Due to the way the statute is written, all reproduction of works in copies falls within the exclusive rights of the copyright holder, unless there's some exception in the law to the contrary. There is no general personal use exception. Fair use is often misunderstood. It doesn't permit certain kinds of uses (e.g. all timeshifting), but instead permits all fair uses, where fairness depends on the circumstances of the use in question. Any use under the sun can potentially be a fair use, but no use will necessarily be fair. It all depends on the circumstances. In some circumstances, time shifting, space shifting, backup, etc. could be fair, but in other circumstances it could just as easily not be. While that might be useful to some people (e.g. Sony was off the hook so long as the Betamax could be used lawfully, regardless of whether it actually was), that isn't always helpful.
Personally, I think that there should be a broad exception for any noncommercial uses by natural persons. But there isn't yet. Frankly, copyright law in the US, at least, is probably worse than you thought.
Even more strange, how is making a copy of something illegal? I thought only distributing copies was illegal. Personal copies should be legal.
No, lots of things are illegal. The main exclusive rights that comprise copyright are at 17 USC 106. Not all are applicable to every kind of work, but basically they are: reproduction (i.e. making a copy), preparing derivatives, distribution, public performance, public display. The reproduction right has always been part of copyright.
As for personal copies, there's not an exception that applies to all personal copies, all the time, in every situation. Sometimes they're allowed, but usually not.
Who said anything about that? We were not members of Berne until 1989 and yet American authors were still able to acquire copyrights in other countries just fine. It's not difficult, and not an obstacle. Maybe if other countries also abandoned Berne, it might become a tad trickier for us, but I would not be upset. No matter what, Berne has got to go.
Well, where do you think we're getting a lot of our bad ideas? France has long been a source of terrible copyright laws, and the modern method used to push bad copyright laws through the US without serious debate has been to make treaties that Congress feels pressured to comply with by enacting the laws required by the treaty. Again, look to Europe for complicity in this.
The best thing we could do for ourselves and for others is to drop out of all of the copyright treaties, and just worry about our laws, while letting the rest of the world take care of itself. That's our tradition, and it would be best if we got back to it.
It's not a similar situation. The goods created by an author are not the same as the labor of the author. Try again, and don't forget to use nonrivalrous goods.
Though I would point out that lawyers are already usually required to put in a certain number of pro bono hours each month. The bigger change would be the 'anyone.' We can choose our clients freely, though I understand that in some countries lawyers have to accept any client that walks in the door, so that wouldn't be absolutely unheard of either.
Still, if this is what we've come to, try this on for size: Do you think that the government, when spending public money or permitting the private use of public resources (e.g. collecting timber from public land), should adopt an arms-length position as to contractors and other suppliers, so that the people get the most value for their tax dollar? Yes or no?
Would that be in a similar way to how you confuse intangible goods and tangible goods by claiming first sale in an argument on copyright?
I don't recall confusing them. And since first sale is a copyright doctrine, which provides an exception to one of the exclusive rights that compromises copyright, and is generally considered to be an important part of copyright law, I don't really see what's so odd about invoking it.
Then why, oh why, did you start this conversation by attacking someone for defending copyright, and start claiming that free speech means you should be able to copy anything you like?
I didn't. Here is what started the current thread:
No one has a natural liberty to produce duplicate works of someone else's creative work
Of course we do; we all do. It's called freedom of speech, and it not only concerns one's own speech, but also the repetition of the speech of others. (E.g. if I were to perform Shakespeare, and the government tried to stop me, I could assert my free speech rights and would surely succeed, even though I am not Shakespeare)
This right is inherent and everlasting. Copyright is a temporarily and partial cessation of that right, but when the copyright term expires (and to various degrees even while a work is copyrighted) the right is no longer ceded.
See what I did there? I didn't attack the concept of copyright, nor did I say that free speech means that we should ignore copyright laws. I merely said that there is a natural right to copy whatever you like, contrary to the earlier poster's claim, but that we may temporarily, partially cede that right, which is how we establish a copyright regime in the first place.
I support copyright, you support copyright, what exactly is your problem?
You're the one who replied to me. But although we both support things that fall in the realm of copyright, I don't think that our positions are actually all that similar. I think that copyright should, above all else, serve the public interest; you appear to think that it should serve authors, regardless of the effect on the public. Both of these involve support for some kind of copyright, but they're still nearly opposites. The more specific an issue you look at, the more likely it seems that we'll have great differences of opinion.
What's with the unless? Fair use is an exception to copyright. It's a utilitarian exception, which seems sensible, since copyright is utilitarian anyway
And to think, just moments ago, you were saying that the utilitarian way would be to allow anyone to copy a work.
Well, that's a valid possibility, if there was not any possible copyright system that produced a greater public benefit than having no system at all. In that case, having no copyright law would be the best choice. This is why I leave abolition on the table, but I've really seen nothing to suggest that there's absolutely no better option. I'm convinced that there are plenty of laws that would be better than nothing.
Still, what you probably saw me say, and you're misreading, is that it might be good to allow some people to copy works under some circumstances; that relaxing the restrictions of copyright in such a manner actually furthers the overall goals of copyright. Fair use does precisely that. I think that my nuclear exception also does. If I didn't honestly hold that opinion, I wouldn't be advocating for it.
If you don't care how easy it is to get one, why don't you just mandate that an artist can protect his works merely by stating publicly that he doesn't want it copied?
That's fine. But obviously, if an author just says 'don't copy my work' whilst standing in the middle of Times Square, that's not very helpful. So there should be some sort of database, so that we know what author is making claims as to what work. Registering with that database would be an excelle
But when you print a book, you get the whole original book. When you print a song, you only print an instruction book on how to perform the song; actually doing so would require skill, as I said before
I think you're misunderstanding copyright here. What is copyrightable is the musical composition itself, once it has been fixed into some tangible medium of expression, such as sheet music. An unfixed song, in the air, as it were, is not copyrightable. You're thinking, not of a song, but of a performance of a song. That too is copyrightable, provided that it is fixed, such as in the form of a phonorecord.
Besides, you forget that books don't read themselves any more than music does. Both require skills on the part of the user in order to reveal the information within. To perform a book, i.e. by reading it aloud, you have to be able to read and speak the language it is written in. To perform a piece of music, you have to be able to read and play the music. Not that you actually have to do either to reproduce it; it's entirely possible to make copies of things that you don't actually comprehend the meaning of. Yours is certainly a novel idea though; I can't say that I've ever heard of anyone suggest that a musical composition is materially different from a book in that manner before.
Is it immoral to remain parked in a parking spot after the meter runs out
Uhh...yyeeeah. That's kinda the point...
Are you seriously claiming that not moving your car after the meter expires is immoral? That's just crazy.
Oh, so you only desire, but don't actually want it. Sure, that makes sense.
Well, it's like longing for something so expensive that it is beyond your means; you want it, it appeals to you, but you recognize that it would be unwise to actually buy it, which upsets you. I think that absolute free speech is a very attractive position, but I can see good reasons for not quite going that far, not that those practical reasons are anywhere near so appealing.
since you came in denouncing copyright for ZOMG impeding your free speech
Copyright does infringe on free speech, but I don't denounce copyright for doing this, so long as copyright provides a public benefit great enough to outweigh the harm it causes by infringing on free speech. I would only denounce copyright if all possible implementations of copyright not only infringed on free speech but also provided no countervailing public benefit. So far, I haven't seen any reason to think that it's gotten that bad. Of course, I reserve the right to denounce a specific implementation of copyright if it yields a net public harm; I'd just want it replaced by a better implementation, though, and not abolished entirely.
merely create other laws that aren't copyright because they don't control the right to copy, but calling them copyright anyway.
The exclusive right of reproduction isn't actually indispensable to copyright. Copyright is an entire bundle of rights, only one of which happens to be reproduction. But once again, you have not understood or have misrepresented my position: I'm fine with copyright including a reproduction right. There would be limits to that right, but there have always been limits, so that's nothing new.
Fair use is a good example of how copyright is utilitarian in nature.
Unless, of course, copyright were to have some kind of exemption for fair use.
What's with the unless? Fair use is an exception to copyright. It's a utilitarian exception, which seems sensible, since copyright is utilitarian anyway, and fair use is just yet another part of copyright law.
The only thing that getting a copyright proves is that he got a copyright. Getting one doesn't prove they wanted one or not, and not getting one doesn't prove they didn't want one, just that you made it too hard/expensive to get one with your new laws.
Which had to be translated from a performance, since composers kept their originals secret.
Well, not necessarily. Printers started to use printing presses to make copies of musical works very shortly after the printing press was invented. Some of those would have been authorized printings; just as some, but not all, playwrights didn't like to publish their works (which didn't stop them from getting out), I think that we can be sure that there were plenty of composers who didn't care about keeping their work under lock and key.
And still, the copier wasn't able to distribute on a massive scale, undercutting the original author.
Well, not a more massive scale than the original author would have been able to act on. Both could use printing presses, after all.
And despite all of this, the copier still likely wasn't met with a great deal of praise for copying the work, ie. they were morally condemned.
No, not really. Well, perhaps by the author, which is why we have in the English language, the word 'pirate' taking on its meaning of 'unauthorized copier' about a century before authors get copyrights. But generally, outside of authors, rival printers, and censors, I sincerely doubt that anyone particularly cared. After all, someone had to be buying the pirate copies, or else why would the printers bother with them in the first place?
And what are laws, if not the enforcement of publicly-accepted morals?
Again, not all laws have a moral foundation. Is it immoral to remain parked in a parking spot after the meter runs out, or is it just an inconvenience to traffic planners et al?
I DO remember the part where I condemn you for supporting a utilitarian view of free speech
I can't imagine why. You were condemning me for having an absolutist view of free speech, which is funny, since I don't actually have such a view, I just find it attractive. In fact, you were condemning me for not having a utilitarian view of free speech, since it is only then that something like copyright could be justified (i.e. the public good that a properly crafted copyright law can yield can outweigh the public harm it causes by existing). And actually, while I think that free speech is a natural right, I can tolerate some utilitarian incursions on it, which is why I support copyright: I think that copyright is useful. I've said this plenty of times already. But I'm sure you'll go on to ignore what I actually say once again, in favor of whatever words you want to put in my mouth.
utilitarian copyright (which I don't support, because I'm in favor of fair use, eg. format shifting)
Fair use is a good example of how copyright is utilitarian in nature. The ultimate rationale for fair use -- which can be any kind of use, depending on the circumstances -- is that it prevents literal adherence to the copyright statute from giving authors exclusive rights that would trample on the public purpose of copyright. Thus, fair use encourages, well, fair uses. There's no list of what's fair or unfair, and anything can be either. The best we have is a rough test to analyze any given use to see if it is fair. And note, that's not for a class of uses (e.g. format shifting) but for a single, specific use (e.g. the specific format shift that Dave engages in with a particular work on a particular date) or at best for a hypothetical specific use if that's relevant in the case at bar. The various prongs of the test reflect the public purpose of copyright: if the use is educational, or transformative, that tends to weigh in favor of the user. If the use uses too much, or would harm the economic value of the work, that tends to weigh against the user. Remember that copyright only provides an economic incentive to authors; impairing the value of a work impairs the incentive. Format shifting is actually problematic in that three of the four factors of the usual test weigh against it, and the fourth hangs by a thread. If you want format shifting to be protected, I would advis
It was created after the printing press, as a way to restrict who can produce copies of a work, primarily due to the fact that with the printing press, copies could be produced by almost anyone at next to no cost.
That's true. Of course, it was created as a means of official censorship, and as a way for the Stationers' Guild to control the market. It wasn't until the 18th century that copyright was massively reengineered as a means to promote the public good. The modern copyright era begins then, with the enactment of the Statute of Anne in 1710 in England. Other countries followed suit in the 18th, 19th, and 20th centuries.
Of course, not all significant changes in copyright have to do with technology. First, in that copyrights were extended to musical compositions long after they too were easily reproduced by means of printing presses (i.e. in the form of sheet music); if the concern were merely ease of reproduction, they would've been copyrightable sooner. OTOH, copyrights were extended to works of visual art well before the introduction of photography; if the concern were the ease of reproduction, they would not have been copyrightable for some time yet. Really, technological advances are a bit of a red herring: authors and publishers can always make use of the latest innovations, and their ability to act openly actually gives them an edge over pirates, who may need to stay in the shadows. An absolute reduction in the cost of reproduction -- such as going from scribes to presses -- has an equal effect on everyone, and doesn't confer any particular advantage on pirates, unless the authors et al are indolent and slow to adapt.
I like how you condemn copyright as restricting your freedom of speech, wait for me to make a strong case as to why we need copyright, then change your mind and claim you don't have a problem with copyright.
I haven't changed my mind. I recognize that copyright does restrict free speech, but that this restriction may be justified if the public gains a benefit from it which outweighs its harm. Remember the bit where you condemned me for promoting copyright on utilitarian grounds? How would that possibly square with a condemnation of copyright? I think you should review the thread before ascribing to me positions that I don't have.
