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Piracy Patch For Los Angeles Boy Scouts:
The Associated Press reports:
  A Boy Scout is trustworthy, loyal, helpful, etc., etc. He is also respectful of copyrights. Boy Scouts in the Los Angeles area will now be able to earn an activity patch for learning about the evils of downloading pirated movies and music.
  The patch shows a film reel, a music CD and the international copyright symbol, a "C" enclosed in a circle.
  The movie industry has developed the curriculum.
  "Working with the Boy Scouts of Los Angeles, we have a real opportunity to educate a new generation about how movies are made, why they are valuable, and hopefully change attitudes about intellectual property theft," Dan Glickman, chairman of the Motion Picture Association of America, said in a statement Friday.
  Scouts will be instructed in the basics of copyright law and learn how to identify five types of copyrighted works and three ways copyrighted materials may be stolen.
  I have no idea what it normally takes to earn a Boy Scouts "activity patch," but I actually kinda like this idea. A picture of the patch is available here.
FantasiaWHT:
I'm all for the idea. When I taught high school and middle school, I would give kids a very basic quiz about what was legal and illegal as far as copying music, movies, tv shows, games, etc. Results were always abysmal.
10.22.2006 11:23pm
Erasmus (mail):
I wonder how much of this will be just the facts about the law, and how much of it will be music industry propaganda about the "evils" of pirating. I'm fine with telling kids what the law is, but I wonder if this will turn into something akin to Government propaganda films about drugs ("Buy drugs, help terrorists!," "Pot is just as bad for you as heroin!").
10.22.2006 11:43pm
Brian Sniffen (mail):
The materials shown so far are terrible, though. For example, they present downloading movies from the Internet as flat-out illegal. They say that downloading music harms artists, and is illegal. But they don't differentiate between legal download stores, free downloads from the authors, congenial swapping among family, moving data between one's own machines, and mass distribution.

Corporate-sponsored activity patches under the cover of the BSA are only a good idea when well supervised.
10.22.2006 11:45pm
Dave Horton (mail):
Mr. Kerr,

A Scout is already respectful of copyrights (see Trustworthy [you Trust the Scout not to break the law] and Obedient [the Scout obeys the laws]).
10.22.2006 11:48pm
Colin (mail):
I'm also skeptical of the industry's motives here. I'd be surprised if the curriculum was built with a fair and unbiased eye towards intellectual property law. I'd rather see an "IP" badge than a "Piracy" badge, covering more than just copyright.
10.23.2006 12:06am
John Armstrong (mail):
Colin has a great idea there. Even as is, the merit badge requirements really should include knowledge of copyleft as well. Will they? I doubt it. Unless they've been massively overhauled in the last 15 years, Boy Scout merit badges are superficial in the extreme.
10.23.2006 12:14am
guest:
Strikes me as rather one-sided. How about a "fair use" patch?
10.23.2006 12:22am
Ragerz (mail):
It's nice that the Boy Scouts is allowing itself to be used a propoganda tool for a particular normative perspective. Somehow, I suspect that alternative views concerning how copyright law should be structured will not be presented.

I wonder how much the movie industry is bribing the Boyscouts for the privilege of using that organization to disseminate it's propoganda.

I also wonder to what degree the Boy Scouts earning this badge will learn about what the law is, versus what it ought to be. Already, we get the inartful articulation of copyright infringement as "theft" in Glickman's statement, which tends to indicate there will be a significant focus on normative ought. Of course, these industries would like us to think that copyright infringement is the same as physical theft for all practical purposes, and morally equivalent. Unfortunately, some among the less well-informed, less intelligent and less discerning among us will buy this rhetoric.

Last time I checked, the movie industry had enough lobbyists buying Congress, rectroactively extending Copyright forever, restricting the public domain, and trying to stifle technological innovation that I am suprised they are so interested in shifting that focus to propogandizing young people.
10.23.2006 12:23am
jota:
My understanding is that the "patch" is unique to the Los Angel governing council. No other regional, let alone the national branch, has adopted the piracy merit badge.
10.23.2006 12:28am
Dave Hardy (mail) (www):
Final test for the badge:

