The Prelator

Weblog of Patrick McKay

The Purpose of Copyright Law

Posted by darklordofdebate on February 11, 2010

Recently several prominent blogs have been debating the fundamental purpose of copyright law, and Ars Technica ran an article on the exchange. The central question is whether copyright exists first and foremost to protect the rights of artists and creators to benefit from their intellectual “property,” or whether its primary purpose is to benefit the public by promoting the creation of culturally beneficial works. I believe both the Constitution and the history of American copyright law up until the 1990s or so clearly favors the latter view–that copyright exists to promote cultural enrichment and the interests of creators are inherently secondary. Below is an except from a paper I wrote for the Entertainment Law Initiative Essay Contest arguing in favor of this interpretation:


The constitutional purpose of copyright law is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[1] Fundamentally, copyright law exists to promote the production of creative works, and in doing so must balance two distinct interests—the right of society to have access to and benefit from creative works, and the need to allow creators to benefit financially from those works in order to motivate their production. This balance is achieved by granting creators a temporary monopoly over the use of their works, which gives them the incentive and financial means to produce them. However, creators’ rights are always considered secondary to the public benefit. As commentator Mark Nadel states, “Granting the copyright holder a virtual monopoly by prohibiting the unauthorized copying and sales of copyrighted works is a necessary evil for attracting the financial investments needed to promote the creation and distribution of these creative works.”[2]

Contrary to the claims of many copyright holders, copyright is not based on the recognition of a fundamental right to control and benefit from intellectual property, but is rather an economic bargain to encourage socially beneficial creativity. Indeed, Congress has explicitly rejected the idea that copyright is based on natural rights, but has instead stated that its purpose is for the benefit of the public.[3] Economically, creative works (also called “information goods”) such as music are considered “public goods,” which are characterized by non-rivalry (one use does not compete with another) and non-excludability (difficult or impossible to limit access to).[4] These goods are typically difficult to profit from, and because they generally have fairly high production costs, there would be little incentive for people to produce them unless there is some guarantee that they can profit from their efforts.[5]

Copyright laws protect producers’ ability to price information goods above their cost of production by artificially limiting the supply of those goods and restricting access to them, reintroducing rivalry and excludability to what would otherwise be public goods. These restrictions allow creators to profit from creative works, motivating the production of works that would not otherwise be created. While this involves some loss to society through decreased access to copyrighted works, the monopoly created by copyright is considered justified as long as it results in a net gain to society in the form of more information goods being produced.[6] Conversely, when the exclusive rights granted by copyright do not result in a net benefit to society, they are not justified.[7] Therefore, if a particular right granted by copyright law does not produce a net benefit to society, it should be removed.

[1] U.S. Const. art. I, § 8.

[2] Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 Berkeley Tech. L.J. 785, 787 (2004).

[3] See H.R. Rep. No. 60-2222, at 7 (1909) (“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served. . . . Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. . . .”).

[4] David Lindsay, Centre for Copyright Studies, The Law and Economics of Copyright, Contract and Mass Market Licenses 23 (2002),

[5] Id. at 24 (“To the extent that an information producer is unable to recover the costs of production, incentives for the production of information goods, such as copyright material, are undermined.”).

[6] Nadel, supra note 4, at 787.

[7] See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (“The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ”).

Posted in Copyright, Law | Tagged: , , , , , | 1 Comment »

Adapting to Global Warming

Posted by darklordofdebate on December 21, 2009

As a followup to my last post, I just wanted to post a couple great quotes from this opinion article by the Global Warming Policy Foundation president Nigel Lawson on the Wall Street Journal:

The reasons for the complete and utter failure of Copenhagen are both fundamental and irresolvable. The first is that the economic cost of decarbonizing the world’s economies is massive, and of at least the same order of magnitude as any benefits it may conceivably bring in terms of a cooler world in the next century. After all, the reason we use carbon-based energy is not the political power of the oil lobby or the coal industry. It is because it is far and away the cheapest source of energy at the present time and is likely to remain so, not forever, but for the foreseeable future.

Moreover, any assessment of the impact of any future warming that may occur is inevitably highly conjectural, depending as it does not only on the uncertainties of climate science but also on the uncertainties of future technological development. So what we are talking about is risk.

Not that the risk is all one way. The risk of a 1930s-style outbreak of protectionism, if the developed world were to abjure cheap energy and faced enhanced competition from China and other rapidly industrializing countries that declined to do so, is probably greater than any risk from warming.

The time has come to abandon the Kyoto-style folly that reached its apotheosis in Copenhagen last week, and move to plan B.

And the outlines of a credible plan B are clear. First and foremost, we must do what mankind has always done, and adapt to whatever changes in temperature may in future arise. This enables us to pocket the benefits of any warming (and there are many), while reducing the costs. And since none of the projected costs are new phenomena, but the possible exacerbation of the problems our climate already throws at us, addressing these problems directly is many times more cost-effective than anything discussed at Copenhagen. Nor does adaptation require a global agreement, although we may well need to help the very poorest countries (not China) to adapt.

And beyond adaptation, plan B should involve a relatively modest increased government investment in technological research and development—in energy, in adaptation and in geoengineering.

Despite the overwhelming evidence of the Copenhagen debacle, it is not going to be easy to get our leaders to move to Plan B. There is no doubt that calling a halt to the high-profile climate-change traveling circus risks causing a severe conference-deprivation trauma among the participants. If there has to be a small public investment in counseling, it would be money well spent.

Along the lines of my previous post, there are three lessons we can draw from this. Number one, everyone agrees that the economic cost of decarbonization will be immense, and it will be highly difficult if not impossible to secure agreement between enough countries to make a meaningful reduction in carbon emissions. Second, any benefits produced by decreased warming would in turn likely be far outweighed by the economic risks achieving such reductions would necessarily entail. Finally, the best and easiest solution to global warming is to simply do what humanity has done for thousands of years and adapt to changing conditions. Considering the tremendous technological progress the human race has made in the last century alone, it shouldn’t be that difficult to deal with the consequences of a climate that’s at most a few degrees warmer.

Posted in Climate Change, Politics | Tagged: , , , , , | Leave a Comment »

Global Warming Scientists: “You Will Adapt to Serve Us”

Posted by darklordofdebate on December 15, 2009

Over the last few weeks, I have been following the recent developments regarding global warming and the so-called “climate-gate” with somewhat bemused interest. On the eve of the Copenhagen conference, which is being billed by global warming advocates as the greatest climate change summit of all time and the last best hope for our planet, an unknown hacker manages to steal a hundred megabytes worth of emails from a climate research unit which appears to show climate researchers cooking the books to “hide the decline” and squelch skeptics. Now honestly, I don’t know what to think of these particular emails. I’m sure if I really wanted to, I could hack into someone’s email and find a few out-of-context quotes to make them look suspicious too. Whatever these emails ultimately mean, I highly doubt they actually prove the existence of some vast scientific conspiracy to hoodwink the world into believing climate change is real. If their is any fraud in climate research, a more likely explanation is simple bias caused by politically motivated funding of research, rather than a deliberate conspiracy.

The real problem here is the politicization of science in the first place. After the climate-gate incident, I read numerous news articles talking about how poll numbers of people who believe climate change is real showed substantial drops, primarily among Republicans. In these articles, there were many quotes from scientists lamenting the fact that the existence of human-caused climate change is a political issue, subject to the latest opinion polls and the whims of the uneducated populace. I lament this too, but for a different reason. The reason global warming has become a political issue (besides the aforementioned funding issues) is because it long ago ceased to be about science and is now primarily a policy debate. Instead of sticking with what they do best, making observations, crunching numbers, and concocting theories, scientists have strayed far out of their usual realm and have directly entered the world of policy debate.

It’s one thing for scientists to tell us that climate change is occurring; it’s quite another for them to attempt to dictate the exact ways in which to solve this alleged “problem.” When scientists stop being scientists and start proposing policies like politicians, is it any wonder that science becomes politicized? It would be one thing if they just laid out the facts and gave a few possible solutions, then stepped back and let governments debate the best course of action in a rational manner that takes into account all the pros and cons. But they have not done this. Instead, scientists and global warming advocates have put all their eggs in one basket, dogmatically clinging to drastic global carbon emission cuts as the one and only way to solve the problem. Then they come up with doomsday scenarios of rising sea levels, flooded cities, famines, plagues, wars etc. in an attempt to claim that unless the world takes immediate action to reduce carbon emissions to pre-industrial levels, it’s the end of the world as we know it. Such scare tactics are nothing more than the clear tactics of petty demagogues to incite fear and motivate action out of a false sense of urgency.

