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back to article UK's planned copyright landgrab will spark US litigation 'firestorm'

The UK faces a "firestorm" of international litigation if the government's copyright land-grab goes ahead, American artists and photographers have warned. In a letter to business minister Vince Cable seen by The Register, six groups representing US photographers and graphic artists say proposals in the Business and Enterprise …

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Can't wait

for the avalanche of writs from our US cousins is this retarded bit of ill thought out legislation makes it to law in its present form. Such a shame that the idiots proposing and supporting the Business and Enterprise Reform Bill will not be held personally liable for the costs when it all goes pear shaped.

Presumably, by that time, they'll have all been given lucrative directorships at the companies which most stand to benefit from the wholesale theft of other people's work? Utterly corrupt, the whole process and those mired in it.

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Re: Can't wait

My first thought is "how does the litigation come about"? The main reason is that if you are in the UK and following the local law and find an unattributed work and use it within this law then how do you get sued? Sure, they could sue in the US, but who gives a f*ck?

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Re: Can't wait

Indeed, I'm also curious how that would play out. I'd guess the US would go the usual route of Illegal wire taps, seizures and extraditions while promoting the death penalty.

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Re: Can't wait

If a law is in breach of international laws, I believe that a foreign individual may have recourse to sue the state, rather than just the company....

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Facepalm

Presumably then...

UK business owners are writing to Ed Quilty to seek guarantees of indemnification against any actions brought against them should this make its way into law.

If not, perhaps they should be.

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Stop

Surely...

... if it's going to cost the Daily Fail $150k penalty per go that's a good thing?

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Popcorn?

Anyone?

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Anonymous Coward

Maybe the Brits should do copies of Winnie-The-Pooh, and any merchandise involving "Princesses", and claim prior art for both :P

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as Brits we would struggle to copy winnie the pooh, since the character was created by the english author Alan Alexander Milne in the 1920's and was only licensed to disney in the early 60's by his wife after Milnes death in the 50's

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Anonymous Coward

You're a little slow today? ;) But impressively informed nonetheless :P

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Devil

How about

Royalites for Dickens novels ripped off by the US?

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Devil

Re: How about

Does anybody else think that this spawn of the devil avatar/icon actually looks like a rather attractive car with headlamps and a silvery windscreen?

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A civil servant with a hadron for surveillance is also seemingly responsible for lobbying the current coalition into resurrecting the mass spying program that Labour tried to implement and the Tories and Libdems campaigned against.

Something seriously needs to be done about these unelected unaccountable civil servants who defy democracy and the clear wishes of the electorate.

At the very least, we need to be able to get rid of them and they should not have the power that they apparently have.

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Sounds like you want to join the Open Rights Group then, rather than just blathering here then...

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Coat

"A civil servant with a hadron for surveillance..."

Definitely misguided - the things are hard enought to detect at all, let alone use for observation.

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Anonymous Coward

@bluest.one

You mean the "unelected unaccountable civil servants who defy democracy" by telling ministers *exactly* what they want to hear? Ever heard of the phrase pushing at an open door?

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Hadron?

Well, it definitely is on a collider course.

Adding sauce would be if the rest of the world scarfs up the orphaned works and escrows them to ckocblokc the planned, fasttracking legislation?

What are they smoking? Are they willing to share some?

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It's as if Britain decided it owned Disney, and let anybody pirate the company's DVDs while it keeps the proceeds.

---

Except of course we know who owns Disney's works.... The big Disney logo and copyright messages being the big giveaway.

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Anonymous Coward

Crop those off, and wahey!

Orphan works!

Oh, it appears this post is orphan as well.

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Oh the irony...

Nice to see the US returning to the wording of the original international treaties. Perhaps next they'll turn their attention to the original treaties on patents. I'm pretty sure there's wording in there about "prior art" and "obviousness" being disqualifiers for granting a patent.

But yeah, Cable's department needs a damn good kicking.

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Re: Oh the irony... When i saw "Cable", I thought

"CABAL", until I re-read the sentence....

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Pot - meet kettle

First - I am not a Lawyer. Though some of what follows was provided by a US IP lawyer in another place. Second I don't agree with thr UK Govt. approach in any way - but this from the US is a bit rich.

