Why do you feel that you should be paid, but not me?
Why do you think that you couldn't get paid by offering your creative talents as a service, as opposed to what I imagine is your current practice of creating a work at your own expense and then selling copies?
Before I went to law school, I used to be a professional artist. And I supported myself quite comfortably selling my artistic services. I didn't need copyright to get by, and my clients didn't care about it either.
And there are other ways of making money from art. Fine artists (painters, sculptors, etc.) typically get paid for particular pieces. An original painting can command prices that no other copy of the same work can. A Van Gogh can go for millions; the life-sized poster of the same thing is a few bucks, because people will pay for provenance.
As a lawyer, I sell my services because I can't sell anything like copies. What would I do? Sell copies of a brief or a memo tailored for one case to some completely different client? Sell the outcome of a court case? The idea is nonsensical. But lawyers, doctors, plumbers, and even a lot of programmers and artists work in the service economy. Give it a try sometime.
America is about equality
Yes, there would certainly be an equal vote for the legislators who would draft the reforms and (indirectly) the President who would sign it. And the reforms would certainly affect everyone equally. So that problem is solved.
If you thought, though, that authors as a profession are entitled to an equal share of the income made in this country, well, you must not know many authors. The cliche of the starving artist exists for a reason. Copyright never guaranteed you a living; just a chance at one. And it would still do so even if substantially altered.
All you will accomplish is the forcing of consumers to accept highly restrictive contracts (not user agreements or licenses) that prevent you from doing anything with the software.
Well, I'm opposed to adhesive contracts, at least in consumer settings. It wouldn't take much tweaking of the UCC to shut that down, but I felt it was outside the realm of a discussion about copyright.
Individually negotiated contracts, OTOH, are okay I guess. At the very least I'd be willing to take a wait and see attitude. I figure the transactional costs will handle it.
Point #3 would ensure that I would code in special lockouts that prevent you from using the software and if I just felt like it, a yanking of your rights whenever I felt I couldn't trust that you didn't share your software.
I'm guessing you hadn't reached point 4 yet, when you wrote that.
Copyright law needs to be changed, but not yanked.
I agree wholeheartedly. I think that the basic idea of copyright is very good, but the implementation needs serious work. Abolition should remain on the table, but is obviously an option of last resort; it only makes sense when there is not a single possible copyright law that provides a greater public benefit than having no copyright law at all. I don't think this is likely anytime soon.
Of course, I have noticed more and more people who, frustrated with how bad the current law is, are supporting abolition just to be done with the whole thing. This is a dangerous side effect of copyright maximalism, IMO.
You should know full well that when you take away my rights you effectively do something like repeating prohibition -- that worked out wonderfully.
Again, I agree. When you have copyright laws, you take away my right to make copies of your published work. And while this can be justifiable, if I benefit more from that sacrifice than I lose, under the current law much otherwise unobjectionable behavior is being prohibited, the law is widely flouted, and it reminds me a lot of Prohibition.
If copyright were far more important -- like desegregation -- then I could see pushing it on a public that was not happy about it. But it's not anywhere near that level. Copyright really is of trifling importance in the grand scheme of things, somewhere in the neighborhood of building codes that require white picket fences or bans on jaywalking.
You really are a bloodsucking lawyer, aren't you? You effectively just destroyed capitalism in the sense that I, as an author, should get paid for my work...unless I decide not to publish it, which means I can't make money off of it.
Melodramatic much?
Right now there are a plethora of ways that you, as an author, cannot get paid for your work. For example, if you sell a copy of a book, you can get paid for it that one time only; after that, everyone can resell that same copy again and again and again and you don't see a dime.
All I'm doing is creating a single exception which would allow natural persons (as distinct from artificial entities, like corporations) to act freely -- as they basically already do -- provided that it is strictly non-commerical. No ads, no tip jars, no file sharing ratios, nothing. You can still sell copies to people; some of them will buy it. You can still sell copies to other entities, or to people engaged in commerce.
Copyright, remember, doesn't guarantee that the copyright holder will make money, it just funnels a goodly portion of whatever money there is in the direction of the copyright holder. The funnel is not changing, but the available pool of money may shrink somewhat.
I would agree that it is a big deal. I have traditionally thought of this as the nuclear bomb of copyright exceptions. But after a long time of mulling it over, I support it. Filesharing is the new drinking, and banning it is as futile and dangerous as Prohibition was. And Pr
Get enough votes behind it and it won't matter what I support.
