Do some lawyers, and apparently some judges, even remember why copyrights exist anymore?
Copyrights are there to among other things let the copyright holder be credited for the work and benefit financially from the work through being an exclusive distributor of the work.
As other posters have said, copyright exists to promote the progress of science. It does not exist to give credit to the author, nor to let the author benefit from his work; those are means, not ends. I suggest you remember that.;)
_I_ don't maintain that software or business method patents are currently viable. I think they're a bad idea so long as people would invent them anyway, in response to incentives that are present in the market even if we didn't allow patents in those fields. But Congress is going to have to address this, as it's a policy issue outside of what the courts can do.
As for patenting a legal argument, I bet you could -- if it met the requirements for patentability, which would be tricky -- but _then_ you'd see an exception from Congress just as there is an exception regarding medical techniques.
Britney Spears is neither science nor an art; she's a person. Her music would fall under science; that it's bad music doesn't matter, since we don't want the government protecting or not protecting works based on their artistic taste.
Cooking is a useful art, and recipes can be patented if they meet the requirements of a patent. This does occur from time to time -- there's a patent for a peculiar kind of peanut butter and jelly sandwich, IIRC -- but often recipes lack novelty or nonobviousness, or the inventor doesn't bother getting a patent. The written expression of a recipe -- as opposed to the process for cooking that the recipe describes -- is copyrightable if sufficiently creative. But anyone could copy the process and reword it, and where the wording was not creative or original (e.g. "Pre-heat oven to 350 degrees") that wouldn't be protected at all. The difficulty in writing succinct, clear, copyrightable recipes is such that most people don't bother.
How is a cease and desist letter related in any way to "Science and useful Arts"?
It's a literary work, albeit not much of one. So it falls under science (which, in the late 18th century English of the clause, roughly means 'general knowledge' as opposed to the useful arts, which roughly means 'applied technology').
Here are some choice bits... oh, assuming the judge didn't copyright it.
Don't worry, he can't. US government works are uncopyrightable. Now, if only this were true for all other governmental agencies and the like.
Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?
Choice of wording, basically. It's not as though there is only one possible way to write a C&D. The threshold for creativity is incredibly low. You wouldn't believe how low it is.
Besides, isn't' the area of intellectual "property" generally covering "methods" patent law, not copyright law?
The method, yes. Though novelty and nonobviousness would surely be factors. Copyright can easily deal with the expression of a method, however, just not the underlying method itself. That is, I can write a book about how to go jump in a lake, but all I can copyright is how I describe to do it. I don't get rights regarding actually doing it. This is the idea-expression dichotomy, a fundamental copyright concept, and the leading case is Baker v. Selden, which involved books on double-entry bookkeeping.
Anyway, this isn't a huge deal. There is a process involved in fighting these things, like a long if-then-else statement. All that's happened here is that the first 'then' that could help the defendant didn't work out. There's little doubt that one of the later ones will, but the case hasn't gotten to there yet.
I don't know how things work in your country, but here books and CDs generally are not licensed at all. When you buy one, you own it. The work contained within is unownable, but may be copyrighted. The copyright, while it subsists, may prevent you from doing anything you like with the work. An analogy would be that when you buy a car, you own it, but you're still not allowed to break the speed limit, if such a limit applies. Software is really the only thing that is commonly licensed in the consumer market, and the odd thing is that there is usually no reason to do so. All that it accomplishes is to confuse people into thinking that licensing is important, common, and often a good idea, when none of those this is really true.
Who cares about the encoding? Remember, copyright law is a human construct. It does not matter whether it is encoded with one codec or another, lossy or lossless, compressed or uncompressed, digitally or analog -- if, at the end of the day, a human being (either with or without the aid of some device, such as music playing software) perceives it as being the same song, then it's the same song.
It's just like how it doesn't matter when you copy a book, if you change the typeface, or you write it in script instead of in print, or you use shorthand, or what. It's all the same thing so far as copyright law is concerned.
