who's job will *not* be lost due to 'free photography') is his. Jay's work is his. And is his to say who, or who may not use it. Who has the right to dictate what can be done with it. And why does how much a person has earned, dictate that there's a moral right to steal from them.

I can't even begin to understand the mindset of someone who would knowingly steal that work, and then defend it... with a belief that they have a moral right to that work. At least a common thief who steals your physical possessions knows they're in the wrong.

Andy Baio is a theif, plain and simple... no different than someone who breaks into your home and takes your possessions.


Kirk,

My point is that copyright laws are a kind of subsidy, in that they artificially create conditions that allow you to profit from your work. I'm approaching the issue from the position of no protection, and considering what kind of work deserves protection based on its contribution to the common good. No offense, but I don't think society suffers much by the absence of your work, because so many people do similar work without being paid for it, or requiring copyright protection. In other words, there's no special need for the kind of work you do that warrants special incentives to do it. The same goes for my work, and the work of just about everyone else here, allowing for some special circumstance of which I'm not aware.

sanchi heuser
1-Jul-2011, 23:19
I think a photograph is the property of the person who produced it.
No matter if amateur or top professional, if poor devil or millionaire.
The individual should have the freedom to decide who uses the photo and
for what purpose. If the author decides to take money for it or give it away
for free should be his own decision and that decision should be respected by everybody else. Same with texts, music, artwork etc.

I see no difference between a person creating a picture and a person who
constructs e.g. a barbecue grill.
What would you say when people come to your garden and see your barbecue grill
and use it without asking you? I assume you would be very angry.
The other possibility is to ask the owner friendly '"Hey what a nice barbecue
grill, let's make a party together, we bring beer and ribs, what do you think?"
Maybe you have a nice
evening together and become friends.

It needs no university exam to understand what is better for a peaceful society.

Kirk Gittings
1-Jul-2011, 23:22
Kirk,

That a great sound bite, but it doesn't mean much in the context of this discussion. There's no reason to believe unpaid artists are less creative than paid ones, but there are reasons to believe the opposite.

Sweet dreams!

And your motives are very transparent,

Jay DeFehr
1-Jul-2011, 23:31
And your motives are very transparent,

My motives? Motives for what?

Frank Petronio
1-Jul-2011, 23:53
Being a blowhard dush.

Jim collum
2-Jul-2011, 00:30
Kirk,

My point is that copyright laws are a kind of subsidy, in that they artificially create conditions that allow you to profit from your work. I'm approaching the issue from the position of no protection, and considering what kind of work deserves protection based on its contribution to the common good. No offense, but I don't think society suffers much by the absence of your work, because so many people do similar work without being paid for it, or requiring copyright protection. In other words, there's no special need for the kind of work you do that warrants special incentives to do it. The same goes for my work, and the work of just about everyone else here, allowing for some special circumstance of which I'm not aware.

What this statement tells me is that you've never actually provided a professional portfolio of work for a client. I'm not talking a wedding shoot as backup for uncle Joe. I'm talking having architectural digest hire (whoops. Ask you to out of the goodness of your heart) you to provide a cover and images (snapshots?) for a four page article about a new commission by Ghery.

Since I'm pretty sure you at least know how to use a camera, you should be able to do this with what you have on hand.

Oh. And you have four days to do it. So figure it out

Do you actually know what's involved in a commercial shoot, in any field? Fashion, architecture (Sunday real estate shoots are *not* architectural jobs), advertisement. Your comments about Kirk's work clearly tells the answer)

It's always those who can't who find it easy to give away work of those who can. Why didn't Andy use his own image of Miles? What was stopping him from actually creating his own work? Ability?...

Ramiro Elena
2-Jul-2011, 01:54
What was stopping him from actually creating his own work? Ability?...

You guys definitely don't get it and I pressume it is because you just don't want to get it.
Recreating the original cover pixel by pixel is the obvious choice for a project like this. If anyone was trying to "steal", they wouldn't name the album "Kind of blop", they wouldn't mention Miles Davis in the album... it is a tribute record!!! The tracks in it are the same as in the original record! Why shouldn't be the cover an interpretation of the original artwork?

Examples of other similar projects by other outlaws:

"8-bit Dark side of the moon"
Look at how the artwork is an obvious steal of the original. They couldn't come up with an original idea, those thieves! They just replaced the prism with a Game Boy and changed some colors around.
http://1.bp.blogspot.com/-bDgO3fCJU2U/TZISMZ-m28I/AAAAAAAAAOo/L6YITRj4yn4/s1600/dsotmfront300.png http://recuerdosdepandora.com/wp-content/uploads/2010/10/dark-side-of-the-moon.jpg

"Weezer - The 8-bit album"
Oh man! They chose the same background color, they even copied the same typography. How lame is that?! Note the clumpsyness of the "idea" (if you can call it that) the four members of the band were replaced by pixelated instruments! The graphic designer sure must feel like crap now after this violation of his artwork.
http://ptesquad.com/images/albumart/weezerfrontinsert300.gif http://crujonessociety.com/wordpress/wp-content/uploads/2010/04/Weezer-300x300.jpg

Paul Ewins
2-Jul-2011, 02:04
Ramiro, neither of those are direct copies. In fact the changes that are made are quite large while still reflecting the original. They actually get the whole 8 bit thing across. Andy's cover was nothing more than a pixelated version of the original. If Miles Davis had been replaced with Super Mario then it would have been transformative.

