Lawyer records are similarly protected, except that a lawyer has an ethical obligation to report an ongoing crime (eg if his client tells him he plans to kill the informant).
Actually, it depends on the ethical rules in the jurisdiction. For example, in my jurisdiction, I can choose to disclose that kind of information if I want to, but I am not obligated to. Obligatory disclosures here are extremely limited, and are generally meant to ensure that the attorney himself does not participate in the crime that the client is perpetrating. Perjury by the client is the typical example: if the client is perjuring himself, the attorney has to try to withdraw from the case (or not take the case -- at what stage this occurs is a factor), and must make very carefully limited disclosures only to the extent necessary to manage the withdrawal without causing prejudice against the client.
OTOH, if I were to learn of misconduct by another attorney or a judge, I would have to report that.
I suspect that there is similar variation in the standards for patient confidentiality in the medical field, but I don't know.
Intent is not difficult to establish in these cases.
Intent is irrelevant. Copyright infringement is a strict liability offense; mens rea is not a factor at all.
How do you suggest they protect their intellectual property rights
Oh, I'm not very interested in that side of things. I think that the better answer is to create an exception to copyright so that natural persons acting noncommercially can do anything, and it isn't infringing. The copyright holders still have copyrights, it's just that fewer things are copyright infringements.
Que the people suggesting that they should just give up all legal protections for their property, and thus there's no crime... just like there'd be no theft if we all owned everything equally.::
It's 'cue,' not 'que.' And the thing is, I recall Prohibition, where people suggested that a good way to get rid of the crimes of making, distributing, possessing, and consuming alcohol, as well as much of the criminal activity that was supported by people who violated the Prohibition laws, was to make alcohol legal once again. As it happens, it worked pretty well. Sometimes, when social norms and the law are in disagreement, the norms need to change, as happened in the civil rights movement; but usually, it's the law that has to change, since the law should serve the people, including their norms of behavior. Most people do not find noncommercial infringements by natural persons to be unacceptable. Lacking any very good reason to act contrary to that, the law should comply with those norms. OTOH, most people do somehow manage to distinguish copyright from the unrelated fields of real and personal property, and can support reform in the former and nevertheless be content with the latter. Go figure!
(though you can recover actual damages, too, if you can prove them and jump through other legal hoops)
Not 'too,' but 'or.' The plaintiff has to choose whether he wants statutory damages or actual damages and profits. He can't get both. And as I said, it's actual damages and profits, though I suppose a plaintiff could ask for just the first half, if he was so inclined.
If merely owning a copyright has no value, why do people value them?
Do they? With the terrible laws on the books, virtually everything that anyone writes or draws is copyrighted as of the moment they are created; I don't recall people valuing those copyrights all that much. I suppose if someone were pretty ignorant and easily impressed....
As for why we grant patents, consider this. If I had a working FTL drive and described it to someone at the wrong time, I wouldn't get a patent. If someone overheard me discussing notes with someone and wrote their own proposal, they'd get the patent.
No. In the US, at least, a patent applicant has a decent amount of time to apply for a patent (the deadline is 1 year after the invention is first publicly used or described, or is offered for sale), and the patent can only be granted to the inventor, if it's granted to anyone, not merely the first person to register. Where there are multiple people claiming to be the inventor, each seeking the patent, an interference procedure takes place where the various applicants have to dig up evidence to prove who was the inventor, and who was merely the runner-up.
Of course, the bad reforms currently being proposed would materially change this (if they're constitutional, which I doubt in some regards), but I'm opposed to them, and judging by what you've written, you probably ought to be as well.
No. You're proposing we help someone who is a snoop and good at filling out forms, over the inventor of the thing they snooped.
No, I'm not. Of course, if the real inventor never stepped forward, and no one else ever discovered that the applicant in such a case was not the real inventor, then it's hardly our fault that we were tricked into granting a patent to the wrong person. Fraud on the PTO is a serious offense, but it can be hard to know that it has happened.
Those who couldn't whined until we gave them handouts.
Well, no. You don't just get a patent; you have to invent something patentable, first. The PTO doesn't grant patents merely for whining about them. (Unless you discovered some sort of patentable method of whining, I guess)
If we believe the free market to be effective, then why do we need to restrict it for its own good?
We don't believe it to be effective. Patents, and copyrights, are government granted monopolies meant to help subsidize certain parties to do certain things. A free market is when everything is in the public domain; a specific invention or creative work is a commodity, after all, and should be priced accordingly.
If you want inventions, pay inventors.
It doesn't work that well, actually. It's been tried, historically, and it usually doesn't work out. The nice thing about the system we've got is that a patent doesn't incur a great financial cost to the public unless the invention is popular during the patent term. If no one cares (ever, or yet), then it doesn't greatly effect them. Contrast this with if we specifically paid bounties for inventing things, which would always incur a significant cost, even if it turned out not to be a worthwhile invention. Further, bear in mind that the bounties are almost always lower for desirable inventions than if we just gave the inventor a patent so that he could be a monopolist for years and years. Patents are a better incentive, and yet less of a burden on the public in many cases.
Well, it's the courts who hear the patent law cases, not the patent office.
No, the PTO is staffed with patent law specialists. Even the examiners have to be well-versed in it. And the PTO does have administrative courts with ALJs; they hear some patent law cases. The Article III courts, OTOH, have to be more general, as they hear civil and criminal cases of every kind. Even the Federal Circuit isn't all that great at these things.
In fact, I don't believe that the patent system even produces fewer lawsuits than the system I'm proposing.
Your system only produces lawsuits. It has no other mechanism for doing anything whatsoever. It's as though if I wanted to get a drivers' license, I had to sue the state for one, instead of going to the RMV. Or if I wanted to file my taxes and get my tax refund, I had to sue the IRS, instead of just sending the forms to them directly, and having them send me a check in response.
We have administrative agencies for a reason.
I literally just thought about it while I was reading the article, and threw it out there and see what other people thought about it.
I believe it.
This is the internet, and I don't have to be a patent attorney to post ideas about patent reform.
True, but it means that your ideas are less likely to be good ones than if you knew the policies underlying patents, the history of patent law, the current system, and the details of other current reform proposals. It's like voting; any enfranchised person can vote, but well-informed voters are preferable.
If you feel it's beneath you, just don't read it.
Well, actually, most of my posts here are with the intent of correcting mistakes that people have as to the law, particularly copyright law, which is my field. You made your suggestion, and I pointed out flaws in it. This was partially for your benefit, and partially to discourage other people from agreeing with you because they also hadn't seen the flaws.
Also any law written would likely exempt "obvious" and already-existing ideas
How do you know that they're obvious or not novel unless you require them to be published and set up a registry so that you can compare incoming applications with what's already on the books? Researching prior art in patent cases is already a huge pain in the ass; you'd make it far more laborious and expensive. Aside from benefiting patent lawyers et al, how is this good for the public?
Finally, any law could limit recoverable damages to the profits generated from the invention (though common sense dictates this already).
No. Common sense would be the damages suffered by the plaintiff plus the profits of the defendant which are attributable to his infringement. BTW, ideas are not the same thing as inventions, so would you please pick which of the two you are talking about. As it happens, inventions are a subset of ideas.
and have some kind of time-limit or useful lifespan.
Based on what? Without a registration, you have no idea when the plaintiff actually invented the thing. As far as you can tell, it would be as of the date the lawsuit was filed. Anything further would require pouring through evidence, which means that it may be untrustworthy (evidence isn't automatically true, as many laymen think, but rather it is that which is examined by the finder of fact for any truth it may contain. E.g. two witnesses with opposing testimony both give evidence, but that doesn't mean that either of them actually told the truth). A registry that anyone can look at, and which gives information as to invention dates is better.
It's especially better if people can infringe by independently inventing something. Without a registry to consult, they'd have no way to know that someone else already invented it. Had they known, they could have done something else (which would be of more value to society) and could have avoided infringing, instead of blundering right into a lawsuit they're sure t
Well, I'd call monopoly rights a reward, even if I still had to make them profitable.
Why? The monopoly can only funnel the economic value of the work to the copyright holder; it can't create the value. A work that is a flop is a flop whether or not it is copyrighted. Just being able to say you have a copyright on something doesn't seem like it'd have much of an incentivizing effect.
I know that the government doesn't give a copyright on lame poetry as a reward, but it gives the reward of a copyright to encourage the industry in general.
Well, not merely to encourage them, but to encourage them when, and to the degree that, it serves the public interest.
Not to discriminate, but discriminatory in that it selects only some members from a set.
Well, that's because we're not all that interested in encouraging mere good ideas. The ideas have to be valuable enough in several ways to make encouraging them worthwhile. For example, they have to be novel, since we don't want to encourage people to reinvent things we already have. They have to be useful, since non-useful inventions aren't very valuable. They have to be reduced to practice, since raw ideas also aren't that useful; an idea that there should be an ftl drive is nice, but worthless since it's just an idea. A working ftl drive is far more valuable, and worth encouraging, and so we require reduction to practice of some sort.
(political) rules (such as having to applying for a patent instead of just sharing the idea).
If someone is willing to share the idea for free, without making it known that he desires a monopoly, why should we give him a monopoly? I'm perfectly happy to thank him, but since the monopolies are unavoidably harmful, they should only be granted when they yield a greater good than harm, and when necessary. People who invent for free don't deserve patents, since they weren't necessary to encourage them to invent.
I was meaning something below the level of patentability.
You know a pass-through (glassless window) between the kitchen and dining room? What if you were the first person to design this, or these days, to chop out the entire wall to open up the area? It's not technological, and can be described easily to your builder who could do the same, and can be varied any number of ways while still serving the same purpose. I don't think there are any protections that cover this sort of thing.
