On Twitter, @magiclovehose asks:

Something for the “give me something to write about” list: the legal ramifications of copyright and 3D printers?

The thing about 3D printers is that they directly challenge one of the assumptions upon which copyright law is predicated.

See, right now, in most countries you can’t copyright the design of a utilitarian item. Say I am IKEA and I design a chair. That chair can’t be copyrighted: it’s utilitarian. The point of the chair is to make many more chairs just like it for common use: the idea of the chair is not copyrightable. (The building instructions, on the other hand, can be. Which is a minor reason IKEA does things the way that they do.) However. Say I am not IKEA, but instead I am a humble woodworker. And say I design a chair, but I design it as a work of art: the back of the chair is a gorgeous woodcarving of Jesus and Muhammad Ali fighting aliens. Now it’s not just a simple chair: it’s a personal expression. Therefore, it now attracts copyright.

That’s how the law works for chairs – and other utilitarian items – right now. If you mass-produce it, it’s not copyrightable; it’s utilitarian. (You may be able to patent it, of course, but that’s a different kettle of intellectual property-fish.) But when 3D printing enters the scene, that turns this entire legal scheme on its ear, because 3D printing will eventually render everything mass-producible. I carve my Jesus/Ali/Aliens chair, and then somebody else 3D scans it and suddenly you can torrent the .cad file to make my chair in a 3D printer from half a dozen places on the net.

So what happens at this point? Have I lost copyright in my chair because it’s been mass-produced and therefore my chair has become utilitarian and a piece of non-singular design? Or have the people downloading the file and reproducing my chair in iChair 2015 infringed my copyright in the chair? The answer at this point is “ask again later” because I sure as hell don’t know: thanks to technology we’re once again approaching a problem that copyright systems never anticipated coming. Will iChair’s additional features allowing the user to make sure that design features of customized chairs don’t keep the chair from being used for its traditional “sitting in it” purpose strengthen the utilitarian argument? What if iChair lets you design chairs from scratch and autocorrects you to make sure the chair is viable and won’t fall apart, which essentially means that with enough market penetration no original design will be non-duplicable even without people copying it? (This is the “sooner or later someone else will make a Jesus/Ali/Aliens chair” argument.) Does mass production therefore destroy whatever copyright exists in industrial design, or does it mean that legislatures and/or judiciaries will find new sources of copyright that do not as yet exist?

Like I said: I don’t know. But suspecting that the answer will benefit whoever stands to massively profit from the new industrial design landscape when 3D printing comes around will probably not be entirely inaccurate.

PAD isn’t letting go:

Some people are claiming that Marvel and DC and other major publishers should embrace the concept of having anybody, anytime, do whatever the hell they want with the publishers’ property because the fans have decided that it’s going to be beneficial to the publishers.

You know, the “some people say” tactic was annoying when George Bush used it. It’s not less annoying when Peter David uses it. Outside of a few fanatic comment drive-bys, most of which are motivated more out of spite for PAD than anything else, I don’t see anybody actually arguing what PAD claims they’re arguing.

So, a few points.

1.) When John Byrne is on your side about anything, strongly consider the possibility that you are wrong about everything.

2.) Nobody serious is arguing that reading scans_daily was exactly analagous to flipping through comics in a comic book store from a legal standpoint. The point was introduced as metaphor, to explain that comics – rather uniquely as art forms go – work very well when you can check out an issue before you buy it, not least because of the cost associated with a comic book. (Seriously: $3.99 an issue now? I can finish most Big Two comics in less than ten minutes.)

3.) Similarly, nobody serious is suggesting that Marvel and DC just say “calloo callay, do what ye will with our property!” Even the scans_daily crowd were under the impression (incorrectly, but still) that what they were doing qualified as fair use since they were using the scans for the purpose of discussion and had set (ultimately insufficient, but still) rules to keep their use what they believed (erroneously) to be reasonable; this was not, at heart, a community founded on the belief that breaking the law and/or stealing is fun and good.

4.) That PAD chooses to engage these strawman arguments is just kind of sad. It reminds me of why I hated Bill Maher’s film Religulous so much: there are perfectly good arguments to be made against religion, but Maher didn’t engage serious religious philosophers, the ones who can knock you back on their ass with their thinking. No, he decided to debate a guy dressed up as Jesus in a religious theme park, because he felt it made him look smarter.

5.) I and the other people pointing this sort of thing out aren’t the assholes who sent PAD’s wide hate mail, so stop tarring us all with the same brush.

And finally:

These fans have judged, on the publishers’ behalf, how the publishers’ property should be disseminated and distributed and marketed. And if the publishers don’t agree with it, then they are somehow uncool or evil or, at the very least, not current with the 21st Century.

I really wish PAD would stop taking personal offense when people point out that the Big Two’s business model as regards publishing is outdated and in need of recognizing the distribution power of the Internet. It’s 2008 2009; music and movie and television have all found ways to use the net to distribute more efficiently. This isn’t controversial and pointing that out isn’t mockery – at least, not until Peter David decides to act like a chump about it, because that retroactively turns it into mockery.

Top comment: When you realize that Peter David is trying to become the next Harlan Ellison, things make a helluva lot more sense.

But what do I know? Ants aren’t allowed to condescend to eagles. – Mister Terrific

So the new Internet Nerd War is apparently between the Livejournal community that used to be scans_daily and Peter David.