Never mind the fact that such reductions in carbon emissions will come at the cost of trillions of dollars and millions of lost jobs. Never mind the fact that they would require nearly a complete reordering of the global economy to accomplish. Never mind the fact that even if these reductions are possible, they would only reduce global temperatures by a few fractions of a degree at most. To the global warming evangelists, it has become a cardinal sin to engage in even the most basic types of cost-benefit analysis when it comes to taking steps to mitigate global warming. Instead, they expect unquestioning allegiance to whatever plans they propose, no matter what the cost, because we owe it to “the planet.”

Many people over the last few weeks have remarked the climate change has become almost a sort of religion. Indeed the similarities are striking. You have a large movement of people motivated by a pseudo-religious fervor, passionately accepting whatever their leaders tell them through blind faith, while speaking in vagaries about “taking action” and bringing hope and salvation to mankind. They are on a crusade to “save the planet” motivated by some sort of quasi-pantheistic love of “nature,” which they are devoted to at all costs in an endless quest to atone for the “sins” of mankind in polluting the Earth with our very presence. For such people, their entire lives have become bound up in this cause, and there is no price too great to pay to achieve it.

What is ultimately needed in the climate change debate is to cut through the extremist rhetoric on both sides and make an honest evaluation of our options. Let’s say for the sake of argument that climate change really is occurring, and that it is in fact caused by humans. Ultimately yes, in the long term we will probably want to reduce carbon emissions to prevent the problem from increasing. But is the threat really so bad as to mandate such drastic actions as are currently being proposed in the Copenhagen treaty and in President Obama’s cap-and-trade bill? What is the threat exactly? Probably the worst effect most commonly cited is rising sea levels, but according to the Heritage Foundation, “Even the United Nation’s 2007 Intergovernmental Panel on Climate Change report (putting aside for a moment the Climategate-fueled concerns that this study is overly alarmist) projects 7 to 23 inches of sea level rise by century’s end.”

Okay, so the oceans might rise two feet in the next 100 years. Is that really worth spending trillions of dollars of government funds, millions of jobs lost, massively higher energy costs, and a greatly decreased standard of living for every person on Earth, or at least the developed world? I’ve got another idea. Why don’t we just adapt to climate change instead? Surely 100 years is enough time to build sea walls or dikes protecting low lying cities that could be threatened with flooding. Sure there are other problems posed by climate change as well, but if we see the problem coming this far in advance, we should be able to come up with some way to simply adapt to the immediate problems posed by global warming while waiting for technologies to be developed that offer a more permanent solution, without bankrupting every country on Earth and effecting a total restructuring of the global economy to get there. Climate change policies should not be immune to cost-benefit analysis, and if the costs of a proposed policy far outweigh the potential benefits it should be rejected. This is something that climate change advocates have so far refused to even consider.

Rather than carrying on with end-of-world predictions and dogmatic insistence that their way is the only way to solve this problem, global warming advocates need to be open to alternate solutions, including ones which leave carbon emissions untouched for the present and focus on adapting to a changed climate instead. Perhaps if we acknowledged that it simply is not feasible to reduce carbon emissions to pre-industrial levels *right now* (at least without reverting to a pre-industrial society), and focused on a more practical solution that doesn’t demand such great sacrifices in the name of a problem we are still not sure even exists, we could actually get somewhere. But until climate change advocates are willing to compromise and stop insisting that the entire world bow to their every demand, that is not going to happen, and the only result they’ll ever produce is a string of failed treaties like Kyoto and a swath of economic devastation in their wake. Is that really worth it?

Posted in Climate Change, Politics | Tagged: , , , , , , | 7 Comments »

Square Enix Abuses YouTube DMCA Takedown Process

Posted by darklordofdebate on October 7, 2009

A few months ago I wrote a post on why anime music videos (AMVs) would likely be considered fair use under US copyright law. Well it wasn’t long before I was given the chance to test that theory.

This past Sunday I uploaded a new anime music video I made using footage from Final Fantasy VII: Advent Children Complete and Final Fantasy VII: Crisis Core, set to Breaking Benjamin’s awesome new song “Anthem of the Angels.” (You can currently see the video hosted on Facebook Video here.) Because Advent Children Complete was released in glorious high definition, I uploaded the video in full HD to YouTube, which I think may have been the reason the video immediately triggered YouTube’s copyright filters, which blocked it because of a copyright claim by Square Enix Co., Ltd., the Japanese video game company that makes the Final Fantasy series.  Just as I have done each time one of my videos has been blocked by the YouTube Content ID system in the past because of the whole Warner Music debacle, I immediately disputed the copyright claim with the following statement:

The use of video footage in this video is fair use because it is (1) highly transformative, significantly altering both the content and message of the original; (2) noncommercial in nature; and (3) only uses a small fraction of the original.

I could also have added that the video could have no possible negative effect on the market for the original works, which is the fourth reason that the use of anime video content in AMVs is very likely fair use. Anyway, I thought that this would be the end of it. My video was restored and I verified that it was playable. However, barely five minutes later I got a notification from YouTube saying the video was blocked again, this time because of an actual DMCA takedown notice from Square Enix.

Because I am fairly confident my use of Final Fantasy footage in an AMV was fair use, I decided to go ahead and submit a formal DMCA counter-notification, which I generated with the handy counter-notification generator at By law, DMCA counter-notifications must contain the following five elements, as nicely summarized by YouTube:

  1. Identify the specific URLs of material that YouTube has removed or to which YouTube has disabled access.
  2. Provide your full name, address, telephone number, and email address, and the username of your YouTube account.
  3. Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or San Francisco County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
  4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
  5. Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.

As you can tell from the wording above, this is pretty serious stuff, as it could potentially open me up to a lawsuit, though that is incredibly unlikely, given that, according to the Electronic Frontier Foundation, no individual YouTube user has ever been sued over a remix video, and Square Enix would have to be incredibly stupid to bring the bad publicity on themselves of suing a fan for making a Final Fantasy tribute video on the eve of the release of Final Fantasy XIII in December. (Yes, that’s Final Fantasy thirteen – you can see how popular this series is.)

So, I submitted a counter-notification to around 11pm EDT Sunday, and almost exactly 48 hours later at 11pm on Tuesday, I received the following message from YouTube:

Dear Patrick,

Thank you for your counter-notification. It has been forwarded to the party that sent the takedown notification. If we receive no response, your material will be restored between 10 and 14 business days from today.


The YouTube Team

What this means in short is that Square Enix has 14 days to file a lawsuit against me, and if they don’t YouTube will restore my video. The ball is now in Square Enix’s court, so we’ll see what happens with that.


1. Bad move for Square Enix

Now there are several things that are interesting about this situation. The first is that Sqaure Enix would go after YouTube videos at all, which is an incredibly stupid business decision. The Final Fantasy series is not only the best selling anime video game franchise in history, but THE most popular source for AMVs, with a search for ” ‘final fantasy’ amv” resulting in 122,000 hits on YouTube. Over 8,000 Final Fantasy AMVs are hosted at Final Fantasy fans love the series, and like true digital natives they like to express that love by making tribute videos–taking clips from the various Final Fantasy games and movies and setting them to their favorite songs. Many people then watch these videos and discover Final Fantasy for the first time, then go out and buy the games. Thus, AMVs serve as free advertising for the series, bringing in new fans and new sales for Square Enix.

While I don’t necessarily think Square Enix intended to go after AMVs by opting into the YouTube filtering system (I think they’re probably trying to catch people uploading FFXIII trailers or full scenes of Advent Children Complete), they must have known that YouTube’s filter’s would catch AMVs as well. A quick glance at’s forums revealed I am not the only person who has had FF AMVs blocked, and some people have had their accounts deleted because of it. Taking advantage of YouTube’s filters therefore amounts to a declaration of war on Square Enix’s most loyal fans–the ones who love Final Fantasy so much that they take the time to make music videos in honor of it. This is a new low for Square Enix, which is already notoriously overprotective of its intellectual property. What’s more, it runs against the entire anime culture on which the FF series depends for its popularity in the first place. If they continue to block AMVs in this manner, they risk alienating their fan base, and that is a stupid business decision no matter what way you look at it.