They'd usually be unpatentable because they'd lack novelty or nonobviousness, I think. The pass through window seems to me like it would be patentable if it were invented anytime recently. Just because it lacks moving parts, or is essentially a negative space (i.e. it's not like a special kind of wall, it's a hole in any kind of wall) doesn't mean it's not patentable subject matter.
Someone was saying that we need copyrights/patents to spur innovation - my point was that they are tangentially related to rewarding innovation and societal advances.
Well, we don't need them, per se. There are lots of other incentives to create and invent that are unrelated to copyrights and patents. But they are a sometimes-useful artificial incentive to add to the natural ones. Copyright surely didn't cause Van Gogh's "Starry Night" to be created, but it probably did play an essential role in "Die Hard."
In any case, though, no, they aren't a reward for improving anything. An copyright on a piece of Vogon poetry is just as much a copyright as a copyright on anything else. So long as the work is eligible, all copyrights and patents are the same. It is the market that rewards those who hold the rights to the works and inventions that the market values the most. The rights are just a funnel to ensure that those rewards go to the rightsholder, and not someone else.
This to illustrate my claim that we don't give these out to help the world or encourage invention (or we'd give them to people who do neat things, without restrictions on what accomplishments can be rewarded). Clearly they're just a bone to people doing specific things, in specific industries. Arbitrary as I said. Corporate welfare for the industries with lobbyists.
No, not if the system is working. Which isn't to say that it's working all that well right now. But they are meant to help the world, by (in part) encouraging certain kinds of creation and invention. Reinventing the wheel is not all that helpful, so novelty is a condition for patentability. Things that don't work are not helpful, so utility is a condition, etc. The restrictions are to encourage the right kinds of works and inventions, not to discriminate amongst the recipients of the rights.
Re: architectural works, it seems like you should be able to tour a building with a copyrighted design while taking detailed notes to have your architect design someone exceedingly similar. Like reading LotR and saying "Small weak hero, king of dying race, elves, unspeakable evil in attractive wearable form, etc..." to a ghost-writer who creates something with the same essential elements.
Yeah, you can do that. There's no bright line, though, between the idea and the expression. Go too far to one side, and people can unjustly copyright ideas merely for having expressed it in a single form. Go too far the other way, and someone can print their own DVDs of Star Wars just by changing a few names here and there so that it's not a 100% exact copy. So you have to be cautious.
Why would Slashdot claim that I own the comment I've posted here?
You've got me. They're often wrong. For example, my comments are in the public domain, and people frequently post works that they don't have rights to.
I suspect that they were trying to say that they don't make any claim on what people post here. If so, they could have worded it much better.
No, my gripe is federal regulation. I don't like the way that people have to submit an application to the patent office in order to have their intellectual property protected.
One important note here: It is the federal government that grants you a patent in the first place. You certainly don't have any exclusive rights merely for having invented an invention. If you don't like the US doing it, I suppose the several states could each run their own patent office. However, past experience shows that they'd do a terrible job; that's why the federal government has many of the powers it has to begin with, including the patent power.
In any event, it serves some other useful purposes. First, a database of inventions is a good source of prior art, if we care about novelty and nonobviousness. Second, registering and publishing inventions is a good way to put the rest of the world on notice that they exist and that someone has made a claim as to them. It's rather like how there are registries for land records, lest multiple people have conflicting claims to the same land and no good way to determine who's right. Third, since the power to grant patents comes from the consent of the governed, and since the government is meant to act in the way that best serves the public interest, why should the rest of the populace consent to giving you a monopoly over us, in the form of a patent, unless you abide by the rules that we've set up to benefit us? We have a right to be self-interested too, and while our interests and yours can coincide at times, they are different.
It seems that any patent worth having eventually needs to be defended in court anyway. So why not just skip the patent office?
1. The courts are bad at this, and the PTO specializes in this. 2. The courts have more important things to do, and the PTO doesn't. 3. The courts are already very busy, and in order to get on with #2, it would help if they weren't so much busier. But this is the PTO's business. People already complain a lot about the PTO not doing its work properly so as to reduce the number of patent cases in the courts.
Exactly, so why should people take out patents on them?
As it happens, the example I gave, while an idea (and therefore protectable under your proposal) is not an invention, and therefore not patentable. So I couldn't get a patent on it if I tried.
When your case goes to court, you will need to present evidence that the party you are suing was aware of your invention, and used your work to his own benefit without your permission. Obviously, if you don't have any proof, and discovery doesn't turn any up you will not be able to prove your case. This is how civil court works now, so it's not outlandish in any way.
So you're saying that there will be an originality requirement for patents? That's new. The way it works right now, if Alice invents something and gets a patent, and then Bob independently invents the same thing, without actual knowledge of Alice's work, then Bob cannot get a patent on the same invention, and in fact, is infringing if he makes or uses it. Actual knowledge is irrelevant; he has constructive knowledge. So I think you're misinformed about the current system. That can't help you make good suggestions for reforming it.
One person would be the first to bring a viable product to market.
Make up your mind: first you said you were protecting ideas, and now you're saying you'd protect reductions to practice. They are totally different.
Your case has to hold up in court, it can't be an outlandish claim that no jury or judge would accept.
Well, you do know, right, that even today, copyright terms are set depending on the kind of creator? Works that are created by a natural person have life+70 terms, and anonymous/psuedonymous works and works made for hire have the shorter of either 95 years from publication or 120 years from creation. (There are a few variations on this for more specialized cases; the rules are not a model of simplicity)
So if, for example, Alice creates a work that is not a work made for hire, and then sells the copyright to BobCo, the copyright term would still be Alice's life+70. It doesn't change just because the copyright holder does.
So I think that your objection is basically unfounded.
Of course, I would prefer a flat term of years. Say, renewals every 2 years for a maximum of 24 years (i.e. the first term and 11 renewal terms), except for some kinds of work (e.g. computer software) which might have fewer renewals allowed. There's no good reason to have terms based on the life of the author. Terms should be as short as possible while encouraging the creation and publication of as many works as possible. Since in the vast majority of cases where there is copyright-related economic value to a work (which itself is rare), that value mostly comes in the first few years, if not earlier, longer terms don't make sense. Further, they add unpredictability to the system, since no one can make plans around the latest date that the work could enter the public domain.
My point was that one of the main problems with the patent system - granting of obvious, broad patents that prevent others from doing common things they arrive at independently of the patent-holder's work - does not exit for copyright; and that may be the main reason why automatic copyright makes a lot more sense than automatic patenting the OP was suggesting.
Automatically granted copyrights do not make any sense at all; it's a terrible idea.
Copyrights are meant to serve the public good by encouraging the creation and publication of creative works so that they will enter the public domain as rapidly as possible. This means that works where the author would have created them anyway, and wasn't encouraged by the availability of copyright, should not be copyrighted; authors that are willing to work for free should not be paid, as it would be wasteful. Consider your post on Slashdot just now; would you have posted it, even if it wasn't automatically copyrighted? If so, why do I need to give you the costly, artificial encouragement of a copyright for something you would do anyway?
Likewise, if a work is not published and is not intended to be published, then the encouragement of copyright is not enough, regardless of whether it is automatic or must be applied for. It should not be automatically granted in that case, since the thing that we want to result from copyright (creation and publication) isn't happening.
If authors must apply for a copyright in order to get one, then the authors are are encouraged by copyright will identify themselves, for the most part, limiting the encouragement to those who need it. If publication is required as a part of registration (even if the publication is limited to copies that must be sent to the Library of Congress, where anyone can go to read them), then it has encouraged what we wanted as well. This works very neatly.
Also, the registration works like land and car registries: if someone wants to get in touch with the holder of the copyright (in order to make a licensing deal, for example), then there is a name and address on record. If someone is curious as to whether the work is copyrighted or not, the registry can help them know for sure. We have patent and trademark registries online for exactly this purpose. An online copyright registry is very much needed, and it's only really worthwhile if all copyrighted works are in it, because you can't get a copyright otherwise. It is also a traditional part of our American copyright law. It is only due to foreign influences and corruption that it has changed, just in the last few years. Stopping the mistake of automatic copyright and going back to how we usually do things would be welcome.
If we require copyright holders are required to re-renew every few years, or lose their copyright (patents and trademarks work this way; US copyrights used to have renewals from 1790 to 1978, so it's traditional), then the information in the database can remain current. More importantly, this works to limit the encouragement we provide to the amount needed. If Alice is encouraged to create and publish a work by 5 years worth of copyright, but Bob needs 10 years, then it is better to grant each the minimum they need, rather than to give Bob too few years (assuming he doesn't need an unreasonable amount) or Alice too many years. This is just the same as having an opt-in system where authors must identify themselves as needing, or at least, wanting, a copyright. This way they also have to indicate whether, after a few years, they still need, or at least, want, the copyright. Historically, most authors did not bother to renew their copyrights, which means that they were encouraged by one term, but didn't care about the second. So this too will serve the public good.
There is really no downside to this, and no need for automatic copyright, except for one very narrow circumstance. We don't want incomplete works which are still being created, or finished works which are being shopped around to publishers, to
How about restricting copyright to real live, breathing human creators of the work for their lifetime? There would be no selling, trading, for hire, assigning or inheriting of copyright. The originator can assign only commercial reproduction rights to one entity for an agreed upon time, not more than 5 years at a time. After 5 years the creator of the work may renew or not or make another 5 years agreement with another distributor.
Why? If an author wants to retain his copyrights, or only license certain rights for a short term of years, he is perfectly free to do so under the present system. If he wants to sell his rights entirely, who the hell are you to tell him that he cannot? Authors are not children, and you are out of line for proposing such a paternalistic system. Authors should be free to make whatever deals they want, which they can get, just like everyone else, in every field.
