If the rational for this disparity is that the downloader is being punished for the theft and for his distribution of the material while the shoplifter is only being punished for the theft, is there not a fundamental conundrum?
Statutory damages apply regardless of the nature of the infringement. Reproduction alone is not treated differently than reproduction and distribution with regards to this. So that's not the rationale.
If Alice downloads a file illegaly and then shares it with Bob, Berry, and Bart, she can be punished with the downloader penalties, which include punishment for the illegal distribution of the work (i.e. representing the copying she did as well as the copying she allowed others to do).
No, that's incorrect. If you reproduce a copyrighted work, as occurs when you download it without authorization in an infringing manner, then that is one act of infringement by itself. Distributing the work to others, as occurs when you upload it without authorization in an infringing manner, is a seperate act of infringement.
This doesn't matter for statutory damages, since they are computed per work infringed, not per infringement, but they are distinct. For example, you could buy a lawfully made copy of a work, and then distribute the work (e.g. by renting an audio CD) and that would be an infringement without any reproduction.
What then can Bob, Berry, and Bart be charged with?
Criminally, copyright infringement for downloading, if they satisfy the requirements for that. Civilly, I wouldn't say 'charged' but again, downloading copyrighted works without authorization, in an infringing manner, is copyright infringement.
Alice has allready been convicted of the crime of distributing this data. How can they ALSO be guilty?
There is a big distinction between criminal and civil actions (copyright has both civil and criminal penalties, but the civil branch of the law predominates). Anyway, distribution is not the same thing as reproduction -- that's how.
If the purpose of copyright is to control the copying and we are to presume that any individual downloading is the one doing the actual copying, then it is clear that the person hosting the file is not at fault.
Copyright actually deals with a number of different rights. Reproduction is one; distribution is an entirely seperate one. And there are others. See 17 USC 106.
Why then are file sharers liable for damages other than those representitive of the fair market value of the files on their systems?
Because it is felt that those damages are so low that no one would bother to obey the law.
The only obstacles to an imposition of statutory damages are at 17 USC 412 and extremely rare cases (they won't apply to anyone here) under 504(c)(2).
Even one single instance of infringement, such as by reproduction, will permit a claim of statutory damages that can be as low as $200 per work, or as high as $150,000 per work. It's fairly simple: just read 17 USC 106(1), 501, and 504(a),(c).
The other people who downloaded from you have also infringed, and if the plaintiff wants damages from them, they can sue for them.
There's no real threshold. Some courts sometimes find de minimis infringement, other courts say that there's no such thing, based on their reading of the statute. Minor infringements might be fair uses, but there is a multifactor fair use analysis (see 17 USC 107) and while size is a factor, if those are the important parts, the fact that you ignored the unimportant majority isn't going to matter much.
The important thing is that it derive from the copyrightable work. If "Paul Clifford" were copyrighted, and you copied "It was a dark and stormy night" from it, then that's going to be infringing. OTOH, if you independently came up with that line (which, as the works are more and more similar, is harder to be convincing of, where you had access to the plaintiff's work), then there is no infringement.
It might be useful in this arena if you a.) use terms which are in reasonably common usage, and b.) stick to the normally accepted meaning of those terms.
Well, I don't normally see people talking about conversion, so I guess I made a poor assumption. At any rate, the correct term in the copyright law jaron is 'exclusive right.'
Now then; if you circumvent my ability to exclude others - *any others* - at my leisure, you have abrogated my rights.
No, we have merely infringed upon them; abrogation strikes me as more along the lines of completely getting rid of them. An infringement hardly destroys a copyright, it merely offends it.
Your point of view implies that there is no other property than what is referred to legally as 'real property'.
I don't believe I said that. There is real and personal property, and some personal property is intangible. Nevertheless, I think that copyright is at a minimum arguably not personal property, as not all of its characteristics mesh with that of other property: * The subject matter is non rivalrous, which is distinct from other property rights * It has to be specially granted by the government, which is unusual * It has to expire, which is very unusual * It has to expire for a public purpose, and this has never been found to be a taking
In fact, if you nullify my legal rights by your deliberate action, you have taken something from me, expressly against my wishes.
Your rights aren't nullified by infringement. They're infringed, but you still have them and can still assert them. It's the difference between respecting something naturally, and being forced to respect something.
The legal term for this is theft. It does not apply strictly to material property in any venue I am aware of.
No, it depends. For starters, theft is really only a criminal term -- civilly it would be trespass, trespass to chattels or conversion in the vast majority of the time. Plus it's rare for it to apply to intangible property, and anyway, as has been discussed, theft does require a deprivation, and deprivations of copyright don't happen in the course of an infringement.
To restate that for emphasis: When you infringe on a copyright, you do not steal that copyright.
You seem to be confusing the issue. Say I have property I wish to defend, and I put a fence around it to keep it safe. You climb over the fence and steal it. Truly, you have not removed the fence, and it will still keep out those who won't climb over it. But the objective of the fence is not to keep people from climbing over it; it is to safeguard my property. This is likewise the objective of copyright law
No, first, there is a world of difference between a copyright and the work the copyright pertains to. I think that you're conflating them. An infringement does not involve a taking of either, but at most only the former can be property to begin with.
So to borrow your very poor analogy, it's as though you have a creative work, and you erect a fence of rights around it to protect your exploitation of that work. To infringe would be to exploit the work by bypassing the fence. But the only conceivable form of theft would be to steal the fence itself -- which obviously doesn't happen 99.44% of the time, if at all.
Second, the objective of copyright law is solely to promote the progess of science, specifically the equal public interests in the creation of original works, creation of derivative works, and unencumbered enjoyment of those works. It's not actually intended to protect anyone specific.
when you circumvent the lawful owner's control of his property, real or otherwise, you are stealing, legalistic bullshit notwithstanding
I assure you, if I walk on your land, I haven't stolen it and you could never make out a case claiming such. You might not like the formal distinctions in the law, but the law cares about them a lot. If you were to try such a tactic, I assure you, you would have your claim dismissed because it's simply unfounded. Probably not a good idea then, when you have no option other than to play by the rules, to call the rules bullshit. It avails you nothing.
I'm sorry, I'm using a term of art. 'Exclusive' with regards to copyright, is the right to exclude others at one's leisure. It's not a right to actually do anything, however, and it is not to be confused with the more common use of that word to mean 'sole.'
To use a common example, if I take your car, I have trespassed to chattel. If I materially ruin it, I have converted it. (do note the distinction, as copyright infringement certainly doesn't rise to the level of harm needed for conversion as well)
What's important there is that since your car is rivalrous, when I take it, you don't have it. I have exclusive control, wrongfully, against everyone, including you, the rightful owner.
If I merely infringe on a copyright, however, I have not removed your exclusive control, I'm merely ignoring it. You can still exclude everyone else just as much as you ever could. When I stop, you don't get anything back, because nothing was taken. You just get someone to stop ignoring you.
Conversion may very well be amoral. Nevertheless, copyright infringement is utterly distinct from conversion, among other reasons due to the fact that the former does not involve wresting exclusive control over something, and the latter does.
If you want to compare it to a common law tort, the appropriate one would more likely be a minor case of trespass to land. (although even land is more rivalrous than works are)
The right to distribute copies of a copyrighted work is a right of ownership.
Authors have no special right to distribute copies of their works, and to the degree that they have such a right -- which is indistinguishable from everyone else's right -- it's an aspect of the right of free speech, not of ownership. (well aside from ownership of the copies themselves, but I don't think you care about the copies per se)
Plus, it's not at all evident that copyright is a property right.