I never said that I expected authors to like certain copyright reforms. But that's no reason not to have the reforms, even if it means running roughshod over the authors and publishers.
Indeed, my top five changes to copyright law would probably be: 1) A system of strict formalities (registration, deposit, fee, notice, renewal) in order to get a copyright on a published work; 2) Very short terms (probably 1 year), renewable a varying number of times depending on the type of work (more for, say, a movie, less for, say, a computer program) but probably no more than 20 terms altogether; 3) Making non-infringing (or at least non-actionable) any otherwise infringing act engaged in by a natural person, acting non-commercially; 4) Placing works in the public domain immediately if they are published, under the imprimatur of the copyright holder, with DRM, and having a government-run program of distributing those public domain works and assisting in cracking DRM systems; 5) Withdrawing from all copyright treaties, instead offering national treatment to everyone unilaterally (but using diplomacy to encourage other countries to do the same, as well as to avoid mutually incompatible laws that would leave authors in a bind)
You should be arguing what levels of punishment is acceptable for when you steal my property
Setting aside that something like copyright infringement isn't stealing property -- because stealing doesn't occur and there's no property at issue -- my point 3 above indicates that if it was me, personally, and I acted non-commercially in doing so, the level of punishment would be... none.
Do you own your home? Can I just come and take whatever I want out of your house?
You might very well be able to. Property rights boil down to one, utterly non-sarcastic question: You and whose army?
Your natural right to own property is based on your ability to personally defend it from those who would take it from you. This isn't very useful, as there's always going to be someone stronger, and bigger, and badder, who can overpower you and take it.
So you ask for help from your neighbor; will he stand by your side and defend the things you claim as your property? Unless he is quite altruistic (uncommon), he's going to refuse unless there is some benefit in it for him, typically, that you agree to help him defend his things too. This is the beginning of the armies.
Internally, a group of people working for mutual defense will create rules that they can all agree on to hold their coalition together. But rules, like contracts, are something you only need once willing agreement has broken down. This means that some part of the group will try to enforce the rules against another part that is unwilling. And it's going to come down to force again. Sometimes this breaks groups into many pieces. Other times, there are few enough, weak enough, people that won't abide by the rules, and they can be overpowered and made to comply. The rules that the group develops will basically follow utilitarian principles, at least amongst the subset of the group that is strong enough that its opinions cannot be dismissed.
Assuming that like a lot of Slashdot users, you're an American, how did you think a bunch of people from entirely different continents came to live here? By waging a bloody and long campaign of genocide agains the previous inhabitants. The European settlers ultimately won because they were strong and the Native Americans were weak; this is all that it took to legitimize the settlers' claim to own this land. Likewise slavery; it was legal because the slavers were stronger than the slaves and those who sympathized with the slaves. It was abolished because the anti-slavery forces eventually grew strong enough to kill or otherwise impair the pro-slavery forces.
Even today, this is the unpleasant truth that underlies all property law: If you own a parcel of land, and I trespass on it, you can call the police and they will arrest me and take me away. If I resist, they'll use force. If I resist hard enough, they'll respond with yet more force until I submit, am incapacitated, or die. But suppose that instead, you own a parcel of land, I trespass on it, and I fulfill the jurisdiction's requirements for adverse possession. Now you can call the police, but I can claim that the law is on my side. We can go to court, I'll win (if I have indeed adversely possessed it), and should you attempt to use force against me, now I can be the one to call the police, etc. And if the state decides to take my land, they can use their self-granted power of eminent domain to do so, and this time I not only can't muster enough force to resist, but I can't even find a legal rule to help me; the land is theirs because I have no recourse whatsoever, not because of any other reason. And if a sufficiently powerful army moves in and conquers the land, it belongs to them, because no one is in a position to say otherwise.
Once upon a time, people used to think that the right of property came from God, or from the king or other silly things. But the truth of the matter is that it is all about force and utilitarianism, and this has been pretty well recognized for a few centuries now at least.
Copyrights work the same way: Everyone has an inherent right of free speech, and this encompasses the ability to repeat, verbatim, what someone else has just said. An author who creates and publishes a work literally has no inherent power, merely by virtue of being the original author, to stop other people from copying that work. Instead, the author is compelled for lack of any alternatives (aside fr
I'm not the previous poster, but no, they wouldn't have to. If any authors choose not to work under those circumstances, no one would make them, just as there are no doubt many people right now who aren't creating and publishing works because they can't afford to.
