Sorry, but that's just dumb. Copyrights and patents don't overlap at all: you cannot copyright inventions, and you cannot patent something that's not an invention. Furthermore the types of protection are significantly different.
Additionally, patents are still perfectly capable of being beneficial, and often are.
Because people working in Congress like Blackberries a lot, and have made it known that they don't want this conflict to disrupt their service, or else. Doctors and so forth can't pass legislation to get what they want.
Remember, Tokyo and New York time zones are 14 hours apart.
If you leave New York at noon, the trip would take six hours so the traveller would feel that it was 6pm, but local time would be 8am. You'd be ready to stop working for the day just when your counterparts are ready to get started. The same basic problem happens in the other direction.
You either need some downtime upon arrival in order to adjust (in which case, why hurry up to wait?) or whoever travels will be at a disadvantage.
Meh. A damn lot of the POS terminals I see these days have buttons -- often touchscreen buttons -- and are GUI based. A GUI doesn't have to be a windowing interface with a mouse, you know.
You do realize that that's the 5th Amendment, right? On its own, it only applies to the federal government. This is why we had to pass the 14th Amendment, which contains a due process clause that applies to the states. In fact, the 14th Amendment due process clause is the basis for making the states finally abide by the rights in the Bill of Rights.
Even under amendment XIV, it reads as if slaver could be used as a punishment (after due process) so.......
I think that you'd have difficulty getting that through the 8th Amendment, however involuntary servitude generally is constitutional: that's why if you're a duly convicted prisoner, you can be ordered to work smashing rocks, or whatever they do nowadays.
As for the penumbra, that's very controversial I gather and not specifically stated in the BoR so much as implied - though the SCoUSA is on your side with interpretation and of course, privacy is a good thing.
It's not that controversial. And the penumbra is indeed the implied part of the Constitution. For example, there is a clear right to free speech. However, there is no clear right for people to listen to that speech. Is the government not allowed to deny one, but allowed to deny the other? No, because the former only makes sense where there is also the implied latter. Like I said, it's not really that controversial.
I suppose it's possible. Similar things have happened before, e.g. Hawaii siezed land and immediately resold it to break up monolithic landowners, and this was found constitutional about 20 years ago. There are practical limits on eminent domain, which you're conveniently ignoring, however.
First, Kelo merely says that the Fifth Amendment doesn't prohibit this. State constitutions and laws are definitively interpreted, not by the federal Supreme Court, but by the state Supreme Courts. These laws and their interpretations can independently prohibit the state from exercising the eminent domain power to the limits permitted federally. In fact, a quick google indicates that the Michigan courts have a considerably stricter standard for takings and that your scenario cannot happen there (except perhaps for redeveloping blighted areas). Of course, I'm not a MI lawyer, and I'm not going to do extensive research for a/. post, but I wouldn't worry much.
Second, there is a political check. Even if a state's present law permits this, enough people seem to be upset about it that their legislators may take action to change the law to make them happy, or if they won't, they might get voted out in favor of someone who listens to their constituents more.
Third, your hypo was specifically considered by the Court in Kelo. They said that first, this wasn't that sort of situation, as these takings were part of a comprehensive development plan that had been carefully deliberated and promised additional benefits beyond merely more taxes. If what you describe were to arise, they said, they would be more suspicious of it. However, they're not going to worry about it now, since the present case was different. If your scenario comes to pass, they'll consider it on its own merits in the future, and perhaps figure out how to allow the one and not the other, but only when they actually need to.
Can I now develop tools and recover these legally?
Yes. Check out 17 USC 1201(a)(1)(A), (a)(2), but bear in mind that both of those are subject to the definition in (a)(3)(A).
No, something that prevents access without preventing copying is definately covered by the DMCA.
I never said it wasn't. There are three different types of offenses under 1201: Trafficking in tools to circumvent access controls; Circumventing access controls; Trafficking in tools to circumvent copyright controls.
(Circumventing copyright controls is ordinary copyright infringement, so it doesn't need to be in 1201)
Most DRM is of the access control variety. The reason that this is interesting is because trafficking in tools to circumvent copyright controls doesn't seem to be ok where authorized by the copyright holder, despite the fact that the copyright holder can of course permit circumvention (i.e. otherwise infringing acts). Thus it might depend a little on the kind of DRM you've got in front of you.
Slavery was accepted until the 1860s. Yet was plainly unconstitutional the entire time
No, it was plainly evil the entire time. It was constitutional, however. If you disagree, please point to the part of the antebellum Constitution (i.e. everything before the 13th Amendment) that prohibited it.
Privacy is not even a right mentioned in the BoR
It's in the penumbra.
But protection against unlawful search and seizure specifically protects property.
The seizure in question is of one's person and of evidence to be used against that person. It's not related to takings, which is why you don't need a warrant to condemn property, and you don't need to pay a fair price to put the smoking gun in an evidence locker.