No. That's merely a choice between different torrents, and not entrapment any more than a choice between different drug dealers (where one is an undercover policeman) is.
To be entrapment, the government basically would have to strongly compel you to do something you otherwise would not have done. Providing a torrent is not enough -- if you weren't going to pirate, the addition of one more site to pirate from wouldn't matter. OTOH, if some government agent practically put your finger on the mouse to click on a download key, then we're talking entrapment.
As I said, the popular conception of entrapment is very different than what it really is, which is quite narrow. I suggest googling for more information.
Entrapment is far more limited than people normally think. Basically it's where you're enticed to do something you would otherwise not have done, as opposed to merely being given an opportunity to do something you would've done elsewhere anyway.
The first example that springs to mind is the Space Madness episode of Ren and Stimpy. Stimpy would normally never press the History Eraser Button, but when he's not only deliberately put in proximity to it, and the narrator keeps pushing his face in it, that's basically how much effort is needed for something to be entrapment.
Just being undercover -- that's not entrapment.
You could probably google for a discussion of the issue with some good case cites or something.
Actually it is both -- trademarks mainly exist to protect customers, but there is also a recognition that it is not a fair trade practice for one company to leech off of the goodwill in the minds of the public that another company has accumulated.
True -- if you're outside the US, given that US copyright law is generally not applied outside our borders, the above wouldn't apply.
Of course, do note that people in the US still are subject to our laws -- so it's possible to illegally download from a place that can legally distribute, because the people involved are in different places.
I also am not a Swedish lawyer; I'm licensed to practice in Massachusetts in the US. I'm not familiar with foreign copyright law, and honestly I'm not all that interested in it. However, I wouldn't rely on a pirate to provide a legal opinion for why he should be able to pirate. He likely doesn't have a sufficient knowledge even of his own country's laws for that opinion to be accurate, and anyway has a vested interest in making himself out to look lawful. Plus, as noted above, that doesn't protect people in other countries that interact with him, even if he's right.
So when in doubt, I would stick to interacting with people who seem to be completely above board, and are not sketchy in any way. Certainly if they're offering you a deal that is suspiciously good, too good to be true, you ought to realize that it probably is too good to be true, and avoid it.
The DVD says in the big frickin FBI warning "licensed to view". So you have bought a license to view.
Actually, I don't recall any DVDs saying that, and at any rate, no, you didn't license anything. When you buy a DVD, you buy it. The mere fact that the law temporarily prohibits some of the things you can do with it is not unusual (anyone buy a car and speed lately) and doesn't diminish your ownership of it.
You are now downloading the stuff (just numbers) and when you VIEW it (which then causes the numbers to have meaning), you have license to view.
First, it's never just numbers. For someone who can throw around terms like promissory estoppel, you ought to know that. At the very least, I'd suggest reading the excellent essay here.
Second, reproduction is distinct from performance. Being allowed to do one doesn't mean you're allowed to do another.
You know, I'd really like to see some sources for your complaint of terminology used for movie and music copyright infringement vs. that of software infringement, because frankly I can recall seeing EVERYBODY being called swindlers, thieves, pirates, etc. I mean, didn't the RIAA start that campaign?
No, it wasn't RIAA.
IIRC, the word 'pirate' has been used in that basic meaning since 1668, which actually predates copyright, which didn't appear until 1710. And remember, that was during the age when there were plenty of the arr-matey-fifteen-men-on-a-dead-man's-chest kind of pirates to go around.
If RIAA were just coming up with a similarly loaded term today, it wouldn't be 'pirate,' it would probably be 'terrorist.'
And if you already own a copy of the work, then it is not illegal.
It is illegal. When you download in that situation, you might -- might -- have a successful fair use defense, but that's as much as you can hope for. Since BT users also upload, and you can't really argue that just because your DVD was scratched it's fair for you to help other people infringe, you're still hosed if anyone wants to make an issue out of it.
These sites aren't doing anything illegal (as far as I know, which isn't a whole lot so please correct me if I'm wrong), but just telling people where they can find what in some cases are copyright infringements.
That's often illegal. Remember, what Napster basically did was to tell people who, precisely, was distributing music illegally.
Basically there's three different ways to infringe a copyright.
Direct infringement is when a person infringes on any of the exclusive rights listed in 17 USC 106, 106A, or 602. 106 is the important one of those, and among the rights it lists are the exclusive rights to reproduce (which downloading infringes on) and to distribute (which uploading infringes on).
However, recognizing that sometimes there will be parties that should be held liable despite not performing the infringing act themselves, there are the other two ways. That there should be this indirect liability at all is not unusual; it's fairly common in many areas of the law.
Contributory infringement only exists where there is an underlying direct infringement. Where a party, with knowledge of a direct infringement, induces, causes, or materially contributes to the direct infringement of another, it is also liable for the infringement.
Vicarious infringement also only exists where there is an underlying direct infringement. Where a party, regardless of knowledge, has the right and ability to control the direct infringement of another, and derives a sufficiently direct financial benefit from the infringement, it is also liable for the infringement.
These are what brought down Napster. They're frequently used to bring down venues of all kinds, whether online or off. For example, the owners of flea markets where vendors would sell infringing works have been held liable.
There is a degree of a safe harbor for ISPs in specific thanks to 17 USC 512, but in order to be protected from litigation, a variety of specific requirements must be met, and some of them require affirmative action on the part of the ISP (e.g. registering a contact with the US Copyright Office). So many that might have gained some protection if they'd tried to get it, end up without it. Other times, when you're wondering how someone can possibly still be in business, it very well may be because of this.
Still, with regards to torrent trackers, and sites involved with the BT scene, there's likely a very significant danger of some form of indirect liability attaching even for comparatively minor things, like acting as a facilitator to an infringement.
Per 17 USC 501, copyright infringement is an infringement of an exclusive right of the copyright holder under section 106, taking into account sections 602 and 107 through 122.
While you may be thinking of 18 USC 2319, it does not define infringement as theft, and in fact since only some infringements actually qualify under 17 USC 506, and therefore under section 2319, this leaves a large number of actionable infringements from 501 outside of the realm of any crime.
You shouldn't treat the title of an act as meaning anything. The reason they used the word 'theft' was in order to have the acronym 'NET.' That's it.
Whats wrong with the market that we can blame on ip law?
The problem is that we aren't seeing the efficiencies of the market. Any given creative work is, having been produced, a commodity. Anyone can make it the second or nth time. Yet we don't see commodity pricing and availability.
The reason for that is, in the inverse, when we do have an unregulated market, we see that the natural state of things is to have comparatively few original works created. Since we wanted more of these than the market produced (and we regard the lack of them as yet another failure of the market) we put in monopolies. You don't see monopolies on commodities in your average healthy market.
Why can't these times with the best distribution system the world has ever seen be a boon to creativity? Why do intellectual property considerations need to put a damper on this?
I don't think I understand what you're saying here. Can you rephrase it? But I suspect that you are identifying the issue of why copyright holders aren't using the net more. I also wonder about this.
I agree that some of todays law is pretty miserable, but I'm not seeing support for eliminating intellectual property law.
Who's talking about eliminating it?
First, we seem to mostly be concentrating on copyright here -- if you acknowledge that there even is a thing called IP law (which I do not, as I feel it is a deliberately confusing term with no real utility), then you need to remember that copyright is only one subset of it.
But even then, we're not talking about eliminating copyright. Just remembering that public concerns are paramount and that in the likely event that the law does not promote the public interest as much as possible, that it should be reformed in whatever ways will.
