Printing presses were slow and expensive. Copying by hand with feather dipped in soot was even slower and more expensive. It just wouldn't have been worth it.
You forget that authors and people authorized by authors to make copies had to use the same technology, and they were okay with it. And there were still pirate publishers even back then, long before copyright came into being. In fact that meaning of the word pirate predates copyright law by decades.
Technology always either favors legitimate users, since they can act openly, may be better funded, and may enjoy economies of scale, or doesn't favor either side. It never favors pirates, unless the legitimate users refuse to take advantage of it.
There a billions of bits of content on the internet, mostly held and served up by the copyright holder, or by an authorized redistributor
Still, though, there's no way for you to know for sure. And if it turns out that the author infringed -- perhaps unwittingly -- in creating the work, or that the licensing agreement with the distributor fell through but they didn't stop distributing it quickly enough, then while you're unlikely to get in trouble, you are still liable.
like these comments, each of which belongs to us, their respective authors, who own the copyright, but which we implicity authorize slashdot to redistribute for us by posting them to their server.
Well, you, anyway. I put my posts in the public domain, because I don't want a copyright on them. But you are right about the implicit licenses.
The sysadmin in charge of a server is responsible for setting up accounts and permissions on it, and ensuring that people can only see what they are allowed to see.
Yes. In the law, there is a concept known as secondary liability, whereby the misdeeds of one person may not only make them liable, but may also make other people liable. For example, if there was a flea market at which people were openly selling pirated CDs, and the owner of the property was paid a percentage of each seller's take, not only would the sellers be in trouble, but so would the owner. When the movie studios tried to use the courts to ban the VCR back in the 80's, it was on the basis of Sony, the manufacturer, being liable for the infringements of people who actually used VCRs to infringe. Napster and Grokster were both successfully shut down on this basis. It is commonplace and long accepted. As the Internet rose to prominence in the 90's, some courts were finding the owners of servers liable for what other users put on them. Other courts felt that the owners were too far removed, and that it was more like a xerox machine available to the public, which could not practically be policed. Congress settled the matter by enacting the DMCA; the owners and operators of servers are protected so long as they provide contact info to the Copyright Office, and obey proper takedown notices, etc.
And the person who uploaded a file and putting it in a place to be downloaded is responsible for the fact that content is available.
Yes, though there is currently a dispute raging as to whether they should be liable for merely putting them on a server, or if someone has to download them first. It's due to the precise wording of the law, and not very relevant here, except to remind you that just because downloaders are liable for illegally downloading, that never meant that no one else wasn't liable for other, related, illegal acts.
but it is nearly always legal to download something from the internet.
How do you know?
I'm just pointing out that I think this is absurd.
There are a lot of things I dislike in copyright law, but subject to certain limits I'd want set, this doesn't bother me too badly. In any case, we may have been talking past each other; I usually post here to point out what the law actually is, as I think if people had a better idea of how bad it really is, we could get some decent reform.
So if copyright is to be eliminated, the possibility of attribution that exists right now disappears, unless a new law is enacted to cover that.
No, since privity of contract is required to have attribution anyway, in 99.44% of all cases, all the author has to do is refuse to sell a copy to anyone unless they agree to a contract which not only requires attribution, but prohibits sharing the work with people who aren't parties to the same contract. There may be leaks, but there's still something to use as consideration.
Because with copyright, the general public can't produce copies! How can they copy some author's text and sign with their name, if they can't copy it at all without a license?
There are limits, but copies can be made.
it may be important to keep if copyright is eliminated.
Why? How does it benefit the public to have a right of attribution beyond what is already handled by trademark law and laws against fraud?
The implication from the OP was that it was a general concept that copying an entire work for personal use was not illegal, and that is not the view of the courts.
That is true; fair use is a case-by-case issue. Identical conduct in different circumstances may produce different legal outcomes.
The only IP law I know of that does exempt "for personal use" in a blanket sense is patent law, where you can, indeed, take a patent and build the device described therein for personal use. You cannot, of course, copy any copyrighted software that is part of that device, but you can certainly write your own that performs the same function, as long as the device is for personal use.
I don't recall that to be true. There is an experimental use exception in patent law (which is pretty narrow, and of little value), but I don't believe there is a personal use exception.
I'd say that 17 USC 117 and 1008 approach it, though neither is dead on.
You know, if that was true, then the original framers of the US Constitution were morons. They should have known that copying something from someone caused no harm to anyone and didn't justify the explicit creation of copyright.
That wasn't the justification for copyright. The justification is that copyright benefits society. It coincidentally happens to benefit (some) authors, but that's not the goal of copyright.