2. DMCA Abuse

The second interesting thing about this situation is the manner in which it occurred, leading me to think there is a strong legal argument that Square Enix is abusing the DMCA takedown process by making bad-faith copyright claims. Specifically the timing of the notices and the fact that the DMCA takedown notice came less than five minutes after I disputed the initial automated filter identification.

One of the things the DMCA requires copyright owners to include in a takedown notice is, “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”17 U.S.C. § 512(c)(3)(A)(v).

A federal district court in California recently held in Lenz v. Universal that this provision of the DMCA “requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice” and that this requires the copyright holder “to form a subjective good faith belief that the ‘particular use is not a fair use’ before sending the takedown notice.

Now, the timing in this situation is suspicious, because my video was re-blocked by a takedown notice only five minutes after it was unblocked when I disputed the automatic filter. This leads me to believe that the takedown notice was sent by some sort of automated system which automatically responded to my dispute of the filter by sending a formal takedown notice. That is unless Square Enix had lawyers working at their American headquarters in California at 6:20 pm PDT on a Sunday evening capable of firing off takedown notices less than five minutes after being notified of a dispute. (I’m assume the takedown notice did not come from their main headquarters in Japan). This means that the takedown notice was likely sent by a computer with no human intervention, and unless I’m seriously mistaken as to some legal precedent I haven’t heard of, a computer cannot formulate a good faith belief about anything, let alone whether a use qualifies as fair use or not.

It would thus appear Square Enix did not fulfill their legal duties to make an initial review of potentially infringing material and to form a good faith belief that it was not fair use. So if this ever did come to a lawsuit, they would be wide open to a counterclaim of sending a false takedown notice in bad faith and abusing the DMCA takedown process. Like I said, interesting…

UPDATE 10/27/09: VICTORY!!!

Last Friday night, October 23, I received the following message from YouTube:

Hi there,

In accordance with the Digital Millennium Copyright Act, we’ve completed processing your counter-notification regarding your video:

This content has been restored and your account will not be penalized.


The YouTube Team

My video is now back up and running. Now if only other AMV makers whose videos were falsely blocked by Square Enix would fight back as I did.

Posted in Copyright, Law, Technology Law | Tagged: , , , , , , , , , , | 9 Comments »

Why Conservatives Should Support Net Neutrality

Posted by darklordofdebate on September 23, 2009

With the FCC’s recent announcement that they will turn their broad principles of network neutrality into specific rules, I thought I would post about one of my long standing pet peeves–the fact that most conservatives don’t support this concept. I first became passionate about the issue of net neutrality in the spring of my freshman year in college (2006), when I went on a lobbying trip to DC with our College Republican’s group. We were working with the libertarian advocacy group FreedomWorks, and while I agreed with most of the things they had us advocating, I was shocked and disappointed to find we were supposed to lobby AGAINST a net neutrality bill then before Congress. At that point I had only a cursory understanding of the issue, but I was surprised that they would advocate against enforcing the basic openness and platform neutrality that the Internet is built on. When I asked one of FreedomWork’s employee’s about it, I was shocked to hear him rhapsodize about how wonderful it would be if Internet Service Providers (ISPs) could divide the Internet into “channels” and offer Internet service in “packages” of available websites like cable TV! After all, he said, the ISPs owned the networks, so they should be free to do whatever they want with them.

It was then I realized that a lot of conservatives simply don’t get what the network neutrality debate is about, and how allowing that man’s “vision” for the future of the Internet to come to pass would completely destroy everything that makes the Internet what it is. So this post will be dedicated to explaining network neutrality in terms my fellow conservatives can understand, specifically the key conservative values of limited government, individual freedom, competition, checks and balances, and property rights.

Limited Government

Perhaps the central idea of American conservatism is the concept of limited government. Every conservative can tell you that big government = bad, and explain at length the mechanisms the Founders built into our Constitution to limit the power of the federal government. But do they ever ask why the Founder’s wanted to limit the government’s power? I’ll give you a hint. The key word in that question is not government, but, power. The Founders advocated limited government not because government was inherently evil, but because they feared the centralization of power in a relatively small body of people. And it’s my contention that this is what conservatives should fear today–not “big government” but “centralized power” in any form. That should be especially true of “coercive power,” the ability to compel obedience by force.

It used to be that, as libertarians love to say, government had a monopoly on coercive power. That is no longer the case. In the modern world, technology has given large corporations a great deal of coercive power–more than many governments ever had in the past. This power comes not through the threat of prison if you disobey them (though in many cases the law gives them that power as well, though indirectly), but through technology that can control exactly what we can or cannot do, even with our own property. And unlike government laws, rules that are enforced by technology enforce absolute compliance, with no option to disobey because technology makes it impossible. While government laws say, “you shall not,” the laws of technology say, “you cannot.” This is what Lawrence Lessig calls “architectures of control,” and it is this power that modern technology corporations wield over their customers. It is that kind of power which MUST BE LIMITED if we are to maintain a free society.

Individual Freedom

Nowhere is the power of corporations to restrict individual freedom more apparent than with ISPs, who control our access to that great engine of culture and commerce we know as the Internet. It’s simply a fact of life in modern society that you must have Internet access. Without it, your quality of life becomes severely diminished and you are incapable of doing many things essential to everyday life.

Yet your ISP, if it chooses to do so, is capable of exercising tremendous power over your ability to access this crucial resource. If it wants to, it can block websites, degrade service, or give preference to some websites and restrict access to others. In short, there is no end to the amount of arbitrary ways your ISP could interfere with your free use of the Internet if it wanted to–and believe me, ISPs want to. The possible new revenue streams from interfering with their customers’ free access to the Internet and forcing either the customers or third parties to pay for the freedoms we currently enjoy without paying extra are endless. Just think about how much Borders would pay your ISP to only allow you to access their site and not Amazon, or how much Ebay would pay so you couldn’t access Craigslist. Without network neutrality laws, all of this is legal. The only thing that has prevented these things from happening on a large scale already is social pressure from neutrality advocates.


Now at this point, a good conservative will say, “what about competition?” Surely that will keep these things from happening. To which I reply, “what competition?” Broadband Internet is for the most part a natural monopoly. Since it would be impractical to have a dozen different companies running cables to your house, local governments grant monopolies to certain companies to provide Internet service.

In most places in the US, this results in a duopoly between the government-granted cable company monopoly and the government-granted phone company monopoly.  There is some competition between the two, but typically not much, which is why US broadband growth has effectively stagnated and the US is currently ranked something like 30th or 40th in broadband penetration. And if both Internet providers in a given area had sufficient economic incentive to restrict their customer’s access to the Internet, they would both do it. The consumer would thus be stuck with severely restricted Internet limited only to their ISP’s “preferred partners.” The only “competition” would be that Cox allows you to access CNN while Verizon allows Fox News.

Check’s and Balances

At this point, I hope a true conservative would see that we cannot allow anyone, be they government or private corporations, to exercise this kind of power. The Founding Fathers established a system of checks and balances to prevent any one branch of the government from becoming too powerful. In this day and age, when corporations can also exercise tremendous power over individual citizens, we need checks and balances to hold them accountable as well, and the government is the best suited entity to do it.

Many people object that net neutrality would open the door to government regulation of the Internet. Well I’ve got news for you. The government already regulates the Internet! Local governments grant monopolies to broadband providers. Various federal agencies enforce standards for electronics related to the Internet and regulate online commerce. And the FBI enforces laws against distributing child pornography on the Internet, which I think all but the most die-hard libertarians would agree is a good thing. And don’t even get me started on how government laws about patents and copyrights regulate the Internet. The truth is, the government will always regulate the Internet. The only questions are how much and whether it will do so for good or for evil.