I personally suspect that reducing the scope of copyright in various ways will improve the satisfaction of the public interest, but I'm open to arguments that we would all be better off going the other way, or whatnot.
Abolishing copyright law is something that would only be a good idea in the unlikely event that any possible copyright law would harm the public more than the complete lack of one would. I don't think we're anywhere near that. And I think you're being disingenious in raising it given that I have not been suggesting it.
Theres plenty of movies being made
And again that's not good enough. I want the balance of movies being made, and movies being in the public domain, that best satisfies the public interest. Neither extreme is as good as a point somewhere in the middle.
You've got to accept that there are other good things in the world besides creation. What good is creation when the work is locked up?
Folks are finding a happy medium with copyright,
And I merely think there is a happier one. If I'm right that there is a happier medium, why would you possibly oppose that? Even if the happier medium also involved fewer works being created, it would still, by definition be happier. You're not against happiness, are you?
You'll have to demonstrate that information is not an entirely artificial construct for me to buy that it "has a natural tendancy" to do anything.
If you inform me as to any piece of information, I inherently retain it. I cannot return it, or forget it on demand. And I can quite easily reproduce it further without your awareness or ability to prevent it. Information naturally spreads.
Why you think that artificiality is relevant is beyond me. Toothpaste naturally can't go back in the tube, but it isn't found in nature. So what? We're talking about typical behavior, not origins. And I think you're bright enough to know this.
I believe part of the problem is that you're a lawyer (as says in your post) and by virtue of which, you've lost all connection to the simple nuts and bolts of holding a regular job and making a living.
First, lawyering is a regular job. Mostly it's looking stuff up, and then writing it down. Day to day lawyering may be interesting to lawyers (often within practice areas -- I would be bored silly if I had to work on tax law all damn day), but it's not courtroom theater or anything. Your impression of lawyers is probably based on what you see on TV or in the movies, and it really isn't like that at all.
Second, prior to going to law school, I was an artist, I supported myself entirely for several years as an artist, and I still dabble in my copious free time. I got interested in law -- copyright law mostly, which is now my specialty -- while I was an artist, and after informally studying it on my own for a while, I came to the realization that it is basically intended to further the public interest as I have already set forth, and I found plenty of confirmation of this in the statutes, caselaw, and literature.
how market economies work
Well, bear in mind that with regards to copyright -- which seems to be the narrow area we've focused in on -- there was pretty much a total market failure. Right now we don't have a healthy market in creative works. All we've got are a lot of small monopolies at best, sometimes these monopolies are associated together.
The public domain is where the market shines: everyone competes on how efficiently they can get works out to the market. But of course, the market screws up royally when it comes to creating original works; it manages some, but not many. It's pretty good with derivative works, though, and of course maximizes the public interest in unencumberance of the works that there are. In order to tweak the natural state of affairs more to our liking, we regulate the market heavily with copyright.
The next time someone tells you that information wants to be free, ask them for their credit card number.
You do realize, right, that that turn of phrase really only makes sense as an observation. I.e. that information has a natural tendancy to spread, much like water seeks its own level only means that it flows downhill.
I again have to disagree here. On a superficial level I do have to grant that trademarks are to reduce confusion, but the big picture still rules here, brands are simply identification of who to reward.
Are you kidding? Really, there is no one versed in this field that disputes the primacy of protecting customers. The reason we have trademarks is that if anyone could, for example bottle something called coca-cola, then how would you know what you were getting? It might be what you expected, it might be a different flavor of cola altogether. Quality would vary all over the place because there would be no single source for it, and you couldn't easily determine the quality of what you were getting if it were only identified in that generic fashion.
But yes, I'll concede, that we do not directly reward trademark artists, they are usually hired by companies interested in establishing their branding image, etc...
Again, a trademark -- which is most often just a word or two, not a logo -- is something that is granted to the person that actively uses it in commerce. Not the person that comes up with it. If you never sell goods under a brand, you have zip.
For one, you need to have the works themselves before they can be unencumbered.
Sure. Which is why ideally, we'd see all the works get produced, and they'd never be encumbered to begin with. Where there has to be some encumberance, that incurs a cost on the public. The greater the encumberance, the greater the cost. Not all works are worth a given cost, and there is a finite amount of encumberance that can be provided before we end up worse off overall than if we didn't even have a system to begin with.
Secondly, and more clearly, society has demonstrated a distinct disinterest in much entering the public domain at all. Much of the most obsolete of copyrighted materials seems to be safely tied up in company archives.
Maybe so. Of course, I would argue that the absurd scope and terms of copyright these days has so removed the public domain from society that that's rather artificial. And that furthermore, one of the many values of the public domain is to provide a source of works for later derivative works to be based upon, and that the public is greatly interested in these as well.
Plus of course, aside from ephemeral works that never deserved copyright to begin with, lots of copyrighted materials are available elsewhere but is less useful than it could be by not being in the public domain.
it still remains that the produced works are initially protected as a motivation to their creators.
But only in order to serve the public interest. Not for their own sake.
While its true that some truly great works were produced as an act of selfless love of the arts, much of the world runs on mundane creations by us poor working slobs with rent to pay and stomachs to fill.
Yes, I'm aware of that. In fact, I've been one of those sorts of artists. And it makes artists easy for the public to exploit -- even a very small copyright would produce a huge number of works that otherwise wouldn't be created. But copyright rapidly falls into a problem of diminishing returns for the public, which is why we need to keep it short.
I find books that I pay for more useful then the ones I get for free on average. The books that I pay for are just nicer, more informative on average then the ones that I get for free, because the paid for books simply are produced by folks with more resources on average because of course, those folks get paid;-)
And those books are great -- and they fall into the public domain, and they're still typically still just as useful. It's fairly rare for books to fall out of date. So if it's ever good, it'll usually stay good.
you for some reason that I cannot understand are arguing against renumeration to the people or companies producing the intellectual property to be protected
The reasoning behind IP law is to encourage creation of IP.
No, that's a fatally overbroad statement, and incorrect anyway.
I mean, the purpose of trademark law is absolutely not to encourage the creation of more trademarks. It is, again, to protect customers from being misled as to the source of goods or services. It's basically like the laws that mandate lists of ingredients on food products. Where ingredients are truthfully listed, customers will be able to know what's in the things they're eating. Where a trademark indicates that all marked goods come from one place, with whatever degree of quality that place has, customers won't be misled.
What you're really thinking of, I bet, are patents and copyrights, which are really among the least numerous and least financially important of forms of 'IP.' But even there, you're still wrong.
Yes, one of the purposes of patents and copyrights is to encourage the creation of inventions and works. But another, equally important purpose is to have those inventions and works to be unencumbered. Where it is unencumbered, it can be used to the maximum extent possible, for the least possible cost. This means having works enter the public domain immediately, or at least as soon as possible. And it means that the exclusive rights should be as minimal in scope as possible.
People love to jump on the argument that theres no different between "The Matrix" on DVD and a random string of bytes on that same DVD
Maybe so, but I'm not one of those.
how do we encourage the kind of society that invests effort into producing things (or intangible streams of desireable bytes) that we want?
Again, not good enough. Getting things that we want requires them to be useful to us. If I have to pay for a copy of a book, it is less useful to me than one that is free. If I cannot make and give away copies of a book, it is less useful to me than one that I can. If I cannot write a sequel to a book, then it is less useful to me than one that I can.
Freedom to use the things we want is necessary, or else why the hell do we want these things in the first place? Just to admire them from afar?
Ideally we would have the maximum possible production of inventions and works, and no restrictions at all on them.