Jim collum
2-Jul-2011, 02:12
I get it. But jay's image is his. Period. If a project begins with the required theft of someone else's work, then maybe it shouldn't begin

Gee. My new installation piece require the use of my neighbors personal belongings. That should be reason enough for me to take his car. Huh.

Same thing

That image belongs to jay.

What's criminal is that there was even a question about it.

Ramiro Elena
2-Jul-2011, 02:26
I didn't realize Andy has now Maisel's negative of that image and that all rights from now on are going to be cashed by Andy instead of Maisel.
Andy should be hung high from a tree.

Good thing Maisel got to cash three times from me before Andy the thief came into action since I own three copies of that record (one vynil, two cd's) and of course the copy of "Kind of blop" which went to Maisel after all.

engl
2-Jul-2011, 03:33
Ramiro, those two images are good examples of covers that I would not have an issue with, and probably nobody else in this thread either.

Reducing the palette and resolution of an image is derivative, like the cover of "Kind of Bloop". If this is done by hand or using Photoshop filters makes no difference.

This kind of reduction is necessary when displaying a photo on many devices. You can't include a copyrighted photo in a commercial Nintendo DS game and claim its an "old school reinterpretation" just because the resolution and palette is reduced.

Jim Jones
2-Jul-2011, 05:39
[QUOTE=Jay DeFehr;747227]. . . I think reasonable people can agree that the notion of intellectual property is unnatural, in that there is no precedent for it in nature, and that it is itself an idea meant to benefit a few at the expense of many. It is in its essence selfish and greedy. Because we were born in an era of copyrights should not place the institution beyond critique. I think most people who uphold and support the privatization of intellectual works do so because they expect to benefit personally by the practice, and not because they believe it benefits society as a whole. . . .
QUOTE]

I think reasonable people should agree that the notion of property is natural, with much precedent for it in nature. It can be a matter of life and death to animals who have no opportunity to learn about it from humans. As for intellectual property in animals, it is difficult for many humans to attribute any animal activity to intellectual ability. We are learning otherwise.

The idea that intellectual property benefits a few at the expense of many is often absurd. Property is property, whether physical, intellectual, or emotional. Those with the ability to earn or create property should deserve the right to benefit from it. To think otherwise is to agree with "You work and toil and earn bread, and I'll eat it." Patents, copyrights, and trademarks protect property, and also provide incentive to create. Sometimes the extension of this protection is prompted more be greed than by justice, but protection is still essential. It is the few who flaunt the laws protecting intellectual property who are demeaning the creations that many enjoy. Those few are selfish and greedy.

rdenney
2-Jul-2011, 07:39
First, I did make an exception for works that benefit society, but claim the list of those works is relatively short. There was literature before there were copyright laws, and some of it was pretty good! William Shakespeare, Thomas Dekker, Miguel de Cervantes, Galileo Galilei, Francis Bacon, John Milton, René Descartes, Thomas Hobbes, Molière, John Locke, and many others wrote seminal works without the protection of a copyright. Hardly a lot of Uncle Joes.

But there was a natural protection of tangible expressions in those days: They were technologically difficult to duplicate. But it did happen, and much injustice resulted from it, where a creator died a pauper while others made money on his creations by merely appropriating them. That is why copyright law developed in the first place--technology was making it easier to copy the original works of others.

It should also be noted that much that the technology of duplication is what popularized the sort of art we have been discussing in the first place. It was later than Shakespeare when the notion of the novel appeared. Do you think Samuel Johnson wold have compiled his dictionary without any hope of remuneration? He might have done parts of it. But he also was forced to publish magazines to supplement his meager academic pay, where current topicality reduced the value in copying his work.

Now, duplicating the tangible expressions of others is routinely easy by anyone. Are you arguing that the technological ease of making copies is what makes copyrights obsolete?

And you mention that copyrights would still be appropriate for certain works, comprising a short list. Who would judge that short list? Very few writers or artists are recognized as having societal value at the time when they need commercial productivity. And they need to make that money at the first offering--there is no licensing for writing or visual arts on the secondary market.

Frankly, Jay, the conflation of copyright law and slavery a poor argument. Slavery was a deep moral issue involving fundamental human rights, where property rights had to be balanced against "inalienable rights" in our founding documents, which had been unevenly applied. Eventually, the inalienable rights overrode the property rights, because they are, well, inalienable, while society has placed many more exceptions to property rights (even in the Constitution in the form of imminent domain). Copyrights present no such dichotomy.

Rick "not sure how much longer this can go on" Denney

Mike Anderson
2-Jul-2011, 07:59
...
Examples of other similar projects by other outlaws:
...

Ramiro those three examples you show, to my untrained eye, are much are much more removed from the originals than the 'Kind of Bloop' cover.

...Mike

Jay DeFehr
2-Jul-2011, 08:28
Jim,

I think there's a fundamental misunderstanding of the various principles at work, and my position regarding them.


For those who still believe in 'quality', there will always be professionals like Kirk (architectural vs cheap real estate photography), and those people will happily pay for that quality.

Always is a long time, and we're in a period of very rapid cultural evolution, so, while I don't agree to the term always, I agree that into the near future there will likely be people willing to pay professional photographers, and professional photographers willing to be paid. This, however shouldn't presume the necessity of copyright protection.


I can't even begin to understand the mindset of someone who would knowingly steal that work, and then defend it... with a belief that they have a moral right to that work. At least a common thief who steals your physical possessions knows they're in the wrong.