The argument about net neutrality setting off a slippery slope of government regulation is simply a straw man. Net neutrality is not about regulating the Internet anymore than current laws already do. It’s simply about laying down ground rules that preserve the open nature of the Internet that all the innovation that has taken place online up to this point relies on. As the FCC chairman recently said, it’s merely about enshrining in law the basic “rules of the road” which already implicitly exist. Net neutrality is about preserving competition, not destroying it.

Property Rights

The final conservative argument against net neutrality I will address is that of property rights. This argument basically goes, “Since ISP’s own the pipes, they should be allowed to control what flows over them.” On it’s face, it seems like a common-sense argument. Since ISPs do own the physical infrastructure of the Internet, shouldn’t they be able to control how it is used? Maybe. But the Internet is much more than the vast array of routers, hubs, fiber optic cables, data centers, and servers that form its physical backbone. In reality, the Internet is a virtual world, an engine of commerce, society, and culture that brings people together from every part of the planet and is far greater than the mere sum of its parts. It is the single greatest machine ever built by mankind–one that spans the entire planet and abolishes the limitations of the physical world.

People speak of “cyberspace” and “realspace” as if they are two completely separate wolds, which, though closely linked, have completely separate existences. In a way that’s true. Because even though it is dependent on its physical infrastructure, the Internet has taken on an existence of its own which transcends its physical parts. This virtual wold is a true commons, in that no single entity can claim ownership of it and anyone is allowed to access any part of it they wish. Different people own small parts of it, but no one actually owns all of it, and thus no one can completely control it.

Based on this, what right does any individual ISP have to say that because they own the physical infrastructure which gives a certain number of people access to this virtual world, they have the power to control what parts of it people see or what they can do there? That would be to claim ownership over something they have no right to. Gatekeepers to this world have the right to do only one thing–let people in or keep them out. Once they are in, they have no right to say what you can do inside of it anymore than the airline I fly on to Chicago has the authority to tell me what I can do in Chicago. They are just the conduit, nothing more.

ISP’s thus have a right to charge you in exchange for giving you access to the Internet and to manage their networks in a way to insure fair access for all. But to attempt to interfere with the basic nature of cyberspace itself and their users’ experience there is utterly beyond their moral rights to control their property, and becomes a unjustifed interference with individual freedom. And just as laws in other areas prevent people from infringing on the rights of others, so must laws protect the rights of Internet users from unjust interference by their ISPs.

That is the reason conservatives should support network neutrality laws, and why I applaud the FCC for its decision to enact formal rules enforcing it.

Posted in Law, Politics, Technology, Technology Law | Tagged: , , , , , , , | 9 Comments »

Are Anime Music Videos Fair Use?

Posted by darklordofdebate on June 19, 2009

Anyone who knows me probably knows I like studying issues related to copyright law–a fascination driven by the fact that as a child of the Net Generation, I have grown up immersed in what Lawrence Lessig calls the “read-write” culture fostered by digital technology, where virtually any action I take online raises potential copyright implications.

Nowhere is this true than the hobby I have had since high school of creating “anime music videos” or AMVs (music videos setting footage from anime shows and video games to popular songs) and posting them on websites such as YouTube and And it’s not just me; there are tens of thousands of these videos posted online and they have taken on a life of their own as an art form in their own right, with a whole subculture of AMV editors with contests, awards, and websites dedicated to them.

Yet despite their popularity, I am astonished at the lack of articles analyzing where these videos stand in relation to copyright law. Most articles I have been able to find on the subject simply assume they are copyright infringement, in which case American copyright laws have essentially rendered this entire art form presumptively illegal. However, I am not convinced of this, and I think a solid case could be made that AMVs fall firmly under the doctrine of “fair use” in US copyright law. After my own experiences with copyright run-ins related to my AMVs (and subsequent victories), I thought I’d post a brief analysis of why I think there’s a good case to be made for AMVs as fair use.

As audio/visual works, there are two separate components of AMVs that raise potential copyright concerns and must be analyzed separately to determine if they constitute fair use–namely the video and audio tracks.

Video Track

AMVs typically take ripped footage from anime movies, TV shows, and video games and re-edit them using brief clips no more than a couple seconds in length each set to music, telling a new story by juxtaposing video clips with the beat and lyrics of the song that emphasize different aspects of the original plot. Because this heavy re-editing is so obviously transformative, there is a very strong case to be made that the video portion of AMVs constitutes fair use. Running down the four criteria for fair use in US copyright law, we get the following:

1. The Purpose and Character of the Use

a. Non-commercial — Non-commercial works are much more likely to be fair use than commercial works for profit. Anime music videos are purely non-commercial works created for fun and entertainment and not personal or financial gain.

b. Transformative — The more a work changes and adds to the original rather than merely copying it verbatim, the more likely the use is fair. The standard for determining whether something is “transformative” rather than merely “derivative” is whether it “merely supersedes the objects of the original creation or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” (Campbell v. Acuff-Rose Music). At least in regards to the video track, AMVs so heavily modify the original source footage by clipping, reordering, and overlaying special effects as to make it an entirely new creation. While the use is certainly “derivative,” re-editing plus the new meaning imparted by the particular scenes selected and the music makes AMVs highly transformative, weighing significantly in favor of them being fair use.

2. Nature of the Copyrighted Work

Under copyright law, published materials are more likely to allow fair use than non-published works, and factual works are more likely than artistic works. In this case, the original copyrighted material (anime footage) is published (counting in favor of fair use) artistic work (counting against fair use). However, this factor is the least significant of the four, and can be outweighed by the other three.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Generally, the less of a copyrighted work that is used in relation to the whole the more likely it is to be fair use. In the case of AMVs, only 3-5 minutes of footage are typically used, consisting of 1 or 2 second clips, often out of hours of available source footage. While these clips may often contain the “heart” of the original work (the most significant scenes of the original anime), the minuscule amount of footage used combined with the brief duration of clips weigh significantly in favor of fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work

This is often the most important prong of the fair use test, and together with the first prong is the one most strongly in favor of AMVs as fair use. In the case of non-commercial works, the burden of proof is on the copyright owner to prove harm to the market or value of the work (Sony Corp. v. Universal City Studios). In the case of AMVs, the small amount of footage used, the reordering of brief clips, and the absence of the original audio track makes it almost impossible for an AMV to be a substitute for the original work (i.e. nobody would watch the AMV instead of the original work). There is also no market for licensing anime clips for use in amateur music videos. Thus AMVs would be highly unlikely to have a negative impact on the market for the original work. In fact, they are more likely to have a positive impact on sales of the original, as they would increase interest in the original work and drive increased sales, effectively acting as a free promotion for the source anime. This factor also weighs heavily in favor of fair use.


Because the video track of AMVs is non-commercial, highly transformative, uses only a small portion of the original, and has no negative impact on the market for the original, there is a very strong case that the video portion of AMVs constitutes fair use.

Two notes, however. First, in cases where an AMV creator  had to break the copy protection on a DVD to obtain the source footage, that would be illegal as they violated the anti-circumvention provision of the DMCA, which prohibits any circumvention of copy protection regardless of whether or not the use is fair. Second, because AMV creators are usually their most avid fans and they wish to avoid upsetting them, anime creators are highly unlikely to ever mount legal challenges against AMVs. Thus the video portion of an AMV will likely never be the subject of copyright action. The most likely threat comes from the owners of the copyright for the audio track, to which I now turn.

Audio Track

Since AMVs typically use popular songs by high profile artists signed under major record labels (an overall much more litigation-happy bunch than anime creators), it is because of the audio track that AMV creators are most likely to experience copyright problems. Wind-up Records (the label for Evanesence, Seether, and Creed) has already issued take down notices barring AMVs using their songs from, and as I mentioned in my last post, I myself have run up against Warner Music’s YouTube embargo with my own AMVs. Unfortunately, the audio portion of AMVs also has the weakest case for fair use, though I believe a good case can still be made that they are indeed fair use.