Copyright is intended to maximize the public good by both encouraging the creation and publication of works that otherwise would not be created and published, and also, just as importantly, having as few, or no, restrictions on the public with regard to those works, as rapidly and fully as possible.
If a loss in quantity of works occurs, that's bad, but an increase in freedom is good. It's entirely possible for the public to be better off with fewer works but greater freedom. I can provide an example of a work that would come at too great a cost, if you can't imagine such a thing yourself.
You don't inherently have a right to something I produce or create
You don't inherently have a right to prohibit people from copying it, distributing it, etc. So where's that leave us?
AFAICT you can't be forced to create something, or to share it with someone else, but if you do, you don't have any right to control what they (and then, others) do with it, unless they willingly give you that right. Which they might, if there were a good enough reason to.
Community service, minimal fines, house arrest, and probation are ways to deal with this.
The state and the taxpayers should not have to shoulder the burden for the private benefit of copyright holders in the absence of a damn compelling reason otherwise. Better to just legalize much of the offending behavior and be done with it.
Man - the amount of disinformation here is immense.
I'll say!
It is 100% legal to rip CDs and DVDs, DMCA not withstanding. As decryption technologies for DVDs were available prior to the DMCA, those products and technologies were grandfathered in.
Got a cite for that? Also, you may be interested to know that the DMCA was enacted in late 1998. DeCSS didn't come out until about a year later.
Furthermore, it greatly expands and oversteps the original Constitutional clauses related to copyright. (someone would have to show me how the DMCA does not violate the copyright clause as it originally was stated in the Constitution, nor in what way the federal government has any right to interfere with individual actions that are akin to cutting up, say, a book for excerpts)
On the rare ocassions that it has seriously been discussed, the DMCA was generally felt to have been enacted pursuant to the commerce clause, rather than the copyright clause, IIRC. Post Eldred I don't think there have been or are likely to be serious attacks on its constitutionality.
Using a solar sail is certainly sailing. You use light pressure instead of air pressure, and the construction of the sail is different as a result, but it is certainly sailing. And sailing into the direction that the light originates is tacking and can be done with a solar sail together with gravity. What's your problem with it?
A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions, a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing -- that is, require no legislation to make them operative -- to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions so far as they bind the United States, or supersede them altogether. By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint or our country was justified in its legislation are not matters for judicial cognizance.
No, treaties are inferior to the federal constitution. The constitution says so, in Article VI. Treaties are superior to state constitutions, however. (Also according to Art. VI)
No treaties are binding on Congress such that later-passed legislation doesn't supersede them. The most a treaty can manage is to stand at the same level as federal law, below the level of the Constitution.
Congress can pass the law; they have that power, and no mere treaty can take it away.
What happens, if Congress passes a law that is in conflict with the treaty is that the most recent of them is in effect in the US.
As for our international obligations, we have a few choices: We can withdraw from the treaty. We can seek to renegotiate the relevant part of the treaty. Or we can ignore the conflict. If we ignore it, there may be some enforcement mechanism intended to encourage us to do something, but depending on what it is, we may be able to ignore that too. After all, the US is in violation of the Berne Convention and we've ignored that successfully for over a decade now.
No,.int is an old TLD, for international intergovernmental organizations. The UN uses un.int, for example. It's not quite as old as the original five, but it's pretty close iirc.
Well, flying cars is a particularly dangerous example. They're all well and gold so long as you have the only one, but who wants to risk having other people with flying cars overhead?
They tried to 'emminent domain' his ass, but since they had been offered the land so many times and refused, the judge wouldn't allow it. MODOT ended up paying every penny the land was worth (far more than what it was when it was originally offered to them), and finally, the deaths have stopped.
Eminent domain is when the government takes a piece of property, but they're obligated to pay a fair amount for it. If they make too low of an offer, the property owner can sue them and be awarded more; not necessarily what he wants for it, but an amount that the court determines, based on evidence submitted by both sides, to be appropriate compensation. "Every penny that the land was worth" is exactly how much they're supposed to pay when they use eminent domain.
Additionally, pensions funds are typically invested in private institutions as well. What do you think CALPERS does with all of that money they collect - just sit on their hands? They invest pretty much every dime they collect. So in effect, the government is *already* investing in private institutions.
So yeah, everyone should get converted to 401(k)s (or 403s) in place of pensions.
I'd rather have something like a beefed up Social Security. It's clear that putting money into banks isn't a good idea; they're crooks. And businesses don't want to be involved; it's a headache for them, and they're crooks.
