Could the Senate actually slow down an Imperial President?

New Petition Asks White House To Submit ACTA To The Senate For Ratification
[Via Techdirt]

As we noted in our post about people just discovering ACTA this week, some had put together an odd White House petition, asking the White House to “end ACTA.” The oddity was over the fact that the President just signed ACTA a few months ago. What struck us as a more interesting question was the serious constitutional questions of whether or not Obama is even allowed to sign ACTA.

In case you haven’t been following this or don’t spend your life dealing in Constitutional minutiae, the debate is over the nature of the agreement. A treaty between the US and other nations requires Senate approval. However, there’s a “simpler” form of an international agreement, known as an “executive agreement,” which allows the President to sign the agreement without getting approval. In theory, this also limits the ability of the agreement to bind Congress. In practice… however, international agreements are international agreements. Some legal scholars have suggested that the only real difference between a treaty and an executive agreement is the fact that… the president calls any treaty an “executive agreement” if he’s unsure if the Senate would approve it. Another words, the difference is basically in how the President presents it.

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I thought the Senate had to approve these measures. But no, the President has had the ability for over 150 years to enter into agreements with the full force of treaties but without getting approval.

These executive agreements have been used many, many times before – over 10,000. But there has never been a definitive court case defining the difference between an executive agreement and a treaty – and when the Senate really has to give approval –  when it does not directly affect the President’s enumerated powers..

What Obama has done here is well within the purview of what the Imperial President has acquired. But, because it affects something that Congress is given explicit control over there is an interesting Constitutional question – can the President bind the US to international agreements dealing with things under explicit Congressional control, without having Congress give its consent?

We now have a White House petition asking Obama to submit the agreement to the Senate for approval. Sign it and see what Obama does. SInce it is a Democratic Senator raising these points, it will be interesting to watch what happens. My bet – nothing because using executive agreements allow each party to bypass a weak Congress.

Both parties are in a spiral working to enhance the powers of the President while allowing Congress to atrophy. This is just the same way the Roman Republic died. It lasted 450 years or so. We may make it to about 250 unless things change.

This is how the movie business will change

by Editor B

Once Again, If You’re Trying To Save The $200 Million Movie, Perhaps You’re Asking The Wrong Questions
[Via Techdirt]

Many years back, when discussing new business models that don’t need to rely on copyright at a Cato event, an NBC Universal executive demanded to know how he could keep making $200 million movies. As we said at the time, that’s asking the wrong question. It’s makes no sense at all to start from a cost, and then derive back how to make that profitable. I could just as easily ask how can we possibly make $1 trillion movies in the future? The only thing that should concern Hollywood is how it can make profitable movies in the future. That could mean figuring out ways to make a profit on a movie that costs $200 million (and, certainly big blockbuster movies like Avatar sure seem to still be able to make plenty of money, despite being widely downloaded via unauthorized means). However, it might also mean making really good movies for a lot less money. Of course, we’ve suggested that in the past, and got mocked by Hollywood folks who seem to insist that any good movie has to cost a lot of money. That seems pretty presumptuous.

I’m a bit behind on this (the SOPA/PIPA stuff took up a lot of time), but filmmaker/actor/director/writer Ed Burns, who came to fame a couple decades ago with the massively successful indie film The Brothers McMullen, likely had every opportunity to follow the path of plenty of successful indie moviemakers: go mainstream. He could have hooked up with a big studio and been filming the latest of those $200 million bubble-gum flicks. And while Burns has appeared in a few big studio films (Saving Private Ryan), over the last few years, he’s really focused on staying close to his indie roots. In fact, he’s stayed so close to them, that you could argue his latest efforts are even more indie than his first film.

He filmed his latest movie, Newlyweds for a grand total of $9,000 ($2K for insurance, $2k for actors, $5k for food, transportation, and other costs) and was done in just 12 days — but spread out over 5 months. He used a three-man crew, natural lighting, found locations that didn’t require paying, and filmed with a Canon 5D camera.

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Two years ago, Joss Whedon produced Dr. Horrible’s Sing Along Blog for about $200,000 and made over twice that back. It could be more today.

And as shown in this example, it is a nice business model. And it is a business model totally disruptive to the sorts of business models used by Hollywood, whose bloated budgets support an ecosystem which permits them to use arcane accounting schemes resulting in movies that never make a ‘profit.’

The same technologies that can produce this disruptive system also happen to be pretty much the same ones that are also used by the ‘pirate’ they claim to hunt. It is very possible that the regulations they get in place to save their own business model will also be used to prevent market entry to the very same disruptors that threaten them.

A win-win for them and a huge loss for us. And for the creative talent that creates the material for the studios to begin with.

This is how money corrupts so much of our system.The only way to stop this is to make it a crime to do what Whedon and Burns are doing. And a first step along this path is to hamper the use of digital technologies and restrict the innovations they drive from bearing fruit.

Industrial Age approaches created business models that need billion dollar movies in order to sustain them. Or billion dollar drugs. Or 10 million albums sold. Or a million books sold.

Information Age approaches create business models needing 1000-fold lower revenues to sustain them. Instead of fighting this disruption, a healthy system would be working with them, coppting their disruption to further their own business lives.

Not likely to happen as we watch Kodak – who collaborating with Apple sold one of the first personal digital cameras – file for bankruptcy, completely missing the digital revolution it was actually first poised to take advantage of.

Now the studios stand at the same spot Kodak did 15 years ago. WIll they make the same mistake?

But as with all disruptive technologies, the studios can just not see how making a movie for $100,000 and getting back say $300,000 is sustainable. I expect there are huge numbers of creative talent who would disagree.

It is not just the US where insane copyright laws are being promulgated

Insane English copyright ruling creates ownership in the idea of a photo’s composition
[Via Boing Boing]

In a bizarre ruling, an English court has ruled that in favor of a commercial poster company that argued that a photo that showed a similar (but different) scene taken by a different person in a different place nevertheless infringed the copyright of a poster. What the judge ruled was that photographing a scene that is “substantially similar” to a scene someone else has already photographed infringes the first shooter’s copyright.

It’s impossible to understand how this will play out in real life. If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?

The judge here ruled that the idea of the image was the copyright, not the image itself. Ideas have always been exempt from copyright, because courts and lawmakers have recognized the danger of awarding ownership over ideas. Indeed, the “idea/expression split” is pretty much the first thing you learn in any copyright class.

(Images: Left, “Red Bus Image,” Temple Island; Right, packaging label, New English Teas. Taken from this PDF)

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The picture on the right violates the copyright of the picture on the left, according to the English judge. Who actually states that an idea is cpyrightable.

Except there is lots of legal precedent showing that an idea is NOT copyrightable. What a mess!

I hope they get this figured out. I wonder when the first similar case will be brought in the US?