1. The Purpose and Character of the Use

a. Non-commercial — Once again, AMVs are completely non-commercial works which makes them much more likely to be fair use. While they are often posted on commercial sites such as YouTube, that has no bearing on whether AMVS themselves are fair use or not. Because of this I find it highly ironic that YouTube has attempted to work out licensing agreements with music labels to allow users to use their music in user-generated videos. Under the DMCA safe harbor provision, the responsibility to ensure content is non-infringing is entirely that of the user that uploaded the videos, not YouTube. Thus whether or not sites like YouTube have a licensing agreement with labels such as Warner has no bearing on whether the videos are infringing or not.

b. Transformative — It is much less clear that AMVs are transformative in relation to the music source than the video source. Since they usually use a whole song without editing or altering it, they clearly don’t transform the song in the sense that they make it into something different as with the video track. However, I think there is still a case to be made that AMVs are transformative in relation to the song used in “altering the original with new expression, meaning, or message.” Overlaying the song with poignant video images which are often used to translate the lyrics literally on screen or otherwise highlight certain things about the song clearly adds a new layer of meaning and expression to the song. The video and music are combined to create an entirely new message which is much greater than the sum of its parts. The music reflects on the video and the video reflects on the music, imparting new significance to both. It is thus a qualitative transformation rather than a quantitative one. The viewing experience of watching an AMV is qualitatively different than either watching the anime by itself or listening to the song by itself, and thus AMVs could still be considered transformative and likely fair use.

2. Nature of the Copyrighted Work

As with the video, the source songs in AMVs are published artistic works. The fact that they’re published (assuming you don’t use a pre-release leak or something) is slightly in favor of fair use, while the fact that they’re artistic rather than factual works is slightly against fair use. Overall, this prong isn’t very significant either way.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This prong is slightly problematic, since an entire copyrighted song is used. This would tend to weigh against fair use. However, some cases where an entire work was copied have nevertheless been held to be fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” In this case it could be argued that the entire song is needed, since the whole point of an AMV is for the song to shape the video and for the video to illustrate the song. Using any less than the entire song would make for an incomplete video and would reduce the power of the video. If the audio in the video is encoded at a significantly lower quality than CD quality audio, you could also argue this point qualitatively, since the song in the video is too low quality to substitute for the original. Nevertheless, this argument is still fairly weak and it would be a better strategy to argue this prong is outweighed by the other prongs.

4. The effect of the use upon the potential market for or value of the copyrighted work

This is where the strongest case for usage of the song being fair use can be made. Once again, in non-commercial cases, the burden of proof is on the copyright holder to demonstrate a negative effect on the market for the original work. There are two possible ways they could show this—the effect on sales of the original song and the impact on a possible market for licensing the song for audiovisual synchronization:

a. Effect on the market for the original song: Copyright holders could argue that AMVs could serve as a substitute for buying the original song if people merely listen to the song on YouTube or rip the audio track from the video and save it to their computer instead of buying the song. While both of these things are certainly possible, it would be difficult for the copyright holder to prove an actual negative impact on sales. Those who are content to merely listen to the song on YouTube would not have been likely to buy the song anyway, while relatively few people possess the technical knowledge to rip the audio from a video and use that in place of buying the song. Those that do would most likely consider the audio rip of inferior quality to purchasing the song (or merely illegally downloading it a different way), and would thus not likely consider it worth the trouble. Both of these factors also most likely would be outweighed by the positive effect the video would have on the market for the original song by giving the artist additional exposure and free promotion, motivating people who otherwise might not have heard the song to buy the artist’s work.

b. Effect on a possible licensing market: In large-scale commercial scenarios, there is an established market for audio visual synchronization rights, where musical artists sell the rights to filmmakers to “synchronize” their music with video footage such as in films or television commercials. However, there is at present no market for licensing tracks to individual hobbyists wanting to create amateur non-commercial music videos for fun. Indeed, if such an individual tried to license a song for an AMV, they would most likely find themselves lost in a maze of legal red tape or simply ignored by music labels who wouldn’t take their request seriously. Even if they did, the labels would most likely insist on charging commercial-scale license fees on the level of several thousand dollars per use—an overwhelmingly cost prohibitive sum for amateur non-commercial use. Because a legitimate market for licensing songs for uses such as AMVs does not currently exist, there is therefore no potential for this use to have a negative effect on such a market. You cannot negatively impact that which does not exist.


While the case for the use of copyrighted music in the audio track of an AMV is not as clearly fair use as the use of anime footage in the video track, I think a strong case for fair use can be made here as well. The best strategy in this area would be to emphasize the non-commercial transformative nature of the use and the absence of any negative impact on the market for the original song. Indeed, AMVs often have a positive effect on song sales, since many people discover bands through watching AMVs they would not otherwise have heard of and in turn go and buy their music. Music videos can serve as valuable promotion for musical artists—something artists themselves recognize when they create their own music videos to promote their music. The transformative nature of AMVs plus their non-commercial character and absence of harm are thus strong indicators that they constitute fair use.

More resources about anime music videos and fair use:

Posted in Copyright, Law, Technology | Tagged: , , , , , , , , | 8 Comments »

It Pays to Know Your Rights Under Copyright Law

Posted by darklordofdebate on April 8, 2009

Today I realized I hadn’t been paying too much attention to marketing my YouTube channel of late. I had recently noticed that one of my anime music videos using the song “Hand of Sorrow” by the Dutch symphonic metal band Within Temptation had been getting a lot more views and comments lately. By far my most popular AMV on YouTube, it now has just over 80,000 views, which is pretty awesome. But it wasn’t until I looked at the view statistics using YouTube’s handy analytics tool, Insight, that I realized why it has experienced this sudden increase in traffic.

Here is a screenshot of a graph of the number of views my video has gotten over the last few months:

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

Within Temptation is licensed in the US under RoadRunner Records–a subsidiary of Warner Music Group. You’ll notice a huge jump in views of my video beginning around January 5th, where my video went from averaging around 100 views a day to around 400. This just happens to coincide with when Warner had a licensing fallout with YouTube and demanded that YouTube block all videos using songs it owned the rights to.

At the time, this caused a huge stink among YouTube users (though not as big as I wish), who beginning in late December and early January suddenly found their previously allowed content featuring WMG songs being blocked by YouTube’s copyright filters. This caused a huge problem with the same artist as my video above–Within Temptation, who in November had just held an innovative YouTube contest in which they provided users with behind the scenes concert footage and asked them to make a music video of the same song I used in my AMV. The winner, who had won a free trip to a concert in Amsterdam, now found his video yanked off YouTube, dispite it being done with the express approval of the band and being featured on the band’s website.

The result of all this was that everyone who uses YouTube is now mad at Warner, and the Electronic Frontier Foundation has been urging people whose videos are unjustly pulled from YouTube to fight it by disputing the automatic takedowns with fair use counterlclaims, and has even offered to defend those who do in court if necessary. The reason for my video’s sudden increase in popularity? I did precisely that.

Somtime between the last week of December and the first week of January, I received a notice from YouTube saying my video had been disabled because it had been identified as infringing on Warner’s copyright by YouTube’s automatic Content Identification System. Because this was one of my most popular videos, I wasn’t about to let them delete my video just because a computer had matched the song I used with one on Warner’s blocklist. And because I have spent the last four years acquiring a thorough knowledge of copyright law, I was pretty sure I could successfully defend my video as a fair use of Warner’s content.

So I immediatly disputed the copyright claim, citing the following reasons for why my video constituted fair use under US copyright law. It was (1) non-commerical and not for profit, (2) transformative in nature (combining music and video), (3) was of sufficiently low quality that it could not reasonably compete with the original work, and (4) could have no possible negative effect on the market for the original song, but would in fact promote the song and motivate people to buy it. My video was automatically restored after filing the dispute, and a couple months later a message appeared next to the video saying the dispute had been sucessful and the copyright claim had been removed.

However, as the statistics indicate, most other people apparantly didn’t do what I did. Before the Warner ban, there used to be numerous videos using that same song on YouTube, including several other Final Fantasy AMVs. Because I defended my rights under copyright law and other users didn’t, my video is now one of only a few videos using that song, and now appears at the top of the YouTube search list. The YouTube analytics also indicate that at the same time, the number of people who discovered my video through related videos fell dramatically, while the number who discovered it through YouTube searches rose dramatically. So I guess I have Warner to thank for removing all my competition so my video could increase in popularity. I guess draconian copyright enforcement has its place after all!