Based on previous experiences, I suspect that the follow-up comment will be something to the effect of, 'with the right software then, the number 1 could be the White Album, and the number 0 could be Smell The Glove, but surely the Beatles don't own the number 1.'
Well, they don't. First, because again, the specific format of the work is irrelevant so long as a person can somehow perceive it in its intended form. That is, you get a copyright on the White Album, not a specific compressed form of it. Second, because originality, and therefore provenance, are central to copyright. Originality, in this context, means that the work owes its origin to its creator. If you write down the number 1 and you didn't copy from the highly-compressed White Album, then you're fine. It doesn't matter that they are the same number, so long as there's no other connection between them. This is discussed at length in a very good essay here.
Furthermore, a work fixed in some form means nothing without knowledge of how to perceive it, whether directly, or with the aid of a machine or device. If you wrote down the number 1 and asserted that it was your work in a compressed form and that no one had better write down that number, then you'd lose unless you could show how it decompressed and that whoever you accused of infringement knew about that. For standards, this is easy: works encoded in mp3 form, for example, are easily decoded. But if you're using arbitrary techniques that no one else knew, then they couldn't've perceived the work, and thus never had a copy to begin with.
Finally, also note that the reproduction form of copyright infringement, 1) doesn't care about encoding (meaning that mp3's are straight copies, despite being lossy, and are not derivatives, not that it really matters), and; 2) doesn't care about how much was copied, particularly. Copy half of a song, and it's still infringing. Copy one note, and perhaps it is not, but copy many individual notes and reassemble them into the song again, and it's infringing because no one is so stupid as to fall for such an idiotic trick. This is because the law is applied by human beings, usually pretty smart ones who do not appreciate a wrongdoer's attempts at cleverness, who can see through this stuff, rather than mere machines that are easily duped.
Ownership of a physical object *is*, by definition, ownership of a bundle of rights (and people disagree on what rights that should include) that have that object as a referent. Ownership of a copyright is, just the same, ownership of a bundle of rights with -- yep -- physical objects as referents.
No, the sine qua non of copyright is the creative work, which is intangible. For example, there is no physical object involved in the public performance of a copyrighted play, but the performance can nevertheless infringe. Fixation is required for protection to subsist (in the US, at least) and some of the exclusive rights can only be of relevance where copies are involved (e.g. the reproduction and distribution rights), but copies aren't what copyright is all about.
Specifically, *exclusion rights* over a sphere of activity attach when someone brings something useful into the domain of human action (i.e. homesteading an object or instantiating a new idea).
Sounds like someone is a Lockean.
Remember, those rights don't attach merely because someone does something useful, but because others are willing to grant those rights to the creator because to do so is ultimately to their own net benefit. Certainly it isn't always true. You can beautify your house, and by so doing increase the value of my adjoining property by virtue of its proximity to yours, but you aren't entitled to any of the windfall I enjoy.
Just doing something isn't good enough.
Those are very strong parallels.
I agree that there is a strong argument for copyrights being property. Nevertheless, I think it is against public policy for them to be so. Copyright is meant to maximally serve the public interest, and for this to occur, Congress must have a pretty free hand to adjust copyright's length and breadth in any direction. I don't think that the takings clause is meant to interfere with this in such a way that retroactive lessening or abolishment of copyright is effectively impractical.
Why does it matter whether a) peoples' opinions about how the law *should be* given a set of axioms, conflicts with b) currently existing property law.
Because often it's appropriate for the law to reflect those norms, rather than to conflict with them. Conflict is acceptable if it's for a good reason, and attempting to use the law to alter norms is acceptable in rare, very extreme cases. But generally, norms should prevail.
Prohibition is a conflict where there was no good reason to go against societal norms, and the result was widespread disrespect for the law, corruption, and to hugely empower organized crime. Eminent domain is a conflict where there is a good reason, and conflicting norms are likely, I'm sad to say, shortsighted and irrational. Even here, however, rather than forcing the law down the throats of the people, an attempt should be made to show why takings can be appropriate. Civil rights laws protecting unpopular, discriminated-against minorities are an example of when norms are in the wrong and need to be forcibly broken down.