Short version of events: a scans_daily poster posted half of the pages to the most recent issue of X-Factor, which PAD had told the entire internet not to spoil because he wanted the ending to be a surprise. PAD showed up on the community and apparently got someone telling him he sucked ass in response.¹ PAD told Marvel, and Marvel complained to Livejournal, and Livejournal (or their Abuse team, one or the other) suspended the community, possibly because of Photobucket complaining or something instead. (Personally, the idea that Photobucket would all of a sudden complain about s_d using it after, what, five years, seems unlikely to me, and it seems far more logical that Marvel said something to somebody. But if PAD says otherwise, I don’t see the point in calling him a liar.)

People have been asking me for my take on it, seeing as how this site exists primarily because I used to be on Livejournal before I was kicked off for copyright violations along the same lines (although with far less legal certainty about the merit of any said copyright violation charge).

Anyway. Basically at this point you have a goddamned avalanche of bad argument erupting out all over the place, both from scans_daily members and from PAD. The combined force of this stupid is so intense I almost expect Joss Whedon fans to spontaneously show up and tell everybody off for complaining about Dollhouse being a bag of crap and not waiting until episode six when Joss “really gets things going with an episode he wrote himself.” So here is my message to all involved.

Dear scans_daily members: Jesus Christ just shut the fuck up and stop throwing tantrums. This was going to happen sooner or later.

Your entire community – and remember, this comes from a former (haven’t really been to the community since I left LJ) and enthusiastic member – was predicated on copyright violation, and only existed thanks to the whim and good will of every comics company whose material you illegally reproduced. Yes, it may often have been in said companies’ best interests to let you illegally reproduce that work, but that in and of itself is not an argument for why you should get to keep violating copyright if they choose not to let you do that.

Also, do not start talking to me about fair use like you actually know what fair use is, because it’s pretty obvious almost none of you know jack shit about fair use.

If you did know anything about it, you’d know that amount of the work used is a vital component of determining fair use, and that traditionally the amount of work used before a use becomes unfair is fairly low. In Harper & Row v. Nation Enterprises, it was about 300 words of a 30,000-word Gerald Ford biography, which was found to be unfair because those 300 words – or one percent of the total work – contained too much of the vital core of the work.²

Now, consider that the scans_daily “posting limit” rule was half of any given issue of a comic.³ Gosh, do you think that half of the whole work is going to contain too much of the vital core of the work? Because I think that’s some pretty good odds right there. In practice, anything more than ten percent will generally set off alarms. Ten percent of a comic is two pages. I mention this for when the next scans_daily at whatever shitty LJ ripoff site gets nuked for exactly the same reason.⁴

Short version of above: s_d existed only with the implicit permission of the works’ owners, and you should have been able to figure that out going in. If you were deceived (intentionally or no) by people who told you that the s_d posting policies constituted fair use, that’s understandable – but they, and you, were wrong.

Also: your collective response to PAD’s complaints? Entirely grown up and not making you look like a bunch of spoiled children at all. No, really. The collective maturity being displayed on the Internet this weekend is impressing me no end. I especially like the re-occuring “Pompous Arrogant Dickweed” joke, because HEY THOSE ARE PETER DAVID’S INITIALS! The cleverness on the internet, it just never stops. Seriously, guys, I know something you liked and enjoyed was just taken away from you, but every time you open your mouths and act like you’re three, you just validate the senses of superiority of the people trying to shut you down.⁵

Dear PAD: A quote.

“My year-long goal is to try and triple sales on this book; putting up free scans of the entire issue so that thousands of fans can read it without having to pay a dime kneecaps that goal. It’s “wow, this issue is great, you should go out and buy it” vs. “wow, this issue is great, you should hit this link and read it for free.”

Ahem. From Paul O’Brien’s Marvel sales recaps at The Beat:

02/06 X-Factor #3 – 48,307 ( -8.3%)
03/06 X-Factor #4 – 48,183 ( -0.3%)
03/06 X-Factor #5 – 46,490 ( -3.5%)
04/06 X-Factor #6 – 45,220 ( -2.7%)
05/06 X-Factor #7 – 44,315 ( -2.0%)
06/06 X-Factor #8 – 76,150 (+71.8%) ["Civil War" crossover begins]
07/06 X-Factor #9 – 68,799 ( -9.7%) ["Civil War" crossover final issue]
08/06 X-Factor #10 – 44,603 (-35.2%)
09/06 X-Factor #11 – 43,431 ( -2.6%)
10/06 X-Factor #12 – 42,909 ( -1.2%)
11/06 X-Factor #13 – 42,844 ( -0.2%)
12/06 X-Factor #14 – 40,208 ( -6.2%)
01/07 X-Factor #15 – 38,693 ( -3.8%)
02/07 X-Factor #16 – 38,240 ( -1.2%)
03/07 X-Factor #17 – 38,067 ( -0.4%)
04/07 X-Factor #18 – 37,851 ( -0.6%)
05/07 X-Factor #19 – 37,898 ( +0.1%)
06/07 X-Factor #20 – 37,105 ( -2.1%)
07/07 X-Factor #21 – 50,227 (+35.4%) ["Endangered Species" backups begin]
08/07 X-Factor #22 – 52,627 ( +4.8%)
09/07 X-Factor #23 – 53,311 ( +1.3%)
10/07 X-Factor #24 – 52,085 ( -2.3%) ["Endangered Species" backups end]
11/07 X-Factor #25 – 79,066 (+51.8%) ["Messiah Complex" crossover begins]
12/07 X-Factor #26 – 84,219 ( +6.5%)
01/08 X-Factor #27 – 81,350 ( -3.4%) ["Messiah Complex" crossover ends]
02/08 X-Factor #28 – 61,173 (-24.8%)
03/08 X-Factor #29 – 54,832 (-10.4%)
04/08 X-Factor #30 – 51,447 ( -6.2%)
05/08 X-Factor #31 – 48,231 ( -6.3%)
06/08 X-Factor #32 – 45,104 ( -6.5%)
07/08 X-Factor #33 – 53,088 (+17.7%) ["Secret Invasion" crossover begins]
08/08 X-Factor #34 – 50,416 ( -5.0%) ["Secret Invasion" crossover ends]
09/08 X-Factor #35 – 44,481 (-11.8%)
10/08 X-Factor #36 – 38,552 (-13.3%)
11/08 X-Factor #37 – 35,754 ( -7.3%)
12/08 X-Factor #38 – 34,425 ( -3.7%)

