The attitude of content creators today scares me a bit. I was in a conversation with two artists the other day, one professional and one amateur. They both firmly agreed, that drawing someone else's characters as a commission was morally wrong and legally grey, and when I asked why, they say, "Because they're taking my money."
"But you wouldn't have gotten money there anyway, if they had never produced the art." I argued. They countered by saying, it was stealing. "But what would it cost you?" Nothing, they said, but it wrested control from them, and potentially could lose them the rights to the work. "Wait- howso? You retain ownership, you're simply letting others use your work as inspiration and get paid for their efforts. It in turn, draws more to your story, your world- who loses?" They argued that was the 'exposure' angle, and I didn't really know what to say- I mean, I wouldn't have watched Sherlock if not for the legions of fanart of it on Tumblr, or listened to Jay-Z if not for the works of Girl Talk.
They argued, all content should be original- but I can't fathom that. Is art, similarly to science, not an iterative process based on the input of dozens, hundreds, thousands of people that came before us? Are we all not standing on the shoulders of giants, pushing just a few steps forward more, both because we like what came before us but want to see it go someplace new?
I wish we'd all stop feeling so threatened, I suppose.
EDIT: I should emphasize, I admitted they had the right to request no one use their characters, and if anyone did they clearly were an asshole. But that doesn't mean I wouldn't think doing so was a mistake.
For example, you create a popular, compelling character & world. E.g., Harry Potter.
Now suppose that due to its popularity, other artists jump on the bandwagon left and right.
Too many bandwagon-jumpers, and your creation is diluted. It is a commodity. People see it every day.
With nobody else producing works with your characters & world, you are the sole source. If we think about supply & demand, we know what that means.
It really comes down to that doesn't it?
You're the sole source of art you produce, but what you're saying is that you suddenly, by creating a character, gain the exclusive unlimited right to be the only person ever to create any possible creative work with that character.
You're basically patenting the 'idea' of a character, such that no one else can use any variation on that idea.
That's the problem, and it's the problem with patents too; they 'lock up' ideas so they can't be used without licensing / permission; but no just the original idea; all the closely related derivative ideas too.
In practice it's pretty easy (and common) for large holders of these creative patents (for lack of a better word) to do what the Doyle Estate was doing (read here if you're not familiar http://free-sherlock.com/) to troll and shake-down people using the IP; even for relatively unrelated creative works.
Personally, I feel it should be managed more like brands; if I sell shoes with a Nike logo, it's obviously infringement.
...but if I start telling shoes with a logo from some company that hasn't traded shoes in 15 years and their trademark has expired, tough luck to them. You're not a practicing entity anymore; let someone else use that IP instead of leaving it locked up forever.
At some point, though, that's supposed to happen. That's how culture works. Of course most of the stuff so created is going to be crap - most art created is crap, after all. Think what we'd have though, if the Star Wars copyright were over and done with by now, or if the LotR copyright had already expired. Mostly, we'd have a bunch of rubbish barely rising above the level of second-rate fan-fic, but we'd also have some real gems.
20 years is plenty of time.
If you're not familiar with it, have a look at the Touhou project (set of Japanese arcade-style games, where the author explicitly gave permission for people to remix his art, whilst retaining fully copyright over the games, and forbidding commercial distribution of them). Touhou is huge - and it's not just because of the games - the derived art works have significantly impacted take up of the games, and created a somewhat unavoidable franchise, inspired countless of creators to produce and share, and will probably have a long lasting presence within otaku culture.
Notice the author in your example retained full copyright over the games. The author is not allowing derivative games.
In books, this would be equivalent to reusing characters, their personalities or traits, but copying sections of the original works verbatim is obviously still plagiarism.
We do know what it means. It means the price will be higher. Be careful though, because price is not equivalent to profit. Selling a million copies for $10 each is much more profitable than selling a hundred copies for $1000 each.
And if derivative works bring publicity for the original it can drive sales and increase profits, even at the same time as it lowers prices.
But that you can't make derivative work is insane. You would see fan art and fan fiction disappear completely if it was better enforced. The best book I've ever read was fan fiction. Before copyright it was common for characters to be reused between different stories. And it's still true that most works are not original. They are just different in ways that aren't copyrightable. Who cares if you reuse character names if your story is just a clone of another anyways?