Personally, I'd rate copyright as being in the neighborhood of Prohibition. It's possible that some copyright could be as worthwhile in the face of conflicting norms as eminent domain is, but I don't think the copyright we currently have comes close to qualifying.
Anyway, remember that the government receives its power and legitimacy from the consent of the governed. Go too far against that, and you end up with a government that needs to be disposed of and replaced. Hence the concern for social norms when formulating laws.
The topic here is whether it's possible to consistently distinguish IP from other forms of property (and thus treat it differently) on the grounds that it "doesn't have natural limits", and I believe I have shown that *that approach* is invalid.
Well, and this goes back to why I don't care for the term 'intellectual property' to begin with, I think that you and the earlier poster were talki
No, I just know why you can't understand a simple point: you cannot consistently oppose IP but support spectrum rights on the grounds that there is scarcity in one and not the other.
Is consistency necessary? Is it ideal?
I support the concept of copyright simply because I think that if it is possible to maximally serve the public interest with regard to creative works, we ought to do so. If the mechanism of certain exclusive rights which are limited in time and scope is the best mechanism, then we ought to employ it. If a particular configuration of rights and limits is better at that than a different configuration, then we ought to use the better one.
But copyright is sui generis. The closest that it comes to property law is that a copyright itself (as opposed to the creative work the copyright governs, or copies in which that work is embodied) could be considered a piece of property; I don't think it is, but an honest argument can be made. References to property in conjunction with copyright strike me as inevitably being misleading (often deliberately so). They're usually an attempt to get us to think emotionally, rather than rationally, and to apply norms from an unrelated field (real and personal property) which are not appropriate in the copyright domain. (And of course, those norms are often at odds with property law too -- look at all the bizarre ado over the Kelo case a few years back)
I suppose that there is consistency in that copyright law is utilitarian, and property law is also utilitarian, and the regulation of the airwaves is also utilitarian. It would be nice if we could achieve greater utility in all these fields, but the means by which we do so can certainly be wholly unrelated to one another without upsetting anyone. I see no reason why, in considering what to do about copyright that anyone would ever bother to look at property law or FCC regulations; they're as irrelevant to the subject as the composition of the Moon.
When we purchase music we purchase a license to listen to the songs we paid for. I don't think the music industry understands this; apparently this has not been clarified in the courts. We are not buying the piece of plastic they are printed on.
No, you're buying the piece of plastic actually. Remember, not everything to do with creative works falls within the realm of copyright law. Copyright prevents you from lawfully making a copy of the piece of plastic, or from publicly performing it, but copyright does not prohibit you from listening to it privately. Private performances of musical works and sound recordings is in the public domain, and you don't need anyone's permission or license to do it. You do, however, need a copy of the work (the piece of plastic) in order to have access to the work you want to listen to, so that's what you go out and buy.
This point really has never been disputed by anyone who knows the law, so I wouldn't rely on the courts to side with your bizarre theories, if I were you.
We can have a thousand copies because we can only listen to one at a time.
You can _have_ that many copies, but making new copies yourself is something that falls under copyright law, and is generally prohibited.
Because the carrier medium can be damaged we should all be able to get a download of a new instance of the song we paid for from the Internet if we purchased the license to listen to it. Since the record companies have not provided a way for us to get a replacement copy the Internet downloads can ethically be justified.
It would be nice if owners of copies were allowed to freely download more copies, but that's not how things currently work. As for ethics, copyright and copyright infringement both have nothing to do with ethics in any respect; it's a utilitarian, amoral field.
No, even in civil trials, the plaintiff still bears the burden of persuasion. If he cannot make a prima facie case, then the defendant wins by default. What is different is that the standard changes. In a criminal trial, he must prove his allegations beyond a reasonable doubt in order to make the prima facie case; in a civil trial, the standard is far lower, and he only has to show that his allegations are more likely than not, even if only infinitesimally so. Since it's easier to show that modest amount of proof, rather than a far greater amount, a civil defendant is more likely to face a plaintiff with a viable case, is all.