Andy Baio is a theif, plain and simple... no different than someone who breaks into your home and takes your possessions.

Clearly you make no distinction between the world of ideas and the world of things, which explains your inability to understand the position of anyone who disagrees with you about there being a distinction.


What this statement tells me is that you've never actually provided a professional portfolio of work for a client.

What this statement tells me is that you must personalize every argument. Kirk seems to be claiming without copyright protection he couldn't earn money from his photography. You too seem to equate being paid with copyright protection, as if neither is possible without the other. These attitudes suggest a fundamental misunderstanding of the concepts.

Hi Sanchi,

I think you're missing a critical element in the disagreement, as illustrated by your example:


I see no difference between a person creating a picture and a person who
constructs e.g. a barbecue grill.
What would you say when people come to your garden and see your barbecue grill
and use it without asking you? I assume you would be very angry.
The other possibility is to ask the owner friendly '"Hey what a nice barbecue
grill, let's make a party together, we bring beer and ribs, what do you think?"
Maybe you have a nice
evening together and become friends.

What if your neighbor saw your barbecue and said, "Hey! Great idea! I'm going to build one of those for my family, so we can enjoy the same benefits you do."

And you replied, "If you do, I'll sue you and take your house."

Is this better for a peaceful society?

Jim Jones,

The distinction between physical things and ideas is a critical one, as illustrated in the example above. It's also important to separate the concepts of being paid for work, and copyright protection. If someone hires you to build a fence, they don't pay you again if they build the next one for themselves, because that would be unfair.


Patents, copyrights, and trademarks protect property, and also provide incentive to create.

Or, put another way, these devices artificially create conditions for acquiring wealth. Sometimes incentives are necessary to get work done that wouldn't get done otherwise, and which benefits society. No artificial incentives are required to persuade people to photograph Miles Davis, for instance.


It is the few who flaunt the laws protecting intellectual property who are demeaning the creations that many enjoy. Those few are selfish and greedy.

The above is an important point. How does copying a work demean it, or detract from the enjoyment of the original work?

Jim collum
2-Jul-2011, 09:08
Jim,



Clearly you make no distinction between the world of ideas and the world of things, which explains your inability to understand the position of anyone who disagrees with you about there being a distinction.



What this statement tells me is that you must personalize every argument. Kirk seems to be claiming without copyright protection he couldn't earn money from his photography. You too seem to equate being paid with copyright protection, as if neither is possible without the other. These attitudes suggest a fundamental misunderstanding of the concepts.


I very much understand the distinction. I hold them to be very similar.. the idea is mine. the result from my creative process is mine...period. It is a tangible that came to be thru creative thought and effort. It did not come from some great collective, having chosen my mind at random to bring forth this idea for the benefit of all.... it came thru my ability, and my mind. For some reason, you feel that because this came from my mind, instead of the physical effort of my muscles, it belongs to all, for the good of all.... sorry.. i hold *that* concept as about as contemptible as any i've heard. You're not the first to come up with this idea. I just rarely expect to see it bandied about among people who value and engage in the creative process.... it usually arises from those who lack that creative process. Sorry... I cannot believe that anyone who *has* experienced this, can believe what you do.

And to vilify Jay because he has made money from this process...Good God.. a rich photographer... it should be celebrated.. we should have a Jay Maisel Day. Do you know how *rare* (and how precious) that is? (that was rhetorical... since we wouldn't be having this conversation if you did).

There is no way you will change your mind.. and frankly.. and honestly.. i would fight to my death to protect what is *mine*... which is the result of my creative process. What i create may not bring me riches, or even a dime... but no one, *ever* should benefit from these ideas (and the creation of a photographic image *is* an idea), unless I give that permission.

I don't engage much in forums... but the idea you bring here is so obscene, that I couldn't sit back and just read. The world you show me is very grey (nothing wrong with grey.. as long as it's not the *only* tone/color there is)

As Frank has said already... he's out of the conversation... as am I (i don't see this as a conversation as much as a thief telling me he has the right to walk into my home and take what he will, and I should thank him for it)

btw, Jay.. i am curious.. what do you do for a living? do you have any of your creative work online for us to see (normally I don't call for someone's work.. but I'm interested in seeing the output from someone who claims rights to Kirks, Franks, Jays...or even mine)

Jay DeFehr
2-Jul-2011, 09:15
Hello again, Rick,


....injustice resulted from it, where a creator died a pauper while others made money on his creations by merely appropriating them. That is why copyright law developed in the first place--technology was making it easier to copy the original works of others.

I don't think the above is quite accurate. The origins of copyright law were in censorship, allowing the various monarchies of Europe to control what was printed. The Statute of Anne, the first copyright law, was enacted to "Encourage men of learning to write useful books" and to establish a public domain, whereas before its enactment all literature belonged to the booksellers forever.


Do you think Samuel Johnson wold have compiled his dictionary without any hope of remuneration?

I think the largest encyclopedia in the history of the world was created without hope of remuneration.


Are you arguing that the technological ease of making copies is what makes copyrights obsolete?

No, I'm arguing that the concept of intellectual property is a mistaken one, and confuses the material and the intellectual. See the list of previous posts for examples.


And you mention that copyrights would still be appropriate for certain works, comprising a short list. Who would judge that short list?

Society would. The same society that judges what is in the best interest of society in all the other cases where it's necessary to do so. The same society that judged copyright laws useful.


Frankly, Jay, the conflation of copyright law and slavery a poor argument.