Well, if you "support copyright to some extent for economic reasons" it's not really insane. In fact it makes perfect sense.
The work, eg. a book, you've spend tons of money, thought time and effort to make, can be copied in a couple of days or weeks. What's to say what's just derivative or is a rip off? Is changing a few plot points or wording enough?
>You would see fan art and fan fiction disappear completely if it was better enforced
It's not like fan art and fan fiction ever produced anything that worthwhile though. Has there ever been any major fan fiction work hailed as literary worthy? Maybe you'll find one or two examples. I doubt you'll find ten.
You are arguing about technicalities. Obviously changing a few words is still copying the previous assets. Writing a new book with the same characters or plot is still not a copy. The courts can decide on the rare grey area like they currently do anyways.
>It's not like fan art and fan fiction ever produced anything that worthwhile though. Has there ever been any major fan fiction work hailed as literary worthy? Maybe you'll find one or two examples. I doubt you'll find ten.
I can't tell if this is a joke or not. But there is HPMOR and countless others. Obviously most writing is bad (original or not.) The fact that it is a derivative work has nothing to do with it's quality. You just don't see the hundreds of novels that never get published, but bad fan fiction gets posted online regardless.
Not a joke at all. Especially if HPMOR is the best example one can come up with (or one of the best).
I mean, not even the actual Harry Potter is any work of literary genius. I'm talking about Melville, Nobokov, Joyce, Dostoyevsky and such. It's not like literature would lose anything important if HPMOR wasn't available.
It would probably lost a lot of readers, especially among young people. If you remove pure fun please reading as an option, less of them will find themselves in mood for something more serious.
I think the idea that art/literature is "ridiculously subjective" is mostly on the west side of the Atlantic. In ole Europe we tend to take our literary canon seriously, and don't think that all taste is equally OK. Of course individual readers and critics might prefer X over Y, but the value of great works and authors is not doubted in aggregate.
E.g just because some people like Bieber and others like Mingus, doesn't make Bieber as just good as Mingus. Music/literature/etc is a craft (in which one can tell a good from a bad practicer, even if he is not "into" the final artifact) rather than something like different ice cream flavors.
Just naming someone Luke Skywalker and writing a story about a drunk cabbie with that name would not be derivative and not likely a problem, writing a story about a Luke Skywalker battling evil on some god forsaken world would be because you know his history, the new author had someone do all the hard work for him - making an appealing character, making a character with intrinsic market value.
Wide Sargasso Sea, Coetzee's Foe, and Rosencratz and Guildenstern are Dead all come immediately to mind. Re-imagining another author's work is a common enough tactic that I'd bet it wouldn't be very hard to find 10 excellent examples of literary fanfic. You might be able to do it just with Shakespeare fanfic.
I have a feeling, though, that this a self-fulfilling assertion, in that you will try to re-define "fan fiction" to go around anything of literary merit that is brought up. The same thing happens with other supposedly inferior genres. Someone asks, Is there any literary scifi? People name some, and then the person responds, Well, that's not really scifi.
I'd guess that "not actually literary" is, in reality, part of the way you are defining fanfic.
In any event, disparaging fanfic by appealing to high literature is a lost cause, because the very techniques of fanfic are solidly embedded in the literary tradition, even if you want to argue about the exact definition of fanfic. Pastiche, playful appropriation, even adversarial reimagination -- all of these are fair game, and can make for sublime reading.
Is this sarcasm? An enormous amount of what we consider great literature consists of "fanfiction"; it would not be permitted under copyright law as a derivative work were it written today and based on modern stories instead. For example, most of Shakespeare's plays are based on older stories, or even the plays of other contemporaries.
To be sure garbage dominates the world of fanfiction, but that's merely a consequence of the low bar to entry. But there are a very few diamonds out there in the deep brown, to paraphrase an article I read many years ago on fanfiction quality.
Shakespeare's works are not what we call "fanfiction". For one, Shakespeare was not some "fan", creating derivative works in the same "fictional universe". Neither is Racine, or the tragic poets in Ancient Greece reusing older poetic themes and myths, etc.
Fan fiction has a quite specific meaning, not just reusing some myth/drama/story plot to create a new work.
In fact the Wikipedia lemma on fan fiction places the first precursors long after Shakespear's time, and is in line with the general understanding of the term "fan fiction".