The main difference between patents and copyright is that, by definition, two different people cannot independently create the same copyrightable work
Yes they can. If Alice and Bob each independently create the exact same thing, then each one of them can get a copyright on it, and each can do whatever they like without infringing on the other. This is because copyrights do not require novelty, like patents do. It's unlikely, the more complex a work is, but the law does permit it. The main thing with copyrights is originality, i.e. whether the author originated the work. If Bob copied from Alice, then his work is not original, and he infringed. If Bob didn't copy from Alice, and really did independently create the same thing, then his work is original.
My main gripe with patents is that they use federal regulation establish intellectual property.
That's just a weird statement, right there. "Intellectual property" is a terrible phrase, which is deliberately meant to confuse people. But basically, if anything, it would refer to a patent (or copyright, etc.) itself, and not the invention the patent pertains to, nor anything which embodies that patent, such as a tangible machine. So you seem to be saying that your gripe with patents is that there are federal laws that provide for patents. Like I said, it's kind of odd.
I don't see why they can't just write a law establishing that you own your ideas, and that other must secure your consent or give you reasonable compensation before using them.
1) Ideas are more plentiful than air; why should there be ownership of them. There's certainly no scarcity.
2) Ideas are not really valuable, in the main. I have an idea that I'd like to fly around like Superman. I don't know how I would accomplish this, but if someone else figures out the hard part, why should I be able to demand payment because of my contribution?
3) Ideas are largely private. If you don't publish them for all the world to see, how would anyone know what was already out there, who came up with it, and when? If you do publish them, who pays for that?
4) What's 'reasonable'?
5) Ideas are generally unoriginal. If a hundred people each independently have the same idea, how is the conflict between them resolved?
6) Ideas are extremely broad. If I have an idea for a story that goes 'Boy meets girl,' or 'Man against nature,' then I basically get paid by every author and filmmaker in the world. Seems like quite a windfall for so little effort.
7) The transactional costs would be so immense that the economy related to ideas -- inventions, creative works, etc. -- would grind to a halt, causing dramatic harm to human civilization and progress. How could that possibly be a good idea? I'm reminded of the Golgafrinchans, who would surely love the notion.
8) It's just plain dumb. It doesn't even pass the laugh test.
Patents and copyrights are intended to prevent people from free-loading off of the work of others
No they're not! And that sort of thinking is what has screwed it all up!
They're intended to encourage free-loading, which is a highly useful and desirable activity. Why the hell should everyone have to reinvent the wheel, after all. Better to freeload off of the inventive caveman who came up with it. Think about how patents (and copyrights, until the system broke in the 70's) require publication. Think about how the terms expire (again, increasingly broken as terms grow longer).
The ideal world would be one in which as much public creative and inventive activity as possible took place, and there were no patents or copyrights, and everyone could free-load as much as they pleased. We can't manage that, it seems, but we should try to get close, with as much creative and inventive activity as possible and as much free loading as possible. We may have to trade one for the other, but they don't scale linearly (year one of a copyright is worth far more than year one million, even though both are just one year long), so we can get gains in excess of costs, if we're careful.
Just something to think about.
If you had, you wouldn't of bothered to make that post.
I'd honestly kind of like to create a government based on the "tyranny of the informed"---a direct democracy in which everyone votes every Saturday.... The public votes for ten minutes.
You honestly don't want observant Jews (or people who work on Saturday, and can't spare the time to sit in front of a computer for hours for the entire process, or the specific ten minutes for a single issue) to vote? That doesn't sound encouraging.
Ultimately, I don't care for it. IMO, governments draw their legitimate authority and power to govern from the consent of the governed; thus, I think that anyone who is subject to the authority of a particular government should be enfranchised. Whether they're informed or not is irrelevant; the government is equally the servant and creation of all of its people, so it must behave equally toward them. To discriminate amongst them on any basis would be to unjustly govern the uninformed without their consent.
However, if you designed the best layout ever and optimized traffic flow, even if it revolutionized house layouts, you wouldn't get any monopoly rights or rewards.
Well, no, that's incorrect. A copyright wouldn't protect that, but a patent could. Remember, that the various rights schemes, such as copyrights, patents, and trademarks, don't overlap in what they protect, but that they may protect various and different aspects of a single object. E.g. an arcade game might have patentable gameplay and parts, copyrightable software and art, and trademarkable names and logos.
I mainly meant this to illustrate that we don't grant these rights to encourage creation, or we'd give them for actual creations and revolutionary ideas.
Copyrights don't protect any kind of ideas. They are, however, meant to encourage the creation and publication of creative works. Well, unless the system has been corrupted in some way.
Given that architecture was a thriving field prior to the passage of the AWPA, and that it doesn't seem to be thriving even more than it had been, nearly 20 years later, it is obvious that copyrights for architectural works are a failure in that they have not encouraged the creation and publication of architectural works. It's other things -- the health of the housing and real estate markets, the need for new office space, the available money for public buildings, etc. -- that control that field. Since it has no beneficial effect, and since any copyright inevitably has a detrimental effect (which is only tolerable so long as the benefit outweighs it), the AWPA should be repealed, and copyrights for architectural works should be voided. It was a stupid idea at the time, and it's a stupid idea now. If it ever stops being a stupid idea, we can think about re-enacting it.
btw, what is the standard for derivative works in architecture?
Same as for anything else, with the caveats of 17 USC 120 and the noncopyrightability of "individual standard features" from section 101.
Blueprints were traditionally protected as graphic works, just like paintings. The structures described in the blueprints were not protected however. This changed, with the Architectural Works Protection Act of 1990 (yet another horrible thing added to our law due to our joining the Berne Convention); now, not only are blueprints doubly protected, but the buildings themselves are copyrightable as well. Some architectural features may not be protected, but some are, and of course, entire structures are as well.
In one interesting case, a builder copied some plans, and unlawfully built the house described therein. The copyright holder sued for a permanent injunction against the homeowner ever selling the house, since it would be an infringing distribution. (First sale doesn't apply to unlawfully made copies)
but, in the US, copyright is a CONSTITUTIONAL right
Ooh, too bad. No, you're wrong, and it's sad to see that in someone who managed to cite it properly.
The clause is merely the granting to Congress of one of its powers. There are plenty of such powers: the power to borrow money, to tax, to spend, declare war, have a navy, etc. Congress isn't obligated to grant copyrights, it is merely empowered to. Whether or not it does grant copyrights depends on whether or not it feels like doing so. The Constitution places a few limits on what those copyrights can be like, but otherwise, the choice is entirely in the hands of Congress. They are well within their authority to abolish copyrights altogether. That would be perfectly constitutional.
So I think it's wrong to think of copyrights as a constitutional right, as that term is generally understood. No author is guaranteed by the Constitution to get a copyright. He can't successfully demand one if Congress is unwilling, just like how if Social Security (an exercise of the spending power) was abolished, my grandmother couldn't force the government to continue to send her checks.
It even predates freedom of speech in the US Constitution.
Not in any meaningful way, it doesn't. The Constitution was written without guarantees of civil liberties. The federalists said that it didn't need them, since it was obvious that those rights were protected anyway, and that explicitly listing any would cause people to wrongly think that only the enumerated rights were protected, which wasn't anyone's intent.
But they couldn't get the Constitution as-written adopted by the states without promises that it would be amended to include a Bill of Rights. Since those involved were pretty honorable, it was promised that this would happen, and the promise was enough for the anti-federalists to come around. And indeed, shortly thereafter, a Bill of Rights was written and mostly became law. (There were 12 proposed amendments, 10 of which were adopted, one adopted just recently after collecting dust for two hundred years, and one lying around that is unlikely to ever become law, but which is still pending.)
So it is generally considered that free speech and copyright exist at the same status. And since we have a last-in-time rule in the US, if this weren't the case, then the First Amendment, having come after the Copyright Clause, would be considered to render the latter inoperative. So I imagine you won't want to make a fuss.
It is one of the few times that the Constitution actually speaks to what CONGRESS is supposed to do.
The Constitution no more suggests that Congress should enact copyright laws than it suggests that Congress should declare war. It merely allows Congress the opportunity to do so. (And only because the states made such a hash out of it, which is practically the reason for our entire government!)
When the Constitution wants Congress to do something, it is clear about it, and uses the word 'shall.' Such as "The Congress shall assemble at least once in every year...." As a result, if Congress failed to convene one year, they'd be acting unconstitutionally. (For all that it would matter; I can't see how that's anything other than a political question.)
Really, if you're going to invoke the Constitution, would it trouble you so much to read the thing?
"All men created equal..." is an equally artificial concept.
No, that one's about right, I think. Plunk anyone down on a desert island, and they'll probably get by about the same. Certainly none of them, as tabulae rasae, would have a great advantage over another. It's human societies that introduce material inequalities.
"The right to life, liberty, and pursuit of happiness..." likewise. The "natural" order of things would be the survival of the fittest, with the strong taking what they want whenever they want and the weak digging among the scraps, or doing without entirely.
That's right.
And here's the thing: Since that would not be a very good society, and since we can imagine that there are better ones, we can work to create a better society which is more pleasing to those who live in it. If such a society is possible, and better, then it ought to be implemented. Further, the society which is best for the most would be the one to pursue, where multiple options are available. If, however, no better society than the natural one is possible, then the natural one is the best you've got.
Likewise, there is no natural copyright, but if a copyright system were possible which more greatly satisfied the most people (i.e. the public at large), then it would be worth implementing, so long as the cost of doing so didn't outweigh the benefit, and so long as it remained better than the natural alternative. Further, the one which most greatly satisfied the most people for the least cost to them would be the best. If this is possible, it ought to be done; if not, then no copyright at all is the best you can manage.
And this is exactly what I have said. As it happens, I do think that there is some copyright system that is better than none at all, but no copyright is the baseline against which we must measure any copyright system, and is a valid alternative, should it turn out that we cannot come up with something better. Our present system is not the best possible, I suspect, and I sometimes worry that it is not very far from being worse than none at all.
but the founding fathers recognized the need for protections and also the need to encourage and promote the development of works of art and science.