What we make do with is to get as close to that as possible by trying to get as much production of inventions and works as we can while having the fewest restrictions placed upon us. It is a balancing act, and the point at which the balance is optimal is determined by reference to the public interest.
at least I'm not mystified on why society has decided on having laws supporting the concept of intellectual property.
I'm not mystified. I just don't think you have even defined what you mean by intellectual property, I don't think it is property, and I think that there are many different reasons for each of the various doctrines that have been clumsily lumped together under the 'IP' label. I think that there are perfectly good underlying reasons for these bodies of law, but that they don't mesh with much of the law as it is implemented now, and that you haven't gotten all that close to identifying those reasons.
Remember: I'm in favor of copyrights, patents, tradmarks, trade secrets, etc. But I'm upset about the specific implementation of these things. Your misinformation about why we have these laws at all only serves to keep our screwed up implementations. Better consideration of the policies behind these laws would, I think, produce better laws.
We certainly cannot compel people to create or invent. But if they do so freely, there is no absolute requirement that they be rewarded for it. After all, people often engage in labor to no useful end. Whether any reward is given by the public should be measured by whether that reward serves the public interest.
To put it another way: people often say that people will not invent, for example, unless there is some potential reward, because inventors are self-interested.
Well the public is self-interested too. It should not grant a reward at a cost to itself unless it benefits more by doing so than it would if it did not.
I'm certainly not against the idea of copyright or patent or any of these things. I'm only concerned with how it is implemented, and therefore how well it serves the public interest.
Patents were created to protect inventors from having their ideas ripped off and used to profit another.
No, in fact that's what patents are intended to do: to get inventions that are reduced to practice into the public domain so that everyone can use them without paying inventors. And as implemented, we further make it difficult to get patents by requiring novelty, nonobviousness, filing before the statutory bar, etc.
Patents are intended to promote the progress of the useful arts, for the public benefit. Not to benefit inventors, though that may incidentally occur.
A good analogy is this: Imagine the public is a farmer who has a cart of vegetables he wants to take to market. He has a donkey (the inventors) but it is unwilling to do very much without some special incentive. If the farmer is willing to spend one of his carrots by dangling it in front of the donkey, getting it to move and therefore act productively, he can achieve his greater goal of getting all his stuff to market.
The farmer doesn't want to give the carrot to the donkey, however. Then he's out one carrot. But it's an okay cost if it profits him more in the end by getting to market.
Likewise, it is a bad thing to grant patents for their own sake, or for the sake of inventors. But if they are not a significant burden on the public, and the public benefits much more than we lose by virtue of encouraging inventors to do useful work for us, then it's okay.
So the problem with software patents is that the software industry seems to have been doing somewhere between good to awesome without them. There is no indication that there will be more invention in this sector by adding them, and there is a very real problem with software patents slowing down the pace of innovation in software and in getting those inventions in useful products.
So software patents don't seem to be worth it: they produce no benefit and incur great cost. We're better off without them.
There really isn't that much argument amongst lawmakers about this when it comes to copyright, the right to publish seems to be the "property" most generally accepted. I can agree that patents aren't as clear here, but in general, the right to use the patented "invention" belongs to the inventor. Again, its a property right, "the right to use." Trademarks once again are a creation, and the rights to use the trademark belong to the creator. Obviously, creators can and do transfer these rights, but its their right to transfer, because in each case, these rights are treated as property.
This is incorrect.
Copyrights, first of all, do not include a right to publish; rather, there is only a right to exclude others from various enumerated activities. Also, publication has not been enumerated since the old 1909 Act. The current law provides for exclusive rights of reproduction, and of distribution, but these can stand on their own, rather than having to be combined as might be expected in the case of publication. At any rate, none of the exclusive rights is treated materially differently than the others.
Patents, similarly, are perfectly clear, but are also not what you think. Patent holders have no right whatsoever to practice their invention -- they only have the right to prevent other people from doing so. This crops up very frequently in the patent field where person A has an invention and person B invents an improvement to that invention, and A cannot use B's improvement, and B cannot use his own improvement due to it being dominated by A's invention.
And of course, there are trademarks, which are not a right to use a mark, but are a right to exclude others from using that mark -- where it would confuse customers (and in some cases unfairly draw upon the goodwill that has been invested into the mark). They are not property in any way, but merely a way of both protecting the public from being misled in the marketplace, and of protecting the goodwill of the public as to the source of goods or services. Trademark rights never belong to the creator of the mark, but rather to he that uses the mark in commerce. Failure to actively use a mark, and use it properly, can result in it being lost, again in order to protect the public and he in whom goodwill exists, whether he's the creator or not. Trademarks are also notoriously difficult to transfer; the safest way is by selling the business entirely. Doing it wrong can make things very difficult all around, and jeopardize the survival of the mark.
Its the entire reason for the term "intellectual property", that is, the concepts involved are dealt with as property.
Except that they're not. I'm pleased that at least you aren't making the really ridiculous claim that the subject matter of copyrights, patents, etc. are property. But it's still disputed with regards to the rights themselves. After all, they're chock full of exceptions often applicable to the world, have origins entirely seperate and much more recent than traditional forms of property, and most notably, tend to expire at arbitrary times set by the government without raising takings issues. In many many ways, these rights are better viewed as the products of a social policy that are merely temporary, useful monopolies. But not property.
If you're going to make stuff up, debating won't be very productive;-)
I'm making up nothing.
Copyrights are intended to benefit the public by promoting the progress of science. Patents are intended to benefit the public by promoting the progress of the useful arts. Trademarks, as already pointed out, are intended to benefit the public by preventing customer confusion. Trade secrets (and trademark dilution) are basically aspects of the law of unfair competition. The idea is that some things that might go on in business are harmful to everyone and should be regulated (e.g. industrial espionage) but this hardly makes them property; it merely limits the means by which the same r
Intellectual property is similar to any other sort of property, ie., ownership.
Not really. First we need to work out precisely what the supposed property is. But even then, we need to carefully look at the law to see whether the claims of ownership are justified. If the rights one holds over the 'property' are too limited, one is hardly an owner of it.
society of course will support mechanisms that allow for rewarding media producers
Of course, that's not even slightly accurate. Copyright and patent are not intended to reward authors or inventors. Trademarks are not intended to reward persons engaged in commerce. Trade secret law is not intended to reward their holders.
The right to exclusively produce published copies is otherwise known as intellectual property.
No, that is merely a subset of copyright. The term intellectual property typically refers to a lumping together of a number of totally unrelated bodies of law -- copyright, patent, trademark, trade secret, and a few other minor things, e.g. publicity law.
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Note that the current population of the United States is a little less than 300 million, so we might end up with about 6000 representatives. That's probably too big to be practical.
I think its interresting that you do not really have any rights, just that your government does neither except some very specific.
That is incorrect. Persons and citizens within the US have many rights. Some of these rights are natural rights, which all people have just because they are people, e.g. the right of free speech. Other rights are positive rights, granted by the government, e.g. copyright, which doesn't exist unless the government creates a copyright system to begin with.
Some of the more important of these rights, e.g. free speech, due process, etc. are specifically guaranteed by the government. However, merely because they are guaranteed does not mean that the others do not exist. However, they may be less secure from government interference.
An important principle is that rights must ultimately be present in, and stem from the people, as our government is something we have brought into existence, and which we can reduce or replace as we see fit.
Slashdot Mirror
If the rational for this disparity is that the downloader is being punished for the theft and for his distribution of the material while the shoplifter is only being punished for the theft, is there not a fundamental conundrum?
