Well, it's not quite what I would suggest, but it's far from a terrible idea; in fact it is similar to how we used to do things only a few decades ago.
We should have a system of copyright where an author only gets a copyright if he publishes his work, registers for a copyright, deposits a copy of the work, and pays a token fee. And where the copyright only lasts for a few years before the author must renew the copyright (if eligible, depending on the kind of work and the number of times it's been renewed already).
We know that this would work well, since it's more or less what US copyright law did up until 1978. We know that the goal of copyright is to serve the public interest by encouraging authors to create works they otherwise would not have created, but having those works minimally protected and in the public domain as rapidly as possible. This serves this goal well, since probably only authors who were encouraged by the availability of copyright would bother to undertake even the very simple steps to procure one. Further, if an author was encouraged by a shorter duration than the maximum allowed, he would likely fail to renew (as usually happened historically), getting that work in the public domain much sooner than if we foolishly gave him as long a term as we could without any involvement on the author's part. It gets copies preserved in the Library of Congress, which can help to ensure the survival of the work over time (especially once it enters the public domain). And requiring him to identify the work claimed, and himself, and his contact information, aids in the public knowing what is and isn't protected (like the title system for land), who to talk to about it, and where he can be reached if you need to license it, etc.
Sure, some amateur authors would create works without regard for a copyright, and the works might turn out to have been valuable, but so what? The system isn't meant to help them at all costs, it is meant to encourage them to create what they would not have created sans copyright. Your Chocolate Rain kid probably wouldn't qualify. That's good, really. Why should the public pay for the cow if the milk is free? Copyright isn't meant to help authors, or be fair to them; it's meant to be totally one-sided in favor of the public, but sometimes the thing that is most in the long-term public interest isn't what is in the short-term public interest.
(Plus of course, only an author can claim a copyright on his works initially; it's not as though anyone could take a public domain work away from its author, who could also try to exploit it for money; it's just that the author cannot exclusively exploit it)
No, it's just not infringement at all. Bad precedent aside, the statute requires distribution, not merely making available. (Of course, if the courts were really going to pay attention to the statute, they'd see that distribution isn't possible on the Internet anyway; it would have to be public performance or display)
Well, the law is quite clear that no mental state has to be shown for civil copyright infringement. Even if you infringe purely by accident, and you always acted as reasonably and as carefully as possible, you can still wind up on the hook for infringement. So the court in this case is not going to find otherwise, but it would be a good part of a comprehensive legislative reform. (Though I think an intentional standard is somewhat high)
The legal definition of copying is so ridiculously broad that I must admit I can't think of any way for a transfer, and therefore a download, to not be copying.
Yes, that's the MAI v. Peak precedent at work. There, the court found that copying software into RAM in order to run it was reproduction, and therefore infringing. (17 USC 117 didn't apply in that case, and remains horribly limited and nigh-useless to this day)
Suppose that person A owns a device that has access to data and which can read envelopes and postcards, and in response to various codes on a postcard, will burn data to a CD and drop that in an outgoing mailbox. Person B sends a postcard with a code that asks this device to burn a CD with data that happens to be copyrighted and not by A or B. (Really, this is just a mechanized version of networking.) Has B done anything wrong?
There's no difference: A is distributing via the machine, and B is activating the machine, and so is liable for the making of the copy. The closest you can get to this and not get in trouble is the ISP who might own the server A is using, but which exerts no control over it, doesn't watch it, doesn't derive more profit from unlawful uses than lawful ones (as might be the case if it was using the unlawful traffic as a draw for its advertisements, say) and is basically outside the loop save for providing the use of the machine. In the Marobie-FL case, IIRC, the court likened it to the owner of a xerox machine that anyone could use; the user was liable for its use, rather than the owner. Of course, it's mostly a moot point now, as the 512 safe harbor protects ISPs with far greater certainty than the caselaw did.
For the other, suppose A sits on a park bench to read a book. Unknown to A, it happens that B has a security camera recording the scene. And unknown to B, A happens to hold the book such that the camera picks up the text. In a similar scenario, suppose A likes to read aloud outside, and her neighbor, B, is recording a little bit of home video at the time. In the recording, B's dog is performing tricks, but A's voice is audible. Guess everyone is guilty of copyright infringement.
No, just B in that case. This has to do with public display, and public performance, but even if you could prove a prima facie case against A, which I greatly doubt, there would be an excellent fair use defense.
Just to say that with a narrower, saner definition of copying, it is not at all clear that downloading would be copying.
Well, I think it would be; it's hard to think of what that definition would be in order for it to still be fair and reasonable. But we can add exceptions -- e.g. "temporary copies on a computer are noninfringing." It's like nested if-then statements for what is not infringing, what is infringing, what is infringing but it turns out is not infringing, etc.
So? The objection was that any given person should not be able to enjoy the advantages of a work without compensating the author. That isn't happening where used copies are involved; many people may enjoy the work, but only one ever compensated the author. And continuing enjoyment of the work does not necessarily require continuing possession of the copy. E.g. if you sell me a copy of a very funny joke, and I sell it to someone else, I can still remember the joke, and can still tell the joke to family and social acquaintances, all without running afoul of the law.
So I think that there must be something askew with your claim. Since the data seem to not agree with you, can you think of an alternative hypothesis that works better?
I would suggest this: Copyright is amoral. It is no more right or wrong to respect or infringe upon copyrights than it is to jaywalk across an empty street or paint your house a color that is in violation of the local zoning ordinances. Copyright is utilitarian; we should only have it if it is convenient, because it is convenient, and only to the extent that it is convenient. In a democratic society, where people's right to free speech is protected, and government draws its legitimacy from the consent of the governed, convenience must be public convenience. The issue isn't whether authors, as a small, special interest group want copyright, but whether copyright is good for everyone in society as a whole, and if it can be at all, precisely what, and how much, copyright would best serve society.