I disagree. I think it was a very good example of how the concept of property can be misapplied, and how objections to that misapplication are different than a simple dispute over ownership of the property. Incidentally, I believe the misapplication of the concept of property to ideas is a deep moral issue, as well.

Mike Anderson
2-Jul-2011, 09:24
...
Or, put another way, these devices artificially create conditions for acquiring wealth....

I don't know if they're more artificial than most products of existing cultures, but I'd argue that they artificially create conditions to reward creativity. If those conditions didn't exist, much (not all) of the energy applied to things that are easy to copy (e.g. ideas) would be applied to things that are hard to copy (e.g. tangible things).

Hence those artificial conditions promote common good.

(I do think in many ways IP protection is way overboard, being able to patent life forms and things like that, but that's really a different issue.)

...Mike

Jay DeFehr
2-Jul-2011, 09:52
Hi Jim,


I very much understand the distinction. I hold them to be very similar..

That's great! Thanks for that, Jim.


..the idea is mine. the result from my creative process is mine...period. It is a tangible that came to be thru creative thought and effort.

Ideas are intangible, Jim; that's the whole point.


It did not come from some great collective, having chosen my mind at random to bring forth this idea for the benefit of all..

Are you sure? How do you know? A lot of very smart people disagree with you.


You're not the first to come up with this idea. I just rarely expect to see it bandied about among people who value and engage in the creative process.... it usually arises from those who lack that creative process. Sorry... I cannot believe that anyone who *has* experienced this, can believe what you do.

It is precisely because I'm a creative person I believe as I do, and it is precisely because a lot of other creative people have similar beliefs that we have an open source community and collaborative projects like Wikipedia, and it's why none of my developers are proprietary, but why make this personal?


btw, Jay.. i am curious.. what do you do for a living? do you have any of your creative work online for us to see (normally I don't call for someone's work.. but I'm interested in seeing the output from someone who claims rights to Kirks, Franks, Jays...or even mine)

I don't claim rights to anyone's work. I work for a global energy company. Most of my "output" has been portraits of my family and friends. I've posted images here, and a few at Flickr.

Ramiro Elena
2-Jul-2011, 09:53
And to vilify Jay because he has made money from this process...Good God.. a rich photographer... it should be celebrated.. we should have a Jay Maisel Day. Do you know how *rare* (and how precious) that is? (that was rhetorical... since we wouldn't be having this conversation if you did).


Nobody in this forum has vilified Maisel, on the contrary, you and others have called Baio a thief by making absurd comparisons (BBQ?) even asking for jail time.
Even more so, pretty much everyone here has agreed on the opinion that Baio was wrong, myself included.

The fact of the matter resides in figuring out if the artwork was transformed enough or not to make it acceptable. Some think it was, some don't. I respect both positions and I have no trouble accepting I might be wrong. I am not here to cling to my argument no matter what and prove I am right. I believe in dialogue, in making an effort to put myself in others positions to understand better or gain knowledge.

I'd wait for a trial (a real one, you know... with a judge an all) to call anyone a thief.

Jay DeFehr
2-Jul-2011, 10:13
Hi Mike,


If those conditions didn't exist, much (not all) of the energy applied to things that are easy to copy (e.g. ideas) would be applied to things that are hard to copy (e.g. tangible things).

There are a few problems with your argument. First, it assumes that without copyright protection, people would have fewer ideas. Second, it ignores the obvious fact that nothing tangible can be created without ideas. Third, a copyright is not required for someone to be paid for writing a book, making a photo, or any other creative work, so no copyright does not equal no incentive.. Fourth, it assumes the only kind of benefits worth considering are financial ones.

rdenney
2-Jul-2011, 10:16
Jay, remember that copyrights apply only to tangible expressions, not to the ideas contained therein. You keep conflating the two. Ideas can only be protected by patents. So, if Sanchi's BBQ grill was patented, the owner of the patent would indeed have a cause agUnst the neighbor who copied it. But patent law is far more restrictive than copyright law, and an idea has to proven to to be truly original before the patent can be granted. If Sanchi drew a picture or made a photograph of his grill, that picture would be protected by copyright law, not the idea of the grill. You may be complaining about protection that does not exist.

The Statute of Anne (or whatever) wasn't about censorship. It was about getting tangible expressions into the public domain, after the creator has had a chance to achieve commercial remuneration. Yes, it was a balance between property rights and the common good. But it respected both in seeking that balance. Copyright law has swayed back and forth on that balance point ever since. Your balance point, though, would topple it, because your definition of common good does not give much value to property.

Rick "agreeing that this isn't about what a professional provides in terms of service delivery and quality" Denney

Jay DeFehr
2-Jul-2011, 10:51
Hi Rick,

Sometimes I'm talking about copyrights specifically, and other times about intellectual property in general, and I'm sorry if I don't always make that as clear as I could.

Sanchi's example was about the difference between real property and intellectual property, since he claimed to see no difference, and the implications for society, and not about the distinctions between a copyright and a patent.

To be clear, I claimed the origins of copyright law were in censorship, not the Statute of Anne. The statute recognized the owner's right to remuneration, but it didn't establish it, and in fact, it reduced it in favor of the public domain. I agree there is a balance between incentivizing creativity, and providing for a public domain, which is what the statute established, but I disagree about where that point should be. The statute of Anne was enacted at a time when people had virtually no free time, so creative work could only be accomplished by sacrificing time needed to earn a living. Under these conditions, incentives were reasonable. In our own time, we enjoy what Clay Shirky refers to as a cognitive surplus of trillions of hours of unstructured time. This surplus makes it possible for most of the members of this forum to earn a living and have time left over for creative pursuits. In this environment, artificial incentives for creative work are simply unnecessary, and suppressing the diffusion of ideas is counterproductive.