Establish that nothing depicted on this badge infringes any existing copyright.
10.23.2006 12:31am
Cornellian (mail):
I find it pretty creepy, frankly. I have no problem with Boy Scouts being instructed in copyright law, but I'd bet very long odds that the MPAA won't be giving them an accurate description of the doctrine of fair use. So their badge isn't going to signify a knowledge of copyright law so much as a knowledge of what the MPAA thinks copyright law should be.
10.23.2006 12:35am
OrinKerr:
On the whole, I think I trust the MPAA to give a more accurate presentation of copyright law than, say, my friends at EFF. Although it's very hip to imagine that there is a narrow copyright exception to the fundamental constitutional right to fair use, the courts seem to adhere to views closer to those of the MPAA.
10.23.2006 12:49am
logicnazi (mail) (www):
Yes, I also find it creepy and problematic.

Just because something is the law doesn't mean it should be the law. Except in exceptional cases one should follow the law anyway but I'll bet a couple hundred bucks the curriculum for this says more than just that one should follow the law even if it is bad.

These education attempts are not merely indoctrinating the students in the notion that one ought to follow the law. They are telling them that copying movies/songs is morally equivalent to property theft. Yet this is surely at least a debatable point.

Unlike property theft no one necessarily is any worse off for copying music/movies. If you know your friend bob likes britney spears but is too poor/too cheap to ever purchase a CD then giving him a copy only increases total utility. I agree that in the present system there are good arguments why it is bad. We obviously need some way to compensate artists and IP producers.

However, there are many other possible models to compensate singers, songwriters, actors and directors. Viewing bits that can be copied without direct loss to anyone as property is only one possibility. A possibility with several serious drawbacks (inefficently denies the poor access to no one's benefit, blocks cultural innovation using previous ideas etc..). I know I would prefer a tax payer funded usage based system where artists are paid proportional to the usage/rating of their product by the populance but anyone can download a work from the internet for free and even modify it if they wished.

Admitedly there are issues to be worked out but the point is that IP is a system of incentives not a right like real property. In fact the underlying Lockian justification for property rights actually demands that IP property not exist (it tells man what work he cannot create with his hands). The boy scouts should not be indoctrinating their members on this sort of pragmatic political question to serve the interests of an industry that has strong financial interests in one of the possible models.

I mean what would you think if the boy scouts got an anti-assault weapon merit badge or turn in a medical marijuanna patient in merit badge. These indeed reflect the laws yet I think we would all agree that it would be bad if the boy scouts started indoctrinating kids about what to think about these controversies.
10.23.2006 12:58am
OrinKerr:
logicnazi,

So it's better for kids to not know the law than to know it if in your opinion the law is possible unjustified from a Lockean perspective? Wow, you have a tough standard for Boy Scout activity patches.
10.23.2006 1:05am
Patrick McKenzie (mail):
>>
It's nice that the Boy Scouts is allowing itself to be used a propoganda tool for a particular normative perspective.
>>

Not everybody treats the words "particular normative perspective" with distaste. The Boy Scouts, like many organizations, have a "particular normative perspective" on a wide range of human activity, and aren't the least bit concerned that passing it on to the next generation of Scouts constitutes "propaganda". The Boy Scouts have, for example, a particular normative perspective on when it is permissable to burn an American flag. The fact that it does not give equal treatment to flag disposal and anti-war protesting does not cause many Scout leaders to lose sleep at night.
10.23.2006 1:13am
Christopher M (mail):
On the whole, I think I trust the MPAA to give a more accurate presentation of copyright law than, say, my friends at EFF.

That's questionable -- I don't know about the MPAA, but the music industry certainly takes some pretty aggressive positions about copyright law -- but also kind of beside the point. There's no way that this badge is just about "following the law" in the abstract -- it's clearly presenting the normative view that this is how the laws should be. And it's beyond me why the Scouts should have an institutional policy of teaching that to kids. (Any more than they should have an "eminent domain" merit badge where scouts make instructional videos about how you'll have to give up your house if the community needs it for economic development.)

Just another reason to encourage one's sons to find something better to do with their time than joining the Boy Scouts.
10.23.2006 1:14am
logicnazi (mail) (www):
OrinKerr,

Sure if the patch really only required a technical knowledge of copyright law with no moral overtones I would be fine with it. Although just by particularly having a merit badge in copyright law and not in other unknown areas of law (defamation, libel, computer trespass etc.. etc..) there is a certain moral overtone.