Bizaare? Have you ever read history and noticed that the societies w/o property rights are usually the most restrictive in all the other ways? Soviet Russia for one. Feudal Societies for another. There is a correlation there.
No, not really. They also didn't have free speech, for example. Does that mean that free speech is the basis of property rights? Of course not. Those sorts of societies didn't care about their people at all; it had nothing to do with any specific right that was infringed upon.
You are confusing "cannot" with should not.
Nope. This is a pretty standard part of civil liberties jurisprudence. It has its origins in the clever ways that segregationists would employ to deny minorities their rights when the blatant ones were overturned. No one was fooled, and the clever methods got overturned too.
we don't have the complete command of ourselves?
No, we largely do. Not entirely: it's unconstitutional for you to sell yourself into slavery, for example. But these are liberty interests, not property interests. People aren't property; this is part of how their freedom is ensured.
copyright has been completely perverted anyway because the flip side has been ignored
And I agree, which is why I'd like to see copyright fixed, and why I spend time working on that.
No, this is why I say that Kelo isn't anything new.
That the exercise of the eminent domain power requires that the state pay for the value of the condemned property is why I say it's not a big deal.
This is particularly so, since virtually no one objects to eminent domain generally. People recognize that it's necessary in order to build roads, for example. Even its critics, who are few and far between, still tend to consider it at worst a necessary evil. So few people seem to have a problem with the state uniquely being able to coerce a sale for public purposes, they just have some disagreement as to what such a purpose is. Which brings us back to the purpose in Kelo not being anything new, and not having been objectionable before, so why would it be now?
Still, there might be enough of a division between the menus and the actual movie for a counter argument that they are separate, even if the former is a program.
Gee, thanks for enlightening me with that convincing argument.
It's not an argument, it's a fact. You may wish to see my other post on Kelo, on this page.
First, the bill of right specifically states that because some rights aren't enumerated doesn't mean they exist.
And the sky is often blue. I wasn't even discussing the Bill of Rights; you're bringing it up why?
Plus why then does the constitution address search and seizure
Privacy.
right to bear arms, disallowing troops from being quartered in your own home,
Distrust of standing armies, distrust of the federal government by the states, and distrust of government generally.
as well as the eminent domain restriction if Property Rights weren't recognized
Who said property rights aren't recognized? Not me. I said that they weren't "the foundation upon which everything else rests" which was the bizarre statement I had responded to.
Property rights do exist, but only because they're convenient. They're subject to change if necessary, and this has happened before.
without ownership, you cannot exercise any of your other rights because the goverment can indiscriminately take away whatever they like to oppress your rights (government doesn't like the New York Times print? Don't suppress their freedom of speech, just forcibly buy them out in the guise of public benefit!
No. The government cannot use clever means to infringe on your liberties just as much as they cannot use straightforward means. If the government attempted to purchase a newspaper solely for the purpose of censorship, the taking would be unconstitutional right off the bat. Furthermore, since a fair price -- as determined by a court and jury, if you reject the government's offer -- must be paid, you can set up a new newspaper. The taking is pointless, so there's little danger of even possible abuse.
Without property right, you don't even own yourself.
People are not property at all. No one owns people, not even themselves.
And this [anticircumvention provisions in copyright law] isn't big brother how?
It's hardly totalitarian. It's merely the product of greed. I oppose anticircumvention laws because I don't think that they are effective means of pursuing the goals of copyright. I suppose, however, that it might be possible to argue otherwise (though I've yet to be convinced), so it doesn't seem as though it would be outright unconstitutional. Congress has a lot of options for copyright law. Even if Eldred had turned out differently, they'd still have a lot of options. The best way to fix these laws is to get Congress to pass better laws, rather than engaging in court battles that, even if successful, are of limited utility. Don't read this as a total abandonment of the use of the judicial system for reform, however. They do still play an important part, just not enough to get all of what we want.
Anticircumvention only pertains to works that are copyrighted, so there is an argument that it isn't unconstitutional.
Still, I agree with your basic premise, and that's the central reason why I not only oppose DRM, but I think that the government should actively discourage its use (by, e.g. abolishing copyrights for works which have been DRMed under the authority of the copyright holder, and funding projects to crack DRM so that the automatically public domain works can be freely enjoyed).
the constitution states that property may be seized for PUBLIC use, but Kelo stated that property could be seized for PRIVATE development, based on the argument that this would improve the local economy (i.e. by creating jobs).
Yep, and that's not a new concept by any means. Public use is not the same as public ownership. So, for example, back in the 19th century, the government seized land, gave it to railroad companies so that they could put privately owned tracks on it, serving the public by improving our transportation infrastructure.
If you look at the history of eminent domain law, you'll see that Kelo is not novel. Given that the government still has to fairly compensate the owner (and can be sued for more money if they offer too little), I don't see a big problem. These are forced sales, but they're not robberies.
