It already broke Wikipedia. How much more trouble does it need to cause?
Brief explanation for the simple minded, e.g. me. Shorter, it could break the DNS system.
My Rep. is already opposed. Of my two senators, one is supportive (the Dem) and the Rep listed as "unsupportive" whatever that means.
Is PIPA better, worse, or the same as SOPA? Casey is a sponsor of PIPA. Maybe I'll send him an email. The problem is that sending him an email is asking to subscribe to his newsletter. I suppose I may as well hit Toomey also. Don't cost nothing.
Fuck a bunch of both of them, that's what I say.
Er, SOPA and PIPA, not Casey and Toomey.
Anyhow, both of the bills break the internet to a greater or lesser degree (specifically, making people do prior checks for infringement before linking is just sheer idiocy) in an effort to solve a complete non-problem.
My prediction is that SOPA/PIPA will not pass as-is, but something almost as bad will be tacked onto the upcoming child porn prevention bill, and that will pass easily.
I feel guilty about not closing down my two 30-hit-a-day blogs, but I don't want to make my bots unhappy.
I didn't know there were that many bots. It makes me unhappy that I am not even popular with bots.
A persuasive rundown from a group other than the standard "yay sharing" crowd. Violating the First Amendment, breaking aspects of the Internet that promote discourse and commerce, and contrary to our foreign policy.
Well lots of stuff in them are bad.
The laws are very vague, partly to allow for prosecutorial discretion and partly to instill paranoia in Netizens, an internalized panopticon, if that's right.
Authoritarianism, like "providing substantial support to AQ or associated groups etc."
With SOPA/PIPA, it may be, well I guess it always is, an attempt to intimidate Netizens into doing the enforcing for them, after getting fed up with the hassles of constant maintenance and finding convenient scapegoats among our own.
OMG the Internet will BREAK!!!!
Both bills are very badly written and neither will, deservedly for that reason, pass, but the hysteria is ridiculous. At the end of the day, all either the government or the content holders are looking for is a way to get leverage over a few blatantly obvious pirate facilitator sites in foreign countries by preventing US based companies from funding them. Realistically, even if this shittily drafted legislation passed (which wouldnt happen, or not in this form) that's all the legislation would ultimately be used for. Ultimately, this is just a battle between different industries, each of which wants government working in its favor. Eventually,the industries will compromise and there will be legislation or a judicial rule or technical standard that allows some form of action against domestic facilitators of the foreign sites and the world will get along just fine.
13: Because we all know excessive power is fine when we know won't be abused. (I agree "breaks the Internet" is the least persuasive bit.)
11.last: Unfortunately, it is actually somewhat in alignment with our actual foreign policy as revealed by our actions.
11 -- no, that's the usual share everything crowd, law professor division. Also, just FYI, they are funded by Google.
Realistically, even if this shittily drafted legislation passed (which wouldnt happen, or not in this form) that's all the legislation would ultimately be used for.
I do not think there has ever been a case in which the first half of the sentence was true and the second also came true. Badly drafted legislation is a gold-plated invitation for abuse, misuse, and unintended (or "unintended") consequences.
The "contact your representatives" button on the Wikipedia page returns the wrong Representative for my ZIP code. (It was a serendipitous mistake, because the Congresscritter it erroneously lists is notoriously bad on internet freedom issues.)
I checked the redistricting map to see if PDBS hadn't maybe been redistricted into this guy's district, and learned that my district's boundaries have been redrawn in such a way as to make it substantially more rural and more conservative. I have a sense that PDBS was deliberately included in the new district to keep it from being too competitive.
No, I agree the bills are badly written and therefore won't and shouldn't pass. Even if they did pass, as a realistic matter many (but not all, that's why badly drafted legislation is a problem) of the purported potential abuses would not in fact happen. Laws get interpreted and enforced, not just written, and eventually you will have some kind of enforcement regime that reflects the actual goals of the people pushing the legislation (or, more precisely, a compromise between the industry pushing it and the industry opposing it).
Halford is of course always right, and a great guy, but you know, 5 years with no parole at my age in a Supermax for linking to to the series-end scene from Six Feet Under over at Youtube (I did it three years ago) has really got me thinking.
Fuck a bunch of the MPAA, too. Try and sell your shitty-ass movies if you want, but stop fucking with the internet.
People said the same thing about the DMCA, incidentally, and it turned out to be just as bad as the pessimists predicted. Except, you know, it totally fucking failed to make a dent in piracy, just like this (or any similar attempts) will totally fucking fail to make a dent in piracy, because you can't do that without breaking the internet. And, in fact, you may fail to do that even while breaking the internet, if you keep at it.
And this:
Eventually,the industries will compromise and there will be legislation or a judicial rule or technical standard that allows some form of action against domestic facilitators of the foreign sites and the world will get along just fine.
is just beyond horseshit, speaking from a technical perspective.
Anyhow. I now ban myself from this thread because I would just spend all day yelling at Halford, when he's really just doing his (loosely construed) job, and you don't see me badmouthing the people who cut my checks on the internet, either.
Realistically, even if this shittily drafted legislation passed (which wouldnt happen, or not in this form) that's all the legislation would ultimately be used for.
When has that ever been true about anything?
When the PATRIOT act was written, the resource industries immediately started militating to use its provisions against "eco-terrorism", which is completely unrelated to the target of the PATRIOT act and which, furthermore, has never killed anyone. And they were successful.
With all due respect, you're a fucking moron. Where you wrote "realistically", you should have written"ideally" or "in Never-Never land".
OH NOES! FUNDED BY GOOGLE!
I like things that are funded by Google. Like my mortgage.
...further to 18 (and I realize this is interesting to maybe three people), I'm impressed by how much more contiguous the new, nine-district map is compared to the blatantly gerrymandered previous map. The only obvious gerrymanders in the new map are the creation of a majority-minority district in Boston, and the snaking attachment of Newton and Brookline to the fourth.
With respect, John, you're just wrong in this particular case. Enforcement abuses against people like Eco-terrorists happen because the government hates ecoterrorists and wants to use whatever tools it can against them. Here, you've got basically what amounts to a battle between two powerful and well funded interests, and neither the courts nor the government comes down firmly on one side or the other. From the perspective of the stronger IP hawks, the DMCA has been basically a dead letter in the courts and in the US attorneys offices, and there is always a struggle to gain attention for these issues. While that's not to say the law couldn't be abused -- like I say, these two bills really are badly drafted -- I can tell you as a practical matter that this is an issue with two powerful sides.
19: Laws get interpreted and enforced, not just written, and eventually you will have some kind of enforcement regime that reflects the actual goals of the people pushing the legislation
Yeah, like with Wedtech.
25: There is a vast history of IP protection laws being abused against isolated individuals. It is not just two power and well funded interests.
25: Dude, I think you are epitomizing "where you stand depends on where you sit," here. Since I'm doing the same thing, I will just say that my overwhelming experience is that people tend to dramatically discount the personal and financial toll to others -- especially when those "others" aren't in their immediate social circle.
Like others in this thread, I've dealt firsthand with an enormous amount of the collateral damage caused by bad legislation. I believe that you believe what you're saying, but I think that's because you rarely have contact with people who are directly affected by bad laws.
Though I'd like to spend all day arguing that you are wronnnnng on the Internet, I have to get to work now.
Well, I'm glad that there are two powerful sides, evil Google and the nice motion picture industry. I want the nice guy to lose in this case.
Between the wikipedia people and some guy on the internet who makes completely unrealistic assurances that the laws will not pass in their present form and will never be abused in any case, who should I listen to? Your present yourself as an expert, which I have know way of knowing, and others present you as an expert hireling of one of the parties, which if true annuls your expert credibilty.
I can't remember the last time that I agreed with Sifu about anything.
Anyway, I'm very far from an absolutist against IP protection, but to assume that enforcement won't focus on "whoever is easiest to sue" is absurd.
Enforcement abuses against people like Eco-terrorists happen because the government hates ecoterrorists and wants to use whatever tools it can against them.
That's reassuring, because no one the government hates would ever want to use the internet in ways that contravene SOPA/PIPA.
Yeah, fuck the motion picture industry. The Internet is the most important development in human history since the printing press. The movie industry just makes stuff that we use to kill time between the meal and the sexual encounter.
Because you need time to get digestion done to free the blood for turgidity-inducing.
I agree with Dean Baker that IP as it exists and as it is used is a major negative factor in the world, so the chances that I would agree with Halford are zero.
People like Disney and Microsoft are masters of IP, and they use it in two ways: protecting their own IP, and using their deep pockets stealing other people's IP. It's pure robber baron behavior, and it's more or less taken over government.
I do have a bias here. If Hollywood closed down and quit making movies entirely, I would be overjoyed. The world would immediately become a better place, and I might start going to movies again. Same for the pop music giants.
33: I'm not saying it doesn't work. But if live chamber music was good enough for the Viennese, I don't see why it wouldn't work for us.
All I am saying is that the idea that this would ever be enforced in a way that could actually break the Internet is patently absurd. Where do you think the money is? Could it be used to fuck over individuals, sure, but that's not the target of this legislation and if you're an individual without power you're pretty much screwed anyway. Anyhow, I both do know more than (most) people here about how these things are enforced AND have a conflict of interest, so there you go.
31 is the most serious fear, and where the "badly written" aspect is most egregious.
36: RIAA's behavior pushed me very far the other way so far as who I think is going to be the target.
38 -- fair enough, but that's not the target of this particular legislation. There are already plenty of tools to go after the little guys.
Info for those who want it, near-establishment source
Brad Plumer at WaPo, with links at bottom
Well, your venality cancels out your knowledgeability as far as I'm concerned. I'm not going to get expert advice from someone who's playing for the other team. Between Hollywood and Google there's no contest. Hollywood is absolutely horrible, and Google is comparatively wonderful. Period, end of story.
So I intend to ignore everything you say that can't be verified elsewhere, except insofar as I will always suspect it of dishonesty. You and I are on opposite sides of this, and hopefully an expert advocate for my side will come along sooner or later to smash your arguments to pieces.
Not the target of the day, but if you fall within the scope, why not be concerned that eventually the gun will be shot?
(Not actually a mixed metaphor?)
Oh, 42 is fine and fair enough. The hysteria on these issues is way disproportionate, though (this is true on both sides, but no one but me ever represents team IP here).
More WOTIs on your part, Halford: (1) implying that because interests of industry groups are affected, no issues of right and wrong can exist; (2) misrepresenting power-arrogating intentions as incompetence.
Brass tacks: do you dispute the 1st Amendment argument I linked to? If so, how? (If not, "of course SCOTUS would overrule it so who cares" is not a valid answer.)
Also, to 36, have you considered that given your career, your personal knowledge and experience of this type of legislation is overwhelmingly likely to be about how powerful interests, rather than individuals, are affected?
I will try to be proportionate in my hysteria, but arguing that the law only sucks ass as it is written down on paper is not helping. I couldn't care less what the authors intended if what is written is different.
badly written and therefore won't . . . pass
Still chuckling at this.
The hysteria seems to be the only reason stuff is actually changing. Bills greeted with "Well, that's not a great idea" often pass.
I was amused by Seth Godin's take on this debate. He links to a good rant, too.
We really don't need anyone here to represent team IP here as far as I'm concerned. We certainly don't need a paid representative of IP.
Someone from the movie industry says that Wikipedia is being hysterical. What do I think? "Oh, gee, Wiki is hysterical. I never thought of it that way." Or "Who is this asshole?"
. Laws get interpreted and enforced, not just written, and eventually you will have some kind of enforcement regime that reflects the actual goals of the people pushing the legislation
My understanding, which admittedly is second and third hand, is that the main practicaly issue with SOPA (unless you're a Russian pirate site) isn't to do with enforcement powers, but to do with private actors getting immunity for voluntary takedowns.
Incidentally, I thought Wikipedia was going dark globally. It seems to be alive and kicking over here.
There are some advantages to having a monarch.
50: The notion that it's US-specific is helped by the fact that the page redirected to allows you to type in your zip code to find your representative.
50: It did go dark globally. I don't know what's going on with you.
These political techniques of capitalism find their maximal point of concentration in the contempo- rary metropole. The metropole is the place where, in the end, there is almost nothing left to reappro- priate. A milieu in which everything is done so the human only relates to himself, only creates himself separately from other forms of existence, uses or rubs shoulders with them without ever encountering them.In the background of this separation, and to make it durable, the most minor attempt at disregarding commodity relationships has been made criminal. The field of legality was long ago reduced to the multiple constraints which make life impossible, through wage labour or self-management, voluntary aid or leftist militancy.
As this field becomes always more uninhabitable, everything that can contribute to making life possible has been turned into a crime.Where activists claim that "No one is illegal" one must recognise the opposite: today an entirely legal existence would be entirely submissive.
There is tax evasion, fictitious employment, insider dealings and fake bankruptcies, embezzlement of grants and insurance fraud, forged documents and welfare scams. There are the voyages across borders in aeroplane baggage holds, the trips without a ticket through a town or a country. Fare-dodging and shoplifting are the daily practices of thousands of people in the metropole. And there are illegal practices of trading seeds that have saved many plant species. There are illegalities that are more functional than others for the capitalist world-system. There are some that are tolerated, others that are encouraged, and eventually others that are punished. An improvised vegetable garden on a wasteland has every chance of being flattened by a bulldozer before the first harvest.
If we consider the sum of the laws of exception and customary rules that govern the space that anyone goes through in one day, there is henceforth not a single existence that can be assured of impunity. There exist laws, codes and decisions of jurisprudence that make every existence punishable; it would just be a matter of applying them to the letter.
That's not so long. I need to read some about "soft authoritarianism." G'day.
I'm not actually arguing in support of this legislation, nor am I saying that badly drafted legislation never passes. Legislation that is badly drafted in a way that infringes on an equally powerful interest group doesn't pass, and, in fact, neither of these bills will pass.
Here is the problem people are actually trying to solve. There are websites, like Pirate Bay, that exist almost exclusively to propogate copyright infringement, are beyond the jurisdiction of the US and used for things that are clearly and obviously illegal in the US. Yet, they can be accessed from the US and are largely funded by advertising revenue and transactions from US companies.
What do you do? One answer, favored by our own X Trapnel, is "nothing" -- just declare that massive IP piracy isn't a problem. If you don't buy that, though, you need to think about other solutions. One is to go after the little guys, the end users. The other is, basically, creating a penalty for the bigger domestic guys, who are providing advertising on the foreign piracy sites or profiting from them indirectly. That's the issue these bills were addressed to solve. In practice, they do a bad job of it and are overbroad, but at some point you'll have a political compromise that addresses the problem.
Justice Breyer's dissent in the Golan case decided today is worth a read.
But the correct answer is basically "nothing", even if X Trapnel thinks so. Any solution the content providers are going to come up -- and SOPA demonstrates that clearly -- will be on the level of sending the US Army into Mexico to combat the drug cartels. Not every problem in this world can be solved by government action.
You can think that massive IP piracy is a problem and that a given solution (or indeed any solution) is worse than the problem. Having problems with no good solutions that won't make things worse is a fairly sensitive (if not specific) indication of being awake.
Robert, "this was badly drafted legislation" is the industry's fallback position once they realize that they probably aren't going to get what they want. What they wanted was the badly drafted legislation itself, but they'll take second best. I don't want to give them anything.
I don't believe in the slightest that the only target was originally just the Russian pirate sites. I don't even think that that's the only backup target.
As far as how the legislation will be applied: we don't know. It will be applied the way a thousand plaintiff's lawyers and the judges they stand before decide that it will be applied. What's the worst case? Well, where are the most corrupt courts in the US? Imagine that the cases will be heard there. Which interests will be able to use this law? I have no idea, but as soon as the law is passed they will emerge.
Would you say a rule that prohibits credit card companies from processing payments from the US to foreign piracy sites, where "foreign piracy site" is a carefully worded designation and there is notice and opportunity to object to the designation, is the equivalent of sending the US Army into Mexico?
Halford's 55 made me wonder, does anyone know how Euro states with criminal hate speech laws deal with the issue - i.e. can they shut down google for providing a link to stormfront?
60: Show me that the IP lobby is going to settle for anything so modest, and we can discuss it then. You didn't see a gigantic protest when the US essentially did that to off-shore poker sites.
Justice Breyer's dissent in the Golan case decided today is worth a read. quick summary by CC since there is no chance I'll wade through that.
There is a vast history of IP protection laws being abused against isolated individuals
Indeed, right back to FBI vs. Steve Jackson Games, which was what, 1988?
Why didn't they propose that law, Robert? It sounds easier to write than the one they actually wrote. Why did they put all that extra effort into making the legislation more badly written? Did they perhaps have other targets besides the Russian pirate sites?
My proposal is that the Hollywood assholes get nothing at all and learn to suck it up. However, fortunately for you and yours, Robert, I am an enormous non-player in American politics.
Discussion question: how incompetent must the IP industry be, to spend at least $92 million on federal lobbying in 2011 (not including campaign contributions) and yet produce draft legislation so manifestly ill-suited to their true intentions?
can they shut down google for providing a link to stormfront?
France and Yahoo litigated this very issue. I'd tell you how it was resolved, but Wikipedia is dark, so...
I am also in the do nothing camp. Basically what stopped me from pirating movies was netflix and what stopped me from pirating music was Amazon's mp3 store.
I'll pay for IP if it isn't overpriced and wrapped in so much DRM that it is useless. Amazon has me paying 20-30 dollars a month with their $5 albums because it is easy and I can just copy the music to whatever device and have it work.
67. As I said at 50, it ain't dark here, so...
The civil case in France
LICRA complained that Yahoo! were allowing their online auction service to be used for the sale of memorabilia from the Nazi period, contrary to Article R645-1 of the French Criminal Code (Code pénal). These facts were not contested during the case.
The defense rested on the fact that these auctions were conducted under the jurisdiction of the United States. It was claimed that there were no technical means to prevent French residents from participating in these auctions, at least without placing the company in financial difficulty and compromising the existence of the Internet.
The defendants noted
that their servers were located on US territory,
that their services were primarily aimed at US residents,
that the First Amendment to the United States Constitution guarantees freedom of speech and expression, and that any attempt to enforce a judgement in the United States would fail for unconstitutionality.
As such, they contended that the French court was incompetent to hear the case.
Article R645-1
Article R645-1 of the French Criminal Code prohibits to "wear or exhibit" in public uniforms, insignias and emblems which "recall those used" by
an organisation declared illegal in application of Art. 9 of the Nuremberg Statute, or by
a person found guilty of crimes against humanity as defined by Arts. L211-1 to L212-3 or by the Law № 64-1326 of 1964-12-26.
Display is allowed for the purposes of films, theatrical productions and historical exhibitions.
The penalty is a 5th class fine (up to 1,500 EUR), to which can be added one or more complementary penalties among:
withdrawal of the right to possess or hold any regulated weapon for up to three years;
confiscation of one or more regulated weapon either possessed by the convict or to which he has a free access;
confiscation of the objects concerned;
from 20 to 120 hours of community service.
The judgment
An interim judgment of May 22, 2000 confirmed the illegal nature of the sale under French law and appointed experts to advise the court as to what technical measures might be taken to prevent a repeat of the offense. The team of experts reported on November 6, and the court rendered an injunction against the defendants on November 10.
Competence of the French court
The court ruled that there were sufficient links with France to give it full jurisdiction to hear the complaint. In particular:
the auctions of Nazi memorabilia were open to bidders from any country, including France;
the display of such objects, and the viewing of such objects in France, caused a public nuisance and was forbidden under French criminal law;
Yahoo! Inc. was aware that French residents used its auction site, as it displayed French-language advertisements on its pages when they were accessed from computers in France.