Statutory damages apply regardless of the nature of the infringement. Reproduction alone is not treated differently than reproduction and distribution with regards to this. So that's not the rationale.
If Alice downloads a file illegaly and then shares it with Bob, Berry, and Bart, she can be punished with the downloader penalties, which include punishment for the illegal distribution of the work (i.e. representing the copying she did as well as the copying she allowed others to do).
No, that's incorrect. If you reproduce a copyrighted work, as occurs when you download it without authorization in an infringing manner, then that is one act of infringement by itself. Distributing the work to others, as occurs when you upload it without authorization in an infringing manner, is a seperate act of infringement.
This doesn't matter for statutory damages, since they are computed per work infringed, not per infringement, but they are distinct. For example, you could buy a lawfully made copy of a work, and then distribute the work (e.g. by renting an audio CD) and that would be an infringement without any reproduction.
What then can Bob, Berry, and Bart be charged with?
Criminally, copyright infringement for downloading, if they satisfy the requirements for that. Civilly, I wouldn't say 'charged' but again, downloading copyrighted works without authorization, in an infringing manner, is copyright infringement.
Alice has allready been convicted of the crime of distributing this data. How can they ALSO be guilty?
There is a big distinction between criminal and civil actions (copyright has both civil and criminal penalties, but the civil branch of the law predominates). Anyway, distribution is not the same thing as reproduction -- that's how.
If the purpose of copyright is to control the copying and we are to presume that any individual downloading is the one doing the actual copying, then it is clear that the person hosting the file is not at fault.
Copyright actually deals with a number of different rights. Reproduction is one; distribution is an entirely seperate one. And there are others. See 17 USC 106.
Why then are file sharers liable for damages other than those representitive of the fair market value of the files on their systems?
Because it is felt that those damages are so low that no one would bother to obey the law.
That is incorrect.
The only obstacles to an imposition of statutory damages are at 17 USC 412 and extremely rare cases (they won't apply to anyone here) under 504(c)(2).
Even one single instance of infringement, such as by reproduction, will permit a claim of statutory damages that can be as low as $200 per work, or as high as $150,000 per work. It's fairly simple: just read 17 USC 106(1), 501, and 504(a),(c).
The other people who downloaded from you have also infringed, and if the plaintiff wants damages from them, they can sue for them.
There's no real threshold. Some courts sometimes find de minimis infringement, other courts say that there's no such thing, based on their reading of the statute. Minor infringements might be fair uses, but there is a multifactor fair use analysis (see 17 USC 107) and while size is a factor, if those are the important parts, the fact that you ignored the unimportant majority isn't going to matter much.
The important thing is that it derive from the copyrightable work. If "Paul Clifford" were copyrighted, and you copied "It was a dark and stormy night" from it, then that's going to be infringing. OTOH, if you independently came up with that line (which, as the works are more and more similar, is harder to be convincing of, where you had access to the plaintiff's work), then there is no infringement.
I would suggest reading the very good essay What Colour Are Your Bits? for more on this.
It might be useful in this arena if you a.) use terms which are in reasonably common usage, and b.) stick to the normally accepted meaning of those terms.
Well, I don't normally see people talking about conversion, so I guess I made a poor assumption. At any rate, the correct term in the copyright law jaron is 'exclusive right.'
Now then; if you circumvent my ability to exclude others - *any others* - at my leisure, you have abrogated my rights.
No, we have merely infringed upon them; abrogation strikes me as more along the lines of completely getting rid of them. An infringement hardly destroys a copyright, it merely offends it.
Your point of view implies that there is no other property than what is referred to legally as 'real property'.
I don't believe I said that. There is real and personal property, and some personal property is intangible. Nevertheless, I think that copyright is at a minimum arguably not personal property, as not all of its characteristics mesh with that of other property:
* The subject matter is non rivalrous, which is distinct from other property rights
* It has to be specially granted by the government, which is unusual
* It has to expire, which is very unusual
* It has to expire for a public purpose, and this has never been found to be a taking
In fact, if you nullify my legal rights by your deliberate action, you have taken something from me, expressly against my wishes.
Your rights aren't nullified by infringement. They're infringed, but you still have them and can still assert them. It's the difference between respecting something naturally, and being forced to respect something.
The legal term for this is theft. It does not apply strictly to material property in any venue I am aware of.
No, it depends. For starters, theft is really only a criminal term -- civilly it would be trespass, trespass to chattels or conversion in the vast majority of the time. Plus it's rare for it to apply to intangible property, and anyway, as has been discussed, theft does require a deprivation, and deprivations of copyright don't happen in the course of an infringement.
To restate that for emphasis: When you infringe on a copyright, you do not steal that copyright.
You seem to be confusing the issue. Say I have property I wish to defend, and I put a fence around it to keep it safe. You climb over the fence and steal it. Truly, you have not removed the fence, and it will still keep out those who won't climb over it. But the objective of the fence is not to keep people from climbing over it; it is to safeguard my property. This is likewise the objective of copyright law
No, first, there is a world of difference between a copyright and the work the copyright pertains to. I think that you're conflating them. An infringement does not involve a taking of either, but at most only the former can be property to begin with.
So to borrow your very poor analogy, it's as though you have a creative work, and you erect a fence of rights around it to protect your exploitation of that work. To infringe would be to exploit the work by bypassing the fence. But the only conceivable form of theft would be to steal the fence itself -- which obviously doesn't happen 99.44% of the time, if at all.
Second, the objective of copyright law is solely to promote the progess of science, specifically the equal public interests in the creation of original works, creation of derivative works, and unencumbered enjoyment of those works. It's not actually intended to protect anyone specific.
when you circumvent the lawful owner's control of his property, real or otherwise, you are stealing, legalistic bullshit notwithstanding
I assure you, if I walk on your land, I haven't stolen it and you could never make out a case claiming such. You might not like the formal distinctions in the law, but the law cares about them a lot. If you were to try such a tactic, I assure you, you would have your claim dismissed because it's simply unfounded. Probably not a good idea then, when you have no option other than to play by the rules, to call the rules bullshit. It avails you nothing.
I'm sorry, I'm using a term of art. 'Exclusive' with regards to copyright, is the right to exclude others at one's leisure. It's not a right to actually do anything, however, and it is not to be confused with the more common use of that word to mean 'sole.'
To use a common example, if I take your car, I have trespassed to chattel. If I materially ruin it, I have converted it. (do note the distinction, as copyright infringement certainly doesn't rise to the level of harm needed for conversion as well)
What's important there is that since your car is rivalrous, when I take it, you don't have it. I have exclusive control, wrongfully, against everyone, including you, the rightful owner.
If I merely infringe on a copyright, however, I have not removed your exclusive control, I'm merely ignoring it. You can still exclude everyone else just as much as you ever could. When I stop, you don't get anything back, because nothing was taken. You just get someone to stop ignoring you.
Conversion may very well be amoral. Nevertheless, copyright infringement is utterly distinct from conversion, among other reasons due to the fact that the former does not involve wresting exclusive control over something, and the latter does.
If you want to compare it to a common law tort, the appropriate one would more likely be a minor case of trespass to land. (although even land is more rivalrous than works are)
The right to distribute copies of a copyrighted work is a right of ownership.
Authors have no special right to distribute copies of their works, and to the degree that they have such a right -- which is indistinguishable from everyone else's right -- it's an aspect of the right of free speech, not of ownership. (well aside from ownership of the copies themselves, but I don't think you care about the copies per se)
Plus, it's not at all evident that copyright is a property right.
No. That's merely a choice between different torrents, and not entrapment any more than a choice between different drug dealers (where one is an undercover policeman) is.