They didn't recognize the need for it, they felt that it might, or might not, be useful. That's why neither copyrights nor patents must be granted, but why the government merely has the power to grant them, or not, as it sees fit. Also, most of them likely didn't care one way or the other. Only a few of them were concerned about the matter, and even they had bigger things on their mind, most of the time.
Then again, the current system encourages the production of thousands upon thousands of works each year, all produced "on spec", and all available to you and I to enjoy for an infintesimal fraction of the costs of creation and production.
That's not good enough. The public good consists of having works created, published, and not copyrighted. Reducing copyright protection, in scope and length, is to the public benefit. If fewer works are created as a result (which would be a surprise, for even very large reductions, the system is so bad right now), but there is proportionately greater freedom with respect to those works, then it can still be an improvement. The idea is to get the most works possible, for the least protection; not the most works, period.
What system do you propose that's "fair" (another artificial concept) to content creators and consumers alike?
I'm not interested in fair, and I'm certainly not interested in what authors want. I'm interested in the public interest only. Authors are of no concern, save for how they might affect the public interest. Does a dairy farmer care about the comfort of his cows? Only if it affects the milk. That's why cows live in barns, and not palaces.
That's guaranteed to make the same amount of work available, if not more?
It shouldn't be too short a time span, though, otherwise publishers could simply wait until copyright expires and then exploit a work without compensating the author at all.
The thing is, they're actually unlikely to do so!
Remember, a copyright is really not all that valuable to an author standing alone. The value of the copyright comes from selling or licensing it to a publisher, who then in turn exploits it to make money from the public. Publishers dearly value the period of exclusivity that a copyright provides, and generally loathe the idea of publishing public domain works that anyone can publish. Public domain works aren't very profitable to them; due to competition, they have to be priced at marginal cost plus a very modest profit. These days, that can be effectively zero. That's great for the public, but not for publishers.
So I wouldn't worry about that at all. Short terms would, if anything, encourage publishers to publish works more rapidly, instead of sitting on them. Look at Disney -- they publish something for a couple of years, then stop, to rebuild demand. If anyone could churn out copies of their movies, that tactic wouldn't work for them.
IMHO there needs to be some way for an artist to prevent others from stealing their works - at least for a certain amount of time to reward them for creating the work in the first place. Otherwise, we'd be back in an era where only the idle rich can afford to invest time into creating art.
No, authors should never be rewarded. Only incentivized, and then only where it serves the public good. Further, there was plenty of art prior to the existence of copyright, and much of it didn't involve the 'idle rich,' either as creator or patron. Really, it's more an issue of the society and economy over all.
A position that--to be honest--is scarely illuminating.
I wish that were the case. Sadly, most people tend to forget this. It's important to bear in mind, since it means that selfishness is not a pejorative in the context of copyright policy. There's nothing wrong with it, and in fact, copyright only exists because one side is selfish, and only functions because the other side is.
As such, creating works for you to enjoy and ponder has to be worthwhile, otherwise, most any sane person with a house and family would simply do something else.
Sure, but minimally worthwhile. So long as the incentive to create (which is the sum of the incentive provided by copyright as well as other non-copyright-related incentives, such as fame, or self-expression) trumps the incentive of the author's best alternative it need not be one iota larger. After all, doling out copyright incurs a public expense. It should not be done lightly, nor unnecessarily. If an author will work for a pittance, it is irresponsible to give him, say, two pittances.
Further, your argument tends to imply that authors are interchangable cogs in the machine, another fallacy.
This isn't copyright's problem; this is a market problem. It is astoundingly improper for copyright policy to suggest that one artist is superior to another. That's a matter of subjective taste, and is not something we want the government involved in, at least, not here. For example, I think that Ayn Rand was a crap author who wrote crap; you seem to like her. Were either of us to dictate on a per-author basis, who should and should not get copyrights, the other would be rightly upset.
Thus, rather than pursue quality, copyright can only pursue quantity, assuming that the more works that are created, the more good works will be created; it's Sturgeon's law at work. By not directly compensating authors, and instead only giving them an economic advantage compared with others who would reproduce the same work, we let the market decide which authors are good or which are bad, or at least, which are popular and which are not, which hopefully is close to the same thing.
So no, I don't mean to imply that authors are interchangeable, but I am saying that copyright policy can't prefer one over another.
And unlike you, I have no problem whatsoever compensating them for their efforts.
Okay. In that case, I am prepared to write an absolutely terrible book that would never sell on its on merits. But, I am going to put a hell of a lot of effort into it. It will be like the Heaven's Gate of books. Do you plan on compensating me, merely because of effort?
I wouldn't.
Copyright is meant to serve the public interest, not to reward authors. It might happen to have an effect of rewarding authors, among other things, but that's really quite incidental. It's like dangling a carrot in front of a mule to get it to pull a cart; the carrot -- and the mule -- are just means to an end.
Why should I spend months or years researching and writing a book, if there's absolutely nothing to stop people from freely distributing it once its out there? Sure, some people are still going to writem but it'll be fewer, and I fail to see how our culture would benefit from that.
The public benefits from having more works created and published. The public _also_ benefits from being unrestricted with regard to works, so that they can be republished for minimal cost (rather than the monopoly prices charged by copyright holders), altered, etc. In an ideal world, we'd have both.
This isn't an ideal world, though, so we wind up trading a bit of the latter kind of benefit in order to get a more than proportionately larger increase in the latter. The idea is to get as close to that ideal as possible, so we look to maximize the public benefit: terms that are just barely long enough to encourage creation and publication, but by all means so short that they don't interfere much with the public.
completely taking away any creator's rights is not the answer, either
It can be. Copyright is artificial, and a lack of it is the natural state of things. It's our baseline for judging how good a copyright system is: does it produce a greater public benefit (more works created and published and unrestricted) than having no copyright at all? I think that some form of copyright (much less than we have now) would produce a greater benefit, but it's certainly possible that none would. So abolishment always has to remain on the table as a possible option.
Yeah. Unfortunately, most people base their actions on selfishness, and try to justify them later by moralising...
While it makes sense to revise some of the ideas of copyright for internet distribution - I don't think it makes sense to advocate the wholesale destruction of 'Intellectual property' as a concept. I don't believe that cheapskates and freeloaders should define public policy.... But then, isn't that the point of copyright - to reward those that contribute to society, and hence hopefully encourage more to contribute.
Sadly, you sound selfish to me. But don't get me wrong; that's perfectly fine.
Copyright is based on selfishness. The public is greedy; it doesn't care about authors for their own sake, it only cares about having more works created and published, and having those works for free, sans any kind of restriction or protection, so that it can do what it pleases with them. Copyright is simply a policy to try to satisfy that greed, by stimulating creation and publication, with as few restrictions as possible, for as little time as possible. If the benefit to the public of the stimulus is outweighed by the harm to the public of the restriction, it isn't in the public interest.
There's no intent to reward authors at all. The idea is to exploit their selfishness so that they'll do things -- create and publish works -- that are in the public interest. Copyright is no reward; it's a bribe. And it's not meant to be a generous bribe. If an author would create and publish a work in exchange for a 5 year copyright, it would be idiotic to offer him a 6 year copyright; it'd be idiotic, even if the author would prefer it.
So basically, we have a system that is geared around public selfishness, but with a recognition of the fact that immediate gratification might be quite weak, and that a delay can produce vastly greater results (like allowing cattle to mature, be milked, reproduce, and then be eaten, instead of having lots of veal but causing cows to go extinct). It functions by exploiting the selfishness of authors, who in some cases will not create and publish works without a bribe. (Those that would create and publish anyway don't deserve to be bribed, obviously)
Selfishness is the very heart of copyright. It's a system that works best -- for the public, I don't care about authors -- when cheapskates and freeloaders administrate it, since we want to maximize the net public benefit. Generosity would interfere with that.
Your position is understandable as an author; you are selfish, and want to increase what you get, regardless of the effect on the public. You wouldn't respond to copyrights at all if you weren't, so no one is upset with you. It's just important that we ignore you for the most part, and only give you the bare minimum that it will take in order to get you creating.
Without control over similar designs, do architects stop designing houses?
You might want to look at 17 USC 102(a)(8) and the corresponding definition at 101. But do bear in mind your question, and then really, really wonder why the hell it needs to be there at all! It's quite recent, having been added in 1990.
But that's a completely different algorithm than just running the compressor a second time -- different inputs will yield different outputs.
I know. And it's probably not productive to reverse the codec in that fashion. I just wanted to point out that that -- as opposed to lossily compressing already lossy data -- is possible, if impractical.
If you're referring to fair use, that's for purposes of criticism, not for purposes of changing devices. I'm not aware of any right of yours that DRM abridges.
No, fair use is for fair uses. Criticisms can be, but are not necessarily, fair uses. However, that's nothing special. Anything at all can be, but isn't necessarily, a fair use. News reporting, and educational uses are often, but not always, fair. They're not criticism, however. Wholesale copying (e.g. time shifting from the Sony case, space shifting from the Diamond case) is sometimes, but not always, fair, and it's not criticism by any stretch of the imagination.
I think DRM is a stupid and annoying waste, but I don't think I have some sort of right to prevent them from trying it;
I agree. However, I'm sure you'll agree that we can try to entice the users of DRM to refrain. I think an excellent means of doing so would be to not grant copyrights, or revoke already-granted copyrights, on any work that is published by, or under the authorization of, the copyright holder, with DRM in use.
Naturally, they'd be free to use DRM and forgo copyrights, but I suspect that the legal protections would be more attractive to them. Especially if we also set up a government funded program for aggressively breaking DRM systems and then freely distributing the works, which would be in the public domain, per the measure above.