I hate to be the one to tell you you just wasted several years of your life, but...lawyers don't create laws. Politicians do, which vicariously means the public do.
You really think that lawyers are uninvolved in writing laws? Wow. Actually lawyers write a lot of proposed laws, which are sent to politicians (who are often lawyers themselves) who, if they choose to support the laws, in light of their mandates from their constituents, their own judgment as to whether they're appropriate, etc., will try to get them enacted. Laws proposed from within legislative bodies tend to actually be written by lawyers working as staffers for individual politicians or for bodies within the government (e.g. Congressional committees) in accordance with the instructions the politicians give them.
While I obviously can't, and wouldn't want to, rule by fiat, I can certainly lobby for legislative reform just like any other member of the public.
So what exactly IS your argument?
Basically, I think that copyright laws should be written to maximally serve the public interest in encouraging the creation and publication of original and derivative works and in minimally, if at all, restricting the public as to those works, in both the length of copyright and its breadth.
Therefore, looking at how American copyright laws have traditionally worked, the main points of my agenda are: 1) Restrict copyrightability to works where copyright has an incentivizing effect. This will tend to exclude some classes of work, e.g. architectural works, where mere copyrights don't incentivze much. Further, where we can distinguish between a work that would have been created sans copyright and one that required the incentive o
But as I already pointed out before, this is not synonymous with copyright, because while Bob may resale the item, he loses possession of it. If Bob were to sell an unauthorized copy of the work, it would be a different story. That's why it's called COPYright, not Originalright.
Ah, that's funny. First, copyright involves a number of different rights, the main ones being reproduction, preparation of derivative works, distribution, public performance, and public display. Distribution is the one that is relevant here. Alice's copyright includes the right to control the distribution, i.e. sale, rental, lending, of copies of her work. It's generally subject to some sort of statutory exception, such as first sale, but Bob's sale of the copy to Carol falls squarely within the realm of copyright-related transactions.
Also, you're reading way too much into the name of the regime. 'Copyright' is so named for reasons that are largely no longer relevant, dating back to the 16th century. Nevertheless, way back then, and through to today, even original manuscripts are called copies. In modern terms, any material object in which a work is fixed is a copy, regardless of whether it is the first copy, the only copy, or the one-millionth. With only a few rare exceptions, they're all treated the same.
Buyers aren't going to buy stuff with your escrow scheme because a) they have no guarantee they will get it if the reserve amount isn't met, b) they don't know what they're getting (as releasing samples of it puts it in public domain), c) they won't know when they're getting it d) they forgo their right to buying privacy (they have to be tracked, so they can get their money back if the amount isn't met), e) the hundred other problems I've already mentioned that you seem to ignore.
First, I forgive your forgetfulness, what with the length and twists and turns of our discussion, but if you'll recall, the only reason I even brought up the SPP was ultimately because you were confusing a creative work -- the product of an author's labor -- with the act of the labor itself. I pointed out that they are two distinct things. You said that in that case, how could an author ever sell anything to more than one customer, since that customer would then share the work with others. I then invoked SPP as an example of a way that it could be done. I suppose I should have pointed out that copyright law could be used to prevent the customer from engaging in the sharing anyway, since it isn't affected by the labor/fruit-of-labor dichotomy anyway, and I have never argued that we should abolish copyright law. I guess I got wrapped up in the minutiae of the argument.
Second, while I'm interested in the SPP, and I see it as one possible mechanism for helping authors to self-publish, I don't view it as a panacea.
Third, responding to your individual points: a) The reliability of the escrow service is key to both. The escrow firm will have to build itself a sterling reputation, or may be an offshoot of an existing reputable firm. Amazon already does more or less the same thing when it acts as a middleman, e.g. listing third parties offering books for sale, and accepting payment from customers, which it passes on, and guarantees, along with the orders. I've personally bought plenty of used books via Amazon this way, and I have had no complaints. It can be done.
b) If you buy any kind of work without the opportunity to preview it, you have no idea what you're getting. Authors should either have some manner of preview or other assistance for potential customers -- e.g. summary blurbs, quoted reviews, preview images, audio, or video, etc. -- or should take the chance that they'll only have customers who will buy based on the barest details. Again, since I don't advocate abolishing copyright, you're wrong when you claim that publishing that information will put it into the public domain. Still, to address your irrelevant concern, SPP can work in such a situation, provided that the preview information is carefully li
The consumer habits change argument is hardly convincing.
I don't know. It strikes me as being, if not compelling, at least strongly influential. By and large, laws should reflect the norms of the society which grants authority to those laws. If people are willing to make commercial infringement actionable, but wish to legalize non-commercial infringement, then why not do that? True, if there is a sufficiently compelling reason to go against societal norms, then that would be an issue but that's not always going to be true. For example, in the US, the government was in the right in attacking segregation in the Civil Rights era, but was in the wrong in attacking drinking in the Prohibition era; Racial equality was worth going against social norms, but sobriety was not.
At the root, the idea is that a temporary monopoly over one's works is necessary to motivate artists to devote time to creating new works.
Broadly, I would agree. However, I'd remind you that it is just as much in the public interest to cause new works to be created and published as it is in having the monopoly be as sharply limited during its existence and in having it last for as short a time as possible, if at all. Basically, the public wants the most works for the least copyright.
If it were simply a change in consumer habits, I'd happily say laissez-faire . If people are not interested in music anymore, let record companies disappear! Here, however, we are faced with a slightly different situation. It is not that people are not interested in music anymore, but that they have found a way to illegitimately acquire a perfect substitute without having to bear the costs that went into producing it. In other words, we have a free rider problem, and I'd argue that it will lead to societally sub-optimal outcomes
I think this is the crux of the issue. If there is a free rider problem, then I would suggest permitting some of that free ridership (again, the socially acceptable non-commercial sort; even most casual infringers dislike commercial piracy). The system will just reach a new level of equilibrium. Since we place roughly equal value not only on the number of works created, but also on how minimal the monopoly is in length and breadth, we're just trading one for the other. Apparently, our valuation of new works has decreased somewhat, in favor of greater freedom with regard to those works. There's nothing wrong with this; their proportions are not fixed, after all.
Besides, if it winds up being as bad as you suggest, then I expect that people will realize this, and will once again revise copyright, this time upwards.
Further, bear in mind that we may have a sub-optimal copyright law on the books now! Remember that for over a century, copyright law worldwide has largely been written by authors and publishers, often with little regard for the public interest. There would seem to be a good possibility that they have overshot the socially-optimal copyright law and that reducing the law would bring us closer to the ideal. Please don't assume that just the current law is the better law merely because it is on the books.
In the absence of copyright law, the amount of music created would not be the socially optimal one.
That actually depends on some other factors -- no copyright law is a legitimate option, if every possible copyright law would produce an even worse social outcome. But the choice is not between the current law and no law at all. There is a gigantic spectrum in between those two positions, and we can enact any manner of law in that legal space. E.g. instead of a term of zero years or a term of life+70 years, we could have a term of x years where 0If, however, copyright is abolished or file sharing legalized, the artist's freedom is threatened (since he cannot decide who gets access to his music).
What if we legalize otherwise infringing acts engaged in between natural persons, if those acts are also non-commercial in nature? Then a musician can still exclusi
Choosing to be an artist implies she chose to be exploited?
Nope. Profession has nothing to do with it. It's all about actions.
To make sure we're on the same page, I'm sticking with the hypo involving Alice creating a work, selling a copy to Bob for a pittance, and Bob selling that very same copy to Carol for a fortune. Bob exploits Alice by buying from her at below market prices, then selling to Carol, getting a handsome profit for himself. Alice didn't choose to be exploited by merely being an artist; instead, she chose to be exploited by selling to Bob at such a low price. No one prevented Alice from trying to sell directly to Carol, nor was she compelled to sell anything to anyone at all. She made a deal which she was perfectly satisfied with at the time (or else she would not have made it) but which turned out to be a bad deal when seen with the benefit of hindsight. So be it. Alice is an adult, and she is entitled to make bad deals of that sort. It would be grossly paternalistic to insist otherwise. It takes an extraordinary case to void such a contract, and this doesn't come anywhere close.
I doubt you'd be upset if Alice owned a parcel of land, sold it to Bob because she thought it was of low worth, and Bob sold it to Carol for a fortune because he knew (or discovered) that it had rich oil deposits or something. The differences in price in the two transactions would be the same, the judgments made by Alice would be the same, if she felt any pain from having made poor (or poor-in-hindsight) judgments, it would be the same. So it doesn't matter that in one case she sells a copy of a work, and in the other she sells a plot of land. If there's anything wrong with exploitation, such a trivial detail won't be relevant.
According to your argument, they have to price them only to cover the cost of materials.
No, they price them however they want. Whether they'll be able to make a deal at that price depends on the buyers, though. Authors can't compel people to buy their works. If the work is copyrighted, then all else being equal, they can probably manage to make deals at a higher price than they could otherwise, thanks to their temporary monopoly. Though of course, most works will simply be valueless to begin with, and could not be sold at any price for a want of buyers. E.g. we could be equal partners and try to sell printed copies of this thread we've been having, but I doubt we'd ever find a single person who wanted it. It's only for public domain works that have an interested audience where the price tends to drop to just-above the marginal cost of the copy, due to the beneficial effects of competition. I mean, that is basically the point of having competition in a free market anyway: to lower prices, increase the number of sources, etc.
So in other words, the value of the work is severely degraded, against the wishes of the author.
That's exactly right, because no one cares about the author. What the public cares about are works: getting them created, and getting them published. Authors are just a necessary evil. If it were possible to wave a magic wand and get works that way, we'd do that instead. Imagine if we had those replicators on Star Trek: we could largely abandon the job of farming (except for people who made it a hobby, or who sold to the presumably small number of people who didn't like to use replicators) and we'd do so, regardless of whether the farmers liked the idea or not. At least we could rest assured that the ex-farmers wouldn't go hungry as they changed occupations.
The goal of copyright is to cause as many works as possible to be created and published that otherwise would not have been, and to get those works into the public domain as soon as possible, with as few restrictions on them in the meantime. The wishes of the author are never a concern. To incentivize the author, a bribe (in the form of the possible value of the copyright) is paid, but since the work will continue to exist for a long time, the bribe is actually w
Any rational person would say, mostly you're compensating the artist for their time and skill, and the cost of materials are negligible.
I'd say that it depends largely on the author, the work, the marginal cost of an average copy, the number of copies, etc. Not to mention how much profit is sought above and beyond mere compensation. But that's probably not very helpful. Really, the author can price copies however they please. I don't think that most people worry too much about how the price of a copy breaks down. Policy-wise, it is imagined that copies of public domain works will be ideal, since the presence of competition for what are, after all, commodity goods (one copy of a work generally being just as good as another copy of the same work in the same medium), will result in prices dropping to only slightly above marginal cost. This is desirable, since it means that more people can afford to enjoy the work, which is one of the primary goals of copyright.
However, Bob is now exploiting Alice's hard work for his own personal gain. Alice never chose to be exploited
Alice did indeed choose to be exploited, if at least in some manner or another. She created the work, and sold a copy. If she sold the copy for a pittance, and Bob sold it to Carol for a fortune, that would just as equally constitute exploitation; Bob, the man without a lick of talent, would have "exploit[ed] Alice's hard work for his own personal gain." It doesn't matter whether he loses possession of the copy. Alice has still lost a huge sale to Carol, and Bob has gained at Alice's expense. That's exploitation. Businesses do this kind of thing all the time, e.g. a low level employee has an idea which makes the company successful, the boss a millionaire, and the employee gets nothing in particular. It's not unusual, and it's basically accepted in our society. If you're upset about consensual exploitation, you may want to look into destroying capitalism, rather than puttering around with mere copyright law.
Besides, nothing's more central to copyright than exploitation. The whole idea is that since the public wants more public domain works to be created and published, it will exploit authors to get them. The means for this exploitation is to offer authors a copyright in order to get them to create and publish those works which they otherwise would not have done. The copyrights offered, however, must be the absolute minimum in order to get them to do this, so that the public has the maximum possible net gain when all is said and done. Obviously, any author who takes the deal is willing to be so exploited. Authors who don't, aren't exploited, but then, they aren't creating anything either, being the hold-outs that they are. And authors who would have done it anyway shouldn't be given the offer, since it would be a waste to the public. It's hard to distinguish them, but there are some crude mechanisms known. Certainly it is not in the public interest to merely reward authors because they're naturally deserving or some such nonsense. Copyright is a quid pro quo. Nor is it in the public interest to care about authors beyond the minimal extent necessary in order to incentivize them according to plan.
So I would be upset with Bob if he copied Alice's copyrighted work, assuming a good copyright system was in place. I would not be upset with him because he's committed a sin against Alice, though. I'd be upset with him because he is interfering with the smooth operation of the copyright system. Were we talking about dairy farming, I'd be upset with Bob spooking the cows, but only because it results in sour milk (and thus, lower profits) rather than any other reason.