To be sure, that's not what we usually mean by fanfiction, because part of the connotation of the word is that it's done by a modern "fan" (which has connotations of its own) writing about modern fiction. But I don't see a substantive difference.
I'm not entirely sure what you mean here, but I think you're overlooking the possibility that they might have been commissioned to produce an original rather than a derivative work.
Is art, similarly to science, not an iterative process based on the input of dozens, hundreds, thousands of people that came before us?
No. It's certainly influenced by prior art, and techniques like sampling, collage, and cut-ups certainly allow for art that is comprised of prior art but rearrange in a novel way. But a lot of art is original, and speaking of someone's originality is usually one of the highest artistic compliments one can pay. I think this discounting of original work is one of the flaws of postmodernist culture, in which the referential frame is accorded equal or greater semantic weight than the content within. I may be projecting here, though.
Um, this is exactly true in science. But scientists are generally required to make clear and explicit the influences for their work.
I think a lot of artists miss the trade-off. If others feel invited to improve on your work then they'll be more likely to credit you, because in the alternative where derivatives are not allowed, anyone inspired by your work will be afraid to credit you for fear of it being seen as an admission of wrongdoing.
That's not much more helpful, sorry. It might give more context if I mention that I have an extreme antipathy towards postmodernism and critical theory in general, which colors my opinions on related topics.
Why does this difference between art and science justify art's comparatively hostile attitude toward "derivative" works?
Also, I don't agree that there is such a stark contrast. I think you over-state the role of testability in science (esp. the task of articulating theories) and under-state the importance of the social process in science.
Oh, it's worth noting that sometimes scientific communities do frown on "derivative" works. E.g. scooping other group's low-hanging fruit. But the general sentiment regarding these cases doesn't even come close to even contemplating something like litigation. (edit: oh, I guess there's some patenting in the natural sciences esp. in near-to-market research. But patents != copyright. And CS comes a lot closer to the nature of art, and AFAIK it's unheard of for a researcher to sue another researcher over derivative works.)
Because science is engaged in a search for truth, new actionable information. Art is expressive, so copying someone else's work (for display rather than to develop one's technique,of course) is a sort of freeloading.
It's also worth considering the economic incentives for science and art are also pretty different. For good or ill, there are few scientists who labor unrewarded out of compulsion, not least because there isn't a whole lot of science you can do without a budget, although I can think of a few mathematicians who fit that bill, eg Grigori Perelman. However, by mentioning the economic side of things I wouldn't want to give the impression that I support existing copyright regimes, which I think are actually economically destructive to individual artists in many respects - it's just that I don't support the opposite position either, of nothing being truly original and therefore nothing being deserving of copyright protection.
I do think testability, or rather falsifiability, is important in science insofar as it makes the differences between conjecture and theorem. But I see where you're coming from; there can be a lot of value in an elegant theory even if it turns out to be superficially wrong, because it can open up new vistas of intellectual inquiry - Riemannian geometry springs to mind, where the failure of [many previous mathematicians] to prove Euclid's parallel postulate by reductio ad absurdum opened up a whole class of non-Euclidean geometrical perspectives even though such geometries were 'wrong' in the Cartesian context.
But to get back to the main point, with science your aiming for results of some sort, whose value lies in their explanatory power (even if that opens up a host of new questions, like some empirical observation that points out a natural phenomenon does not behave as we thought it did, without offering any theory as to why that should be the case). Art, by contrast, is inherently subjective, and might as easily be constructed to alienate or frustrate analysis, or be indifferent to the possibility thereof.
I think there's a tendency today to see art as an accretion of communicatory techniques, but I'm deeply at odds with this view, and feel that it reduces artistic endeavor to the level of marketing. (This is a very personal perspective, obviously.) If you're working creatively you're often asked/advised 'tell a story' or 'articulate what you want to say' or 'identify your point of view'. In a postmodern world, art is treated as a lens through which to view the artist, and there's a great emphasis on context and explanation, such that 'artist's statements' are considered essential to the presentation of art. To my mind this is an awful state of affairs, reducing art from the trancendental to the transactional. Self-consciously derivative and combinatorial art exacerbates this.
You are absolutely entitled to your artistic opinions and I have no interest in challenging those.
However, using the hammer of law to enforce your aesthetic perspectives is just unwise.