Yes, that is true. I should be more careful with my wording. I ought to have said that fair uses are not copyright infringements. They can still be unlawful for some other reason (e.g. they're libelous). Thanks for the catch.
A fair use is non-infringing. All of the statutory exceptions are the same way. Ultimately, a copyright infringement is an act which is prima facie infringing and for which there is no defense, excuse, etc. Fair use is a defense, so while it is prima facie infringing, it is not, ultimately infringing.
It's similar to a homicide case: the prosecutor would first have to prove that you killed someone. If they cannot accomplish that (for example, the victim walks into the courtroom, alive and well), then you're off the hook to begin with. If they can prove you did it, only then do you have to even bother defending yourself by arguing, say, self-defense. Do a good job, and even though it was proved that you killed the victim, you can still get off the hook, because killing in legitimate self defense is not a crime.
The only thing that operates along the lines of what you had suggested would be AHRA, which makes certain conduct non-actionable, rather than non-infringing. That is, it's still infringing, but it cannot be tried in court. This was actually a sneaky move by the music industry for their own benefit, and very unusual to boot.
For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.
Still, though, there are scenarios where that might not be a fair use. Space shifting, for example, is quite like what you describe, but it's always been borderline, and the number of alternatives provided now (e.g. iTunes, pre-encoded DRMed and licensed copies included on disc, etc.) chip away at it.
I might also make a blanket statement that it is reasonable to prohibit redistribution of a legitimately obtained work that is subject to copyright or any derivative work, in any way that materially disadvantages the copyright holder, to anyone else without the copyright holder's consent.
So you are opposed to the idea of first sale, which is how we have things like used book stores, video rentals, and libraries? How odd. N.b. also that first sale is unrelated to fair use.
Game mechanics may be patentable. They don't always qualify due to a lack of novelty and nonobviousness. And for whatever reason, few game designers seem to pursue patents on their rules. I don't know why. The only patented game rule I know of is for Magic: The Gathering, and it involves rotating cards in play, IIRC.
Copyrights and trademarks have their uses with regard to games, but they don't protect the underlying game itself, just various things connected to it (the art on the box, the name, etc.).
Things can get tricky when foreign languages are involved. The touchstone, though, is customer confusion. How many people, intending to go to Slashdot, go to Barropunto instead? If it rarely happens, then it probably isn't infringing.
By change, I meant that what we would traditionally consider fair use should probably be expanded.
We really don't traditionally consider anything to be a fair use. Each specific use -- not type of use, but each specific _act_ -- is considered on its own merits. There have been parodies and satires that were not fair uses, quoting in news reporting that was unfair, etc.
If you want to make certain classes of use non infringing, you want statutory exceptions. You don't want to screw around with fair use.
So you are against being able to time shift shows from the TV (thus killing Tivo) and against being able to space-shift music from a CD to another device (thus killing mp3 players)?
Your view isn't just overly narrow (in fact it is also broader in some places than what is currently allowed), but is instead completely unrelated to what fair use currently is.
There is no master list of fair and unfair uses. All the law says is that fair uses are lawful, and that a court can look at various circumstances regarding any specific use in question in order to see whether or not it is fair. It's very clever in that it doesn't include or exclude anything in particular. Anything can be a fair use, but nothing is guaranteed to be. Further, it allows for newly invented uses (no one from the mid-19th century, when fair use was developed, imagined time shifting television shows) to be protected without having to constantly fight battles in Congress.
Fair use is a catch-all, but there are also plenty of specific exceptions in the statutes (e.g. covering a song). I think that the uses you suggest would be better off as statutory exceptions. There's no need to screw around with fair use. Even if you have good intentions, well, we know what's paved with those.
So if I were, say, Mad Magazine, and I parodied a movie and sold copies of the magazine in which the parody was printed, you'd be against it? Or if I were a book critic and I quoted a book in my newspaper column, etc.? What if the review pans the book, causing it to flop in the marketplace?