So, as with health care, let it be a government function, so that maybe we can try to watch out for one another (at least there's a little bit more we can do about the crooks), and run it with a largely pay as you go system.
Although there may be judge's rulings that say what you claim, any decent analysis of process would show that the downloading itself cannot be infringing, any more than recording a song from the radio or buying a bootleg DVD is infringing.
Recording a song from the radio is at least prima facie infringing, assuming there's a copyright on the song, etc. There may be various defenses, such as 17 USC 107 or 1008, depending on the circumstances, but you can't say it cannot be infringing.
Buying a bootleg DVD OTOH is not infringing. Selling it is a different matter.
For example, if a radio station played a song they had no right to play (thus commiting copyright infringement in the form of "public performance"), the holder of copyright on that song cannot successfully sue anyone who recorded the song from the radio broadcast.
Yes he can. Firstly, because it's infringing on its own merits. Secondly, even if it were The Old-Time Dry Goods and Copyright Licensing Music Hour, in which the announcer said that the music and recordings broadcast were expressly licensed by the copyright holder for home taping, and even if it were reasonable to rely on that assurance, copyright is a strict liability statute; it doesn't matter whether you know you're infringing or not. It's like statutory rape, where it still counts even if you honestly had no idea, and could not possibly have reasonably known, that she was underage.
The part you're looking for starts with "Can the Defendants Be Liable Under a Theory of Contributory Infringement for the Actions of Those Who Browse the Three Infringing Websites?"
In the same way, the person selling bootleg DVDs might not even be guilty of infringement, if they did not know the DVDs were not legitimate, but the person buying the disc is never guilty of infringement, even if they know the disc is a bootleg.
No, it's a totally different way. If some behavior falls under a prohibition in the law (such as making copies) then it's illegal; if there is no applicable prohibition, then it's not. It just so happens that buying a pirated copy is not, by itself, illegal.
The problem is that most judges don't understand the mechanics of digital data transmission, so they don't understand that creating a copy in RAM or on my disc is never infringement, even though an "extra" copy now exists.
The MAI, Intellectual Reserve, and Cartoon Network courts all understood it quite well, though they didn't always agree on how to interpret the law. And they all agreed that it could be an infringement, and only one thought that it sometimes might not be, due to the specific circumstances. And that was just for RAM. If there's disagreement as to downloads to proper disks, I've never heard of them. Got a cite?
Infringement only occurs when the source of that copy doesn't hold enough rights on the material to be allowed to create the copy that ends up in my RAM or on my disc.
The source doesn't create the copy (unless they've taken over your computer or something). The downloader is responsible for his own downloading, and can be liable if he infringes on someone else's rights. He could conceivably have a license direct from the copyright holder, or the uploader might have a license which includes a right to sublicense the downloader for the purposes of the download (as is the case for, say, the iTunes Store).
Otherwise, any website would have an open and shut case against every one of their visitors for infringement.
They would, if not for the implied license they're granting to their visitors by the virtue of having put the pages up on the web. But if someone put pages up that they had no rights to, they can grant no such license. Go read the case I linked to earlier, you'll enjoy it.
If user A has an MP3 file of a copyrighted song, and the contents of that file are transmitted from user A to user B, but user B never actually records the contents of the file, not even to memory, but simply discards the contents of the file bit by bit (or byte by byte) as they arrive, then no copy has ever been created and user B has done nothing wrong.
The MAI court would probably disagree with you, but okay, I'm willing to accept that if you downloaded directly to/dev/null, do not pass go, do not collect $200, that would not be an infringement. It would also be damned peculiar.
And at any rate, as you go on to say, it would be checked out, and honestly I can't imagine it actually happening.
No, you're thinking of a default judgment. The difference between that, and Rule 11 (which requires facts in the pleading) is that the pleading could be factually wrong (although not deliberately so), but since the defendant didn't show up, the evidence was not challenged and are accepted as being correct by default.
But if there were no facts cited in the pleading whatsoever, that's a Rule 11 violation, and the case should be dismissed by the judge if the plaintiff can't cure the problem.
Slashdot Mirror
Why do you feel that you should be paid, but not me?
Why do you think that you couldn't get paid by offering your creative talents as a service, as opposed to what I imagine is your current practice of creating a work at your own expense and then selling copies?
Before I went to law school, I used to be a professional artist. And I supported myself quite comfortably selling my artistic services. I didn't need copyright to get by, and my clients didn't care about it either.