Copyright law is absolutely not the place to choose a best-possible-definition of what constitutes good art. We should instead take a broadest-resonable-definition and work from there. And I think most reasonable people -- who are attempting not to enforce their own aesthetic sensibilities -- will agree that if a significant subcommunity of well-established artists call some variation a piece of art (even if derivative or uninspired), then we can proceed assuming it's not an "exact copy".
> there are few scientists who labor unrewarded out of compulsion
There's up to a $40k split between what a top science student can make in industry and a first year grad student stipend at a top school. Plus the dent to future income potential. And even then they are not paid exclusively for the science -- the stipend typically includes lots of community work and/or teaching that is unrelated to the science. A lot of students at lower ranked universities get stipends exclusively for teaching and complete research in their spare time. In other words, completely unrewarded.
And "most scientists" are grad students.
So I respectfully disagree (and even resent) the implication that science doesn't involve significant personal sacrifice for most scientists, at least on the order of magnitude of the what most artists experience.
My point w.r.t. science was that a lot of highly derivative work is done (including "mashups" of theories, techniques, etc.). Although we realize this research isn't "as original", people aren't going around accusing these researchers of stealing their ideas. Of if they are, they certainly aren't even thinking about the hammer of law or lost profits. This fundamentally demonstrates that the artistic community is making an unnecessary and avoidable choice.
Even abstract paintings tend to rectangles way more than say an octagon. I mean there explorations of form and color yet almost none of them cut the canvas into an interesting shape.
Take the case of Shepard Fairey's use of the AP's photograph of Obama. The iconic "Hope" poster: http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster
Now that photographer certainly never would have been paid or even heard of had the photo been used as inspiration. Yet, Fairey lost that case in Federal Court.
People are prevented from using a photograph of someones face to remix into a vectorized, colorized, cartoonized version of this face. A photo that would have died a quiet death as a newsroom archive. It is my opinion that Fairey's usage did nothing but add to our collective culture and that preventing use like this in the future is quite chilling for creatives of many fields. (For more on this topic, written much more eloquently see: http://waxy.org/2011/06/kind_of_screwed/)
What happens when a company does a 3D scan of Briteny Spears and produces a model of every muscle movement possible, and then claims copyright over every single photograph and drawing of Ms. Spears that every gets produces hereafter? We already see a similar tactic being used with patent trolls, "patent everything, sue everyone."
Read any of the great artists and they will admit that there are no new ideas. Shakespeare knew it. Even the Greeks knew it when they were ostensibly "inventing" theater.
Incidentally, nigh means the same thing as near.
Read any of the great artists and they will admit that there are no new ideas.
C'mon, you know that's BS, for the same reason you pick a figure like Shakespeare as an exemplar of 'great'. If he actually thought that then why did he waste his time writing all those poems and plays, which are supposedly no different from anything that came before?
I hear this argument mostly from people who have never sat down and worked to produce something.
There are entire books on this subject. Austin Kleon's "Steal Like an Artist" is perhaps the most engaging one right now. Get it. Read it. Quit putting "ideas" on a pedestal.
If an artist takes a one-time commission to paint a Calvin & Hobbes frame on a nursery wall, great. If it's on a million t-shirts or Hobbes is selling medical insurance, then that is something different.
The former comes out of appreciation, the latter, pure exploitation.
Yes, and a lot of us want to be paid for our contributions to this mass endeavour.
Case in point, lots of those giants on whose shoulders we stand got ripped off and died peniless.
Obligatory link: https://www.youtube.com/watch?v=mj5IV23g-fE&feature=kp
(Harlan Elisson, "Pay the writer").
But you don't avoid that by retaining tight control over your IP. You do that by providing a product people genuinely want, and giving them a way to pay for it conveniently. No one thing is an instant solution, and the possibility of your original artistic work being outright stolen for someone else is incredibly rare, as people naturally want to see more from the original author.
All art, indeed all creative endeavors, are derivative works.
The one who created the original material.
The oldest line of record/ad/publishing industry crooks trying to rip you off it's "it will bring you publicity/exposure" (ie. "draws more to your story").
The chart of books in print on Amazon, by decade, offers a compelling reason to allow copyright to expire. There are more books available from 1830 than 1930; more books from 1900 than 2000. The cliff in that chart comes when the indefinite extension of copyright began in the early 20th century. It blew a massive hole in our cultural record.