It's a bit apropos, as I've been watching a related discussion on copyright and the ability of a litigant in the US to pursue attorney costs and statutory damages if they're not registered under US copyright, but registered elsewhere. In essence, US Title 17 (the relevant statute) says, sure. You can open a case here. But even if you win, you can't get Attorney fees or statutory damages. And it doesn't matter if Berne says we have to give it to you - because we don't care. So nyah, nyah, nyah.

Here are the selections from Title 17:

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17 USC 104 - Subject matter of copyright: National origin

(c)

Effect of Berne Convention. No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.

*******************************

Here's the section on requirement of US registration to gather Attorney fees and statutory damages:

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17 USC 411 - Registration and infringement actions

(a)

Except for an action brought for a violation of the rights of the author under section 106A(a) [17 USC 106A(a)] (GS – my addition. This section appears to refer to works of art only), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

*******************************

There is supporting case law, where Berne Convention rights were specifically found to be non-valid. The case in question was "Elsevier V UnitedHealthGroup". The following was sent to a group of which I'm a member by a US Atttorney:

**********************************************************************

In *Elsevier v. UnitedHealthGroup*, Reed Elsevier, a foreign company whose copyrights are by and large not registered in the US, but are valid elsewhere with treat parties, argued that it was entitled to attorneys fees and statutory damages under 17 USC 412. United Health Group argued that 17 USC 412, which states:

"no award of statutory damages or of attorney's fees...shall be made for...any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."

The court held that notwithstanding the text of the Berne Convention' s. 412 contains no exception for foreign works, and therefore Elsevier, a foreign rights holder, was not eligible to seek statutory damages/attorney's fees.

It further held that the Berne Convention is not "self-executing," a legal term that means that if Congress doesn't write laws that are consistent with the treaty, the treaty itself cannot be used to determine the scope of your rights.

**********************************************************************

So in essence, the court said what the UK are saying. "Berne Convention? Huh? Say what? Oh, well. Tough."

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Anonymous Coward

Re: Pot - meet kettle

So, might the UK proposals be a way of persuading the US to comply with the Berne Convention?

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Re: Pot - meet kettle

That may indeed be a charitable way of interpreting the proposed action by the UK. However I have not as yet seen any indication that such is so.

I'd be equally interested in the outcome were someone to contact the US groups who have raised the issue of international laws and treaty requirements with the UK Govt. and ask if they intended to raise equal and matching threats with the US Govt. Somehow, and perhaps cynically, I think asking that question would be a waste of time.

Perhaps similar groups in the UK should threaten litigation 'firestorms' unless the US live up to it's Berne obligations and modify statutes and statute elements such as USC 17-104. I'm sure the US Congress could use a laugh right now.

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We've been here before: http://www.victorianweb.org/authors/dickens/pva/pva75.html

FYI: For Winnie-The-Pooh see - http://en.wikipedia.org/wiki/A._A._Milne

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The juiciest bit of that wikipedia article is: "The copyright on Pooh expires in 2026."

Mmm. I bet—

—that even now they're campaigning for copyright extension.

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@ Brewster's Angle Grinder

Of course they are. The fact is, nothing created after the formation of the Disney corporation will ever come out of copyright again as long as this vile company exists. And given its virtual monopoly of children's entertainment, it's no longer possible to boycott them or shield your kids from them any more. Disney, unfortunately, are here to stay, and that means the public domain is dead (or at least will never include anything written after the works of Verne or Wells.)

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Pint

Re: @ Brewster's Angle Grinder

Nothing written in the USA will ever come out of copyright. And of course it will only be published for three years and then back-catalogued. The size of their accessible catalogue of work has stalled.

The rest of us will continue to acquire public domain works at a constant rate.

Pass the popcorn someone.

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This should be a right laugh to watch when the writs start flying after govt. plc has stuck its snout in this particularly profitable trough.

My popcorn is ready........

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Unhappy

They gone dunnit again

Our gubbmint appears to be about to exceed their previous level of stupidity.

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In the Basement, on the BBC Rocky Horror Slab, SMARTR TV ProgramMING for Full Body and Mind Capture

"*The phrase "orphan work" can refer to any piece of copyrighted material that, for whatever reason, is missing information about who owns it. In theory, this covers work that deserves to be reused but its owner cannot be traced; in practice, it means just about every photograph or image on the internet, for example."