Yes, I find that an excellent tool for convincing people as to why we need to radically overhaul copyright law is to tell them what copyright law actually consists of. People assume that it behaves more or less as they imagine it to be. I would prefer that we fixed it so that that were true, rather than to continually surprise people with just how draconian it really is.
We need more clarity on terminology here. It is copying that may be illegal, not downloading. The law is question is called "copyright", not "downloadright". Here's a definition
Downloading is merely a form of copying (which, by the way, is not the only thing that copyright is concerned with), in much the same way that beheading is a form of homicide.
Here is the definition of 'copies' in US copyright law:
"Copies" are material objects,... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
When you download, you do not actually transfer anything; you copy. If Alice has a file on her hard drive, the hard drive itself is the material object in which the file is fixed. When Bob downloads the file, not only does the file not evaporate off of Alice's computer, but the hard drive doesn't move itself down the ethernet cable. Instead, Bob is informed as to what the contents of the file are, and he fixes that information into his hard drive, thus making a new copy. (Also, n.b. that the courts are agreed that RAM also can qualify as a medium which can be a copy. The leading case is MAI v. Peak.)
There have been memory technologies that cannot maintain data after a read, that is, destructive read.
That doesn't actually matter. The question is not how many copies existed prior to the download, and how many existed afterward. The prohibition is not against your causing a net increase in the number of copies, it is against making any copies at all, regardless of the disposition of previously-existing copies.
Suppose person A burns a copy of some data to a CD, then mails that CD to person B. (And suppose that the data is copyrighted and person A didn't have authority to make the copy.) Is person B liable?
No, but then, he's also not a downloader, nor has he made a copy of anything.
Assuming person B is innocent in the mailed CD scenario, why should it be any different just because the transfer occurs over the Internet via a P2P program rather than the postal service? It is person A who made the copy, who maybe could control whether the copy could be made, and who allowed the copy to be made.
Because when B downloads, he is the copier. A is independently liable for her role. The courts would deem her a distributor, and distribution is yet another kind of copyright infringement. Certainly she had a role in B's copying, as she was the source from which he copied. However, that doesn't change the fact that he is the one who caused the copy to be made, having requested the file. A did not force B's computer to do it, after all.
I think I have made reasonable arguments here,
I'm not debating what the law should be, I'm telling you what it is.
I did not see that word "download" anywhere in the law. (Copies aren't copies if a phonorecord? Weird.)
Try the caselaw. The court in Napster was quite clear in that downloaders infringe the reproduction right. Napster was brought down, not because it infringed itself, but because it assisted in the infringements of others, namely, the downloaders and uploaders using the system. Also, while copies and phonorecords are different things for historical reasons, they're the same for the purposes of this discussion.
From what I read, "fair use" was not used as a defense in that case, and it should have been.
First, I like to cite the Intellectual Reserve case because it is concise and clearly written and follows precedent. It is not the only one out there. You might want to look at the Napster and Grokster cases, if that's what you're after. Second, fair use is irrelevant; it's a defense for a specific instance of infringing activity, not for a type of infringing activity. Each case in which fair use is invoked must be looked at on its own merits
Okay, so you are saying that it is wrong to "tak[e] advantage of the work and investments [sic] of the company" that creates something, as a basis for why copyright infringement is wrong.
In that case, 1) do you think it is wrong for me to buy a used book without paying the author? 2) Do you think it is wrong for me to use public domain works? Since both of these things are perfectly lawful and encouraged by the law, please explain why the law does not, apparently, follow your reasoning.
There is, actually. When you download anything, you necessarily make new copies of it. Making copies of copyrighted works without authorization or an applicable exception is infringing. Take a look at 17 USC 106(1), the definition of the word 'copy' in 17 USC 101, and the Intellectual Reserve v. Utah Lighthouse Ministry case (in which the court discusses how it can be infringing to browse web pages that, unbeknownst to you, someone else put online unlawfully).
And, no one can tell for sure whether some data is copyrighted if they can't examine it.
That's irrelevant; copyright is a strict liability statute. If you infringe, then you infringe, even if you didn't mean to and could not have acted more reasonably.
Your uploading argument is even more fantastic. While you may know what you'd like the law to be, you clearly haven't got much of an idea of what it actually is.
The Constitution is very specific as to what limitations apply to what parties, addressing "the Congress" and "the people".
Yes, although these are subject to later amendment. Just because the First Amendment deals with the federal government, that doesn't mean that the Fourteenth can't say that it also applies to the states.
This is covered by the eighth amendment - not by "incorporation". The eighth amendment is open-ended: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This limit applies to any governing body under the constitution - both federal and state.
Actually, that didn't apply to the states, and was ultimately incorporated. Remember that at the time the Bill of Rights was written, it wasn't interpreted as being binding on the states.
I asked where the Constitution explicitly says
Well, there's your problem. The Constitution doesn't explicitly say all that much. We have to read a lot into it to make it work. For example, does the First Amendment guarantee that the federal government will not prohibit people from reading? It doesn't explicitly say so (and the Ninth Amendment doesn't guarantee any rights, it just says that they may exist) but since the right to a free press would be quite meaningless if the government allowed anything to be printed, but prohibited any of it from being read, there must be an implied First Amendment right to read.
I can explain what it does say (affirms of the right to jury trial and legal representation in state matters). But what isn't there just isn't there.
Actually, you can have due process without necessarily having those things. Don't go claiming that it says something other than what is explicit, now. But what makes you think that substantive due process doesn't exist? Why do you think that (most of) the rights in the Bill of Rights do not fall under 'liberty.'
This simply seems to be reiterating rights found elsewhere - that the state cannot deprive you of these things without your day in court.
Well, actually you've described procedural due process; that there there has to be a fair method that the state has to go through if it is going to infringe on your life, liberty, or property.