Not to get all next-generation-of-media/Cory-Doctorow-at-a-copyright-lecture on you,⁶ but…

…unless the title of that comic becomes X-Factor Starring Wolverine And Spider-Man And Batman, the evidence is pretty obvious you’re not going to triple sales on it without a major crossover, and those sales will quickly vanish after the crossover ends anyway. (And even with the major crossovers, you’ve never done better than to roughly double sales in any case.)

The existing comics market has spoken, and by and large they’ve said “X-Factor? Yes, yes, decent stuff, but where is my comic with Wolverine in it? Ah, yes. Sweet, sweet Logan.” That means if you want to achieve this (ludicrous but admirable) goal of tripling your readership, you’re going to have to actually try and get readers who are new to comics to give your book a try. Now, these “new comics readers” might quite enjoy your comic, but let us be honest: X-Factor is a comic staffed with the B- and C-level castoffs from other Marvel mutant books and so you cannot just say “it is a comic about Madrox and Strong Guy and Siryn,” because Potential New Comics Reader will go “whuh?”

Furthermore, you can’t just point to five-page previews on Newsarama or on Marvel’s website, because nobody who doesn’t already read comics goes there and they’re lousy for actually explaining the ongoing premise of the comic to new readers. Again, you want new comics readers? The existing market has failed you? That means you need alternative sources of marketing, variant methods to hike potential reader interest in your – let’s be honest – niche product. scans_daily was honestly an excellent method of generating new potential reader interest, because there are approximately six billion young nerds – mostly female nerds⁷ – on Livejournal who would totally be into your comics if only they knew that your comics existed, and some of them are even willing to spend money on them!⁸

And it’s worth remembering that s_d provided an arena for those young nerds to learn about comics of which they were unaware without first requiring a commitment to becoming part of the “comics fan community.” This is really kind of a big deal, because most of comics fandom seems to think they are not as offputting as, say, LARPers or Trekkers or furries,⁹ and this is often only marginally true at best. s_d, despite its occasional crankiness, was far more inviting to a noob comic reader interested in comics education and discussion than just about any other avenue available to them.

This is something comics desperately fucking needs in order to survive in any way akin to what we have now, because we’ve seen the results of relying on the direct market and comic book shops to advance the popularity of comics and it just doesn’t work. The fact that s_d was both run independently of any marketing effort by the big comics companies and was hugely popular and successful was not an accident: they have a skillset that DC and Marvel and Dark Horse and Image’s marketing departments do not have and apparently either cannot learn or cannot be bothered to learn.

Now, I understand that you work in comics and are therefore seemingly obligated to mostly not understand or ignore the same market issues that the music and movie industries have been dealing with for over a decade now and also to endorse the repetition of their mistakes,¹⁰ and that’s fine, but there’s one fine distinction between those two industries and comics.¹¹ In your comment above, you argue that comics showing up for free on the internet essentially distinguishes the comics audience into “people willing to pay for comics” and “people who would be willing to pay for comics but are happy to read them for free instead.”

This is mostly a fallacy. The comics audience really divides into a bunch of segments: “people who are willing to pay for overpriced monthly comics,” and “people who are willing to buy trades but don’t want to wait for the trade to come out to read the story,”¹² and “people who might be willing to buy the comics in some form but don’t want to commit to monetarily jumping into the massive history of a licensed property without reading a reasonable amount of it for free first,” and of course there are “people who just like stealing shit.” Plus a few other categories, but those are the big important ones.

Conflating “people not willing to buy the comics upfront without reading them first in some form” with automatically lost sales is an argument that’s so out of date by now that I am pretty sure it can be found sitting next to cases of New Coke. Arguing that an unauthorized reprint of a work automatically decreases sales potential is contrary to just about all the anecdotal and statistical evidence we have available at this point. And complaining that the reason X-Factor is selling notso-hotso is because people are giving away the thrilling plot twists online is just nuckin’ futs.

Oh, Spoiler Puppy! Now you have ruined that comic book for everybody forever!¹³

Another quote:

There are plenty of reasons to excuse something that is, at its core, against the law. You can rationalize it all you want. You can explain good things that could come from it… [t]here’s always benefits to someone from theft. But theft remains theft, whether people try to enumerate the benefits or not. As a general rule of thumb, the way you tell the difference between right and wrong is that when it’s wrong, you have to make excuses for it.