Imagine that you hail a taxi and are driven to work in exchange for money. Your goal is not to pay the taxi driver; in fact, you'd appreciate a free ride. Your goal is to get to work. Having to pay for the cab is just a necessary evil involved in accomplishing your actual goal. And if the benefit to you of getting to work is less than the cost of the cab ride, you are literally better off quitting that job and not losing money on your commute. Copyright works much the same way: the goal is to get more creative works created, published, and in the public domain than we would otherwise. If we could do this without having to bother with authors, that would be ideal. Being stuck needing authors, we pay them (by giving them a copyright) in exchange for something we consider more valuable: works that are created and published that otherwise wouldn't be, and which ultimately enter the public domain. If we gained less from this than we paid, of course we'd need to either fix the system or abolish it entirely.
To do what you are saying, to eliminate the market for my work through government fiat, is to commit a crime against me.
No. The market for a work is governed by how well received the work is, basically. An unpopular work has no market, regardless of copyright. A popular work has a big market, regardless of copyright. All copyright does is act as a funnel, diverting most of whatever money there is to be had to the copyright holder. The actual amount of money that can be funneled depends on the work's reception, though.
Anyway, the only reason you have a copyright to begin with is by government fiat. Copyrights don't exist naturally. Authors are not naturally entitled to prohibit third parties from making copies (an exercise of their freedom of speech). Copyright is entirely artificial, and exists for utilitarian purposes. If the people, in a legitimate democratic society, want to abolish copyright, that is their right, for they are the same people who created it to begin with.
I'm sure I speak for literally everyone in the world other than you, when I say that we'd all be happy to voluntarily, temporarily, give up part of our natural right of free speech as applied to your work, so that you can charge monopoly prices to in order to try to support yourself. But we're only going to do it if the loss we suffer by doing so (i.e. not being free to do as we like with it, having to pay monopoly prices) is outweighed by the benefit we receive by doing so.
Feel free to offer a convincing reason why it is in the public benefit for us to deign to have the governments which our consent empowers give you a copyright. I think there are good reasons, and I support the overall idea of copyright, but I'd like to hear you make your case.
Why would anybody go through the trouble and expense to create quality movies, tv, music, books, software etc if it's legal to just take the end product without paying? Sure, some people will pay out of principle, but if it's perfectly legal most people will just take it. Without funding, I'm sure there will still be hobby projects, but nothing on the scale we currently enjoy.
Okay.
A work doesn't have to be expensive to make, or have high production values, in order to be good. Shakespeare had fewer actors than he had parts for them to play, a stage, no good artificial lighting, decent costumes, no scenery, and few props. And he had no copyright. George Lucas OTOH, spent $115 million on The Phantom Menace, and it was crap.
I am willing to take the chance; I think that good works will shine through no matter what. They may be different than we're used to, they may require us to use our imaginations more, but I think it will work out okay. Plus there are ways of organizing funding for works other than copyright, so larger budget works wouldn't entirely vanish anyway.
Has it occurred to you that you are proposing the destruction of the value of human labor on a massive scale?
Nonsense.
As an attorney, if I give a client legal advice (e.g. don't murder people), I only get paid for my labor in researching the issue and rendering the advice, and perhaps my costs, such as copies of a written memo given to the client. But if the client then goes on to re-use that advice, by not murdering each person he meets, and goes on to share that advice with other people, I don't keep getting paid.
That's what a labor market is like; you get paid for your actual labor, not the fruits thereof, or all the value that the fruits might yield.
If authors cannot sell many copies of their book (the fruit of labor) because people just copy the few that were sold, and then copy the copies, and so on, they'll just change models or get a better job. Perhaps an author will demand payment up front -- $10 per hour of writing, or something -- and find that it works better, since no one yet knows how to copy him.
I would tweak this slightly, and say that we should legalize (or at least make non-actionable) otherwise infringing behavior when it is non-commercial and engaged in by natural persons, but aside from that, I agree with you.
And let's all remember that there is solid proof that this is viable: Until 1710, and then only in England, copyright didn't exist, people could copy works freely (assuming that the state didn't engage in censorship of those works, a separate issue), yet plenty of creative works were created. All the works of classical Greece and Rome, all the works of the Renaissance, all the plays of Shakespeare (which were themselves almost all unauthorized adaptations of earlier works, and subject to piracy), were created without the benefit of copyright.
Copyright might be useful, but it is not necessary. And if it ceases to be useful -- that is, if it ceases to provide a greater benefit to the public than the harm it causes -- it should be fixed, or failing that, abandoned.
It is not the downloader who *authorises* or *creates* the copy. It is the distributor. A downloader only ever *requests* a copy of a resource - they can never force a distributor to give them one. It is the distributor's decision how to, or even whether to, respond to a request.
But it isn't as though the server is going to push a file on to your computer without your involvement in some way. While it doesn't have to respond to your request, you do have to make a request. And since a typical server is basically automated, the only human left in the loop is the downloader.