However, there is also substantive due process (in both the 5th and 14th Amendment due process clauses; the former is the one that applies to the federal government); this is that the more important the thing is that they're trying to take away, the more important their reason for doing so has to be, and the more the means they choose to advance that reason have to actually advance it without being excessive. So, for example, if the government wants to imprison you for life because you jaywalked, and jaywalking is bad, even if they can't really show why it is bad, or what bad things would happen if they allowed jaywalking, then a court would rule against them. After all, it's not merely good enough to have a fair process for dispensing justice, but there has to be actual justice, rather than unjust punishments, laws, etc.
Substantive due process, then, has to identify various liberties (since that's usually what these cases involve) and determine just how important they are, and therefore just how important of a reason the government can have for infringing on them. Your right to have a child is more important, for example, than your right to litter. The government would have a very hard time arguing why you couldn't be allowed to have a child, but could quite easily show why they should be allowed to make a law against littering.
Incorporation builds on this logic. If due process requires that the states not unduly infringe on peoples' liberties, and some liberties have a lower bar for what constitutes undue infringement, then quite probably the liberties that were important enough to be mentioned in the Bill of Rights are pretty high up there. It's not precisely like this, but this is basically how you arrive at the idea of incorporation.
Anyway, if you still think that incorporation is a sham -- despite having been around for a long while, and pretty likely having been the intent of the framers of the 14th Amendment to begin with -- could you say why, instead of just asserting that it is?
That's true; you could eliminate copyright for the fine arts and it really wouldn't have much of an impact at all. Picasso didn't make his money selling picture postcards, after all. (Though he was known for dashing things off from time to time in lieu of cash payments)
But the reality is that copyright helps people earn livings.
But that's not a good enough reason. I mean, if you merely wanted to give money to authors, why not just dole it out, or give them a big tax break or something? Copyright is meant to serve the public interest, not to help authors. It just happens to help authors as a means to an end. It's not written in stone that we have to do it at all, though, or that the current laws are the best ones.
What if we could reduce copyright, thus yielding a great benefit to the public in terms of more freedom with regard to works, but without significantly reducing how much money most artists make? Wouldn't that be great? Well, we can do it, because current copyright law is so very far out of whack.
So how much money have you paid to the Shakespeare estate? Or the author of the Bible?
There is nothing wrong with people other than the former copyright holder making money from public domain works, and anyway, it's not that that person can't publish too. And it's especially good for the public, since the competition lowers the price to the marginal cost of the copies. Often that means free, these days. There's nothing wrong with getting things for free.
Removing long term royalties would make this next to impossible for writers.
No, not at all. It's not a bell curve; it's more of a long tail. Most authors make nothing from their copyrights (as distinguished from their works). Of the remainder, most make a pittance. Of the remainder, most make a decent amount. And so on until the handful left at the end make a whole lot of money. It's similar to the graph of people who play the lottery and how much money they win. In fact, the odds are even pretty similar.
Short term royalties wouldn't have much of an impact; for all but the smallest handful of works, nearly all the money is made within a few years. A nickel every six months for the next several decades is hardly going to support you.
Most writers would have to continue working at least part time jobs while getting a trickle of income from their newest works. That is not in the interest of the public at large, when the artist could be creating mildly successful works of creativity full time.
Actually, what is in the interest of the public is for the authors to create those works full time without the public having to pay for it. If we're going to have to pay for it (in the form of copyright, and the monopoly pricing that comes with it), then we merely want to get the most writing 'bang' for our buck. If we can get 90% as much writing done for 10% of what we're paying now, then that is in the public interest. The small number of higher priced writers may very well not be worth it. We may be better off without them.
It should be set up in terms of the author's life, plus a small bit of time past that
I completely disagree. Term lengths should be perhaps 2 years from publication, with varying numbers of renewals available, up to a maximum of around 25 years from publication (perhaps less). The public isn't served by supporting authors for life; it is served by having new works created for the least copyright cost. So long as authors will work cheaply (and they do, since most can't create works that have lasting economic value), we should pay them cheaply. It is wasteful to suggest otherwise.
Also the fixed terms of years means that authors need not fear death more than anyone else; it won't affect their copyrights. And this helps everyone else, by being able to build public domain publishing businesses with the expectation that various works will enter the public domain no later than some fixed date.
Well, the EU may deny it, with silly babble about droit moral and other such crap, but yeah, any legitimate copyright system is utilitarian. Otherwise it just doesn't work and doesn't make a lick of sense. We're up front about that in the US, we just haven't been living up to it lately.
But who's going to pay that X million? Nobody, that's who.
What if they offered to sell it for X million dollars, and I got together with X million of my close friends on the Internet, and we all chipped in one dollar. The whole deal could be handled by an escrow agent who would hold on to a copy of the work until the pre-set amount was met, and would then release the work, and deliver the money to the author. If enough money didn't get paid, then the author could retract his offer or reduce his price. Once the work was released, it would be in the public domain.
This isn't a new concept. Look into the Street Performer Protocol.
So instead they make lots of copies and sell them each for a much lower price.
Sure.
Of course, bear in mind that any work can be a flop, and never net the author one dollar. If he invests up front and publishes, then a flop can be devastating. Investors (if there are any) can try to control the author so as to produce a more popular work, but they're still guessing a bit since they aren't actually the audience.
If the audience is the investor, as described in the first model, then they can do a better job of making sure that the author does what they want. For example, instead of a lump sum of X million, it can be broken down into various sums as certain milestones are met. You can see the plot for X/10 million, and either continue to invest or pull out. You can see the first draft when X/5 million has been paid, and so forth. If the author hits a sour note, he'll have to fix it in order to proceed. This takes some of the risk out of the whole affair. The paying audience knows it will like the work, since it has been made to order. The author knows the work will sell, since he's been selling it in little chunks all along.