This is a bunch of moralizing (remember that any penalties suffered for being found to infringe copyright will be civil ones, not criminal, a point that annoys me every time someone says the s_d folks were “breaking the law”) that overlooks the simple point that there is a proud history of creative types allowing fans to bootleg. The Grateful Dead did it all the time, and they were one of the most financially successful bands ever. Frank Zappa only got involved in “official” bootleg releases because he felt the bootleggers were profiting too greatly from fans’ desire to get copies of his boots. These artists and others like them understood that bootlegs only increased their fans’ loyalty and desire for their official product.

Now, of course you can say “well, the Dead and Zappa and all those others gave permission and that wasn’t the case here.” And that is totally reasonable, as any company whose job is essentially managing (and occasionally creating) valued intellectual properties would of course have no idea about the existence of a web community, reproducing portions of their intellectual property, with membership in the high four to low five figures and readership potentially even higher, that also had multiple working professionals counted as members of the community. As a matter of fact I am dead positive that Marvel and DC had no idea about the existence of scans_daily, a community widely known and occasionally mocked throughout the comics web for its particular peccadilloes, and that their noninterference with that community would of course be ignorance and not implied permission to exist at all.

Or, more succinctly, “yeesh.” Here is a far more likely scenario: Marvel and DC knew about s_d but preferred to turn a blind eye to it.

I don’t see the point in excusing the behaviour at s_d. It was technically illegal and they got pulled down, because Marvel (or DC) had the right at any point to do that. And that is perfectly proper in the legal sense. But that doesn’t make it well-advised to do so, because it isn’t. It’s just stupid.

—

Anyway, I don’t want to repeat previous arguments that I’ve made before. Suffice it to say that this whole kerfuffle boils down to the “professional does something within his rights but tactically stupid, fans react with unfortunately predictable bile, professional says something ill-advised, fans say more stupid things” vortex we’ve all seen too many times to count at this point.

Oh, and one more thing: without scans_daily, I never would have discovered Rex The Wonder Dog. I also never would have bought The Immortal Iron Fist, Fables, The Walking Dead, Runaways, Agents of Atlas, Gotham Central, Phonogram, Dr. Strange: The Oath, .303, Bizarro Comics, Usagi Yojimbo, Banana Sunday, Ed Brubaker’s Captain America, Rex Libris or Garth Ennis’ Punisher MAX. So there you go.

Top comment: That’s where all the female nerds are at? Dammit. – Pat

1. According to multiple sources, it was Livejournal user “kali921,” who has A History Of Similar Behaviour. [↩]
2. Granted, this particularly small excerpt was considered to be more revealing due to it having been reproduced before the actual publication of the work, but that doesn’t change the fact that in the United States and most countries with an existing fair use/fair dealing doctrine, the idea that excerpts have to be relatively brief to qualify as fair use/dealing is well established. [↩]
3. At the new InsaneJournal version of s_d, it is apparently now one-third, which is still too goddamn high. Drop it to twenty percent and you’ll have a fighting shot at fair use, folks. [↩]
4. Granted, you can argue instead that “the work” consists of, say, the entire history of Thor comics when you put up some scans of Thor beating up Loki or whatever. I don’t think this argument is entirely without merit, but I also think it’s reliant on there being less narrative cohesion in your selected sample; if the images in question present a cohesive narrative then I think, given the serialized nature of comics, that they would certainly contain a vital core of a selected subsection of the work. [↩]
5. I know, I know – there are people in comics who enjoy feeling superior to other people? I can’t believe it either! [↩]
6. This is blatant trolling to impress Cory Doctorow. Hi, Cory! [↩]
7. Or “fnerds.” [↩]
8. A side note: I know at least two local comics stores who both place steady re-orders for Warren Ellis’ Freakangels trade. You know, a comic which you can read entirely for free on the internet. Turns out people like paper books in their hand. [↩]
9. Or anything, really, with a tradition of wearing costumes in public when it isn’t Halloween. [↩]
10. See also the Big Two’s repeated argument that “the technology isn’t here yet” for full-scale digital delivery. You know, somebody should really tell all those comics downloaders that the technology isn’t here yet. Maybe that will make them stop downloading comics and reading them on their computers. [↩]
11. Well, other than that those industries are relatively healthy compared to comics. [↩]
12. I’m in this segment. I also have a full run of X-Factor trades, incidentally. Number of single issues of X-Factor I have purchased: zero. [↩]
13. Now they will never get to experience the surprise of one of the main characters in the series predictably returning after a moderately brief absence! [↩]

(Post by Will Entrekin)

Earlier this week, blogger Kevin somebody-or-other was arrested for posting and streaming 9 songs, all of which appeared to be near-studio perfect recordings of GN’R's long-awaited 6th CD, Chinese Democracy, on his blog. He appeared in court on Wednesday morning, when his bail was set at $10,000. In June, after he streamed the songs on his website, he apparently told Rolling Stone:

I’m not so worried about that. It’s a legal grey area since it wasn’t for download, it wasn’t a finished product. We aren’t sure who owns the recordings. I feel like I might survive this.

And I’m sure he probably will, but one might wonder precisely how.