Consider an analogy: Alice sets up and aims a sniper rifle at someone. If Bob pulls the trigger, then while Alice is certainly culpable, Bob is still going to be on the hook. Even if the rifle was secretly only loaded with blanks, or didn't function at all, Bob would still be guilty of an attempt, as there is no requirement that attempts be successful or even possible -- trying to kill someone by using black magic is no less attempted murder than trying to kill someone with a jammed gun, or just plain missing.
While uploaders are liable for infringement by their distribution, downloaders are liable for infringement by their making of a new copy.
How is a downloader to know whether a distributor has the right to distribute a particular piece of content or not?
He can't. The law doesn't care whether he can tell, and holds him liable for infringements even when he had no intent to infringe, and was not even negligent with regard to possible infringement. It's like statutory rape -- if you have sex with someone, and you took every reasonable, or even every possible, step to determine their age, but it nevertheless turned out that he or she was a minor, you have committed a serious crime. If this strikes you as unjust, write your legislators to have the law changed. I don't like strict liability for generic copyright infringement, but we are presently stuck with it.
You may wish to read The case of Utah Lighthouse Ministry v. Intellectual Reserve (sorry, I don't have the cite on me) which very clearly discusses how an 'innocent' downloader can unwittingly infringe, and how he is apt to be liable for at least hundred of dollars for it. Things like this are why I want to see copyright law completely reformed.
In any event, no: downloading files is not presumed to be legal, and in all cases the plaintiff must prove that the defendant's behavior was improper (lack of a license being a factor). Usually though, it's fairly clear cut as to whether there was a license -- an express or implied license to download being the most common ways that it is legal to download anything -- that the issue can be stipulated to so that no one has to waste time with it.
You don't, because the copyright license usually covers that. That's why I've said the US puts them together.
Unless, of course, the contract fails to cover that. And even if it does cover it, it only counts against the other parties to the contract, not to the general public.
So, the law does grant moral rights through copyright, by allowing them to specify it when they give copy licenses.
The contract could also require that parties to it are only allowed to make or distribute copies while not wearing any clothes, but that hardly makes nudity a feature or goal of US copyright law.
No. A copy is defined in the law as a tangible object within which a work is fixed. It isn't possible to download tangible objects. If we could, that would be the end of the postal system. The tangible object in the case of downloading is the downloader's computer's hard drive, or RAM, or whatnot. And since the download didn't magically make itself happen, but was initiated by the downloader sending a request to the server, it is the downloader who is liable for infringement for the download. And the uploader for serving the file to the downloader.
The cases that are brought are selected and structured as they are for merely tactical reasons. Uploaders are easier to find and gather evidence about. A person who only downloads -- a leech -- is harder to find, much less prove liable. Plus, if there were no more uploaders, the downloaders would go away on their own, but this does not really work vice versa. Thus, it is a better use of resources to go after uploaders. Going after the networks themselves is better still (which is why the first lawsuits were against entities like Napster), but they have gotten a lot slipperier.
With at least one case going on the idea of "Did the person downloading know that they did not have permission from the copyright owner?" (The jury declared yes, and ergo it was infringement.)
What, in the US? If so, that'd be damned odd. In the US, copyright infringement is almost invariably a matter of strict liability; there can be infringement even if you had no idea, and could not have reasonably had any idea, and had no intent to infringe. Kind of like speeding, or statutory rape. The penalties can be harsher if you intended to infringe, but usually, intent is not relevant.
If I am reading the law correctly, downloading is presumed to be legal, so for downloading the burden of proof is on the copyright holder, but if the copyright holder crosses the burden of proof, parent is then correct.
No, it's just that if you are sued for infringement, the burden is on the plaintiff to prove that you infringed; his mere assertion would not be enough. This hasn't got anything to do with downloading in the abstract, but is just how one goes about proving a specific case of infringement. No one presumes that murder is legal, but it is still the obligation of a prosecutor to prove that the accused committed the murder. It's the same sort of thing.
The reason for copyright is to encourage people to create
Nearly. The goal is to encourage the creation and publication of works which otherwise would not be created and published, and to have the least restrictions (in scope and duration) as to what the public can do with the work. It is essential to pursue both.
Remember, works are much more valuable to the public when they are in the public domain, than when they are monopolized and subject to a host of restrictions. As an analogy, a car that you didn't own, and were only allowed to use to go between work and home, would not be too useful; a car that you had the free use of, and no one could keep you from using as you saw fit, would be a lot more useful.
The way copyright works is to finance increasing the satisfaction of the first goal by temporarily decreasing the satisfaction of the second, but in the end, we've got to fully satisfy the second interest as well. In fact, it's probably the more important of the two.
but fair use does not include a complete copy made for personal use.
It can. Any otherwise infringing use can be a fair use, though no use is necessarily a fair use. Whether any given use is fair or not depends on the overall circumstances. There's a four-part test that the courts commonly employ, and while the amount of the use is a factor, it isn't determinative all by itself.