Now that is a fabulous arsenal of awesome weaponry for enlightened re-use to create different end positions/new beginnings with prime time provided information/digitally mastered future content freely delivered and paid for in flash cash stash electronic bank transfer so that many can benefit and share the prosperity flows from virtual contact and subsequent collective activity in HyperRadioProActive IT Fields of Surreal Administration ..... Post Modern Sees of Immaculate Grace .

And there you all were, probably thinking it is not possible and IT cannot do it. However, it is very easy to do with IT Command and Control in Global Communications Head Quarters ..... You know, the sort of crazy place with rows and rows of Green Rooms to explore and classify, rate and ratify for Virtual Field Operations and Deep MetaDataPacket Inspection of Core Lode Source and Driver Fuels.:-)

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FAIL

Wishing into existence

"intellectual property is, among many other things, a fundamental property right that can't be wished away."

Fundamental property rights don't need legislation to create them. They get laws to punish those who violate them, but the government doesn't create my right to this ham sandwich---I did when I bought it.

``Intellectual property rights'' are a snare and a delusion. The U.S. Constitution recognizes copyright as a government-granted monopony. The Statute of Anne created it out of thin air. Despite the unfortunate name, copyright isn't a right, it's a monopoly on copying. Remember, theft applies to things the thief takes away from the owner: ham sandwiches, cash, Maseratis, &c. When an infringer copies a photo, the creator still has it. Nothing has been taken.

Much as I sympathize with Mr. Orlowski's anger at the ``freetards'', he loses much of my sympathy when he tries to claim the other extreme is true.

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Re: Wishing into existence

So if I hack into your PC, copy the videos of you having sex with [insert favourite sex object here] and upload them to Usenet, you're perfectly fine with that because you still have the original files?

Or if by some miracle you happened to have the secret of eternal life on your hard drive, it makes no odds if it's copied because it's just bits and bytes?

Duh.

Anyone with at least a little working grey matter should be able to work out that the value of copyright isn't in the mechanical process of copying, but in its ability to control and benefit personally and professionally from access to the material that is copied.

Specifically, creative people do not create binary blobs. They create experiences (the arts) or practical insights, tools and solutions (science and engineering.)

A video of you poking your Westminster MP into a red snapper isn't just a random collection of binary information - it's a thing which has social, personal and perhaps (you'd be lucky...) commercial value. If someone copies it, *you* lose the benefit of that value, whatever it happens to be - even if it's just the value of being spared the social embarrassment of porking something you shouldn't. (Ask the recently former head of the CIA if you're not sure what that means.)

And... if you know anything about military history you'll know that the property rights you're so proud of creating really do exist because of government fiat, and not just because you want them to.

In war they're the first thing to go, and your famously independent ham sammich isn't much use to you if you have a hungry soldier billeted in your house and they want it more than you do.

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Anonymous Coward

@Terry Cloth

Actually property IS a legal concept and would be completely meaningless without the law.

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Re: Wishing into existence

"Nothing has been taken".

Sanctimonious exploitative bilge.

You could equally say we should not pay the man who digs a ditch, because he still has his arms and his shovel. What is stolen is the value that the photographer should have had for his work to make the photo, and needed to have in order to eat and make more photos.

I am sure you will say "what work? It only takes me a second to take a photo". Then you don't need other peoples' do you?

In one small respect I agree with you. Copyright should not be a property right for individual creators, it should be an inalienable civil right on the European model.

After 35 years as a pro photographer, on the web since 1996, I have closed my public website. All I ever get from it is people and companies stealing from it, and mostly using photos in ways I would never agree to at any price. Invariably they strip my details. Usually they claim it as their own copyright. I was happy to share whilst people were fair, but it's now like trying to live in a neighbourhood of rapacious muggers.

This idiot law just seeks to make theft legal. "Free" is what the voting public wants, and ibeing able to help themselves is certainly what the big publishers and aggregators want to fatten up their profit margins. The radical ant-copyright lobby and the monopolist corporates are the flip sides of the same coin. Both carelessly emasculate individual creators, as if there is an endless supply. We treat fish better than that.

Make your own photos, music, art, movies, books, software, news articles, Try living at the other end of your "nothing is taken" proposition. Tell us how you get on.