This last point was also referred to in the injunction against Yahoo! Inc. The court specifically dismissed the claim that the alleged problems of enforcing a judgment were sufficient to nullify its competence.
Société Yahoo! France
Société Yahoo! France had been ordered on May 22, 2000 to warn its users that they may breach French law if they followed links from its site to sites operated by Yahoo! Inc. The court acknowledged that this order had been substantially complied with "in letter and in spirit". It refused a request from the plaintiffs to order Yahoo! France to remove links to the American sites, but reiterated that a warning must be given to users before they activated such links.
Yahoo! Inc.
Yahoo! Inc. had been ordered on May 22, 2000 to take all appropriate measures to deter and prevent access to auctions of Nazi memorabilia on its site by French residents. Yahoo! contended that it was impossible to comply with this order.
The report of the court-appointed experts noted that, as of 2000, roughly 70% of French internet users could be identified as such by the use of DNS databases.
The court ruled that Yahoo! Inc. must comply with the original injunction within three months or face a fine of one hundred thousand (100,000) francs (15,244.90 EUR) per day.
Proceedings in the United States
On January 10, 2001 Yahoo! announced that it would not appeal against the ruling in France. It decided to take the case before the United States District Court for the Northern District of California in San Jose, asking it to find that the French ordinance is not effective in the United States. Judge Jeremy Fogel found the decision returned by the tribunal de grande instance of Paris to be inconsistent with the First Amendment to the Constitution of the United States, relating to freedom of expression, and that consequently it is inapplicable in the United States.
The LICRA and the UEJF appealed the decision before the U.S. Court of Appeals for 9th Circuit. On August 23, 2004, the Ninth Circuit reversed the earlier holding, after finding that the District Court did not have personal jurisdiction over the appellants, namely LICRA and UEJF. The court quoted the following criteria for the establishment of personal jurisdiction as stated in an earlier Ninth Circuit case, Bancroft & Masters, Inc. v. Augusta National Inc.:
Exercise of jurisdiction is consistent with these requirements of "minimum contacts" and "fair play and substantial justice" where (1) the non-resident defendant has purposefully directed his activities or consummated some transaction with the forum or a resident thereof, or performed some act by which he purposefully availed himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction is reasonable.
...
... we determined [in Bancroft] that the express aiming "requirement is satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.
The majority then concluded that:
Yahoo! makes no allegation that could lead a court to conclude that there was anything wrongful in the organizations' conduct. As a result, the District Court did not properly exercise personal jurisdiction over LICRA and UEJF.
There was one dissenting opinion, written by Judge Melvin Brunetti, who argued that "a defendant's intentional targeting of his actions at the plaintiff in the forum state", which he viewed the French charges and fines as constituting, sufficed to give jurisdiction to the forum state, the United States, under the Supreme Court's "express aiming" precedent.
The case created a media response and sparked a backlash of controversy in the United States, where many saw it as the censoring of a United States publication by a foreign power. Although technically the decision only required Yahoo! to prevent the sale of Nazi objects to people in France, Yahoo! has since chosen to remove the sale of Nazi memorabilia from its site entirely.
Yahoo! Inc. v. La Ligue Contre Le Racisme et l'antisémitisme (LICRA)
On 2006-01-12, the same court delivered an en banc judgment reversing the judgment of the District Court and remanded the case with directions to dismiss the action.[1] The majority was split on whether to remand on ripeness or personal jurisdiction grounds. Judge William Fletcher noted that:
Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. [...] the extent -- indeed the very existence -- of such an extraterritorial right under the First Amendment is uncertain.
On 30 May 2006 the Supreme Court of the United States denied certiorari.[2]
France and Yahoo litigated this very issue. I'd tell you how it was resolved, but Wikipedia is dark, so...
They did litigate on a related issue, but it was never a question of shutting down Yahoo. Similarly Google executives were prosecuted in Italy for hosting a video in which a Down's syndrome sufferer was bullied, but as far as I know blocking Google as a whole was never an option. The closest comparable situation I can think of is the UK's law requiring ISPs to block child pr0n sites. The current government was planning to introduce similar requirements for IP infringing sites, but I think that' sbeen dropped.
Has anyone linked to this yet? I think the favorite is all the people very concerned about why Wikipedia hates SOAP.
chris y can see Wikipedia because only its English site is blacked out!
70. That IS a quick summary. By the time they've stated the cause, defined all the unfamiliar terms and reported the outcome, Wikipedia have done a pretty good precis.
63 -- It's about the constitutionality of the statutes implementing US copyright protection for foreign works, that had been in public domain prior to the statute. Breyer, on the wrong end of a 6-2 decision, says it goes to far, because the point of the copyright clause in the Constitution is to get artists to create stuff, not to line the pockets of their heirs and assigns for stuff already created. And to broad for other reasons, including the First Amendment. It's really not a difficult read at all. Try it.
From AWB's link:
this new internet ban bullshit is going to shut down wikipedia and craigslist WTF??!!!! FUCK YOU OBAMA!!!!!!!
13 is the absolute best type of trolling. Yes, Halford is ludicrously wrong, but instead of his comment leading to volumes of tedious rebuttal, it produced lots of entertaining mockery.
A+ troll. Would do business again.
and yet produce draft legislation so manifestly ill-suited to their true intentions?
The ill-suited legislation is chaff to make it easier to slip something less obviously bad into actual law than they could get if they just proposed a plausible law at the start.
The folks over at Twitter are having some fun distributing Facts Without Wikipedia.
I'm a little shocked at how respectable Wikipedia has become - people (correctly) view its absence as the loss of a major reference.
If we going to put a huge effort into shutting down foreign sites, can't we do something more useful and attack the spammers instead?
Just as soon as Disney starts selling Viagra, that will happen.
At the end of the day, all either the government or the content holders are looking for is a way to get leverage over a few blatantly obvious pirate facilitator sites in foreign countries by preventing US based companies from funding them.
Even if that were true, read this and tell me the people trying to do that are actually anywhere near competent enough to do it.
Even if that were true, read this and tell me the people trying to do that are actually anywhere near competent enough to do it.
Okay, now some details. First, remember Dajaz1.com? It was one of the sites seized over the Thanksgiving holiday weekend back in 2010 -- a little over a year ago. Those seizures struck us as particularly interesting, because among the sites seized were a bunch of hip hop blogs, including a few that were highly ranked on Vibe's list of the top hip hop blogs. These weren't the kinds of things anyone would expect, when supporters of these domain seizures and laws like SOPA and PROTECT IP talk of "rogue sites." Blogs would have lots of protected speech, and in the hip hop community these blogs, in particular, were like the new radio. Artists routinely leaked their works directly to these sites in order to promote their albums. We even pointed to a few cases of stars like Kanye West and Diddy tweeting links to some of the seized domains in the past.
In fact, as the details came out, it became clear that ICE and the Justice Department were in way over their heads. ICE's "investigation" was done by a technically inept recent college grad, who didn't even seem to understand the basics of the technology. But it didn't stop him from going to a judge and asking for a site to be completely censored with no due process.
I didn't want to waste money on lawyer time by filing a counterclaim and prolonging the fight so instead I had to contact Web Sheriff directly to request a retraction. This took many back-and-forth emails, and thanks to Web Sheriff being in London, added days to the process of exchanging emails. Eventually I got a human at the company to look at the dates on my files and agree it was not a Michael Jackson song. The formal retraction took nearly two weeks to secure and convince lawyers for my host that it was adequate for removing the DMCA claim. That's two weeks into a 30 day window before I lost my rack of servers and hosting account completely. I'll never forget last year when I went through this because it was two of the stupidest weeks of my life, all because of some problematic laws granted new powers to copyright holders and I had to engage in a prolonged legal fight thanks to a mistake made by a bot....
SOPA/PIPA grant powers way beyond the simple DMCA, and like the DMCA, if enacted, I see these laws mutating over the next few years and affecting all sorts of sites in ways never intended.
Unbanning myself briefly to say that people do, in fact, expend enormous amounts of time and energy fighting spam. It's just not possible to make much of a dent, because of the way the internet functions. If you are interested in the internet continuing to function, you eventually realize that you'll have to deal with some level of spam.
Okay, rebanned! Have fun.
One of my best friends fights spam full time. Ultimately I understand there's not much to be done, but the copyright infringement situation is similar while not actually being as big a problem as spam.
Technicalities aside, spam won't disappear becaue the people selling stuff are buying it from American-based multinationals, often paying retail. Pfizer is not unaware that a huge proportion of its sales of its leading product depend on spam.
Just as soon as Disney starts selling Viagra, that will happen.
But on the bright side, the law will probably be badly written with all kinds of potential for abuse, so everything will be okay, and any objectors will be rightly dismissed as "hysterical."
People actually buy from the spammers? Aren't they worried that it's a scam to get their credit card numbers?
On second thought I guess somebody must, otherwise spam would disappear.
Pfizer is not unaware that a huge proportion of its sales of its leading product depend on spam.
Data?
84, 85 -- the point of the new legislation (in theory) was to avoid having to go after little guys, and focus the attention on the big guys.* The perceived failing of the DMCA is that it focused on little guys who had no power, but allowed little or no effective remedy against the big players who made infringement happen. See especially this case.
Why is it drafted in an overbroad (and, to be clear, it is) way? A little bit of setting up a bargaining position, a lot of incompetence, and something of an attempt to squeeze/fudge legislation that would be effective against the YouTubes of the world into legislation targeting the PirateBays of the world. Oh, and a bunch of legislative drafting by committee.
The problems as I see it in the legislation are (a) the definition of a rogue site needs to be much clearer, with exceptions for noncommercial and political speech; (b) the legislation should ban facilitating transactions, such as enabling downloads or financial transactions, but (on my understanding of the technology) not linking, which should be dealt with under traditional doctrines of contributory infringement; (c) the notice and takedown provisions need revision. Even so, there was essentially no chance in the real world that the law would shut down, e.g., Etsy or Flickr or YouTube, as some have argued in some places. Still, IF the Government decided to scrap its current practices on these issues and be wildly more aggressive and IF the Courts changed their current interpretations of the safe harbor provisions, there is a theoretical possibility of some really bad things happening if the law as drafted passed.
*But, also, and I just can't resist this, the stories of the big bad DMCA are (a) a guy gets a notice that's clearly incorrect, informs the party that provides the notice that the notice is incorrect, and two weeks later the notice is retracted and nothing further happens; (b) a blog that is, in fact, heavily involved in distributing illegal copies over the internet is shut down. I am a supporter of reforming the DMCA notice and takedown provisions, and I can understand why stories like this are annoying for the people involved, but come on. Or should I link to some sob stories of folks in the content industry.
I would just like to highlight this from 77:
the point of the copyright clause in the Constitution is to get artists to create stuff, not to line the pockets of their heirs and assigns for stuff already created.
The loss of this point is at the root of all society's problems.
(or at least most of them)
81:
That Big Yellow Ball In The Sky Is Magic and It Scares Me
Why the incompetence? Did they select their lawyers from late night TV advertisements? Disney does not have good lawyers? That's ludicrous. The incompetence dodge should be defunct by now.
something of an attempt to squeeze/fudge legislation that would be effective against the YouTubes of the world into legislation targeting the PirateBays of the world
In other words, it was either chaff meant to confuse the issue, or a big overreach. And the latter directly contradicts your the point of the new legislation (in theory) was to avoid having to go after little guys
Still, IF the Government decided to scrap its current practices on these issues and be wildly more aggressive and IF the Courts changed their current interpretations of the safe harbor provisions, there is a theoretical possibility of some really bad things happening if the law as drafted passed.
Those are tiny IFs. Substitute "as soon as".
Give it up, Halford. You're presuming on whatever friendship and credibility you have here.
(b) a blog that is, in fact, heavily involved in distributing illegal copies over the internet is shut down.
I don't know anything about the blog but doesn't it seem noteworthy that the story ends with:
Finally, the government decided that it would not file a forfeiture complaint -- because there was no probable cause -- and it let the last (supposed) extension expire. Only after Bridges asked again for the status of the domain did the government indicate that it would return the domain to its owner -- something that finally happened today. Dajaz1.com is finally back in the hands of its rightful owner.
Which followed this amazing story (or, at least, story which seems amazing to me as a non-lawyer).
After continuing to stall and refusing to respond to Dajaz1's filing requesting the domain be returned, the government told Dajaz1's lawyer, Andrew P. Bridges, that it would begin forfeiture procedures (as required by law if it wanted to keep the domain). Bridges made clear that Dajaz1 would challenge the forfeiture procedure and seek to get the domain name back at that time. Then, the deadline for the government to file for forfeiture came and went and nothing apparently happened. Absolutely nothing. Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. Bridges, quite reasonably, asked how that was possible without him, as counsel for the site, being informed of it or given a chance to make the case for why such an extension was improper.
He also asked for a copy of the the court's order allowing the extension. The government told him no and that the extension was filed under seal and could not be released, even in redacted form. . . . .
He again asked whether he would be notified about further filings for extensions. The government told him no.
He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.
And file further extensions the government did. Repeatedly. Or, at least that's what Bridges was told. He sent someone to investigate the docket at the court, but the docket itself was secret, meaning there was no record of any of this available.
No, the point of going after the YouTubes was to go after the big guys. They already have plenty of remedies against the little guys.
If you don't think the incompetence dodge works in terms of the process of getting legislation in Congress is possible, you don't know much about how these things work in the real world, unfortunately. I don't mean that it was "incompetence" in the sense that they mysteriously put in language without any idea of what they were doing, just incompetence in the sense that they didn't understand exactly why they couldn't ask for things that more clearly achieved what they wanted without overbreadth. That's incompetence at doing your job, for which the drafters of the legislation are now paying a big price. Yes I do have some personal experience with this.
No, the point of going after the YouTubes was to go after the big guys.
In other words, everyone who can't afford $300/hour representation can get squished but as long as Google and Disney are equally safe, it is fair.
But, also, and I just can't resist this, the stories of the big bad DMCA are (a) a guy gets a notice that's clearly incorrect, informs the party that provides the notice that the notice is incorrect, and two weeks later the notice is retracted and nothing further happens; (b) a blog that is, in fact, heavily involved in distributing illegal copies over the internet is shut down. I am a supporter of reforming the DMCA notice and takedown provisions, and I can understand why stories like this are annoying for the people involved, but come on.
"[A]nnoying"? The DMCA takedown notice threatened to wipe out a small business entirely! (Would you say the same thing if the business had been a bricks-and-mortar enterprise in existence for more than a decade, and the threat was to not just put it out of business but to destroy all of its inventory and raze its building?)
(You also ignored the story of the guy whose home video of stuff going on in the street outside his window got blacked out.)
Fuck your personal experience. We've all heard "trust me, I know these things" before.
Look, you're one of the bad guys. Your team took a try at a big power grab but overdid it by underestimating the opposition (= us), so they smoothly backed up to a second position, saying it was all a big accident due to bad lawyering and the messy legislative process. And they (=you) then rolled up their (your) sleeves and got to work on the new position, which might be what they wanted in the first place.
This is how every deep-pockets malefactor works public opinion and Congress. Almost everyone here understands that process. But you're giving us their PR line like we're a bunch of bumpkins, all on a "trust me, I'm your friend" basis. But do we trust you? I obviously don't.
I've got to admit that it's pretty fun seeing Emerson in action when it isn't my ox being gored.
I'll have you know that I've had plenty of oxen gored at the hands of Mr. Emerson (and that I have not always handled this with as much equanimity as Halford has shown in this thread).
I propose that Unfogged should feel the same way about Halford that U.S. presidents feel about Third World dictators: He's a son of a bitch, but he's our son of a bitch.
And by that I mean, of course, that I expect Halford will take instructions from me in the future.
101 -- that guy was dead wrong about the law and what would have happened to him; all he needed to do was file a counter-notice, as he would have discovered if he'd consulted a lawyer (or read one of the many websites that explain how to file a counter-notice), and stayed the period in which anything could have happened. Or, without consulting a lawyer, he could have taken the individual link to the song down and then proceeded with the claim to restore it. Although, in the particular case, he didn't even have to do that -- he just informed the company, which withdrew the notice.
And, sure, getting a lawyer is a pain, but if you are a small business in the business of posting (among other things) links to music being produced, I think it's fair to say that you should understand that you need to comply with the law as a cost of doing business. The idea that his entire business would have completely vanished due simply is wrong.
Also, if you have a brick and mortar business and are selling illegal goods, you better believe the whole thing can be seized. For better or for worse.
The story told in 97 (which, let's be honest, I should have read more carefully) is way more disturbing, but then again I've seen TechDirt get stories completely and totally wrong, so who knows. But the decision to hold the injunction while eventually abandoning the forfeiture case is in fact disturbing, and I'd like to look into that more carefully. Haven't heard about that happening in other contexts, though. If I get a chance, I'll try to look into it further.
102 -- I don't know who you're arguing with or why. I'll cop to being one of the "bad guys" but I didn't write the legislation and don't think it will or should pass, and am trying to tell you why that is.
Halford and Christopher Dodd are obviously right. It's just another shoving match between corporate behemoths, and we just have a few corporate behemoths like Wordpress and Wikipedia and Reddit and Etsy and Wired Magazine that we happen to irrationally sympathize with.
Ars Technica is doing a nice series of articles today on SOPA/PIPA--what they are; suggestions for fighting back; an overview of the economics of unlicensed downloads; etc.
I haven't had time to read most of the stuff, but Ars is generally pretty solid.
Some nice bits from the last:
So, for instance, Nielsen SoundScan data shows new album releases stood at 35,516 in 2000, peaked at 106,000 in 2008, and (amidst a general recession) fell back to mid-decade levels of about 75,000 for 2010. That's against a general background of falling sales since 2004--mostly explained by factors unrelated to piracy--which finally seems to have reversed in 2011. The actual picture is probably somewhat better than that, because SoundScan data is markedly incomplete when it comes to the releases by indie artists who have benefited most from the rise of digital distribution. ... If we look at movies, the numbers compiled by the industry statistics site Box Office Mojo show an average of 558 releases from American studios over the past decade, which rises to 578 if you focus on just the past five years. The average for the previous decade--before illicit movie downloads were even an option on most people's radar--is 472 releases per year.
(There's also a link to an actual research paper that does a more thorough job about estimating how the supply of creative works has shifted over the last decade and concludes "Data on the supply of new works are consistent with the argument that file sharing did not discourage authors and publishers. Since the advent of file sharing, the production of music, books, and movies has increased sharply.")
I'm arguing with you, Halford. You've continually minimized and misrepresented what's happening, and the backup position you're arguing is the industry's backup position, not your own boldly independent position. You originally said that the first laws were never a big deal, though you seem to have changed your story on that. Now you're saying that the new laws will be perfectly fine and that we should trust you, because you know these things and are our friend.
You want us to maintain even-handedness on this, as if we'd never heard of Disney and Microsoft and the rest of the copyright bullies who are lined up against a lot of groups that we highly admire (who are all hysterical and stupid).
Are you saying that the small businessman who misunderstood the law never could have lost his business? Or that if he had, it would have been his own damn fault because he didn't understand the law? And of course, wasting a week of his time because of someone else's mistake is no big deal.
Sometimes people ban themselves, and then email me stuff that they wish would appear in this thread:
So... the whole thing's a little ridiculous. What they're proposing won't work. The Reddit article clearly explains the issue, i'd suggest reading that if you haven't already.
http://blog.reddit.com/2012/01/technical-examination-of-sopa-and.html
My takeaway is that this is an extension of current rights provided to copyright holders under the DMCA. This legislation expands the DMCA "takedowns" to enable copyright holders to:
Have domestic assets seized if the offending site is hosted in the US.
Require U.S. sites and search engines to remove all links to a foreign site known to be hosting their material.