Slashdot Mirror
Lawyer records are similarly protected, except that a lawyer has an ethical obligation to report an ongoing crime (eg if his client tells him he plans to kill the informant).
Actually, it depends on the ethical rules in the jurisdiction. For example, in my jurisdiction, I can choose to disclose that kind of information if I want to, but I am not obligated to. Obligatory disclosures here are extremely limited, and are generally meant to ensure that the attorney himself does not participate in the crime that the client is perpetrating. Perjury by the client is the typical example: if the client is perjuring himself, the attorney has to try to withdraw from the case (or not take the case -- at what stage this occurs is a factor), and must make very carefully limited disclosures only to the extent necessary to manage the withdrawal without causing prejudice against the client.
OTOH, if I were to learn of misconduct by another attorney or a judge, I would have to report that.
I suspect that there is similar variation in the standards for patient confidentiality in the medical field, but I don't know.
Intent is not difficult to establish in these cases.
Intent is irrelevant. Copyright infringement is a strict liability offense; mens rea is not a factor at all.
How do you suggest they protect their intellectual property rights
Oh, I'm not very interested in that side of things. I think that the better answer is to create an exception to copyright so that natural persons acting noncommercially can do anything, and it isn't infringing. The copyright holders still have copyrights, it's just that fewer things are copyright infringements.
Que the people suggesting that they should just give up all legal protections for their property, and thus there's no crime... just like there'd be no theft if we all owned everything equally.::
It's 'cue,' not 'que.' And the thing is, I recall Prohibition, where people suggested that a good way to get rid of the crimes of making, distributing, possessing, and consuming alcohol, as well as much of the criminal activity that was supported by people who violated the Prohibition laws, was to make alcohol legal once again. As it happens, it worked pretty well. Sometimes, when social norms and the law are in disagreement, the norms need to change, as happened in the civil rights movement; but usually, it's the law that has to change, since the law should serve the people, including their norms of behavior. Most people do not find noncommercial infringements by natural persons to be unacceptable. Lacking any very good reason to act contrary to that, the law should comply with those norms. OTOH, most people do somehow manage to distinguish copyright from the unrelated fields of real and personal property, and can support reform in the former and nevertheless be content with the latter. Go figure!
(though you can recover actual damages, too, if you can prove them and jump through other legal hoops)
Not 'too,' but 'or.' The plaintiff has to choose whether he wants statutory damages or actual damages and profits. He can't get both. And as I said, it's actual damages and profits, though I suppose a plaintiff could ask for just the first half, if he was so inclined.
If merely owning a copyright has no value, why do people value them?
Do they? With the terrible laws on the books, virtually everything that anyone writes or draws is copyrighted as of the moment they are created; I don't recall people valuing those copyrights all that much. I suppose if someone were pretty ignorant and easily impressed....
As for why we grant patents, consider this. If I had a working FTL drive and described it to someone at the wrong time, I wouldn't get a patent. If someone overheard me discussing notes with someone and wrote their own proposal, they'd get the patent.
No. In the US, at least, a patent applicant has a decent amount of time to apply for a patent (the deadline is 1 year after the invention is first publicly used or described, or is offered for sale), and the patent can only be granted to the inventor, if it's granted to anyone, not merely the first person to register. Where there are multiple people claiming to be the inventor, each seeking the patent, an interference procedure takes place where the various applicants have to dig up evidence to prove who was the inventor, and who was merely the runner-up.
Of course, the bad reforms currently being proposed would materially change this (if they're constitutional, which I doubt in some regards), but I'm opposed to them, and judging by what you've written, you probably ought to be as well.
No. You're proposing we help someone who is a snoop and good at filling out forms, over the inventor of the thing they snooped.
No, I'm not. Of course, if the real inventor never stepped forward, and no one else ever discovered that the applicant in such a case was not the real inventor, then it's hardly our fault that we were tricked into granting a patent to the wrong person. Fraud on the PTO is a serious offense, but it can be hard to know that it has happened.
Those who couldn't whined until we gave them handouts.
Well, no. You don't just get a patent; you have to invent something patentable, first. The PTO doesn't grant patents merely for whining about them. (Unless you discovered some sort of patentable method of whining, I guess)
If we believe the free market to be effective, then why do we need to restrict it for its own good?
We don't believe it to be effective. Patents, and copyrights, are government granted monopolies meant to help subsidize certain parties to do certain things. A free market is when everything is in the public domain; a specific invention or creative work is a commodity, after all, and should be priced accordingly.
If you want inventions, pay inventors.
It doesn't work that well, actually. It's been tried, historically, and it usually doesn't work out. The nice thing about the system we've got is that a patent doesn't incur a great financial cost to the public unless the invention is popular during the patent term. If no one cares (ever, or yet), then it doesn't greatly effect them. Contrast this with if we specifically paid bounties for inventing things, which would always incur a significant cost, even if it turned out not to be a worthwhile invention. Further, bear in mind that the bounties are almost always lower for desirable inventions than if we just gave the inventor a patent so that he could be a monopolist for years and years. Patents are a better incentive, and yet less of a burden on the public in many cases.
Well, it's the courts who hear the patent law cases, not the patent office.
No, the PTO is staffed with patent law specialists. Even the examiners have to be well-versed in it. And the PTO does have administrative courts with ALJs; they hear some patent law cases. The Article III courts, OTOH, have to be more general, as they hear civil and criminal cases of every kind. Even the Federal Circuit isn't all that great at these things.
In fact, I don't believe that the patent system even produces fewer lawsuits than the system I'm proposing.
Your system only produces lawsuits. It has no other mechanism for doing anything whatsoever. It's as though if I wanted to get a drivers' license, I had to sue the state for one, instead of going to the RMV. Or if I wanted to file my taxes and get my tax refund, I had to sue the IRS, instead of just sending the forms to them directly, and having them send me a check in response.
We have administrative agencies for a reason.
I literally just thought about it while I was reading the article, and threw it out there and see what other people thought about it.
I believe it.
This is the internet, and I don't have to be a patent attorney to post ideas about patent reform.
True, but it means that your ideas are less likely to be good ones than if you knew the policies underlying patents, the history of patent law, the current system, and the details of other current reform proposals. It's like voting; any enfranchised person can vote, but well-informed voters are preferable.
If you feel it's beneath you, just don't read it.
Well, actually, most of my posts here are with the intent of correcting mistakes that people have as to the law, particularly copyright law, which is my field. You made your suggestion, and I pointed out flaws in it. This was partially for your benefit, and partially to discourage other people from agreeing with you because they also hadn't seen the flaws.
Also any law written would likely exempt "obvious" and already-existing ideas
How do you know that they're obvious or not novel unless you require them to be published and set up a registry so that you can compare incoming applications with what's already on the books? Researching prior art in patent cases is already a huge pain in the ass; you'd make it far more laborious and expensive. Aside from benefiting patent lawyers et al, how is this good for the public?
Finally, any law could limit recoverable damages to the profits generated from the invention (though common sense dictates this already).
No. Common sense would be the damages suffered by the plaintiff plus the profits of the defendant which are attributable to his infringement. BTW, ideas are not the same thing as inventions, so would you please pick which of the two you are talking about. As it happens, inventions are a subset of ideas.
and have some kind of time-limit or useful lifespan.
Based on what? Without a registration, you have no idea when the plaintiff actually invented the thing. As far as you can tell, it would be as of the date the lawsuit was filed. Anything further would require pouring through evidence, which means that it may be untrustworthy (evidence isn't automatically true, as many laymen think, but rather it is that which is examined by the finder of fact for any truth it may contain. E.g. two witnesses with opposing testimony both give evidence, but that doesn't mean that either of them actually told the truth). A registry that anyone can look at, and which gives information as to invention dates is better.
It's especially better if people can infringe by independently inventing something. Without a registry to consult, they'd have no way to know that someone else already invented it. Had they known, they could have done something else (which would be of more value to society) and could have avoided infringing, instead of blundering right into a lawsuit they're sure t
Well, I'd call monopoly rights a reward, even if I still had to make them profitable.
Why? The monopoly can only funnel the economic value of the work to the copyright holder; it can't create the value. A work that is a flop is a flop whether or not it is copyrighted. Just being able to say you have a copyright on something doesn't seem like it'd have much of an incentivizing effect.
I know that the government doesn't give a copyright on lame poetry as a reward, but it gives the reward of a copyright to encourage the industry in general.
Well, not merely to encourage them, but to encourage them when, and to the degree that, it serves the public interest.
Not to discriminate, but discriminatory in that it selects only some members from a set.
Well, that's because we're not all that interested in encouraging mere good ideas. The ideas have to be valuable enough in several ways to make encouraging them worthwhile. For example, they have to be novel, since we don't want to encourage people to reinvent things we already have. They have to be useful, since non-useful inventions aren't very valuable. They have to be reduced to practice, since raw ideas also aren't that useful; an idea that there should be an ftl drive is nice, but worthless since it's just an idea. A working ftl drive is far more valuable, and worth encouraging, and so we require reduction to practice of some sort.
(political) rules (such as having to applying for a patent instead of just sharing the idea).
If someone is willing to share the idea for free, without making it known that he desires a monopoly, why should we give him a monopoly? I'm perfectly happy to thank him, but since the monopolies are unavoidably harmful, they should only be granted when they yield a greater good than harm, and when necessary. People who invent for free don't deserve patents, since they weren't necessary to encourage them to invent.
I was meaning something below the level of patentability.
You know a pass-through (glassless window) between the kitchen and dining room? What if you were the first person to design this, or these days, to chop out the entire wall to open up the area? It's not technological, and can be described easily to your builder who could do the same, and can be varied any number of ways while still serving the same purpose. I don't think there are any protections that cover this sort of thing.