You'll see the same story in film, and in software, though we have no pre-indefinite-copyright data to compare to. There's an era between roughly 1930 and 1980 where works that would have gone into the public domain, no longer are -- and because they are locked away, they are being forgotten or entirely lost. We enjoy the Eternal Sunshine of the Copyrighted Mind.
Though it's not a reason to allow copyright to expire, it's also worth noting that copyright expiration is required by the US Constitution. A copyright law that didn't include an expiration date would be unconstitutional. In practice, of course, a continually-increasing-yet-finite time is hard to distinguish from forever.
You have no doubt benefitted from the richness of our culture, yet are seemingly willing to prevent those who come after you from doing the same?
Not that I'm disagreeing with the article, just caught my eye.
Jim Lovell as played by Tom Hanks via http://www.imdb.com/title/tt0112384/quotes?item=qt0476805 - "Houston, we have a problem."
>> Beyond that, the public domain was once the default in the United States: unless you put a proper notice with a copyright sign and the year, and sent in a registration form and fee, your essay or film or recording or picture would never carry copyright restrictions at all.
...I don't like. And maybe that's just because I've never created anything of interest, or of value, or maybe simply because I don't understand the implications. But it seems to me that it's better, or at least more efficient, to assume everything is copyrighted once it has been created rather than requiring everyone to file a form with an associated fee for everything that a person ever decides to create ("What if somebody decides they would use it in a commercial??).
Of course I would like to see the above coupled with extremely short default copyright lengths, and then perhaps an escalating fee for subsequent extensions. And given our current copyright climate, I suppose I would still side with the author. But I think there's a middle ground where content creators aren't spending their time filing forms and paying fees, but rather creating.
But maybe if that creative work isn't popular immediately, you move on to other creative endeavors. And the copyright-free diaspora of your previous work serves as advertising or "proof of merit" of your new works, if you're truly creative. And if you're not (like me), but you happened to have one and only one monetizable work that happened to be extremely ahead of its time... well then maybe at that point you should just be happy that humanity eventually discovered what a genius you were.
I look forward to hearing about where I'm wrong about this particular aspect, because I feel like I must be overlooking something.
As is, there's no currently no way for me to confidently know that I have permission to use a particular work. Even if I get permission from the original creator, I have no way of knowing whether said creator actually copied from someone else. A registry (properly indexed and searchable by Google) solves that problem.
But I would think that the Internet Archive or some Google text/video/image search with "scraped on:yyyy-mm-dd" would essentially give you permission if the scrape date was less than (Now() - <X years original reproduction is prohibited>) or (Now() - <Y years "substantially" derivative works are prohibited>); where Y is probably less than X.
Then someone could have exclusive rights to publish their works for (say) 10 years, while an artist could potentially make a different work after (again, say) 5 years.
I only follow this enough to make highly illogical conclusions, but it seems like a blogger shouldn't have to register every single post with a central authority to retain a very limited length copyright. They should have some time to publish a "Greatest Hits", and if they don't during tlicensed", then "Greatest Hits PLUS today's take on past events" would seem to lure the die-hards.
Ultimately though, I don't feel it should be on the creator to register every creation.
In your example, I would hope the person that "licensed" it to you would be responsible, and not you, but I've heard possession of stolen goods can be a tricky area (at least in the U.S.) even if you have no prior knowledge, so I don't hold high hopes for reasonable property decisions concerning intellectual property rather than physical.
As a philosophical point, I think it should be on the creator to register every creation (at least if said creator wants copyright protection on it). You are claiming a property right over an amorphous thing you do not physically possess. The least you could do is to be provider clear notice to the public of what exactly it is you are claiming rights over. In that sense, copyright is less like personal property and more like real estate, where owners are expected to register their deeds to enjoy full legal protection of their property rights.
Also, as a practical matter, we're also more likely to see registration requirements passed than a reduction of copyright to 5 or 10 years (historically, it's been about 14-28 years in the U.S.).
More efficient for what, exactly? Because it is much more efficient for me to just assume that nothing is copyright when I creating something new that incorporates the work of others. It is overwhelmingly more efficient to just ignore copyright on the Internet -- our computers are the greatest copying machines ever made, and spending our time trying to figure out if some data is copyrighted is nothing but a retarding force.