Require U.S. advertising services to no longer serve ads linking to a foreign site hosting copyrighted material, or display ads (e.g. AdSense) on the site.
Require U.S. payment networks to cease any transactions between the foreign site and U.S. customers.
Require U.S. service providers to block customer access to the foreign site (DNS blacklisting).
Copyright holders would have to first prove the offending site was:
used "primarily as a means for engaging in, enabling, or facilitating the activities" of copyright infringement or counterfeit products; or
designed by its operator "as a means for engaging in, enabling, or facilitating the activities" of copyright infringement or counterfeit products.
If these two criteria are met, the office of the Attorney General can then serve a court order to entities in the U.S., requiring them to take specific actions against the site.
So... why would you care about SOPA/PIPA as a pentester? You already know how the internet works, and you can just use a vpn service, or even just a different DNS server outside of the US to escape the blacklisting.
Notice that "facilitating the activities" of copyright infringement is super-broad. -- If i add a link to my profile for piratebay.org, am i now faciliting and can my site be taken down? Does facilitating mean talking about how to obtain copyrighted material? What about info on reversing or exploiting software?
Making a site host copyrighted content is now sufficient to get it taken down, blacklisted and seized. -- Sounds a lot like a kiddie porn site, no? -- We all know there's no way to upload content to an unsupecting host.
http://www.metasploit.com/modules/exploit/windows/http/coldfusion_fckeditor
http://www.buayacorp.com/files/wordpress/wordpress-advisory.html
http://www.exploit-db.com/exploits/17644/
...
The legislation has profound implications for affecting the architecture of web applications - Search engines and other media sites will need to have a way to remove any and all "offending" content. Permanently. Which means increased complexity, which means more vulns. Also, more time monitoring and blacklisting domains == less time on monitoring actual criminals.
The DMCA is thought of as a media-and-content-protection law, but it's also used to threaten security researchers (SNOSoft vs HP, Blackboard vs Billy Hoffman, Sklyarov vs Adobe, the list goes on) - Read https://www.eff.org/wp/unintended-consequences-under-dmca for more details. There's no reason this legislation wouldn't be used the same way.
So, say you're a site that hosts (OR LINKS TO) copyrighted content. How would you work around the takedown provisions of ProtectIP?
Register 10 new domain names every day, and ensure they all point to your IP. - Ensure these make it into the search engines. Make Google spend half its time chasing you down.
Publish your IP, far and wide. -- And provide DNS / VPN / proxy service for users.
Don't advertise with US-based entities. Submit to foreign search engines. Host outside the US. Ensure your traffic reaches your audience, just not on servers in the US (This'll really help the recession.)
Further Reading:
http://blog.reddit.com/2012/01/technical-examination-of-sopa-and.html
https://www.eff.org/sites/default/files/filenode/2012_dmca_exemption_requests_no_appendix.pdf
https://www.eff.org/wp/unintended-consequences-under-dmca
http://www.chillingeffects.org/reverse/faq.cgi#QID196
This is less technical than i though it would originally be. -- Mainly because to avoid all this BS, you just need to point to a non-participating DNS server. So... avoiding it is trivial, and the web will just grow around the legislation, admittedly with a bunch of money and time wasted.
Sometimes people ban themselves, and then email me stuff that they wish would appear in this thread:
Stuff not written by any unfogged commenter, by the by, banned or no.
Wait, banned, who's banned... I'M BANNED!
* poof *
Also I emailed it to you because I thought you might find it interesting, heebie. I'm not so mercenary as to make you post comments for me. Yet.
I used to read the discussion forums for a small sports magazine website fairly regularly where the editor, justifiably, aggressively policed the forums for potential copyright violations. But he went so far as to shut down every single instance where someone posted joke lyrics based on a real song. It's a minor example, really, but I'd hate to have an internet where you couldn't have a lawyer hip hop thread or a clown fucking poetry thread.
I doubt the internet will get "broken" in the sense of becoming technically inoperable but I do think it could be "broken" in the sense of no longer being hospitable to open forums like this one. Despite some effort to paint this dispute as one between two groups of massive corporations, it really isn't; the smaller players are still real players. But one of the dangers of legislation like SOPA/PIPA (if not this exact legislation) is that we'll end up with a world where these kinds of debates really are played out entirely between the big players, kind of like what you get with national cable news shows.
No, what I'm saying is that this is (a) largely a battle between different large industries, which is true, and (b) there is an actual problem with extraterratorial pirate sites, which will eventually be solved through some combination of a legislative and technical fix, once the battle between those large industries is resolved. Also, I'm not making up the fact that this legislation won't pass -- in fact, it won't pass.
I am surprisingly in agreement with 111 and 112! But let's be clear about what happened and is happening: there is a massive threat of copyright infringement, which largely killed off the music industry as it existed pre-2000, combined with a massive influx of technology that makes it cheaper to distribute music and film. So far, the content producers are weathering the storm OK (the music industry slaughter is over) but only through vigilance. If Pirate Bay was actually as easy to use, and as commonly used, as Napster circa 2000 things would be a disaster for the world of film.
113 describes some of the technical problems with removing links, of course, but it doesn't really get to the heart of the issue. Going after the financing of the pirate sites and making them difficult to access -- which is the ultimate goal of the legislation -- doesn't require complicated technical fixes, and is in fact what we will see happen once the dust settles. More broadly, the goal isn't ultimately to make having pirated content impossible to find -- it's to make it difficult to find for the tech non-savvy and difficult for respectable businesses to be involved with.
That said, I really don't like seeing sites that run lots of unlicensed, in copyright content run ads too. That probably makes me a concern troll.
And, sure, getting a lawyer is a pain, but if you are a small business in the business of posting (among other things) links to music being produced, I think it's fair to say that you should understand that you need to comply with the law as a cost of doing business.
This is very easy to say when complying with the law as a cost of doing business means hiring me or folks like me. Again, it bears repeating that Halford seems like a nice guy, he's our son of a bitch, etc., but, as with nice people who work in cigarette marketing, the niceness doesn't make what they do less harmful.
The "costs of doing business" are deeply contingent; we should be skeptical anytime somebody proposes something that will raise them, particularly when this increase will disproportionately affect smaller operations and build-out the institutional infrastructure for heightened corporate and state control over the means of communication and production.
I know I've linked before to Peter Fr/ase's "Anti-Star Trek," his parable about how a capitalist dystopia might be preserved even in a world that had overcome material scarcity entirely, but he's now reworked that blog post into a really nice article about, in essence, which utopias and dystopias the Left ought to orient itself towards and against, and I really recommend reading it.
I seem to recall Halford just recently endorsing MLK's support for a Basic Income entitlement, and that's great, but much of what's so good about BI proposals gets to what's so bad about intellectual property maximalism: BI is about a rejection of soft authoritarianism, where citizens aren't trusted to be responsible and must be monitored and properly incentivized in all aspects of their lives. It's hard to see how a culture that has grown to accept the presuppositions of the MPAA/RIAA--that the normal experience of leisure time is the licensed-and-paid-for consumption of capital-intensive media spectacles, a process whose integrity both justifies and demands intrusive and thorough-going surveillance powers and terrifying penalties (because only the threat of jail time for someone who leaks something to a website can ensure we get our Mission Impossible 6)--could be persuaded that it's okay to just give the alcoholic on the street corner $15k a year, no strings attached. You can't simultaneously work towards that goal while undermining its cultural preconditions--or rather, you can, I suppose, but you should recognize the tension there.
Also, I'm not making up the fact that this legislation won't pass -- in fact, it won't pass.
Well, yes, now that people have gotten "hysterical," it won't pass.
there is an actual problem with extraterratorial pirate sites, which will eventually be solved through some combination of a legislative and technical fix, once the battle between those large industries is resolved
There's a real problem for IP owners, of course, but (as Yglesias points out frequently, and x. trapnel has noted in this thread) there's very little evidence that there's a public policy problem here requiring a legislative solution. The point of government IP protections is to incentivize content creation, and at this point there's no shortage of content available.
In other news, my main computer on my home connection continues - for a week now - to fail to connect to unfogged. I can connect on my netbook and on an old laptop from this same connection. I can connect from this laptop using a VPN over the connection. I can connect from this laptop using web proxies (but can't post comments that way). And I can connect from this laptop using wifi connections. But I can't connect from the connection I use for everything else on the internet except this site. It's really annoying.
124: The Internet Is Broken!
Maybe you put unfogged on your hosts file, in a futile attempt to stop your procrastination?
The point of government IP protections is to incentivize content creation, and at this point there's no shortage of content available.
This is one of my favorite dumb Yglesias arguments. Sure, there's content out there, because (a) there is a lot of recycled content out there; (b) there is a lot of terrible content out there that people are finding easier ways to distribute, and (c) because, due largely to copyright enforcement, it is still pretty much possible to earn an income as an artist. If, in fact, you had a genuine absence of a copyright regime, or if the Napsters of the world had never been shut down, things would be quite different indeed. Even as it is, the level of investment in content production has been falling for years.
Sure, there's content out there, because (a) there is a lot of recycled content out there; (b) there is a lot of terrible content out there that people are finding easier ways to distribute, and (c) because, due largely to copyright enforcement, it is still pretty much possible to earn an income as an artist.
So? What's the problem here?
128 -- the problem is the future. What people are worried about is the emergence of a new extraterratorial Napster that will be difficult or impossible to shut down. If you want significant investment in culture, and think that's important, you need* a copyright regime that's enforceable not only now but in the future.
*I actually like Trapnel's arguments on these points because they are explicitly utopian. Maybe you don't need this regime! But then the same arguments should apply to non-intellectual property as well. As I've said before, my nightmare world is one in which content providers get paid nothing but the rest of capitalism just keeps on churning along.
127: I say, let's try it and see. I predict that while it would completely kill off the movie industry, the effect on the production of music would be essentially zero.
126: It's not the hosts (though I've done that before).
if the Napsters of the world had never been shut down
Is this a joke? It hasn't gotten significantly harder to get unlicensed content; what's changed is that it's gotten significantly easier to get licensed content, and, because people buy content not simply to consume it but as an expressive act (*cough* that thread about the minimal acceptable linear-footage of books *cough*), people want to support creators, when it's reasonable to do so. This has been backed up by a shitload of research, aside from being apparent with just a bit of introspection.
Now it's true that there's a category of content whose consumers tend to not feel much identification with, and hence not feel super inclined to support, even as they partake of it--"guilty pleasures," broadly construed. But again: is this really a huge public policy problem? If you're a content producer whose consumers feel ashamed to support, should the state really be layering intrusive systems of surveillance, control, and punishment upon society for the sake of demanding that every download of "I Kissed a Girl" or "Buttfuck Sluts Go Nuts #38" be paid-for?
Walt, I believe that arguing that the music of 2011 doesn't suck massively more than the music of pre-2000 is a contrarian step too far even for you.
I actually like Trapnel's arguments on these points because they are explicitly utopian. Maybe you don't need this regime! But then the same arguments should apply to non-intellectual property as well.
No they shouldn't. You keep saying this, but cultural "production" just isn't the same thing as other kinds of production. They're currently organized the same way, but that's largely an accident of history and policy and it's perfectly possible to imagine different arrangements working just as well for society as a whole.
As I've said before, my nightmare world is one in which content providers get paid nothing but the rest of capitalism just keeps on churning along.
And as other people have pointed out when you've said this before, not everyone shares your preferences on this.
What the big money "content production" usually amounts to is taking a musician who already exists, banging them around a bit, and then marketing them intensely.
I'm not sure I know of many musicians who were improved by big time production. I'm not going to say that there are none, but a lot of shit music is merchandised.
There's a whole music scene that has nothing to do with the Big Content Producers. That's even true of film, a much more costly art form. If the big content producers go under, there will be more or less as much music as ever. Musicians will have to forget about the big money, but most of them already have.
Content is free, but cows are sacred.
It hasn't gotten significantly harder to get unlicensed content; what's changed is that it's gotten significantly easier to get licensed content, and, because people buy content not simply to consume it but as an expressive act
It has gotten easier to get licensed content, but if unlicensed content were respectable and readily available, it would be consumed furiously (actually, the early YouTube is a story of that). People like to consume art as an expressive act, but they also like to do so for free.
Walt, I believe that arguing that the music of 2011 doesn't suck massively more than the music of pre-2000 is a contrarian step too far even for you.
Oh for fuck's sake. The kids are always already listening to shitty music. If you can't find awesome stuff being made, it's your fault; there's tons of stuff out there, and whenever I put a bit of effort into looking for new stuff I like, I find it. If your complaint is that the music that's just sort of floating around there, the stuff being pushed by the very industry you're defending, isn't to your taste--well, I hate to break it to you, but you're not the demographic they're selling to, so of course it's not. Just put in a little effort. Or, hey, hire a hipster to curate new stuff for you, based on what you already like.
They're currently organized the same way, but that's largely an accident of history and policy and it's perfectly possible to imagine different arrangements working just as well for society as a whole.
They're currently not organized the same way, which is why we're having this conversation. But if you want to end the commodification of culture while preserving the commodification of everything else, you'll get a world with no investment in culture and the arts and a shitload of investment in everything else. Or, I mean, you could have total government funded socialism in the arts or something, but now we're really in the realm of utopia.
Walt, I believe that arguing that the music of 2011 doesn't suck massively more than the music of pre-2000 is a contrarian step too far even for you.
FWIW, I found more new music I liked last year than I did in any year since... 1996? (Let's not forget that it was the pre-Napster music industry that brought us Limp Bizkit.)
Copyright wasn't much more than a dream in the 19th century, but the novels still got written. Novelists only got paid for first serial publication and first book publication, and pirate copies were out almost immediately. The books got written. Balzac, Dickens, Trollope, Hugo, Dumas et al had to be tremendously productive, but they did quite well.
Henry James only got pirated once because he wasn't popular. Boo hoo, Henry.
140 last does make a good point.
141: What happens to the 19th century novel if the serialization is distributed entirely for free? Henry James was independently wealthy IIRC, and Flaubert seems like he would have written anyway, but no way you see Dickens, Trollope, Balzac, or Dumas.
but if unlicensed content were respectable and readily available, it would be consumed furiously
It is readily available--trust me!--and it is consumed furiously. But people also pay for it. The amount of illicit downloading, by itself, is irrelevant to the question of whether artists are adequately supported.
And note that how "respectable" it is will depend also on what the alternatives are. In places where unlicensed copies are dominant, the explanation is largely that the legit companies have no interest in competing at a price point average folks can afford; it's more profitable to sell 1/10th as much at 20x the price.
92: I gotta go Halford on this one and say that I did see some internal data on this topic several years ago (from a different drug company and a different product), but the actual numbers are not public and not something anyone wants to publicize.
The amount of illicit downloading, by itself, is irrelevant to the question of whether artists are adequately supported.
Um. Oh wait, I forgot, T-Shirt sales, live performances, and . . . government funding? Patronage of wealthy donors?
129
As I've said before, my nightmare world is one in which content providers get paid nothing but the rest of capitalism just keeps on churning along.
This is either ridiculous hyperbole, deliberate trolling, or viewpoint that I can relate to and understand as well as that of an inhabitant of Candyland.
146: The point is illegal downloading is irrelevant where it isn't crowding out people paying full price. If I download something for free that I would have bought in the absence of the opportunity to download it, the copyright owner loses. If I wouldn't have bought it, I get a benefit and the copyright owner loses nothing (and may gain a customer for the next related work.)
Obviously some downloading does crowd out purchases, but equally obviously not all does.
143: I think the 19th century novel had effectively zero international copyright protection and I think Dickens was widely and illegally circulated in the U.S. I don't have a cite because Wikipedia is broken.
133: I don't know about music, but certainly fashions haven't changed much in that time.
149 is true -- little copyright protection for foreign works in the 19th c US.
The musicians I know play live and release on the internet. There's a price at which it's not worth stealing. My opinion is highly skewed because there's very little heavily promoted commercial pop and film that I care about, and a fair proportion of my favorite musicians were commercial failures.
Best selling albums of the 80s. How many of these albums still look good at all? And of the good ones, how many were playing music because they wanted the big money? 1983 is almost a complete waste.
And of course, that's my taste. But your argument is basically that without the big money there wouldn't be any good music, which is not convincign to someone with my taste.
146: I can't tell if you're deliberating pretending to not understand, but okay, fine: the reason the amount of illicit downloading by itself tells you nothing about whether artists are adequately supported is because illicit downloads aren't simply substitutes for licit downloads, they're also complements, a finding that has been confirmed by every single study on this issue that has ever been done. Not always and not for every sort of creative work--see especially "guilty pleasures"--but very often what gets folks to buy an album is first having gotten that album, or another by the same artist, for free. This mechanism becomes even more crucial over the life-cycle of the person in question--when you're young and poor, you listen to free stuff; when you have money, you support artists you've grown to care about in the earlier stage. I mean, for fuck's sake, I can appreciate the argument that the US should have a fund to pay authors for library checkouts like in the UK, but are you seriously going to argue that (free! uncompensated!) library checkouts are killing the publishing industry?
1983 is almost a complete waste.
I was in junior high. I had an excuse.
It seems obvious to me that Halford's argument applies to movies but not to music.
Gah, pwned. But mine had more vitriol!
146: The idea that musicians might mostly be supported by live performances is apparently so unthinkable that it's can only be used for rhetorical questions.
that we'll end up with a world where these kinds of debates really are played out entirely between the big players
We are already there.
This is really a battle between Silicon Valley and Hollywood, over us, the product. They already own the politicians. It is partly about how much of streaming profit, net or cable, goes to each.
Hey, Synchronicity is the first album I ever bought (birthday present for Dr. Oops.) It may be the only actual LP I ever bought -- I can't remember another.
152: wow, I had no idea that the "Now That's What I Call Music" series dated back to the 80s. Huh.
160: I guess it dated back to the 80s in Britain. (the presence of Paul Young and Wet Wet Wet suggest that those are the UK charts)
Remember when Canada put a surcharge on cassette tapes to compensate artists for losses due to OG file sharing? Could there be a surcharge to ISPs, plus a little Big Champagne-cum-ASCAP style monitoring to see what properties are being shared and compensate owners appropriately?
It always seems that ISPs get overlooked in this debate. Nearly everyone who pirates needs to pay for internet service. Limited surveillance of internet traffic for purposes of apportioning the pot would be much less offensive than the DMCA/SOPA intrusions.
157: Well, yes, you can make a decent living for yourself that way, but how are you going to support a lawyer?
162.1: No, I don't. I do remember how shitty the quality was if you recorded from the radio.
I like or liked most of the albums on the 1983 list.
153 -- sure, but the complementarity argument doesn't apply when the free good is a perfect substitute for the nonfree good. A library book isn't a good substitute for book ownership, and (largely because of laws that you hate) an illegal copy of a film isn't, unde current conditions, a good substitute for a licit copy. There is a lot to learn about how some digital free copies can bolster sales of the licit copies, but thats not an argument in favor of getting rid of copyright.
@155
It seems obvious to me that Halford's argument applies to movies but not to music.
Even with movies though, I'm pretty sure that anything I've streamed on netflix lately I could have found on a torrent site somewhere for free. It just wasn't worth the extra bother plus I'm not Windows savvy enough to be comfortable with whatever malicious junk my computer might be exposed to be downloading stuff from those sites.
It seems that a large number of people feel the same way. Netflix was not filing for bankruptcy last I checked.
Maybe we should get rid of copyright only for movies and CDs grossing over a certain amount, wo that we could put Halford's employers out of business while still allowing normal people to make a living.
What Hollywood could, if they haven't already, is hire a bunch of top virus-creator and then set up virus-infested free-video sites. That seems to have already happened with porn.... my friends tell me.