As authors gain a reputation, they might get more creative freedom. American Graffiti-era Lucas might get watched closely as he makes Star Wars. Star Wars-era Lucas might get a freer hand for Empire. Empire-era Lucas might not get supervised at all for Jedi. And then people have to start looking Jedi-era Lucas' shoulder lest he do something even dumber, like Howard the Duck, Willow, or the Star Wars prequels.
The problem that I have with this is when you purchase a song in the stores, you buy it on some type of media, LP, CD, cassette tape or others. I pay the royalty to the artist for the right to listen to that song on.
In the US, at least, no you do not.
You merely are buying the copy. Access to the copy (which is easier if you own it) is where you get the right to listen to it.
Copyright deals with who can make that copy, who can sell that copy, who can publicly perform the music on the copy; it does not deal with merely listening to it. Since that isn't the subject of copyright, the copyright holder has no exclusive right over that which he could possibly license to you in the first place. Attempting to do so would be as much of a fraud as selling you the Brooklyn Bridge.
The obvious flaw in your argument is that software becomes deprecated over time. Music, movies, and other entertainment IP doesn't.
Oh yes they do. A Tale of Two Cities was published almost 150 years ago. It was popular at the time, and has remained so. Now name the other ten or so best-selling novels released that year (which means they must've been pretty popular) and tell me if you've read them, or have meant to, or have even heard of them.
The economic value and popularity of all works (with very very few exceptions) declines over time, often very rapidly, within a few years, in fact. As a result, you only remember the very very few exceptions, and so you think that all works remain popular.
Well, it's not as though scarcity is actually desirable. If you had a Star Trek replicator, you could feed the world with it (after replicating up some more replicators so that everyone could have their own). It would destroy professional agriculture and animal husbandry, but we'd all be much better off. (Amateurs who didn't make a living by breeding new varieties of food would presumably keep at it, and might even be encouraged by the new ease of spreading their creations)
Well, it's pretty easy to copy creative works. We don't need a magic replicator; we've had the technology ever since we developed language. Writing made it easier, as did printing, computer technology, etc.
If we're going to restrict this, it needs to be for a better reason than merely because the restrictions keep certain people in business. That's no better than saying that we must let people starve in order to protect farmers. I think there is a valid reason to have some kind of copyright law (though probably not so much as we currently have) but you don't seem to have stumbled upon it yet.
Piffle. First, you could just keep going south; in Mexico, the term is life+100, IIRC. Second, the US has traditionally had good copyright laws. We royally screwed up with the 1976 Copyright Act, and the 1909 Act was certainly no prize, but it wasn't quite awful. Europe, particularly France and Germany, has been the home of outrageous and terrible copyright laws. In fact, a lot of the worst excesses of US copyright law are based on already-existing European laws, or were proposed as part of treaties in order to sneak them in (i.e. via the USTR and the Executive branch, rather than originating in Congress from the get-go).
When a book is published or a song is sold, who should get the artist's royalties after a short copyright expires? You know it'll just go into the publisher's pocket, even though we'd hope there might be a small price drop.
???
When the book enters the public domain, there is no more royalty for the author. But the publisher cannot, as you suggest, only slightly reduce the price and pocket most of what the author had been getting. The book is in the public domain, which means that anyone and his dog and start copying, publishing, and selling it without restriction. This means that the price of a copy rapidly drops to just barely over the marginal cost of the copy. A nice hardback with leather covers and good paper can sell for a decent price, but you can just as easily get a cheap paperback on newsprint for far far less, or just download it for free from anyone who wants to offer it (e.g. Google Books, Project Gutenberg).
So the price drop is a lot more substantial than you think, unless you are terrible at shopping for stuff and pay too much.
Because other people are making money off their work
That's not a good reason at all. Plenty of people make money off of public domain works, and no one seems to find it objectionable. In fact, it is intended that works should enter the public domain so that they can finally enter the free market (instead of being subject to a monopoly), and presumably people will make some money in the process.
I'm afraid your reason falls flat. Try again.
Music is a service.
No, the act of creating or performing music is a service. Music is the product of that service.
They expect to be paid for that service.
I routinely expect to be fêted by a bevy of beautiful women, and lavished with all kinds of riches and honors by the public at large. As it turns out, we don't always get what we want.
Should the Beatles (or michael jackson?) not have been paid by Nike for using their song as the foundation of a huge add campaign that may have generated millions of dollars?
Should Shakespeare have been paid by Disney when they based The Lion King on Hamlet? Should Shakespeare have had to pay whoever wrote the earlier versions of Hamlet that he based his on?
Should the stones not receive a dime for having their song as the title for CSI?
No; The Who did those songs.
Or how about all the artists whose songs were used in guitar hero, or American Idol? It's Ok for other people to get rich in part by your work?
Fine with me. Remember, those musicians (well, assuming that we're not talking about the ones who do the bonus songs; Harmonix has a lot of musicians working there) didn't create Guitar Hero. If we had left it up to them, that work would not exist, and we'd all be the poorer for it. I am not some greedy, petulant jerk who would spoil someone else's success merely because I had the opportunity to spoil it, and had been unable to do it myself.
Besides, as a member of the public, I want the most works created, and the fewest restrictions on works; slavishly doing whatever authors want -- particularly the established authors, who do tend to try to keep new talent from competing with them -- is not in the public interest. What's good for the RIAA is not what's good for America.
Why not require registration for all published works, with a token fee then? That way, anything worthless drops into the public domain immediately. Then have very short terms (say, 2 years) with many renewals possible, again with a token fee, so that if anything becomes worthless in the interim, it'll drop into the public domain shortly after.
Of course, it isn't really the money that matters (save to prevent people from abusing the system in much the same way that spam relies on email being basically free to the sender), but the effort of having to remember to fill in and submit the form. The form itself is quite simple, but history shows that most copyright holders don't bother with it. The US had a renewal system until 1978, and the majority of registered copyrights were never renewed.
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Well, it's not quite what I would suggest, but it's far from a terrible idea; in fact it is similar to how we used to do things only a few decades ago.