My point with the Lockean perspective is that it is at the very least unclear that copyright infringement is morally equivalent to theft.

Ultimately I kinda feel offering only a merit badge in copyright law at this controversial point in time is similar (though obviously less extreme) to offering a merit badge particularly on voting requirements law during Jim Crow or on segregation law. It does more than merely inform about the law it indoctrinates the idea that this law is obviously right and just.
10.23.2006 1:28am
logicnazi (mail) (www):
A better example is if the boy scouts now started offering a merit badge on the requirements of employers to check for work permits in the US, i.e., illegal immigrants. This would be implicitly indoctrinating with a particular viewpoint on the controversial question of immigration.
10.23.2006 1:30am
Jeremy T:
This is the lamest thing I have ever read about in my entire life.
10.23.2006 1:47am
Frater Plotter:
The interesting situation here isn't that the Scouts are taking a stand on a contoversial issue. As has been pointed out above, the Scouts take stands on *lots* of controversial issues ... not so much in making legal claims about them, but in making claims about morals ("This is right; that is wrong") and practices ("This is what we do; never do that other thing.")

The situation here is that the Scouts appear to be:

1. Uncritically adopting a "moral" position that is not really based on moral reasoning or tradition, but on the economic interest of a tiny sector of society.

2. Making oversimplified claims about the law. Neglecting to discuss fair use and copyleft in a discussion of copyright is like teaching, "Never take anything that you haven't paid for" in a way that forbids the learner from accepting gifts.

3. Discussing copyright as an obligation of the public to the publisher, rather than as a legal right of the author. Scouts should (it seems to me) be taught that when they create a song or a story, it is _their_ copyright, and that if someone else rips it off, _they_ can take action.
10.23.2006 2:17am
Kovarsky (mail):
i don't understand, i learned from fox that hollywood was gay and i learned from Dale that gay is incompatible with the scout mission.
10.23.2006 2:27am
Kovarsky (mail):
By the way, I think Jeremy T's comment is actually the most astute observation yet.
10.23.2006 2:29am
Colin (mail):
Prof. Kerr said, "On the whole, I think I trust the MPAA to give a more accurate presentation of copyright law than, say, my friends at EFF."

I'm very surprised to read that. Your explanation—that the courts cleave more closely to the MPAA's view of copyright than to the EFF's—makes sense. But I think that there is a gap between the MPAA's litigation position and its rhetorical position. Someone above summarized the curriculum behind this badge as inadequately addressing legal downloads, which is not a mistake an MPAA legal team would make.

If this course of study was prepared by the MPAA's legal team, my concerns would be (somewhat) assuaged. But I suspect that it is coming out of an advocacy arm of the agency, based on the rhetoric, and so I'm not hopeful that it accurately depicts the legal, economic, and moral issues. Visiting a movie studio to see "how many people" are hurt by piracy, for example, seems more propagandistic than educational. You'd have to tie that to an understanding of revenue distribution and/or the actual effect of copyright infringement on revenue to make that mean more than an emotional appeal to not infringe on corporate copyrights despite the seemingly victimless nature of the crime. (I'm not opposed to that message, but I don't think it's part of what I would like to see, which is a course on IP in general.)

Is there more information available on the specifics of the curriculum?
10.23.2006 2:52am
Lev:
Speaking of pirates: Finding Neverland, Johnny Depp and Kate Winslet. Most excellent.
10.23.2006 3:27am
Fub:
Frater Plotter wrote:
Scouts should (it seems to me) be taught that when they create a song or a story, it is _their_ copyright, and that if someone else rips it off, _they_ can take action.
And that they should be very careful about singing "Happy Birthday" in public.
10.23.2006 3:35am
18 USC 1030 (mail):
As an Eagle Scout and an Assistant Scoutmaster I have to say I find this rather odd. I have no problem teaching scouts the law. In fact, much of scouting is aimed at this: scouts have merit badges in local government, national government, and "citizenship in the world." However, I am not sure I like the idea of an outside group, especially one with such strong views as the MPAA, creating the requirements for a merit badge. Surely, there are merit badges on other topics in which there are groups with strong understanding towards the topic--yet the BSA still makes the requirements. They may, rely on another organization for guidelines however that is used more as defense for the BSA guidelines than as the actual guideline. For example, with rifle shooting, BSA borrows a lot from the NRA-- However, it is in the context of "BSA says_____, note this is in line with the NRA guidelines for gun safety." It is not "The NRA has promulgated the following regulations for the rifle shooting merit badge."