Posted in Copyright, Law, Technology | Tagged: , , , , , , , | 7 Comments »

Musings on the End of the World

Posted by darklordofdebate on March 5, 2009

I’ve discovered bi-weekly bus rides into DC are a great time for listening to audio books, so having recently finished Phillip Pullman’s His Dark Materials series, over the last couple weeks I’ve been listening to the City of Ember books by Jeanne Duprau, continuing with the theme of young-adult fantasy/adventure stories. I watched the movie of City of Ember the same week I watched Golden Compass for the first time, which put both high on my reading list (the movie adaptation of Ember was far better than Golden Compass though, since they didn’t butcher the plot near as much). While the Ember books didn’t have anywhere near the literary quality or philosophical depth of Dark Materials, they did combine two things which have always fascinated me–an underground city and a post-apocalyptic setting.

I’ve always loved caves and being underground (as evidenced by my penchant for exploring storm drains), and the idea of an underground city intrigues me. The scenes involving Zion were my favorite parts of the Matrix trillogy, and I absolutely can’t wait until they make the movie of The Silver Chair in the Narnia series so I can see how they visualize they underground city in that book. For the last few years I’ve also had a growing fascination with post-apocalyptic survival and dystopia stories. I love disaster movies like The Day After Tomorrow and the TV show Jericho, and books like 1984, Brave New World, the Giver, etc.

These types of stories are especially vivid for me, and I often wonder what it would be like to survive some kind of great disaster that causes a significant disruption to society, and wonder what life in such a world would be like. Literature provides different answers, from the rise of monolithic totalitarian states like in 1984 to a new dark age as in the Ember books.

This last idea I find particularly intriguing. The Ember books take place approximately in the 2340’s, after a combination of nuclear war, disease, and famine decimated Earth’s population around the year 2100. Needless to say, it’s a very different take on the 24th century than Star Trek! Humanity never really recovered from the disaster, and society is reduced to a number of small settlements and villages with no more than a few hundred people, which have reverted to a largely pre-industrial civilization–albeit with remnants of the old civilization scattered about and re-purposed for new uses. There’s no electricity, no plumbing, and no gasoline or motorized vehicles (they rip the engines out of pickup trucks and tow them with oxen). People live in thatched earth huts, use candles for light, and survive on subsistence level farming. Virtually all knowledge of how to make or use present-day technology has been lost, and current society has been mythologized as a lost golden age.

This idea intrigues me, and I often wonder if such a thing is possible. Could all our knowledge and technology really be lost? Is it possible for a civilization as advanced as ours to completely disappear? From history I know that all nations and civilizations have ultimately ended, and yet today humanity seems to have advanced so far technologically and become so globalized socially that it would be impossible for that civilization to collapse. And can a nation as powerful and advanced as the United States really fall? What would such a fall look like? What would it take for America to actually cease to exist? And what kind of world would follow if it did?

Yet as impossible as it seems, there are other things about our modern world that just seem untenable in the long-term. Can technology really continue advancing at the incredible pace it has for the last 200 years? What are the limits of science and technology? For thousands of years, mankind lived essentially the same, and it’s only during the last few centuries that the kind of technological progress has taken place that created the modern world as we know it. Will that progress continue indefinitely or will we one day take it too far and bring about a calamity that erases all the progress we’ve made?

Then I read articles talking predictions for future biotechnology–where neural interfaces will merge man and machine and where regenerative medicine will make man essentially immortal. And I wonder, how much longer will God allow this to continue? If God smacked man down when he got too arrogant at the tower of Babel, how much more are we setting ourselves up for a divine smackdown today, with skyscrapers reaching thousands of feet taller than Babel ever did and with people claiming they can make man into gods by merging our minds with computers? Even if that doesn’t happen, it seems sooner or later man must pay a price for all his technology. Even if not through environmental disasters like global warming (which I still doubt is even real), can we continue using energy resources at the rate we have for the last century and expect to still be able to power our advanced technology 500 years from now? Perhaps Christ will come back before then and we won’t need to worry about it, but what if he waits thousands of years? Can humans continue living the way we do and with all the potential for self-destruction that exists today?

I think one reason apocalyptic fiction appeals to me is that it expresses a nagging feeling I often have that perhaps this world will end during my lifetime–that maybe I will experience a catastrophe of such magnitude that it will bring an end to America, or even modern civilization itself. There are so many things wrong with the world–economic collapses, terrorism, the possibility of nuclear war–that I wonder if it’s not inevitable that something will happen that brings it all to an end. Oh I know the human race isn’t going die out–God would never let that happen–but He never promised to preserve this particular civilization or this specific country.

I remember a few months ago reading an article where a Russian intelligence expert predicted the United States will collapse and break up in the next few years. While the guy obviously had a vested interest (he seemed a bit too happy at the idea of Russia conquering Alaska), and however much we may mock his idea as preposterous, I must say I sometimes wonder if he might be right. I think the current recession (depression?) has demonstrated that capitalist economies are inherently unstable and subject to total collapse at any time. And government controlled economies are even worse–which is why Obama’s so-called stimulus plan will do absolutely nothing and will probably make things even worse. America is weaker now that it has been in a long time, and if a rogue nation like Iran decided to take advantage of America’s weakness and light off a few nukes in major American cities, I wonder if our country could really hold together or if it would collapse into anarchy as portrayed in the TV show Jericho.

These thoughts are especially vivid on my weekly bus rides into Washington DC. As I sit staring at the magnificent buildings all around me–with their gleaming white facades of neoclassical columns and Romanesque engravings that practically scream of permanence, majesty, and power–I wonder how much longer it will all really last. What if I woke up tomorrow and Washington was gone? What if I was one of the last people to see that beautiful city, and all that remains for future generations is a distant memory of a time when America was great and people lived in comfort and luxury, surrounded by machines with almost magical powers? What would I tell my children in those days? How would I describe these things to them, which would be as foreign as the idea of non-passengers being allowed on airport concourses is to the child born after 9-11? What if I, in the words of The Day After Tomorrow, have spent my entire life preparing for a future that no longer exists?

In the end, I am reminded how everything in this world is only transient and temporary. Nothing is fixed, nothing is permanent. And nothing should be taken for granted. For Christians, we may take comfort in the knowledge that this world is not our true home, and that our true citizenship belongs to the Kingdom of Heaven not earthly nations which rise and fall like the tide. No matter what the future holds, we may live secure in the knowledge of His sovereignty, knowing that all things work together for His glory. For me, I also resolve never to take my world for granted–to live the life I have been given to the fullest and treasure it as much as possible. I wish to see as much and learn as much as I can, so if this world ever does come to an end, it will still exist in my mind, and to me at least, can never truly be lost.

Posted in Literature, Personal Reflections, Technology | Tagged: , , , , , , , , , , , , , , , , , , | 2 Comments »

His Dark Materials – Book Review

Posted by darklordofdebate on February 16, 2009

Over the last week I finally Phillip Pullman’s famous His Dark Materials trilogy. I’d been wanting to read this books since the movie of the Golden Compass came out last year and I read all the reviews about how controversial the series was. After I finally got around to watching the movie a couple weeks ago, I decided to get the trilogy on audio book so I could listen to it on the bus into DC for my internship. I thought it would make some nice reading material and I could do a little opposition research on the series that has been called the “anti-Narnia”–an atheistic fantasy tale which sets itself up as the dialectical antithesis to C.S. Lewis’s Chronicles of Narnia. Or that was the plan. In reality, I ended up falling in love with the story, and found it so enthralling I couldn’t stop until I had finished the entire trilogy.

I must say that I found Pullman’s trilogy to be incredibly well written and an absolutely captivating story. The characters were extremely engaging and believable, and even though I had already read the plot summaries on Wikipedia and knew they end up killing God in the end (or at least Pullman’s idea of him), I found myself increasingly sympathizing with them. Philosophically, the series was one of the deepest I’ve ever read, on the same level as 1984, Brave New World, or the Giver (see my previous post on Dystopias). The ending was absolutely heart breaking, probably the most poignant I’ve ever read. The scene was even more powerful because I was listening to the “enhanced” audio book–a hybrid audio book/dramatization with a full unabridged recording that also has a full cast of actors. The voice acting was superb, and hearing the utter despair and love torn anguish in Lyra’s voice when she and Will learn they must be parted after so recently discovering their nascent love, had me in tears for the rest of the evening.