We should have a system of copyright where an author only gets a copyright if he publishes his work, registers for a copyright, deposits a copy of the work, and pays a token fee. And where the copyright only lasts for a few years before the author must renew the copyright (if eligible, depending on the kind of work and the number of times it's been renewed already).
We know that this would work well, since it's more or less what US copyright law did up until 1978. We know that the goal of copyright is to serve the public interest by encouraging authors to create works they otherwise would not have created, but having those works minimally protected and in the public domain as rapidly as possible. This serves this goal well, since probably only authors who were encouraged by the availability of copyright would bother to undertake even the very simple steps to procure one. Further, if an author was encouraged by a shorter duration than the maximum allowed, he would likely fail to renew (as usually happened historically), getting that work in the public domain much sooner than if we foolishly gave him as long a term as we could without any involvement on the author's part. It gets copies preserved in the Library of Congress, which can help to ensure the survival of the work over time (especially once it enters the public domain). And requiring him to identify the work claimed, and himself, and his contact information, aids in the public knowing what is and isn't protected (like the title system for land), who to talk to about it, and where he can be reached if you need to license it, etc.
Sure, some amateur authors would create works without regard for a copyright, and the works might turn out to have been valuable, but so what? The system isn't meant to help them at all costs, it is meant to encourage them to create what they would not have created sans copyright. Your Chocolate Rain kid probably wouldn't qualify. That's good, really. Why should the public pay for the cow if the milk is free? Copyright isn't meant to help authors, or be fair to them; it's meant to be totally one-sided in favor of the public, but sometimes the thing that is most in the long-term public interest isn't what is in the short-term public interest.
(Plus of course, only an author can claim a copyright on his works initially; it's not as though anyone could take a public domain work away from its author, who could also try to exploit it for money; it's just that the author cannot exclusively exploit it)
No, it's just not infringement at all. Bad precedent aside, the statute requires distribution, not merely making available. (Of course, if the courts were really going to pay attention to the statute, they'd see that distribution isn't possible on the Internet anyway; it would have to be public performance or display)
Well, the law is quite clear that no mental state has to be shown for civil copyright infringement. Even if you infringe purely by accident, and you always acted as reasonably and as carefully as possible, you can still wind up on the hook for infringement. So the court in this case is not going to find otherwise, but it would be a good part of a comprehensive legislative reform. (Though I think an intentional standard is somewhat high)
The legal definition of copying is so ridiculously broad that I must admit I can't think of any way for a transfer, and therefore a download, to not be copying.
Yes, that's the MAI v. Peak precedent at work. There, the court found that copying software into RAM in order to run it was reproduction, and therefore infringing. (17 USC 117 didn't apply in that case, and remains horribly limited and nigh-useless to this day)
Suppose that person A owns a device that has access to data and which can read envelopes and postcards, and in response to various codes on a postcard, will burn data to a CD and drop that in an outgoing mailbox. Person B sends a postcard with a code that asks this device to burn a CD with data that happens to be copyrighted and not by A or B. (Really, this is just a mechanized version of networking.) Has B done anything wrong?
There's no difference: A is distributing via the machine, and B is activating the machine, and so is liable for the making of the copy. The closest you can get to this and not get in trouble is the ISP who might own the server A is using, but which exerts no control over it, doesn't watch it, doesn't derive more profit from unlawful uses than lawful ones (as might be the case if it was using the unlawful traffic as a draw for its advertisements, say) and is basically outside the loop save for providing the use of the machine. In the Marobie-FL case, IIRC, the court likened it to the owner of a xerox machine that anyone could use; the user was liable for its use, rather than the owner. Of course, it's mostly a moot point now, as the 512 safe harbor protects ISPs with far greater certainty than the caselaw did.
For the other, suppose A sits on a park bench to read a book. Unknown to A, it happens that B has a security camera recording the scene. And unknown to B, A happens to hold the book such that the camera picks up the text. In a similar scenario, suppose A likes to read aloud outside, and her neighbor, B, is recording a little bit of home video at the time. In the recording, B's dog is performing tricks, but A's voice is audible. Guess everyone is guilty of copyright infringement.
No, just B in that case. This has to do with public display, and public performance, but even if you could prove a prima facie case against A, which I greatly doubt, there would be an excellent fair use defense.
Just to say that with a narrower, saner definition of copying, it is not at all clear that downloading would be copying.
Well, I think it would be; it's hard to think of what that definition would be in order for it to still be fair and reasonable. But we can add exceptions -- e.g. "temporary copies on a computer are noninfringing." It's like nested if-then statements for what is not infringing, what is infringing, what is infringing but it turns out is not infringing, etc.
So? The objection was that any given person should not be able to enjoy the advantages of a work without compensating the author. That isn't happening where used copies are involved; many people may enjoy the work, but only one ever compensated the author. And continuing enjoyment of the work does not necessarily require continuing possession of the copy. E.g. if you sell me a copy of a very funny joke, and I sell it to someone else, I can still remember the joke, and can still tell the joke to family and social acquaintances, all without running afoul of the law.
So I think that there must be something askew with your claim. Since the data seem to not agree with you, can you think of an alternative hypothesis that works better?
I would suggest this: Copyright is amoral. It is no more right or wrong to respect or infringe upon copyrights than it is to jaywalk across an empty street or paint your house a color that is in violation of the local zoning ordinances. Copyright is utilitarian; we should only have it if it is convenient, because it is convenient, and only to the extent that it is convenient. In a democratic society, where people's right to free speech is protected, and government draws its legitimacy from the consent of the governed, convenience must be public convenience. The issue isn't whether authors, as a small, special interest group want copyright, but whether copyright is good for everyone in society as a whole, and if it can be at all, precisely what, and how much, copyright would best serve society.