Mike Anderson
2-Jul-2011, 11:04
There are a few problems with your argument. First, it assumes that without copyright protection, people would have fewer ideas.

Not exactly: I'm assuming less energy (work) would be applied to developing ideas.


Second, it ignores the obvious fact that nothing tangible can be created without ideas.

I don't think it ignores that fact, but it implies world of tangibles could suffer from the decrease in intangibles.


Third, a copyright is not required for someone to be paid for writing a book, making a photo, or any other creative work, so no copyright does not equal no incentive.. Fourth, it assumes the only kind of benefits worth considering are financial ones.
The point that I'm trying to narrow in on is that without restrictions on copying there would be a decrease in the creation of original work that is easy to copy. Some people would continue the expend energy on creative tasks without the financial rewards, some people wouldn't. I suspect most people simply wouldn't be able to afford to.

...Mike

Mike Anderson
2-Jul-2011, 12:24
And you mention that copyrights would still be appropriate for certain works, comprising a short list. Who would judge that short list?


Society would. The same society that judges what is in the best interest of society in all the other cases where it's necessary to do so. The same society that judged copyright laws useful.

Be careful what you wish for, Jay, we could end up with James Cameron and Lady Gaga as the chosen ones. :)

...Mike

Jay DeFehr
2-Jul-2011, 13:54
Mike,

My point was that I don't advocate a panel of arbiters, but a social consensus about what kinds of work merit special incentives.

Jim collum
2-Jul-2011, 13:56
Mike,

My point was that I don't advocate a panel of arbiters, but a social consensus about what kinds of work merit special incentives.

we have that now, and the results are The Housewives of New Jersey. I thought this experiment ended with the falling of the Berlin Wall. I'd wager you'd have a different sort of reaction to you presenting these ideas to those who lived behind them as a part of your plan (it's been done before)

Jay DeFehr
2-Jul-2011, 14:21
Jim, you're extremely confused (and confusing). I'm simply suggesting our concept of intellectual property is outdated, and we should, as a society, reconsider our options.


I thought this experiment ended with the falling of the Berlin Wall.

To what "experiment" do you refer? Are you confusing my statement about the communistic nature of intellectual property with an advocacy of Marxism/Leninism/ Maoism/ or some other form of political communism? That's very funny, and very telling.


I'd wager you'd have a different sort of reaction to you presenting these ideas to those who lived behind them as a part of your plan (it's been done before)


I'd have a different reaction to me??? Do you mean to say that people who lived under communism would react differently to my ideas than you have? Or that I would be less likely to express my ideas to people who lived under communism? Or that people who lived under communism would not share my ideas? I can't make heads or tails out of that sentence, but I assume you mean to suggest that I'm a communist, and those liberated from communism would be appalled by my ideas, in which case, you're just completely wrong on many levels.

Incidentally, my wife is Russian.

Jim collum
2-Jul-2011, 14:57
If you think someone will do what Kirk does for nothing, then I challenge you to do it. (after all, the effort will benefit society in the end.) Hell. I challenge you to even tell us what Kirk does.. give us a step by step list of what must be done to provide the output necessary to satisfy .. say.. Architectural Digest. for a 4 page spread, with cover shot. (pick any of the apartments in http://www.architecturaldigest.com/homes/homes/2011/01/chic_paris_apartments_slideshow )

Do that, and then execute it without hope of compensation.. and I'll start believing that what you say is more than you just spouting a lot of garbage. Until you do that..you're just tedious..

Jay DeFehr
2-Jul-2011, 15:18
Jim,

I'm sorry, I was busy contributing to a thread in which the originator shared his design for a lightweight 4x5 camera, and is soliciting suggestions from the community for improving it.

I responded to your previous posts not because I think you're very thoughtful, or are interested in a meaningful discussion, but because they provided me with opportunities to make my points. Your last post is just an embarrassment, and anything I could say about it would only be demeaning to us both, so I'll turn my attention elsewhere.

Jim collum
2-Jul-2011, 15:31
Jim,

I'm sorry, I was busy contributing to a thread in which the originator shared his design for a lightweight 4x5 camera, and is soliciting suggestions from the community for improving it.

I responded to your previous posts not because I think you're very thoughtful, or are interested in a meaningful discussion, but because they provided me with opportunities to make my points. Your last post is just an embarrassment, and anything I could say about it would only be demeaning to us both, so I'll turn my attention elsewhere.


Understood. Ideas are great. Some just fall apart when following thru. I bid adieu as well. If I put forth an idea, I'd expect myself to follow thru with the reality of that idea. It's fine to say some abstract do gooder will end up doing Kirks work for free. But when put to the actual test. It sort of falls apart. Put your money where your mouth is, and you'll gain at least some respect for that idea (might not agree, but at least I'd respect it)

Jay DeFehr
2-Jul-2011, 16:00
Jim,

I did better than arbitrarily demonstrating something acknowledged as a possibility. When I formulated my developers, I published the formulas for the benefit of the photography community. I've also set my permissions default at Flickr to "Attribution-Share Alike".