And there are other ways of making money from art. Fine artists (painters, sculptors, etc.) typically get paid for particular pieces. An original painting can command prices that no other copy of the same work can. A Van Gogh can go for millions; the life-sized poster of the same thing is a few bucks, because people will pay for provenance.
As a lawyer, I sell my services because I can't sell anything like copies. What would I do? Sell copies of a brief or a memo tailored for one case to some completely different client? Sell the outcome of a court case? The idea is nonsensical. But lawyers, doctors, plumbers, and even a lot of programmers and artists work in the service economy. Give it a try sometime.
America is about equality
Yes, there would certainly be an equal vote for the legislators who would draft the reforms and (indirectly) the President who would sign it. And the reforms would certainly affect everyone equally. So that problem is solved.
If you thought, though, that authors as a profession are entitled to an equal share of the income made in this country, well, you must not know many authors. The cliche of the starving artist exists for a reason. Copyright never guaranteed you a living; just a chance at one. And it would still do so even if substantially altered.
All you will accomplish is the forcing of consumers to accept highly restrictive contracts (not user agreements or licenses) that prevent you from doing anything with the software.
Well, I'm opposed to adhesive contracts, at least in consumer settings. It wouldn't take much tweaking of the UCC to shut that down, but I felt it was outside the realm of a discussion about copyright.
Individually negotiated contracts, OTOH, are okay I guess. At the very least I'd be willing to take a wait and see attitude. I figure the transactional costs will handle it.
Point #3 would ensure that I would code in special lockouts that prevent you from using the software and if I just felt like it, a yanking of your rights whenever I felt I couldn't trust that you didn't share your software.
I'm guessing you hadn't reached point 4 yet, when you wrote that.
Copyright law needs to be changed, but not yanked.
I agree wholeheartedly. I think that the basic idea of copyright is very good, but the implementation needs serious work. Abolition should remain on the table, but is obviously an option of last resort; it only makes sense when there is not a single possible copyright law that provides a greater public benefit than having no copyright law at all. I don't think this is likely anytime soon.
Of course, I have noticed more and more people who, frustrated with how bad the current law is, are supporting abolition just to be done with the whole thing. This is a dangerous side effect of copyright maximalism, IMO.
You should know full well that when you take away my rights you effectively do something like repeating prohibition -- that worked out wonderfully.
Again, I agree. When you have copyright laws, you take away my right to make copies of your published work. And while this can be justifiable, if I benefit more from that sacrifice than I lose, under the current law much otherwise unobjectionable behavior is being prohibited, the law is widely flouted, and it reminds me a lot of Prohibition.
If copyright were far more important -- like desegregation -- then I could see pushing it on a public that was not happy about it. But it's not anywhere near that level. Copyright really is of trifling importance in the grand scheme of things, somewhere in the neighborhood of building codes that require white picket fences or bans on jaywalking.
You really are a bloodsucking lawyer, aren't you? You effectively just destroyed capitalism in the sense that I, as an author, should get paid for my work...unless I decide not to publish it, which means I can't make money off of it.
Melodramatic much?
Right now there are a plethora of ways that you, as an author, cannot get paid for your work. For example, if you sell a copy of a book, you can get paid for it that one time only; after that, everyone can resell that same copy again and again and again and you don't see a dime.
All I'm doing is creating a single exception which would allow natural persons (as distinct from artificial entities, like corporations) to act freely -- as they basically already do -- provided that it is strictly non-commerical. No ads, no tip jars, no file sharing ratios, nothing.
You can still sell copies to people; some of them will buy it. You can still sell copies to other entities, or to people engaged in commerce.
Copyright, remember, doesn't guarantee that the copyright holder will make money, it just funnels a goodly portion of whatever money there is in the direction of the copyright holder. The funnel is not changing, but the available pool of money may shrink somewhat.
I would agree that it is a big deal. I have traditionally thought of this as the nuclear bomb of copyright exceptions. But after a long time of mulling it over, I support it. Filesharing is the new drinking, and banning it is as futile and dangerous as Prohibition was. And Pr
Get enough votes behind it and it won't matter what I support.
I never said that I expected authors to like certain copyright reforms. But that's no reason not to have the reforms, even if it means running roughshod over the authors and publishers.
Again, we come back to the law.
And the law is what I want to change.