A rational, moral person would say no. Your ideals say yes.
I'd say yes, because I am a rational person. Morals don't enter into it, though, because copyright is amoral area of law.
And hence we come back to the question, why would anyone believe what you say, when you are clearly and demonstrably an irrational, immoral person?
You raise the idea of a right to benefit from a work. That idea doesn't really appear in copyright law as it currently exists, at least in the US. For example, an author has a right to decide when he wants to distribute a copy of his work, but having done so, anyone can distribute it further without permission or compensation. So if Alice is a painter, and sells a painting to Bob for $1, Bob can turn around and sell it to Carol for $1 million, and never have to give Alice a penny of his newfound wealth, nor get permission for Carol to own the painting, even if Alice hates Carol's guts.
Right, Bob can sell it on. However, Bob no longer has possession of the painting. Bob also cannot sell a copy of the painting and claim it to be Alice's. It's called art fraud. I'd be surprised if a lawyer had gotten this so wrong. However, I'm not surprised at all that YOU got it wrong. Hence, we establish your shoddiness.
I think that there may be a slight disconnect here between what I actually said (and my actual position) and what you imagined I said (and what you imagine my position to be). I never said that Bob would retain possession of the painting after having sold it to Carol. Nor did I say that Bob could make a copy of the painting and sell that instead (assuming that the painting is copyrighted). Nor did I say that if Bob did make a copy of the painting, that he could claim it was a copy made by Alice.
So I don't quite see what I got wrong, when you're just putting words -- bizarre words -- in my mouth. I'd appreciate it if you would address me and my statements, instead of continually invoking the fantasy you've constructed.
Have you decided yet that counterfeit money is ok, or have you come to your senses?
Well, I enjoy J.S.G. Boggs' series of self-made banknotes as much as anyone, but I suppose it's not counterfeiting (not that that has stopped the government from confiscating some of his art). No, I don't much care for any sort of fraud. As I said, I'm not a free speech absolutist, but I do find it an attractive position.
"I agree it's wrong to exploit and manipulate people; however, it's totally ok to exploit and manipulate them"
No, please quote me accurately. I said that it's wrong to exploit people by force; it's totally okay to exploit people with their consent to be exploited. And even then, I would still like to see a little bit of room for things like consumer protection, provided that it's not overly paternalistic.
Nice of you to change your tune so late in the game. I'm glad you agree with me that we need copyright law.
Well, no. For years, I have consistently said that we should not abolish copyright, we should merely reform it. We don't need copyright; our society would continue just fine without it. But it is useful, if done right. We're not doing a very good job of having copyright at the moment, though, hence my calls for reform. Abolition remains a legitimate option, and should stay on the table, though choosing it wouldn't be doing a very good job either, I think.
Maybe in a fantasy. That's not practical and you know it. A media company has more resources, more power, more influence and a louder voice than an individual ever will.
Funny, it seems to work okay in a wide variety of circumstances even today. Look at the debate over, say, evolution. Should the people opposed to evolution be censored, due to the fact that they couldn't present a solid scientific argument to save their lives? I wouldn't support that. Even if they're cranks, let them be noisy cranks. It doesn't harm anyone to hear them spout off. And while it might be interesting, and perhaps even good, if people could equally make use of all the forms of media known to man, I'm afraid that we don't live in a society where we do that. Nevertheless, even if the little guy is reduced to holding up a cardboard sign on the sidewalk, for lack of resources, he has his opportunity to make himself heard. Better to
How convenient, then, that the shoddy legal advice that you provide isn't relevent to the general population.
What makes you suppose that it's shoddy? My position on the foundations of copyright, or what reforms I would like to see, have little, if any, bearing on my knowledge of what the law currently is.
Except luckily for you, the law provents that advice from applying from applying to any general circumstance.
Well, that really depends a lot on what is asked of me. In most any case where an author asked me whether or not they should bother to register their copyrights, I'd probably say that they should. Usually if it's worth raising the question, or even if it is merely going to be publicly displayed, performed, or distributed, it's worth registering. OTOH, if I was asked to negotiate an agreement and draft a contract accordingly, that's very bespoke work.
Authors experience a similar range of work. Sometimes art can be enjoyed by a general audience, such as a sculpture in a park. Other times, the audience is very limited, and will often be closely involved in the creative process, such as a commissioned portrait which will be displayed in a private home.
In other words, to deprive the author of their right to control who gets to benefit from their work
Authors don't inherently have such a right, however. They have a right to choose to create, to choose to show or share their creations to or with the public, and if they have not let their work slip from their grasp, to destroy it. But if the public has somehow acquired a copy of the work, then the only rights that the author can exercise over members of the public are whatever the public has seen fit to vest in the author.
You raise the idea of a right to benefit from a work. That idea doesn't really appear in copyright law as it currently exists, at least in the US. For example, an author has a right to decide when he wants to distribute a copy of his work, but having done so, anyone can distribute it further without permission or compensation. So if Alice is a painter, and sells a painting to Bob for $1, Bob can turn around and sell it to Carol for $1 million, and never have to give Alice a penny of his newfound wealth, nor get permission for Carol to own the painting, even if Alice hates Carol's guts.
This isn't that odd; merely creating something has never been enough of a justification to warrant having absolute rights over it. Consider the two neighbors, one of whom greatly improves his property so much that the value of the adjoining plot also increases merely due to their proximity. The first neighbor is not entitled to a share of the money the second neighbor might get upon a sale, despite the fact that it is entirely attributable to the effort of the first neighbor.
Because god forbid, you should see yourself in their shoes and consider how they would feel
Well, like I said, I used to be a professional artist before I changed careers. I made a comfortable living and enjoyed myself. As a result I don't have to exert my imagination much to see things from the perspective of an artist. It hasn't changed my opinion.
Remember though, with copyright being utilitarian, that means that authors are seeking to serve their own self-interest just as much as everyone else is. It is in their interests to encourage your sort of soppy altruism; they're exploiting you to get what they want: more and longer-lasting rights. It's fine for them to try, we just need to avoid falling for it. Putting authors on a pedestal is how copyright got to be such a mess in the first place.
I implied that a human has a right to not be exploited and manipulated
So long as it's not consensual, I'd agree. We certainly cannot use the stick on authors, but we can dangle a carrot in front of them (in this case, the possibility of using a copyright to make money) in order to entice them to do what we want (create and publish works which will ultimately fall into the public domain). Th
So you're saying an artist should charge their first customer 1 billion dollars, then give away their work to every subsequent user? Sure, that could work. You first.
Don't you recall that in fact, that's what I do? I give my clients legal advice for a fee, and I lack the ability to prevent them from sharing that advice with others, even though it might undercut me. You didn't seem to have a problem with it just a few posts ago.
Further, that's a legitimate strategy for authors to recoup costs. One variant of it is called the Street Performer Protocol, in which an author creates a work, and places it in escrow, and then asks for his audience to enter into a subscription for the work. Their money also goes into escrow, and when the payments from however many members of the audience chip in meets the asking price, the money goes to the author, and the work goes to the public. If the work is a dud, he'll likely get little repeat business (just as with any flop author). If the asking price is too high for the interested audience, he may have to lower it, or else find a more rewarding line of work. It's also a decent way for a mass audience to seek to have a work commissioned by pooling their money and listing the requirements the author will have to meet.
And here we have it, the crux of your extremist utilitarianism views.
No, I'm really only a utilitarian with regard to a few very limited areas. Copyright is one. In fact, I'd say that I've got a lot of altruistic tendencies in me. But we're not talking about that, we're talking about copyright, a purely utilitarian field.
"The ends justify the means", as they say. You have no problem exploiting someone, as long as it benefits everyone else, no matter what the cost to that person's human rights.
Well, it's funny you say that. There is no human right of copyright. This is as expected: copyright is a negative right, that is a right to compel other people to not do things which they are otherwise entitled to do. I can't really think of any human rights to force one's will upon another. In fact, copyright is directly opposed to the human right of free speech and press, which encompasses the right to repeat and reprint what someone else has already created, regardless of whether they approve.
So if we're going to have copyright, it means a degree of infringement on the free speech right of everyone other than the author, so that the author has a copyright, i.e. a right to prevent the rest of the world from freely exercising their human rights to the fullest extent. Provided that it yields a net benefit for all of those other people, then I can see that copyright is tolerable, if of debatable worth.
I doubt, however, that this is what you were accusing me of believing.
As long as that person isn't you, right?
No. I don't mind some other person having a copyright which requires that I not fully engage in free speech. Provided, as always, that I am somehow benefiting from my sacrifice more than I lose. As I've said many times before, I'm not opposed to copyright, I just want copyright to provide the greatest possible good for the public. Whatever configuration of copyright does that, or at least comes closest, I'll support.
With a view like that, it's no wonder people think you're crazy.
That's interesting; I've had my disagreements with people, but I don't recall getting many complains of insanity. In fact, my experience has been that usually people see it my way. Lockeans don't, but they tend to either be 1) people who don't give copyright much thought, and go with a gut instinct, and so are easily brought around to utilitarianism when a good argument is made, or 2) confirmed Lockeans, who have considered and rejected utilitarianism, and who are rare.
However, I think that you're confusing copyrights with patents to an extent.
I don't think that I am.
The above is the purpose of patents - to ensure the progress of science by ensuring that works are created and published such that they end up in the public domain after a period of time.
No, although both are utilitarian doctrines and there are some broad similarities.
Patents exist to promote the progress of the useful arts by encouraging the invention, disclosure, embodiment, and bringing-to-market of novel, non-obvious, useful inventions, and by causing those inventions to enter the public domain as quickly and fully as possible, by imposing formalities that must be met rapidly in order for an invention to be patentable, by limiting the coverage of the patent if granted, and by limiting the length of the patent term so that the disclosed patent rapidly enters the public domain.
Don't be confused by the 'science' / 'useful arts' wording. The English language has changed a fair bit since the Constitution was written in the late 18th century, and people often stumble over the wording of the copyright and patent clause. If you consult a good dictionary -- the OED, say -- you'll see that at the time, science referred to general knowledge, and the arts were applied technologies. There are still some remnants of the latter, such as the importance in the patent field of prior art, how patents ultimately deal with state of the art technologies, the concept of a person having ordinary skill in the art, etc. And of course, in copyrights, there is the utility doctrine, which prohibits some works from being copyrightable if they're useful, since utility is exclusively the realm of patents. Copyright's idea/expression dichotomy has a similar basis. Plus, the Constitutional clause is written with copyrights first, patents second: science / useful arts; authors / inventors; writings / discoveries.
And BTW, patents deal with inventions, not creative works. Works are the realm of copyrights.
Anyway, you'll find that my summation of the purpose of copyright is correct. Copyright serves two public interests: the interest of having works created and published, and the interest of having works in the public domain. Without copyright law, the second interest is wholly satisfied, but the first is only somewhat satisfied. (Obviously some works are created in the absence of copyright, as our pre-Anne history proves) Providing an incentive to authors in the form of a copyright can inventivize a great deal of creation and publication, but diminishes the satisfaction of the second, equally important interest. If copyright is minimal, yet has a tremendous incentivizing effect, then the gains derived from copyright may outweigh the harms that inevitably result, making for a net public benefit and a worthwhile copyright system. But since the incentivizing effect doesn't scale in a regular, linear fashion, adding more copyright (at the expense of the second interest) only works for so long before you reach the maximum possible net public benefit. Beyond that point, if you keep going, you have an ever more burdensome copyright system for less benefit (and all else being equal, where two options yield an equal net public benefit, you should always choose the least burdensome) until you wind up with a net benefit that is equal to the net benefit from when you didn't have copyright at all. Go further than that, and you've got copyright law that makes the public worse off than if there was no such law at all!
At that point, it was intended to protect an author's 'natural right' to benefit from his works first, and for the work to be placed into the public domain second.
I'm going to go out on a limb here, and guess that you haven't actually read the Statute of Anne. First, we just call it that. The actual name of the law was "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein me
All you're doing is applying one rule for artists, who you obviously despise,
Oh, I don't despise authors (i.e. creators). I used to support myself as a visual artist before I got into law, and I have plenty of authors as clients. But in discussing policy matters, I know that the public good is everything, and authors are quite incidental.
Consultancy is a good example - do you really think a consultant is going to charge only for the 1 hour it takes them to present their advice? Or do you perhaps think the consultant will be charging with the potential value of their teachings in mind? And if you were the consultant, do you think you would be terribly happy if, after your first lecture, all your lecture content was taken, word for word, and provided to everyone else for free?
Well, you're answering your own question. If there's a danger of your advice being repeated without your involvement, you'd best charge more up front, since you're not going to see much repeat business. For example, there's that self-help video 'The secret,' which is currently selling on Amazon for about $17. As I understand it, the secret is apparently 'Wish for things hard enough, and you will get them,' which is rather dumb. Have I committed a grave offense just now? I don't think so. OTOH, are you less likely to buy a copy, reducing the amount of money the author receives? Probably.