By the way, there are over 250, 000 images tagged "Architecture" with CC licenses at Flickr alone. Lots of people are doing architectural photography and making their work available for free. That was my point, not that Kirk's work specifically was somehow unworthy of remuneration. If we understand Kirk's work as "architectural photography" in a broad sense, and don't imagine some personal affront to Kirk that never existed, it's hard to argue people aren't doing it for free.

Incidentally, it was Kirk who made an example of his work, not me. I was speaking of professional photographers in general. Kirk implied that he couldn't earn money from his photography without copyright protection, which is not true. My point was that there is nothing inherent in architectural photography that warranted a special incentive to get it done, because lots of people already do it for free. This doesn't mean professional photographers shouldn't be paid any more than it means Barbers, or Doctors shouldn't be paid, it just means there's no reason to provide a special incentive beyond payment for services rendered, to do it. It's not really such a difficult concept, and I'm not sure why you're having so much trouble grasping it. Either you really struggle with the concepts, in which case I'm sorry for frustrating you, or you've simply decided you're opposed to any argument that challenges your theory of the way the world should work, in which case I'm happy to frustrate you.

Jay DeFehr
2-Jul-2011, 17:01
Mike Anderson,

I'd like to follow up on something we touched on, but didn't follow up on as I'd have liked. I think you make some very good points, and in re-reading my replies I'm afraid it might appear I didn't consider them carefully. Sometimes I get pressed for time and answer too briefly, and can appear more adversarial than I mean to.

You commented on the effect of incentives on creative work, and it's an interesting topic. In a previous post I briefly mentioned studies that report some interesting and counter-intuitive findings on the subject. You can find one such report here (http://webs.wofford.edu/pechwj/Motivation%20Crowding%20Theory.pdf).

One example of Motivational Crowding Theory concerns blood donors:

The author of The Gift Relationship argued that paying for blood undermines intrinsic motivations for donating, and would reduce or even totally eliminate the willingness to give blood. Economists were baffled. How could a positive incentive have a negative effect? Surely something is better than nothing. This attitude represents a good example of theory induced blindness. The economists theory about the way the world works prevented them from understanding how the world really works. Subsequent studies show that people donate blood largely for the intrinsic rewards, so it's not a case of something or nothing, but a case of substituting one kind of reward for another. The extrinsic reward (remuneration) changed the nature of the transaction, and the extrinsic reward was less of an incentive than the intrinsic ones, creating a crowding out effect.

My point is that any time the rewards for doing something are largely, or even partially intrinsic, it's far from certain that the addition of an extrinsic reward will increase the incentive, and it's very possible it could have the opposite effect.

I hope you find this as interesting as I do, and I hope you understand I've enjoyed this discussion with you.

Jim Jones
2-Jul-2011, 20:01
. . . One example of Motivational Crowding Theory concerns blood donors:

The author of The Gift Relationship argued that paying for blood undermines intrinsic motivations for donating, and would reduce or even totally eliminate the willingness to give blood. Economists were baffled. How could a positive incentive have a negative effect? Surely something is better than nothing. This attitude represents a good example of theory induced blindness. The economists theory about the way the world works prevented them from understanding how the world really works. Subsequent studies show that people donate blood largely for the intrinsic rewards, so it's not a case of something or nothing, but a case of substituting one kind of reward for another. The extrinsic reward (remuneration) changed the nature of the transaction, and the extrinsic reward was less of an incentive than the intrinsic ones, creating a crowding out effect. . . .

As both a paid plasma donor and an unpaid blood donor while health permitted, I don't consider the money as a significant factor. The cost of driving into town to give whole blood was greater than the renumeration for giving plasma a short walk from my home at the time. Civic duty is often a financial burden, not a for profit activity

PViapiano
2-Jul-2011, 20:45
This horse is just about beat, as is usual around here...copyright laws are what they are. If you use 'em and make money, good for you. If you want to share your work for no money no matter what the use and cause, more power to ya. You can do whatever you want, have fun, think creatively, be groovy, it's a free country.

No one forces you to copyright your photographs, books, music, etc...if you don't believe in that principle, then there's the Creative Commons made especially for you. You don't like vanilla, there's always chocolate...

bdkphoto
2-Jul-2011, 20:59
Jim,

I did better than arbitrarily demonstrating something acknowledged as a possibility. When I formulated my developers, I published the formulas for the benefit of the photography community. I've also set my permissions default at Flickr to "Attribution-Share Alike".

By the way, there are over 250, 000 images tagged "Architecture" with CC licenses at Flickr alone. Lots of people are doing architectural photography and making their work available for free. That was my point, not that Kirk's work specifically was somehow unworthy of remuneration. If we understand Kirk's work as "architectural photography" in a broad sense, and don't imagine some personal affront to Kirk that never existed, it's hard to argue people aren't doing it for free.

Incidentally, it was Kirk who made an example of his work, not me. I was speaking of professional photographers in general. Kirk implied that he couldn't earn money from his photography without copyright protection, which is not true. My point was that there is nothing inherent in architectural photography that warranted a special incentive to get it done, because lots of people already do it for free. This doesn't mean professional photographers shouldn't be paid any more than it means Barbers, or Doctors shouldn't be paid, it just means there's no reason to provide a special incentive beyond payment for services rendered, to do it. It's not really such a difficult concept, and I'm not sure why you're having so much trouble grasping it. Either you really struggle with the concepts, in which case I'm sorry for frustrating you, or you've simply decided you're opposed to any argument that challenges your theory of the way the world should work, in which case I'm happy to frustrate you.