Apparently, the songs were only on his website for a little while before two things happened: first, it sounds like the host’s server crashed (which makes sense, because ZOMG NOO GNR!!!111!!!), and second, someone associated with GN’R asked the guy to take the songs down and erase the digital files, which he did (which was why he couldn’t supply the FBI with the original files when they later asked). So, really, no telling how many people managed to catch the audio stream at exactly the right time. In the meantime, after the songs were taken down at GN’R's request, copies managed to make their way around the tubes. It was one of those copies a friend of mine convinced me to listen to.

I had mixed feelings about doing so. I’ve heard a few people call Axl names for suing the guy who posted them, but I just can’t help seeing the situation from Axl’s perspective: here’s a guy whose name is on two of the greatest rock albums of all time (Appetite for Destruction and Use Your Illusion). I don’t know about you, but I wouldn’t want to have to try to make a follow up to Illusion; both CDs are, first minute to last, terrific. I still listen to them all the time. And Appetite? It’s turbo-charged summer on vinyl, barbecues and beers and bonfires, the groin-tightening excitement of making out for the first time, knowing you want to use your body but having not a clue what you want to use it for. So he’s got both those albums under his belt, and now everyone’s been waiting for the follow-up for, what, like, 13 years or something?

Not to mention all the press he’s gotten in the meantime. People who have probably never actually seen him in real life, even on a stage, writing about his “neuroses” and “depression” and “erratic behavior,” and etc. And I’m not saying his behavior hasn’t been erratic at times, but I am saying I can totally understand why he’d want to become total recluse. With pretty much everyone scrutinizing your every move, would you want to leave your house?

I wouldn’t. I’d sit down in the studio and I’d spend a decade trying to write something better than what I had done before, and it would probably take that long, too, because let’s face it; what he’d done before was awesome. So Axl spends more than a decade trying to get it right, trying to get it better, and then some random dude posts the unfinished work on his random website.

Heck, I’d be pissed, too.

But, then, as a fan, man, do I want to hear what he’s working on. Which was why I had mixed feelings about listening to the songs; on one hand, I’m just dying to. On the other, I know that if they’re not out yet, there’s a reason they’re not out yet, and Axl probably doesn’t think they’re finished yet. And I’ll admit I ain’t musical enough to detect an extra note here or a more produced layer there, most of the time, but then again, I’m not cinematic enough to really know anything about lighting or whathaveyou, and I wouldn’t presume to try to view, say, Quantum of Solace before I sit down to watch it in a theater.

In the end, the GN’R fan in me won out, and yes, I listened to those 9 songs. I thought it’d be neat to do a review of them, but then I thought: as a writer, would I want someone to review an unpublished novel I didn’t feel I had finished revising yet?

Of course I wouldn’t.

Hell, I’m not even sure I should tell you that I thought they were awesome. The kind of awesome, in fact, that’s worth waiting nearly a decade and a half for.

So I won’t. I’m not going to tell you that I think it’s the best thing the man behind Appetite for Destruction and Use Your Illusion (I & II) has ever done.

Not right now.

Maybe when it comes out.

In the meantime, I think we should all wish Mr. Rose luck in finishing what he’s started.

Soon.

(cross-posted to Will in the World)

Insta-click send-a-letter (not just an email, but a hardcopy) to all significant government parties regarding the new Canadian copyright bill (which is bad). Register your discontent! You know, if you’re Canadian.

Scott asked me for my take on the new Canadian DMCA (and make no mistake, that’s what it is).

Most people know I tend to be somewhat “copyleft” when it comes to my attitudes on copyright; I favour lower terms of private ownership of copyright for a larger public domain, flexible and relatively wide-ranging fair dealing laws, and legal systems that encourage trial use rather than full immediate purchase of intellectual property. Canadian statutory law contains no protections under fair dealing for parody or transformative use; the protections that exist for me when I use Photoshop to make Iron Man say “fuck” exist solely in jurisprudence, and every serious intellectual property law expert in the country has recommended to a number of governments that, hey, maybe we should enshrine that in statute.

Needless to say, Jim Prentice’s bill does none of these things. Michael Geist has already explained at length how the expansions for fair dealing contained within the bill (and fair dealing in general) are almost wholly nullified by the digital lock provisions. This bill makes most fair dealing illegal simply by having the original producer of content put a basic digital lock or DRM on their material. (Or, more simply, your right to make a copy of a song on a CD that you own ends the moment the CD has a simple DRM on it. The tools to evade that DRM? Illegal as of this bill.)

In short it’s a terrible, terrible bill – a sellout to American lobbyists that completely ignores all the effort Canadian citizens made earlier this year to say “hey, this is a shitty bill and we don’t want it.” With any luck, it will be voted down in Parliament. (Of course, the Harper government may go ahead and make it a confidence vote, in which case Stephane Dion will likely run from his own shadow.

Michael Geist has more, of course.

Okay.

Look, I get that comics fans, if there is even the slightest hint of having their precious weekly comic flow interrupted, will throw a collective hissy, not unlike a three-year-old who has not yet gotten his juice. (Actually, this is unfair. Juice is a lot more important than comics are.) And I understand that a lot of comics fans have the legal sense of your average groundhog.

But, for the life of me, I don’t understand this argument, which I have seen advanced numerous times around the internets:

“Siegel and Shuster’s heirs do not deserve to control the rights to Superman, because they had nothing to do with his creation.”

See, that first part is fine. It’s a perfectly reasonable – if someone brutal – argument for expiry into the public domain upon creator’s death, and I actually agree with the general thrust of it, seeing as how I think public domain rights are being steadily trampled in favor of corporations. The problem is that the unspoken (or, hell, even spoken) corollary of this argument is:

“DC Comics deserves to control the rights to Superman.”