I'm uncomfortable with the MPAA making the course. I'd be a lot more comfortable if this was worked on with other interests. I find it hard to believe no one in CCIPS would be willing to volunteer a few hours to assist in the format. My other concern is much of what makes scouting beneficial is they teach broadly. They create "jacks of all trades masters of none." If the scouts are going to teach on such a specific topic, is this really the best one? If scouts are going to be taught about such a specific area of technology law, wouldn't it be better to teach about issues related to cyber predators? Wouldn't it be best to teach kids how to stay safe online--whether from predators, spyware, and the like?

Not that I don't think this is important, but I'm not sure it really is representitive of what a merit badge is or ought to be. I'd be much more comfortable with this as some activity patch, rather than a merity badge.
10.23.2006 3:55am
Nathan_M (mail):
I think there is a very strong argument to be made that copyright law in the US has developed to protect the profits of large media companies, at the expense of the public.

Theoretically, a major justification of copyright law is to encourage artistic expression, by increase the profits artists can earn. Of course, copyright law is also a limitation on that expression: both because it restricts access to it (by raising prices) and by preventing the creation of derivative works. But we as a society have decided this is a necessary price to pay, just as we have decided to issue patents to encourage the development of new products.

If one accepts this economic justification to copyright law, many recent developments, especially the extension of the term of copyrights, are scandalous. These have increased profits for copyright holders, but imposed larger costs on society - while providing at most only a tiny incentive to artists to create new works. Whatever the expected value of copyright revenue 80 or 90 years from now is I doubt it has any real impact on the creation of new works.

Whether one agrees with it or not, there is a strong policy argument to be made that current copyright law is too protective of rights holders, and does a disservice to society as a whole. Of course, there is also an argument that our current system is appropriate. But I think it is very unfortunate the Boy Scouts are permitting the MPAA to indocrtinate children with one side of a controversial issue.

It is like allowing Green Peace to teach about global warming, teachers' unions to teach about school voucher programs, or the NRA to teach about gun control. Whatever one thinks about the merits of their arguments, the curriculum will be cunningly constructed to persuade impressionable children of one side of a controversial issue, and will not providing honest information or encourage critical thinking as an organization like the Scouts should.
10.23.2006 3:58am
18 USC 1030 (mail):
Well I should have done some research before commenting, apparently it is not a merit badge. It is an activity patch, which as I said above, I'm a little more comfortable with. But, I think one would need to see the course work before commenting as to whether or not the program is good or bad. My concern is more with what BSA will become if it continues along this path.
10.23.2006 4:02am
gerg:
I think the fact that the badge has music and movies on it and not, say, a book sums up the nature of the problem here as well as anything. I bet the vast majority of copyrighted works are books anyways.

And what the hell, a piracy badge without a Jolly Rogers on it?! Were these people never children themselves?
10.23.2006 5:03am
Doc Rampage (mail) (www):
Music piracy? Nuts. I thought I was going to read about the Scouts teaching how to sail a schooner, swing a cutlass and fire a black-powder pistol.
10.23.2006 5:07am
Ilya Somin:
When I first read the heading to this post, I thought that the Scouts were awarding kinds merit badges for learning how to be pirates (e.g. - capturing ships on the high seas; plundering the cargo; fencing their ill-gotten gains, etc). Very disappointing to learn that it's really just about IP law.

The Scouts have sure degenerated into wussiness since Indiana Jones was a member....
10.23.2006 6:43am
Glenn W. Bowen (mail):
so now the liberals running the media businesses *like* the Boy Scouts. wanna see a liberal temporarily become a conservative? hit him in the wallet.
10.23.2006 9:08am
anonVCfan:
The MPAA teaching children about copyright law kind of creeps me out.
10.23.2006 9:11am
A Guest:

so now the liberals running the media businesses *like* the Boy Scouts. wanna see a liberal temporarily become a conservative? hit him in the wallet.