They'd usually be unpatentable because they'd lack novelty or nonobviousness, I think. The pass through window seems to me like it would be patentable if it were invented anytime recently. Just because it lacks moving parts, or is essentially a negative space (i.e. it's not like a special kind of wall, it's a hole in any kind of wall) doesn't mean it's not patentable subject matter.
Someone was saying that we need copyrights/patents to spur innovation - my point was that they are tangentially related to rewarding innovation and societal advances.
Well, we don't need them, per se. There are lots of other incentives to create and invent that are unrelated to copyrights and patents. But they are a sometimes-useful artificial incentive to add to the natural ones. Copyright surely didn't cause Van Gogh's "Starry Night" to be created, but it probably did play an essential role in "Die Hard."
In any case, though, no, they aren't a reward for improving anything. An copyright on a piece of Vogon poetry is just as much a copyright as a copyright on anything else. So long as the work is eligible, all copyrights and patents are the same. It is the market that rewards those who hold the rights to the works and inventions that the market values the most. The rights are just a funnel to ensure that those rewards go to the rightsholder, and not someone else.
This to illustrate my claim that we don't give these out to help the world or encourage invention (or we'd give them to people who do neat things, without restrictions on what accomplishments can be rewarded). Clearly they're just a bone to people doing specific things, in specific industries. Arbitrary as I said. Corporate welfare for the industries with lobbyists.
No, not if the system is working. Which isn't to say that it's working all that well right now. But they are meant to help the world, by (in part) encouraging certain kinds of creation and invention. Reinventing the wheel is not all that helpful, so novelty is a condition for patentability. Things that don't work are not helpful, so utility is a condition, etc. The restrictions are to encourage the right kinds of works and inventions, not to discriminate amongst the recipients of the rights.
Re: architectural works, it seems like you should be able to tour a building with a copyrighted design while taking detailed notes to have your architect design someone exceedingly similar. Like reading LotR and saying "Small weak hero, king of dying race, elves, unspeakable evil in attractive wearable form, etc..." to a ghost-writer who creates something with the same essential elements.
Yeah, you can do that. There's no bright line, though, between the idea and the expression. Go too far to one side, and people can unjustly copyright ideas merely for having expressed it in a single form. Go too far the other way, and someone can print their own DVDs of Star Wars just by changing a few names here and there so that it's not a 100% exact copy. So you have to be cautious.
Why would Slashdot claim that I own the comment I've posted here?
You've got me. They're often wrong. For example, my comments are in the public domain, and people frequently post works that they don't have rights to.
I suspect that they were trying to say that they don't make any claim on what people post here. If so, they could have worded it much better.
No, my gripe is federal regulation. I don't like the way that people have to submit an application to the patent office in order to have their intellectual property protected.
One important note here: It is the federal government that grants you a patent in the first place. You certainly don't have any exclusive rights merely for having invented an invention. If you don't like the US doing it, I suppose the several states could each run their own patent office. However, past experience shows that they'd do a terrible job; that's why the federal government has many of the powers it has to begin with, including the patent power.
In any event, it serves some other useful purposes. First, a database of inventions is a good source of prior art, if we care about novelty and nonobviousness. Second, registering and publishing inventions is a good way to put the rest of the world on notice that they exist and that someone has made a claim as to them. It's rather like how there are registries for land records, lest multiple people have conflicting claims to the same land and no good way to determine who's right. Third, since the power to grant patents comes from the consent of the governed, and since the government is meant to act in the way that best serves the public interest, why should the rest of the populace consent to giving you a monopoly over us, in the form of a patent, unless you abide by the rules that we've set up to benefit us? We have a right to be self-interested too, and while our interests and yours can coincide at times, they are different.
It seems that any patent worth having eventually needs to be defended in court anyway. So why not just skip the patent office?
1. The courts are bad at this, and the PTO specializes in this. 2. The courts have more important things to do, and the PTO doesn't. 3. The courts are already very busy, and in order to get on with #2, it would help if they weren't so much busier. But this is the PTO's business. People already complain a lot about the PTO not doing its work properly so as to reduce the number of patent cases in the courts.
Exactly, so why should people take out patents on them?
As it happens, the example I gave, while an idea (and therefore protectable under your proposal) is not an invention, and therefore not patentable. So I couldn't get a patent on it if I tried.
When your case goes to court, you will need to present evidence that the party you are suing was aware of your invention, and used your work to his own benefit without your permission. Obviously, if you don't have any proof, and discovery doesn't turn any up you will not be able to prove your case. This is how civil court works now, so it's not outlandish in any way.
So you're saying that there will be an originality requirement for patents? That's new. The way it works right now, if Alice invents something and gets a patent, and then Bob independently invents the same thing, without actual knowledge of Alice's work, then Bob cannot get a patent on the same invention, and in fact, is infringing if he makes or uses it. Actual knowledge is irrelevant; he has constructive knowledge. So I think you're misinformed about the current system. That can't help you make good suggestions for reforming it.
One person would be the first to bring a viable product to market.
Make up your mind: first you said you were protecting ideas, and now you're saying you'd protect reductions to practice. They are totally different.
Your case has to hold up in court, it can't be an outlandish claim that no jury or judge would accept.
Well, you do know, right, that even today, copyright terms are set depending on the kind of creator? Works that are created by a natural person have life+70 terms, and anonymous/psuedonymous works and works made for hire have the shorter of either 95 years from publication or 120 years from creation. (There are a few variations on this for more specialized cases; the rules are not a model of simplicity)
So if, for example, Alice creates a work that is not a work made for hire, and then sells the copyright to BobCo, the copyright term would still be Alice's life+70. It doesn't change just because the copyright holder does.
So I think that your objection is basically unfounded.
Of course, I would prefer a flat term of years. Say, renewals every 2 years for a maximum of 24 years (i.e. the first term and 11 renewal terms), except for some kinds of work (e.g. computer software) which might have fewer renewals allowed. There's no good reason to have terms based on the life of the author. Terms should be as short as possible while encouraging the creation and publication of as many works as possible. Since in the vast majority of cases where there is copyright-related economic value to a work (which itself is rare), that value mostly comes in the first few years, if not earlier, longer terms don't make sense. Further, they add unpredictability to the system, since no one can make plans around the latest date that the work could enter the public domain.
My point was that one of the main problems with the patent system - granting of obvious, broad patents that prevent others from doing common things they arrive at independently of the patent-holder's work - does not exit for copyright; and that may be the main reason why automatic copyright makes a lot more sense than automatic patenting the OP was suggesting.
Automatically granted copyrights do not make any sense at all; it's a terrible idea.
Copyrights are meant to serve the public good by encouraging the creation and publication of creative works so that they will enter the public domain as rapidly as possible. This means that works where the author would have created them anyway, and wasn't encouraged by the availability of copyright, should not be copyrighted; authors that are willing to work for free should not be paid, as it would be wasteful. Consider your post on Slashdot just now; would you have posted it, even if it wasn't automatically copyrighted? If so, why do I need to give you the costly, artificial encouragement of a copyright for something you would do anyway?
Likewise, if a work is not published and is not intended to be published, then the encouragement of copyright is not enough, regardless of whether it is automatic or must be applied for. It should not be automatically granted in that case, since the thing that we want to result from copyright (creation and publication) isn't happening.
If authors must apply for a copyright in order to get one, then the authors are are encouraged by copyright will identify themselves, for the most part, limiting the encouragement to those who need it. If publication is required as a part of registration (even if the publication is limited to copies that must be sent to the Library of Congress, where anyone can go to read them), then it has encouraged what we wanted as well. This works very neatly.
Also, the registration works like land and car registries: if someone wants to get in touch with the holder of the copyright (in order to make a licensing deal, for example), then there is a name and address on record. If someone is curious as to whether the work is copyrighted or not, the registry can help them know for sure. We have patent and trademark registries online for exactly this purpose. An online copyright registry is very much needed, and it's only really worthwhile if all copyrighted works are in it, because you can't get a copyright otherwise. It is also a traditional part of our American copyright law. It is only due to foreign influences and corruption that it has changed, just in the last few years. Stopping the mistake of automatic copyright and going back to how we usually do things would be welcome.
If we require copyright holders are required to re-renew every few years, or lose their copyright (patents and trademarks work this way; US copyrights used to have renewals from 1790 to 1978, so it's traditional), then the information in the database can remain current. More importantly, this works to limit the encouragement we provide to the amount needed. If Alice is encouraged to create and publish a work by 5 years worth of copyright, but Bob needs 10 years, then it is better to grant each the minimum they need, rather than to give Bob too few years (assuming he doesn't need an unreasonable amount) or Alice too many years. This is just the same as having an opt-in system where authors must identify themselves as needing, or at least, wanting, a copyright. This way they also have to indicate whether, after a few years, they still need, or at least, want, the copyright. Historically, most authors did not bother to renew their copyrights, which means that they were encouraged by one term, but didn't care about the second. So this too will serve the public good.
There is really no downside to this, and no need for automatic copyright, except for one very narrow circumstance. We don't want incomplete works which are still being created, or finished works which are being shopped around to publishers, to
How about restricting copyright to real live, breathing human creators of the work for their lifetime? There would be no selling, trading, for hire, assigning or inheriting of copyright. The originator can assign only commercial reproduction rights to one entity for an agreed upon time, not more than 5 years at a time. After 5 years the creator of the work may renew or not or make another 5 years agreement with another distributor.
Why? If an author wants to retain his copyrights, or only license certain rights for a short term of years, he is perfectly free to do so under the present system. If he wants to sell his rights entirely, who the hell are you to tell him that he cannot? Authors are not children, and you are out of line for proposing such a paternalistic system. Authors should be free to make whatever deals they want, which they can get, just like everyone else, in every field.