Substantial numbers of records are still being sold (whether as CDs or as digital downloads). I've never had it adequately explained to me why a business still selling very large product volumes is a dead business. Digital sales are up, CD sales are down. In the UK singles sales are up massively, as people switch to buying single tracks rather than whole albums. But music is competing with games, apps, DVDs/blurays, etc. The market has changed, even absent piracy. Sales are down, yes, but they are still running at 100 million albums or thereabouts, per year, in the UK.
Do you think we matter in this debate?
Commodified culture is like our current commodified politics, where only those candidates supported by mega-transnational corpocracy get elected.
The goal is to make the indie artists Emerson listens to or the practice of Louis CK unavailable and unappealing and somewhat disreputable, just like minor or radical political candidates have been rendered irrelevant and purportedly pernicious.
Don't let Halford kid you. They want no independent competition at all including the kid with the guitar on the corner or the avante-gardist posting his film on the web.
This is the absolute logic of commodification and capitalism:they must have it fucking all.
I won't even bother telling you where it goes after that, but goddamn, I'm happy I'm neither Alpha or Delta.
146 - If people are actually interested in this subject beyond scoring rhetorical points, I'll point to the Future of Music Coalition, a long-running think tank explicitly devoted to the question of how musicians make a living in the post-digital age. (It was founded by Jenny Toomey and Kristen Thompson of the DC indie pop label Simple Machines.) I'm pretty sure there's a white paper in there where they surveyed a bunch of working musicians a couple of years ago about how they make money.
I'm pretty sure that anything I've streamed on netflix lately I could have found on a torrent site somewhere for free. It just wasn't worth the extra bother plus I'm not Windows savvy enough to be comfortable with whatever malicious junk my computer might be exposed to be downloading stuff from those sites.
That's pretty much exactly the calculation the content industries want you to make. No one (sane) thinks the sites can be eliminated entirely, but they want them banned to the ghetto of being illicit and dangerous.
I've never had it adequately explained to me why a business still selling very large product volumes is a dead business.
It's not a dead business at all, but it's not one that can support the amount of capital, employees, or revenue for the artist that you could find in the pre-internet era. I'm actually a big music industry optimist going forward, but saying that this perspective means that the measures taken to protect copyright weren't important is weird.
153 is a good description of the status quo, but doesn't really address a future in which sharing becomes easier for higher-quality products. It's not too hard to imagine a Pirate Bay interface that resembles the Apple Store. I happen to like a regime in which enough people still buy art so I can share a bit of it some of the time without feeling too terrible, but it doesn't strike me as real topnotch categorical-imperative behavior on my part.
At this point, I'm paying for subscriptions to emusic, spotify, netflix on demand, and hulu+, plus torrenting to fill a few holes here and there. Data point FWIW.
FWIW, two bits of unequally significant anecdata:
1. I'd buy a lot less music if I couldn't first listen to it on youtube. I surf around, listen, listen, and listen, and eventually put it on my wishlist and then buy next time I'm buying. My music purchases have jumped several fold since Youtube became available, though that's not saying much.
2. Halford's dystopia was a reality when I lived in Poland in 1992-3. Virtually all music was pirated, there was a very limited selection of legit cd's available, and also a bit of legit tapes by very prominent Polish artists. But no legit foreign artist tapes at all, and no cd's either for most of them. A legit tape cost around 80,000 to 150,000 zl, a pirate one cost about 10,000. The cheap ones completely crowded out the expensive legal ones, and there was no enforcement. Just three years earlier people would have been paying (or bartering) an arm and a leg for a lot of this stuff, now they could get it cheap, and that's what they chose. Some people would never buy legit, others would buy one or two legit of their favorite Polish artist to support them, feel better about themselves, and buy dozens and dozens of pirated things. So, both crowding out and buying stuff they wouldn't have otherwise but that's because they couldn't afford to buy that much at legit product prices - most of their music budget just shifted to pirated music.
Get the fuck out of here, snarkout. We are only interested in scoring rhetorical points. What a silly proposal!
166: I'm really starting to suspect that you're just trolling me now, Halford.
No, the free good is not a perfect substitute for the non-free good, just like a knockoff "I'm an NPR supporter!" mug wouldn't be a perfect substitute for the real thing, even if made in the same factory, and molecularly identical, because part of what makes the non-free good what it is, is precisely that you paid for it and that some of that money, hopefully most of it, is going towards the creator. Now, this aspect of the good is not a constant thing--as I acknowledged, with some guilty pleasures you may have no desire to identify with, and support, the creators. But I actually feel that it's a good thing if the content ecology, the mix of laws and technology and institutions, ends up biased in favor of content that people don't simply consume in a rat-hitting-the-cocaine-lever sense, but rather enjoy in a way that they can reflectively endorse and that hence is more likely to have that "wanting to support the creator" aspect.
177.2 is very strange if you read Poland as Portland, which I did.
Further to 174: Jenny Toomey's album of Franklin Bruno songs is amazing. Unionbusting.
164: Ah, that brings back memories. When I was in high school I discovered that the local community college ran its radio station by Web site part of the time, so at certain times individuals could program the station to play what they wanted to hear. So one slow afternoon I programmed a couple dozen songs and recorded them and made a mix tape of all my favorites. (The anachronism stew there sounds funny, now that I think of it, using the Internet to program a radio so I could make a tape.) Sure, the quality was really shitty, but I've never been much of an audiophile to begin with, I just wanted a mix tape and this was the easiest way to make one at the time.
I am not one of the hippies saying information must be free, I am more of a Marxist that that.
Content and culture and information and fucking thought cannot be any more free under capitalism than can be food or cars or houses or having a baby or getting an appendectomy or walking in the street.
The law of commodification demands that the idea of unpriced itself must be killed absolutely dead.
Don't you understand that?
That is a delightful anachronism stew indeed.
As it happens, I don't have any pirated music or films. But that's partly because I made a decision a few years ago not not -- a decision that was partly ethical, and partly for 'slow music' sorts of reasons, music had become acquisitive. But it's also partly because services like youtube and spotify have made it much easier for me to check out music before I buy, legally.
Dickens made his serious money with lectures and with his literary magazine (although I'm not sure whether the literary magazine was a net gain or loss, in the end); the books and magazines, however, did get him some money, even in the face of the widespread pirating.
Nobody understands that, Bob, not even you. Critical theorists are even better than Democrats at explaining why nothing can be done and why everyone else is stupid.
Anyway, there's a world of difference between supporting the concept of IP as a way of funding the creation of music, or films, or software or whatever; and supporting the specifics of particular draconian laws or methods of enforcement.
Anyway, there's a world of difference between supporting the concept of IP as a way of funding the creation of music, or films, or software or whatever; and supporting the specifics of particular draconian laws or methods of enforcement.
Yes, this, absolutely. The link in 174, which I've linked to here before, has a lot of good stuff.
178 - I fully support your desire to score rhetorical points about this topic and have the data to back yourself up and listen to the wonderful Tsunami album "The Heart's Tremolo" and invest in real estate in North Dakota.
Didn't ogged have the heart's tremolo?
We already have a government-controlled content financing system in this country. So besides truly free content, another question would be whether we can improve our (already government run) system to make it more genuinely egalitarian for producers and cheaper for consumers.
Rhetorical Points R Me.
Not everyone seems to understand that.
Maybe we should get rid of copyright only for movies and CDs grossing over a certain amount, wo that we could put Halford's employers out of business while still allowing normal people to make a living.
The reason that the Halfords of the world are so intent on crushing the Pirate Bays of the world is that this is actually a decent approximation of how things work online. IIRC, it tends to be the super-smash hits that not only get pirated more, but that get a higher ratio of illicit to licensed downloads; and that's certainly what you'd expect from the model I'm talking about--those big smash-hits are hits not just because they've attracted a larger core of dedicated, fight-to-the-death-for-Team-Edward-vs-Team-Jacob fans, but because they've become cultural happenings that folks feel they're supposed to know about; and this large penumbra of network-effects-induced viewers/listeners are less likely to feel a psychological need to pay. OTOH, the very existence of such network effects is enhanced by the availability of the free alternative in the first place.
I still do most of my pirating in an OG way - BPL has a lot of stuff available for free. Internet piracy is something I reserve for things that are unavailable legally and not at the library.
reposted from the car thread, I advise neither stealing cars from the internet nor from your local library.
Actually, I've talked to various people who say that, even with copyright, only the most commercially successful authors make much money. Some lecture, some are academics or authors in residence, some have other incomes, some have day jobs, and so on. Between the second-hand book market and libraries, books are bad business. And the distribution people get most of the money, just like in the music biz. (And the way the music bizabuses musicians artists is one of the reasons why Disney et al have few friends.)
193 IIRC, it tends to be the super-smash hits that not only get pirated more, but that get a higher ratio of illicit to licensed downloads; and that's certainly what you'd expect from the model I'm talking about
Even though it was the exact opposite in post communist, pre-IP Poland, the reasons wouldn't apply in the internet era - lot cheaper to store rarely bought files on your server than rarely bought chunks of plastic at your music stand.
The reason that the Halfords of the world are so intent on crushing the Pirate Bays of the world is that this is actually a decent approximation of how things work online. IIRC, it tends to be the super-smash hits that not only get pirated more, but that get a higher ratio of illicit to licensed downloads; and that's certainly what you'd expect from the model I'm talking about.
This is the opposite of what I thought the situation was. Try to download a Pink Floyd album in a .rar folder and you're running major risks of law enforcement and/or malware. Try to download something by Captain Beyond and it just takes one Google image search for mp3 blogs, because nobody cares about enforcing the law on long-tail items like that. Evidence can come from the 4chan rapidshares search - compare the smash hits to the smaller items in terms of # of broken links.
There might be fewer international piracy sites if more of the services k-sky lists in 176 were available outside of the US. There's netflix here, but they actually rejected me for being insufficiently Canadian.
The model of all the content industries has been that the smash hits pay for the marginal products (and you're never quite sure which marginal products will turn into smash hits). In the movie business, at least, the reaction to the (perceived) decline in profit from the smash hits has been to reduce spending on the marginal products, while betting more conservatively on what will constitute a hit. The market for the $10-20 million "indie" film is evidence.
There are interesting questions, many of them raised by the site linked in 174, about how all this changes or doesn't change in the future. People have some hope that digital distribution and lower production costs will lead to a less winner-take-all market for artists. But with a total absence of copyright protection, no one's getting paid.
Halford can console himself that he's on the same side as Patrick Leahy and Al Franken, while the rest of us are siding with Jon Cornyn and Marco Rubio. Hollywood liberals, strange bedfellows, etc. etc.
People don't need the big companies for production unless they want a 100 piece orchestra or something. But Let it Bleed would have been fine without the London Bach Choir.
The FMC stuff (from 174) is interesting, and they certainly have done some valuable work and research, but their comments on, e.g., the felony streaming bill demonstrate that we're just not in the same moral universe. Though I think this just goes to a more fundamental coarsening of Americans' moral sensibilities, a willingness to criminalize more and more, and ignore the humanity of those so criminalized. I mean: thanks to the NET act, the government can now put you in a cage for up to 5 years, or up to 10 if it's a 2nd offense, for willfully distributing copyrighted works worth over $2.5k, if it was done for "commercial advantage or private financial gain"; 3 (or 6 for 2nd offense) without that caveat. Now, assuming $1 per song, and ~10 songs per mix, you'd need about 100 downloads of the various mixtapes folks upload here before you're even at the 1 year imprisonment level, but I really have no idea how many lurkers dwell in the Mineshaft--it's not unlikely that over 6 months (the key time window) Apo or someone else ended up making available mixes that got over 250 DLs, breaking into the 3-year level.
Now: does this make any sense? Even trusting to the prosecutorial discretion of our benevolent rulers, the same ones who've been so vigilant about taking down financial fraudsters and policing the integrity of the mortgage process--does it make any moral sense to say that the appropriate response to someone distributing 10 songs online, downloaded 250 times each, over 6 months, is to brand them forever a felon, with all that entails in our country, and jail them for up to 3 (or 6!) years?
It strikes me as frankly insane.
(I'm sure Halford will correct me on various technicalities that make little difference to the basic point here.)
But with a total absence of copyright protection, no one's getting paid.
You keep repeating this despite others repeatedly reminding you that it is clearly false. With a total absence of copyright protection, business models won't work the same, obviously. But as Emerson and the FMC stuff demonstrates, many musicians make money from revenue streams that have nothing to do with copyright. You keep mocking this as an absurdity, but, most obviously, live performance revenue has basically nothing to do with copyright: it's founded on the fact that people want the authentic experience of hearing your band in person, and if you reach an agreement with a venue owner, only those who pay to get a ticket can hear you--that's rooted in the property rights of the venue owner to exclude trespassers, not copyright.
Okay, christ, I need to stop this and go biking and maybe even apply for a job so that I'll have money that I can use to pay content creators.
But if you want to end the commodification of culture while preserving the commodification of everything else, you'll get a world with no investment in culture and the arts and a shitload of investment in everything else.
Bullshit. Every society ever has invested in culture and the arts. The level of investment and the mechanism of production have varied widely, but there are plenty of models available besides capitalist production (patronage, government funding, people producing in their spare time while working day jobs, etc.).
Now, you can certainly make a value judgment that the type and level of cultural production seen in late-twentieth-century America is socially optimal and should be maintained by any available means, and Halford has said more or less exactly this in previous threads. I disagree with that judgment, obviously. I consume very little of this production, and if the total elimination of the copyright system meant that it disappeared entirely that would barely affect my life at all. Determining the actual socially optimal policy for the US government would require finding out where most Americans fall on this spectrum, and while it's certainly possible that they're mostly with Halford and I'm the outlier I'm skeptical that that's actually the case.
When was the last time a copyright abolition bill got introduced and taken seriously?
I'll have money that I can use to pay content creators
Yay!
I await with great anticipation the world in which the only way musicians can make money is live performance. I'm sure it will be a glorious cultural future. At least we'll be able to look at copies of performances from the golden age on a Google-affiliated website, in exchange for allowing advertisers (producers of nonartistic goods) to advertise. Should be awesome.
Determining what would be socially optimal might even require ignoring where people currently fall on that spectrum.
there are plenty of models available besides capitalist production (patronage, government funding, people producing in their spare time while working day jobs, etc.)
Yay!
while it's certainly possible that they're mostly with Halford and I'm the outlier I'm skeptical that that's actually the case.
TV shows, professionally produced sports broadcasts, hit music,... If you really consume very little of mainstream media products and would barely notice if they disappeared, I'm pretty sure you are an outlier.
208: True.
210: I'm quite certain that I am.
Again, live performance seems to be unimaginable as a way of financing music. I don't get this at all.
I think I'll bow out. To me this thread shouldn't ever bee born, but whatever.
Damnit, ok, one last time:
I await with great anticipation the world in which the only way musicians can make money ensure that only those who have paid can enjoy a particular musical work is live performance. FTFY.
Seriously, Halford. Stop saying this. The two things are not the same. The connection between excluding non-payers, and encouraging payers, is not what you think it is, not what it would have to be for what you keep saying to be true. And thank god for it!--because if it were, if humans never ever paid for a creative work if they could get a bit-identical file free, it would imply a wretchedness about human nature that would make living in society quite awful. Luckily, orthodox microeconomics notwithstanding, that's not our world.
OT: Dear Mineshaft:
If a person happened to go on a popular Internet dating site, despite both the occasional Mineshaft horror story about it and that person's intense shyness, created a profile, and got a few messages from members of the appropriate sex, and happened to wonder about the etiquette about replying and not replying to such messages, what would that etiquette be, nutshell version? Hypothetically.
Not Richard Nixon
214: Reply to the ones from people who interest you and don't reply to the others.
214: If you are interested, tell her something about yourself and start a conversation about something on her profile. Ask her a question that would be interesting to answer. If you are not interested, I have judged whether to respond or not based on the implied interest and effort level of the message. Not every "wut up qt" is going to get an explanation of my sincere regret about our probable incompatibility. Bave disagrees with me on this point though, and believes all messages deserve replies. To be honest, I don't think anything good ever comes of responding if you are definitely not interested, but I am trying to be a better and less fearful person.
To reply to people you don't want to talk more to, and not to reply to people you do want to talk more to, is false, while to reply to people you do want to talk more to, and not to reply to people you don't want to talk more to, is true.
Honestly, if you're getting a message, hopefully some of AWB's advice won't apply, because the person initiating the (hopeful) exchange will have made moves to start a conversation with you.
I side with AWB and teo, and shrink from the responsibility that Bave's approach implies.
I have responded more thoroughly to people who might seem otherwise compatible but are, as is usually true, married and in an open relationship they are taking great pains to explain in the hopes that I will "be cool about it." I feel the need to inform these people that this is pretty much the only category of people who are consistently interested in me and that I'm bored of them.
My first reaction: What color is the sky in Bave's world? Ancient madder?
Second: Courtesy suggests that a reply is appropriate, but I don't think there is a gracious way to tell somebody that their three or four jpegs and 1-200 words discourage pursuit.
Since there is no such gracious way, it is courteouser just not to reply.
If you're not interested, a simple "I JUST POOPED" will suffice.
One would like to believe that there is always room for grace, but in a situation of mutual ignorance the old reliable "It's not you, it's me" seems weak.
I have to say, breaking off relationships at any stage is probably the most important reason to learn to use clichés. If you get fancy or creative with it, suddenly everything is open to interpretation and either the relationship is still live without you knowing it or you get text messages all day long while at work telling you that you are a [insert appropriate expletive].
Also: you are not in any kind of relationship with someone until you respond to their messages. At that point, you are putting an end to something you started by responding.
I have to say, breaking off relationships at any stage is probably the most important reason to learn to use clichés.
It's so hard to say goodbye.
One interesting thing about small-town life:
When I was very briefly and tragically on OKC here in our little farm village, I wrote to one guy who has a fiancée but had up a nice "looking to meet cool people for friendship" profile. He never responded. Later when I did a little avant-garde theater thing here in town, I started talking at the cast party to the guy who wrote the best play in the show, who recognized me from my OKC message. Apparently it had gone to an email he didn't check for a few months. Anyway. Not much came of it, other than (1) I predicted that guy would be funny and talented and cool, and (2) he turned out to be funny and talented and cool.
My first reaction: What color is the sky in Bave's world? Ancient madder?
Bronze.
225: Break-up using LOL cats and photos of Chuck Norris kicking your relationship.
I have to say, breaking off relationships at any stage is probably the most important reason to learn to use clichés.
"Unfortunately, you do not meet my needs at this time."
It's not you. It's me and my high standards.
"It's not you, it's me. I don't like you."
"Don't feel like Satan, but you are to me"
What color is the sky in Bave's world? Ancient madder?
I'm sure you all know this, but madder was in widespread use as a textile dye until the synthetic dye industry mastered the alizarin derivatives, in the last third of the 19th century--hardly ancient!
If you are interested, reply. If not, don't reply. Or, Teo gets it right. Pretty simple.
My advice, if you are interested, is not to waste a lot of time on internet back and forth but meet the person. It's basically impossible to get a sense of whether or not you have any chemistry from a lot messaging back and forth, so it's kind of a waste of time.
The use of madder might not be ancient, but ancient madder things might be now a different shade than recent madder things.
if humans never ever paid for a creative work if they could get a bit-identical file free
Back into the trenches, can I get a show of hands here for people who regularly download perfectly usable, storeable, shareable, listenable files for free, and then go out and purchase identical files (that is identical, in terms of available uses; you're just buying the same thing you could download for free) from a licensed source?
Even among the ethics-mavens of Unfogged, I am guessing this is not very common behavior.
242 is a trap! You're going to get sued!
242: I downloaded one of C/o/r/y D/octo/r/o/w's books once so I could print it and then shred it, if that counts.