You don't seem to understand that CC is a merely a copyright license designed for the share community. It works under existing copyright law and any disputes with the agreements are handled exactly as disputes with commercial licenses. The are recent examples where CC licenses were violated by commercial entities ie, a major clothing company using a CC non-commercial licensed flicker image on a T-shirt. CC forbids this use. Redress for this is the exact same kind of infringement case in Federal Court that occurs in a commercial dispute. The CC does not replace existing copyright laws, it is just a simple license. By using a CC license you are actually acknowledging and participating in the current copyright system. Lessig and the CC community are not advocating for the abolishment of copyright, they just created an easy licensing system for those who wanted their work to be shared, instead of the "all rights reserved" default.

Jay DeFehr
2-Jul-2011, 21:20
You don't seem to understand that CC is a merely a copyright license designed for the share community.

I understand very well. There are various licenses, some of which allow commercial use and others that don't. The one I chose as my default allows commercial use. I never advocated for the abolishment of the copyright system, either, and stated so several times.

Jay DeFehr
2-Jul-2011, 21:26
As both a paid plasma donor and an unpaid blood donor while health permitted, I don't consider the money as a significant factor.

Thank you for donating blood.

Mike Anderson
2-Jul-2011, 22:19
Mike Anderson,

I'd like to follow up on something we touched on, but didn't follow up on as I'd have liked. I think you make some very good points, and in re-reading my replies I'm afraid it might appear I didn't consider them carefully. Sometimes I get pressed for time and answer too briefly, and can appear more adversarial than I mean to.

You commented on the effect of incentives on creative work, and it's an interesting topic. In a previous post I briefly mentioned studies that report some interesting and counter-intuitive findings on the subject. You can find one such report here (http://webs.wofford.edu/pechwj/Motivation%20Crowding%20Theory.pdf).

One example of Motivational Crowding Theory concerns blood donors:

The author of The Gift Relationship argued that paying for blood undermines intrinsic motivations for donating, and would reduce or even totally eliminate the willingness to give blood. Economists were baffled. How could a positive incentive have a negative effect? Surely something is better than nothing. This attitude represents a good example of theory induced blindness. The economists theory about the way the world works prevented them from understanding how the world really works. Subsequent studies show that people donate blood largely for the intrinsic rewards, so it's not a case of something or nothing, but a case of substituting one kind of reward for another. The extrinsic reward (remuneration) changed the nature of the transaction, and the extrinsic reward was less of an incentive than the intrinsic ones, creating a crowding out effect.

My point is that any time the rewards for doing something are largely, or even partially intrinsic, it's far from certain that the addition of an extrinsic reward will increase the incentive, and it's very possible it could have the opposite effect.

I hope you find this as interesting as I do, and I hope you understand I've enjoyed this discussion with you.

Jay,

Yes I'm enjoying this discussion too. It's got me thinking about questions I hadn't considered before (which is sometimes a good thing, isn't it?). I just skimmed the linked article you provided - a little heavy for a Saturday night but I'll delve into it a little deeper later.

...to be continued

...Mike

bdkphoto
2-Jul-2011, 22:38
Jim,

I did better than arbitrarily demonstrating something acknowledged as a possibility. When I formulated my developers, I published the formulas for the benefit of the photography community. I've also set my permissions default at Flickr to "Attribution-Share Alike".

By the way, there are over 250, 000 images tagged "Architecture" with CC licenses at Flickr alone. Lots of people are doing architectural photography and making their work available for free. That was my point, not that Kirk's work specifically was somehow unworthy of remuneration. If we understand Kirk's work as "architectural photography" in a broad sense, and don't imagine some personal affront to Kirk that never existed, it's hard to argue people aren't doing it for free.

Incidentally, it was Kirk who made an example of his work, not me. I was speaking of professional photographers in general. Kirk implied that he couldn't earn money from his photography without copyright protection, which is not true. My point was that there is nothing inherent in architectural photography that warranted a special incentive to get it done, because lots of people already do it for free. This doesn't mean professional photographers shouldn't be paid any more than it means Barbers, or Doctors shouldn't be paid, it just means there's no reason to provide a special incentive beyond payment for services rendered, to do it. It's not really such a difficult concept, and I'm not sure why you're having so much trouble grasping it. Either you really struggle with the concepts, in which case I'm sorry for frustrating you, or you've simply decided you're opposed to any argument that challenges your theory of the way the world should work, in which case I'm happy to frustrate you.

You are advocating that professional photographers be paid as a service only (as you state above), when in fact what we produce is IP covered by copyright law. You assign a copyright license to your own work through CC, yet if you believe that what we provide is just a service then you should not be claiming copyright protection through CC. If copyright works for your photography under a CC license then your argument for treating photography as just a service is BS.

Jay DeFehr
2-Jul-2011, 23:37
..if you believe that what we provide is just a service then you should not be claiming copyright protection through CC.

Yes, you're right. I think I saw a way to remove all restrictions, but what concerns me is that it makes it possible for someone else to copyright my work, which defeats the purpose. Share-alike prevents that, and so it is the closest thing to my ideal, which would be for no one to be able to copyright my work. As I said in an earlier post, the license I would prefer would allow anyone to use my work in any way they like, but would prevent anyone from preventing anyone else from using my work. I think the share-alike license does that. The fact that the share-alike license falls under existing copyright law doesn't change the intent or spirit of the license, and so I don't feel any compunction in using it. To be fair, I didn't assign a copyright license to my work; one was automatically assigned when I posted my images at Flickr. When I learned about my options for removing restrictions, I chose the one closest to my ideal. So, no BS, I mean what I say.