As far as copyrighting is concerned I think it's fair to require you to put some effort into protecting your works.
However free copyright should only last about 20 years after that a small fee should be required on the 21'st year and that fee should grow exponentially every 10 years from then on.
If it's valuable enough to you you will pay the fee but if it isn't you will release it into the public domain.
That will prevent people keeping thing copyrighted for too long and companies like Disney could keep their stuff copyrighted for at least 100 years before the fees get too large.
If it's no profitable there's no point in keeping it copyrighted and you're just hurting the public domain by doing so.
Edit: After reading your comment more carefully, I see you were discussing creating something new based on a work, rather than a simple reproduction of an existing work; my apologies. In which case I agree with nthitz's comments in this thread regarding it being transformative, and therefore permissible (in my idealized scenario).
It is a major disservice to budding artists that we continue, through culture and through implication with our copyright law, to promote the notion of the genius artist. The image of divine inspiration, the golden work, a single masterpiece that creates a laying legacy, is complete falsehood. It relegated at to a world of myth, only to be attempted by gods, not for us mere mortals.
It's an incredibly important lesson for the entrepreneur. It's better to be done than be right or beautiful our elegant. Done is the only thing that sells units.
See, for example, trademarks. You do not have to register your trademarks; just using them is enough. But wothout registration the government (in the form of customs agents) will not seize trademark infringing goods at the border or (in the form of police and courts) arrest and prosecute people engaging in mass commercial fraud / violation of your trademarks.
IP law baffles me and it'd be great if there were some short pages explaining why we are where we are with Intellectual property. There are lots of pages explaining what the law is, but not why. Also, some comparison with other legal systems would be cool. (Possibly popular article for HN?)
So I was disheartened when I got the takedown, and even more so when I looked through the guidelines for disputing an automatic match and found that I faced a presumption of guilt.
The scary part of this system, which you touch on, is that there is no clear procedure for contesting public domain audio and recourse for ensuring that mistakes get corrected. It circumvents the DMCA entirely by choice of Soundcloud, presumably to build a monetization model that generates revenue for copyright holders that opt into their system, similar to YouTube.
I mean look at this:
>I’m sure my particular uploading situation will work out fine. SoundCloud is full of smart people, and this automated match will get cleared up in days, if not hours.
So, what... nothing to see here, then? Is he trying to get his job at Soundcloud back? What bootlicking horseshit is this? It is not copyright activism.
These are good questions, though I disagree with the characterization here. Like: I don't think anybody's circumventing the DMCA, so much as tacking on additional measures not required by law. Anybody who's doing algorithmic enforcement, including YouTube and newly Vimeo, is in the same boat; in large part it's the result of negotiations with media partners who demand it in exchange for access to content. So, they're doing something separate from what the law requires (in addition to what the law requires) in order to satisfy partners... not really circumvention.
BUT it sucks. And it especially sucks when it's done in a way that doesn't respect users. And I've written about that lots, though not so much in this particular piece.
Sites have all kinds of "guidelines", and some of them are offensive and others aren't as much. Vimeo used to prohibit video gameplay uploads, for example; that's probably not something I'd campaign on.
I probably should have put an extra sentence at the end to explain what I mean by the line you quoted, but I guess I didn't think people would read it as "bootlicking horseshit." In fact, I'm sorry to say I think you've read it exactly backwards.
I meant to emphasize: the issue is not my particular upload of Apollo 13 audio, which is obviously also available from a million other places. If you read the thing and think it's about my complaining that this particular audio is taken down, that gives SoundCloud WAY too easy an out: they just comply with their own policies, maybe expedite the process for a (1) former employee who (2) works in copyright policy and (3) got the dispute to the top of Hacker News, and then they can wipe their hands of it.
No, making this issue about any one piece of content, my own included, misses the forest for the trees. I am mad, and I will stay mad even once SoundCloud's reasonable employees doing their job flick a switch and reinstate my upload. I don't want other people to feel like they can relax once my upload is back in place. It will be back in place, but what we need is systemic improvements to eradicate the creeping permissions culture.
To me, it seems that these hosting providers have traded safe harbor under the law, for safe harbor under contract with their media partners, in exchange for content. In so doing, they enable those partners to send what effectively amounts to takedown spam, where under the DMCA regime they'd open themselves to a lawsuit if they didn't conduct due diligence.