Indeed, my top five changes to copyright law would probably be:
1) A system of strict formalities (registration, deposit, fee, notice, renewal) in order to get a copyright on a published work;
2) Very short terms (probably 1 year), renewable a varying number of times depending on the type of work (more for, say, a movie, less for, say, a computer program) but probably no more than 20 terms altogether;
3) Making non-infringing (or at least non-actionable) any otherwise infringing act engaged in by a natural person, acting non-commercially;
4) Placing works in the public domain immediately if they are published, under the imprimatur of the copyright holder, with DRM, and having a government-run program of distributing those public domain works and assisting in cracking DRM systems;
5) Withdrawing from all copyright treaties, instead offering national treatment to everyone unilaterally (but using diplomacy to encourage other countries to do the same, as well as to avoid mutually incompatible laws that would leave authors in a bind)
You should be arguing what levels of punishment is acceptable for when you steal my property
Setting aside that something like copyright infringement isn't stealing property -- because stealing doesn't occur and there's no property at issue -- my point 3 above indicates that if it was me, personally, and I acted non-commercially in doing so, the level of punishment would be ... none.
You may have confused the previous poster, Mr. Slippery, with me.
Good rule of thumb: My posts that are not one-liners are usually a bit longer than that.
Do you own your home? Can I just come and take whatever I want out of your house?
You might very well be able to. Property rights boil down to one, utterly non-sarcastic question: You and whose army?
Your natural right to own property is based on your ability to personally defend it from those who would take it from you. This isn't very useful, as there's always going to be someone stronger, and bigger, and badder, who can overpower you and take it.
So you ask for help from your neighbor; will he stand by your side and defend the things you claim as your property? Unless he is quite altruistic (uncommon), he's going to refuse unless there is some benefit in it for him, typically, that you agree to help him defend his things too. This is the beginning of the armies.
Internally, a group of people working for mutual defense will create rules that they can all agree on to hold their coalition together. But rules, like contracts, are something you only need once willing agreement has broken down. This means that some part of the group will try to enforce the rules against another part that is unwilling. And it's going to come down to force again. Sometimes this breaks groups into many pieces. Other times, there are few enough, weak enough, people that won't abide by the rules, and they can be overpowered and made to comply. The rules that the group develops will basically follow utilitarian principles, at least amongst the subset of the group that is strong enough that its opinions cannot be dismissed.
Assuming that like a lot of Slashdot users, you're an American, how did you think a bunch of people from entirely different continents came to live here? By waging a bloody and long campaign of genocide agains the previous inhabitants. The European settlers ultimately won because they were strong and the Native Americans were weak; this is all that it took to legitimize the settlers' claim to own this land. Likewise slavery; it was legal because the slavers were stronger than the slaves and those who sympathized with the slaves. It was abolished because the anti-slavery forces eventually grew strong enough to kill or otherwise impair the pro-slavery forces.
Even today, this is the unpleasant truth that underlies all property law: If you own a parcel of land, and I trespass on it, you can call the police and they will arrest me and take me away. If I resist, they'll use force. If I resist hard enough, they'll respond with yet more force until I submit, am incapacitated, or die. But suppose that instead, you own a parcel of land, I trespass on it, and I fulfill the jurisdiction's requirements for adverse possession. Now you can call the police, but I can claim that the law is on my side. We can go to court, I'll win (if I have indeed adversely possessed it), and should you attempt to use force against me, now I can be the one to call the police, etc. And if the state decides to take my land, they can use their self-granted power of eminent domain to do so, and this time I not only can't muster enough force to resist, but I can't even find a legal rule to help me; the land is theirs because I have no recourse whatsoever, not because of any other reason. And if a sufficiently powerful army moves in and conquers the land, it belongs to them, because no one is in a position to say otherwise.
Once upon a time, people used to think that the right of property came from God, or from the king or other silly things. But the truth of the matter is that it is all about force and utilitarianism, and this has been pretty well recognized for a few centuries now at least.
Copyrights work the same way: Everyone has an inherent right of free speech, and this encompasses the ability to repeat, verbatim, what someone else has just said. An author who creates and publishes a work literally has no inherent power, merely by virtue of being the original author, to stop other people from copying that work. Instead, the author is compelled for lack of any alternatives (aside fr
I'm not the previous poster, but no, they wouldn't have to. If any authors choose not to work under those circumstances, no one would make them, just as there are no doubt many people right now who aren't creating and publishing works because they can't afford to.
Copyright is intended to maximize the public good by both encouraging the creation and publication of works that otherwise would not be created and published, and also, just as importantly, having as few, or no, restrictions on the public with regard to those works, as rapidly and fully as possible.
If a loss in quantity of works occurs, that's bad, but an increase in freedom is good. It's entirely possible for the public to be better off with fewer works but greater freedom. I can provide an example of a work that would come at too great a cost, if you can't imagine such a thing yourself.