Glad to see that someone in the comment section was able to turn the discussion to a 2-dimensional, liberal vs. conservative rant. After nearly 30 on-topic posts, I was beginning to wonder what was going on.
10.23.2006 9:18am
DK:
The patch is a great idea. You can't claim to teach moral conduct to kids if you don't address the kinds of crime kids are most likely to commit. Whatever the MPAA and the EFF think of the law, the practical reality is that the vast majority of high school and college students download illegal software and music, sometimes in ignorance and sometimes willfully, and generally for their own pleasure rather than for "fair use."

My own beliefs are closer to those of the EFF than the MPAA, but, IMHO, fair use is safer in a world where people are less likely to steal entire movies and albums when given the chance.
10.23.2006 9:35am
billb:
Orin, can you really be serious? Your saying that you'd rather that the organization that compared the VCR to the Boston Strangler prepare a copyright course for children than the EFF? The EFF may have taken some positions that the court utimately rejected, but I've never even seen the MPAA mention fair use in its educational materials. This is the organization whose members have to worry about copyright clearance for songs in TV shows running in the background of documentary clips for God's sake. How can the possibly be expected to present a rational and remotely correct view of the law for children?
10.23.2006 9:41am
billb:
Ugh. I previewed and everything. That's what I get for posting before consuming stimulants. Please ignore my your/you're mistake in the second sentence and my the/they typo in the last.
10.23.2006 9:45am
Houston Lawyer:
This would go well with my "Citizen of the World" merit badge. The Scouts are a relatively conservative organization. Teaching boys about the law is never a bad idea, unless you teach them about not being able to enter into a binding contract until they turn 18.

I learned that it was illegal to serve beer to minors after I told my parents that I didn't have any fun on a campout because I didn't drink the beer and smoke the cigarettes provided by the assistant scoutmaster.
10.23.2006 11:19am
OrinKerr:
I find it very interesting that some readers actually know everything about the precise design of the program without knowing anything at all about the precise design of the program. They just know.
10.23.2006 11:25am
OrinKerr:
BillB,

I think the key is that the courts have interpreted fair use more narrowly than most people assume. So I suspect the MPAA will have a pretty straightforward view of the law -- downloading movies online for free that you could see in the theater is a no-no -- that is pretty much correct. If courts had interpreted fair use more broadly, then I might agree with your instincts, but my sense is that the courts have not.
10.23.2006 11:40am
Colin (mail):
So I suspect the MPAA will have a pretty straightforward view of the law -- downloading movies online for free that you could see in the theater is a no-no -- that is pretty much correct.

I don't think that people would argue that the MPAA's position would be incorrect. I think that most people here are objecting to two things--first, the MPAA's presumed advocacy goal, and second, the narrowness of the curriculum. (And yes, we just know what the curriculum entails... but given the limited information available and the fact that we're posting in a forum, I think that's an excuseable and unremarkable amount of presumption.)

My antagonism towards the MPAA's role in this is based on the position that an IP badge is a great idea, but that the curriculum shouldn't be set by an agency with ulterior motives. The Scouts should be setting the curriculum themselves, with input from both the MPAA and EFF (and probably regulatory representatives too, although I realize there's a low limit on how in-depth the educational component can be).

Someone above said that a better structure would be to teach the kids why their work is copyrighted. I think that's a great idea, and that it would cover not just the basic legal elements but also go a long way to covering the moral ground that's so important to the MPAA.
10.23.2006 12:14pm
R:
I think it's okay to have a piracy patch, so long as they have to wear it over one eye.
10.23.2006 12:15pm
anonVCfan:
Also, I was really disappointed when I saw the patch. I was really hoping that it would be a skull and crossbones, or at least a skull and crossbones in a red circle with a line through it... because that would be cool.

My second choice would be a picture of the Capitol with the caption "every man has his price," and perhaps a smiling Mickey Mouse in there somewhere, but then again, that would be copyright infringement.
10.23.2006 12:17pm
Ben4343434:
Doc Rampage and R both beat me to the punch. I was expecting a patch with a skull and crossbones on it. It would be the most b.a. boyscout troop in the country.
10.23.2006 12:45pm
Mahlon:
I do not like this type of industry-promoted activity in Boy Scouts. Baden Powell is likely rolling in his grave. I would not be surprised to learn, however, that there was some money attached to this badge. (i.e. We'll donate $x to your council if you offer this patch). I don't like the idea of selling propoganda to Scouts. It is a purely local (i.e. one council or a small group of councils) and not a nationally sanctioned patch. However, it opens the doors for too many problems. It will come back to bite the BSA at some point.