242: Regularly, no. More often I purchase after hearing on Pandora or something. But the last time I bought an actual CD - after previewing on Youtube - I never played the disc itself but torrented it immediately upon bringing it home, finding it more convenient (in my circumstances at the time) than ripping.
It's basically impossible to get a sense of whether or not you have any chemistry from a lot messaging back and forth
Sadly, I find I can get quite a good read on the person, but only in the negative sense. I can tell that I won't like someone from annoying emails, but not whether I will like someone. That's why we should meet very soon after trading decent emails; his stock can only go down from a good initial email.
(These aren't live issues for me anymore, but I hate to waste all the internet dating expertise I spent those years learning.)
Comity!--Everything Halford says in comment 240 is correct.
Of course, he's wrong in the rest of the thread.
242: I don't think I have downloaded music legally or illegally. I mostly bought cassettes that I'd had illegal copies of other works by that act.
214: If you have any interest at all, reply and see where things go, otherwise ignore. I replied to an email asking about the reactions of some guy the DE had just had sex with and got 18 great years as a result.
Take risks, damn it! You're gonna be dead soon anyway, do you want to go out with not much more than you came in with?
I replied to an email asking about the reactions of some guy the DE had just had sex with
So... you're a dermatologist?
129 As I've said before, my nightmare world is one in which content providers get paid nothing but the rest of capitalism just keeps on churning along.
I've only read half the thread, so apologies if it's a point already made, but this just really struck me. Because what do I do? I produce content. Not a huge amount of it: somewhere in the general ballpark of 100 pages of text a year spread out over a few papers. And you know what? I'm not paid at all for that content per se, by consumers of that content. It's content of interest to a relatively small fraction of the population, anyway. And yet: I'm actually paid a decent wage to keep doing what I do and producing that content, because enough of society thinks it's a valuable activity that we have a kind of (more fragile than it should be, but extant and useful) social contract that guarantees that this kind of content-production will be funded.
Apples and oranges, I suppose, but one round fruit isn't so different from another, and it's worth noting that alternative models for paying content creators exist.
251: It was my Yoda aspect she was interested in communicating with. They apparently had a great time and then he freaked out about having a great time. Gave himself a guilt-trip.
252: Time to start the countdown until the academic publishing fight...
I have never before contemplated Yoda as sexual interpreter and, crucially, I hope never to do so again.
252: Yeah, a similar thought occurred to me about my job.
252: Time to start the countdown until the academic publishing fight...
Didn't we just have this fight? U.S. Dept. Of Retro Warns: 'We May Be Running Out Of Past.'
x. trapnel's future in which people pirate a bunch of stuff, then send dollars to the ones they consciously want to support, seems to me to depend on maintaining file sharing as a gray market, legitimacy-wise.
I still think there's a way at this that involves goring the ISP's oxen. Free bits aren't free--you pay for internet service. If anyone's making bank of file sharing, it's internet providers, and if copyright enforcement and compensation for creation are going to adjust to technological change, that's the most obvious leverage point.
252: Sure. But unless you're proposing a university model for other artistic and cultural production, which isn't remotely a realistic possibility, we're in trouble with that plan. You do get paid by someone. And the University business model isn't looking so hot right now.
256: A good swordsman even if green.
260: This one doesn't even need a lot of work.
261: I believe that that's actually how most "literary" fiction is funded. Not entirely—those authors still get paid by publishers—but very few non-genre authors live off their writing.
(I don't know how things pan out with genre authors, just that you're less likely to see them in university positions.)
x. trapnel's future in which people pirate a bunch of stuff, then send dollars to the ones they consciously want to support, seems to me to depend on maintaining file sharing as a gray market, legitimacy-wise.
Why?
265: To be fair, the universities are replete with works in the "David Foster Wallace Was a Friend of Mine" genre.
Depends what you mean by literary fiction. Certainly most experimental type authors are funded largely by universities or grants.
72: I think that my favorite was the one saying that they couldn't find anything out, because wikipedia is down. Leaving aside that there are other sources of information, wikipedia *does* have sites up describing PIPA and SOPA.
261 252: Sure. But unless you're proposing a university model for other artistic and cultural production, which isn't remotely a realistic possibility, we're in trouble with that plan. You do get paid by someone. And the University business model isn't looking so hot right now.
I'm not proposing anything in particular -- cultures are hard to change -- but, if the general goodwill of society can rustle up enough money each year to pay me to do things at most a thousand people are interested in, then surely it can somehow find a way to pay the people who make popular TV shows and music. If the internet is undermining the old model of paying them (not clear to me, but for the sake of argument), then surely with some effort we could have another model.
(To be honest, it's not entirely clear to me at the moment where my salary ultimately comes from, but I think it's a private donor. For most people in my shoes, though, it's the government, and thus ultimately the tax dollars of the general public. I'm sure they'd rather be paying someone to write more Twilight books.)
I'm sure they'd rather be paying someone to write more Twilight books.
I for one would rather be paying you, but as established above I'm probably an outlier.
266: Because guilt is a vital ingredient. If everything is available for free all the time, and there's nothing wrong with that, you have to be pretty engaged with an idea of yourself as a patron of the arts in order to kick down. An automated system that channels funds to creators, even if it props up a distasteful industry, is better than counting on people to write checks to support the continued creation of stuff they like but don't love.
John Emerson is rooting for the collapse of commercial culture. From both a labor standpoint and a cultural standpoint, I'm not. I have no truck with the DMCA or the current round, and I'm on record with my representatives against them. But "everything is free," without socialism, is liberalization, not liberation. It improves the position of consumers versus creators and the industry that exploits creators, but it doesn't improve the position of creators against the industry that exploits them.
The university business model is doing quite well, if you're in the right places. It's not being killed by course-sharing, it's not under any real threat from alternatives to degree and credential programs, university degrees - at least the "right" ones - are widely thought to be valuable in economic terms and the decline in public funding means it's open season for any big for profit org that wants to bankroll particular areas of research using university resources and prestige. Certain disciplines are under attack, sure.
Or rather: I agree that "file sharing" as a single category is and ought to be seen as a gray area as far as moral legitimacy goes, insofar as you have an imperfect moral duty to contribute some amount of support to cultural production, and so naturally plenty of what goes on in terms of file-sharing will not, in fact, be okay. Running a for-profit site based purely on unlicensed downloads is probably not a morally good thing to do; running something like library.nu, which I can't imagine does more than just cover costs, is quite different. But all of this is just to say that it's a mistake to think that there's a single Thing going on here, which we can evaluating in a single judgement. The ecosystem of unlicensed downloads is complex, and our judgements need to respond to that. Now, I would hope that eventually, most people would come to share my (correct and nuanced) judgements, but I certainly don't trust the legal system to do so, and I don't see why k-sky thinks we need a blanket sort of legal disapproval in order to get the kind of nuanced social judgments or supporting institutions required for the practices I'm seeking.
Gah, all that was badly put. What I want to say is: for my future to work, all you need is for it to be simple and easy for folks to pay creators. It already is, more or less, and it will only get easier, the more technology works to disintermediate Halford and his industry--bills like SOPA/PIPA, by raising "the costs of doing business" as he puts it, just make it harder for entrepreneurs to help artists act as their own distributors, etc.
And of course students are being squeezed. But that's there role in the current model.
their
I hate typing on a tablet. Anyway, I'm just being cynical about universities.
This thread is making me want sopapillas.
What I want to say is: for my future to work, all you need is for it to be simple and easy for folks to pay creators.
Louis C.K.'s recent show is a good example. He disintermediated the fuck out of his Beacon Theater show. He sold it online for $5, which is comparable to renting a new release feature on Amazon or iTunes, about half to a third the price of buying it. He also asked people not to torrent it, and there was some social enforcement around that. But the fact of that social enforcement depends on widely shared judgement that file sharing is something that even the people who do it don't think they should do all the time, and I'm not sure what enforces that belief in the absence of some kind of legal backstop.
I hear you saying that you believe that in the absence of copyright enforcement vis-a-vis file sharing, tip jars will do the trick. I'm less optimistic about free riders. I think you get a Pirate Bay with the ease of use of an iTunes Store, and losses that approach the bullshit numbers the industry wants you to believe are already happen.
A third time: does anyone have anything to say about the feasibility or desirability of an ISP surcharge that can be distributed among creators whose files are shared?
Because guilt is a vital ingredient.
In some sense I agree, and my question was a genuine one; I wasn't sure what sort of legitimacy you meant. I agree that it should be frowned upon to be a permanent freeloader, especially if you have the resources to contribute, because doing so is wrong. But there are lots of things that are wrong, and very few of them should be punished by felony convictions, massive fines, and jail time. Illegitimacy, sure (though nuanced!); illegality, no.
You're right that we need socialism, in the sense of production being directed collectively by and for ordinary folks rather than by and for profit-driven capital; but I disagree if you think this means we need state socialism, or even if you think that's the best because most convenient or efficient mechanism to get what we both want. The BBC makes state-financed creative production look good, sure; but the German version tends to just produce a fuck-ton of forgettable Krimis and movies-of-the-week (along with a lot of high-brow discussion programs, which I do appreciate even if I can't always follow).
Kickstarter and flattr are both promising hints of another possible way; even in the dead-tree world, you're seeing (and I expect you'll soon see even more) an increase in subscriptions as a funding mechanism for publishers. (Even more links; and an article about the trend.)
I think I'm most in agreement with k-sky on this thread. I'd say more, but aside from my aforementioned dislike of typing on this thing, the battery is about to die too.
a fuck-ton of forgettable Krimis
B-b-b-u-t Tatort is (frequently) awesome. Certainly it sets the standard for the genre -- and IIRC is syndicated reasonably widely outside Germany.
But the fact of that social enforcement depends on widely shared judgement that file sharing is something that even the people who do it don't think they should do all the time, and I'm not sure what enforces that belief in the absence of some kind of legal backstop.
This baffles me. What would sustain the belief that one ought not permanently free-ride is the fact that this belief is correct, and, more importantly, can be seen to be correct by fairly straightforward reasoning through a "but what if everyone did that" chain of reasoning. People leave tips, people pay the "suggested donation" at art museums, people aren't constantly unfaithful despite adultery no longer being a crime--people are social beings, who's primary characteristic is not psychopathic economism, but rather a complex mix of moral sentiments with a heavy dollop of norm-following.
282: There are non-German audiences for television programs about German law enforcement? Aren't Europeans always lecturing us about Americans' lack of a sense historical?
I disagree if you think this means we need state socialism, or even if you think that's the best because most convenient or efficient mechanism to get what we both want. The BBC makes state-financed creative production look good, sure; but the German version tends to just produce a fuck-ton of forgettable Krimis and movies-of-the-week (along with a lot of high-brow discussion programs, which I do appreciate even if I can't always follow).
Oh my God you're acknowledging that and ruling out socialism too? So we're left with private university funding and the good will of folks who want to pay into a tip jar. Oh and live performance. T-shirt sales, I guess, except for the bootleg t-shirts.
whose, dammit. Okay, that's the signal for me to abandon the thread again. Time to shower. And decide whether I want to spend a million hours at $10 crossing the bay just to hang out practicing my German, and possibly watching a movie with an appealing person I met last weekend.
But look: I agree, what we need for my future to be sustainable is institutionalized support of the kind of nuanced mix of free-riding-and-contribution I'm talking about. But the biggest barrier in the way of such support isn't people like me, it's the publishers and content distributors who're absolutely petrified of Digital Theft!!111 and who're still insisting that exclusion is they key to their business, even at the cost of usability--most obviously in the case of ebooks.
People leave tips, people pay the "suggested donation" at art museums
Whooooo new artistic renaissance here we come.
I'm not sure what enforces that belief in the absence of some kind of legal backstop.
The belief that to compensate those who created what we enjoy tonight is to do to kalon? Really, I'm not sure how the legal backstop plays a role at all, except in fostering some kind of prudential concern for the prospect of someday being sued by the {RI,MP}AA, and that certainly wouldn't generate the kind of social enforcement we got with Louis C.K.. No one was arguing, you shouldn't torrent this guy's special, because it's so prominent that those who do stand a better chance of getting served; they were saying, hey, you ought to do what he's asking, because he's asking for something reasonable, and it's the fruit of his labors we're talking about in the first place, isn't it?
does anyone have anything to say about the feasibility or desirability of an ISP surcharge that can be distributed among creators whose files are shared
Some kind of pooling would be great, but that's an even harder political coalition to assemble and negotiate against than mechanisms to go directly after the advertisers on the sites. Not gonna happen.
My son has been following SOPA/PIPA pretty closely, and reports that some Hollywood moguls have just announced that they will not be supporting the President for re-election.
I've been on the side of reasonable IP protection before, and can almost go the full Halford on this one. A lot of what gets said about the music business, is really just not applicable to the movie business. Yes, some movies you might buy and watch over and over. For most of us, though, most movies are a one time thing. Watch the pirated version, and you're not very likely to buy the licensed version. Live performance isn't really an option. Costs are just way different, it seems to me, especially if you're using a lot of tech. And unionized help.
Finally, the way people behave now wrt this stuff is influenced by the current regime. Maybe you download some artist's product without paying. You always know that you're not supposed to: that you are breaking the law, and that she is the victim. Among the victims. (I'm not going to clutch pearls about the fact of breaking the law -- I break traffic laws fairly regularly. But that's no reason to get rid of them.) So you buy some now and then. And movie downloads are harder than they would be if there was no protection, even poorly enforced protection.
An excerpt from that Breyer dissent:
Thomas Jefferson, for example, initially expressed great uncertainty as to whether the Constitution should authorize the grant of copyrights and patents at all, writing that "the benefit even of limited monopolies is too doubtful" to warrant anything other than their "suppression." Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 1956). James Madison also thought that "Monopolies . . . are justly classed among the greatest nu[i]sances in Government." Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958). But he argued that "in certain cases" such as copyright, monopolies should "be granted" ("with caution, and guarded with strictness agst abuse") to serve as "compensation for a benefit actually gained to the community . . . which the owner might otherwise withhold from public use." Mo-nopolies. Perpetuities. Corporations. Ecclesiastical Endowments. in J. Madison, Writings 756 (J. Rakove ed. 1999) (emphasis added). Jefferson eventually came to agree with Madison, supporting a limited conferral of monopoly rights but only "as an encouragement to men to pursue ideas which may produce utility." Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 6 Papers of Thomas Jefferson, at 379, 383 (J. Looney ed. 2009) (emphasis added).
I try to support the webcomic artists whose work I like -- all of whom give away their work for free, as a rule -- by buying a book or something from each annually.
Oh my God you're acknowledging that and ruling out socialism too
I'm not ruling out state funding, not at all--I'm just saying that it's a mistake to think that's a cure-all, or even likely to be an improvement on the building-the-new-society-from-within-the-shell-of-the-old solutions you so disparage. And it would be a mistake to say, as you seem to, "okay, if we get socialism, then and only then do we as content owners renounce our veto on technological developments and downstream uses more generally."
Guilt (a juridical notion!) isn't the vital ingredient; the vital ingredient is, for those who aren't motivated to do what's right anyway, shame at the thought of doing wrong. Haven't you read M.F. Burnyeat, "Aristotle on Learning to be Good"?
(Guess who's teaching intro ethics this quarter?)
Very few webcomic authors make their sole living from authoring webcomics, yet there are very many webcomic authors.
A koan.
281: It would stand to reason that just when I got a his, its battery would die.
283: Yes, but every museum doesn't have a jackass telling you to walk right on through. Still, you make a good case that those norms can be instilled, although you're a far sight more optimistic about getting there than I am.
I also recommend Micha/el Th/ompson, "Wh/at is it to Wr/ong Someone?", not that I've assigned it because it would definitely be over everyone's heads.
Wait, you people really do believe in the tip jar model and people doing artistic work for no or minimal compensation. Except for the folks who want to end commercial culture entirely. Whoa.
And I return to 242. Do any of you actually do that?
Maybe you download some artist's product without paying. You always know that you're not supposed to: that you are breaking the law, and that she is the victim
"You are breaking the law" and "she is the victim" operate on totally different axes.
295: his s/b fan and its s/b his. hee.
294: Many webcomics, but fewer authors/artists, I think: the rubble of creative destruction is full of the abandoned juvenilia, collegiate and barely-post-graduate projects of artists who have moved on.
And I return to 242. Do any of you actually do that?
Not, admittedly, for every file I have downloaded, but yes, I have done that.
I try to support the webcomic artists whose work I like -- all of whom give away their work for free, as a rule -- by buying a book or something from each annually.
If only more of them would put out books! I have too many damn T-shirts already, and never wear them.
299 is probably controversial. But I don't think new classes of individuals can be made victims by an act of the legislature.
A lot of what gets said about the music business, is really just not applicable to the movie business. Yes, some movies you might buy and watch over and over. For most of us, though, most movies are a one time thing. Watch the pirated version, and you're not very likely to buy the licensed version. Live performance isn't really an option. Costs are just way different, it seems to me, especially if you're using a lot of tech. And unionized help.
Getting working subscription models up and running before the Pirate Bay becomes the iTunes Store is critical. In related news, I am deeply ashamed to admit that for the second time I purchased a season pass for a TV show that was not available on my other paid subscriptions (I don't have cable), and that show was Downton Abbey. (The first one was Dollhouse.)
Wait, you people really do believe in the tip jar model and people doing artistic work for no or minimal compensation.
Well, that is the de facto situation almost everywhere for almost every artist at almost every time in history. Hard not to believe that it exists, at least.
302 -- For a movie?
Do tickets to screenings count? There are plenty of movies I've seen multiple times in the theater, and would go to see in a theater even though I've seen them many times on my computer.
Just as long as we're clear on the stakes.
Well, that is the de facto situation almost everywhere for almost every artist at almost every time in history.
I don't know why but this makes me think of Mel Brooks as the standup philosopher in History of the World, Part I.*
* "When you die at the palace, you really die at the palace."
There are plenty of movies I've seen multiple times in the theater, and would go to see in a theater even though I've seen them many times on my computer.
Keep it clean, son.
This stuff about how art will be supported is a very wide tangent. People steal all kinds of stuff and society has long established ways of dealing with it. If I'm accused of stealing a side of beef, somebody has to prove that I stole it. If I'm accused of stealing an episode of Momma's Family, I'm supposed to have to prove that I didn't?
No one was arguing, you shouldn't torrent this guy's special, because it's so prominent that those who do stand a better chance of getting served; they were saying, hey, you ought to do what he's asking, because he's asking for something reasonable, and it's the fruit of his labors we're talking about in the first place, isn't it?
Right now a great many people think that file sharing is kind of like stealing but not exactly the same. A few think it is exactly the same; a few think that everything should be free. If sharing becomes more normalized to more people, then the reasonableness of Louis C.K.'s request becomes less obvious.
I grant that I've been leaning on laws for something that may be accomplished with norms. But I don't think that powerful norms--enough to support the culture industry as it stands today--are easily created.
Yes, but if the laws changed, exactly those parts of the culture industry as it stands today that I dislike would disappear, while those parts that I do like would blossom and grow.
315: That's a plan that can't possibly go wrong.
313 Your fingerprints in the storeroom and tiretreads in the parking lot may be sufficient. Aren't you leaving digital clues? Or are you afraid of random roving unfounded allegations?
Your fingerprints ... digital clues?
Nice.
No, wait, I mean I think that the thought that file sharing is akin to theft isn't actually founded on one's understanding of contemporary property law, but rather founded on thoughts that found property law, and on the acknowledged interests of the creators, etc.
It's true that norms could become such that, hey, if you create something and it's digitizable, you get what's coming to you—it just is such as to be file-shared. You might think that now, of course: what has the law to do with it? That would be victim-blaming, and there can be victims in the absence of laws.