Yes, I find that an excellent tool for convincing people as to why we need to radically overhaul copyright law is to tell them what copyright law actually consists of. People assume that it behaves more or less as they imagine it to be. I would prefer that we fixed it so that that were true, rather than to continually surprise people with just how draconian it really is.
Downloading is merely a form of copying (which, by the way, is not the only thing that copyright is concerned with), in much the same way that beheading is a form of homicide.
Here is the definition of 'copies' in US copyright law:
When you download, you do not actually transfer anything; you copy. If Alice has a file on her hard drive, the hard drive itself is the material object in which the file is fixed. When Bob downloads the file, not only does the file not evaporate off of Alice's computer, but the hard drive doesn't move itself down the ethernet cable. Instead, Bob is informed as to what the contents of the file are, and he fixes that information into his hard drive, thus making a new copy. (Also, n.b. that the courts are agreed that RAM also can qualify as a medium which can be a copy. The leading case is MAI v. Peak.)
There have been memory technologies that cannot maintain data after a read, that is, destructive read.
That doesn't actually matter. The question is not how many copies existed prior to the download, and how many existed afterward. The prohibition is not against your causing a net increase in the number of copies, it is against making any copies at all, regardless of the disposition of previously-existing copies.
Suppose person A burns a copy of some data to a CD, then mails that CD to person B. (And suppose that the data is copyrighted and person A didn't have authority to make the copy.) Is person B liable?
No, but then, he's also not a downloader, nor has he made a copy of anything.
Assuming person B is innocent in the mailed CD scenario, why should it be any different just because the transfer occurs over the Internet via a P2P program rather than the postal service? It is person A who made the copy, who maybe could control whether the copy could be made, and who allowed the copy to be made.
Because when B downloads, he is the copier. A is independently liable for her role. The courts would deem her a distributor, and distribution is yet another kind of copyright infringement. Certainly she had a role in B's copying, as she was the source from which he copied. However, that doesn't change the fact that he is the one who caused the copy to be made, having requested the file. A did not force B's computer to do it, after all.
I think I have made reasonable arguments here,
I'm not debating what the law should be, I'm telling you what it is.
I did not see that word "download" anywhere in the law. (Copies aren't copies if a phonorecord? Weird.)
Try the caselaw. The court in Napster was quite clear in that downloaders infringe the reproduction right. Napster was brought down, not because it infringed itself, but because it assisted in the infringements of others, namely, the downloaders and uploaders using the system. Also, while copies and phonorecords are different things for historical reasons, they're the same for the purposes of this discussion.
From what I read, "fair use" was not used as a defense in that case, and it should have been.
First, I like to cite the Intellectual Reserve case because it is concise and clearly written and follows precedent. It is not the only one out there. You might want to look at the Napster and Grokster cases, if that's what you're after. Second, fair use is irrelevant; it's a defense for a specific instance of infringing activity, not for a type of infringing activity. Each case in which fair use is invoked must be looked at on its own merits
Okay, so you are saying that it is wrong to "tak[e] advantage of the work and investments [sic] of the company" that creates something, as a basis for why copyright infringement is wrong.
In that case, 1) do you think it is wrong for me to buy a used book without paying the author? 2) Do you think it is wrong for me to use public domain works? Since both of these things are perfectly lawful and encouraged by the law, please explain why the law does not, apparently, follow your reasoning.
There is no such thing as "illegal downloading".
There is, actually. When you download anything, you necessarily make new copies of it. Making copies of copyrighted works without authorization or an applicable exception is infringing. Take a look at 17 USC 106(1), the definition of the word 'copy' in 17 USC 101, and the Intellectual Reserve v. Utah Lighthouse Ministry case (in which the court discusses how it can be infringing to browse web pages that, unbeknownst to you, someone else put online unlawfully).
And, no one can tell for sure whether some data is copyrighted if they can't examine it.
That's irrelevant; copyright is a strict liability statute. If you infringe, then you infringe, even if you didn't mean to and could not have acted more reasonably.
Your uploading argument is even more fantastic. While you may know what you'd like the law to be, you clearly haven't got much of an idea of what it actually is.
Try learning the following: INTERCAL, Malbolge, Befunge, brainfuck.
The Constitution is very specific as to what limitations apply to what parties, addressing "the Congress" and "the people".
Yes, although these are subject to later amendment. Just because the First Amendment deals with the federal government, that doesn't mean that the Fourteenth can't say that it also applies to the states.
This is covered by the eighth amendment - not by "incorporation". The eighth amendment is open-ended: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This limit applies to any governing body under the constitution - both federal and state.
Actually, that didn't apply to the states, and was ultimately incorporated. Remember that at the time the Bill of Rights was written, it wasn't interpreted as being binding on the states.
I asked where the Constitution explicitly says
Well, there's your problem. The Constitution doesn't explicitly say all that much. We have to read a lot into it to make it work. For example, does the First Amendment guarantee that the federal government will not prohibit people from reading? It doesn't explicitly say so (and the Ninth Amendment doesn't guarantee any rights, it just says that they may exist) but since the right to a free press would be quite meaningless if the government allowed anything to be printed, but prohibited any of it from being read, there must be an implied First Amendment right to read.
I can explain what it does say (affirms of the right to jury trial and legal representation in state matters). But what isn't there just isn't there.
Actually, you can have due process without necessarily having those things. Don't go claiming that it says something other than what is explicit, now. But what makes you think that substantive due process doesn't exist? Why do you think that (most of) the rights in the Bill of Rights do not fall under 'liberty.'
This simply seems to be reiterating rights found elsewhere - that the state cannot deprive you of these things without your day in court.
Well, actually you've described procedural due process; that there there has to be a fair method that the state has to go through if it is going to infringe on your life, liberty, or property.