Meanwhile, no one is suggesting that the eminent domain power extends to private takings with no ultimate public purpose.
Fair use doesn't necesssarily permit backing up. It might, or might not, depending on the circumstances.
17 USC 117 has a provision allowing for backups regardless of fairness, but it usually isn't applicable. The only people who can use it are people who own a copy (as opposed to licensing a copy), where the work being backed up is a computer program, and where backups are destroyed (or if you're selling the original copy, transfered along with, if you prefer) whenever possession of the original copy is no longer rightful (which would tend to limit this to lawfully made original copies).
Computer programs are defined as being statements or instructions used directly or indirectly with a computer to produce a certain result. Thus, I think you'd have a hard time saying that mere data is a program, even though there is no real good line between data and software.
(Also there's no clear limit on how many copies you can use at once, which is good, since between RAM, various caches, virtual memory, etc. there are a lot of distinct copies whenever you're running software. A court might not like it if you bought one copy of a program and put it on a hundred machines for a hundred users, but you'd have a leg to stand on for your side AFAICT w/o doing significant research on this.)
If I encode my own CD to DRM'd WMA, I still don't have the right to break their encryption system.
Do you mean you own the copy of the CD, or you are the copyright holder for the work on the CD? If the latter, you do have the right to do so, actually, as circumvention is defined as being unauthorized by the copyright holder; if you're authorized, it's not circumvention, at least within 1201(a).
Remember, encryption is an access control. You can still copy the ciphertext. A copyright control mechanism is something that would prevent you from, for example, doing even that, even if it doesn't impair access to the work.
Access controls are far more common than copyright controls because they're easier to make, I guess.
It should take more than a act of congress because this rips apart all common sense property rights on which all other rights are based on (oh wait, the Supreme Court just shit on that back in June).
Two things here. First, you don't seem to understand the Kelo decision; it's really nothing new, and not a big deal. Second, I disagree that other rights are founded on property rights. Property rights are basically utilitarian in nature, although they developed so organically that this wasn't really discovered until comparatively recently. We have them because they're useful, not because they're foundational to actual inherent rights. Hell, Jefferson specifically left them out of the Declaration -- he was quoting Locke, but substituted 'pursuit of happiness' for 'property' because he didn't think there were property rights beyond being able to simply defend what was in your immediate grasp, except by consensus, which is variable.
Why shouldn't I be able to read or "bypass" what I own like the 1 and 0s on DVD/CDs/etc?
Arguably because this also is part of the utilitarian scheme of copyright. Really, of course, those in power no longer care about the goals of the system and have become confused or corrupt. Personally I'm not opposed to DRM and legal support for it in theory; it's on the table, when considering policy. But I also don't think that it's ever really a good idea to engage in this, given the long-term effects and the minimal incentive it provides, so my position is very strongly anti-DRM.
What's not legal is giving away the disk (basically your license to play the song) and keeping the music (or a copy of it) in any form
That's incorrect. I can think of some scenarios where it is lawful to do this. Also, there is no such thing as a license to play music in conjunction with ordinary consumers and CDs. Stop being fooled into thinking that there are licenses when there aren't; when there are, they'll be unmistakable (e.g. long, boring EULAs).
There is no difference between recording from source A to medium B, or recording to medium C. Whether the source is a CD or radio, and whether the source is analog or digital is irrelevant. Whether the recording medium is analog or digital is irrelevant.
It is illegal, if you're unauthorizedly making a copy of a copyrighted work. Unless, of course, there is an applicable exception.
Fair use might apply, but it depends on the overall circumstances. You can't really say that anyone recording from the radio for any purpose is doing so fairly. It always depends.
Also, there is the 17 USC 1008 exception, but it does depend on who is doing the recording, why they're doing it, and what devices or media they're using to accomplish it. 1008 would likely protect taping from the radio, but not making an mp3 from the radio. Note that there are important definitions of the terms in 1008 in 101 and 1001, which people often don't read, resulting in misunderstandings of what 1008 actually says.
Well, nowadays you can't, because it would take forever to lace up the little tiny gloves for that many locusts. But I remember being able to pay a nickel to see a hundred rounds of bare knuckle man v. locust boxing. Now that was a sport!
Re:Wrong argument - need a better solution
on
RIAA Sues a Child
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· Score: 2, Interesting
Copyright law must favour those who would create content enough that they are willing to share it.
I agree to a limited extent, but I don't like your wording at all.
Copyright must favor the public, not artists. But in order to best serve the public, we might confer some benefits on artists. Not because they're artists, but because the benefits are part of the overall scheme by which the public receives the most benefit for the least price. Because we're interested in what will best serve the public, which is not the same as maximizing creation (you don't want to know how much copyright we'd need for me to be incentivized to rearrange stars into creative patterns), we must accept that some artists won't be incentivized enough and some works won't be created. As long as the net public benefit is at maximum, we just have to live without works that cost more than they're worth.