To be entrapment, the government basically would have to strongly compel you to do something you otherwise would not have done. Providing a torrent is not enough -- if you weren't going to pirate, the addition of one more site to pirate from wouldn't matter. OTOH, if some government agent practically put your finger on the mouse to click on a download key, then we're talking entrapment.
As I said, the popular conception of entrapment is very different than what it really is, which is quite narrow. I suggest googling for more information.
Entrapment is far more limited than people normally think. Basically it's where you're enticed to do something you would otherwise not have done, as opposed to merely being given an opportunity to do something you would've done elsewhere anyway.
The first example that springs to mind is the Space Madness episode of Ren and Stimpy. Stimpy would normally never press the History Eraser Button, but when he's not only deliberately put in proximity to it, and the narrator keeps pushing his face in it, that's basically how much effort is needed for something to be entrapment.
Just being undercover -- that's not entrapment.
You could probably google for a discussion of the issue with some good case cites or something.
What makes it immoral? I've always thought of it as basically being amoral, with perhaps an argument towards morality, but not an amazing one.
Actually it is both -- trademarks mainly exist to protect customers, but there is also a recognition that it is not a fair trade practice for one company to leech off of the goodwill in the minds of the public that another company has accumulated.
True -- if you're outside the US, given that US copyright law is generally not applied outside our borders, the above wouldn't apply.
Of course, do note that people in the US still are subject to our laws -- so it's possible to illegally download from a place that can legally distribute, because the people involved are in different places.
I also am not a Swedish lawyer; I'm licensed to practice in Massachusetts in the US. I'm not familiar with foreign copyright law, and honestly I'm not all that interested in it. However, I wouldn't rely on a pirate to provide a legal opinion for why he should be able to pirate. He likely doesn't have a sufficient knowledge even of his own country's laws for that opinion to be accurate, and anyway has a vested interest in making himself out to look lawful. Plus, as noted above, that doesn't protect people in other countries that interact with him, even if he's right.
So when in doubt, I would stick to interacting with people who seem to be completely above board, and are not sketchy in any way. Certainly if they're offering you a deal that is suspiciously good, too good to be true, you ought to realize that it probably is too good to be true, and avoid it.
The DVD says in the big frickin FBI warning "licensed to view". So you have bought a license to view.
Actually, I don't recall any DVDs saying that, and at any rate, no, you didn't license anything. When you buy a DVD, you buy it. The mere fact that the law temporarily prohibits some of the things you can do with it is not unusual (anyone buy a car and speed lately) and doesn't diminish your ownership of it.
You are now downloading the stuff (just numbers) and when you VIEW it (which then causes the numbers to have meaning), you have license to view.
First, it's never just numbers. For someone who can throw around terms like promissory estoppel, you ought to know that. At the very least, I'd suggest reading the excellent essay here.
Second, reproduction is distinct from performance. Being allowed to do one doesn't mean you're allowed to do another.
You know, I'd really like to see some sources for your complaint of terminology used for movie and music copyright infringement vs. that of software infringement, because frankly I can recall seeing EVERYBODY being called swindlers, thieves, pirates, etc. I mean, didn't the RIAA start that campaign?
No, it wasn't RIAA.
IIRC, the word 'pirate' has been used in that basic meaning since 1668, which actually predates copyright, which didn't appear until 1710. And remember, that was during the age when there were plenty of the arr-matey-fifteen-men-on-a-dead-man's-chest kind of pirates to go around.
If RIAA were just coming up with a similarly loaded term today, it wouldn't be 'pirate,' it would probably be 'terrorist.'
And if you already own a copy of the work, then it is not illegal.
It is illegal. When you download in that situation, you might -- might -- have a successful fair use defense, but that's as much as you can hope for. Since BT users also upload, and you can't really argue that just because your DVD was scratched it's fair for you to help other people infringe, you're still hosed if anyone wants to make an issue out of it.
That was Galactica 1980, which arguably was in the early 1980's. ;) Of course, it still felt like the 70's in a lot of ways, so no biggie.
These sites aren't doing anything illegal (as far as I know, which isn't a whole lot so please correct me if I'm wrong), but just telling people where they can find what in some cases are copyright infringements.
That's often illegal. Remember, what Napster basically did was to tell people who, precisely, was distributing music illegally.
Basically there's three different ways to infringe a copyright.
Direct infringement is when a person infringes on any of the exclusive rights listed in 17 USC 106, 106A, or 602. 106 is the important one of those, and among the rights it lists are the exclusive rights to reproduce (which downloading infringes on) and to distribute (which uploading infringes on).
However, recognizing that sometimes there will be parties that should be held liable despite not performing the infringing act themselves, there are the other two ways. That there should be this indirect liability at all is not unusual; it's fairly common in many areas of the law.
Contributory infringement only exists where there is an underlying direct infringement. Where a party, with knowledge of a direct infringement, induces, causes, or materially contributes to the direct infringement of another, it is also liable for the infringement.
Vicarious infringement also only exists where there is an underlying direct infringement. Where a party, regardless of knowledge, has the right and ability to control the direct infringement of another, and derives a sufficiently direct financial benefit from the infringement, it is also liable for the infringement.
These are what brought down Napster. They're frequently used to bring down venues of all kinds, whether online or off. For example, the owners of flea markets where vendors would sell infringing works have been held liable.
There is a degree of a safe harbor for ISPs in specific thanks to 17 USC 512, but in order to be protected from litigation, a variety of specific requirements must be met, and some of them require affirmative action on the part of the ISP (e.g. registering a contact with the US Copyright Office). So many that might have gained some protection if they'd tried to get it, end up without it. Other times, when you're wondering how someone can possibly still be in business, it very well may be because of this.
Still, with regards to torrent trackers, and sites involved with the BT scene, there's likely a very significant danger of some form of indirect liability attaching even for comparatively minor things, like acting as a facilitator to an infringement.
That's incorrect:
Per 17 USC 501, copyright infringement is an infringement of an exclusive right of the copyright holder under section 106, taking into account sections 602 and 107 through 122.
While you may be thinking of 18 USC 2319, it does not define infringement as theft, and in fact since only some infringements actually qualify under 17 USC 506, and therefore under section 2319, this leaves a large number of actionable infringements from 501 outside of the realm of any crime.
You shouldn't treat the title of an act as meaning anything. The reason they used the word 'theft' was in order to have the acronym 'NET.' That's it.
Whats wrong with the market that we can blame on ip law?
The problem is that we aren't seeing the efficiencies of the market. Any given creative work is, having been produced, a commodity. Anyone can make it the second or nth time. Yet we don't see commodity pricing and availability.
The reason for that is, in the inverse, when we do have an unregulated market, we see that the natural state of things is to have comparatively few original works created. Since we wanted more of these than the market produced (and we regard the lack of them as yet another failure of the market) we put in monopolies. You don't see monopolies on commodities in your average healthy market.
Why can't these times with the best distribution system the world has ever seen be a boon to creativity? Why do intellectual property considerations need to put a damper on this?
I don't think I understand what you're saying here. Can you rephrase it? But I suspect that you are identifying the issue of why copyright holders aren't using the net more. I also wonder about this.
I agree that some of todays law is pretty miserable, but I'm not seeing support for eliminating intellectual property law.
Who's talking about eliminating it?
First, we seem to mostly be concentrating on copyright here -- if you acknowledge that there even is a thing called IP law (which I do not, as I feel it is a deliberately confusing term with no real utility), then you need to remember that copyright is only one subset of it.