No doubt Pullman has created an incredible epic, with literary quality equal to or perhaps even surpassing Narnia. (It even has a voyage to the land of the dead, which at least according to one of the only things I remember from my Western Lit class is an essential ingredient of a classical epic). And since this series is essentially an atheistic allegory with the declared intent to undermine Christianity in the same way Lewis’ tale bolsters it, I think it’s important for Christians to be familiar with it to combat its underlying philosophy.

For those who haven’t read His Dark Materials, the plot is so complex it’s nearly impossible to summarize. It is about two 12 year old kids (Will and Lyra) from different parallel worlds that unite to ultimately overthrow God himself. The book’s basic premise is a sort of sequel to an inversion of Milton’s Paradise Lost, where Satan was the real hero and the fall was actually a liberation. God on the other hand is seen not only as an imposter, but a cosmic kill-joy who seeks to suppress all human joy and pleasure. Pullman posits that Satan was right in Paradise Lost when he said God (called the Authority in the trilogy) was actually just the first angel who deceived the other angels into thinking he was the creator, setting up a tyrannical monarchy and exiling all the angels who resisted his rule.

By the time of Pullman’s story (roughly present day, which would have been the late 1990s when he wrote the books), the Authority is so aged and decrepit that he is no longer capable of ruling, but is locked away in a crystalline coffin (a sort of stasis chamber) while the Regent of Heaven, the Angel Metatron (sounds like something out of Transformers) rules in his stead. Toward the end of the last book (The Amber Spyglass), Will and Lyra stumble upon him and free him, whereupon he immediately dissolves into nothingness from his own frailty as soon as he is exposed to the air. As numerous Christian reviews have pointed out, this symbolizes the idea that the idea of God quickly dissolves when exposed to the illumination of human reason.

The real genius of Pullman’s trilogy however is the idea of “dust” which is known in our world as “dark matter.” This he says is a type of elementary particle which forms the essence of “spiritual” matter. Just like atoms with their component particles such as electrons, protons, etc. form the basis of physical matter, dust is the basis for spiritual matter–out of which all spiritual beings are formed and whose presence in material beings confers consciousness and sentience.

Unlike most atheists, Pullman does not deny the existence of the spiritual realm outright, but instead acknowledges its existence while claiming that it is fundamentally no different than the material world. And just as physical forces can be understood and harnessed by human science, so can spiritual ones. In fact, Pullman even goes so far as to mysticize atheism, since his universe (or rather, multiverse) is populated with mythological creatures such as harpies, and dust itself is portrayed as having a type of mystical consciousness which can be tapped into through various types of divination (most notably, Lyra’s alethiometer). Pullman also incorporates into his story the “many worlds” hypothesis of quantum physics, where there are an infinite number of parallel universes coexisting simultaneously.

It is through dust that Pullman makes his chief theological attack on Christianity. Dust is the source of all consciousness and forms the soul of all sentient beings. In Lyra’s world, people’s souls manifest themselves physically as various types of conscious animals (called daemons) which constantly remain with them and are an extension of their own personality, though apparently capable of a certain degree of independent thought and action. Children’s daemons can change into any form they wish, but become fixed (or “settled”) at puberty into a particular form which symbolizes their personality and role in society (lesser people have lesser animals for daemons). At the same time, Pullman reveals that daemons only started to become fixed at the Fall, when in a bizarre alternate version of Genesis 3 he describes how this was a direct effect of eating from the Tree of Knowledge of Good and Evil. (“And when the woman saw that the tree was … to be desired to reveal the true form of one’s daemon…”)

In the first book, The Golden Compass, the Magesterium of the Catholic Church (which basically rules the whole world since apparantly the Protestant Reformation never happened in Lyra’s world–John Calvin is the pope) determines that settled daemons are thus the physical manifestation of original sin, and try to prevent children from being affected by sin by severing the connection between them and their daemons before they become fixed–turning them into mindless zombies in the process. This implies that sin, rather than being a flaw, is actually a central part of human nature and is in fact what makes us capable of free thought in the first place.

It is also no accident that daemons settle (bringing on the full onset of original sin) at puberty, when children reach sexual maturity. For Pullman, as it seems with just about everyone else in the non-Christian world, everything ultimately comes down to sex. His central criticism of the Christian church is what he sees as its eternal war to stifle the joys of human sexuality–and indeed every other good pleasure life has to offer. (At one point, a missionary/assassin goes into a new world and immediately starts strategizing how to “evangelize” the creatures there by convincing them that the thing they love doing the most is sinful.) For Pullman, Adam and Eve’s actions were not a Fall but a coming of age in which they reached their full potential, and as such is to be celebrated not condemned.

In Pullman’s tale, Will and Lyra are prophesied to be the second Adam and Eve, who repeat the Fall by falling in love, which somehow restores harmony to the universe (as one commentator put it, “How exactly is two kids getting it on in the bushes supposed to save the world?”). There is nothing explicitly sexual about Will and Lyra’s “Fall,” in which they do nothing more than kiss. I would disagree with those who say the story implies they went further. Pullman himself has said for 12 year-olds, a kiss is more than sufficient–and remembering back to my own thoughts about love at that age I quite agree. However, there is a clear sensual aspect to it later when they touch each other’s daemons, against which there is a strong taboo and which is earlier established to be an intimate act. At most it is, in the words of another review, “sex by analogy” as it is a means of sensual expression that simply doesn’t exist in the real world.

However, Pullman’s message is clear. He believes Christianity has set itself against human sexuality, which it has sought to suppress from the very beginning. In this he expresses what I think is probably THE main reason many non-believers reject Christianity–because they disagree with its prinicples of sexual morality and want to be free to act as they like. Christianity is therefore evil because it seeks to deny them that pleassure. And it’s a view I can well understand. How many times have I myself been tempted to think this way and see God as just a cosmic kill-joy forcing me to deny my own desires and pleasures? It’s rather convicting, actually, to think how often I’m tempted to think exactly like Pullman, and I have to constantly remind myself that His ways are better, and that sin only looks better but in reality brings only pain.

And this I think is where Pullman ultimately fails to hit his mark. The entire trilogy is an explicit attack on Christianity (through lines such as “the Christian religion is a very powerful and convincing mistake”) and the Authority the characters defeat is explicitly identified with the Christian God. Yet the god Pullman describes is nothing like the God I know. Pullman’s god is an impostor, cruel, vindictive, weak, uncaring, and joyless. My God is kind, loving, merciful, true, and is the source of all true joy. He is the one that, rather than setting himself up as the tyrant of heaven, sacrificed his own Son to reconcile mankind to himself, so that we may experience his blessings forever.

Furthermore, Pullman describes Christianity as completely negative and oppressive, seeking to suppress or destroy every good thing in life. Yet he ignores the fact that Christianity has been the most powerful liberating force in Western history, providing the impetus for the development of modern science, the rise of democratic government, and the motivation for countless human rights causes from ending slavery to women’s rights.

Both in his portrayal of God and his refusal to acknowledge anything positive about the Christian religion, Pullman completely fails to make an accurate critique of my faith. Instead, he merely sets up one gigantic straw man argument (or in this case, straw God?) and proceeds to topple that, leaving  Christianity as I know it unscathed. Maybe Pullman did defeat a god in his books, but it wasn’t my God.

Finally however, this doesn’t mean we should completely disregard Pullman’s criticism. Pullman’s criticism is not without some merit, and one of the most important lessons Christians can take away from these books is to consider if perhaps he may sometimes be right. Indeed, his perspective could teach us valuable things about ourselves if we’re willing to listen. For example, the Christian church has often gone too far in its efforts to prevent impurity–from scarlet letters to the efforts of many people in my own background among Christian homeschoolers who attempt to convince people that all adolescent romantic relationships are sinful, and must therefore be avoided at all costs.