There is nobody working at DC Comics today who was involved in the development of the key elements of Superman, you know. Not a one. They’re all dead, or extremely, extremely retired. I can understand the argument that the Siegel estate doesn’t deserve a share of Superman at this point; the co-argument that a legal fiction does, however, completely contradicting the basis of the first argument, is just stupid.

The decision came down yesterday that the estate of Jerry Siegel has won the copyright to Superman – specifically, “all Superman material in Action Comics #1.” I’ve already seen in a few places people worrying about how this may BANKRUPT THE COMICS INDUSTRY BY SETTING A PRECEDENT!!!!one!!1! Or, more amusingly, the legion of retards commenting on the Newsarama blog getting indignant that the Siegel estate is trying to “destroy Superman” and that Siegel and Shuster’s estates are simply greedy bastards trying to steal money rightfully not theirs.

(Inevitably, whenever Newsrama posts a legal story, it gets a shitload of comments. Equally inevitably, the level of ignorance from people who think the law is just as simple to define as a Green Lantern power ring’s weakness is displayed in full force.)

Don’t worry. The implications are smaller than you think. The decision – which, incidentally, is really quite readable for non-lawyers – can be found here.

The core of the Siegel lawsuit is that Siegel and Shuster created Superman before they began working for DC. (He was originally intended for a comic strip, but they decided to sell him to DC for publication later.) Changes to the United States Copyright Act in the mid-70s gave creators one-time rights to request control of copyrighted works they sold in the years prior (on the basis that, given the change in copyright law – notably the extension for which works remained in private domain – they might have chosen not to sell). The Siegel case has been an example of this sort of attempted recursion.

The Superboy and Superman lawsuits over the past twenty-plus years have been (and this is personal opinion, having studied the case previously) basically one long case of DC Comics being moneygrubbing assholes, because on the merits of the case Siegel had this one in the bag (Shuster has a tougher case due to some contractual issues), and DC/Time-Warner have simply been fighting a stall game for as long as possible on the basis that the $1 billion (yes, billion) per year Superman franchise generated more money than it cost them to pay lawyers to stall.

In terms of implications for the comic industry as a whole – not much, because this isn’t a landmark decision or anything. Most of the major contentious or potentially contentious work-for-hire properties have been settled by contract or established in caselaw – Joe Simon on Captain America, Bill Kane on Batman, etc. (Maybe Steve Gerber’s estate can make a case for Howard the Duck, as I’ve heard he invented the concept independently of Marvel, but for most properties in comics it will generally be very hard to prove that the work was not created on a work-for-hire basis, if not contractually invalidated right from the get-go.)

In terms of the implications for Superman, they too are less than you think. Yes, the Siegel estates now control, to an extent, the copyright of Superman, but copyright for most of Superman’s fellow-concepts – such as Jimmy Olsen, Lex Luthor, Metropolis, The Daily Planet, et cetera – rest firmly in DC’s hands. (Copyright in this regard is a bitch to navigate – Superman’s copyright covers his relationships with the aforementioned, but not necessarily the aforementioned. Lois Lane, who unlike most of the Superman mythos first appeared in that fateful first issue of Action Comics, may fall to the Siegels.) More importantly, DC Comics completely controls and owns the trademarks for Superman – the big red S, the curvy-text Superman logo, the costume, and so forth. Siegel’s estate is not going to take Superman away from DC; it’s functionally impossible to do so until Big Blue passes into the public domain, which won’t be for about another twenty years (barring another corporate-inspired extension of private domain rights, of course).

The major point is that Siegel’s estate will now be owed back pay, I believe, on their rights as owners of the Superman copyright – the amount of which, of course, be contested by DC as well, and on reasonable grounds (namely the “look, we did all the work for all those years” argument, which is not invalid). Also note that DC retains exclusive control of Superman’s international copyright – the Siegel decision merely reflects domestic copyright.

However, DC will have to start forking over monies generated by Superman, most notably those from Smallville – prior to this decision, DC was holding out that Smallville was a show about a “young Superman” rather than “Superboy,” to evade paying the Siegels their share of profits from the show in the wake of the decision that put the rights to Superboy in the hands of the Siegels last year. The point, obviously, is now moot. Of course, they won’t fork over everything, because DC is responsible for producing the show and the Siegel estate doesn’t want to bother with that work. It’ll be a straight-up profit-sharing deal.

Of course, maybe DC will just change his costume. Then again, we know how well that worked out the last time they tried it.