242: I have done that often when buying a full album after downloading a few tracks from music blogs. I have done that occasionally when watching on a subscription service something that I have downloaded one or two episodes of.
I've also downloaded music that I already own because I can't find my CD, or it's in the living room and I'm not.
The "slow music" aspect of 184 seems like it would be very healing.
Forgive me for interjecting, but I haven't been able to discern whether Halford is for or against the passage of SOPA, as written.
(Granted, the thought that there are victims here can reasonably lead to the thought that they ought to be protected by law. But the law needn't take its current form.)
My opinion about replying to dating-site messages has been mischaracterized. I think all non-weird, good-faith messages deserve replies. The reply can be "Thanks, not interested, but I wish you well," or something like that. It doesn't cost you anything to make a stranger feel a bit better about himself. There are of course plenty of messages that don't merit a reply.
324: And the ancient madder question?
321 -- I am absolutely against the passage of the law as currently written.
317: Bald tires and coffee shop wifi.
I hope Senator Toomey doesn't discount my views because I used 555-1212 as a phone number. Who the fuck puts phone number as a required field on a web comment form?
Yes, I saw 19, but Halford then went on to say, it seemed to me, that it wouldn't be that bad if it did pass, because it wouldn't be enforced in any of the troubling ways people are concerned about. Hence my question.
I see that the thread went on about this for a while, but I didn't see whether Halford thinks actual passage would be shrug-worthy, so that he's not particularly against it.
328: Wouldn't it have been funnier to have left the number of one of those "The person who gave you this number does not want to have anything to do with you..." services?
but if the laws changed
We are shocked to be here in the face of the meantime.
Yes, but if the laws changed, exactly those parts of the culture industry as it stands today that I dislike would disappear, while those parts that I do like would blossom and grow.
Ahahahahahaha. Oh man is that crazy.
It's a lovely practice, but 324 is most definitely not the norm IME.
Wait, you people really do believe in the tip jar model and people doing artistic work for no or minimal compensation. Except for the folks who want to end commercial culture entirely. Whoa.
I suppose I fall in the latter category, but I do also believe in the former statement, both in the sense that this is something that does in fact happen and that it's a potentially viable way for all cultural production to be organized. On the other hand, I'm a noted philistine, so probably no one should be listening to my opinions on cultural policy.
On the more interesting subthread, I've been getting a few messages on OKC off and on since I moved up here, and have finally started replying to some.
324, 335: I have quoted here before, and assuredly will quote again, the deathless wisdom of Charlton Heston's character in 55 Days at Peking:* to wit, "Open a letter and you may have to read it. Read it, and you may have to answer it."
* At summer camp we got exposed to a lot of the mid-century manly movie classics. Another big hit: Gregory Peck as Horatio Hornblower.**
** Hornblower, manly, camp: let's just agree not to pursue that line.
I almost believe that Rob took me seriously in 333.
No, my standard practice on OKCUPID is to be flattered, then petrified that her impression of me can only go down with contact, and then guilty that I haven't responded.
340: That's gimmick infringement.
340 to 335. Also, did you know the iPhone autocompletes OKC?
Also, did you know the iPhone autocompletes OKC?
That's got to suck for people in Oklahoma City.
298: we just took the (relatively) new Fleet Foxes CD out of the library. We listened to it, decided there were only two songs we like, and bought those from iTunes. It didn't even occur to me we were being virtuous.
Fucking iPod autocompletes Pittsburgh without its terminal 'h.'
I purchased a season pass for a TV show
What does this mean? On iTunes? In which case, bleh. Or on a provider that will allow me to watch the show on my TV (as god intended)? In which case, how?
341: Fair use. I've made that neurosis my own.
344: The least of their worries.
And, wouldn't you know it, logging into OKC just now I see that I got another message from a girl I hadn't heard back from in a while.
324: Agreed. That's polite, harmless, and almost effortless.
347: I have an Apple TV (1st-gen!) so I can watch iTunes downloads on my TV. I recently used same to watch shared files on my TV, although now the Plex app for Roku works 80% of the time and spares me the lossy conversion.
(I just finished watching Blade Runner, having only seen it before in a theater when it came out. Amazing what LA will be like just 7 years from now! And I had forgotten that the closing credits were shot in Glacier.)
I think all non-weird, good-faith messages deserve replies. The reply can be "Thanks, not interested, but I wish you well," or something like that. It doesn't cost you anything to make a stranger feel a bit better about himself.
FWIW, there are lots of women in this thread who would disagree with that last bit.
I would like to have the problem of wondering how to reply to unsolicited messages on okcupid.
354: I could forward you the ones I've been ignoring.
352: Blade Runner Is a City Planner's Dream
heyy grammar dogg lets change the laws my tip jar is open.
357 to 354. I may be losing it.
Just so we're clear, Rob, you know that my 315 was not serious, right?
And Josh, I invite you to do that if I ever live in roughly the same place as you again.
The link in 356 references but doesn't actually discuss the assertion Anderson makes in Los Angeles Plays Itself, which is that the densely pedestrian, multicultural neon dystopia of Blade Runner would be a swell development for our city. Here's another version.
354: Can you fit into Teo's ranger suit and are you willing to pay postage both ways?
351: does one have access to the iTunes store through Roku? Or only through Apple TV (of whatever generation)? I would be happy to pay Apple's absurd prices -- because I want Robert to be happy and rich -- but I don't like watching TV on my iPad/Air/iMac.
359: I didn't actually know that. Teo may have already subscribed to your newsletter.
(And my son tells me [from IMDB] that they didn't actually shoot anything in Glacier for BR, but used leftover footage Kubrick had shot for The Shining. I was there that fall, and actually climbing, way in the background, when one of the Glacier sequences in The Shining was shot. I think I'm just out of the picture in BR. And no idea why they distroted it so -- flattening out the mountains etc.)
Yes. I know. But I'd still like to send you bizarre, unsolicited OK Cupid messages, if that's OK.
An attractive woman just sent me an OKC message. To save time (hers, mostly), I'm just going to send her a link to this thread with the note "I'm one of these poor bastards."
366 to 359, but really I'd like that to just be my standard response to every comment ever.
367 -- And she will respond, "Oh, I know. I go by "Bob McManus."
363: The 2nd-gen Apple TV will give you access to the iTunes Store, YouTube, and Netflix streaming. With a Roku, you will get Amazon instead of iTunes, Netflix streaming, no YouTube, but many more roll-your-own apps and internet-based channels. Here's a decent comparison.
367 It would be funny if all the people here on OKC or something like it included that in their first reply but without mentioning their pseudonym. People could experiment with links to different threads and report back on the results. Think of it as doing it for science.
Think of it as doing it for science.
Is that what the kids call it these days? I have been out of the market a while.
371: I think ogged already inadvertently ran that experiment.
does anyone have anything to say about the feasibility or desirability of an ISP surcharge that can be distributed among creators whose files are shared?
I knew there was a reason I got a usenet subscription with an encrypted connection.
He had to flee back to Mexico.
370: thank you. That's very helpful, though it doesn't tell me what I want to hear: that there's a box that will give me access to Amazon and iTunes. Oh well, nobody said learning to live without cable would be painless.
Teo may have already subscribed to your newsletter.
No, I was aware he was joking in 315. I was totally serious in 336, though.
Oh well, nobody said learning to live without cable would be painless.
I don't care what they say
I won't stay
In a world without reruns of Law & Order: SVU.
377: I can get you a box that gives you access to Amazon and iTunes for $180 if you're willing to overlook a little duct tape. $160 if you're OK with 720p for Amazon.
Smearcase and I had a conversation about RACEFAIL on our second or third date. It was adorable.
381: Racism brings people together!
It gives non-white people valuable opportunities to practice solidarity?
210
TV shows, professionally produced sports broadcasts, hit music,... If you really consume very little of mainstream media products and would barely notice if they disappeared, I'm pretty sure you are an outlier.
Why would professionally produced sports broadcasts disappear absent copyright?
139
... But if you want to end the commodification of culture while preserving the commodification of everything else, you'll get a world with no investment in culture and the arts and a shitload of investment in everything else. ...
As others have also pointed out this is nonsense, not all investment is made seeking profit.
...not all investment is made seeking profit.
TIAA-CREF should put that on the front of the enrollment forms.
290
My son has been following SOPA/PIPA pretty closely, and reports that some Hollywood moguls have just announced that they will not be supporting the President for re-election.
Do you think getting into a big public fight with Hollywood on this issue would hurt Obama? He should be so lucky.
242: Yes. Also now look for new music mostly on Magnatune - and *still* pay for it.
Am buying digitized books from their authors when they get the rights.
Louis C.K.'s recent show is a good example. He disintermediated the fuck out of his Beacon Theater show.
Worth mentioning: examples like this and the Radiohead album gain an advantage because they are exceptional. If every new concert of album was released digitally with a tip jar and a request that people not make copies it would be much harder to get people to go along with it.
I don't know what the best way is to allow creators to make money off of reproductions of their work, but I'm really skeptical that donations is the ideal solution.
388 -- Yeah, maybe. Lot of dough sloshing around out there, though.
We were just talking here at the house about the politics of the XL thing. Our gov and whole cong. delegation supported it. Might give Tester something to triangulate. Probably doesn't affect presidential politics here, or in any state the thing would have passed through. And probably a net gain in the states that are in play.
|| There was a thread about this one, wasn't there?|>
392: Three months ago. At a glance we expected a worse result?
Halford is your son of a bitch, not our son of a bitch. When LB was whoring for Big Tobacco, at least she didn't make Unfogged posting as part of her job. But whatever.
You know, I actually have a soft spot for Emerson, but whatever. I also believe, as I think he does, in not mincing words and in the value of tit for tat. So, go fuck yourself.
Now that I'm back on my (still banned from unfogged without changing my IP address) computer, the conversation has moved on from what I would have said above. Anyway, I don't buy many movies and except when I was testing out the Blu-Ray player on my laptop, I don't as a rule buy movies I haven't seen. When I've had access, I've rented exclusively through netflix or hulu (but not plus, yet, as it wasn't around when I last lived in the US). I really prefer to stream something unless I want to own it.
What keeps me from buying digital movies is the fact that I bought a tv show from iTunes years ago and it was so inconvenient to do anything but watch it on the computer I authorized it for (and later, its successor) that it wasn't worth it. Also, it was something I hadn't seen and wouldn't have bought had I seen it, but at the time there was no rental option. I have a (mental) list of films I'd buy almost immediately if I could do so without really restrictive DRM.
I've bought all the seasons currently available for parks and rec and have seen maybe 5 episodes on actual television. Mostly I picked it up from watching on netflix while visiting family.
What I'd really love to be able to do is subscribe to the TCM film library. Netflix is really limited on the pre-WWII stuff.
You people are going to make me fill the recent comments sidebar for the second night in a row. Actually, I need to go grocery shopping. In the snow.
I need to go grocery shopping. In the snow.
You don't say.
Well, I had a lovely time at the Stammtisch, got a tantalizing job lead that, even if it doesn't lead to anything, has me feeling hopeful about the future, and that's worth something; and then a pretty woman struck up a conversation with me, and I ended up giving her my email address, though I'm not sure she isn't a grifter.
Sorry, just trying to help out FA.
Yeah, the weather hasn't been so great here lately, either. I've even had to wear pants during my exercise bike rides. Well, desperate times, desperate measures.
390.2: depends on the norms. A couple people I knew made small livings from shareware back in the day when the net was noncommercial. I paid my bit for shareware Apple flagged & had an email exchange w/the author because I was the only Apple referral who did donate.
How about patronage/comission, eg Kickstarter, topped up by public arts funding? it would cost government $ & benefit rich audiences disproportionately, but so does the current system.
Fees based on bandwidth use require someone to know what I'm watching - protip: not all big file transfers are copyrighted or even commercial. Making the net handier for censorship, ick.
There's a 24 hour bandwidth limit in student housing here. The one time I ever tried to torrent something - a film about copyright and free culture legally available for free via torrent, for pay on disc - I exceeded the limit in less than an hour and never got the film. I assume because the film is HD the download/upload combination was huge and the connection speed is fantastic here so it didn't take long. Of course I could drop the speed and leave the download going for over a day but I don't feel like doing that. This effectively means I'll never torrent a large file from here.
clew's right that you'd run into censorship/surveillance/net neutrality issues if you had people watching bandwidth at the file level. But I think k-sky's analogy was more to what Canada has done (as far as I understand it) with CDs and cassette tapes. There's a fee built in to all blanks that's supposed to go towards content producers (I don't know exactly how this works). So I take it his bandwidth fee would be a surcharge that goes for everyone who uses bandwidth, that is, some money you pay for the internet access - in general - would go towards cultural content. This may still be unworkable for various reasons, but I think that's what he's proposing.
And while I'm at it: I see the fact that there isn't an iTunes-like Pirate Bay site as evidence that the current structures are actually working to prevent that. It certainly seems like it would be feasible to set one up, absent the current legal/enforcement/cultural norm environment. So it seems to me that in a world without copyright, we'd need to have some structures in place to prevent completely open sharing and the collapse of the kind of cultural production we have now (if that's what we want to maintain), but we already live in a world quite a bit like that.
The question is then why we need, in this world, as a matter of public policy, to then make the jump to a SOPA-like regime. None of the arguments that I've seen that the RIAA/MPAA didn't really really mean to put up these laws and then rush them through hearings and markup, because actually they wanted something secretly more reasonable and limited but couldn't say so out loud because that's not how legislation works seem all that convincing to me. But leaving that aside, the more reasonable and limited steps Robert suggests above seem like they could be effective.
Wikileaks appears to have been shut by similar methods even absent any law requiring amazon to stop hosting them and payment processors to stop processing payments (unless I'm completely wrong about how they've been pushed aside, which I could very well be). On the other hand, I don't actually regard that as a good thing.
404 reflects what I'm thinking about. My scheme requires shared files to be known, though not necessarily file sharers to be known. I know that Big Champagne professes to track what files are being shared by how many people, though whether it's accurate enough to allocate my imaginary slush fund is an open question.
we already live in a world quite a bit like that
I don't think the status quo is a huge problem. It's just not at all settled. But yeah, if we can maintain a tense stalemate system where people are nervous about file sharers but they haven't actually had that big an impact on film and television, in which I can go on paying for some things and sharing others, that's jake by me. Seems like it will require an awful lot of wolf-crying on one hand and lack of technological progress on the other, though.
though whether it's accurate enough to allocate my imaginary slush fund is an open question
This is the big issue--not just whether you can design an institution that would theoretically have the expert capacity and institutional reliability to do this in a comprehensive and non-biased fashion, but whether this could be so obviously done in a fair and expert was as to survive the inevitable "OMFG YOUR TAX MONEY BEING CHANNELED TO HARDCORE PORNOGRAPHY!@!~~" accusations, in addition to the more banal culture-war bullshit.
And the answer is, no, of course this would never fly, not in the USA; we have congressional grandstanding over the tele-fucking-tubbies.
I don't think the status quo is a huge problem. It's just not at all settled. But yeah, if we can maintain a tense stalemate system where people are nervous about file sharers but they haven't actually had that big an impact on film and television, in which I can go on paying for some things and sharing others, that's jake by me. Seems like it will require an awful lot of wolf-crying on one hand and lack of technological progress on the other, though.
This requires being really, really blasé about the few people who do get hit, and hit hard, by the necessarily arbitrary enforcement of the incredibly draconian laws. It's like saying, hey, people like me never get arrested for smoking pot; and if we legalized everything, what's to stop everybody from hitting the crack-pipe 24/7; so really, the status quo's more or less okay.
It also ignores the way that the legal regime has actively *impeded* technological progress. I mean, all this stuff Google, Apple, and Amazon are finally rolling out just now, about having all your music available in the cloud, no matter where you got it from?--mp3.com was basically doing that 10 years ago, before they lost a court case and didn't have the money to appeal. (Indeed, part of why Google is probably on safer legal ground is precisely that they're using a much less efficient method, forcing you to upload everything rather than just recognizing that you have Song X and hence allowing you to access a copy of Song X that they already have.)
I'm not saying "status quo - let's just keep going!" I agree that the penalties right now are too draconian and that the wrong offenders seem to be more likely to be targeted. I'm saying that once you go through the arguments from abstraction about a world without copyright, you start to end up in a world, broadly speaking if not in all particulars, like what we have now.
I'm not going to say that arguing about what the world would be like absent copyright is just a distraction - although in some contexts, not here, it can be as it's a pretty common tactic employed to derail useful discussions - but given that we already have norms against unlicensed sharing in place, and we've been seeing more and more ways for people who don't want to pirate to more easily get access to content they want to pay for, it seems like we (not necessarily here, but in policy discussions) really should be looking at more restrained changes to the law, ones that would both shift things towards enforcement against larger offenders and reduce the so-called unintended consequences that screw over people with little immediate defense or recourse. I suppose that in calling for reasonable and restrained discussions, I'm being the most utopian you could possibly be.
On the legal regime question, I know people who torrent up to the border on wifi on transit and then stop until they get back. The laws are different here (not being a torrenter, I don't know the details).
I really have no idea how Canada distributes the CD surcharge money and that really does seem to me to be the biggest issue with trying to set up something like that in the US.
The UK had/has [not checked if it's still going] an ISP that did a deal with the major record companies to allow their users to share/torrent whatever they liked (within their pool of users) and the ISP paid compensation directly to the content providers. So at least someone has tried the 'pay a fee, do what you want' model. I haven't followed how that turned out, though.
And since I'm still here and commenting, I agree with what everyone's said about the impact of being able to hear full songs before buying. I don't think I'm as much of an outlier as teo on cultural stuff in general, but I'm pretty sure I'm way more of an outlier on music. I just don't seem to like the vast majority of what I hear, even in cases where I'd consider myself a fan of the artist/album overall. I basically stopped listening to the radio because I'd turn it off when I heard something I really didn't like and I turned it off a lot.*
But in the early 2000s, I started listening to Yahoo's Launchcast streaming service and they had a surprisingly good algorithm for serving up music I liked, at the song level, based on how I rated/listened to other stuff. I even subscribed so I could skip more and hear fewer ads. I even started to buy music based largely on this (from iTunes and yes, it was DRMed in those days).
But eventually Yahoo started telling me I skipped too much stuff and was too high in usage and more restrictions started showing up and I quit. I heard that the service continued to get worse. I then tried out buying music after listening to samples, usually going by artists/tracks that had been recommended via Yahoo and that I still remembered, but the rate of songs that sounded good for 30 seconds that I actually turned out to hate was too high. I basically stopped buying music at that point.
Of course, I'm an outlier in that most people apparently don't hate as much music as I do. I don't think I've bought any music in about three years. And I've barely picked any up from other means, which, I should say, is usually in the form of stuff given to me on discs - aside from a few unfogged mixes, I don't download music. Hell, I rarely even make it through the whole song when people post links to music on youtube. And yes, I've bought, in the past, more songs/albums by some artists whose music was given to me.
*I think I've mentioned before that I'd set the alarm on my clock, which had a five minute snooze, for a minute or two after I decided to listen to the radio. Then once the radio turned on I'd hit snooze every time I heard something I didn't want to hear. Originally, I did this to avoid hearing commercials, but at one point I think I was listening to silence for about 40 minutes out of the hour).**
**This concludes my self-absorbed commenting for the night.
I'd guess I'm at the other end of the spectrum in terms of music consumption. But the combination of (subscription) Spotify, for evaluating stuff I might buy and listening to stuff I'm never likely to listen to again, Emusic (for bought downloads), and one or two (or more) CDs/vinyl albums a month scratches the relevant music itches.
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Are Scalia and Thomas just bloodthirsty psychopaths, or is there a method in their madness?