But even then, we're not talking about eliminating copyright. Just remembering that public concerns are paramount and that in the likely event that the law does not promote the public interest as much as possible, that it should be reformed in whatever ways will.
I personally suspect that reducing the scope of copyright in various ways will improve the satisfaction of the public interest, but I'm open to arguments that we would all be better off going the other way, or whatnot.
Abolishing copyright law is something that would only be a good idea in the unlikely event that any possible copyright law would harm the public more than the complete lack of one would. I don't think we're anywhere near that. And I think you're being disingenious in raising it given that I have not been suggesting it.
Theres plenty of movies being made
And again that's not good enough. I want the balance of movies being made, and movies being in the public domain, that best satisfies the public interest. Neither extreme is as good as a point somewhere in the middle.
You've got to accept that there are other good things in the world besides creation. What good is creation when the work is locked up?
Folks are finding a happy medium with copyright,
And I merely think there is a happier one. If I'm right that there is a happier medium, why would you possibly oppose that? Even if the happier medium also involved fewer works being created, it would still, by definition be happier. You're not against happiness, are you?
You'll have to demonstrate that information is not an entirely artificial construct for me to buy that it "has a natural tendancy" to do anything.
If you inform me as to any piece of information, I inherently retain it. I cannot return it, or forget it on demand. And I can quite easily reproduce it further without your awareness or ability to prevent it. Information naturally spreads.
Why you think that artificiality is relevant is beyond me. Toothpaste naturally can't go back in the tube, but it isn't found in nature. So what? We're talking about typical behavior, not origins. And I think you're bright enough to know this.
I believe part of the problem is that you're a lawyer (as says in your post) and by virtue of which, you've lost all connection to the simple nuts and bolts of holding a regular job and making a living.
First, lawyering is a regular job. Mostly it's looking stuff up, and then writing it down. Day to day lawyering may be interesting to lawyers (often within practice areas -- I would be bored silly if I had to work on tax law all damn day), but it's not courtroom theater or anything. Your impression of lawyers is probably based on what you see on TV or in the movies, and it really isn't like that at all.
Second, prior to going to law school, I was an artist, I supported myself entirely for several years as an artist, and I still dabble in my copious free time. I got interested in law -- copyright law mostly, which is now my specialty -- while I was an artist, and after informally studying it on my own for a while, I came to the realization that it is basically intended to further the public interest as I have already set forth, and I found plenty of confirmation of this in the statutes, caselaw, and literature.
how market economies work
Well, bear in mind that with regards to copyright -- which seems to be the narrow area we've focused in on -- there was pretty much a total market failure. Right now we don't have a healthy market in creative works. All we've got are a lot of small monopolies at best, sometimes these monopolies are associated together.
The public domain is where the market shines: everyone competes on how efficiently they can get works out to the market. But of course, the market screws up royally when it comes to creating original works; it manages some, but not many. It's pretty good with derivative works, though, and of course maximizes the public interest in unencumberance of the works that there are. In order to tweak the natural state of affairs more to our liking, we regulate the market heavily with copyright.
The next time someone tells you that information wants to be free, ask them for their credit card number.
You do realize, right, that that turn of phrase really only makes sense as an observation. I.e. that information has a natural tendancy to spread, much like water seeks its own level only means that it flows downhill.
I again have to disagree here. On a superficial level I do have to grant that trademarks are to reduce confusion, but the big picture still rules here, brands are simply identification of who to reward.
;-)
Are you kidding? Really, there is no one versed in this field that disputes the primacy of protecting customers. The reason we have trademarks is that if anyone could, for example bottle something called coca-cola, then how would you know what you were getting? It might be what you expected, it might be a different flavor of cola altogether. Quality would vary all over the place because there would be no single source for it, and you couldn't easily determine the quality of what you were getting if it were only identified in that generic fashion.
But yes, I'll concede, that we do not directly reward trademark artists, they are usually hired by companies interested in establishing their branding image, etc...
Again, a trademark -- which is most often just a word or two, not a logo -- is something that is granted to the person that actively uses it in commerce. Not the person that comes up with it. If you never sell goods under a brand, you have zip.
For one, you need to have the works themselves before they can be unencumbered.
Sure. Which is why ideally, we'd see all the works get produced, and they'd never be encumbered to begin with. Where there has to be some encumberance, that incurs a cost on the public. The greater the encumberance, the greater the cost. Not all works are worth a given cost, and there is a finite amount of encumberance that can be provided before we end up worse off overall than if we didn't even have a system to begin with.
Secondly, and more clearly, society has demonstrated a distinct disinterest in much entering the public domain at all. Much of the most obsolete of copyrighted materials seems to be safely tied up in company archives.
Maybe so. Of course, I would argue that the absurd scope and terms of copyright these days has so removed the public domain from society that that's rather artificial. And that furthermore, one of the many values of the public domain is to provide a source of works for later derivative works to be based upon, and that the public is greatly interested in these as well.
Plus of course, aside from ephemeral works that never deserved copyright to begin with, lots of copyrighted materials are available elsewhere but is less useful than it could be by not being in the public domain.
it still remains that the produced works are initially protected as a motivation to their creators.
But only in order to serve the public interest. Not for their own sake.
While its true that some truly great works were produced as an act of selfless love of the arts, much of the world runs on mundane creations by us poor working slobs with rent to pay and stomachs to fill.
Yes, I'm aware of that. In fact, I've been one of those sorts of artists. And it makes artists easy for the public to exploit -- even a very small copyright would produce a huge number of works that otherwise wouldn't be created. But copyright rapidly falls into a problem of diminishing returns for the public, which is why we need to keep it short.
I find books that I pay for more useful then the ones I get for free on average. The books that I pay for are just nicer, more informative on average then the ones that I get for free, because the paid for books simply are produced by folks with more resources on average because of course, those folks get paid
And those books are great -- and they fall into the public domain, and they're still typically still just as useful. It's fairly rare for books to fall out of date. So if it's ever good, it'll usually stay good.
you for some reason that I cannot understand are arguing against renumeration to the people or companies producing the intellectual property to be protected
The reasoning behind IP law is to encourage creation of IP.
No, that's a fatally overbroad statement, and incorrect anyway.
I mean, the purpose of trademark law is absolutely not to encourage the creation of more trademarks. It is, again, to protect customers from being misled as to the source of goods or services. It's basically like the laws that mandate lists of ingredients on food products. Where ingredients are truthfully listed, customers will be able to know what's in the things they're eating. Where a trademark indicates that all marked goods come from one place, with whatever degree of quality that place has, customers won't be misled.
What you're really thinking of, I bet, are patents and copyrights, which are really among the least numerous and least financially important of forms of 'IP.' But even there, you're still wrong.
Yes, one of the purposes of patents and copyrights is to encourage the creation of inventions and works. But another, equally important purpose is to have those inventions and works to be unencumbered. Where it is unencumbered, it can be used to the maximum extent possible, for the least possible cost. This means having works enter the public domain immediately, or at least as soon as possible. And it means that the exclusive rights should be as minimal in scope as possible.
People love to jump on the argument that theres no different between "The Matrix" on DVD and a random string of bytes on that same DVD
Maybe so, but I'm not one of those.
how do we encourage the kind of society that invests effort into producing things (or intangible streams of desireable bytes) that we want?
Again, not good enough. Getting things that we want requires them to be useful to us. If I have to pay for a copy of a book, it is less useful to me than one that is free. If I cannot make and give away copies of a book, it is less useful to me than one that I can. If I cannot write a sequel to a book, then it is less useful to me than one that I can.