For example, the Supreme Court felt that videotaping an entire movie from the television, so that it could be watched later -- a complete copy made for personal use, in other words -- could be a fair use, which was why they didn't support the movie industry's attempt to ban the VCR back in the 80's.
In the US, we don't have a right of attribution for authors, with a very minor exception that few are eligible for, and is rarely invoked. And even that isn't traditional here; it's only present due to requirements imposed by a treaty we never should have agreed to, and which we need to leave ASAP. Since the creative arts do quite well here, and have for a long time, it is obvious that there is no point in granting moral rights to authors -- since it doesn't cause authors to do anything they wouldn't do otherwise, it is merely a cost to the public that isn't outweighed by some greater benefit to the public.
As usual, of course, the Berne Convention has done something rather stupid there. Of course copyright holders should be obligated to provide notice. How else are people to know whether someone is asserting a claim of copyright over a work, who that person is (or at least, was at the time of publication), and when they did so. To fail to require copyright holders to do this is to create a legal minefield where it is all too easy to accidentally infringe because you had no idea -- and could not have reasonably had any idea -- that a particular work was copyrighted at the time. Further, since the burden on copyright holders is so astonishingly minimal, but the burden on the public of investigating an unmarked work is so great, it is only fair to require this of copyright holders.
And Berne itself isn't nearly so expansive as you imagine. It has no problems with works entering the public domain, and certainly doesn't attempt to protect "[e]verything." But with no notice, how are people to tell the protected from the unprotected?
It is unclear. It depends on whether a fair use analysis includes consideration of events that occur after the use (perhaps long after -- imagine selling rare videotapes of tv broadcasts years after they were transmitted) or if they are limited to what happened at the time. I don't recall this issue having been directly addressed.
Yes, people voluntarily form groups and behave in their individual and collective interests. None of that requires formal government.
How formal do you think a government actually has to be? And why can't any of these groups be a government? Here in the US, people are very used to dealing with at least two independent governments (the federal government and their state's government).
Besides, the reality is that most primal governments are principalities dictated by a warlord.
One warlord, by himself, isn't very powerful. It takes the willing cooperation of his warriors to give him power. If he tries to order them to do something they're unwilling to do, the warlord will quickly find himself overthrown.
Hoarding doesn't necessarily harm the group.
No, but it may, and in any event, it is the group that gets to decide. Some groups might not tolerate it until their situation is quite secure.
And your definition of "crime" is wrong.
What would you suggest?
If someone digs a well, it's his.
And if two people come along, it's theirs, unless they choose to let the well-digger keep it. The mere act of digging a well doesn't give someone the ability to keep it.
More likely, in fact, anyone trying to "lay claim to the only well" would be a government official.
Governments don't exist to "pursue the collective good".
Sure they do. Imagine washing ashore on a deserted, uncharted island with a number of strangers. In order to survive, you'd band together for common defense. You'd work together to gather resources and build things that no one person could do by themselves so effectively (e.g. find food, find fuel, make fire, get things to build with, make tools, dig wells, build shelter). You'd have to decide what things would be crimes, enforced by the group against law-breaking members, as well as what punishments, if any, would result. Generally, crimes would be behavior that harms the group, and would include things like murder, hoarding, sabotage, rape, etc. Property rights would be established, but only where they don't conflict with the group's overall needs. If one person tries to lay claim to the only well, he'll either have to hold it against the rest of the group by force, or the group likely won't stand for it.
It's a jungle out there, and people organize themselves into societies, with rules, to better their odds.
Well, I'm no Lockean, or libertarian, for that matter.
But when we are unable to form effective governments to pursue the collective good, the law of the jungle is what we're stuck with. And any government is going to require that people are constrained from doing whatever they want; otherwise, why bother?
A person's 'natural' right to property is limited only to what he can personally defend against others who might try to take it. Anything beyond that is purely based upon other people recognizing my claim, which they are not obligated to do, and may only do when it is in their own interest.
That an individual might claim to own a particular piece of property doesn't mean that property law generally is founded on individuals.
Your example of a single person fighting against a large and presumably unscrupulous group to keep their land only works when the single person can call upon the resources of a much larger group -- law enforcement, the judicial system, the army, etc. -- for aid. Consider the difference between someone being forced off their land at gunpoint by brigands, and someone being forced off their land via a foreclosure by a bank. Not only will the local sheriff not defend the second victim, he is apt to be called in to help kick him out. And if invulnerable aliens landed there the next day and disintegrated anyone who crossed the property line, the aliens would own it, because a good disintegration gun is worth a lot more than a mere property deed.
It's not pretty, but this is how property law ultimately works when you get down to the bottom of it.
Slashdot Mirror
Printing presses were slow and expensive. Copying by hand with feather dipped in soot was even slower and more expensive. It just wouldn't have been worth it.