And a "reasonable time" would be what? 5 minutes? 10 minutes? Please.
In the case of an unpublished work, I'd say somewhere around 20 years, tops, with publication defined very broadly. For published works, another term of copyright would apply, along with formalities the author must undertake in order to secure and maintain whatever rights he might seek. After all, we don't want to encourage authors to create works and then just sit on them. We want those works published.
You just want to lure him in with the illusion of compensation for his labor, then exploit him for all he's go afterwards. Yeah, I totally see what a fair, (sym)pathetic person you are.
That's about right. I've not claimed to be fair or sympathetic. I want to maximize the public benefit, which means exploiting authors. I don't mind compensating them, if that's what it takes, but I certainly would not do so to excess. A good analogy would be a dairy: The dairy farmer just wants cheap milk to sell so as to maximize his profit. If he could magically get milk without the expense of cows, that would be great. Lacking that ability, the solution is to get the greatest yield of milk for the least cost. If that involves making the cows happy, so be it. If not, then that's okay too.
So I'm perfectly happy to give authors a reward in the form of copyright if it is the public interest. I have no need for trickery. But I would not give authors anything for their own sake, or anything beyond what best serves the public interest. Incentivizing them needn't go to excess. And it's certainly not slavery to do this. This is a lot like the job market in first world countries: Offer a wage for work, and ensure the wage is high enough to get the workers you want, but low enough that you're not paying them a penny more than it takes to get them working. They're consenting to work for the wage, even though it's the least they'd be willing to take; it's not slavery, just bargaining. If there's an author out there who feels insufficiently compensated, despite the fact that copyright could not possibly be increased enough to attract him and still serve the public interest as best as possible, let him get a job doing something else.
But what you've just described there =is= copyright!
When did I ever say that I was opposed to copyright? I'm in favor of reform, not abolition. Sweeping reform.
Seems to me that that is exactly what the copyright system exists to do. To ensure that the creator can benefit from their works, but also to ensure that the work reverts to the public after a period of time.
Well, no. That's the kind of thinking that got us into this mess. Copyright isn't meant to help creators at all, except in an incidental manner. The goal of copyright is to promote the progress of science, which consists of 1) causing works to be created and published that otherwise would not have been, and 2) having any restrictions on the public with regard to those works be as minimal and as short-lived as possible. The goals are of roughly equal weight, with a little more afforded to the second goal. The means by which copyright tries to achieve the first goal are restrictions on the public, to the benefit of the author, but benefiting the author isn't a goal in itself, and in fact is in opposition to the second goal. Further, since the amount of benefit the author receives doesn't scale linearly (going from zero years of copyright to one year is worth a great deal to the author, but going from one million years to one million and one years is very nearly worthless, even though both consist of one year's worth of copyright), the second goal really comes into play, and insists that copyrights be weak and short-lived so that authors are just barely incentivized to create and publish, which is all we want them to do. There's no value to the public in giving them an iota more of anything, though. If some authors hold out for a lot, we must recognize that the public may be better off without giving them what they want; the amount of copyright it takes to encourage some works may come at too great a cost. We want the most net public benefit, i.e. the most works created and published (good) for the least amount of copyright (inherently bad).
So it would seem that you agree with copyright, you just think that the period of time which it lasts for is too long - which is something I'd definitely agree with.
No, I think there's a lot of problems. I wouldn't grant copyright to entire classes of works, I'd require formalities, I'd limit the effects of copyright on certain segments of the public, etc. Term lengths are not even the most important reform I can think of, though they do need to be drastically shortened.
So the question has to be, what is the optimal length of time that copyright should last so that it ensures that a content creator has a fair chance of being rewarded for his work (thus providing the incentive to create said work), whilst also maximizing the gain to culture as a whole by ensure that it reverts to the public in a timely enough manner.
You're thinking in the right direction, though in fact 1) it's not just the length of time, but also the scope of copyright. For example, if authors would create and publish an entire class of works sans copyright (e.g. architectural works), then there is no need to give them copyright, since it would have no positive effects for the public (as has been seen in the architectural field since 1990, when copyrights went into effect; there's no surge of new buildings that isn't attributable to other reasons, such as dot-coms being able to afford new buildings during the boom). 2) Helping authors is merely a means to an end, and not an end in itself. The only purpose of copyright is to maximize the net public benefit in relation to creative works. If aiding authors furthers that goal, then do it. If not, then don't. Certainly don't try to maximize authorial benefit at the public expense. Rather, give them as little as possible whilst milking them for as much as you can get.
Just like how it's ok for your employer to refuse to pay you at the end of the month, because the labor is already done, so it's not like you're losing anything.
No, there the trade is pay in exchange for labor. There's nothing wrong with payment merely being deferred to the next payday. What would the alternative be? The boss hands you a dollar every so many minutes?
However, if I do some labor -- say, I give a client some advice on how to avoid infringing -- then why on earth would it make sense for the client to ask me to repeat myself if he runs into substantially the same situation again? Surely he can remember my advice and apply it again, without my earning a second fee. Knowledge is certainly a useful good, and the product of material labor, but it is not a consumable good. It is wrong to treat knowledge of any sort as if it were a rivalrous, consumable, material object, like a brick or an apple. To do so completely ignores the special attributes of knowledge.
Because fire is not patented, and cavemen chose to share the discovery with us.... Because government works are declared public domain, and judges are compensated for this with their paycheck from the government.... Because quoting for context is deemed fair use, and he's posted it in a public place (the internet) and therefore is arguably assumed to be public domain.
None of those are particularly good arguments, because you are putting the cart before the horse, as it were. Previously, you seemed to be arguing that the law should be written in such a way to aid authors because authors deserve it. With these arguments, however, you are saying that whatever the law is, it is correct, regardless of how it treats authors. (Or perhaps that the law as it currently stands is ideal, which I doubt that anyone believes) If you're sticking with your most recent statements, then you must surely agree that if we were to abolish copyright by legal means, that this would be entirely appropriate, and that authors would not suffer ill effects as a result. After all, it's only the current law that makes fire unpatentable, that makes United States works public domain, and that results in fair use.
Oh, and BTW, posting a creative work in a public place does not affect the copyright status of the work; it is still copyrighted, and it is not in the public domain. Further, if the work were in the public domain, you could not engage in fair use with respect to that work, since you wouldn't need to; fair use is a defense against infringement, and only applies as to copyrighted works.
You would rather force everyone to do this by taking away his right to choose its disclosure. If it walks like slavery, talks like slavery, smells like slavery...
No, not at all. Here is my position on the subject, stated plainly:
Authors should have total freedom to decide whether or not to create works. Authors should have total freedom to decide whether or not they wish to disclose those works to any person or persons, including outright publication. Authors should have total freedom to decide whether to preserve or destroy those copies of their works which they own.
However, if an author reveals his work to another person, and the author fails to publish his work after a reasonable period of time after having created it, then that other person should have the right to publish the work despite the author's wishes.
This is because everyone has an inherent right to publish anything they like, whether they wrote it or not. We might temporarily restrict that right so as to encourage authors to create and publish works themselves. However, if they fail to take that encouragement, the next best thing we can manage is for someone else to publish the work. Naturally, they wouldn't be able to copyright it -- they're not the author! -- but at least it gets the work out there, which is more than the author ever did.
In such a situation, the author had his chance, and ignored i
No one has a natural liberty to produce duplicate works of someone else's creative work
Of course we do; we all do. It's called freedom of speech, and it not only concerns one's own speech, but also the repetition of the speech of others. (E.g. if I were to perform Shakespeare, and the government tried to stop me, I could assert my free speech rights and would surely succeed, even though I am not Shakespeare)
This right is inherent and everlasting. Copyright is a temporarily and partial cessation of that right, but when the copyright term expires (and to various degrees even while a work is copyrighted) the right is no longer ceded.
And taking an artist's work against the terms he makes it available under IS forcing him to work for you.
No, because the actual labor is done. We do not enslave cavemen when we make fire without paying royalties. We do not enslave federal judges when we reprint the court opinions that they wrote in the course of their duties. I am not enslaving you when I include quotes from your post, just as you do not enslave the previous author when you quote him without his permission. Your argument is, in a word, dumb.
it astonishes me how many otherwise reasonable people think this is ok, just because it involves labor of the mind rather than labor of the hands.
No, that has nothing to do with it. The issue is that creating a work is an act of labor, but the work itself, having been created, is a mere good. Re-using that good simply does not result in causing the author to engage in the exact same amount of labor once again. If I reprint Shakespeare, and he's been stone dead for centuries, and likely wouldn't have wanted me using his work for free, being the business-mined sort of guy he was, how the hell are you even suggesting that I am enslaving him? Is he a zombie that I have set to work at a writing-desk? No. Please learn to distinguish between labor of the mind -- the act of creation -- and the fruits of that labor -- works -- which are not labor themselves, but merely a product. Brickmaking is labor, but bricks are not. Writing is labor, but writings are not. This is very straightforward.
So you are totally okay with a company publishing a manuscript against an author's wishes and keeping all the proceeds as long as the author's name is published?
I think that the author ought to have the first bite at the apple, and that he ought not be compelled to create a work, or publish a work, or preserve a work from destruction, if he is otherwise inclined. However, if a work is created and extant, even in MS form, and if it legitimately winds up in the hands of someone who wishes to publish, I am not averse to publication against the wishes of the author. He ought to have a period of time in which he can be first to publish, but if he does not, then it is better that someone else does it than that the work is never published at all. The public benefits from the creation and publication of works. If the author won't step up to the plate, we ought to permit someone else to do so, rather than lose the work altogether.
Consider the saga of Nabokov's "The Original of Laura." He didn't finish the work before his death, and wanted the manuscript destroyed. The literary world wanted it published. Finally, after dicking around for three decades, his son has decided to publish what there is of the thing. This is good. It certainly doesn't matter what the author wants; that's not the point of copyright.
Do you really not see the public benefit of intellectual property?
Well, we seem to be talking about copyright here; let's not confuse matters with nonsense terms like 'intellectual property.'
Anyway, speaking for myself, I think copyright is capable of yielding a tremendous public benefit. However, I think you'll agree that not all implementations of copyright would yield an equal public benefit, and that therefore we must not only 1) determine what the public benefit would be in the absence of copyright, so that we have a baseline to measure against, but that 2) we must strive to create a copyright system which maximizes the public good.
Do you not see how in the absence of those "privileges" creatives would be even more at the mercy of businessmen then they are now?
So? An author is not the public. While whatever benefit he enjoys from copyright may certainly be a factor worth considering, the public good is our overriding concern. Assisting authors is only of interest if doing so brings us closer to the maximum possible public benefit. If assisting them would take us further away from that, then we certainly must not do it. In practice, this will tend to mean that while authors might enjoy some benefit under an ideal copyright system, they probably won't enjoy the greatest benefit they could have, since it is so unlikely that the greatest public good is identical to the greatest authorial good. This is especially likely when you recall that authors are not a monolithic block; established authors will prefer to rent-seek, at the expense of up-and-coming authors who might upset the ancien régime if allowed to succeed.
You can argue that the situation has gotten so bad that we'd be better off without copyright, but that is an unnecessarily extremist position.
I agree. I don't think that we're at such a low point yet that we're below the baseline. However, I do think that we are terribly far from the optimal copyright scheme. Sweeping reforms are needed as soon as possible, but the longer they are in coming, the more that abolitionist sentiment will grow, I fear.
It wouldn't be commercial speech because it is a work of art; it doesn't matter who created it, or what their motivations were. Commercial speech generally consists of things like advertisements, which are more focused on encouraging the audience to engage in some sort of economic activity directly related to the speech.
Anyway, I doubt it would matter. First, the commercial speech doctrine lacks much of a foundation, and the idea of uniquely significant limitations on speech merely because it is commercial in nature may not last much longer, given current trends and weak legal rationales for preserving it. Second, commercial speech is protected under the First Amendment even now, provided that it is not misleading and concerns lawful activity (which, in the case of a game, would be the playing of the game, rather than emulating in real life the things that happen within the game). Such protected speech can only be regulated by the government if there is a substantial government interest in doing so, where the regulation achieves its goal but is no broader than necessary.
The headline says that the wireframes are not subject to copyright, and that the judge used an analogy to photographs. But photographs are subject to copyright, so I'm very confused.
Photographs can be copyrightable, but it doesn't mean that all photographs necessarily are copyrightable.
The central issue for copyrightability is creativity; did the author actually originate the work in question, and is it creative? If the work did not originate with the author, but was instead just copied from somewhere, or if the work lacks creativity, then it is not copyrightable. In photography, creative choices tend to involve choice of subject, angle, lighting, pose, etc. Even if a photograph is of an uncopyrightable thing (e.g. a rock picked up from the ground) the way that the picture is taken can provide enough creativity to support a copyright on the picture (though not the subject, of course). A photograph that slavishly reproduces the object embodies all the creativity of ordinary xerox machine use, and would not be copyrightable.