Having grown up in this kind of environment, I know well what it’s like to feel ashamed of even being attracted to someone, like I would be somehow be wronging a girl if I ever expressed interest in her. It’s a feeling I have struggled to shake off to this day, and it’s in cases like these where Christians have simply gone too far in their efforts to avoid falling into sin, such that they legalistically turn things into sins that are really not, and end up stifling perfectly legitimate joys and fulfilling relationships in the process. It’s a warning we would do well to heed, lest we become like the Magesterium in Pullman’s novel–going to such lengths to prevent people from falling that we end up destroying their very soul.

Posted in Literature, Personal Reflections | Tagged: , , , , , , , , , , , | 8 Comments »

The Injustice we call Copyright Law

Posted by darklordofdebate on December 16, 2008

It’s been way too long since I’ve posted on this blog, so I’m going to share a post I recently wrote on my favorite subject: copyright law. While I have held these opinions for a long time, this is the first time I have really attempted to write them out in a coherent manner. It is my contention that American copyright law is such a broken, outdated, immoral, and corrupt system that it has lost all moral legitimacy in the eyes of the public, and is desperately in need of reform. I will explain my reasons for this belief below.

First, we need to examine the reasons copyright exists and the primary argument in favor of tough copyright restrictions, namely that music “piracy” hurts artists and is killing the music industry. Regarding the impact of piracy on artists, most people act like this is a settled question, when in fact it is anything but that. Sure you have studies galore sponsored by Hollywood and the recording industry saying they’re losing billions to piracy, that it’s hurting artists, etc. And then you have other studies concluding that the effect of piracy on music sales is “not statistically distinguishable from zero.” Which one of these is right? I honestly don’t know. In some cases, the numbers cited are simply false, such as when the MPAA once admitted it blatantly lied about the figures in one of its studies and made the number up. Other studies are genuine though, and deserve to be evaluated fairly. Having studied the basics of social research design and read a great deal on this particular subject, I’ve concluded it really comes down to what assumptions a given study makes, which in turn depends on the biases of the researchers.

The music industry automatically assumes there is a direct 1:1 correlation between downloads and lost sales, so every song downloaded equals a lost sale. With that assumption, it’s little wonder they conclude the music industry is losing billions to piracy. Even then if you actually add up all the loses they claim you find it’s a miracle the music industry still exists at all, considering that the total loses their studies predict are greater than the entire gross revenues of the music industry in the last 10 years.

Other studies attempt to take into account effects such as downloads motivating future sales, helping people discover new artists, sampling and then buying, or the fact that many people who download would never have bought the music anyway if they could not get it for free. When you question the basic assumption of a 1:1 correlation, the impact on the music industry is significantly less. And while it’s true some of these studies are relatively old (2002) keep in mind that research studies like that take a long time to perform so newer studies are not yet available, and that 2002 was still during what many people consider the heyday of p2p when mass illegal downloading first really took off and when you would have seen the most dramatic affect on music sales if indeed there was one. From this, I think the only really safe thing we can conclude is that while there is some negative effect on music sales from downloading, it is almost certainly not a 1:1 correlation, and every download does not in fact equal a lost sale. Beyond that, the jury is still out.

Second, regarding the morality of music piracy, that also is a sticky question. People often try to simplify the debate by equating piracy with theft, which is simply an invalid comparison. There is a reason our laws classify piracy in a totally different category than actually theft, simply because when you make a copy of a digital file it has no effect on the original. The concept of theft inherently entails the idea that when one person steals something, the original owner no longer has it in his possession, which with intellectual property is obviously not true. When my actions do not deprive you of your property, it cannot be called theft. Thus I think it is wrong to classify copyright infringement in the same moral category of property theft.

At it’s core, copyright is an application of what economists call the Coase Theorem, which is designed to supply incentives for the creation of positive externalities (beneficial things which characterized by limitless supply and the near impossibly of restricting access to them). It does this by creating a regime of artificial property rights, granting the creator exclusive right to produce “copies” of his creative work, which in theory allows him to benefit from that work providing an incentive to create it. Modern copyright law is thus a very utilitarian policy. Rather than recognizing some kind of inherent right of mankind as physical property rights do, it is meant to achieve a policy objective of, in the words of the Constitution, promoting “the progress of science and the useful arts.” This makes copyright merely a legal convention with no inherent moral value in itslef. In terms of legal philosophy, violating copyright law would be considered mallum prohibitum (evil because it is prohibited) rather than mallum in se (evil in itself).

The question then becomes, is violating the law always immoral? The typical Christian answer is “yes” since God commands us to obey our authorities, but I’m not convinced of this. It is also a long held aspect of Christian legal philosophy that “an unjust law is no law at all” (Augustine), and after studying copyright law extensively over the last few years I have come to the conclusion that the entire system of American copyright law is so chaotic, confused, corrupt, and in many cases blatantly unjust that it has lost any claim to genuine moral legitimacy. This does NOT mean we should feel free to violate the law at will, just that it is not necessarily immoral to do so and in some cases could be morally justifiable.

Indeed, it is almost impossible to NOT violate copyright law on a daily if not hourly basis, with some studies concluding that the average person incurs thousands of dollars in copyright liabilities every day. Technically every time you view a website on the internet copyright law is invoked since the site’s content is temporarily copied to your hard drive, though it is doubtful that any court would actually declare this illegal. The RIAA has stated they consider it illegal to rip legally purchased CD’s to your own computer, which technically makes a copy of the music. The DMCA explicitly makes it illegal to break the copy protection on legally purchased digital songs, even for personal use. It is thus illegal for me to break the DRM on a song I purchased from Wall-Mart’s music service to allow it to be played on my iPod. Likewise it is illegal for me to break the copy protection on a DVD to rip it to my computer either for personal use or even things that would otherwise be protected fair use, such as using it for commentary or criticism. It is illegal for me to take video footage at debate tournament and post a music video of it using copyrighted songs to YouTube (which I frequently did while I was in NCFCA), even though that video has zero potential to impact the artist in any way. Documentary film makers spend thousands of dollars clearing the rights to every copyrighted image, video clip, or song in their film, even if it just appeared briefly in the background of a scene they filmed themselves; and if they don’t they risk hundreds of thousands of dollars in legal penalties.

In the related area of patent law, large successful corporations are frequently held hostage by tiny groups of “patent trolls” who can sue for millions merely because they own a patent on a vaguely similar idea to the company’s product. Even if it is totally bogus, these companies still have to spend thousands of dollars in legal fees to defend themselves, and usually settle out of court to avoid the legal hassle. A similar kind of extortion is seen with the RIAA music downloading lawsuits, which sues thousands of people every year based on extremely weak evidence, but still succeeds in extracting thousands of dollars in settlements from people who are unable to afford the high cost of defending themselves in court and unwilling to risk incurring penalties in excess of $100,000 if they fail to prove their innocence. Even when these cases do go to trial, the victims are given virtually no due process, but are presumed guilty unless proven innocent; and judges frequently award huge judgments to the recording industry based on murky legal principles and technology they admittedly do not understand.

All of these injustices are totally legitimate under modern American copyright law, and are in fact encouraged by it. While copyright started as a means to promote progress in art and science, today it is anything but that, and likely PREVENTS more creativity and innovation than it encourages. In principle it is a beautiful thing, but in practice it is nothing more than a corrupt regime of injustice and extortion, which in my mind deprives it of any real moral legitimacy.

However, even if I am wrong on this, I’ll leave you with a final thought. The whole issue of whether music piracy is morally right or wrong, whether it hurts artists or not, etc., is really irrelevant. This is because no matter what you think about things like illegal downloading, it is not going to go away. You cannot simply make the internet disappear. Digital technology and its effects on creative work are here to say. The only question is how we will respond to it. For the last 5 years, organizations like the RIAA have waged war on the youth of America for this thing they call “piracy.” Yet nothing they have done has had the slightest impact on illegal downloading or reduced it in the slightest. Recent studies estimate that approximately 80% of American youth still illegally download music. In short, the war was lost before it even begun. Attempts to deal with the problem of piracy have thus clearly failed. The only question is will we continue to criminalize an entire generation of kids who merely do what technology enables them to do, teaching them to live with the mindset of criminals and decreasing respect for the law as a whole; or will we take advantage of numerous proposals for alternate systems which still provide incentives for artists to create but do not make 80% of American kids into criminals?

Posted in Copyright, Law, Technology | Tagged: | 2 Comments »