This is not, however, a Merit Badge. It is an activity patch. It does not count toward advancement and is not required.
10.23.2006 12:45pm
Captain Holly (mail):
I'm not surprised the Boy Scouts would take a strong stand on copyright infringement; they're pretty protective of their own name and logo.
10.23.2006 1:50pm
Fub:
OrinKerr wrote:
I find it very interesting that some readers actually know everything about the precise design of the program without knowing anything at all about the precise design of the program. They just know.
The MPAA's sekrit curriculum to subvert a generation of kids into mindless zombies for the copyright industry is revealed!
10.23.2006 2:11pm
Steve P. (mail):
I agree with Orin's responses in the comments -- there seems to be little substantive against the MPAA except for an inarticulate distaste. I share in the distaste, but the real test is how it relates to other merit badges. Did the NRA assist in gun/hunting-related merit badges? If other groups have stepped in to help the BSA to make the merit badge requirements in the past, then I see nothing wrong here.

It's easy to read a secret agenda into the merit badge process, when the MPAA's agenda is anything but secret. Truth be told, the biggest problem with this merit badge is that I would never be caught dead wearing it.
10.23.2006 2:33pm
reneviht (mail) (www):
The materials in Fub's link seem mostly benign, except for being poorly-laid out (did anyone else get a screwed-up first paragraph?) so it's probably nothing to worry about. Although it's a lot of fun to mock.

On a related note, any law-types know anything about the merits of this case?
10.23.2006 2:35pm
FantasiaWHT:
I'm amazed at the amount of nitpicking over a program that's designed to educate kids on the illegality of an activity that they are EXTREMELY likely to take part in at some point.

It may not be entirely as precise as those of us who have studied these things might like, but why would we expect little kids to learn these matters that are, in the whole, inconsequential to the main issue.

Forests and trees, folks, forests and trees
10.23.2006 2:39pm
txjeansguy:
Orin, the courts do view copyright as a broad property right. But I wonder if the MPAA will tell the kiddies that that property right has a statutory, rather than moral, basis. I doubt it - have you seen their movie trailer ads?
10.23.2006 4:09pm
Mike Brown (mail) (www):

I share in the distaste, but the real test is how it relates to other merit badges. Did the NRA assist in gun/hunting-related merit badges? If other groups have stepped in to help the BSA to make the merit badge requirements in the past, then I see nothing wrong here.


As a matter of fact, many merit badges are, to a large degree, prepared by outside groups. This is especially true of the technical badges - I helped the ARRL write the Radio Merit Badge requirements back in '82, and was involved in the most recent changes which will be adopted next year. The new "Composite Materials" badge was, I understand, largely instituted at the request of the composite materials industry. Revised requirements must be approved by the National Advancement Committee, but it would be unusual for them to make substantive changes.
10.23.2006 4:13pm
Ragerz (mail):
As I suspected the MPAA is trying to turn Boy Scouts into morons. From the MPAA curriculm.

"Intellectual Property is no different than physical property."

And the inability to make distinctions will serve you well in highschool and in college. Who cares. As long as you buy the MPAA line.

I have a feeling that this activity patch will be rendered harmless by its uncoolness. Nonetheless, the attempt at propoganda is noteworthy.
10.23.2006 4:46pm
fishbane (mail):
I'm sure Orin would also support the Class Action Awareness merit badge. After all, the plaintiff attorneys that bring them to court would know best about the letter of the law.

Gah. I half want to tell them to revoke my Eagle if this is the sort of sillyness they're up to.
10.23.2006 5:19pm
abb3w:
First: Boing Boing has had some more coverage on the issue. They wear their bias on their sleeve.

Second: given the source of the material, I doubt that this is an unbiased presentation on copyright. It seems reasonable to expect that the focus in on the power, not the limitations, on copyright. The description from the AP article makes no mention of fair use. It would be interesting to study the materials, but of course posting them on the Net would be a copyright violation. =)

(If someone has an outline or Table of Contents, however, it would seem in my non-lawyer view that such would be reasonably considered fair use to post, especially in the interest of furthering the public discourse.)