SUPERMAN: …maybe I’m not explaining this properly.
WONDER WOMAN: No, you’re explaining it quite well. I just don’t agree with the concept.
SUPERMAN: How can you believe that writers don’t deserve compensation for creating intellectual property?
WONDER WOMAN: Because they don’t create it. Artistic inspiration flows from Apollo.
FLASH: The guy over on Earth-50 who’s in the Authority?
WONDER WOMAN: Very funny, Wally. The god Apollo. Music, poetry and literature are his province.
BATMAN: I’m Batman.
SUPERMAN: Uh huh – look, Diana, even if I conceded that all artists owe a debt to Apollo for being able to create art – and I don’t, I’d like to stress that – then the residual fee for screenwriters is akin to royalties for novelists or playwrights, and an expression of consideration for allowing the work to be created.
WONDER WOMAN: But Apollo -
SUPERMAN: All right, for allowing humans access to the work that sprung from Apollo’s noble brow, okay?
WONDER WOMAN: Regardless of quality, it seems.
SUPERMAN: What’s that supposed to mean?
BLACK CANARY: I think she’s talking about the way Barry always used to bitch about that television show.
WONDER WOMAN: Precisely.
FLASH: You know, he really hated that they got Mark Hamill to play Trickster instead of him.
SUPERMAN: Regardless of the other qualities of that television show, you have to admit that it did poorly in the ratings and was cancelled, which means that, if you think the writers wrote a bad show, that they were thus compensated appropriately.
BATMAN: I am the night.
WONDER WOMAN: Sure – but why not simply allow these writers to negotiate individually? I see no need for a union in this instance. We are not speaking of workers toiling for a single corporate entity. There exists a market.
SUPERMAN: An extremely limited one. There are only six production studios in America, and they control just about all the production and all of the distribution of entertainment media in the country and the majority of it internationally.
WONDER WOMAN: But nothing stops these writers from attempting to leverage one studio against another for their own gain.
SUPERMAN: The self-interest of the studios keeps that from happening. Say I’m a writer. Why would Sony seek to give me a larger share of the profits than Fox?
WONDER WOMAN: To attract the best talent.
SUPERMAN: Writers will come work for me anyway, because people with an innately creative bent, as much as they want fair compensation, want to create more. If I discourage one in five writers from ever working for me, that still leaves eighty percent of them willing to work for me at the rates that I set.
WONDER WOMAN: But then quality will out, and the public -
SUPERMAN: Remember how much you complained about 300?
FLASH: Oh, god, don’t get her started again.
WONDER WOMAN: It was not historically accurate! Leonidas was not an honourable man, and the Spartans were resolute pederasts, and -
SUPERMAN: My point is that the public’s tastes are both fickle and often ignore excellent work.
BLACK CANARY: Somebody’s still not over their novel selling poorly.
SUPERMAN: I’m not saying The Janus Contract was a masterpiece, Dinah. I’m just saying it was better than The Da Vinci Code. I mean, we’ve gone back in time. I’ve met Da Vinci, for Pete’s sake…
BATMAN: The city calls to me.
FLASH: That reminds me, when is J’onn going to get back so we can swap Batman’s mind out of that chimp and into his own body?

What’s that, you say? A comic that moralizes against illegal downloading featuring Disney characters? Why, it’s almost as if Disney is an enormous corporation with a vested interest in maximizing its intellectual property rights and getting public opinion on its side!

I, personally, am waiting for the day when Batman beats up a nest of villainous music pirates.

MUSIC PIRATE: Music needs to be free!
BATMAN: You need to be in jail.

If you want to read one of the most startlingly bullshit interviews I have seen in ages, go here and read Marvel publisher Dan Buckley’s comments on their new online initiative and illegal downloading.

It’s almost infuriating. The level at which Buckley flatly refuses to engage perfectly valid questions and concerns about Marvel’s digital model is just insane. A perfectly fair comparison to Rhapsody is mentioned, and Buckley says “no, it’s not like that” without even bothering to explain why. (The answer, incidentally, as to why Marvel’s online comic movement isn’t quite like Rhapsody is that culturally we’re used to paying to listen to music we don’t own, but we’re not used to paying for books we don’t own and want to read. Of course, that particular difference is one that actually makes Marvel’s digital position worse rather than better.)

And, of course, Marvel’s strategy towards illegal downloading is kept deliberately vague. Questions as to how the torrent model that exists – which is blatantly superior to Marvel’s in a large variety of ways for the consumer – will be dealt with are left unanswered, except to say that Marvel is going to be taking its cues from how the music industry has handled illegal downloading, which is like taking tips from a caveman on how to beat Gary Kasparov in a game of chess.

But it gets worse! Explaining the choice of initial selection and how new comics will be added each week, Buckley says: “This will include providing marketing support for our publishing and entertainment initiatives…”

No shit. Here is the list of comics currently available via Marvel’s digital delivery system. The majority of these comics can be summed up as follows:

1.) Failed miniseries and ongoings which didn’t particularly impact the market and which have no serious sales value (Gambit, District X, Jubilee, Doc Samson, et cetera), including whole runs of series that you can now get at remaindered bookstores (Spider-Man’s Tangled Web).

2.) One-shots not easily collected in trade format or elsewhere (Civil War: Choosing Sides, for example).

3.) …and first issues of things Marvel wants you to buy in trade or single issues (Moon Knight, Civil War, Runaways, Captain America, Immortal Iron Fist, Annihilation, et cetera). For longer-running titles, Marvel’s pretty blatant about this, giving you the chance to read the first issue in each trade.

There is a name for small teaser portions. It is called advertising. This is what Marvel’s entire digital initiative amounts to: you are encouraged to pay money to buy the real comics. They’re not even particularly shy about it, because when you read the first issue of any given comic that you’ve paid to read, they remind you to buy the collection.

Granted, Marvel’s strategy is to use the digital model to encourage new readers. That’s fine. I am down with encouraging new readers. But last I checked, not many people were horribly encouraged by the prospect of paying to read the same fucking comic twice.