Here, the model presumably seeks to slavishly conform to the exact shape and dimensions of the car. That's not creative. If it were creatively different from the car, then that could be something copyrightable... but probably not what anyone wants.
If you're interested in this, read the Feist decision, which is about the uncopyrightability of a standard phone book's white pages: the phone company didn't author the names or numbers, and didn't creatively select or arrange them (it used them all, alphabetically) and so opened the doors to anyone copying phone listings. Creative, copyrightable phone books exist, but the all-inclusive unimaginatively ordered white pages are not they.
Slashdot Mirror
Due to the way the statute is written, all reproduction of works in copies falls within the exclusive rights of the copyright holder, unless there's some exception in the law to the contrary. There is no general personal use exception. Fair use is often misunderstood. It doesn't permit certain kinds of uses (e.g. all timeshifting), but instead permits all fair uses, where fairness depends on the circumstances of the use in question. Any use under the sun can potentially be a fair use, but no use will necessarily be fair. It all depends on the circumstances. In some circumstances, time shifting, space shifting, backup, etc. could be fair, but in other circumstances it could just as easily not be. While that might be useful to some people (e.g. Sony was off the hook so long as the Betamax could be used lawfully, regardless of whether it actually was), that isn't always helpful.
Personally, I think that there should be a broad exception for any noncommercial uses by natural persons. But there isn't yet. Frankly, copyright law in the US, at least, is probably worse than you thought.
Even more strange, how is making a copy of something illegal? I thought only distributing copies was illegal. Personal copies should be legal.
No, lots of things are illegal. The main exclusive rights that comprise copyright are at 17 USC 106. Not all are applicable to every kind of work, but basically they are: reproduction (i.e. making a copy), preparing derivatives, distribution, public performance, public display. The reproduction right has always been part of copyright.
As for personal copies, there's not an exception that applies to all personal copies, all the time, in every situation. Sometimes they're allowed, but usually not.
Who said anything about that? We were not members of Berne until 1989 and yet American authors were still able to acquire copyrights in other countries just fine. It's not difficult, and not an obstacle. Maybe if other countries also abandoned Berne, it might become a tad trickier for us, but I would not be upset. No matter what, Berne has got to go.
Well, where do you think we're getting a lot of our bad ideas? France has long been a source of terrible copyright laws, and the modern method used to push bad copyright laws through the US without serious debate has been to make treaties that Congress feels pressured to comply with by enacting the laws required by the treaty. Again, look to Europe for complicity in this.
The best thing we could do for ourselves and for others is to drop out of all of the copyright treaties, and just worry about our laws, while letting the rest of the world take care of itself. That's our tradition, and it would be best if we got back to it.
It's not a similar situation. The goods created by an author are not the same as the labor of the author. Try again, and don't forget to use nonrivalrous goods.
Though I would point out that lawyers are already usually required to put in a certain number of pro bono hours each month. The bigger change would be the 'anyone.' We can choose our clients freely, though I understand that in some countries lawyers have to accept any client that walks in the door, so that wouldn't be absolutely unheard of either.
Still, if this is what we've come to, try this on for size: Do you think that the government, when spending public money or permitting the private use of public resources (e.g. collecting timber from public land), should adopt an arms-length position as to contractors and other suppliers, so that the people get the most value for their tax dollar? Yes or no?
Would that be in a similar way to how you confuse intangible goods and tangible goods by claiming first sale in an argument on copyright?
I don't recall confusing them. And since first sale is a copyright doctrine, which provides an exception to one of the exclusive rights that compromises copyright, and is generally considered to be an important part of copyright law, I don't really see what's so odd about invoking it.
Then why, oh why, did you start this conversation by attacking someone for defending copyright, and start claiming that free speech means you should be able to copy anything you like?
I didn't. Here is what started the current thread:
See what I did there? I didn't attack the concept of copyright, nor did I say that free speech means that we should ignore copyright laws. I merely said that there is a natural right to copy whatever you like, contrary to the earlier poster's claim, but that we may temporarily, partially cede that right, which is how we establish a copyright regime in the first place.
I support copyright, you support copyright, what exactly is your problem?
You're the one who replied to me. But although we both support things that fall in the realm of copyright, I don't think that our positions are actually all that similar. I think that copyright should, above all else, serve the public interest; you appear to think that it should serve authors, regardless of the effect on the public. Both of these involve support for some kind of copyright, but they're still nearly opposites. The more specific an issue you look at, the more likely it seems that we'll have great differences of opinion.
And to think, just moments ago, you were saying that the utilitarian way would be to allow anyone to copy a work.
Well, that's a valid possibility, if there was not any possible copyright system that produced a greater public benefit than having no system at all. In that case, having no copyright law would be the best choice. This is why I leave abolition on the table, but I've really seen nothing to suggest that there's absolutely no better option. I'm convinced that there are plenty of laws that would be better than nothing.
Still, what you probably saw me say, and you're misreading, is that it might be good to allow some people to copy works under some circumstances; that relaxing the restrictions of copyright in such a manner actually furthers the overall goals of copyright. Fair use does precisely that. I think that my nuclear exception also does. If I didn't honestly hold that opinion, I wouldn't be advocating for it.
If you don't care how easy it is to get one, why don't you just mandate that an artist can protect his works merely by stating publicly that he doesn't want it copied?
That's fine. But obviously, if an author just says 'don't copy my work' whilst standing in the middle of Times Square, that's not very helpful. So there should be some sort of database, so that we know what author is making claims as to what work. Registering with that database would be an excelle
But when you print a book, you get the whole original book. When you print a song, you only print an instruction book on how to perform the song; actually doing so would require skill, as I said before
I think you're misunderstanding copyright here. What is copyrightable is the musical composition itself, once it has been fixed into some tangible medium of expression, such as sheet music. An unfixed song, in the air, as it were, is not copyrightable. You're thinking, not of a song, but of a performance of a song. That too is copyrightable, provided that it is fixed, such as in the form of a phonorecord.
Besides, you forget that books don't read themselves any more than music does. Both require skills on the part of the user in order to reveal the information within. To perform a book, i.e. by reading it aloud, you have to be able to read and speak the language it is written in. To perform a piece of music, you have to be able to read and play the music. Not that you actually have to do either to reproduce it; it's entirely possible to make copies of things that you don't actually comprehend the meaning of. Yours is certainly a novel idea though; I can't say that I've ever heard of anyone suggest that a musical composition is materially different from a book in that manner before.
Uhh...yyeeeah. That's kinda the point...
Are you seriously claiming that not moving your car after the meter expires is immoral? That's just crazy.
Oh, so you only desire, but don't actually want it. Sure, that makes sense.
Well, it's like longing for something so expensive that it is beyond your means; you want it, it appeals to you, but you recognize that it would be unwise to actually buy it, which upsets you. I think that absolute free speech is a very attractive position, but I can see good reasons for not quite going that far, not that those practical reasons are anywhere near so appealing.
since you came in denouncing copyright for ZOMG impeding your free speech
Copyright does infringe on free speech, but I don't denounce copyright for doing this, so long as copyright provides a public benefit great enough to outweigh the harm it causes by infringing on free speech. I would only denounce copyright if all possible implementations of copyright not only infringed on free speech but also provided no countervailing public benefit. So far, I haven't seen any reason to think that it's gotten that bad. Of course, I reserve the right to denounce a specific implementation of copyright if it yields a net public harm; I'd just want it replaced by a better implementation, though, and not abolished entirely.
merely create other laws that aren't copyright because they don't control the right to copy, but calling them copyright anyway.
The exclusive right of reproduction isn't actually indispensable to copyright. Copyright is an entire bundle of rights, only one of which happens to be reproduction. But once again, you have not understood or have misrepresented my position: I'm fine with copyright including a reproduction right. There would be limits to that right, but there have always been limits, so that's nothing new.
Unless, of course, copyright were to have some kind of exemption for fair use.
What's with the unless? Fair use is an exception to copyright. It's a utilitarian exception, which seems sensible, since copyright is utilitarian anyway, and fair use is just yet another part of copyright law.
The only thing that getting a copyright proves is that he got a copyright. Getting one doesn't prove they wanted one or not, and not getting one doesn't prove they didn't want one, just that you made it too hard/expensive to get one with your new laws.
If you didn't want one, why would you
Which had to be translated from a performance, since composers kept their originals secret.
Well, not necessarily. Printers started to use printing presses to make copies of musical works very shortly after the printing press was invented. Some of those would have been authorized printings; just as some, but not all, playwrights didn't like to publish their works (which didn't stop them from getting out), I think that we can be sure that there were plenty of composers who didn't care about keeping their work under lock and key.
And still, the copier wasn't able to distribute on a massive scale, undercutting the original author.
Well, not a more massive scale than the original author would have been able to act on. Both could use printing presses, after all.
And despite all of this, the copier still likely wasn't met with a great deal of praise for copying the work, ie. they were morally condemned.
No, not really. Well, perhaps by the author, which is why we have in the English language, the word 'pirate' taking on its meaning of 'unauthorized copier' about a century before authors get copyrights. But generally, outside of authors, rival printers, and censors, I sincerely doubt that anyone particularly cared. After all, someone had to be buying the pirate copies, or else why would the printers bother with them in the first place?
And what are laws, if not the enforcement of publicly-accepted morals?
Again, not all laws have a moral foundation. Is it immoral to remain parked in a parking spot after the meter runs out, or is it just an inconvenience to traffic planners et al?
I DO remember the part where I condemn you for supporting a utilitarian view of free speech
I can't imagine why. You were condemning me for having an absolutist view of free speech, which is funny, since I don't actually have such a view, I just find it attractive. In fact, you were condemning me for not having a utilitarian view of free speech, since it is only then that something like copyright could be justified (i.e. the public good that a properly crafted copyright law can yield can outweigh the public harm it causes by existing). And actually, while I think that free speech is a natural right, I can tolerate some utilitarian incursions on it, which is why I support copyright: I think that copyright is useful. I've said this plenty of times already. But I'm sure you'll go on to ignore what I actually say once again, in favor of whatever words you want to put in my mouth.
utilitarian copyright (which I don't support, because I'm in favor of fair use, eg. format shifting)
Fair use is a good example of how copyright is utilitarian in nature. The ultimate rationale for fair use -- which can be any kind of use, depending on the circumstances -- is that it prevents literal adherence to the copyright statute from giving authors exclusive rights that would trample on the public purpose of copyright. Thus, fair use encourages, well, fair uses. There's no list of what's fair or unfair, and anything can be either. The best we have is a rough test to analyze any given use to see if it is fair. And note, that's not for a class of uses (e.g. format shifting) but for a single, specific use (e.g. the specific format shift that Dave engages in with a particular work on a particular date) or at best for a hypothetical specific use if that's relevant in the case at bar. The various prongs of the test reflect the public purpose of copyright: if the use is educational, or transformative, that tends to weigh in favor of the user. If the use uses too much, or would harm the economic value of the work, that tends to weigh against the user. Remember that copyright only provides an economic incentive to authors; impairing the value of a work impairs the incentive. Format shifting is actually problematic in that three of the four factors of the usual test weigh against it, and the fourth hangs by a thread. If you want format shifting to be protected, I would advis
It was created after the printing press, as a way to restrict who can produce copies of a work, primarily due to the fact that with the printing press, copies could be produced by almost anyone at next to no cost.
That's true. Of course, it was created as a means of official censorship, and as a way for the Stationers' Guild to control the market. It wasn't until the 18th century that copyright was massively reengineered as a means to promote the public good. The modern copyright era begins then, with the enactment of the Statute of Anne in 1710 in England. Other countries followed suit in the 18th, 19th, and 20th centuries.
Of course, not all significant changes in copyright have to do with technology. First, in that copyrights were extended to musical compositions long after they too were easily reproduced by means of printing presses (i.e. in the form of sheet music); if the concern were merely ease of reproduction, they would've been copyrightable sooner. OTOH, copyrights were extended to works of visual art well before the introduction of photography; if the concern were the ease of reproduction, they would not have been copyrightable for some time yet. Really, technological advances are a bit of a red herring: authors and publishers can always make use of the latest innovations, and their ability to act openly actually gives them an edge over pirates, who may need to stay in the shadows. An absolute reduction in the cost of reproduction -- such as going from scribes to presses -- has an equal effect on everyone, and doesn't confer any particular advantage on pirates, unless the authors et al are indolent and slow to adapt.
I like how you condemn copyright as restricting your freedom of speech, wait for me to make a strong case as to why we need copyright, then change your mind and claim you don't have a problem with copyright.
I haven't changed my mind. I recognize that copyright does restrict free speech, but that this restriction may be justified if the public gains a benefit from it which outweighs its harm. Remember the bit where you condemned me for promoting copyright on utilitarian grounds? How would that possibly square with a condemnation of copyright? I think you should review the thread before ascribing to me positions that I don't have.