The main difference between patents and copyright is that, by definition, two different people cannot independently create the same copyrightable work
Yes they can. If Alice and Bob each independently create the exact same thing, then each one of them can get a copyright on it, and each can do whatever they like without infringing on the other. This is because copyrights do not require novelty, like patents do. It's unlikely, the more complex a work is, but the law does permit it. The main thing with copyrights is originality, i.e. whether the author originated the work. If Bob copied from Alice, then his work is not original, and he infringed. If Bob didn't copy from Alice, and really did independently create the same thing, then his work is original.
My main gripe with patents is that they use federal regulation establish intellectual property.
That's just a weird statement, right there. "Intellectual property" is a terrible phrase, which is deliberately meant to confuse people. But basically, if anything, it would refer to a patent (or copyright, etc.) itself, and not the invention the patent pertains to, nor anything which embodies that patent, such as a tangible machine. So you seem to be saying that your gripe with patents is that there are federal laws that provide for patents. Like I said, it's kind of odd.
I don't see why they can't just write a law establishing that you own your ideas, and that other must secure your consent or give you reasonable compensation before using them.
1) Ideas are more plentiful than air; why should there be ownership of them. There's certainly no scarcity.
2) Ideas are not really valuable, in the main. I have an idea that I'd like to fly around like Superman. I don't know how I would accomplish this, but if someone else figures out the hard part, why should I be able to demand payment because of my contribution?
3) Ideas are largely private. If you don't publish them for all the world to see, how would anyone know what was already out there, who came up with it, and when? If you do publish them, who pays for that?
4) What's 'reasonable'?
5) Ideas are generally unoriginal. If a hundred people each independently have the same idea, how is the conflict between them resolved?
6) Ideas are extremely broad. If I have an idea for a story that goes 'Boy meets girl,' or 'Man against nature,' then I basically get paid by every author and filmmaker in the world. Seems like quite a windfall for so little effort.
7) The transactional costs would be so immense that the economy related to ideas -- inventions, creative works, etc. -- would grind to a halt, causing dramatic harm to human civilization and progress. How could that possibly be a good idea? I'm reminded of the Golgafrinchans, who would surely love the notion.
8) It's just plain dumb. It doesn't even pass the laugh test.
Patents and copyrights are intended to prevent people from free-loading off of the work of others
No they're not! And that sort of thinking is what has screwed it all up!
They're intended to encourage free-loading, which is a highly useful and desirable activity. Why the hell should everyone have to reinvent the wheel, after all. Better to freeload off of the inventive caveman who came up with it. Think about how patents (and copyrights, until the system broke in the 70's) require publication. Think about how the terms expire (again, increasingly broken as terms grow longer).
The ideal world would be one in which as much public creative and inventive activity as possible took place, and there were no patents or copyrights, and everyone could free-load as much as they pleased. We can't manage that, it seems, but we should try to get close, with as much creative and inventive activity as possible and as much free loading as possible. We may have to trade one for the other, but they don't scale linearly (year one of a copyright is worth far more than year one million, even though both are just one year long), so we can get gains in excess of costs, if we're careful.
Just something to think about.
If you had, you wouldn't of bothered to make that post.
I'd honestly kind of like to create a government based on the "tyranny of the informed"---a direct democracy in which everyone votes every Saturday. ... The public votes for ten minutes.
You honestly don't want observant Jews (or people who work on Saturday, and can't spare the time to sit in front of a computer for hours for the entire process, or the specific ten minutes for a single issue) to vote? That doesn't sound encouraging.
Ultimately, I don't care for it. IMO, governments draw their legitimate authority and power to govern from the consent of the governed; thus, I think that anyone who is subject to the authority of a particular government should be enfranchised. Whether they're informed or not is irrelevant; the government is equally the servant and creation of all of its people, so it must behave equally toward them. To discriminate amongst them on any basis would be to unjustly govern the uninformed without their consent.
However, if you designed the best layout ever and optimized traffic flow, even if it revolutionized house layouts, you wouldn't get any monopoly rights or rewards.
Well, no, that's incorrect. A copyright wouldn't protect that, but a patent could. Remember, that the various rights schemes, such as copyrights, patents, and trademarks, don't overlap in what they protect, but that they may protect various and different aspects of a single object. E.g. an arcade game might have patentable gameplay and parts, copyrightable software and art, and trademarkable names and logos.
I mainly meant this to illustrate that we don't grant these rights to encourage creation, or we'd give them for actual creations and revolutionary ideas.
Copyrights don't protect any kind of ideas. They are, however, meant to encourage the creation and publication of creative works. Well, unless the system has been corrupted in some way.
Given that architecture was a thriving field prior to the passage of the AWPA, and that it doesn't seem to be thriving even more than it had been, nearly 20 years later, it is obvious that copyrights for architectural works are a failure in that they have not encouraged the creation and publication of architectural works. It's other things -- the health of the housing and real estate markets, the need for new office space, the available money for public buildings, etc. -- that control that field. Since it has no beneficial effect, and since any copyright inevitably has a detrimental effect (which is only tolerable so long as the benefit outweighs it), the AWPA should be repealed, and copyrights for architectural works should be voided. It was a stupid idea at the time, and it's a stupid idea now. If it ever stops being a stupid idea, we can think about re-enacting it.
btw, what is the standard for derivative works in architecture?
Same as for anything else, with the caveats of 17 USC 120 and the noncopyrightability of "individual standard features" from section 101.
Blueprints were traditionally protected as graphic works, just like paintings. The structures described in the blueprints were not protected however. This changed, with the Architectural Works Protection Act of 1990 (yet another horrible thing added to our law due to our joining the Berne Convention); now, not only are blueprints doubly protected, but the buildings themselves are copyrightable as well. Some architectural features may not be protected, but some are, and of course, entire structures are as well.
In one interesting case, a builder copied some plans, and unlawfully built the house described therein. The copyright holder sued for a permanent injunction against the homeowner ever selling the house, since it would be an infringing distribution. (First sale doesn't apply to unlawfully made copies)
but, in the US, copyright is a CONSTITUTIONAL right
Ooh, too bad. No, you're wrong, and it's sad to see that in someone who managed to cite it properly.
The clause is merely the granting to Congress of one of its powers. There are plenty of such powers: the power to borrow money, to tax, to spend, declare war, have a navy, etc. Congress isn't obligated to grant copyrights, it is merely empowered to. Whether or not it does grant copyrights depends on whether or not it feels like doing so. The Constitution places a few limits on what those copyrights can be like, but otherwise, the choice is entirely in the hands of Congress. They are well within their authority to abolish copyrights altogether. That would be perfectly constitutional.
So I think it's wrong to think of copyrights as a constitutional right, as that term is generally understood. No author is guaranteed by the Constitution to get a copyright. He can't successfully demand one if Congress is unwilling, just like how if Social Security (an exercise of the spending power) was abolished, my grandmother couldn't force the government to continue to send her checks.
It even predates freedom of speech in the US Constitution.
Not in any meaningful way, it doesn't. The Constitution was written without guarantees of civil liberties. The federalists said that it didn't need them, since it was obvious that those rights were protected anyway, and that explicitly listing any would cause people to wrongly think that only the enumerated rights were protected, which wasn't anyone's intent.
But they couldn't get the Constitution as-written adopted by the states without promises that it would be amended to include a Bill of Rights. Since those involved were pretty honorable, it was promised that this would happen, and the promise was enough for the anti-federalists to come around. And indeed, shortly thereafter, a Bill of Rights was written and mostly became law. (There were 12 proposed amendments, 10 of which were adopted, one adopted just recently after collecting dust for two hundred years, and one lying around that is unlikely to ever become law, but which is still pending.)
So it is generally considered that free speech and copyright exist at the same status. And since we have a last-in-time rule in the US, if this weren't the case, then the First Amendment, having come after the Copyright Clause, would be considered to render the latter inoperative. So I imagine you won't want to make a fuss.
It is one of the few times that the Constitution actually speaks to what CONGRESS is supposed to do.
The Constitution no more suggests that Congress should enact copyright laws than it suggests that Congress should declare war. It merely allows Congress the opportunity to do so. (And only because the states made such a hash out of it, which is practically the reason for our entire government!)
When the Constitution wants Congress to do something, it is clear about it, and uses the word 'shall.' Such as "The Congress shall assemble at least once in every year...." As a result, if Congress failed to convene one year, they'd be acting unconstitutionally. (For all that it would matter; I can't see how that's anything other than a political question.)
Really, if you're going to invoke the Constitution, would it trouble you so much to read the thing?
"All men created equal..." is an equally artificial concept.
No, that one's about right, I think. Plunk anyone down on a desert island, and they'll probably get by about the same. Certainly none of them, as tabulae rasae, would have a great advantage over another. It's human societies that introduce material inequalities.
"The right to life, liberty, and pursuit of happiness..." likewise. The "natural" order of things would be the survival of the fittest, with the strong taking what they want whenever they want and the weak digging among the scraps, or doing without entirely.
That's right.
And here's the thing: Since that would not be a very good society, and since we can imagine that there are better ones, we can work to create a better society which is more pleasing to those who live in it. If such a society is possible, and better, then it ought to be implemented. Further, the society which is best for the most would be the one to pursue, where multiple options are available. If, however, no better society than the natural one is possible, then the natural one is the best you've got.
Likewise, there is no natural copyright, but if a copyright system were possible which more greatly satisfied the most people (i.e. the public at large), then it would be worth implementing, so long as the cost of doing so didn't outweigh the benefit, and so long as it remained better than the natural alternative. Further, the one which most greatly satisfied the most people for the least cost to them would be the best. If this is possible, it ought to be done; if not, then no copyright at all is the best you can manage.
And this is exactly what I have said. As it happens, I do think that there is some copyright system that is better than none at all, but no copyright is the baseline against which we must measure any copyright system, and is a valid alternative, should it turn out that we cannot come up with something better. Our present system is not the best possible, I suspect, and I sometimes worry that it is not very far from being worse than none at all.
but the founding fathers recognized the need for protections and also the need to encourage and promote the development of works of art and science.