They hold all the aces,
No, not really. Remember, we don't need to grant copyrights at all. If we do, and to the extent that we do, it must be for the public good. As it happens, artists are actually pretty easy to exploit. This is because they're highly optimistic. They have to be; most creative works have such a low economic value, if any, that you'd be better off just putting the money in a simple bank account. Additionally, virtually all the economic value of a work will be realized immediately upon publication in a given medium. Movies, make most of their money just when they hit theaters and just when they hit rental stores. Books do it in a couple of months. Computer software ages so fast that it's never of value for long, even if it's awfully successful. This means that we could reduce copyright terms to a couple of years and see no significant reduction in creation, while gaining huge public benefits.
The public has no default moral or legal right to any content created by others; they must offer up something as their side of the bargain in exchange for sharing in the benefits of others' work. It's been that way since the dawn of time
Quite false.
Until 1710, and then only in England, anyone had the right to republish what anyone else created. (Within limits because most of these societies weren't all that free, but that's a totally different issue) Most countries didn't have copyright laws until the 19th and 20th centuries.
Also, furthering the spread of creative works, and in so doing, helping to ensure their long term survival, are moral acts.
Frankly, this is essential in order for copyright to make any sense to begin with. If the default position is that everything is in the public domain, only then can the offer of copyright by the public to authors be attractive to them. But in order to serve the public, the copyright must be as limited as possible, and end as rapidly as possible, while best serving the public. Thus, in the end, it's a quid pro quo: the public will trade a limited copyright if the authors will create works.
benefit society by promoting the creation and distribution of works
That is beneficial, but it's not enough. Firstly, too much copyright will actually harm the creation of works (since works are highly derivative and established authors will try to expand their rights by always claiming that other works derive from theirs and thus should be under their control). Secondly, the public only really starts to benefit when the works are in the public domain, reducing their cost, increasing their availability, increasing the number of derivatives of it, and so forth. Artists cannot be relied upon to provide sufficient public benefits themselves.
since almost all of the problems I have with copyright today stem from the fact that it can be assigned to others who do not themselves create works, and various industries have more-or-less forced this to be the default action by those who do
I'd disagree. That's not a big problem, and at any rate, they are forcing no one to do anything. Seriously, think
They usually can't control copies regardless, save by legal means, which are effective no matter what technologies a pirate employs. So it doesn't really matter.
They've just gotten too attached to old forms of media is all. If they were acting smarter, they'd figure out how to use every technological advance that came along in their favor, instead of trying to freeze things.
It's still not a good argument as to why there is copyright.
You're obviously just supporting the winning side.
Hah! So the winning side is in favor of reducing copyright terms dramatically, of reinstating rigorous formalities, of pulling out from all copyright treaties, of making copyright and DRM exclusive, of making EULAs generally illegal, of permitting individuals to do anything they want, if it's not commercial in nature, and other reforms that I've proposed?
Just because I am also in favor of expanding the boundaries of transfer and work for hire doesn't mean that I'm supporting the winning side.
And believe me, no one is giving me money to support these things. I have a strong reformist view for its own sake, and in fact, if it came to pass, I'd probably lose potential income.
The Crown was fully in favor of the conveying of rights. In that fashion The Crown could bully anyone into giving up anything The Crown wanted.
We aren't talking about takings. We're talking about conveyances that are willingly made by authors. Please stay on subject.
Besides which, AFAIK, that didn't ever happen in England. Do you have an example of the British government seizing the copyright on a work so that they could profit from it instead, in the post 1710 period?
Every court case before the Supreme Court regarding copyright and intellectual property has two sides. Statistically, at least 50% of the finest legal minds in the nation agree with me.
No. I think that I can confidently say that no one has ever argued that copyrights cannot Constitutionally be conveyed at all, other than you. No legal minds have even considered it, and there have been no cases to that effect.
Plus, there's only a few lawyers involved in any given case. I've had to make arguments before -- not by choice -- where I had no support at all and everyone disagreed with me. The mere fact that there were two sides to the case doesn't mean that half of any group agreed. It just means that there is an adversarial system and clients can insist on stupid things at times.
it's easier to be a lapdog than stand up for yourself like any man with real testicles.
Nah. I actually think that not only is the conveyability of copyrights a good thing, but that it ought to be done more thoroughly. For example, I am opposed to 17 USC 203, despite that being an unpopular position. This isn't out of being a 'lapdog' but rather a heartfelt belief that conveyances should not be temporary unless the parties explicitly agree to that.
They're not maliciously wrong.
But nevertheless, you are the one person in all history who is right about this? I find that unlikely, to say the least.