I hate to be the one to tell you you just wasted several years of your life, but...lawyers don't create laws. Politicians do, which vicariously means the public do.
You really think that lawyers are uninvolved in writing laws? Wow. Actually lawyers write a lot of proposed laws, which are sent to politicians (who are often lawyers themselves) who, if they choose to support the laws, in light of their mandates from their constituents, their own judgment as to whether they're appropriate, etc., will try to get them enacted. Laws proposed from within legislative bodies tend to actually be written by lawyers working as staffers for individual politicians or for bodies within the government (e.g. Congressional committees) in accordance with the instructions the politicians give them.
While I obviously can't, and wouldn't want to, rule by fiat, I can certainly lobby for legislative reform just like any other member of the public.
So what exactly IS your argument?
Basically, I think that copyright laws should be written to maximally serve the public interest in encouraging the creation and publication of original and derivative works and in minimally, if at all, restricting the public as to those works, in both the length of copyright and its breadth.
Therefore, looking at how American copyright laws have traditionally worked, the main points of my agenda are:
1) Restrict copyrightability to works where copyright has an incentivizing effect. This will tend to exclude some classes of work, e.g. architectural works, where mere copyrights don't incentivze much. Further, where we can distinguish between a work that would have been created sans copyright and one that required the incentive o
But as I already pointed out before, this is not synonymous with copyright, because while Bob may resale the item, he loses possession of it. If Bob were to sell an unauthorized copy of the work, it would be a different story. That's why it's called COPYright, not Originalright.
Ah, that's funny. First, copyright involves a number of different rights, the main ones being reproduction, preparation of derivative works, distribution, public performance, and public display. Distribution is the one that is relevant here. Alice's copyright includes the right to control the distribution, i.e. sale, rental, lending, of copies of her work. It's generally subject to some sort of statutory exception, such as first sale, but Bob's sale of the copy to Carol falls squarely within the realm of copyright-related transactions.
Also, you're reading way too much into the name of the regime. 'Copyright' is so named for reasons that are largely no longer relevant, dating back to the 16th century. Nevertheless, way back then, and through to today, even original manuscripts are called copies. In modern terms, any material object in which a work is fixed is a copy, regardless of whether it is the first copy, the only copy, or the one-millionth. With only a few rare exceptions, they're all treated the same.
Buyers aren't going to buy stuff with your escrow scheme because a) they have no guarantee they will get it if the reserve amount isn't met, b) they don't know what they're getting (as releasing samples of it puts it in public domain), c) they won't know when they're getting it d) they forgo their right to buying privacy (they have to be tracked, so they can get their money back if the amount isn't met), e) the hundred other problems I've already mentioned that you seem to ignore.
First, I forgive your forgetfulness, what with the length and twists and turns of our discussion, but if you'll recall, the only reason I even brought up the SPP was ultimately because you were confusing a creative work -- the product of an author's labor -- with the act of the labor itself. I pointed out that they are two distinct things. You said that in that case, how could an author ever sell anything to more than one customer, since that customer would then share the work with others. I then invoked SPP as an example of a way that it could be done. I suppose I should have pointed out that copyright law could be used to prevent the customer from engaging in the sharing anyway, since it isn't affected by the labor/fruit-of-labor dichotomy anyway, and I have never argued that we should abolish copyright law. I guess I got wrapped up in the minutiae of the argument.
Second, while I'm interested in the SPP, and I see it as one possible mechanism for helping authors to self-publish, I don't view it as a panacea.
Third, responding to your individual points: a) The reliability of the escrow service is key to both. The escrow firm will have to build itself a sterling reputation, or may be an offshoot of an existing reputable firm. Amazon already does more or less the same thing when it acts as a middleman, e.g. listing third parties offering books for sale, and accepting payment from customers, which it passes on, and guarantees, along with the orders. I've personally bought plenty of used books via Amazon this way, and I have had no complaints. It can be done.
b) If you buy any kind of work without the opportunity to preview it, you have no idea what you're getting. Authors should either have some manner of preview or other assistance for potential customers -- e.g. summary blurbs, quoted reviews, preview images, audio, or video, etc. -- or should take the chance that they'll only have customers who will buy based on the barest details. Again, since I don't advocate abolishing copyright, you're wrong when you claim that publishing that information will put it into the public domain. Still, to address your irrelevant concern, SPP can work in such a situation, provided that the preview information is carefully li
The consumer habits change argument is hardly convincing.
I don't know. It strikes me as being, if not compelling, at least strongly influential. By and large, laws should reflect the norms of the society which grants authority to those laws. If people are willing to make commercial infringement actionable, but wish to legalize non-commercial infringement, then why not do that? True, if there is a sufficiently compelling reason to go against societal norms, then that would be an issue but that's not always going to be true. For example, in the US, the government was in the right in attacking segregation in the Civil Rights era, but was in the wrong in attacking drinking in the Prohibition era; Racial equality was worth going against social norms, but sobriety was not.
At the root, the idea is that a temporary monopoly over one's works is necessary to motivate artists to devote time to creating new works.
Broadly, I would agree. However, I'd remind you that it is just as much in the public interest to cause new works to be created and published as it is in having the monopoly be as sharply limited during its existence and in having it last for as short a time as possible, if at all. Basically, the public wants the most works for the least copyright.
If it were simply a change in consumer habits, I'd happily say laissez-faire . If people are not interested in music anymore, let record companies disappear! Here, however, we are faced with a slightly different situation. It is not that people are not interested in music anymore, but that they have found a way to illegitimately acquire a perfect substitute without having to bear the costs that went into producing it. In other words, we have a free rider problem, and I'd argue that it will lead to societally sub-optimal outcomes
I think this is the crux of the issue. If there is a free rider problem, then I would suggest permitting some of that free ridership (again, the socially acceptable non-commercial sort; even most casual infringers dislike commercial piracy). The system will just reach a new level of equilibrium. Since we place roughly equal value not only on the number of works created, but also on how minimal the monopoly is in length and breadth, we're just trading one for the other. Apparently, our valuation of new works has decreased somewhat, in favor of greater freedom with regard to those works. There's nothing wrong with this; their proportions are not fixed, after all.
Besides, if it winds up being as bad as you suggest, then I expect that people will realize this, and will once again revise copyright, this time upwards.
Further, bear in mind that we may have a sub-optimal copyright law on the books now! Remember that for over a century, copyright law worldwide has largely been written by authors and publishers, often with little regard for the public interest. There would seem to be a good possibility that they have overshot the socially-optimal copyright law and that reducing the law would bring us closer to the ideal. Please don't assume that just the current law is the better law merely because it is on the books.
In the absence of copyright law, the amount of music created would not be the socially optimal one.
That actually depends on some other factors -- no copyright law is a legitimate option, if every possible copyright law would produce an even worse social outcome. But the choice is not between the current law and no law at all. There is a gigantic spectrum in between those two positions, and we can enact any manner of law in that legal space. E.g. instead of a term of zero years or a term of life+70 years, we could have a term of x years where 0If, however, copyright is abolished or file sharing legalized, the artist's freedom is threatened (since he cannot decide who gets access to his music).
What if we legalize otherwise infringing acts engaged in between natural persons, if those acts are also non-commercial in nature? Then a musician can still exclusi
Choosing to be an artist implies she chose to be exploited?
Nope. Profession has nothing to do with it. It's all about actions.
To make sure we're on the same page, I'm sticking with the hypo involving Alice creating a work, selling a copy to Bob for a pittance, and Bob selling that very same copy to Carol for a fortune. Bob exploits Alice by buying from her at below market prices, then selling to Carol, getting a handsome profit for himself. Alice didn't choose to be exploited by merely being an artist; instead, she chose to be exploited by selling to Bob at such a low price. No one prevented Alice from trying to sell directly to Carol, nor was she compelled to sell anything to anyone at all. She made a deal which she was perfectly satisfied with at the time (or else she would not have made it) but which turned out to be a bad deal when seen with the benefit of hindsight. So be it. Alice is an adult, and she is entitled to make bad deals of that sort. It would be grossly paternalistic to insist otherwise. It takes an extraordinary case to void such a contract, and this doesn't come anywhere close.
I doubt you'd be upset if Alice owned a parcel of land, sold it to Bob because she thought it was of low worth, and Bob sold it to Carol for a fortune because he knew (or discovered) that it had rich oil deposits or something. The differences in price in the two transactions would be the same, the judgments made by Alice would be the same, if she felt any pain from having made poor (or poor-in-hindsight) judgments, it would be the same. So it doesn't matter that in one case she sells a copy of a work, and in the other she sells a plot of land. If there's anything wrong with exploitation, such a trivial detail won't be relevant.
According to your argument, they have to price them only to cover the cost of materials.
No, they price them however they want. Whether they'll be able to make a deal at that price depends on the buyers, though. Authors can't compel people to buy their works. If the work is copyrighted, then all else being equal, they can probably manage to make deals at a higher price than they could otherwise, thanks to their temporary monopoly. Though of course, most works will simply be valueless to begin with, and could not be sold at any price for a want of buyers. E.g. we could be equal partners and try to sell printed copies of this thread we've been having, but I doubt we'd ever find a single person who wanted it. It's only for public domain works that have an interested audience where the price tends to drop to just-above the marginal cost of the copy, due to the beneficial effects of competition. I mean, that is basically the point of having competition in a free market anyway: to lower prices, increase the number of sources, etc.
So in other words, the value of the work is severely degraded, against the wishes of the author.
That's exactly right, because no one cares about the author. What the public cares about are works: getting them created, and getting them published. Authors are just a necessary evil. If it were possible to wave a magic wand and get works that way, we'd do that instead. Imagine if we had those replicators on Star Trek: we could largely abandon the job of farming (except for people who made it a hobby, or who sold to the presumably small number of people who didn't like to use replicators) and we'd do so, regardless of whether the farmers liked the idea or not. At least we could rest assured that the ex-farmers wouldn't go hungry as they changed occupations.
The goal of copyright is to cause as many works as possible to be created and published that otherwise would not have been, and to get those works into the public domain as soon as possible, with as few restrictions on them in the meantime. The wishes of the author are never a concern. To incentivize the author, a bribe (in the form of the possible value of the copyright) is paid, but since the work will continue to exist for a long time, the bribe is actually w
Any rational person would say, mostly you're compensating the artist for their time and skill, and the cost of materials are negligible.
I'd say that it depends largely on the author, the work, the marginal cost of an average copy, the number of copies, etc. Not to mention how much profit is sought above and beyond mere compensation. But that's probably not very helpful. Really, the author can price copies however they please. I don't think that most people worry too much about how the price of a copy breaks down. Policy-wise, it is imagined that copies of public domain works will be ideal, since the presence of competition for what are, after all, commodity goods (one copy of a work generally being just as good as another copy of the same work in the same medium), will result in prices dropping to only slightly above marginal cost. This is desirable, since it means that more people can afford to enjoy the work, which is one of the primary goals of copyright.
However, Bob is now exploiting Alice's hard work for his own personal gain. Alice never chose to be exploited
Alice did indeed choose to be exploited, if at least in some manner or another. She created the work, and sold a copy. If she sold the copy for a pittance, and Bob sold it to Carol for a fortune, that would just as equally constitute exploitation; Bob, the man without a lick of talent, would have "exploit[ed] Alice's hard work for his own personal gain." It doesn't matter whether he loses possession of the copy. Alice has still lost a huge sale to Carol, and Bob has gained at Alice's expense. That's exploitation. Businesses do this kind of thing all the time, e.g. a low level employee has an idea which makes the company successful, the boss a millionaire, and the employee gets nothing in particular. It's not unusual, and it's basically accepted in our society. If you're upset about consensual exploitation, you may want to look into destroying capitalism, rather than puttering around with mere copyright law.
Besides, nothing's more central to copyright than exploitation. The whole idea is that since the public wants more public domain works to be created and published, it will exploit authors to get them. The means for this exploitation is to offer authors a copyright in order to get them to create and publish those works which they otherwise would not have done. The copyrights offered, however, must be the absolute minimum in order to get them to do this, so that the public has the maximum possible net gain when all is said and done. Obviously, any author who takes the deal is willing to be so exploited. Authors who don't, aren't exploited, but then, they aren't creating anything either, being the hold-outs that they are. And authors who would have done it anyway shouldn't be given the offer, since it would be a waste to the public. It's hard to distinguish them, but there are some crude mechanisms known. Certainly it is not in the public interest to merely reward authors because they're naturally deserving or some such nonsense. Copyright is a quid pro quo. Nor is it in the public interest to care about authors beyond the minimal extent necessary in order to incentivize them according to plan.
So I would be upset with Bob if he copied Alice's copyrighted work, assuming a good copyright system was in place. I would not be upset with him because he's committed a sin against Alice, though. I'd be upset with him because he is interfering with the smooth operation of the copyright system. Were we talking about dairy farming, I'd be upset with Bob spooking the cows, but only because it results in sour milk (and thus, lower profits) rather than any other reason.
A rational, moral person would say no. Your ideals say yes.