And of course there’s a model they could have used. Amazon’s putting it out there right now with their Kindle reader: “you buy the book for a very low price, and anytime you need to download it from us, we let you.” It’s a fantastic model for a publisher to adopt, because it essentially lends control of a person’s library to the publisher. (I’m of two minds about it, personally, but there’s no question that it would be good for Marvel.) Use some proprietary software to keep illegal trading of the comics to a minimum and Marvel could be raking in bucketloads.

Sweet Jesus, how is it possible for a company to fuck up this badly?

Very quietly, just before Thanksgiving so nobody would notice, Marvel and DC sent cease-and-desist letters to zcultfm.com. For those of you who do not know, zcultfm is – or, rather, was – the comic book torrents site, with an immense library of torrents, many of which even worked.

It is also how I have first read most of the new comics published over the last three years. Every single comic parody I’ve done had its origins in DCP scans. (I have a scanner, but it’s not a very good one.) For those wondering, I generally delete most of my downloaded comics after a single read. With the exception of Legion of Super-Heroes, I have not purchased a single issue of a comic book since about 2002 or so.

So I must be a downloading leech, only costing DC and Marvel money. Right?

Well, let me put it this way. This is most of my collection of trade paperbacks and comic hardcovers.

Now, the top right shelf actually doesn’t really have any comics on it, it’s just books that mostly fit in that space nicely, so ignore that shelf, but the rest, pretty much all trade collections of comics and the occasional original hardcover.Now here is my collection again, except that this time, everything I’ve bought as a result of reading the issues first after downloading them (almost always from zcult) and giving them a try? Is highlighted.

My, that’s a lot of highlighting. And since the resolution is a little low, let me just point out that the vast, vast majority of the highlighted content gets published by – wait for it – DC and Marvel.zcultfm – along with scans_daily, which more or less exists as a fan community for the downloads propogated mainly by zcult and Demonoid (also recently shut down) is responsible for me buying the hardcover of The Immortal Iron Fist. It’s responsible for me buying NextWave and the Garth Ennis Punisher and the JMS/JRJr Amazing Spider-Man and the Milligan/Allred X-Force (and then X-Statix) and Runaways and the Brubaker Captain America and getting me finally turned on to the Fantastic Four.

DC? It’s responsible for me buying All Star Superman and Seven Soldiers of Victory and Fables (all of it) and Y The Last Man (all of it) and The Losers (all of it) and Pride of Baghdad and War Stories (which I never would have even known existed were it not for a Garth Ennis megatorrent I downloaded mostly to reread the issues of Hitman I sold in anticipation of collecting the trade paperbacks which were halted mid-run – and incidentally, DC, fuck you very much for that) and Light Brigade and Formerly Known As The Justice League and Gotham Central.

Oh, and if any smaller/indie publisher feels like getting in a snit, I’ll tack on Queen and Country and .303 and the Busiek Conan and The Five Fists Of Science and… well, I could go on.

Comic downloads transformed me from being a guy who bought one comic book per month and the very occasional graphic novel or trade collection, and into a guy who buys two to four trades a month (and sometimes more). I wasn’t going to go back to investing in single issues, because single issues are a terrible value for money and a horrible pain in the ass to store and I can’t lend them out easily when I tell somebody “hey, you should totally read this.” And if you go to zcult and read the postings from the fanboys there, it’s quite obvious that I represent the norm for comic downloaders, despite the fact that our doing so irritates Dan Slott terribly. (PS: Dan Slott, She-Hulk is on my trade to-buy list, although right now I’m steadily working my way through the Bendis/Maleev Daredevil books.)

And the important thing to note here is that DC and Marvel, unlike the incredibly backward music companies they’re trying to imitate here with their painfully stupid legal action, do not have a realistic competing model to offer. Marvel’s pay-for-comic service, despite my kind words previously, has a clunky interface, is slow, doesn’t display the comic work as well as a basic .cbr or .cbz file, doesn’t have a good selection… with a lot of improvements it could be a realistic model, but since I wrote my approving post, everything I’ve heard indicates that Marvel considers their currently mediocre-at-best offering to be a finished, final-stage product, which only earns them a “what the fuck?”

I mean, at least the record companies, when they shut down Oink, could point to iTunes and say “look, we offer mp3s for sale for money, please use that.” And despite the fact that iTunes is kind of a ripoff, at least it’s an option. DC and Marvel don’t even have that. If I want to read the old Roy Thomas Infinity, Inc. run, or the original Speedball ongoing, I have three options: 1.) Wait around for them to collect it in trade, 2.) Spend a small fortune on back issues I don’t want to store in the first place, or 3.) Download the comics torrents. Quick, which one do you think I’m going to pick?

How sad is this?

What’s worse is that they’re just antagonizing people to no good end, because everybody knows how torrent filesharing works now. Here’s the short version:

MAJOR MEDIA COMPANY: Hey, you! You’re downloading the product I made without paying money! Stop that at once!
INDIVIDUAL DOWNLOADERS: Uh, no.
COMPANY: Oh, that’s how it is, is it? Well, I’m going to shut down your torrent-sharing website!
DOWNLOADERS: Fine. We’ll just go over to a different site which will take you three to six months to find out about and shut down.
(Repeat until heat-death of universe or The Rapture, whichever comes first.)

I simply can’t stress enough how shortsighted, how ignorant, how goddamned lunkheaded DC and Marvel are being right now. They aren’t just shooting themselves in the foot like other media companies; they’re shooting themselves in the head. Internet downloading and the word-of-mouth generated by it has been quietly driving their business for the last couple of years now and they want to kill it. It’s just staggering.