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(Written by Reg staff) Silver badge

Wishful thinking pt94

You've really confused yourself here. While you can quibble over semantics all day Terry (and you probably will), the fact is: international treaties recognise IP as a property right. A pseudo-property right perhaps, but "stuff" with the qualities of property. One of those qualities is exclusive use: "get off my stuff", "stop using my stuff".

If you want your country to opt-out of this international system, you have to take the consequences on the chin. Economic retaliation, litigation etc. And redefining the meaning of words, in international treaties, don't butter no parsnips.

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Anonymous Coward

Re: Wishing into existence

"Fundamental property rights don't need legislation to create them."

Utter bollocks. Nobody owns anything unless the law says so. The very concept of ownership only has meaning because the law exists. Without the law, it would just be a matter of who could get something and hold onto it. Read Hobbes.

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Re: Wishing into existence

Hacking into a computer, then copying and publishing the contents, violates much more than copyright. I'm not a lawyer, but have a strong suspicion that copyright applies in practice only to published works. It is quite a stretch to argue that material on my PC that I do not explicitly share has been "published". That governments create rights is, of course, a matter of opinion, but many or most would agree that one of the core functions of a government is to enforce rights, however created. If for no other reason, it is much more efficient than for everyone to have a private armory and security staff to do so; and in the case of "intellectual property" which has been created by fiat, there really is no other way. At least with physical property, there is something that has dimensions and mass to discuss.

What some of us consider a problem with IP is that over its history it has been extensively redefined in scope (patentability, for instance) and extent (copyright , for example). As I understand it copyright initially was 14 years with a possible renewal for another 14. It is far longer now, and it is not clear that the monopoly benefits society as a whole. It is not even obvious in detail how it benefits the actual creative human beings.

It is fairly clear that the patent thicket and resulting Apple/Motorola/Microsoft/etc lawsuits around cell phones do not involve much more than classic rent seeking, in which the participants are effectively petitioning the government, as the monopolist of the lawful use of force, to act to their benefit. The same is true for copyright. Whatever the outcome, it will not benefit consumers. One also might reasonably ask how a creator of books or pictures benefits from a monopoly that survives him or her by 50 to 70 years.

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Re: Wishing into existence

"Fundamental property rights don't need legislation to create them."

Utter bollocks. Nobody owns anything unless the law says so.

While it's true that in practice property rights exist through the state's monopoly on violence and the behaviors it enforces through that monopoly, whether rights exist prior to it (eg in a Hobbesian state of nature) is purely a metaphysical question. Some legal philosophers think they do ("endowed by their Creator with certain inalienable rights", for example). Others don't, or simply reject metaphysics altogether (as in the US Pragmatic tradition).

Since it's an untestable hypothesis, advocating either side in absolute terms (like calling the other "utter bollocks") is equally foolish. You don't think rights exist a priori; that's a perfectly sustainable position, but it's only supported by abstract foundational commitments that are nothing more than opinion.

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Anonymous Coward

"most orphan works are actually recent digital images that have been stripped of their attribution"

This appears to be bollocks, show us some evidence.

Anonymous because I work in an industry that has thousands of orphaned works of which NONE is a stripped digital copy, and which the public should have every RIGHT to access.

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There's a difference when it is a deliberate act...

>most orphan works are actually recent digital images that have been stripped of their attribution,<

Perhaps we should criminalise deliberately stripping attribution....the only possible reason to do that is to resell and make money without crediting or paying the author/photographer..

Even the DVD freetards and the music freetardss don't sink so low as remove the name of the originator...

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Anonymous Coward

"This appears to be bollocks, show us some evidence."

www.pinterest.com

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Anonymous Coward

The key word here is "most". You may work somewhere that has thousands of 'orphaned' sheet music scores / wax cylinders / books / plays / whatevers but the Internet has hundreds of millions of images, mostly illegally copied and no way to trace who originally uploaded them let alone who created them in the first place.

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Watch TV for a while, you'll find some

Sooner or later you'll see a YouTube video that isn't credited to the user, but instead is marked "YouTube", or even "Internet".

It's extremely common for the metadata to get stripped off online photos, which the various media outlets love to use.

In both cases, somebody has deliberately or accidentally "orphaned" the work by stripping the attribution and metadata.

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Perhaps you need to get out more.

Try Google Images. Pick any subject. I've done this and on my sample about half were orphans - no metadata, no contactable real person to pursue.