You don't inherently have a right to something I produce or create
You don't inherently have a right to prohibit people from copying it, distributing it, etc. So where's that leave us?
AFAICT you can't be forced to create something, or to share it with someone else, but if you do, you don't have any right to control what they (and then, others) do with it, unless they willingly give you that right. Which they might, if there were a good enough reason to.
Community service, minimal fines, house arrest, and probation are ways to deal with this.
The state and the taxpayers should not have to shoulder the burden for the private benefit of copyright holders in the absence of a damn compelling reason otherwise. Better to just legalize much of the offending behavior and be done with it.
Man - the amount of disinformation here is immense.
I'll say!
It is 100% legal to rip CDs and DVDs, DMCA not withstanding. As decryption technologies for DVDs were available prior to the DMCA, those products and technologies were grandfathered in.
Got a cite for that? Also, you may be interested to know that the DMCA was enacted in late 1998. DeCSS didn't come out until about a year later.
Furthermore, it greatly expands and oversteps the original Constitutional clauses related to copyright. (someone would have to show me how the DMCA does not violate the copyright clause as it originally was stated in the Constitution, nor in what way the federal government has any right to interfere with individual actions that are akin to cutting up, say, a book for excerpts)
On the rare ocassions that it has seriously been discussed, the DMCA was generally felt to have been enacted pursuant to the commerce clause, rather than the copyright clause, IIRC. Post Eldred I don't think there have been or are likely to be serious attacks on its constitutionality.
Using a solar sail is certainly sailing. You use light pressure instead of air pressure, and the construction of the sail is different as a result, but it is certainly sailing. And sailing into the direction that the light originates is tacking and can be done with a solar sail together with gravity. What's your problem with it?
Yes, you do it by taking advantage of gravity.
The Supreme Court said:
A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions, a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing -- that is, require no legislation to make them operative -- to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions so far as they bind the United States, or supersede them altogether. By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint or our country was justified in its legislation are not matters for judicial cognizance.
Whitney v. Robertson, 124 US 190, 194 (1888).
It's nothing to do with conservative or liberal courts; the Supremacy Clause is very clearly written, and the last in time rule is well established.
No, treaties are inferior to the federal constitution. The constitution says so, in Article VI. Treaties are superior to state constitutions, however. (Also according to Art. VI)
No treaties are binding on Congress such that later-passed legislation doesn't supersede them. The most a treaty can manage is to stand at the same level as federal law, below the level of the Constitution.
Congress can pass the law; they have that power, and no mere treaty can take it away.
What happens, if Congress passes a law that is in conflict with the treaty is that the most recent of them is in effect in the US.
As for our international obligations, we have a few choices: We can withdraw from the treaty. We can seek to renegotiate the relevant part of the treaty. Or we can ignore the conflict. If we ignore it, there may be some enforcement mechanism intended to encourage us to do something, but depending on what it is, we may be able to ignore that too. After all, the US is in violation of the Berne Convention and we've ignored that successfully for over a decade now.
No, .int is an old TLD, for international intergovernmental organizations. The UN uses un.int, for example. It's not quite as old as the original five, but it's pretty close iirc.
Well, flying cars is a particularly dangerous example. They're all well and gold so long as you have the only one, but who wants to risk having other people with flying cars overhead?
They tried to 'emminent domain' his ass, but since they had been offered the land so many times and refused, the judge wouldn't allow it. MODOT ended up paying every penny the land was worth (far more than what it was when it was originally offered to them), and finally, the deaths have stopped.
Eminent domain is when the government takes a piece of property, but they're obligated to pay a fair amount for it. If they make too low of an offer, the property owner can sue them and be awarded more; not necessarily what he wants for it, but an amount that the court determines, based on evidence submitted by both sides, to be appropriate compensation. "Every penny that the land was worth" is exactly how much they're supposed to pay when they use eminent domain.
Additionally, pensions funds are typically invested in private institutions as well. What do you think CALPERS does with all of that money they collect - just sit on their hands? They invest pretty much every dime they collect. So in effect, the government is *already* investing in private institutions.
Of course, that doesn't seem to protect them from rapacious private institutions any more than it does us: http://www.nytimes.com/2009/10/21/business/21street.html?_r=0
So yeah, everyone should get converted to 401(k)s (or 403s) in place of pensions.
