Necker Cubes? Really?

With the start of the Joel Tenenbaum trial this week, it’s interesting to see whether or not the Harvard Professor gone Steve Jobs trial attorney Charles Nesson can provide a significant change for the basis under which copyright is fundamentally operating.  Despite some buzz out of Sweden that could potentially undermine the efforts of the general user license and open source guru’s, the copyleft [who the hell comes up with these names...], there hasn’t been much in the way of positive copyright reform.  That is, unless you count the Canadians.

The world at large generally exceeds the scope of most of the American public when it comes to tech issues like illegal downloading and Net Neutrality.  While it does make sense to focus on where you live as the primary rule set, the increasing focus on globalization of information is becoming apparent.  What once were primarily American problems,  like Microsoft being a monopoly, have increasingly grown into world issues, where corporations like Google stumble around blindly like a behemoth trying to claim they’re just the same as their competitors while swinging one of the largest repositories of information in the world around in the other.  Of course, what Europe decides to do with the Microsoft browser bundling, Google’s ridiculous amount of information and content on damn near everything, or even French copyright restrictions placed on 3 strikes laws could have serious ramifications across the pond here.

If the opening to the Tenenbaum trail is any indication, then the scale of general copyright law and net rights are similar to comparing a ladybug to the Titanic, respectively.  Judge Nancy Gertner’s decision to throw out the argument of fair use points to something similar seen in the retrial of Jammie Thomas-Rasset.  Essentially, for all of the media hoop-la, these cases are concerned only with whether or not the existing structure of the law has been broken.  There is a considerably greater emphasis in this trial to determine the legality of the fines, and whether or not they could be a breach of the Eighth Amendment.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This falls into the abstract location what exactly the actual loss suffered by the recording industry, and how to pay such an amount back.

American focus on copyright is an interesting issue, that is potentially a generational conflict.  The advent of peer to peer sharing is at focus again in this trial, and the decision to eliminate the entire segment of the jury that’s of that age doesn’t bode well for a representative sample of the feelings of the American people.  Now based on evaluating the law, this makes perfect sense.  The intention of a jury is not to create rulings that impose the will of a group of people onto the masses via litigation.  On the other hand, as was seen in the Jammie Thomas-Rasset case, if it’s not possible to have an open discourse about the issues at hand, what does suing someone really gain?

While the recording industry considers a win to be a successful enforcement of copyright law (they’re not wrong here either), they’re neglecting the spirit of the law, and if the law is fundamentally correct to be used the way it is.  This closed minded view is just as bad as what would have happened if Charles Nesson or the Pirate Party of Sweden eviscerates copyright law.  Neither side respects the feelings of all stakeholders.

While I am not against sharing music, I recognize the requirement of potential financial gain in the industry.  A rock star and an advertiser really aren’t different professions, both sell you product, even if you only directly know about it from one of them.  CD’s do not necessarily represent cash business any more, and it’s curious that companies wonder what is causing sluggish sales.  It’s partly that they cost more than most people are willing to pay, but also with digital distribution all an artist needs to get into someones headphones is a free mp3, and a concert to get paid.  CDs are personal consumption media, and money comes from the use of known media and individuals being used to portray something else.  I personally can’t count the number of times I’ve looked up a song from a commercial and didn’t give a damn what the commercial was selling.

This however is a long term strategy, in the short term the use of personally consumable media makes sense as an avenue for revenue. The question is why someone would want to pay premium money to get a free digitally available album?  Furthermore, when should the limitations ends.  If  current standards are upheld, the first public domain recordings will release Febraury 15th, 2067.  I’m almost positive anyone alive at recording who can remember it well is probably going to be dead then. [The earliest is 2049, but once again, check the calendar, does that seem a bit unreal to anyone else?  Want more information?]

The RIAA has a terrible attitude about this, ‘well, they won’t want it because we’ll sue the pants off them’  or  so says the RIAA, but as judges have mentioned, the RIAA is more or less bankrupting people, and they need to stop.  In this scenario, the RIAA has a fairly good shot to bankrupt a second person in the span of a few months.  What of it though?

Will this stop copyright infringement, or is it time to take some cues from the rest of the world?

• The French courts struck down the “Création et Internet” on the principles of communication online being a fundamental right.  It also violated the presumption of innocence until proven guilty.
• The Canadian’s have recently begun trying to have a discourse  on copyright law.
• Despite some of the insane attempts to declaw copyright law, the Swedish Pirate Party is moving in a positive direction to diminish terms on copyrighted content.

While this is all good, copyright law enforcement is getting stronger with more attempts to curtail it.  Given the lack of public discourse, it’s likely that the lobbyists are behind the push.  If this is so, it seems time for the governments to at least talk to the people before making decisions regarding how to handle the transfer of information.

[Thanks to Ars Technica]