Slashdot Mirror
Sorry, but that's just dumb. Copyrights and patents don't overlap at all: you cannot copyright inventions, and you cannot patent something that's not an invention. Furthermore the types of protection are significantly different.
Additionally, patents are still perfectly capable of being beneficial, and often are.
Why are gov't employees more important?
Because people working in Congress like Blackberries a lot, and have made it known that they don't want this conflict to disrupt their service, or else. Doctors and so forth can't pass legislation to get what they want.
Remember, Tokyo and New York time zones are 14 hours apart.
If you leave New York at noon, the trip would take six hours so the traveller would feel that it was 6pm, but local time would be 8am. You'd be ready to stop working for the day just when your counterparts are ready to get started. The same basic problem happens in the other direction.
You either need some downtime upon arrival in order to adjust (in which case, why hurry up to wait?) or whoever travels will be at a disadvantage.
Meh. A damn lot of the POS terminals I see these days have buttons -- often touchscreen buttons -- and are GUI based. A GUI doesn't have to be a windowing interface with a mouse, you know.
You do realize that that's the 5th Amendment, right? On its own, it only applies to the federal government. This is why we had to pass the 14th Amendment, which contains a due process clause that applies to the states. In fact, the 14th Amendment due process clause is the basis for making the states finally abide by the rights in the Bill of Rights.
Even under amendment XIV, it reads as if slaver could be used as a punishment (after due process) so.......
I think that you'd have difficulty getting that through the 8th Amendment, however involuntary servitude generally is constitutional: that's why if you're a duly convicted prisoner, you can be ordered to work smashing rocks, or whatever they do nowadays.
As for the penumbra, that's very controversial I gather and not specifically stated in the BoR so much as implied - though the SCoUSA is on your side with interpretation and of course, privacy is a good thing.
It's not that controversial. And the penumbra is indeed the implied part of the Constitution. For example, there is a clear right to free speech. However, there is no clear right for people to listen to that speech. Is the government not allowed to deny one, but allowed to deny the other? No, because the former only makes sense where there is also the implied latter. Like I said, it's not really that controversial.
I suppose it's possible. Similar things have happened before, e.g. Hawaii siezed land and immediately resold it to break up monolithic landowners, and this was found constitutional about 20 years ago. There are practical limits on eminent domain, which you're conveniently ignoring, however.
/. post, but I wouldn't worry much.
First, Kelo merely says that the Fifth Amendment doesn't prohibit this. State constitutions and laws are definitively interpreted, not by the federal Supreme Court, but by the state Supreme Courts. These laws and their interpretations can independently prohibit the state from exercising the eminent domain power to the limits permitted federally. In fact, a quick google indicates that the Michigan courts have a considerably stricter standard for takings and that your scenario cannot happen there (except perhaps for redeveloping blighted areas). Of course, I'm not a MI lawyer, and I'm not going to do extensive research for a
Second, there is a political check. Even if a state's present law permits this, enough people seem to be upset about it that their legislators may take action to change the law to make them happy, or if they won't, they might get voted out in favor of someone who listens to their constituents more.
Third, your hypo was specifically considered by the Court in Kelo. They said that first, this wasn't that sort of situation, as these takings were part of a comprehensive development plan that had been carefully deliberated and promised additional benefits beyond merely more taxes. If what you describe were to arise, they said, they would be more suspicious of it. However, they're not going to worry about it now, since the present case was different. If your scenario comes to pass, they'll consider it on its own merits in the future, and perhaps figure out how to allow the one and not the other, but only when they actually need to.
Can I now develop tools and recover these legally?
Yes. Check out 17 USC 1201(a)(1)(A), (a)(2), but bear in mind that both of those are subject to the definition in (a)(3)(A).
No, something that prevents access without preventing copying is definately covered by the DMCA.
I never said it wasn't. There are three different types of offenses under 1201: Trafficking in tools to circumvent access controls; Circumventing access controls; Trafficking in tools to circumvent copyright controls.
(Circumventing copyright controls is ordinary copyright infringement, so it doesn't need to be in 1201)
Most DRM is of the access control variety. The reason that this is interesting is because trafficking in tools to circumvent copyright controls doesn't seem to be ok where authorized by the copyright holder, despite the fact that the copyright holder can of course permit circumvention (i.e. otherwise infringing acts). Thus it might depend a little on the kind of DRM you've got in front of you.
Slavery was accepted until the 1860s. Yet was plainly unconstitutional the entire time
No, it was plainly evil the entire time. It was constitutional, however. If you disagree, please point to the part of the antebellum Constitution (i.e. everything before the 13th Amendment) that prohibited it.
Privacy is not even a right mentioned in the BoR
It's in the penumbra.
But protection against unlawful search and seizure specifically protects property.
The seizure in question is of one's person and of evidence to be used against that person. It's not related to takings, which is why you don't need a warrant to condemn property, and you don't need to pay a fair price to put the smoking gun in an evidence locker.
