Now its not clear what a "performance" is from this - but let's assume that its watching the video at home - say in front of a group of kids. Now that latest Lady GaGa video scooped off the pirate server could (will?) land Mommy, Daddy, little Jr., and all his friends in Federal Court. But don't worry - you have to watch it ten or more times before its a felony under this bill.
Of course, you or little Jr. could have emailed that link to 10 friends who watched it - or posted it on your blog and ten readers watched it...
What are they smoking?
Copyright law is such a complete sham its hard to imagine.
Effectively copyrights go on forever these days - funny how "Happy Birthday" - a public song that first appeared around 1912 or so (see Wikipedia for more details here) was later copywritten in 1935. The copyright is currently set to expire in 2030.
As you can see from this link copyright has gone from 14 years with a 14 year renewal to 75 years or the life of the author plus 50 years - effectively making copywritten material copywritten forever. And, no doubt when large media companies see these copyrights running low in 15 or 20 years it will be extended again.
The real problems have started with the recent criminalization of some aspects of copyright law.
Now little Jr., blissfully ignorant of copyright law, can view, email and post away with videos creating an seemingly endless liability for poor Mom and Dad.
The owner of the copyright, of course, merely need discover that someone has place the copywritten material on a web site for "performance" and notify the authorities.
The problem with all this is the argument occasionally with my significant other regarding the "law" (for which ignorance is not an excuse) versus the concept of "attractive nuisances" (which involve ignorance of danger - mortal as well as, I will argue here, legal).
According to Wikipedia "the attractive nuisance doctrine states that landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition." Now this extends beyond landowners to any number of applications and situations in real life.
Traditionally this is used to punish land owners that own, say, a quarry filled with water that kids swim in. Of course the quarry might be dozens of feet deep and require someone to dive into just the right spot in order not to hit their head. Kids go there, get drunk, jump in and die. Its the land owner's fault because the quarry represents an "attractive nuisance". The land owner should have known better. At least that's the how the lawyers like the narrative to go...
To me unlawfully posted videos are merely attractive nuisances which draw in children and the ignorant. Certainly no one could ensure that every Facebook post, video blog, youtube, and all the rest were lawfully placed there in the first place. These laws focus on children - basically those ignorant of potential danger - but with the mere playing of youtube videos creating federal criminal felonies are we all "children" in the sense that we cannot a priori know and have no way to be aware of the legal danger such actions might create?
I see the speed of technology rapidly outpacing the ability of government officials and elected representatives to control it - as well as making people fatally ignorant of the legal danger or jeopardy that might exist. Yet the problem remains one for you and I - a remarkably convenient outcome for those making these laws (who no doubt receive campaign donations from companies holding for-profit copyrights).
Personally I have never understood the concept of how "drunk teenagers" can engage an attractive nuisance, or how a speeding car fleeing police can create liability for the landowner when the driver is injured in a smash up on their property.
To me if you are violating the law in the first place, say you are drinking as an underage teenager, then you have taken control of your life and taken your personal actions and made them "above the law". In particular, your stupid actions as a drunk kid should not supersede those of say, a land owner, in the case of an attractive nuisance. Since you are now "above the law," as in taking it into your own hands, then you should carry the responsibility for said actions. Period.
You're drunk and that jump off the cliff into the quarry looks mighty inviting - but would you have done the same had you not been drunk? As is often the case one drunken idiot takes the plunge, gets hurt or killed, and leaves the remaining attendant fools in shock and awe. Yet they don't jump because they first one off the side is now dead or hurt. They hadn't jump off previously because it looked too dangerous. Only when one fool moves outside above law (by breaking it) does a problem result.
And where does this leave the poor landowner? At home reading his newspaper until the police show up at his door. Apparently he must anticipate not only what true attractive nuisances are, e.g., sink holes, uncovered mine shafts, and the like, but also what drunken teenagers might consider "attractive" as well.
(Needless to say this is also the source of big income for tort lawyers looking to sue...)
In any case I think that the chain of events for liability, criminal or civil, must stop with the first violation of the law.
If I'm drunk and I smash into your porch and get injured I should have no recourse because I was driving drunk.
Texting while driving and cause someone to rear-ends you? Its your fault because you were breaking the law.
If I'm a drunk kid and I dive into the public pool at midnight breaking my neck I should have no recourse because I was drunk.
Similarly for copyright - the person initially posting the video on youtube should be the only one liable - and liable for all the remaining actions. If multiple violations occur after the fact they should fall back on the person performing the original post because they created the initial problem and subsequent liability for everyone else. Without that initial posting no one would have discovered this legal attractive nuisance.
Children (and adults) cannot reason about legal ramifications in the area of copyright law (and the internet) and hence the availability of such a video is, I think, a true attractive nuisance. Just because the "danger" is legal and not mortal, as with a quarry, should not remove the notion of "attractive nuisance".
The doctrine of "attractive nuisance" must keep up with technology.
No comments:
Post a Comment