You forget that authors and people authorized by authors to make copies had to use the same technology, and they were okay with it. And there were still pirate publishers even back then, long before copyright came into being. In fact that meaning of the word pirate predates copyright law by decades.
Technology always either favors legitimate users, since they can act openly, may be better funded, and may enjoy economies of scale, or doesn't favor either side. It never favors pirates, unless the legitimate users refuse to take advantage of it.
There a billions of bits of content on the internet, mostly held and served up by the copyright holder, or by an authorized redistributor
Still, though, there's no way for you to know for sure. And if it turns out that the author infringed -- perhaps unwittingly -- in creating the work, or that the licensing agreement with the distributor fell through but they didn't stop distributing it quickly enough, then while you're unlikely to get in trouble, you are still liable.
like these comments, each of which belongs to us, their respective authors, who own the copyright, but which we implicity authorize slashdot to redistribute for us by posting them to their server.
Well, you, anyway. I put my posts in the public domain, because I don't want a copyright on them. But you are right about the implicit licenses.
The sysadmin in charge of a server is responsible for setting up accounts and permissions on it, and ensuring that people can only see what they are allowed to see.
Yes. In the law, there is a concept known as secondary liability, whereby the misdeeds of one person may not only make them liable, but may also make other people liable. For example, if there was a flea market at which people were openly selling pirated CDs, and the owner of the property was paid a percentage of each seller's take, not only would the sellers be in trouble, but so would the owner. When the movie studios tried to use the courts to ban the VCR back in the 80's, it was on the basis of Sony, the manufacturer, being liable for the infringements of people who actually used VCRs to infringe. Napster and Grokster were both successfully shut down on this basis. It is commonplace and long accepted. As the Internet rose to prominence in the 90's, some courts were finding the owners of servers liable for what other users put on them. Other courts felt that the owners were too far removed, and that it was more like a xerox machine available to the public, which could not practically be policed. Congress settled the matter by enacting the DMCA; the owners and operators of servers are protected so long as they provide contact info to the Copyright Office, and obey proper takedown notices, etc.
And the person who uploaded a file and putting it in a place to be downloaded is responsible for the fact that content is available.
Yes, though there is currently a dispute raging as to whether they should be liable for merely putting them on a server, or if someone has to download them first. It's due to the precise wording of the law, and not very relevant here, except to remind you that just because downloaders are liable for illegally downloading, that never meant that no one else wasn't liable for other, related, illegal acts.
but it is nearly always legal to download something from the internet.
How do you know?
I'm just pointing out that I think this is absurd.
There are a lot of things I dislike in copyright law, but subject to certain limits I'd want set, this doesn't bother me too badly. In any case, we may have been talking past each other; I usually post here to point out what the law actually is, as I think if people had a better idea of how bad it really is, we could get some decent reform.
So if copyright is to be eliminated, the possibility of attribution that exists right now disappears, unless a new law is enacted to cover that.
No, since privity of contract is required to have attribution anyway, in 99.44% of all cases, all the author has to do is refuse to sell a copy to anyone unless they agree to a contract which not only requires attribution, but prohibits sharing the work with people who aren't parties to the same contract. There may be leaks, but there's still something to use as consideration.
Because with copyright, the general public can't produce copies! How can they copy some author's text and sign with their name, if they can't copy it at all without a license?
There are limits, but copies can be made.
it may be important to keep if copyright is eliminated.
Why? How does it benefit the public to have a right of attribution beyond what is already handled by trademark law and laws against fraud?
The implication from the OP was that it was a general concept that copying an entire work for personal use was not illegal, and that is not the view of the courts.
That is true; fair use is a case-by-case issue. Identical conduct in different circumstances may produce different legal outcomes.
The only IP law I know of that does exempt "for personal use" in a blanket sense is patent law, where you can, indeed, take a patent and build the device described therein for personal use. You cannot, of course, copy any copyrighted software that is part of that device, but you can certainly write your own that performs the same function, as long as the device is for personal use.
I don't recall that to be true. There is an experimental use exception in patent law (which is pretty narrow, and of little value), but I don't believe there is a personal use exception.
I'd say that 17 USC 117 and 1008 approach it, though neither is dead on.
You know, if that was true, then the original framers of the US Constitution were morons. They should have known that copying something from someone caused no harm to anyone and didn't justify the explicit creation of copyright.
That wasn't the justification for copyright. The justification is that copyright benefits society. It coincidentally happens to benefit (some) authors, but that's not the goal of copyright.