Freedom to use the things we want is necessary, or else why the hell do we want these things in the first place? Just to admire them from afar?
Ideally we would have the maximum possible production of inventions and works, and no restrictions at all on them.
What we make do with is to get as close to that as possible by trying to get as much production of inventions and works as we can while having the fewest restrictions placed upon us. It is a balancing act, and the point at which the balance is optimal is determined by reference to the public interest.
at least I'm not mystified on why society has decided on having laws supporting the concept of intellectual property.
I'm not mystified. I just don't think you have even defined what you mean by intellectual property, I don't think it is property, and I think that there are many different reasons for each of the various doctrines that have been clumsily lumped together under the 'IP' label. I think that there are perfectly good underlying reasons for these bodies of law, but that they don't mesh with much of the law as it is implemented now, and that you haven't gotten all that close to identifying those reasons.
Remember: I'm in favor of copyrights, patents, tradmarks, trade secrets, etc. But I'm upset about the specific implementation of these things. Your misinformation about why we have these laws at all only serves to keep our screwed up implementations. Better consideration of the policies behind these laws would, I think, produce better laws.
No. And besides which, that wouldn't.
We certainly cannot compel people to create or invent. But if they do so freely, there is no absolute requirement that they be rewarded for it. After all, people often engage in labor to no useful end. Whether any reward is given by the public should be measured by whether that reward serves the public interest.
To put it another way: people often say that people will not invent, for example, unless there is some potential reward, because inventors are self-interested.
Well the public is self-interested too. It should not grant a reward at a cost to itself unless it benefits more by doing so than it would if it did not.
I'm certainly not against the idea of copyright or patent or any of these things. I'm only concerned with how it is implemented, and therefore how well it serves the public interest.
Patents were created to protect inventors from having their ideas ripped off and used to profit another.
No, in fact that's what patents are intended to do: to get inventions that are reduced to practice into the public domain so that everyone can use them without paying inventors. And as implemented, we further make it difficult to get patents by requiring novelty, nonobviousness, filing before the statutory bar, etc.
Patents are intended to promote the progress of the useful arts, for the public benefit. Not to benefit inventors, though that may incidentally occur.
A good analogy is this: Imagine the public is a farmer who has a cart of vegetables he wants to take to market. He has a donkey (the inventors) but it is unwilling to do very much without some special incentive. If the farmer is willing to spend one of his carrots by dangling it in front of the donkey, getting it to move and therefore act productively, he can achieve his greater goal of getting all his stuff to market.
The farmer doesn't want to give the carrot to the donkey, however. Then he's out one carrot. But it's an okay cost if it profits him more in the end by getting to market.
Likewise, it is a bad thing to grant patents for their own sake, or for the sake of inventors. But if they are not a significant burden on the public, and the public benefits much more than we lose by virtue of encouraging inventors to do useful work for us, then it's okay.
So the problem with software patents is that the software industry seems to have been doing somewhere between good to awesome without them. There is no indication that there will be more invention in this sector by adding them, and there is a very real problem with software patents slowing down the pace of innovation in software and in getting those inventions in useful products.
So software patents don't seem to be worth it: they produce no benefit and incur great cost. We're better off without them.
There really isn't that much argument amongst lawmakers about this when it comes to copyright, the right to publish seems to be the "property" most generally accepted. I can agree that patents aren't as clear here, but in general, the right to use the patented "invention" belongs to the inventor. Again, its a property right, "the right to use." Trademarks once again are a creation, and the rights to use the trademark belong to the creator. Obviously, creators can and do transfer these rights, but its their right to transfer, because in each case, these rights are treated as property.
;-)
This is incorrect.
Copyrights, first of all, do not include a right to publish; rather, there is only a right to exclude others from various enumerated activities. Also, publication has not been enumerated since the old 1909 Act. The current law provides for exclusive rights of reproduction, and of distribution, but these can stand on their own, rather than having to be combined as might be expected in the case of publication. At any rate, none of the exclusive rights is treated materially differently than the others.
Patents, similarly, are perfectly clear, but are also not what you think. Patent holders have no right whatsoever to practice their invention -- they only have the right to prevent other people from doing so. This crops up very frequently in the patent field where person A has an invention and person B invents an improvement to that invention, and A cannot use B's improvement, and B cannot use his own improvement due to it being dominated by A's invention.
And of course, there are trademarks, which are not a right to use a mark, but are a right to exclude others from using that mark -- where it would confuse customers (and in some cases unfairly draw upon the goodwill that has been invested into the mark). They are not property in any way, but merely a way of both protecting the public from being misled in the marketplace, and of protecting the goodwill of the public as to the source of goods or services. Trademark rights never belong to the creator of the mark, but rather to he that uses the mark in commerce. Failure to actively use a mark, and use it properly, can result in it being lost, again in order to protect the public and he in whom goodwill exists, whether he's the creator or not. Trademarks are also notoriously difficult to transfer; the safest way is by selling the business entirely. Doing it wrong can make things very difficult all around, and jeopardize the survival of the mark.
Its the entire reason for the term "intellectual property", that is, the concepts involved are dealt with as property.
Except that they're not. I'm pleased that at least you aren't making the really ridiculous claim that the subject matter of copyrights, patents, etc. are property. But it's still disputed with regards to the rights themselves. After all, they're chock full of exceptions often applicable to the world, have origins entirely seperate and much more recent than traditional forms of property, and most notably, tend to expire at arbitrary times set by the government without raising takings issues. In many many ways, these rights are better viewed as the products of a social policy that are merely temporary, useful monopolies. But not property.
If you're going to make stuff up, debating won't be very productive
I'm making up nothing.
Copyrights are intended to benefit the public by promoting the progress of science. Patents are intended to benefit the public by promoting the progress of the useful arts. Trademarks, as already pointed out, are intended to benefit the public by preventing customer confusion. Trade secrets (and trademark dilution) are basically aspects of the law of unfair competition. The idea is that some things that might go on in business are harmful to everyone and should be regulated (e.g. industrial espionage) but this hardly makes them property; it merely limits the means by which the same r
Intellectual property is similar to any other sort of property, ie., ownership.
Not really. First we need to work out precisely what the supposed property is. But even then, we need to carefully look at the law to see whether the claims of ownership are justified. If the rights one holds over the 'property' are too limited, one is hardly an owner of it.
society of course will support mechanisms that allow for rewarding media producers
Of course, that's not even slightly accurate. Copyright and patent are not intended to reward authors or inventors. Trademarks are not intended to reward persons engaged in commerce. Trade secret law is not intended to reward their holders.
The right to exclusively produce published copies is otherwise known as intellectual property.
No, that is merely a subset of copyright. The term intellectual property typically refers to a lumping together of a number of totally unrelated bodies of law -- copyright, patent, trademark, trade secret, and a few other minor things, e.g. publicity law.
Note that the current population of the United States is a little less than 300 million, so we might end up with about 6000 representatives. That's probably too big to be practical.
I think its interresting that you do not really have any rights, just that your government does neither except some very specific.
That is incorrect. Persons and citizens within the US have many rights. Some of these rights are natural rights, which all people have just because they are people, e.g. the right of free speech. Other rights are positive rights, granted by the government, e.g. copyright, which doesn't exist unless the government creates a copyright system to begin with.
Some of the more important of these rights, e.g. free speech, due process, etc. are specifically guaranteed by the government. However, merely because they are guaranteed does not mean that the others do not exist. However, they may be less secure from government interference.
An important principle is that rights must ultimately be present in, and stem from the people, as our government is something we have brought into existence, and which we can reduce or replace as we see fit.