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The more manifestly unjust the result, the more apparent it is that they--unlike those would-be Platonic Guardians in the majority--are responsible jurists regretfully applying purely legal principles. It's sort of a twisted parody of a certain kind of legal positivism: if, as some philosophers assert, the content of a legal norm must always be identifiable without recourse to moral argument, then if your judicial opinion relies on a legal norm which any exercise of moral reasoning would reject, well, it's proof that what you've identified is Really Law.
(Of course this doesn't actually work: "If L, then Not M" doesn't at all give you "Not M, so L"; but this is about a certain rhetorical posture--I must care about justice, because look how willing I am to let the heavens fall! ... though of course, the rhetoric is extra cheap when you know you're writing a dissent.)
In the UK, live performance is actually a bigger revenue line-item than recording. (Livenation is a hilariously lucrative business.) Also, I still endorse Dean Baker's ideas on this, not least because Halford starts yelling whenever they are mentioned.
415: I hate saying this, but there is a method, and their decision is cold and heartless, but I don't know that I'd call it wrong. Start out with the premise that the Supreme Court's job is to set legal rules, not to dispense mercy to deserving recipients (nothing against mercy, but the discretion to hand out mercy on the basis of individual circumstances is vested in various lower courts or executive actors -- it's not what the SC should be doing.)
Then say that legal systems need deadlines to keep functioning -- nobody's arguing that the problem with what happened to Cory Maples was that there was a deadline to appeal that was a problem to have missed. And that again, to keep the system functioning, you generally have to bind a party to the actions of their attorney: even if those actions are made in error, if a party can automatically get a do-over by getting their attorney to say that they screwed up, then anyone can get a do-over for anything. There's not really a good set of legal rules that I can see, that evenhandedly applied would fix Maples' problem.
What went wrong was that the Alabama court had the power to look at the individual circumstances, and grant him relief on the basis of those circumstances. Holding him to the missed deadline would have taken a heart of stone and no sense at all, and the Alabama court was apparently staffed by heartless idiots. But that kind of discretionary mercy isn't what the SC is tasked with handing out -- seven of the nine of them did because they're (some of the consistently, some at least sometimes) decent people, and they had the practical power to do it. But they weren't really making law, they were helping a guy out of a jam under sympathetic circumstances, and that's really not something they're supposed to do.
416 explains a lot of conservative thought.
See, if you say something that's simple and obvious and right, then I can't tell if you're really intelligent and knowledgeable, or if you've just made a lucky guess. If you say something that's complicated and non-obvious and right, then I can be more confident that you really know what you're talking about.
The unjustifiable leap here is that someone who keeps saying things that aren't obviously right must not only be right, but really smart.
418: IANAL, but I think LB has it right. The last sentence in Scalia's dissent:
Because a faithful application of those precedents leads to the conclusion that Maples has not demonstrated cause to excuse his procedural default; and because the reasoning by which the Court justifies the opposite conclusion invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys; I respectfully dissent.The law, in its majestic equality, allows the rich as well as the poor to have attorneys who don't really give a fuck.
The law, in its majestic equality, allows the rich as well as the poor to have attorneys who don't really give a fuck.
This.
You can add to trapnel's analysis a sort of pain-caucus heuristic, to the effect that a decision with painful consequences must be a principled one. If the obvious human considerations all point in one direction, surely anyone who decides against those considerations can only be motivated by the highest principles.
419: That it reached conclusions quite different from what the ordinary uninstructed person would expect, added, I suppose, to its intellectual prestige. That its teaching, translated into practice, was austere and often unpalatable, lent it virtue. That it was adapted to carry a vast and consistent logical superstructure, gave it beauty. That it could explain much social injustice and apparent cruelty as an inevitable incident in the scheme of progress, and the attempt to change such things as likely on the whole to do more harm than good, commanded it to authority. That it afforded a measure of justification to the free activities of the individual capitalist, attracted to it the support of the dominant social force behind authority
418 -- I'm filing a brief on a closely related point tomorrow in the Montana Supreme Court, and so I'm pretty caught up in bias, but really, a 'gross neglect' standard for attorney screw-ups is way better than a 'complete abandonment' standard. The attorney who refuses the court's order to present himself in open court when summoned to explain what the hell he is doing, and sends another lawyer who can't answer the questions, and says he's 'just a cardboard cut-out' -- shouldn't bind the client; the client isn't responsible for lawyers acting for themselves, and not him.
And I think Justice Alito's concurrence is adequate answer to the dissent: ok, yes, we're making an exception, but only for really extreme circumstances.
Since Scalia famously declaimed that the actual innocence of a defendant presents no constitutional bar to carrying out a death sentence lawfully handed down, I can't imagine that any less extreme factual circumstance would suffice to make him tinker with the machinery of death (Harry Blackmun's phrase).
In the UK, live performance is actually a bigger revenue line-item than recording. (Livenation is a hilariously lucrative business.)
Yeah, and this is what makes Halford's incredulity at musicians supporting themselves off live performance and merch rather strange. I hate to break it to you, but the vast, vast majority of working musicians already get all of their revenue from live performance.
That said, this model obviously doesn't work for film-making as we know it.
425: 'just a cardboard cut-out'
I prefer potted plants my self.
I'd have a lot more sympathy for the television and movie industries if they were doing anything to make their content conveniently available online. They're doing everything they can not to cut deals with Netflix, Hulu, et al, so there's no one service that legally offers nearly everything you'd want and even all the legal services taken together fall pretty far short. And there's no one device you can conveniently hook up to your TV to take advantage of all of these services anyway. The one device that does sort-of work is a general purpose computer running Mac or Windows, through which you will get a fairly awful TV screen interface but access to all the streaming websites and recourse to pirate sites to fill in the gap.
It's far easier, cheaper, and more convenient to pay a subscription to a private torrent site or Giganews.
As for k-sky's Content Producers Slush Fund, why privilege copyright holders as the only losers deserving of protection? Why shouldn't all the players who've seen their business models threatened by the Internet (e.g., newspapers, Wal-Mart, travel agents, stereo salesmen) get a cut?
P.S. I shouldn't rise to Halford's bait, but munging DNS lookups and routing tables by judicial fiat would actually "break the Internet" in a pretty serious way.
There is an alternative bill that would only go after the revenue streams of foreign "rogue" sites like Pirate Bay: http://keepthewebopen.com/
419.2: doesn't fit their reaction to the hard sciences. Cruelty or self-interest does.
And that again, to keep the system functioning, you generally have to bind a party to the actions of their attorney: even if those actions are made in error, if a party can automatically get a do-over by getting their attorney to say that they screwed up, then anyone can get a do-over for anything.
But that's a "we think on the whole it's better to" sort of rule, not a moral or logical principle which exceptions will doom. It's completely consistent with the intent to identify extreme cases as an exception: how is the rule supposed to motivate lawyers who have dropped out of contact, or clients who think they're still available?
Alito concurred with, paraphrased "I agree with the reasoning but want to stress that this kind of case is going to be extremely rare," and he's probably right, whether the standard is "gross neglect" or "complete abandonment" or something else.
431: sorry, 419.2 is supposed to be obviously true. 419.3 is where you get into the Scalia Fallacy, as KEYNES points out.
432: The thing is, the Alabama court should have followed that train of thought and given the guy another shot -- Alabama law allowed for discretion, and the court chose not to regard his circumstances as good cause for missing the deadline. There's not much of a federal/constitutional basis for the SC to overrule the Alabama court on a matter of state law like that.
I like the majority ruling, and I think Scalia and Thomas are bloodthirsty psychopaths generally. But I'd have an easier time writing a legally grounded concurrence to Scalia's opinion than to the majority.
434: Huh? What about the Fifth Amendment? Surely SCOTUS has set all sorts of rules in the past on that basis, and can change them if it feels like it.
They can do whatever they feel like. I can't remember who said "The Court isn't supreme because it's infalliable, it's infalliable because it's supreme." But there's no basis in precedent for the rule that justifies this decision, and it's not really a rule in the sense that anyone's going to be able to apply it predictibly in the future: it's an exercise of discretion in a weird case.
"We are not final because we are infallible, but we are infallible only because we are final."
Robert Houghwout Jackson
http://en.wikipedia.org/wiki/Robert_H._Jackson
"We are not final because we are infallible, but we are infallible only because we are final."
Robert Houghwout Jackson
http://en.wikipedia.org/wiki/Robert_H._Jackson
The thing is, the Alabama court should have followed that train of thought and given the guy another shot
Yes, exactly. You could tell that Alito was pissed that the Alabama court let a case such bad facts go before the SCOTUS, out of well-grounded fear that tough cases make bad* law.
*bad from the point of view of law 'n' order conservatives, in this case.
We therefore inquire whether Maples has shown that his attorneys of record abandoned him, thereby supplying the "extraordinary circumstances beyond his control," ibid., necessary to lift the state procedural bar to his federal petition.
A little vague, and likely to come up rarely, but this seems like a rule - a stated criterion which can be elaborated on in future - not an exercise in discretion.
Also you wrote
I'd have an easier time writing a legally grounded concurrence to Scalia's opinion than to the majority.
which seems wrong unless you mean "legally grounded" to be synonymous with "completely consistent with precedent."
I use "legally grounded" to mean "covered with mole sauce" but I don't see why most lawyers shouldn't use the definition you seem to be dismissing so quickly.
Yeah, that's pretty close to the definition I was using.
Good point, it's the definition 99.999% of lawyers should be working with, but it seems important to distinguish the definition in the case of the SC - otherwise, the living constitution, and by extension everything the Warren Court did, loses legitimacy. The Constitution is just as much "grounding" as precedent is.
Yeah, but it's still a pretty big stretch to call the rule of this case grounded in the Constitution in any specific sense -- the connection with the Constitution is merely (1) the Constitution mandates 'due process', and (2) with no basis in precedent, we're going to decide that this defendant was 'due' different 'process' than the Alabama state courts gave him, where the specifics of the process he's due come from our sense that this factual situation led to injustice.
I'm not calling it a bad decision, exactly, but the real basis for it is the moral sense of the justices in the majority. There's no pre-existing law that really led to the result. I like the outcome, but I can't call the dissent exactly wrong.
The dissent is exactly wrong that the Constitution requires judges to behave as if they lack common sense.
with no basis in precedent, we're going to decide that this defendant was 'due' different 'process' than the Alabama state courts gave him, where the specifics of the process he's due come from our sense that this factual situation led to injustice
Again, huh? Elaborating on the laconic Constitution based on moral principles and facts on the ground is, or should be, par for the course. Seeing it as less legitimate if it's not in the Constitution in so many words is basically a regressive viewpoint: it obviates Gideon, Miranda, Brown, Griswold.
This sort of conversation is why I'm not cut out to be a legal scholar -- I get to this point and come down on "It's really all bullshit." Can we agree that there is no clear sense in which we can call the majority in this case legally (rather than ethically or morally) more correct than the dissent? By virtue of being the majority, it is now the law, but if three votes had flipped and the dissent were the majority, there wouldn't be any basis for calling the dissent bad law.
447: Except for the ethical case, the moral case, and common fucking decency?
I've got nothing against common fucking decency, but deciding each case on the basis of "What, a priori, is the right thing to do here?" isn't usually how our system works. A decision that told Maples he was screwed would have been cruel, but would also have been consistent with all prior law.
242: No, but I have read an entire book in a bookstore, bought it because I liked it and then not looked at it again.
If you take the book into the bathroom, even if you just pee, you pretty much have to buy it.
And nobody can read a whole book without needing to go to the bathroom at least once.
Yeah, I can see that. The law just isn't a glorious coherent crystal palace growing out of the soil of statutes and a priori reasoning. At the SC level, it is indeed politics and many things could be decided different ways - but that still shouldn't make such decisions illegitimate.
Yeah. I'm not so much calling the majority illegitimate, as calling the dissent legally very defensible,albeit mean.
(And in the majority's shoes, I think I'd have tried to split the baby, and remanded to Alabama on the grounds that not giving the guy another chance was an abuse of discretion under Alabama law, given that if anyone deserves another chance this guy does.)
But I'm really not cut out for legal scholarship -- again, there's not a class of legal theory out there that doesn't seem to me to be mostly bullshit.
The problem I see isn't that such a decision is illegitimate. The problem is that it can't be made illegitimate in any legal sense. That is, you risk establishing the idea that fucking up an administrative detail can't ever count against a client. That may not be a problem if they keep it limited to capital cases, but the potential for legal stalling without enforcement of deadlines seems huge.
Is there legal Latin for "Just this once?"
That is, you risk establishing the idea that fucking up an administrative detail can't ever count against a client. That may not be a problem if they keep it limited to capital cases, but the potential for legal stalling without enforcement of deadlines seems huge.
I wouldn't worry too much about that one.
457: That is in my mind as I think through this.
458: Right, because legal delays are income for you.
No, because legal deadlines are firmly established and entrenched at all levels of the system. The easiest and most decisive way to lose a case, at any level and in any system, is to blow a deadline. This case will do nothing to change that.
Actually, I just read the opinion, and the majority opinion is, for a Supreme Court opinion, surprisingly non-bullshitty, and is pretty well grounded in precedent. The reason why you are charged with your attorney's negligence is that the attorney is your agent. But if the attorney has ceased representing you completely, as happened here, you are no longer the attorney's agent. That seems totally right as a matter of traditional agency law. And it will have no significant follow on effect on the blowing of deadlines.
(The majority opinion was also appropriately, and in my view somewhat surprisingly, harsh on both the lawyers involved and Sullivan and Cromwell.).
you are no longer the attorney's agent.
Whoops. I mean the attorney is no longer your agent.
461: What looks like a leap to me (and one that could be exploited along the lines Hick describes) is the idea that because the associate who was working on your case dropped the ball by neither withdrawing nor transferring the case to another lawyer at the firm, that the firm no longer represents you. Not taking action on a case when they should have is probably the commonest form of lawyer screwup, and any such screw-up could now be couched as "No, we didn't blow the deadline, we abandoned the case completely."
And, the only way the dissent gets around the majority's argument about the law of agency is to argue, in my view pretty unpersuasively, that the client hadn't been abandoned by his lawyers because S&C was maybe still kinda sorta representing him (though they claimed that they weren't, and then, as the majority points out, had a serious conflict of interest at stake in all of their argument on this issue b/c they couldn't claim that their lawyers had committed clear and obvious malpractice). That's an application of law to facts that can cut either way, and on which I think the majority pretty clearly gets it right.
There are plenty of Supreme Court cases where the Court basically just makes stuff up to get to an answer, but this doesn't look like one of them. It's not like precedent and tradition were on Scalia's side and the Court just made something up.
To be clear, I've paid no attention to the specifics of this case. I'm just aware that stalling is a frequent legal tactic. I have spent way more time that I'd like to admit hearing various lawyers complain about how the other side is delaying something or brag about how they did it.
464.1: Yeah, and that's where we disagree. I'm not going to convince you, obviously, and you're not going to convince me, but it is clear to me that S&C's claim not to have represented Maples is bullshit. They represented him very badly, but lawyers other than the two who dropped the ball were working on the case throughout.
464 before seeing 463.
The objection in 463 is dealt with, in my view very persuasively, at pages 15-19, and especially, on page 18, of the majority opinion. Basically, the firm never undertook the representation and, even if it had, no one from the firm who wasn't his lawyer was ever authorized to represent him. Under traditional agency law, that counts as abandonment. RBG is citing hornbook law from the Restatement.
I also think as a policy matter your concern is misguided. First, in most representations, the representation agreement is with the firm, not the individual attorney. Second, and probably more importantly, as the majority opinion points out if abandonment happens you have an admission of malpractice on the part of the firm; even S&C didn't want to argue for abandonment below.
But, regardless, your objection is about policy, not legal precedent. I mean, there's a clear grounding in precedent and hornbook law for the rule the court adopts. The dissent is at least as (I'd say more) "policy" driven than the majority here.
lawyers other than the two who dropped the ball were working on the case throughout
Not at all clear from the facts, and not clear that this is the relevant distinction under agency law. Just because Scalia asserts this does not make it so.
468: The majority opinion does note that two or three other S&C lawyers represented in affidavits submitted to the Alabama courts that they had worked on the Maples case since before the relevant time period.
Right, but it also points out how unreliable that is as an indication of representation by anyone else at the firm, and also explains why, under traditional agency principles, those affidavits don't matter.
470 is a pretty good illustration as to what I'm afraid of. If a giant-ass firm can use confusion over which associate is supposed to be doing the work to hide the issue of agency, nothing would ever get done.
Moby, with respect, you have no idea what you're talking about here or why it matters. I guess I could try and explain in more detail but I think it will get boring and I don't have the energy. That's not really an issue, here or elsewhere, and won't be adopted as a strategy by large law firms.
Through some unconvincing tapdancing. The S&C lawyers could perfectly well have prepared papers and forwarded them to local counsel for filing without doing anything they weren't legally qualified to do.
472: Actually, I think Moby's reading is fair. You're right that I don't think this is a precedent that will be allowed to spread far enough to be a policy problem -- what Moby's worried about won't happen -- but confusion over which associate is supposed to be doing the work to hide the issue of agency is pretty much exactly what happened here.
I just mean that the effect he's thinking of isn't remotely what's at issue.
And the confusion over the work wasn't deliberate. The question is "what are the requisites, under agency law, for an agent abandoning the principal." The majority answers that question under traditional law; the dissent plucks some ambiguous evidence in an affidavit. You can call the former "tapdancing" if you like, but it appears to be the law, and it's the majority, not the dissent, that's being faithful to the law on the books. Or certainly as faithful as the dissent, despite Scalia's rhetoric.
When you say 'ambiguous evidence' you mean 'two S&C lawyers who swore to the Alabama court that they had been engaged in Maples' representation since before the other two associates left the firm'. That's just not ambiguous as far as I can tell.
There are facts where I'd buy the majority's argument as driven by precedent. If S&C had shown that they really expected associates to operate independently from the firm in doing pro bono -- don't use the letterhead, don't use firm resources, finding other attorneys to work with you is your problem, it's your individual case, not the firm's, then the 'abandonment' argument would work for me. But under the facts as put forth in the majority opinion, that doesn't look close to supportable.
472: I am, as I noted, basing my concerns on second hand information (from people who do civil work mostly), so I may be confused. I will close by noting that a very large number of other lawyers seem to assume that big law firms routinely use delay as a tactical step and treat whatever the reasoning given as mere cover.
Again, it is you, not the majority, which is making up the law to suit policy preferences. The reasons why the affidavits, even if unambiguous, are insufficient to avoid a claim of abandonment are set out in the opinion and supported by the Restatement. Basically, it's not enough to have an ambiguous declaration of "involvement" when no one except the abandoning attorneys has, in fact taken the necessary steps to act as the client's representative.
I'm not saying the case would have been entirely illegitimate if the defense's reading were adopted, but it's clearly wrong to say that existing law supports the dissent but not the majority. Which helps to explain the 7-2 vote.
477 -- delay as a strategy definitely happens and can be played around with, but that is very different than missing statutory deadlines. This case will not lead to a widespread disregard of statutory deadlines.
Also, there are all kinds of grammar errors In 478, but whatevs.
Basically, it's not enough to have an ambiguous declaration of "involvement" when no one except the abandoning attorneys has, in fact taken the necessary steps to act as the client's representative.
But there was nothing stopping the lawyers involved in the representation from taking effective action as the client's representative. They could have, but failed to, gotten admitted pro hac vice. Even without that, they could have prepared papers and given them to existing local counsel for filing. There was no bar keeping the lawyers engaged in the case from acting to preserve Maples' rights, they just failed to because it fell through the cracks.