Imagine that you hail a taxi and are driven to work in exchange for money. Your goal is not to pay the taxi driver; in fact, you'd appreciate a free ride. Your goal is to get to work. Having to pay for the cab is just a necessary evil involved in accomplishing your actual goal. And if the benefit to you of getting to work is less than the cost of the cab ride, you are literally better off quitting that job and not losing money on your commute. Copyright works much the same way: the goal is to get more creative works created, published, and in the public domain than we would otherwise. If we could do this without having to bother with authors, that would be ideal. Being stuck needing authors, we pay them (by giving them a copyright) in exchange for something we consider more valuable: works that are created and published that otherwise wouldn't be, and which ultimately enter the public domain. If we gained less from this than we paid, of course we'd need to either fix the system or abolish it entirely.
To do what you are saying, to eliminate the market for my work through government fiat, is to commit a crime against me.
No. The market for a work is governed by how well received the work is, basically. An unpopular work has no market, regardless of copyright. A popular work has a big market, regardless of copyright. All copyright does is act as a funnel, diverting most of whatever money there is to be had to the copyright holder. The actual amount of money that can be funneled depends on the work's reception, though.
Anyway, the only reason you have a copyright to begin with is by government fiat. Copyrights don't exist naturally. Authors are not naturally entitled to prohibit third parties from making copies (an exercise of their freedom of speech). Copyright is entirely artificial, and exists for utilitarian purposes. If the people, in a legitimate democratic society, want to abolish copyright, that is their right, for they are the same people who created it to begin with.
I'm sure I speak for literally everyone in the world other than you, when I say that we'd all be happy to voluntarily, temporarily, give up part of our natural right of free speech as applied to your work, so that you can charge monopoly prices to in order to try to support yourself. But we're only going to do it if the loss we suffer by doing so (i.e. not being free to do as we like with it, having to pay monopoly prices) is outweighed by the benefit we receive by doing so.
Feel free to offer a convincing reason why it is in the public benefit for us to deign to have the governments which our consent empowers give you a copyright. I think there are good reasons, and I support the overall idea of copyright, but I'd like to hear you make your case.
Why would anybody go through the trouble and expense to create quality movies, tv, music, books, software etc if it's legal to just take the end product without paying? Sure, some people will pay out of principle, but if it's perfectly legal most people will just take it. Without funding, I'm sure there will still be hobby projects, but nothing on the scale we currently enjoy.
Okay.
A work doesn't have to be expensive to make, or have high production values, in order to be good. Shakespeare had fewer actors than he had parts for them to play, a stage, no good artificial lighting, decent costumes, no scenery, and few props. And he had no copyright. George Lucas OTOH, spent $115 million on The Phantom Menace, and it was crap.
I am willing to take the chance; I think that good works will shine through no matter what. They may be different than we're used to, they may require us to use our imaginations more, but I think it will work out okay. Plus there are ways of organizing funding for works other than copyright, so larger budget works wouldn't entirely vanish anyway.
Has it occurred to you that you are proposing the destruction of the value of human labor on a massive scale?
Nonsense.
As an attorney, if I give a client legal advice (e.g. don't murder people), I only get paid for my labor in researching the issue and rendering the advice, and perhaps my costs, such as copies of a written memo given to the client. But if the client then goes on to re-use that advice, by not murdering each person he meets, and goes on to share that advice with other people, I don't keep getting paid.
That's what a labor market is like; you get paid for your actual labor, not the fruits thereof, or all the value that the fruits might yield.
If authors cannot sell many copies of their book (the fruit of labor) because people just copy the few that were sold, and then copy the copies, and so on, they'll just change models or get a better job. Perhaps an author will demand payment up front -- $10 per hour of writing, or something -- and find that it works better, since no one yet knows how to copy him.
I would tweak this slightly, and say that we should legalize (or at least make non-actionable) otherwise infringing behavior when it is non-commercial and engaged in by natural persons, but aside from that, I agree with you.
And let's all remember that there is solid proof that this is viable: Until 1710, and then only in England, copyright didn't exist, people could copy works freely (assuming that the state didn't engage in censorship of those works, a separate issue), yet plenty of creative works were created. All the works of classical Greece and Rome, all the works of the Renaissance, all the plays of Shakespeare (which were themselves almost all unauthorized adaptations of earlier works, and subject to piracy), were created without the benefit of copyright.
Copyright might be useful, but it is not necessary. And if it ceases to be useful -- that is, if it ceases to provide a greater benefit to the public than the harm it causes -- it should be fixed, or failing that, abandoned.
It is not the downloader who *authorises* or *creates* the copy. It is the distributor. A downloader only ever *requests* a copy of a resource - they can never force a distributor to give them one. It is the distributor's decision how to, or even whether to, respond to a request.
But it isn't as though the server is going to push a file on to your computer without your involvement in some way. While it doesn't have to respond to your request, you do have to make a request. And since a typical server is basically automated, the only human left in the loop is the downloader.