How is that not circumvention?
Excuse the tone of my posts here: I'm very perplexed. I get that you're upset, but you seem to be completely ignoring, and here even dismissing, the underlying cause for your spurious takedown notice.
DMCA says: if you want to have a safe harbor, these are the basic things you have to do. You have to name an agent, take notices, takedown promptly, have a repeat infringer policy, etc. If you don't do those things, you lose your safe harbor.
SoundCloud does all those things, so they get the safe harbor.
The additional systems they have chosen to put in place are just that, additional. Adhering to DMCA is not required (though you don't get the safe harbor if you don't) and it's not a ceiling on what kinds of arrangements companies can make with each other.
But again, you're right that it's the thing that burned me here, and I think they merit a lot more scrutiny than they get, and I'm trying to lead that scrutiny more in other places. Prohibiting additional measures would also tangle up other site "guidelines" like the Vimeo one I mentioned, or even YouTube's ability to do content matching and revenue splitting.
You've identified a really key problem though, that those additional rules, whether offensive or inoffensive, are made completely at the discretion of online services and generally without input from users.
I've got no evidence that it was an actual DMCA notice, and the language suggesting it was an automated match seems much more likely to me.
That said, I don't think I have any insider knowledge from my time there, but also wouldn't want to give the impression that I was revealing non-public facts about their processes. It may be an abundance of caution, but it would certainly paint a target on the argument.
A major, major problem across many, many UGC sites is that, because the DMCA does not require them to forward takedown notices in their entirety affected users, there is information asymmetry at play. I filled out a dispute form on the site, which required consenting that my counter-notice would be forwarded on to the complaining party (if such a party exists).
If there is a DMCA notice, and if I can get it, and if I can show it was in bad faith, I'd absolutely raise the idea of pursuing a 512(f) claim against "the assholes" you mention. But 512(f) doesn't work against what I wager happened, which is just a media partner engaging in copyfraud unbeknownst to SoundCloud.
If that's what happened, SoundCloud likely has a contract saying that the media partner won't do that, and could terminate their agreement or, who knows, sue over breach of contract. But I, the user, don't have that course of action available to me.
I remember the creator of SQLite talking about this on a very old episode of the FLOSSWeekly podcast where he said that this was somewhat hindering adoption because in Europe the legal status of SQLite wasn't clear.
I wonder how many of those have been sold!
Additionally, this comic is informative and fun: http://web.law.duke.edu/cspd/comics/
There are enough open source projects outthere to allow anyone a bit tech saavy to host his own stuff.
Dont use soundcloud,youtube,or whatever and you wont have to deal with all these automatic take downs. For the record i've been victim of abusive DMCA td requests on music i've produced MYSELF since then I host my own stuff,period.
If anything, this should signal a market opportunity to the OP. Wouldn't it be great if there was something like SC, but without the lame copyright take down policies? Wow, yeah! We should start up a business or something...
Still quite a grey area if mashups are fair use. (Girl Talk has an album for sale on iTunes)
Since when one choose the license of the product one uses?
Not getting caught violating a license=/= grey area.
If you write a software and state one must pay 100$ to use it, and you find that software sold on ebay without the seller giving you a cent,or in a torrent , would you call it "grey area"?
So why things have to be different with music or movies?
If you ask me ,did I ever pirate something,i'd answer yes of course I did like most of us.
But I would never try to justify my actions by saying "Oh but you know it's kind of grey".It's not,i'm violating a license by enjoying something i got through illegal means.There is no grey area here. Let's stop the hypccrisy.
Mashups are not fair use.Would be like saying sampling is fair us,it makes no sense.If you dont have the explicit authorization from the artist or the label you cant just use something you didnt created that is not public domain.There is no grey area here.
The EFF has interesting thoughts on the subject . I wouldn't equate mashups to piracy quite like you, but I can see where you are coming from.
as an explicit assertion of permission from the creator. But the actual wording is "I have a valid license from the copyright holder", and that page is not from the copyright holder, since no one holds the copyright...
We just know the fight, who it's against, and the apathy of the general public that constitutes the fight before the fight.
I wouldn't call being mass-pepper-sprayed while sitting down at an Occupy movement that much different from being hosed down during the Civil Rights movement. Different cause, different day - same fortitude.