I would think that copyright might be a subject worthy of a merit badge. Cover the history of copyright from printing patents and the statute of Anne; the constitution, with both "exclusive use" and "for limited times"; what may and may not be protected by copyright, and how views of this has changed over time; the history, purpose, and limiting of copyright registration; how the term has varied over time; the idea of contributory infringement; and perhaps an overview of half a dozen of the more prominent SCOTUS cases. Of course, not only am I not a lawyer, I'm not a scout, either.
10.23.2006 5:26pm
Rex:
I think the key is that the courts have interpreted fair use more narrowly than most people assume. So I suspect the MPAA will have a pretty straightforward view of the law -- downloading movies online for free that you could see in the theater is a no-no -- that is pretty much correct. If courts had interpreted fair use more broadly, then I might agree with your instincts, but my sense is that the courts have not.

I, too, think this is a rather strange position to take. For one thing, the MPAA has a direct economic interest in adopting an aggressive, not straightforward, view of the law. The MPAA is a trade association which, like any lobbying organization, seeks to expand the scope of the relevant law to benefit its constituent members. According to mpaa.org, "the association continues to advocate for strong protection of the creative works produced and distributed by the industry, fights copyright theft around the world, and provides leadership in meeting new and emerging industry challenges." Furthermore: "MPAA/MPA and its affiliated organizations work to strengthen the copyright laws of our trading partners and improve enforcement when necessary."

Here is the MPAA's explanation of fair use: "BUT 'fair use' is not an open-ended concept. It does not justify any action an individual may take with a copyrighted work, whether they have purchased the copy or not. It is a right to use what is available, not a right of access to works for fair use purposes." Compare that to the Ninth Circuit's statement in Sega v. Accolade: "We conclude that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law."
10.23.2006 5:27pm
billb:
I think the key is that the courts have interpreted fair use more narrowly than most people assume. So I suspect the MPAA will have a pretty straightforward view of the law -- downloading movies online for free that you could see in the theater is a no-no -- that is pretty much correct. If courts had interpreted fair use more broadly, then I might agree with your instincts, but my sense is that the courts have not.


Orin, I agree with your representation of the stance of the courts on fair use, but you give the MPAA way too much credit. They have continually misrepresented the state of the law in the course of public debate for decades. Why would they stop now? The EFF on the other hand is usually pretty clear on what is decided law and what is up for grabs in a court case. That they take an expansive view of the public domain and fair use in their court briefs is simply the way they attempt to advance their position on undecided issues before the courts (or are you telling me that Eldred and 2600 were done deals and never needed to have been litigated?).

That you believe that the MPAA will tell children the truth with no distortions, misrepresentations, or omissions is simply laughable in my opinion. They have a long history of such actions outside (and inside if Sega v. Accolade is any guide, thanks Rex!) the courtroom.

I admit that I'm no copyright maximalist, far from it, but, as an academic, I do rely on publishing for my livelihood. I'd certainly trust the EFF to give me the facts about copyright law and then tell me their position on the undecided issues before I'd trust the MPAA to do the same.

I suppose that we can see for ourselves what's the MPAA comes up with when the content for the merit patch hits the Internet (unless you're afraid of a copyright infringement suit for downloading it!).
10.23.2006 8:49pm
billb:
Orin: Thanks to Fub (I should've read all the comments more carefully before posting), we can see the MPAA at work:

1. There are three instances of "steal" or "stolen" with respect to intellectual property in those 2.5 pages. This is clearly a misrepresentation of the law regarding copyright infringement. 2. The first sentence equating physical and intellectual property is farcically wrong. 3. "Copyright theft" is not the crime that they describe, nor is piracy (at sea or the modern unathorized copying and distribution of copyright-protected works) the "theft" of copyright-protected materials.

The continued conflation of theft with copyright infringement is a deliberate and well-used tactic by the MPAA which is clearly counter to law and intended to create a false impression in the minds of the the public. The EFF never does this.