However, there is also substantive due process (in both the 5th and 14th Amendment due process clauses; the former is the one that applies to the federal government); this is that the more important the thing is that they're trying to take away, the more important their reason for doing so has to be, and the more the means they choose to advance that reason have to actually advance it without being excessive. So, for example, if the government wants to imprison you for life because you jaywalked, and jaywalking is bad, even if they can't really show why it is bad, or what bad things would happen if they allowed jaywalking, then a court would rule against them. After all, it's not merely good enough to have a fair process for dispensing justice, but there has to be actual justice, rather than unjust punishments, laws, etc.
Substantive due process, then, has to identify various liberties (since that's usually what these cases involve) and determine just how important they are, and therefore just how important of a reason the government can have for infringing on them. Your right to have a child is more important, for example, than your right to litter. The government would have a very hard time arguing why you couldn't be allowed to have a child, but could quite easily show why they should be allowed to make a law against littering.
Incorporation builds on this logic. If due process requires that the states not unduly infringe on peoples' liberties, and some liberties have a lower bar for what constitutes undue infringement, then quite probably the liberties that were important enough to be mentioned in the Bill of Rights are pretty high up there. It's not precisely like this, but this is basically how you arrive at the idea of incorporation.
Anyway, if you still think that incorporation is a sham -- despite having been around for a long while, and pretty likely having been the intent of the framers of the 14th Amendment to begin with -- could you say why, instead of just asserting that it is?
That's true; you could eliminate copyright for the fine arts and it really wouldn't have much of an impact at all. Picasso didn't make his money selling picture postcards, after all. (Though he was known for dashing things off from time to time in lieu of cash payments)
But the reality is that copyright helps people earn livings.
But that's not a good enough reason. I mean, if you merely wanted to give money to authors, why not just dole it out, or give them a big tax break or something? Copyright is meant to serve the public interest, not to help authors. It just happens to help authors as a means to an end. It's not written in stone that we have to do it at all, though, or that the current laws are the best ones.
What if we could reduce copyright, thus yielding a great benefit to the public in terms of more freedom with regard to works, but without significantly reducing how much money most artists make? Wouldn't that be great? Well, we can do it, because current copyright law is so very far out of whack.
So how much money have you paid to the Shakespeare estate? Or the author of the Bible?
There is nothing wrong with people other than the former copyright holder making money from public domain works, and anyway, it's not that that person can't publish too. And it's especially good for the public, since the competition lowers the price to the marginal cost of the copies. Often that means free, these days. There's nothing wrong with getting things for free.
Considering that Sir Paul is worth an estimated 1.5 to 2billion, $US, you might want to rethink that.
Well, he was in Wings, and Wings was more popular than St. Eleutherius of Nicomedia.
Removing long term royalties would make this next to impossible for writers.
No, not at all. It's not a bell curve; it's more of a long tail. Most authors make nothing from their copyrights (as distinguished from their works). Of the remainder, most make a pittance. Of the remainder, most make a decent amount. And so on until the handful left at the end make a whole lot of money. It's similar to the graph of people who play the lottery and how much money they win. In fact, the odds are even pretty similar.
Short term royalties wouldn't have much of an impact; for all but the smallest handful of works, nearly all the money is made within a few years. A nickel every six months for the next several decades is hardly going to support you.
Most writers would have to continue working at least part time jobs while getting a trickle of income from their newest works. That is not in the interest of the public at large, when the artist could be creating mildly successful works of creativity full time.
Actually, what is in the interest of the public is for the authors to create those works full time without the public having to pay for it. If we're going to have to pay for it (in the form of copyright, and the monopoly pricing that comes with it), then we merely want to get the most writing 'bang' for our buck. If we can get 90% as much writing done for 10% of what we're paying now, then that is in the public interest. The small number of higher priced writers may very well not be worth it. We may be better off without them.
It should be set up in terms of the author's life, plus a small bit of time past that
I completely disagree. Term lengths should be perhaps 2 years from publication, with varying numbers of renewals available, up to a maximum of around 25 years from publication (perhaps less). The public isn't served by supporting authors for life; it is served by having new works created for the least copyright cost. So long as authors will work cheaply (and they do, since most can't create works that have lasting economic value), we should pay them cheaply. It is wasteful to suggest otherwise.
Also the fixed terms of years means that authors need not fear death more than anyone else; it won't affect their copyrights. And this helps everyone else, by being able to build public domain publishing businesses with the expectation that various works will enter the public domain no later than some fixed date.
Well, the EU may deny it, with silly babble about droit moral and other such crap, but yeah, any legitimate copyright system is utilitarian. Otherwise it just doesn't work and doesn't make a lick of sense. We're up front about that in the US, we just haven't been living up to it lately.
But who's going to pay that X million? Nobody, that's who.
What if they offered to sell it for X million dollars, and I got together with X million of my close friends on the Internet, and we all chipped in one dollar. The whole deal could be handled by an escrow agent who would hold on to a copy of the work until the pre-set amount was met, and would then release the work, and deliver the money to the author. If enough money didn't get paid, then the author could retract his offer or reduce his price. Once the work was released, it would be in the public domain.
This isn't a new concept. Look into the Street Performer Protocol.
So instead they make lots of copies and sell them each for a much lower price.
Sure.
Of course, bear in mind that any work can be a flop, and never net the author one dollar. If he invests up front and publishes, then a flop can be devastating. Investors (if there are any) can try to control the author so as to produce a more popular work, but they're still guessing a bit since they aren't actually the audience.
If the audience is the investor, as described in the first model, then they can do a better job of making sure that the author does what they want. For example, instead of a lump sum of X million, it can be broken down into various sums as certain milestones are met. You can see the plot for X/10 million, and either continue to invest or pull out. You can see the first draft when X/5 million has been paid, and so forth. If the author hits a sour note, he'll have to fix it in order to proceed. This takes some of the risk out of the whole affair. The paying audience knows it will like the work, since it has been made to order. The author knows the work will sell, since he's been selling it in little chunks all along.