Here is the passage from the opinion that addresses that point. You can disagree with it, but you can't call it an abandonment of precedent -- at the time, under existing law, the S&C lawyers weren't acting as Maple's agent.
The slim record on activity at Sullivan & Cromwell, however, does not warrant a remand to determine more precisely the work done by firm lawyers other than Munanka and Ingen-Housz. For the facts essential to our decision are not in doubt. At the time of the default, the Sullivan & Cromwell attorneys who later came forward--De Leeuw, Felice Duffy, and Kathy Brewer--had not been admitted to practice law in Alabama, had not entered their appearances on Maples' behalf, and had done nothing to inform the Alabama court that they wished to substitute for Munanka and Ingen-Housz. Thus, none of these attorneys had the legal authority to act on Maples' behalf before his time to appeal expired. Cf. 1 Restatement (Second) §111 (The "failure to acquire a qualification by the agent without which it is illegal to do an authorized act . . . terminates the agent's authority to act."). What they did or did not do in their New York offices is therefore beside the point. At the time critical to preserving Maples' access to an appeal, they, like Munanka and Ingen-Housz, were not Maples' authorized agents.
Or, put more simply, at the time the notice of appeal was due, there was no lawyer (who had not clearly abandoned him) who had the power to act on his behalf in filing the notice of appeal. Ergo, he wasn't represented at all.
Now, you could argue as a policy matter for a different rule -- regardless of who has the power to do what, so long as there is some lawyer in the background who at one time had "involvement" in your case who could have done something, you are represented -- but that is not, and certainly not clearly and unambiguously, the law.
I'm disagreeing with it because it is not mandated by precedent. The S&C lawyers had the legal authority to draft papers on Maples behalf and get existing local counsel to file them. They had the legal authority to get themselves admitted in Alabama.
I've worked on cases in jurisdictions where I wasn't admitted, and neither was anyone else at my firm: I drafted papers and sent them to local counsel for signature and filing. If anyone tried to argue that because my firm had no one with the legal capacity to file the papers without the assistance of local counsel, we therefore weren't really representing our clients, it wouldn't pass the giggle test.
483 -- but was there some lawyer who hadn't clearly abandoned the client who had appeared and who was authorized to take action on his behalf? I am guessing (actually, I know) the answer is yes.
Did Maple actually know he was unrepresented? Did any of the courts? I don't see how it is legal for the law firm to leave the guy in this kind of limbo. I wasn't aware that a lawyer could withdraw without clearly ID'ing the next lawyer.
By they way, Halford, I'm still curious if you ever get a chance to look at the case described in 97. I don't feel like techdirt is an objective source but I also saw that same article linked in Ezra Klein's WaPo blog, which suggests that it it a basically credible source.
There was local counsel whose involvement was pretty much precisely the same as the local counsel in Maples case -- not doing any substantive work, but willing to perform ministerial actions on direct instruction. I don't know what would have happened if my firm had dropped a ball, but I wouldn't have counted on local counsel to pick it up.
485: No. If S&C had withdrawn, then the notices would have gone to Maples rather than counsel, and this would all have been his problem.
I don't see how it is legal for the law firm to leave the guy in this kind of limbo. I wasn't aware that a lawyer could withdraw without clearly ID'ing the next lawyer.
It's not, and both the lawyers involved and Sullivan and Cromwell very clearly in my view committed malpractice. At least they now won't be faced with a survivor's suit following his death. But the issue of malpractice is separate from the one of abandonment.
487 -- I take it you don't regularly participate in actions in which no lawyer has appeared, or in which the only local counsel that exists has stated that they will do literally nothing other than prepare a pro hac vice application? Or in which there is no attorney of record who is authorized to do anything?
I serve as local counsel all the time. Of course, you represent the client and are on the hook for deadlines in the same way as the non-local counsel. If I'd entered into an agreement in which I flatly refused to do anything, and then no one in the case (as was the case here, and is clear from the majority opinion) considered me to be counsel for any purpose, I would have abandoned my client. I can guarantee you that this was not the situation with the local counsel you have had.
Regardless, though, these issues are not relevant to the abandonment question. That question is: was there anyone actually capable of acting as Maples counsel at the time the notice of appeal was due, or had his lawyers abandoned him? Under traditional agency law, the answer appears to be that his lawyers abandoned him because there was no authorized agent who had the power to file the notice of appeal. You may want a different rule, but there's no reason why your policy preferences should be the law (and they certainly aren't clearly the law).
They should, but I don't know that they will. I think the local counsel is also in a very questionable position, malpractice-wise. I don't find what he did (ignoring the papers under the assumption that S&C was on top of it) surprising; I've had local counsel who I wouldn't have expected to do more. But not even picking up the phone to check is I think arguably malpractice.
490 -- it's an interesting question. I hope so. S&C has probably suffered a little reputational damage, but since most of its clients are monstrous banks who don't care whether people live or die, probably not much. The individuals will be subject to a lifetime of shame and will probably be sanctioned by their local bar.
491: Considering local counsel not an authorized agent to do anything is after-the-fact rationalization. He was counsel of record; if he had filed a notice of appeal it would have been accepted as having been filed by counsel of record for Maples. An agreement that he wasn't going to do substantive work on the case is not abandonment, where doing ministerial work would have been enough to save it.
So, now your disagreement is with the idea that local counsel abandoned the representation? That conclusion is explained at pages 19-20 of the majority opinion.
Maples' only other attorney of record, local counsel Butler, also left him abandoned. Indeed, Butler did not even begin to represent Maples. Butler informed Munanka and Ingen-Housz that he would serve as local counsel only for the purpose of enabling the two out-of-state attorneys to appear pro hac vice. Supra, at 5-6. Lacking the necessary "resources, available time [and] experience," Butler told the two Sullivan & Cromwell lawyers, he would not "deal with substantive issues in the case." Ibid. That the minimal participation he undertook was inconsistent with Alabama law, see Rule VII, supra, at 5, underscores the absurdity of holding Maples barred because Butler signed on as local counsel. In recognizing that Butler had no role in the case other than to allow Munanka and Ingen-Housz to appear pro hac vice, we need not rely solely on Butler's and De Leeuw's statements to that effect. App. to Pet. for Cert. 255a-258a. Other factors confirm that Butler did not "operat[e] as [Maples'] agent in any meaningful sense of that word." Holland, 560 U. S., at ___ (ALITO, J., concurring in part and concurring in judgment) (slip op., at 6). The first is Butler's own conduct. Upon receiving a copy of the trial court's Rule 32 order, Butler did not contact Sullivan & Cromwell to ensure that firm lawyers were taking appropriate action. Although Butler had reason to believe that Munanka and Ingen-Housz had received a copy of the court's order, see App. 225 (indicating that Munanka and Ingen-Housz were CC'd on the order), Butler's failure even to place a phone call to the New York firm substantiates his disclaimer of any genuinely representative role in the case.
Notably, the State did not treat Butler as Maples' actual representative. Assistant Attorney General Hayden addressed the letter informing Maples of the default directly to Maples in prison. See supra, at 8. Hayden sent no copy to, nor did he otherwise notify, any of the attorneys listed as counsel of record for Maples. Lawyers in Alabama have an ethical obligation to refrain from communicating directly with an opposing party known to be represented by counsel. See Ala. Rule of Professional Conduct 4.2 (2003); Ala. Rule Crim. Proc. 34.4 (requiring that the service of all documents "be made upon the attorney of record"). In writing directly and only to Maples, notwithstanding this ethical obligation, Assistant Attorney General Hayden must have believed that Maples was no longer represented by counsel, out-of-state or local.
496 -- I really don't know. But I'd be a little surprised if the individuals weren't sanctioned by their relevant state bar.
Leaving aside the main issue that we're wrangling over, I'm sort of unsure about how much blame to place on the two lawyers who left S&C, rather than on S&C the firm, and whoever was responsible for assignments.
Certainly, one of them left before the other -- at the time the first one left, there was a lawyer admitted in Alabama actively engaged in the representation still at S&C. Not informing the court or the client they were no longer on the case was sloppy, I suppose, but doesn't seem terribly weird: just a month or two ago I wrote to a judge to say that I was the new counsel on a case because the previous lawyer had left the office I work in. She didn't write the courts on all of her cases before she left, the new lawyers wrote to make their appearances. So the first lawyer left the case in the hands of someone actively engaged in the representation.
When the second lawyer left looks worse, but there appears to have been a partner who was nominally responsible within S&C. If when the second lawyer left, they wrote a file memo giving the state of the case, and sent the file to the responsible partner for reassignment to a new associate without contacting the court... if that was the same thing the associate did on all of their paying cases (and it's pretty much what I did on the cases I was working on when I left law firm jobs), that still doesn't seem to be that weird.
497: Maples had an authorized agent for the purpose of substantive representation -- S&C and the lawyers therein who were engaged in work on his case and capable of preparing papers on his behalf -- and had an authorized agent capable of filing papers in Alabama on his behalf, local counsel. If S&C had not dropped the ball, they could have caused a notice of appeal to be filed by requesting that local counsel file it.
The argument that local counsel's failure to do anything useful renders him not-an-agent such that his failure to do anything useful can't be imputed to the client is circular.
(And I still don't think it's a terrible decision -- if there were ever a case that cried out for mercy, this is it. I'm just arguing whether it's driven by precedent, or by "Jesus, we've got to fix this one somehow.")
Back to the OP: NMM to Megaupload http://www.washingtonpost.com/business/technology/apnewsbreak-workers-indicted-at-one-of-worlds-largest-file-sharing-sites-megauploadcom/2012/01/19/gIQAJPIRBQ_story.html
I'd say the second-departing attorney's actions are way worse than the first, since she left him totally unrepresented, but in both cases not informing the client or, in these circumstances the court, was totally and completely inexcusable. I mean, I can mentally understood how it happened (hey, I'm a junior S&C associate, all I do is doc review and occasionally a "fun" pro bono project, so it's not like I actually ever interact with clients or a real court, woohoo new job in Belgium), but it's pretty bad. If you are counsel of record -- and especially if, as here, you are counsel of record in an individual capacity -- you better damn sure make certain your client is represented if you take a new job. And in a capital case?
503 to 499. And in 500, you're just arguing in circles -- saying that he had an agent doesn't make it so. In fact, as 7 SCOTUS justices, including some truly conservative ones, found, he had no effective agent at the time, and that appears to be entirely consistent with ordinary agency law.
Put it at a different firm: S & C has made an argument that the firm never represented him, which sounds to me like bullshit, but so we're not arguing about it say we're at a firm that had a clear policy that pro bono clients were clients of the firm, and say there was a partner nominally supervising the associates, and therefore formally assigned to and responsible for the case. This would be the normal way, IME, for a firm to handle pro bono, and it might be the situation that the associates believed they were in.
In that situation -- the second associate leaves, and turns the file over to the partner, who's not admitted in Alabama. Now, she's left the case in the hands of a lawyer who's representing her client: he's not admitted in the right jurisdiction, but he can get admitted, or can find local counsel; as we've agreed there's nothing per se unsavory about representing someone in a jurisdiction where you're not admitted. Best practice would have been to notify the court and the client, but she did hand off to a responsible attorney -- is the failure to notify the court malpractice?
504: Like I said a dozen comments or so ago, I'm not going to convince you, and you're not going to convince me.
S & C has made an argument that the firm never represented him....
That argument reflects as poorly on S&C as the error the necessitated it.
I think the bottom line is that, if you have a pending action, you better have an attorney of record who has appeared in the action and who is in fact acting as an attorney. If the foregoing is true, and it looks like it is in your hypothetical, not informing the Court that a junior lawyer who is not the primary counsel of record has left the firm is probably not malpractice, because it almost certainly doesn't matter much.
But if the departure of the junior lawyer deprives the client of an acting lawyer, and the attorney leaves and doesn't inform the court or the client and there's no one who has appeared in the case and is genuinely acting as counsel? Seems like obvious malpractice to me.
Yeah, I suppose the situation I'm envisioning, where the associate would reasonably believe they'd handed the case off successfully, would be one where the supervising partner had appeared even if they never did any work on the case. S&C's method of handling pro bono, such that that wasn't standard, is very weird.
Blaming the junior lawyer seems absurdly exculpatory for the firm. The firm can track what that associate did into 6 minute increments for billing but can't check that anybody is active on a capital case?
This is one of those "Plenty of blame to go around" situations. I'd let the first associate to leave off the hook, and could be talked into sympathizing with the second associate depending on what they did to hand off the case. But even if the two associates committed malpractice, the firm indubitably committed malpractice: whatever the associates did wrong, the firm was responsible for not dropping the case.
This smacks of one of those ethics example cases where the seminar leader winds up and delivers a line like "When lawyers try to evade responsibility, a court will impose it on somebody. Don't be that somebody."
I am lazy and self-righteous moralizing enough to have enjoyed my firm's periodic ethics update sessions; some years, I was the only one who asked questions.*
* E.g., "[Name], have there been any examples of loud withdrawal from representation this year?"
510, 511 -- When you get admitted phv, you promise to abide by the rules. When you enter an appearance, you're in the case, until the judge lets you out. I don't go much for the infantilizing view: these associates were adults, licensed to engage in a profession that expects judgment and care in service of the rights of others. Yes their firm should have explained that being a lawyer means being a responsible adult. And yes, someone at the firm should have made sure that substitutions were made. But being in the guild isn't just about getting to be paid a bunch of money for doing interesting things. You're accountable to the people who are counting on you. From day one.
I get that, but unless they just ran without notice to the firm, I don't see how the firm gets off.
I have to say I don't understand why LB is so worked up here. It's not like they were interpreting the Constitution, or reviewing either directly or indirectly the actions of the Alabama court. They were interpreting the first of the two elements of the common law exception to the statutory exhaustion requirement: cause and prejudice. Not even -- just deciding whether these facts amounted to enough of an abandonment (which is always cause) to amount to cause.
There were attorney errors here, but they weren't errors in acting for the client -- failure to properly calculate the deadline, sending a notice to the wrong court -- but act as the guys attorneys at all. And whatever obligations they might have had, they weren't acting even nominally for the client when they ignored his case. They'd all moved on.
514 -- Oh, I don't think they get off.
Although a malpractice case might be tough. Even if there's a breach in the duty of care, you still have the other elements to prove. Just as Maples is still going to have to prove the second element -- actual prejudice -- on remand before he can get the federal court to review his conviction. They'd be wise to write him a big check, I suppose. Unless Halford is right, and no one who pays its bills will ever care what S&C allowed to happen to this fellow.
Coming in late, but I have some personal experience here. Not only has my work been pirated in bit-for-bit copies, for much of the '00s, it (like a lot of work in roleplaying games and fantasy/science fiction/horror genre fiction) was available in better pirated versions. Some of it still is - one guy with a high-quality page scanner and the willingness to spend a few dozen hours on good index linking can do a better job than many small presses care to.
It didn't hurt my sales. Nor did it hurt the sales of anyone else in these fields I've ever been able to compare numbers with. It did do something a lot of us like: it reduced the volume of dissatisfied-customer rants, because more folks were checking it out in advance of purchase, and those not included to pirate themselves could nonetheless get more detailed descriptions in advance of purchase than ever used to be the case.
In short, Halford's dystopian speculation is where a bunch of us have been living for a while, and able to make a living without any more hardship than ever thanks to it. What really hurts our livelihood is things like ongoing economic collapse sustained for the benefit of, um, among others, the bosses at big media corporations.
517: But how would The Last Airbender ever get made?
Well either. But I was thinking of the movie.
But don't overthink it. It was merely an attempt at a cheap shot at the presumption of Halford's nightmare being a dystopia.
Like Jeff Goldblum says in Jurassic Park: White will find a way.
In short, Halford's dystopian speculation is where a bunch of us have been living for a while
Well, yes, but how much were you able to pay your lawyers? WON'T SOMEBODY THINK OF THE LAWYERS?
Do you remember a few years back this movie? I'd like a version with lawyers, please.
525 because it would be funny, not because I hate all lawyers.
515: I have to say I don't understand why LB is so worked up here.
I did not interpret her as being "worked up" at all (but of course she is the better judge of that). Things like this make me think there needs to be something like a National Ombudsman Court which can be appealed to for rectifying one off gross injustices* and not get it tangled in with the Supreme Court.
*You know, like where the counting of votes might threaten irreparable harm by casting a cloud upon what someone claims to be the legitimacy of their election.
I think appeal to the executive for clemency was supposed to serve that purpose.
It occurred to me that a bunch of you won't have recalled one of the first things that came to mind when I heard about SOPA's guilty-when-accused approach: the 2007 incident when Andrew Burt, then vice-president of the Science Fiction and Fantasy Writers of America, filed DMCA claims against Scribd and got works yanked that were up under Creative Commons license and with the authors' vigorous approval, as well as a bunch of other fiction that clearly was pirated but was not SFWA's business. One guy, confident and clueless, did years of harm to a whole organization. (See commentary from that year and next from, among others, John Scalzi, Charlie Stross, and Tobias Buckell, three of the decade's real success stories in the field.)
People like Halford defend the intent behind SOPA and PIPA with subjunctive arguments - "Oh, that wouldn't happen." I speak in simple past - "It happened." And since we still have jackasses, and since the very essence of act-first, justify-later remains intact, of course it'll happen again. And again. And again. Remember: the folks Halford wants us to trust want the rest of us unable to act against efforts like Burt's until after the bans are in place.
I think appeal to the executive for clemency was supposed to serve that purpose.
Are you suggesting Gore should have appealed to Clinton to be awarded the EC delegates from Florida? Interesting idea.
504
503 to 499. And in 500, you're just arguing in circles -- saying that he had an agent doesn't make it so. In fact, as 7 SCOTUS justices, including some truly conservative ones, found, he had no effective agent at the time, and that appears to be entirely consistent with ordinary agency law.
I agree with LB on this (sorry LB), the court just wanted to give the guy a break. I take it Alito even warns anyone not on death row not to count on a similar break.
Oh, don't worry about agreeing with me. I figure we can mutually regard each other as stopped clocks.
Because it's driving me nuts in a thread where I'm actually arguing about professional matters, I would like to note that the parenthetical in 454 is wildly procedurally stupid. I don't know what I was thinking when I said it (well, I wasn't thinking at all), but of course there's no way to kick this back to an Alabama court.
Incidentally, to the OP, sort of: over here in Yorkshire I just got an email from some random Rep. from Florida asking me if I supported SOPA. I told him I didn't. Neither does he apparently, which is nice.
As it happens, the American Constitution foresees a comparable backstop mechanism to adjudicate disputed presidential elections. That mechanism would have resulted in Bush winning in 2000 (assuming the Florida legislature didn't hand it to him first). That's the especially infuriating part of Bush v. Gore. The majority could have gotten the outcome they wanted without heavyhanded intervention in the political process, but their solicitude for the perceived legitimacy of Bush's election (which, you may recall, was the concrete harm the Court cited as grounds for granting immediate relief) led them to shortcut the Constitutional process.
532
Oh, don't worry about agreeing with me. I figure we can mutually regard each other as stopped clocks
I was worried that you might find me chiming in to agree with you in this venue less than helpful.
534.1: Certainly one of the most maddening aspects of the media coverage was the implied deprecation of the legitimacy of that process. ZOMG! Seldon Constitutional Crisis! What do we want? Closure! When do we want it? While Bush is still ahead Now!
which, you may recall, was the concrete harm the Court cited as grounds for granting immediate relief
Right, per 527.*. It really was freaking incredible. Vandals Patriots should repeatedly paint it on Scalia's tombstone.
assuming the Florida legislature didn't hand it to him first
They would have tried (and probably succeeded) but I think it would likewise have been WRONG. in such Manner as the Legislature thereof may direct does not (or should not) give the post-election legislature the right to do one fucking thing about it.