Bizaare? Have you ever read history and noticed that the societies w/o property rights are usually the most restrictive in all the other ways? Soviet Russia for one. Feudal Societies for another. There is a correlation there.
No, not really. They also didn't have free speech, for example. Does that mean that free speech is the basis of property rights? Of course not. Those sorts of societies didn't care about their people at all; it had nothing to do with any specific right that was infringed upon.
You are confusing "cannot" with should not.
Nope. This is a pretty standard part of civil liberties jurisprudence. It has its origins in the clever ways that segregationists would employ to deny minorities their rights when the blatant ones were overturned. No one was fooled, and the clever methods got overturned too.
we don't have the complete command of ourselves?
No, we largely do. Not entirely: it's unconstitutional for you to sell yourself into slavery, for example. But these are liberty interests, not property interests. People aren't property; this is part of how their freedom is ensured.
copyright has been completely perverted anyway because the flip side has been ignored
And I agree, which is why I'd like to see copyright fixed, and why I spend time working on that.
And this is your defense?
No, this is why I say that Kelo isn't anything new.
That the exercise of the eminent domain power requires that the state pay for the value of the condemned property is why I say it's not a big deal.
This is particularly so, since virtually no one objects to eminent domain generally. People recognize that it's necessary in order to build roads, for example. Even its critics, who are few and far between, still tend to consider it at worst a necessary evil. So few people seem to have a problem with the state uniquely being able to coerce a sale for public purposes, they just have some disagreement as to what such a purpose is. Which brings us back to the purpose in Kelo not being anything new, and not having been objectionable before, so why would it be now?
Still, there might be enough of a division between the menus and the actual movie for a counter argument that they are separate, even if the former is a program.
Gee, thanks for enlightening me with that convincing argument.
It's not an argument, it's a fact. You may wish to see my other post on Kelo, on this page.
First, the bill of right specifically states that because some rights aren't enumerated doesn't mean they exist.
And the sky is often blue. I wasn't even discussing the Bill of Rights; you're bringing it up why?
Plus why then does the constitution address search and seizure
Privacy.
right to bear arms, disallowing troops from being quartered in your own home,
Distrust of standing armies, distrust of the federal government by the states, and distrust of government generally.
as well as the eminent domain restriction if Property Rights weren't recognized
Who said property rights aren't recognized? Not me. I said that they weren't "the foundation upon which everything else rests" which was the bizarre statement I had responded to.
Property rights do exist, but only because they're convenient. They're subject to change if necessary, and this has happened before.
without ownership, you cannot exercise any of your other rights because the goverment can indiscriminately take away whatever they like to oppress your rights (government doesn't like the New York Times print? Don't suppress their freedom of speech, just forcibly buy them out in the guise of public benefit!
No. The government cannot use clever means to infringe on your liberties just as much as they cannot use straightforward means. If the government attempted to purchase a newspaper solely for the purpose of censorship, the taking would be unconstitutional right off the bat. Furthermore, since a fair price -- as determined by a court and jury, if you reject the government's offer -- must be paid, you can set up a new newspaper. The taking is pointless, so there's little danger of even possible abuse.
Without property right, you don't even own yourself.
People are not property at all. No one owns people, not even themselves.
And this [anticircumvention provisions in copyright law] isn't big brother how?
It's hardly totalitarian. It's merely the product of greed. I oppose anticircumvention laws because I don't think that they are effective means of pursuing the goals of copyright. I suppose, however, that it might be possible to argue otherwise (though I've yet to be convinced), so it doesn't seem as though it would be outright unconstitutional. Congress has a lot of options for copyright law. Even if Eldred had turned out differently, they'd still have a lot of options. The best way to fix these laws is to get Congress to pass better laws, rather than engaging in court battles that, even if successful, are of limited utility. Don't read this as a total abandonment of the use of the judicial system for reform, however. They do still play an important part, just not enough to get all of what we want.
Anticircumvention only pertains to works that are copyrighted, so there is an argument that it isn't unconstitutional.
Still, I agree with your basic premise, and that's the central reason why I not only oppose DRM, but I think that the government should actively discourage its use (by, e.g. abolishing copyrights for works which have been DRMed under the authority of the copyright holder, and funding projects to crack DRM so that the automatically public domain works can be freely enjoyed).
the constitution states that property may be seized for PUBLIC use, but Kelo stated that property could be seized for PRIVATE development, based on the argument that this would improve the local economy (i.e. by creating jobs).
Yep, and that's not a new concept by any means. Public use is not the same as public ownership. So, for example, back in the 19th century, the government seized land, gave it to railroad companies so that they could put privately owned tracks on it, serving the public by improving our transportation infrastructure.