I'd say yes, because I am a rational person. Morals don't enter into it, though, because copyright is amoral area of law.
And hence we come back to the question, why would anyone believe what you say, when you are clearly and demonstrably an irrational, immoral person?
Right, Bob can sell it on. However, Bob no longer has possession of the painting. Bob also cannot sell a copy of the painting and claim it to be Alice's. It's called art fraud. I'd be surprised if a lawyer had gotten this so wrong. However, I'm not surprised at all that YOU got it wrong. Hence, we establish your shoddiness.
I think that there may be a slight disconnect here between what I actually said (and my actual position) and what you imagined I said (and what you imagine my position to be). I never said that Bob would retain possession of the painting after having sold it to Carol. Nor did I say that Bob could make a copy of the painting and sell that instead (assuming that the painting is copyrighted). Nor did I say that if Bob did make a copy of the painting, that he could claim it was a copy made by Alice.
So I don't quite see what I got wrong, when you're just putting words -- bizarre words -- in my mouth. I'd appreciate it if you would address me and my statements, instead of continually invoking the fantasy you've constructed.
Have you decided yet that counterfeit money is ok, or have you come to your senses?
Well, I enjoy J.S.G. Boggs' series of self-made banknotes as much as anyone, but I suppose it's not counterfeiting (not that that has stopped the government from confiscating some of his art). No, I don't much care for any sort of fraud. As I said, I'm not a free speech absolutist, but I do find it an attractive position.
"I agree it's wrong to exploit and manipulate people; however, it's totally ok to exploit and manipulate them"
No, please quote me accurately. I said that it's wrong to exploit people by force; it's totally okay to exploit people with their consent to be exploited. And even then, I would still like to see a little bit of room for things like consumer protection, provided that it's not overly paternalistic.
Nice of you to change your tune so late in the game. I'm glad you agree with me that we need copyright law.
Well, no. For years, I have consistently said that we should not abolish copyright, we should merely reform it. We don't need copyright; our society would continue just fine without it. But it is useful, if done right. We're not doing a very good job of having copyright at the moment, though, hence my calls for reform. Abolition remains a legitimate option, and should stay on the table, though choosing it wouldn't be doing a very good job either, I think.
Maybe in a fantasy. That's not practical and you know it. A media company has more resources, more power, more influence and a louder voice than an individual ever will.
Funny, it seems to work okay in a wide variety of circumstances even today. Look at the debate over, say, evolution. Should the people opposed to evolution be censored, due to the fact that they couldn't present a solid scientific argument to save their lives? I wouldn't support that. Even if they're cranks, let them be noisy cranks. It doesn't harm anyone to hear them spout off. And while it might be interesting, and perhaps even good, if people could equally make use of all the forms of media known to man, I'm afraid that we don't live in a society where we do that. Nevertheless, even if the little guy is reduced to holding up a cardboard sign on the sidewalk, for lack of resources, he has his opportunity to make himself heard. Better to
How convenient, then, that the shoddy legal advice that you provide isn't relevent to the general population.
What makes you suppose that it's shoddy? My position on the foundations of copyright, or what reforms I would like to see, have little, if any, bearing on my knowledge of what the law currently is.
Except luckily for you, the law provents that advice from applying from applying to any general circumstance.
Well, that really depends a lot on what is asked of me. In most any case where an author asked me whether or not they should bother to register their copyrights, I'd probably say that they should. Usually if it's worth raising the question, or even if it is merely going to be publicly displayed, performed, or distributed, it's worth registering. OTOH, if I was asked to negotiate an agreement and draft a contract accordingly, that's very bespoke work.
Authors experience a similar range of work. Sometimes art can be enjoyed by a general audience, such as a sculpture in a park. Other times, the audience is very limited, and will often be closely involved in the creative process, such as a commissioned portrait which will be displayed in a private home.
In other words, to deprive the author of their right to control who gets to benefit from their work
Authors don't inherently have such a right, however. They have a right to choose to create, to choose to show or share their creations to or with the public, and if they have not let their work slip from their grasp, to destroy it. But if the public has somehow acquired a copy of the work, then the only rights that the author can exercise over members of the public are whatever the public has seen fit to vest in the author.
You raise the idea of a right to benefit from a work. That idea doesn't really appear in copyright law as it currently exists, at least in the US. For example, an author has a right to decide when he wants to distribute a copy of his work, but having done so, anyone can distribute it further without permission or compensation. So if Alice is a painter, and sells a painting to Bob for $1, Bob can turn around and sell it to Carol for $1 million, and never have to give Alice a penny of his newfound wealth, nor get permission for Carol to own the painting, even if Alice hates Carol's guts.
This isn't that odd; merely creating something has never been enough of a justification to warrant having absolute rights over it. Consider the two neighbors, one of whom greatly improves his property so much that the value of the adjoining plot also increases merely due to their proximity. The first neighbor is not entitled to a share of the money the second neighbor might get upon a sale, despite the fact that it is entirely attributable to the effort of the first neighbor.
Because god forbid, you should see yourself in their shoes and consider how they would feel
Well, like I said, I used to be a professional artist before I changed careers. I made a comfortable living and enjoyed myself. As a result I don't have to exert my imagination much to see things from the perspective of an artist. It hasn't changed my opinion.
Remember though, with copyright being utilitarian, that means that authors are seeking to serve their own self-interest just as much as everyone else is. It is in their interests to encourage your sort of soppy altruism; they're exploiting you to get what they want: more and longer-lasting rights. It's fine for them to try, we just need to avoid falling for it. Putting authors on a pedestal is how copyright got to be such a mess in the first place.
I implied that a human has a right to not be exploited and manipulated
So long as it's not consensual, I'd agree. We certainly cannot use the stick on authors, but we can dangle a carrot in front of them (in this case, the possibility of using a copyright to make money) in order to entice them to do what we want (create and publish works which will ultimately fall into the public domain). Th
So you're saying an artist should charge their first customer 1 billion dollars, then give away their work to every subsequent user? Sure, that could work. You first.
Don't you recall that in fact, that's what I do? I give my clients legal advice for a fee, and I lack the ability to prevent them from sharing that advice with others, even though it might undercut me. You didn't seem to have a problem with it just a few posts ago.
Further, that's a legitimate strategy for authors to recoup costs. One variant of it is called the Street Performer Protocol, in which an author creates a work, and places it in escrow, and then asks for his audience to enter into a subscription for the work. Their money also goes into escrow, and when the payments from however many members of the audience chip in meets the asking price, the money goes to the author, and the work goes to the public. If the work is a dud, he'll likely get little repeat business (just as with any flop author). If the asking price is too high for the interested audience, he may have to lower it, or else find a more rewarding line of work. It's also a decent way for a mass audience to seek to have a work commissioned by pooling their money and listing the requirements the author will have to meet.
And here we have it, the crux of your extremist utilitarianism views.
No, I'm really only a utilitarian with regard to a few very limited areas. Copyright is one. In fact, I'd say that I've got a lot of altruistic tendencies in me. But we're not talking about that, we're talking about copyright, a purely utilitarian field.
"The ends justify the means", as they say. You have no problem exploiting someone, as long as it benefits everyone else, no matter what the cost to that person's human rights.
Well, it's funny you say that. There is no human right of copyright. This is as expected: copyright is a negative right, that is a right to compel other people to not do things which they are otherwise entitled to do. I can't really think of any human rights to force one's will upon another. In fact, copyright is directly opposed to the human right of free speech and press, which encompasses the right to repeat and reprint what someone else has already created, regardless of whether they approve.
So if we're going to have copyright, it means a degree of infringement on the free speech right of everyone other than the author, so that the author has a copyright, i.e. a right to prevent the rest of the world from freely exercising their human rights to the fullest extent. Provided that it yields a net benefit for all of those other people, then I can see that copyright is tolerable, if of debatable worth.
I doubt, however, that this is what you were accusing me of believing.
As long as that person isn't you, right?
No. I don't mind some other person having a copyright which requires that I not fully engage in free speech. Provided, as always, that I am somehow benefiting from my sacrifice more than I lose. As I've said many times before, I'm not opposed to copyright, I just want copyright to provide the greatest possible good for the public. Whatever configuration of copyright does that, or at least comes closest, I'll support.
With a view like that, it's no wonder people think you're crazy.
That's interesting; I've had my disagreements with people, but I don't recall getting many complains of insanity. In fact, my experience has been that usually people see it my way. Lockeans don't, but they tend to either be 1) people who don't give copyright much thought, and go with a gut instinct, and so are easily brought around to utilitarianism when a good argument is made, or 2) confirmed Lockeans, who have considered and rejected utilitarianism, and who are rare.
However, I think that you're confusing copyrights with patents to an extent.
I don't think that I am.
The above is the purpose of patents - to ensure the progress of science by ensuring that works are created and published such that they end up in the public domain after a period of time.
No, although both are utilitarian doctrines and there are some broad similarities.
Patents exist to promote the progress of the useful arts by encouraging the invention, disclosure, embodiment, and bringing-to-market of novel, non-obvious, useful inventions, and by causing those inventions to enter the public domain as quickly and fully as possible, by imposing formalities that must be met rapidly in order for an invention to be patentable, by limiting the coverage of the patent if granted, and by limiting the length of the patent term so that the disclosed patent rapidly enters the public domain.
Don't be confused by the 'science' / 'useful arts' wording. The English language has changed a fair bit since the Constitution was written in the late 18th century, and people often stumble over the wording of the copyright and patent clause. If you consult a good dictionary -- the OED, say -- you'll see that at the time, science referred to general knowledge, and the arts were applied technologies. There are still some remnants of the latter, such as the importance in the patent field of prior art, how patents ultimately deal with state of the art technologies, the concept of a person having ordinary skill in the art, etc. And of course, in copyrights, there is the utility doctrine, which prohibits some works from being copyrightable if they're useful, since utility is exclusively the realm of patents. Copyright's idea/expression dichotomy has a similar basis. Plus, the Constitutional clause is written with copyrights first, patents second: science / useful arts; authors / inventors; writings / discoveries.
And BTW, patents deal with inventions, not creative works. Works are the realm of copyrights.
Anyway, you'll find that my summation of the purpose of copyright is correct. Copyright serves two public interests: the interest of having works created and published, and the interest of having works in the public domain. Without copyright law, the second interest is wholly satisfied, but the first is only somewhat satisfied. (Obviously some works are created in the absence of copyright, as our pre-Anne history proves) Providing an incentive to authors in the form of a copyright can inventivize a great deal of creation and publication, but diminishes the satisfaction of the second, equally important interest. If copyright is minimal, yet has a tremendous incentivizing effect, then the gains derived from copyright may outweigh the harms that inevitably result, making for a net public benefit and a worthwhile copyright system. But since the incentivizing effect doesn't scale in a regular, linear fashion, adding more copyright (at the expense of the second interest) only works for so long before you reach the maximum possible net public benefit. Beyond that point, if you keep going, you have an ever more burdensome copyright system for less benefit (and all else being equal, where two options yield an equal net public benefit, you should always choose the least burdensome) until you wind up with a net benefit that is equal to the net benefit from when you didn't have copyright at all. Go further than that, and you've got copyright law that makes the public worse off than if there was no such law at all!
At that point, it was intended to protect an author's 'natural right' to benefit from his works first, and for the work to be placed into the public domain second.
I'm going to go out on a limb here, and guess that you haven't actually read the Statute of Anne. First, we just call it that. The actual name of the law was "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein me
All you're doing is applying one rule for artists, who you obviously despise,
Oh, I don't despise authors (i.e. creators). I used to support myself as a visual artist before I got into law, and I have plenty of authors as clients. But in discussing policy matters, I know that the public good is everything, and authors are quite incidental.
Consultancy is a good example - do you really think a consultant is going to charge only for the 1 hour it takes them to present their advice? Or do you perhaps think the consultant will be charging with the potential value of their teachings in mind? And if you were the consultant, do you think you would be terribly happy if, after your first lecture, all your lecture content was taken, word for word, and provided to everyone else for free?
Well, you're answering your own question. If there's a danger of your advice being repeated without your involvement, you'd best charge more up front, since you're not going to see much repeat business. For example, there's that self-help video 'The secret,' which is currently selling on Amazon for about $17. As I understand it, the secret is apparently 'Wish for things hard enough, and you will get them,' which is rather dumb. Have I committed a grave offense just now? I don't think so. OTOH, are you less likely to buy a copy, reducing the amount of money the author receives? Probably.
And a "reasonable time" would be what? 5 minutes? 10 minutes? Please.
In the case of an unpublished work, I'd say somewhere around 20 years, tops, with publication defined very broadly. For published works, another term of copyright would apply, along with formalities the author must undertake in order to secure and maintain whatever rights he might seek. After all, we don't want to encourage authors to create works and then just sit on them. We want those works published.
You just want to lure him in with the illusion of compensation for his labor, then exploit him for all he's go afterwards. Yeah, I totally see what a fair, (sym)pathetic person you are.