Consider an analogy: Alice sets up and aims a sniper rifle at someone. If Bob pulls the trigger, then while Alice is certainly culpable, Bob is still going to be on the hook. Even if the rifle was secretly only loaded with blanks, or didn't function at all, Bob would still be guilty of an attempt, as there is no requirement that attempts be successful or even possible -- trying to kill someone by using black magic is no less attempted murder than trying to kill someone with a jammed gun, or just plain missing.
While uploaders are liable for infringement by their distribution, downloaders are liable for infringement by their making of a new copy.
How is a downloader to know whether a distributor has the right to distribute a particular piece of content or not?
He can't. The law doesn't care whether he can tell, and holds him liable for infringements even when he had no intent to infringe, and was not even negligent with regard to possible infringement. It's like statutory rape -- if you have sex with someone, and you took every reasonable, or even every possible, step to determine their age, but it nevertheless turned out that he or she was a minor, you have committed a serious crime. If this strikes you as unjust, write your legislators to have the law changed. I don't like strict liability for generic copyright infringement, but we are presently stuck with it.
You may wish to read The case of Utah Lighthouse Ministry v. Intellectual Reserve (sorry, I don't have the cite on me) which very clearly discusses how an 'innocent' downloader can unwittingly infringe, and how he is apt to be liable for at least hundred of dollars for it. Things like this are why I want to see copyright law completely reformed.
Ah, I see what you're saying.
In any event, no: downloading files is not presumed to be legal, and in all cases the plaintiff must prove that the defendant's behavior was improper (lack of a license being a factor). Usually though, it's fairly clear cut as to whether there was a license -- an express or implied license to download being the most common ways that it is legal to download anything -- that the issue can be stipulated to so that no one has to waste time with it.
You don't, because the copyright license usually covers that. That's why I've said the US puts them together.
Unless, of course, the contract fails to cover that. And even if it does cover it, it only counts against the other parties to the contract, not to the general public.
So, the law does grant moral rights through copyright, by allowing them to specify it when they give copy licenses.
The contract could also require that parties to it are only allowed to make or distribute copies while not wearing any clothes, but that hardly makes nudity a feature or goal of US copyright law.
No. A copy is defined in the law as a tangible object within which a work is fixed. It isn't possible to download tangible objects. If we could, that would be the end of the postal system. The tangible object in the case of downloading is the downloader's computer's hard drive, or RAM, or whatnot. And since the download didn't magically make itself happen, but was initiated by the downloader sending a request to the server, it is the downloader who is liable for infringement for the download. And the uploader for serving the file to the downloader.
The cases that are brought are selected and structured as they are for merely tactical reasons. Uploaders are easier to find and gather evidence about. A person who only downloads -- a leech -- is harder to find, much less prove liable. Plus, if there were no more uploaders, the downloaders would go away on their own, but this does not really work vice versa. Thus, it is a better use of resources to go after uploaders. Going after the networks themselves is better still (which is why the first lawsuits were against entities like Napster), but they have gotten a lot slipperier.
With at least one case going on the idea of "Did the person downloading know that they did not have permission from the copyright owner?" (The jury declared yes, and ergo it was infringement.)
What, in the US? If so, that'd be damned odd. In the US, copyright infringement is almost invariably a matter of strict liability; there can be infringement even if you had no idea, and could not have reasonably had any idea, and had no intent to infringe. Kind of like speeding, or statutory rape. The penalties can be harsher if you intended to infringe, but usually, intent is not relevant.
If I am reading the law correctly, downloading is presumed to be legal, so for downloading the burden of proof is on the copyright holder, but if the copyright holder crosses the burden of proof, parent is then correct.
No, it's just that if you are sued for infringement, the burden is on the plaintiff to prove that you infringed; his mere assertion would not be enough. This hasn't got anything to do with downloading in the abstract, but is just how one goes about proving a specific case of infringement. No one presumes that murder is legal, but it is still the obligation of a prosecutor to prove that the accused committed the murder. It's the same sort of thing.
The reason for copyright is to encourage people to create
Nearly. The goal is to encourage the creation and publication of works which otherwise would not be created and published, and to have the least restrictions (in scope and duration) as to what the public can do with the work. It is essential to pursue both.
Remember, works are much more valuable to the public when they are in the public domain, than when they are monopolized and subject to a host of restrictions. As an analogy, a car that you didn't own, and were only allowed to use to go between work and home, would not be too useful; a car that you had the free use of, and no one could keep you from using as you saw fit, would be a lot more useful.
The way copyright works is to finance increasing the satisfaction of the first goal by temporarily decreasing the satisfaction of the second, but in the end, we've got to fully satisfy the second interest as well. In fact, it's probably the more important of the two.
but fair use does not include a complete copy made for personal use.
It can. Any otherwise infringing use can be a fair use, though no use is necessarily a fair use. Whether any given use is fair or not depends on the overall circumstances. There's a four-part test that the courts commonly employ, and while the amount of the use is a factor, it isn't determinative all by itself.