They didn't recognize the need for it, they felt that it might, or might not, be useful. That's why neither copyrights nor patents must be granted, but why the government merely has the power to grant them, or not, as it sees fit. Also, most of them likely didn't care one way or the other. Only a few of them were concerned about the matter, and even they had bigger things on their mind, most of the time.
Then again, the current system encourages the production of thousands upon thousands of works each year, all produced "on spec", and all available to you and I to enjoy for an infintesimal fraction of the costs of creation and production.
That's not good enough. The public good consists of having works created, published, and not copyrighted. Reducing copyright protection, in scope and length, is to the public benefit. If fewer works are created as a result (which would be a surprise, for even very large reductions, the system is so bad right now), but there is proportionately greater freedom with respect to those works, then it can still be an improvement. The idea is to get the most works possible, for the least protection; not the most works, period.
What system do you propose that's "fair" (another artificial concept) to content creators and consumers alike?
I'm not interested in fair, and I'm certainly not interested in what authors want. I'm interested in the public interest only. Authors are of no concern, save for how they might affect the public interest. Does a dairy farmer care about the comfort of his cows? Only if it affects the milk. That's why cows live in barns, and not palaces.
That's guaranteed to make the same amount of work available, if not more?
As already noted, I don't care
It shouldn't be too short a time span, though, otherwise publishers could simply wait until copyright expires and then exploit a work without compensating the author at all.
The thing is, they're actually unlikely to do so!
Remember, a copyright is really not all that valuable to an author standing alone. The value of the copyright comes from selling or licensing it to a publisher, who then in turn exploits it to make money from the public. Publishers dearly value the period of exclusivity that a copyright provides, and generally loathe the idea of publishing public domain works that anyone can publish. Public domain works aren't very profitable to them; due to competition, they have to be priced at marginal cost plus a very modest profit. These days, that can be effectively zero. That's great for the public, but not for publishers.
So I wouldn't worry about that at all. Short terms would, if anything, encourage publishers to publish works more rapidly, instead of sitting on them. Look at Disney -- they publish something for a couple of years, then stop, to rebuild demand. If anyone could churn out copies of their movies, that tactic wouldn't work for them.
IMHO there needs to be some way for an artist to prevent others from stealing their works - at least for a certain amount of time to reward them for creating the work in the first place. Otherwise, we'd be back in an era where only the idle rich can afford to invest time into creating art.
No, authors should never be rewarded. Only incentivized, and then only where it serves the public good. Further, there was plenty of art prior to the existence of copyright, and much of it didn't involve the 'idle rich,' either as creator or patron. Really, it's more an issue of the society and economy over all.
A position that--to be honest--is scarely illuminating.
I wish that were the case. Sadly, most people tend to forget this. It's important to bear in mind, since it means that selfishness is not a pejorative in the context of copyright policy. There's nothing wrong with it, and in fact, copyright only exists because one side is selfish, and only functions because the other side is.
As such, creating works for you to enjoy and ponder has to be worthwhile, otherwise, most any sane person with a house and family would simply do something else.
Sure, but minimally worthwhile. So long as the incentive to create (which is the sum of the incentive provided by copyright as well as other non-copyright-related incentives, such as fame, or self-expression) trumps the incentive of the author's best alternative it need not be one iota larger. After all, doling out copyright incurs a public expense. It should not be done lightly, nor unnecessarily. If an author will work for a pittance, it is irresponsible to give him, say, two pittances.
Further, your argument tends to imply that authors are interchangable cogs in the machine, another fallacy.
This isn't copyright's problem; this is a market problem. It is astoundingly improper for copyright policy to suggest that one artist is superior to another. That's a matter of subjective taste, and is not something we want the government involved in, at least, not here. For example, I think that Ayn Rand was a crap author who wrote crap; you seem to like her. Were either of us to dictate on a per-author basis, who should and should not get copyrights, the other would be rightly upset.
Thus, rather than pursue quality, copyright can only pursue quantity, assuming that the more works that are created, the more good works will be created; it's Sturgeon's law at work. By not directly compensating authors, and instead only giving them an economic advantage compared with others who would reproduce the same work, we let the market decide which authors are good or which are bad, or at least, which are popular and which are not, which hopefully is close to the same thing.
So no, I don't mean to imply that authors are interchangeable, but I am saying that copyright policy can't prefer one over another.
And unlike you, I have no problem whatsoever compensating them for their efforts.
Okay. In that case, I am prepared to write an absolutely terrible book that would never sell on its on merits. But, I am going to put a hell of a lot of effort into it. It will be like the Heaven's Gate of books. Do you plan on compensating me, merely because of effort?
I wouldn't.
Copyright is meant to serve the public interest, not to reward authors. It might happen to have an effect of rewarding authors, among other things, but that's really quite incidental. It's like dangling a carrot in front of a mule to get it to pull a cart; the carrot -- and the mule -- are just means to an end.
Why should I spend months or years researching and writing a book, if there's absolutely nothing to stop people from freely distributing it once its out there? Sure, some people are still going to writem but it'll be fewer, and I fail to see how our culture would benefit from that.
The public benefits from having more works created and published. The public _also_ benefits from being unrestricted with regard to works, so that they can be republished for minimal cost (rather than the monopoly prices charged by copyright holders), altered, etc. In an ideal world, we'd have both.
This isn't an ideal world, though, so we wind up trading a bit of the latter kind of benefit in order to get a more than proportionately larger increase in the latter. The idea is to get as close to that ideal as possible, so we look to maximize the public benefit: terms that are just barely long enough to encourage creation and publication, but by all means so short that they don't interfere much with the public.
completely taking away any creator's rights is not the answer, either
It can be. Copyright is artificial, and a lack of it is the natural state of things. It's our baseline for judging how good a copyright system is: does it produce a greater public benefit (more works created and published and unrestricted) than having no copyright at all? I think that some form of copyright (much less than we have now) would produce a greater benefit, but it's certainly possible that none would. So abolishment always has to remain on the table as a possible option.
Yeah. Unfortunately, most people base their actions on selfishness, and try to justify them later by moralising...
... But then, isn't that the point of copyright - to reward those that contribute to society, and hence hopefully encourage more to contribute.
While it makes sense to revise some of the ideas of copyright for internet distribution - I don't think it makes sense to advocate the wholesale destruction of 'Intellectual property' as a concept. I don't believe that cheapskates and freeloaders should define public policy.
Sadly, you sound selfish to me. But don't get me wrong; that's perfectly fine.
Copyright is based on selfishness. The public is greedy; it doesn't care about authors for their own sake, it only cares about having more works created and published, and having those works for free, sans any kind of restriction or protection, so that it can do what it pleases with them. Copyright is simply a policy to try to satisfy that greed, by stimulating creation and publication, with as few restrictions as possible, for as little time as possible. If the benefit to the public of the stimulus is outweighed by the harm to the public of the restriction, it isn't in the public interest.
There's no intent to reward authors at all. The idea is to exploit their selfishness so that they'll do things -- create and publish works -- that are in the public interest. Copyright is no reward; it's a bribe. And it's not meant to be a generous bribe. If an author would create and publish a work in exchange for a 5 year copyright, it would be idiotic to offer him a 6 year copyright; it'd be idiotic, even if the author would prefer it.
So basically, we have a system that is geared around public selfishness, but with a recognition of the fact that immediate gratification might be quite weak, and that a delay can produce vastly greater results (like allowing cattle to mature, be milked, reproduce, and then be eaten, instead of having lots of veal but causing cows to go extinct). It functions by exploiting the selfishness of authors, who in some cases will not create and publish works without a bribe. (Those that would create and publish anyway don't deserve to be bribed, obviously)
Selfishness is the very heart of copyright. It's a system that works best -- for the public, I don't care about authors -- when cheapskates and freeloaders administrate it, since we want to maximize the net public benefit. Generosity would interfere with that.
Your position is understandable as an author; you are selfish, and want to increase what you get, regardless of the effect on the public. You wouldn't respond to copyrights at all if you weren't, so no one is upset with you. It's just important that we ignore you for the most part, and only give you the bare minimum that it will take in order to get you creating.
Without control over similar designs, do architects stop designing houses?
You might want to look at 17 USC 102(a)(8) and the corresponding definition at 101. But do bear in mind your question, and then really, really wonder why the hell it needs to be there at all! It's quite recent, having been added in 1990.
But that's a completely different algorithm than just running the compressor a second time -- different inputs will yield different outputs.
I know. And it's probably not productive to reverse the codec in that fashion. I just wanted to point out that that -- as opposed to lossily compressing already lossy data -- is possible, if impractical.
If you're referring to fair use, that's for purposes of criticism, not for purposes of changing devices. I'm not aware of any right of yours that DRM abridges.
No, fair use is for fair uses. Criticisms can be, but are not necessarily, fair uses. However, that's nothing special. Anything at all can be, but isn't necessarily, a fair use. News reporting, and educational uses are often, but not always, fair. They're not criticism, however. Wholesale copying (e.g. time shifting from the Sony case, space shifting from the Diamond case) is sometimes, but not always, fair, and it's not criticism by any stretch of the imagination.
I think DRM is a stupid and annoying waste, but I don't think I have some sort of right to prevent them from trying it;
I agree. However, I'm sure you'll agree that we can try to entice the users of DRM to refrain. I think an excellent means of doing so would be to not grant copyrights, or revoke already-granted copyrights, on any work that is published by, or under the authorization of, the copyright holder, with DRM in use.
Naturally, they'd be free to use DRM and forgo copyrights, but I suspect that the legal protections would be more attractive to them. Especially if we also set up a government funded program for aggressively breaking DRM systems and then freely distributing the works, which would be in the public domain, per the measure above.