Even Flickr is pretty good. Mpst people there use pseudonyms you'll never deconstruct and many are unresponsive. Perfect.

Alternatively, just go to the BBC site and watch one of the most efficient orphan generators known to man. Crowdsourced images in one end by the thousand, anonymised out the other. By the time they've been nicked, blogged, tweeted a few times nobody will ever know who stole what from whom. and nobody gives a flying f*ck who the copyright owner was.

I've audited a sample of my own work. Google Search by Image is good for this. Stolen versions outnumbered legit 14:1. All of the stolen versions had metadata stripped, about 20% were passed off as someone else's copyright, just 4% had links to me or mentioned my name. Most of the thieves were insulated by pseudonyms and nicknames that I'd need a court order to get ID's. About a third were in jurisdictions that are out of reach.

The web is one vast photo orphaning machine.

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Anonymous Coward

@Copyright Action

Well put!

I've had run ins with the "me and mine now generation". A typical exchange is something like this:

"You used one of my images without permission and without crediting me. Please could you remove it."

"Sorry you don't like me taking your photos but you uploaded them online so they're free for everyone! Don't want your stuff copied, don't bother uploading it!"

Yeah, cheers mate, why don't you ****-off and die somewhere you thieving piece of scum! I don't make any money off my photos so the least you could do is make a frigging effort to put my name under the photo!

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Anonymous Coward

His law is not about the rights of public access, it is about allowing companies to steal "free stuff" and then charge for it!

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@Copyright Action

"The web is one vast photo orphaning machine."

I sympathise, but what should we do about it? Do you suggest that we turn the clock back, lock down the IP, and try and shut down the tens of thousands of illegal re-posters? Its an idea, but I just can't see it working, it would just be whack-a-mole requiring a lot of whacking resource, but not actually changing much (and being vastly unpopular).

Is there some credible compromise where work (even non-orphan) is free for private, non-profit making use, but where companies are specifically disallowed from using orphan works? There's a few loose ends, but I could see this being made broadly workable.

Almost the exact opposite of what's being proposed, but then we never believed they worked for us, did we?

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"All of the stolen versions had metadata stripped,"

Had the images been resized or otherwise modified? I'm not defending stripping of metadata, just wanting to point out that my habitual photo editor (and a fair number of others) does not understand metadata, discards it on loading and accordingly cannot save or otherwise preserve in on saving. It's great for stripping out EXIF rubbish and thumbnail chunks, but it is a pain when the metadata was GPS co-ords...

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Re: @Copyright Action

"Is there some credible compromise where work (even non-orphan) is free for private, non-profit making use, but where companies are specifically disallowed from using orphan works? There's a few loose ends, but I could see this being made broadly workable."

It doesn't work though, you end up with a situation where users are allowed to upload whatever they want without respect to copyright. Companies then set up websites where users can upload whatever they want (thus shifting liability onto the user who is immune by law under your system), advertise around this pilfered content and make a shedload of cash with no investment into IP of their own.

One solution is for the government to legislate (sensibly) and go after the main offenders. It's already possible to use software to automatically bar certain images, sounds and movies from being being uploaded. If the industry sees Google or the BBC getting slapped by the courts for deliberately turning a blind eye to copyright infringement the smaller players are less likely to continue down their current path. It might not stop the problem completely but it should at least cut down on the wholesale copyright infringement we have today.

The problem with this solution is that it'd probably require several large databases of registered IP for companies to check uploaded material against. This goes against my firm belief that copyright should be automatic and not require registration.

The only other solution I can think of is large fines for the deliberate stripping of metadata. This might make large corporations think twice if they believe there's a chance of being caught. It'd still require a lot of litigation by small content producers though and as we all know, intent is not always the easiest thing to prove.

All in all it's not a particularly satisfactory situation from the point of view of a content producer; we get shafted by the general public, we get shafted by large companies and we get shafted by bureaucrats at the IPO who are supposed to strike a fair balance between the right of the creator and the rights of the public at large but instead seem to be referencing the USSR for their current IP policy.

We could solve all this of course if companies and the general public just obeyed the law as it stands but I won't be holding my breath waiting for this to happen. Companies are making too much money from the status quo and the public have no love for copyright (thanks RIAA/MPAA!), usually muttering something about '70 years' whenever it's mentioned (as if anyone other than Disney and Cliff Richard sees royalties for that long).

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