If you look at the history of eminent domain law, you'll see that Kelo is not novel. Given that the government still has to fairly compensate the owner (and can be sued for more money if they offer too little), I don't see a big problem. These are forced sales, but they're not robberies.
Meanwhile, no one is suggesting that the eminent domain power extends to private takings with no ultimate public purpose.
Fair use doesn't necesssarily permit backing up. It might, or might not, depending on the circumstances.
17 USC 117 has a provision allowing for backups regardless of fairness, but it usually isn't applicable. The only people who can use it are people who own a copy (as opposed to licensing a copy), where the work being backed up is a computer program, and where backups are destroyed (or if you're selling the original copy, transfered along with, if you prefer) whenever possession of the original copy is no longer rightful (which would tend to limit this to lawfully made original copies).
Computer programs are defined as being statements or instructions used directly or indirectly with a computer to produce a certain result. Thus, I think you'd have a hard time saying that mere data is a program, even though there is no real good line between data and software.
(Also there's no clear limit on how many copies you can use at once, which is good, since between RAM, various caches, virtual memory, etc. there are a lot of distinct copies whenever you're running software. A court might not like it if you bought one copy of a program and put it on a hundred machines for a hundred users, but you'd have a leg to stand on for your side AFAICT w/o doing significant research on this.)
If I encode my own CD to DRM'd WMA, I still don't have the right to break their encryption system.
Do you mean you own the copy of the CD, or you are the copyright holder for the work on the CD? If the latter, you do have the right to do so, actually, as circumvention is defined as being unauthorized by the copyright holder; if you're authorized, it's not circumvention, at least within 1201(a).
Remember, encryption is an access control. You can still copy the ciphertext. A copyright control mechanism is something that would prevent you from, for example, doing even that, even if it doesn't impair access to the work.
Access controls are far more common than copyright controls because they're easier to make, I guess.
It should take more than a act of congress because this rips apart all common sense property rights on which all other rights are based on (oh wait, the Supreme Court just shit on that back in June).
Two things here. First, you don't seem to understand the Kelo decision; it's really nothing new, and not a big deal. Second, I disagree that other rights are founded on property rights. Property rights are basically utilitarian in nature, although they developed so organically that this wasn't really discovered until comparatively recently. We have them because they're useful, not because they're foundational to actual inherent rights. Hell, Jefferson specifically left them out of the Declaration -- he was quoting Locke, but substituted 'pursuit of happiness' for 'property' because he didn't think there were property rights beyond being able to simply defend what was in your immediate grasp, except by consensus, which is variable.
Why shouldn't I be able to read or "bypass" what I own like the 1 and 0s on DVD/CDs/etc?
Arguably because this also is part of the utilitarian scheme of copyright. Really, of course, those in power no longer care about the goals of the system and have become confused or corrupt. Personally I'm not opposed to DRM and legal support for it in theory; it's on the table, when considering policy. But I also don't think that it's ever really a good idea to engage in this, given the long-term effects and the minimal incentive it provides, so my position is very strongly anti-DRM.
Well, that makes some sense, though. Spider-Man grew up in Queens, so he'd probably be out there quite a bit.
What's not legal is giving away the disk (basically your license to play the song) and keeping the music (or a copy of it) in any form
That's incorrect. I can think of some scenarios where it is lawful to do this. Also, there is no such thing as a license to play music in conjunction with ordinary consumers and CDs. Stop being fooled into thinking that there are licenses when there aren't; when there are, they'll be unmistakable (e.g. long, boring EULAs).
There is no difference between recording from source A to medium B, or recording to medium C. Whether the source is a CD or radio, and whether the source is analog or digital is irrelevant. Whether the recording medium is analog or digital is irrelevant.
It is illegal, if you're unauthorizedly making a copy of a copyrighted work. Unless, of course, there is an applicable exception.
Fair use might apply, but it depends on the overall circumstances. You can't really say that anyone recording from the radio for any purpose is doing so fairly. It always depends.
Also, there is the 17 USC 1008 exception, but it does depend on who is doing the recording, why they're doing it, and what devices or media they're using to accomplish it. 1008 would likely protect taping from the radio, but not making an mp3 from the radio. Note that there are important definitions of the terms in 1008 in 101 and 1001, which people often don't read, resulting in misunderstandings of what 1008 actually says.
Well, nowadays you can't, because it would take forever to lace up the little tiny gloves for that many locusts. But I remember being able to pay a nickel to see a hundred rounds of bare knuckle man v. locust boxing. Now that was a sport!
Copyright law must favour those who would create content enough that they are willing to share it.
I agree to a limited extent, but I don't like your wording at all.
Copyright must favor the public, not artists. But in order to best serve the public, we might confer some benefits on artists. Not because they're artists, but because the benefits are part of the overall scheme by which the public receives the most benefit for the least price. Because we're interested in what will best serve the public, which is not the same as maximizing creation (you don't want to know how much copyright we'd need for me to be incentivized to rearrange stars into creative patterns), we must accept that some artists won't be incentivized enough and some works won't be created. As long as the net public benefit is at maximum, we just have to live without works that cost more than they're worth.