For example, the Supreme Court felt that videotaping an entire movie from the television, so that it could be watched later -- a complete copy made for personal use, in other words -- could be a fair use, which was why they didn't support the movie industry's attempt to ban the VCR back in the 80's.
In the US, we don't have a right of attribution for authors, with a very minor exception that few are eligible for, and is rarely invoked. And even that isn't traditional here; it's only present due to requirements imposed by a treaty we never should have agreed to, and which we need to leave ASAP. Since the creative arts do quite well here, and have for a long time, it is obvious that there is no point in granting moral rights to authors -- since it doesn't cause authors to do anything they wouldn't do otherwise, it is merely a cost to the public that isn't outweighed by some greater benefit to the public.
As usual, of course, the Berne Convention has done something rather stupid there. Of course copyright holders should be obligated to provide notice. How else are people to know whether someone is asserting a claim of copyright over a work, who that person is (or at least, was at the time of publication), and when they did so. To fail to require copyright holders to do this is to create a legal minefield where it is all too easy to accidentally infringe because you had no idea -- and could not have reasonably had any idea -- that a particular work was copyrighted at the time. Further, since the burden on copyright holders is so astonishingly minimal, but the burden on the public of investigating an unmarked work is so great, it is only fair to require this of copyright holders.
And Berne itself isn't nearly so expansive as you imagine. It has no problems with works entering the public domain, and certainly doesn't attempt to protect "[e]verything." But with no notice, how are people to tell the protected from the unprotected?
It is unclear. It depends on whether a fair use analysis includes consideration of events that occur after the use (perhaps long after -- imagine selling rare videotapes of tv broadcasts years after they were transmitted) or if they are limited to what happened at the time. I don't recall this issue having been directly addressed.
Yes, people voluntarily form groups and behave in their individual and collective interests. None of that requires formal government.
How formal do you think a government actually has to be? And why can't any of these groups be a government? Here in the US, people are very used to dealing with at least two independent governments (the federal government and their state's government).
Besides, the reality is that most primal governments are principalities dictated by a warlord.
One warlord, by himself, isn't very powerful. It takes the willing cooperation of his warriors to give him power. If he tries to order them to do something they're unwilling to do, the warlord will quickly find himself overthrown.
Hoarding doesn't necessarily harm the group.
No, but it may, and in any event, it is the group that gets to decide. Some groups might not tolerate it until their situation is quite secure.
And your definition of "crime" is wrong.
What would you suggest?
If someone digs a well, it's his.
And if two people come along, it's theirs, unless they choose to let the well-digger keep it. The mere act of digging a well doesn't give someone the ability to keep it.
More likely, in fact, anyone trying to "lay claim to the only well" would be a government official.
So?
Governments don't exist to "pursue the collective good".
Sure they do. Imagine washing ashore on a deserted, uncharted island with a number of strangers. In order to survive, you'd band together for common defense. You'd work together to gather resources and build things that no one person could do by themselves so effectively (e.g. find food, find fuel, make fire, get things to build with, make tools, dig wells, build shelter). You'd have to decide what things would be crimes, enforced by the group against law-breaking members, as well as what punishments, if any, would result. Generally, crimes would be behavior that harms the group, and would include things like murder, hoarding, sabotage, rape, etc. Property rights would be established, but only where they don't conflict with the group's overall needs. If one person tries to lay claim to the only well, he'll either have to hold it against the rest of the group by force, or the group likely won't stand for it.
It's a jungle out there, and people organize themselves into societies, with rules, to better their odds.
Well, I'm no Lockean, or libertarian, for that matter.
But when we are unable to form effective governments to pursue the collective good, the law of the jungle is what we're stuck with. And any government is going to require that people are constrained from doing whatever they want; otherwise, why bother?
I know about that, but it was just a bluff on Spock's part. How Vulcans keep getting away with their reputation for honesty, I can't imagine.
A person's 'natural' right to property is limited only to what he can personally defend against others who might try to take it. Anything beyond that is purely based upon other people recognizing my claim, which they are not obligated to do, and may only do when it is in their own interest.
That an individual might claim to own a particular piece of property doesn't mean that property law generally is founded on individuals.
Your example of a single person fighting against a large and presumably unscrupulous group to keep their land only works when the single person can call upon the resources of a much larger group -- law enforcement, the judicial system, the army, etc. -- for aid. Consider the difference between someone being forced off their land at gunpoint by brigands, and someone being forced off their land via a foreclosure by a bank. Not only will the local sheriff not defend the second victim, he is apt to be called in to help kick him out. And if invulnerable aliens landed there the next day and disintegrated anyone who crossed the property line, the aliens would own it, because a good disintegration gun is worth a lot more than a mere property deed.
It's not pretty, but this is how property law ultimately works when you get down to the bottom of it.