That's about right. I've not claimed to be fair or sympathetic. I want to maximize the public benefit, which means exploiting authors. I don't mind compensating them, if that's what it takes, but I certainly would not do so to excess. A good analogy would be a dairy: The dairy farmer just wants cheap milk to sell so as to maximize his profit. If he could magically get milk without the expense of cows, that would be great. Lacking that ability, the solution is to get the greatest yield of milk for the least cost. If that involves making the cows happy, so be it. If not, then that's okay too.
So I'm perfectly happy to give authors a reward in the form of copyright if it is the public interest. I have no need for trickery. But I would not give authors anything for their own sake, or anything beyond what best serves the public interest. Incentivizing them needn't go to excess. And it's certainly not slavery to do this. This is a lot like the job market in first world countries: Offer a wage for work, and ensure the wage is high enough to get the workers you want, but low enough that you're not paying them a penny more than it takes to get them working. They're consenting to work for the wage, even though it's the least they'd be willing to take; it's not slavery, just bargaining. If there's an author out there who feels insufficiently compensated, despite the fact that copyright could not possibly be increased enough to attract him and still serve the public interest as best as possible, let him get a job doing something else.
But what you've just described there =is= copyright!
When did I ever say that I was opposed to copyright? I'm in favor of reform, not abolition. Sweeping reform.
Seems to me that that is exactly what the copyright system exists to do. To ensure that the creator can benefit from their works, but also to ensure that the work reverts to the public after a period of time.
Well, no. That's the kind of thinking that got us into this mess. Copyright isn't meant to help creators at all, except in an incidental manner. The goal of copyright is to promote the progress of science, which consists of 1) causing works to be created and published that otherwise would not have been, and 2) having any restrictions on the public with regard to those works be as minimal and as short-lived as possible. The goals are of roughly equal weight, with a little more afforded to the second goal. The means by which copyright tries to achieve the first goal are restrictions on the public, to the benefit of the author, but benefiting the author isn't a goal in itself, and in fact is in opposition to the second goal. Further, since the amount of benefit the author receives doesn't scale linearly (going from zero years of copyright to one year is worth a great deal to the author, but going from one million years to one million and one years is very nearly worthless, even though both consist of one year's worth of copyright), the second goal really comes into play, and insists that copyrights be weak and short-lived so that authors are just barely incentivized to create and publish, which is all we want them to do. There's no value to the public in giving them an iota more of anything, though. If some authors hold out for a lot, we must recognize that the public may be better off without giving them what they want; the amount of copyright it takes to encourage some works may come at too great a cost. We want the most net public benefit, i.e. the most works created and published (good) for the least amount of copyright (inherently bad).
So it would seem that you agree with copyright, you just think that the period of time which it lasts for is too long - which is something I'd definitely agree with.
No, I think there's a lot of problems. I wouldn't grant copyright to entire classes of works, I'd require formalities, I'd limit the effects of copyright on certain segments of the public, etc. Term lengths are not even the most important reform I can think of, though they do need to be drastically shortened.
So the question has to be, what is the optimal length of time that copyright should last so that it ensures that a content creator has a fair chance of being rewarded for his work (thus providing the incentive to create said work), whilst also maximizing the gain to culture as a whole by ensure that it reverts to the public in a timely enough manner.
You're thinking in the right direction, though in fact 1) it's not just the length of time, but also the scope of copyright. For example, if authors would create and publish an entire class of works sans copyright (e.g. architectural works), then there is no need to give them copyright, since it would have no positive effects for the public (as has been seen in the architectural field since 1990, when copyrights went into effect; there's no surge of new buildings that isn't attributable to other reasons, such as dot-coms being able to afford new buildings during the boom). 2) Helping authors is merely a means to an end, and not an end in itself. The only purpose of copyright is to maximize the net public benefit in relation to creative works. If aiding authors furthers that goal, then do it. If not, then don't. Certainly don't try to maximize authorial benefit at the public expense. Rather, give them as little as possible whilst milking them for as much as you can get.
Just like how it's ok for your employer to refuse to pay you at the end of the month, because the labor is already done, so it's not like you're losing anything.
No, there the trade is pay in exchange for labor. There's nothing wrong with payment merely being deferred to the next payday. What would the alternative be? The boss hands you a dollar every so many minutes?
However, if I do some labor -- say, I give a client some advice on how to avoid infringing -- then why on earth would it make sense for the client to ask me to repeat myself if he runs into substantially the same situation again? Surely he can remember my advice and apply it again, without my earning a second fee. Knowledge is certainly a useful good, and the product of material labor, but it is not a consumable good. It is wrong to treat knowledge of any sort as if it were a rivalrous, consumable, material object, like a brick or an apple. To do so completely ignores the special attributes of knowledge.
Because fire is not patented, and cavemen chose to share the discovery with us. ... Because government works are declared public domain, and judges are compensated for this with their paycheck from the government. ... Because quoting for context is deemed fair use, and he's posted it in a public place (the internet) and therefore is arguably assumed to be public domain.
None of those are particularly good arguments, because you are putting the cart before the horse, as it were. Previously, you seemed to be arguing that the law should be written in such a way to aid authors because authors deserve it. With these arguments, however, you are saying that whatever the law is, it is correct, regardless of how it treats authors. (Or perhaps that the law as it currently stands is ideal, which I doubt that anyone believes) If you're sticking with your most recent statements, then you must surely agree that if we were to abolish copyright by legal means, that this would be entirely appropriate, and that authors would not suffer ill effects as a result. After all, it's only the current law that makes fire unpatentable, that makes United States works public domain, and that results in fair use.
Oh, and BTW, posting a creative work in a public place does not affect the copyright status of the work; it is still copyrighted, and it is not in the public domain. Further, if the work were in the public domain, you could not engage in fair use with respect to that work, since you wouldn't need to; fair use is a defense against infringement, and only applies as to copyrighted works.
You would rather force everyone to do this by taking away his right to choose its disclosure. If it walks like slavery, talks like slavery, smells like slavery...
No, not at all. Here is my position on the subject, stated plainly:
Authors should have total freedom to decide whether or not to create works.
Authors should have total freedom to decide whether or not they wish to disclose those works to any person or persons, including outright publication.
Authors should have total freedom to decide whether to preserve or destroy those copies of their works which they own.
However, if an author reveals his work to another person, and the author fails to publish his work after a reasonable period of time after having created it, then that other person should have the right to publish the work despite the author's wishes.
This is because everyone has an inherent right to publish anything they like, whether they wrote it or not. We might temporarily restrict that right so as to encourage authors to create and publish works themselves. However, if they fail to take that encouragement, the next best thing we can manage is for someone else to publish the work. Naturally, they wouldn't be able to copyright it -- they're not the author! -- but at least it gets the work out there, which is more than the author ever did.
In such a situation, the author had his chance, and ignored i
No one has a natural liberty to produce duplicate works of someone else's creative work
Of course we do; we all do. It's called freedom of speech, and it not only concerns one's own speech, but also the repetition of the speech of others. (E.g. if I were to perform Shakespeare, and the government tried to stop me, I could assert my free speech rights and would surely succeed, even though I am not Shakespeare)
This right is inherent and everlasting. Copyright is a temporarily and partial cessation of that right, but when the copyright term expires (and to various degrees even while a work is copyrighted) the right is no longer ceded.
And taking an artist's work against the terms he makes it available under IS forcing him to work for you.
No, because the actual labor is done. We do not enslave cavemen when we make fire without paying royalties. We do not enslave federal judges when we reprint the court opinions that they wrote in the course of their duties. I am not enslaving you when I include quotes from your post, just as you do not enslave the previous author when you quote him without his permission. Your argument is, in a word, dumb.
it astonishes me how many otherwise reasonable people think this is ok, just because it involves labor of the mind rather than labor of the hands.
No, that has nothing to do with it. The issue is that creating a work is an act of labor, but the work itself, having been created, is a mere good. Re-using that good simply does not result in causing the author to engage in the exact same amount of labor once again. If I reprint Shakespeare, and he's been stone dead for centuries, and likely wouldn't have wanted me using his work for free, being the business-mined sort of guy he was, how the hell are you even suggesting that I am enslaving him? Is he a zombie that I have set to work at a writing-desk? No. Please learn to distinguish between labor of the mind -- the act of creation -- and the fruits of that labor -- works -- which are not labor themselves, but merely a product. Brickmaking is labor, but bricks are not. Writing is labor, but writings are not. This is very straightforward.
So you are totally okay with a company publishing a manuscript against an author's wishes and keeping all the proceeds as long as the author's name is published?
I think that the author ought to have the first bite at the apple, and that he ought not be compelled to create a work, or publish a work, or preserve a work from destruction, if he is otherwise inclined. However, if a work is created and extant, even in MS form, and if it legitimately winds up in the hands of someone who wishes to publish, I am not averse to publication against the wishes of the author. He ought to have a period of time in which he can be first to publish, but if he does not, then it is better that someone else does it than that the work is never published at all. The public benefits from the creation and publication of works. If the author won't step up to the plate, we ought to permit someone else to do so, rather than lose the work altogether.
Consider the saga of Nabokov's "The Original of Laura." He didn't finish the work before his death, and wanted the manuscript destroyed. The literary world wanted it published. Finally, after dicking around for three decades, his son has decided to publish what there is of the thing. This is good. It certainly doesn't matter what the author wants; that's not the point of copyright.
Do you really not see the public benefit of intellectual property?
Well, we seem to be talking about copyright here; let's not confuse matters with nonsense terms like 'intellectual property.'
Anyway, speaking for myself, I think copyright is capable of yielding a tremendous public benefit. However, I think you'll agree that not all implementations of copyright would yield an equal public benefit, and that therefore we must not only 1) determine what the public benefit would be in the absence of copyright, so that we have a baseline to measure against, but that 2) we must strive to create a copyright system which maximizes the public good.
Do you not see how in the absence of those "privileges" creatives would be even more at the mercy of businessmen then they are now?
So? An author is not the public. While whatever benefit he enjoys from copyright may certainly be a factor worth considering, the public good is our overriding concern. Assisting authors is only of interest if doing so brings us closer to the maximum possible public benefit. If assisting them would take us further away from that, then we certainly must not do it. In practice, this will tend to mean that while authors might enjoy some benefit under an ideal copyright system, they probably won't enjoy the greatest benefit they could have, since it is so unlikely that the greatest public good is identical to the greatest authorial good. This is especially likely when you recall that authors are not a monolithic block; established authors will prefer to rent-seek, at the expense of up-and-coming authors who might upset the ancien régime if allowed to succeed.
You can argue that the situation has gotten so bad that we'd be better off without copyright, but that is an unnecessarily extremist position.
I agree. I don't think that we're at such a low point yet that we're below the baseline. However, I do think that we are terribly far from the optimal copyright scheme. Sweeping reforms are needed as soon as possible, but the longer they are in coming, the more that abolitionist sentiment will grow, I fear.
It wouldn't be commercial speech because it is a work of art; it doesn't matter who created it, or what their motivations were. Commercial speech generally consists of things like advertisements, which are more focused on encouraging the audience to engage in some sort of economic activity directly related to the speech.
Anyway, I doubt it would matter. First, the commercial speech doctrine lacks much of a foundation, and the idea of uniquely significant limitations on speech merely because it is commercial in nature may not last much longer, given current trends and weak legal rationales for preserving it. Second, commercial speech is protected under the First Amendment even now, provided that it is not misleading and concerns lawful activity (which, in the case of a game, would be the playing of the game, rather than emulating in real life the things that happen within the game). Such protected speech can only be regulated by the government if there is a substantial government interest in doing so, where the regulation achieves its goal but is no broader than necessary.
The headline says that the wireframes are not subject to copyright, and that the judge used an analogy to photographs. But photographs are subject to copyright, so I'm very confused.
Photographs can be copyrightable, but it doesn't mean that all photographs necessarily are copyrightable.
The central issue for copyrightability is creativity; did the author actually originate the work in question, and is it creative? If the work did not originate with the author, but was instead just copied from somewhere, or if the work lacks creativity, then it is not copyrightable. In photography, creative choices tend to involve choice of subject, angle, lighting, pose, etc. Even if a photograph is of an uncopyrightable thing (e.g. a rock picked up from the ground) the way that the picture is taken can provide enough creativity to support a copyright on the picture (though not the subject, of course). A photograph that slavishly reproduces the object embodies all the creativity of ordinary xerox machine use, and would not be copyrightable.
Here, the model presumably seeks to slavishly conform to the exact shape and dimensions of the car. That's not creative. If it were creatively different from the car, then that could be something copyrightable... but probably not what anyone wants.
If you're interested in this, read the Feist decision, which is about the uncopyrightability of a standard phone book's white pages: the phone company didn't author the names or numbers, and didn't creatively select or arrange them (it used them all, alphabetically) and so opened the doors to anyone copying phone listings. Creative, copyrightable phone books exist, but the all-inclusive unimaginatively ordered white pages are not they.