They hold all the aces,
No, not really. Remember, we don't need to grant copyrights at all. If we do, and to the extent that we do, it must be for the public good. As it happens, artists are actually pretty easy to exploit. This is because they're highly optimistic. They have to be; most creative works have such a low economic value, if any, that you'd be better off just putting the money in a simple bank account. Additionally, virtually all the economic value of a work will be realized immediately upon publication in a given medium. Movies, make most of their money just when they hit theaters and just when they hit rental stores. Books do it in a couple of months. Computer software ages so fast that it's never of value for long, even if it's awfully successful. This means that we could reduce copyright terms to a couple of years and see no significant reduction in creation, while gaining huge public benefits.
The public has no default moral or legal right to any content created by others; they must offer up something as their side of the bargain in exchange for sharing in the benefits of others' work. It's been that way since the dawn of time
Quite false.
Until 1710, and then only in England, anyone had the right to republish what anyone else created. (Within limits because most of these societies weren't all that free, but that's a totally different issue) Most countries didn't have copyright laws until the 19th and 20th centuries.
Also, furthering the spread of creative works, and in so doing, helping to ensure their long term survival, are moral acts.
Frankly, this is essential in order for copyright to make any sense to begin with. If the default position is that everything is in the public domain, only then can the offer of copyright by the public to authors be attractive to them. But in order to serve the public, the copyright must be as limited as possible, and end as rapidly as possible, while best serving the public. Thus, in the end, it's a quid pro quo: the public will trade a limited copyright if the authors will create works.
benefit society by promoting the creation and distribution of works
That is beneficial, but it's not enough. Firstly, too much copyright will actually harm the creation of works (since works are highly derivative and established authors will try to expand their rights by always claiming that other works derive from theirs and thus should be under their control). Secondly, the public only really starts to benefit when the works are in the public domain, reducing their cost, increasing their availability, increasing the number of derivatives of it, and so forth. Artists cannot be relied upon to provide sufficient public benefits themselves.
since almost all of the problems I have with copyright today stem from the fact that it can be assigned to others who do not themselves create works, and various industries have more-or-less forced this to be the default action by those who do
I'd disagree. That's not a big problem, and at any rate, they are forcing no one to do anything. Seriously, think
They usually can't control copies regardless, save by legal means, which are effective no matter what technologies a pirate employs. So it doesn't really matter.
They've just gotten too attached to old forms of media is all. If they were acting smarter, they'd figure out how to use every technological advance that came along in their favor, instead of trying to freeze things.
It's still not a good argument as to why there is copyright.
You're obviously just supporting the winning side.
Hah! So the winning side is in favor of reducing copyright terms dramatically, of reinstating rigorous formalities, of pulling out from all copyright treaties, of making copyright and DRM exclusive, of making EULAs generally illegal, of permitting individuals to do anything they want, if it's not commercial in nature, and other reforms that I've proposed?
Just because I am also in favor of expanding the boundaries of transfer and work for hire doesn't mean that I'm supporting the winning side.
And believe me, no one is giving me money to support these things. I have a strong reformist view for its own sake, and in fact, if it came to pass, I'd probably lose potential income.
The Crown was fully in favor of the conveying of rights. In that fashion The Crown could bully anyone into giving up anything The Crown wanted.
We aren't talking about takings. We're talking about conveyances that are willingly made by authors. Please stay on subject.
Besides which, AFAIK, that didn't ever happen in England. Do you have an example of the British government seizing the copyright on a work so that they could profit from it instead, in the post 1710 period?
Every court case before the Supreme Court regarding copyright and intellectual property has two sides. Statistically, at least 50% of the finest legal minds in the nation agree with me.
No. I think that I can confidently say that no one has ever argued that copyrights cannot Constitutionally be conveyed at all, other than you. No legal minds have even considered it, and there have been no cases to that effect.
Plus, there's only a few lawyers involved in any given case. I've had to make arguments before -- not by choice -- where I had no support at all and everyone disagreed with me. The mere fact that there were two sides to the case doesn't mean that half of any group agreed. It just means that there is an adversarial system and clients can insist on stupid things at times.
it's easier to be a lapdog than stand up for yourself like any man with real testicles.
Nah. I actually think that not only is the conveyability of copyrights a good thing, but that it ought to be done more thoroughly. For example, I am opposed to 17 USC 203, despite that being an unpopular position. This isn't out of being a 'lapdog' but rather a heartfelt belief that conveyances should not be temporary unless the parties explicitly agree to that.
They're not maliciously wrong.
But nevertheless, you are the one person in all history who is right about this? I find that unlikely, to say the least.