Now, I do admit that I was surprised by the description of p2p sites later in the document. It's remarkably fair. Of course, if this is all there is to the MPAA curriculum for the merit patch, there's really not much of a story here. Sorry to waste all the electrons.
10.23.2006 9:10pm
TRG:
That patch will look great on my uni! I'll put it somewhere between my abstinence badge and my Starbucks Barrista badge.
10.24.2006 12:18am
Drew (mail):
Another Scoutmaster's comments to follow up on 18 USC 1030 and to correct some other posts. The referenced program is not a "merit badge". Merit badges are developed over a period of years by national office of BS. MBs have specific requirements for a scout to fulfill in order to master a skill at a certain level of proficiency or to learn about a topic. Activity patches are very informal and are received by scouts for actively participating in certain events (summer camp, conservation projects, etc.). It is very common for a local scout group to partner with an outside organization to put on an activity and the outside organization provides an activity patch. Most of the commenters who disapprove of this activity patch likely would be pleased to know that many activity patches are from environmental/conservation causes.
10.24.2006 11:40am
Kent G. Budge (mail):
My initial reaction to this was extreme puzzlement, because local councils don't invent new merit badges, and the picture of the badge is much too elaborate to be a practical design for an embroidered patch an inch across. The clarification that this is an activity patch explains almost everything.

As others have pointed out, an activity patch has almost no significance in the broader Scouting program. It's something the boy wears on the right shirt pocket, but only until he does some other activity whose activity badge replaces it. Furthermore, there are very few rules governing these temporary and largely insignificant badges.

In other words, I think it's dumb, but it's a lot less harmful than a lot of dumb.
10.24.2006 11:50am
Colin (mail):
Thanks for the various comments clarifying the difference between merit badges and activity patches. I don't recall the latter from my Scouting days; are they a relatively recent thing? Alternatively, maybe I wasn't a very good Scout. At any rate, the merit/activity distinction does mitigate my concerns.
10.24.2006 12:50pm
Mr L:
Orin, the courts do view copyright as a broad property right. But I wonder if the MPAA will tell the kiddies that that property right has a statutory, rather than moral, basis. I doubt it - have you seen their movie trailer ads?

Since when are property rights not moral? They're an essential individual right and directly referenced in the Constitution; do you bitch and whine that we don't drill into kids' heads that stuff like free speech and nondiscrimination are merely 'statutory' as well?

As has already been mentioned, the amount of dishonest arguments here is amazing. If you think downloading gigabytes' of music you don't own and don't intend to purchase is super moral, then say so -- don't make dumb arguments, attack strawmen, or pretend that this activity badge is trying to propagandize against Copyleft or anything like that. Jesus.
10.24.2006 1:30pm
Mike Brown (mail) (www):

merit badges and activity patches. I don't recall the latter from my Scouting days; are they a relatively recent thing?

No, they're old as the hills. In the past they were mostly for attendance at camporees or the like, but I've got one from sometime in the 50's for a "get out the vote" campaign promoting voting as a civic duty. Patches have been given for selling popcorn, helping in community good turns, historic trails, and so on.

They have no significance for advancement purposes, just decoration and collection material basically.
10.24.2006 5:41pm
txjeansguy:
Mr. L, the source of copyright protection is statutory, not moral. The Constitution gives Congress the power 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." Art. I, Sxn. 8. Authors have as much a natural, moral right to ownership of their expressions as financiers have to "regulate the Value" of money. Id. The source of copyright protection is found at Title 17 of the U.S. Code. "Free speech" and "nondiscrimination" are not comparable.

What property consists of is the question, not the answer.
10.24.2006 5:50pm
Public_Defender (mail):
the source of copyright protection is statutory, not moral.

This is an important point. There is nothing inherently immoral about using a picture of Mickey Mouse 51 years, 76 years or 101 years after Disney created it. As we learned in the first year of law school, this is mala prohibita, not malum in se (wrong only because it's prohibited by law, not because it's morally wrong).

And successful efforts of copyright holders to skew the law in their favor diminishes the moral force of the law.

But the law is the law is the law. Regardless of Professor Post's protestations, "that's a stupid law" is not a defense. It's good for kids to learn about copyright.

My only quibble is that the scouts should learn enough to make thoughtful criticisms of the law. I doubt an MPAA-approved badge would do that.
10.25.2006 5:53am
fish4fun (mail):
What's immoral is that copyright has been extended as many times as it has and that copyright which was orginally limited to a similar term as a patent and is now as much as 6 times the length of a patent. What's even more immoral is that marvelous picture of Mickey Mouse was 'lifted' from earlier newspaper comics or drawings.

For a real eye opening look at copyright read "Free Culture" available for free under a Creative Commons liscense on the web.
10.25.2006 6:38pm
Anouninmouth:
10.29.2006 6:15pm