Greg Miller
3-Jul-2011, 10:45
So, what was the point then of having both sets of lawyers go to the trouble of "reviewing" the article prior to publishing if not to clear - i.e. "approve" - it for subsequent publishing? The article did get published and the author did not get sued, ergo the review seems to have resulted in the approval. De facto if not de iure.

I suppose there is also a huge difference between the hair that was split and the one that wasn't. Or even between the hair that was finely split and the one that was just... well, split. :rolleyes:

"Reviewed" just means that Andy sent the text to Jay and said he intended to publish it on his blog. Perhaps Jay responded. Perhaps he did not. You are assuming he did. Perhaps he did not approve of what was written, but didn't care enough to respond, or was magnanimous enough to let it go.

"Approved" means that Jay responded back and said OK. There is a difference, and is more than a nuance. Or is nuance now called splitting hairs?


You know, the ones you and bdkphoto are wrapping around the word when you refer to my opinion. A method for either assigning it the opposite meaning or to negate any meaning, commonly used in sarcasm, irony and personal attacks. If I remember correctly, it's called "metalinguistic negation" or something along those lines.

That's what made it a "game". Very "smart" but also pretty funny, because as opposed to the two words I just negated through the use of quotes, 'opinion' has no opposite. "Nice" try, though. And "deep" too. Oops, I just did it again…

Are we getting the point yet?

Sorry - you are wrong. I wrote it and I wasn't playing a game. And I was not assigning it the opposite meaning.

But even if it was, then it isn't like you haven't engaged in your own game playing (just this one post as an example). So again you complain about something you yourself engage in. [Game play]Careful or someone might think you are acting like a compete hypocrite.[/Game play]

Greg Miller
3-Jul-2011, 11:03
Nobody in this forum has vilified Maisel, on the contrary, you and others have called Baio a thief by making absurd comparisons (BBQ?) even asking for jail time.
Even more so, pretty much everyone here has agreed on the opinion that Baio was wrong, myself included.


You might want to re-read posts 13 and 19. These are what (regretably) prompted my participation in this thread. An extortionist is pretty comparable to a thief, no? Hit squads kill people, right?


[/QUOTE]b) A mean-spirited approach by Jay himself.[/QUOTE]

[/QUOTE]But no, he "felt violated that his image was pixelated" (sic!) so he decided to send a hit squad and extort somebody's annual salary from the guy.[/QUOTE]

[/QUOTE]I also think that Maisel acted like a complete dushbag who went all-in not so much because of the copyright - there are things called cease-and-desist letters - but because he felt like sticking it to the digital crowd.[/QUOTE]

Actually, in my opinion, everyone who has tossed around terms like these have done so as sarcasm and hyperbole. And in some, if not many, cases done so with the intention to incite strong reaction. I think we, including myself, can lighten up a bit and not take these things so seriously. I'm going to take my own advice and move on to greener pastures.

sanchi heuser
3-Jul-2011, 13:48
...
Hi Sanchi,

I think you're missing a critical element in the disagreement, as illustrated by your example:



What if your neighbor saw your barbecue and said, "Hey! Great idea! I'm going to build one of those for my family, so we can enjoy the same benefits you do."

And you replied, "If you do, I'll sue you and take your house."

Is this better for a peaceful society?

..,


Hi Jay,

I was talking about using different things that are exposed in the public
and the way people respect or ignore other people's properties .
That was the reason why I have chosen
a barbecue grill - it's often exposed in the public and an example for something that can be used by a group of people together.
Or take instead a bicycle, boat, car or lawn-mover if you want.
A picture or another product of our creativity can also often used by many persons
and it's often exposed in the public.

The difference now is, and that is what this thread is all about,
the way we are handling other people's personal properties inclusive intellectual properties.
There are people who are knowing what is right and ask friendly if they can use your bicycle, cars or whatever.
And there are others that simply disrespect and just use it without asking,
especially when
the owners of bthe properties fits perfectly into ones concept of the enemy (millionaire, sucessful,
banker, lawyer, rich parents. arrogant and so on).

If the owner doesn't want you to use his things then let's respect it.
Yes, I can make my own grill. Maybe the neighbar just wants to work in his darkroom
instead of making a barbecue party:)

I'm talking about common sense not about laws.
Maybe in the future we don't need no more any laws and provisions
- when everybody respects the other -
maybe in 500 years. Or never and that's just an illusion, who knows that...
Until than we need laws, police, weapons, tribunals, jails etc.
and copyright law, $32500 penalties, endless discussions etc.

I don't want to say I'm an angel and doing everything right...
but just growing older;)

Andi


What I have written before:
I think a photograph is the property of the person who produced it.
No matter if amateur or top professional, if poor devil or millionaire.
The individual should have the freedom to decide who uses the photo and
for what purpose. If the author decides to take money for it or give it away
for free should be his own decision and that decision should be respected by everybody else. Same with texts, music, artwork etc.

I see no difference between a person creating a picture and a person who
constructs e.g. a barbecue grill.
What would you say when people come to your garden and see your barbecue grill
and use it without asking you? I assume you would be very angry.
The other possibility is to ask the owner friendly '"Hey what a nice barbecue
grill, let's make a party together, we bring beer and ribs, what do you think?"
Maybe you have a nice
evening together and become friends.

It needs no university exam to understand what is better for a peaceful society.