I'd rather have something like a beefed up Social Security. It's clear that putting money into banks isn't a good idea; they're crooks. And businesses don't want to be involved; it's a headache for them, and they're crooks.
So, as with health care, let it be a government function, so that maybe we can try to watch out for one another (at least there's a little bit more we can do about the crooks), and run it with a largely pay as you go system.
So do they think that real life is like cartoons, where people usually wear the same outfit every day?
You make a good point. It might be better if that were a John Waters film.
Have you ever seen But I'm a Cheerleader?
Although there may be judge's rulings that say what you claim, any decent analysis of process would show that the downloading itself cannot be infringing, any more than recording a song from the radio or buying a bootleg DVD is infringing.
Recording a song from the radio is at least prima facie infringing, assuming there's a copyright on the song, etc. There may be various defenses, such as 17 USC 107 or 1008, depending on the circumstances, but you can't say it cannot be infringing.
Buying a bootleg DVD OTOH is not infringing. Selling it is a different matter.
For example, if a radio station played a song they had no right to play (thus commiting copyright infringement in the form of "public performance"), the holder of copyright on that song cannot successfully sue anyone who recorded the song from the radio broadcast.
Yes he can. Firstly, because it's infringing on its own merits. Secondly, even if it were The Old-Time Dry Goods and Copyright Licensing Music Hour, in which the announcer said that the music and recordings broadcast were expressly licensed by the copyright holder for home taping, and even if it were reasonable to rely on that assurance, copyright is a strict liability statute; it doesn't matter whether you know you're infringing or not. It's like statutory rape, where it still counts even if you honestly had no idea, and could not possibly have reasonably known, that she was underage.
Here's my go-to case for this, since it is very clearly set up: http://www.law.uh.edu/faculty/cjoyce/copyright/release10/intres.html
The part you're looking for starts with "Can the Defendants Be Liable Under a Theory of Contributory Infringement for the Actions of Those Who Browse the Three Infringing Websites?"
In the same way, the person selling bootleg DVDs might not even be guilty of infringement, if they did not know the DVDs were not legitimate, but the person buying the disc is never guilty of infringement, even if they know the disc is a bootleg.
No, it's a totally different way. If some behavior falls under a prohibition in the law (such as making copies) then it's illegal; if there is no applicable prohibition, then it's not. It just so happens that buying a pirated copy is not, by itself, illegal.
The problem is that most judges don't understand the mechanics of digital data transmission, so they don't understand that creating a copy in RAM or on my disc is never infringement, even though an "extra" copy now exists.
The MAI, Intellectual Reserve, and Cartoon Network courts all understood it quite well, though they didn't always agree on how to interpret the law. And they all agreed that it could be an infringement, and only one thought that it sometimes might not be, due to the specific circumstances. And that was just for RAM. If there's disagreement as to downloads to proper disks, I've never heard of them. Got a cite?
Infringement only occurs when the source of that copy doesn't hold enough rights on the material to be allowed to create the copy that ends up in my RAM or on my disc.
The source doesn't create the copy (unless they've taken over your computer or something). The downloader is responsible for his own downloading, and can be liable if he infringes on someone else's rights. He could conceivably have a license direct from the copyright holder, or the uploader might have a license which includes a right to sublicense the downloader for the purposes of the download (as is the case for, say, the iTunes Store).
Otherwise, any website would have an open and shut case against every one of their visitors for infringement.
They would, if not for the implied license they're granting to their visitors by the virtue of having put the pages up on the web. But if someone put pages up that they had no rights to, they can grant no such license. Go read the case I linked to earlier, you'll enjoy it.
If user A has an MP3 file of a copyrighted song, and the contents of that file are transmitted from user A to user B, but user B never actually records the contents of the file, not even to memory, but simply discards the contents of the file bit by bit (or byte by byte) as they arrive, then no copy has ever been created and user B has done nothing wrong.
The MAI court would probably disagree with you, but okay, I'm willing to accept that if you downloaded directly to /dev/null, do not pass go, do not collect $200, that would not be an infringement. It would also be damned peculiar.
And at any rate, as you go on to say, it would be checked out, and honestly I can't imagine it actually happening.
No, you're thinking of a default judgment. The difference between that, and Rule 11 (which requires facts in the pleading) is that the pleading could be factually wrong (although not deliberately so), but since the defendant didn't show up, the evidence was not challenged and are accepted as being correct by default.
But if there were no facts cited in the pleading whatsoever, that's a Rule 11 violation, and the case should be dismissed by the judge if the plaintiff can't cure the problem.