As authors gain a reputation, they might get more creative freedom. American Graffiti-era Lucas might get watched closely as he makes Star Wars. Star Wars-era Lucas might get a freer hand for Empire. Empire-era Lucas might not get supervised at all for Jedi. And then people have to start looking Jedi-era Lucas' shoulder lest he do something even dumber, like Howard the Duck, Willow, or the Star Wars prequels.
The problem that I have with this is when you purchase a song in the stores, you buy it on some type of media, LP, CD, cassette tape or others. I pay the royalty to the artist for the right to listen to that song on.
In the US, at least, no you do not.
You merely are buying the copy. Access to the copy (which is easier if you own it) is where you get the right to listen to it.
Copyright deals with who can make that copy, who can sell that copy, who can publicly perform the music on the copy; it does not deal with merely listening to it. Since that isn't the subject of copyright, the copyright holder has no exclusive right over that which he could possibly license to you in the first place. Attempting to do so would be as much of a fraud as selling you the Brooklyn Bridge.
The obvious flaw in your argument is that software becomes deprecated over time. Music, movies, and other entertainment IP doesn't.
Oh yes they do. A Tale of Two Cities was published almost 150 years ago. It was popular at the time, and has remained so. Now name the other ten or so best-selling novels released that year (which means they must've been pretty popular) and tell me if you've read them, or have meant to, or have even heard of them.
The economic value and popularity of all works (with very very few exceptions) declines over time, often very rapidly, within a few years, in fact. As a result, you only remember the very very few exceptions, and so you think that all works remain popular.
Well, it's not as though scarcity is actually desirable. If you had a Star Trek replicator, you could feed the world with it (after replicating up some more replicators so that everyone could have their own). It would destroy professional agriculture and animal husbandry, but we'd all be much better off. (Amateurs who didn't make a living by breeding new varieties of food would presumably keep at it, and might even be encouraged by the new ease of spreading their creations)
Well, it's pretty easy to copy creative works. We don't need a magic replicator; we've had the technology ever since we developed language. Writing made it easier, as did printing, computer technology, etc.
If we're going to restrict this, it needs to be for a better reason than merely because the restrictions keep certain people in business. That's no better than saying that we must let people starve in order to protect farmers. I think there is a valid reason to have some kind of copyright law (though probably not so much as we currently have) but you don't seem to have stumbled upon it yet.
Piffle. First, you could just keep going south; in Mexico, the term is life+100, IIRC. Second, the US has traditionally had good copyright laws. We royally screwed up with the 1976 Copyright Act, and the 1909 Act was certainly no prize, but it wasn't quite awful. Europe, particularly France and Germany, has been the home of outrageous and terrible copyright laws. In fact, a lot of the worst excesses of US copyright law are based on already-existing European laws, or were proposed as part of treaties in order to sneak them in (i.e. via the USTR and the Executive branch, rather than originating in Congress from the get-go).
When a book is published or a song is sold, who should get the artist's royalties after a short copyright expires? You know it'll just go into the publisher's pocket, even though we'd hope there might be a small price drop.
???
When the book enters the public domain, there is no more royalty for the author. But the publisher cannot, as you suggest, only slightly reduce the price and pocket most of what the author had been getting. The book is in the public domain, which means that anyone and his dog and start copying, publishing, and selling it without restriction. This means that the price of a copy rapidly drops to just barely over the marginal cost of the copy. A nice hardback with leather covers and good paper can sell for a decent price, but you can just as easily get a cheap paperback on newsprint for far far less, or just download it for free from anyone who wants to offer it (e.g. Google Books, Project Gutenberg).
So the price drop is a lot more substantial than you think, unless you are terrible at shopping for stuff and pay too much.
Because other people are making money off their work
That's not a good reason at all. Plenty of people make money off of public domain works, and no one seems to find it objectionable. In fact, it is intended that works should enter the public domain so that they can finally enter the free market (instead of being subject to a monopoly), and presumably people will make some money in the process.
I'm afraid your reason falls flat. Try again.
Music is a service.
No, the act of creating or performing music is a service. Music is the product of that service.
They expect to be paid for that service.
I routinely expect to be fêted by a bevy of beautiful women, and lavished with all kinds of riches and honors by the public at large. As it turns out, we don't always get what we want.
Should the Beatles (or michael jackson?) not have been paid by Nike for using their song as the foundation of a huge add campaign that may have generated millions of dollars?
Should Shakespeare have been paid by Disney when they based The Lion King on Hamlet? Should Shakespeare have had to pay whoever wrote the earlier versions of Hamlet that he based his on?
Should the stones not receive a dime for having their song as the title for CSI?
No; The Who did those songs.
Or how about all the artists whose songs were used in guitar hero, or American Idol? It's Ok for other people to get rich in part by your work?
Fine with me. Remember, those musicians (well, assuming that we're not talking about the ones who do the bonus songs; Harmonix has a lot of musicians working there) didn't create Guitar Hero. If we had left it up to them, that work would not exist, and we'd all be the poorer for it. I am not some greedy, petulant jerk who would spoil someone else's success merely because I had the opportunity to spoil it, and had been unable to do it myself.
Besides, as a member of the public, I want the most works created, and the fewest restrictions on works; slavishly doing whatever authors want -- particularly the established authors, who do tend to try to keep new talent from competing with them -- is not in the public interest. What's good for the RIAA is not what's good for America.
Why not require registration for all published works, with a token fee then? That way, anything worthless drops into the public domain immediately. Then have very short terms (say, 2 years) with many renewals possible, again with a token fee, so that if anything becomes worthless in the interim, it'll drop into the public domain shortly after.
Of course, it isn't really the money that matters (save to prevent people from abusing the system in much the same way that spam relies on email being basically free to the sender), but the effort of having to remember to fill in and submit the form. The form itself is quite simple, but history shows that most copyright holders don't bother with it. The US had a renewal system until 1978, and the majority of registered copyrights were never renewed.