Just because you do it for profit, or it affects the economic value of the work used doesn't mean it isn't fair use. You need to look at the totality of the circumstances. The current test does a decent job of this.
That's great, but it has nothing to do with fair use. If you want that, get a specific statutory exception covering it.
Also please n.b. that with the exception of downloaded music, ordinary consumers don't license music at all. The stupid software industry has just managed to screw up how people think of their rights in connection with works and the scope of protection the works enjoy.
First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.
Second, fair use has never been "hashed out." It's an amazingly vague bit of law and it evolves all the time in response to new developments in society.
If you think that there should be some other exceptions to copyright (such as a blanket personal use exception, or something) then implement those independently of fair use. Fair use isn't meant to be clear, it's meant to be a last resort that is capable of applying to any use, or not, as needs demand.
Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?
Maybe. It's certainly transformative. Some mash-ups may use only portions of the works in question, further bolstering their position. As always, you can't make a blanket statement as to what is or isn't a fair use. Each specific case must be considered in light of its own circumstances. But remember that no one seems to have much of a problem with the medium of collage in the world of the visual arts. (Not to mention art by appropriation, such as is practiced by Richard Prince) Why should the audio arts be treated differently?
The real change has been a shift is society's values. Me, me, me!
Copyright has always been about greed. The public only offers copyrights because the public is greedy for the new works that will be created and published, and the offer is limited so that the work falls into the public domain. The mechanism used to get the artists to create is their greed for money. So I don't think that too much has really changed.
I agree that copyrights and patents are good ideas. However, do you think that the current laws in those fields are ideal? If not, do you think they should generally be revised in favor of more protection, or less? Isn't it possible that the human condition is also improved by unrestricted access and use of creative and inventive materials? If so, isn't it possible that we have too much protection right now, and that we could aid humanity by diminishing these protections; while it might reduce the amount of investment (though remember that the economic value of these monopolies might not scale linearly; going from 0 to 1 year is worth far more than going from 1 million years to 1 million and one!), the increased benefits to the public could easily outweigh whatever public losses there happened to be. If it would be for the net public good, why not do it?
It's to promote the progress of science. The useful arts is what patents deal with. English changes a lot, the clause was written back in the late 18th century, and well, there you go. But take a look at the then-meanings of the words in your convenient pocket OED, or just look at the structure of the clause itself, and think about which field has terms like 'prior art' or 'state of the art technology.'
Slashdot Mirror
You can't. Nice try though.
Do some lawyers, and apparently some judges, even remember why copyrights exist anymore?
;)
Copyrights are there to among other things let the copyright holder be credited for the work and benefit financially from the work through being an exclusive distributor of the work.
As other posters have said, copyright exists to promote the progress of science. It does not exist to give credit to the author, nor to let the author benefit from his work; those are means, not ends. I suggest you remember that.
_I_ don't maintain that software or business method patents are currently viable. I think they're a bad idea so long as people would invent them anyway, in response to incentives that are present in the market even if we didn't allow patents in those fields. But Congress is going to have to address this, as it's a policy issue outside of what the courts can do.
As for patenting a legal argument, I bet you could -- if it met the requirements for patentability, which would be tricky -- but _then_ you'd see an exception from Congress just as there is an exception regarding medical techniques.
Britney Spears is neither science nor an art; she's a person. Her music would fall under science; that it's bad music doesn't matter, since we don't want the government protecting or not protecting works based on their artistic taste.
Cooking is a useful art, and recipes can be patented if they meet the requirements of a patent. This does occur from time to time -- there's a patent for a peculiar kind of peanut butter and jelly sandwich, IIRC -- but often recipes lack novelty or nonobviousness, or the inventor doesn't bother getting a patent. The written expression of a recipe -- as opposed to the process for cooking that the recipe describes -- is copyrightable if sufficiently creative. But anyone could copy the process and reword it, and where the wording was not creative or original (e.g. "Pre-heat oven to 350 degrees") that wouldn't be protected at all. The difficulty in writing succinct, clear, copyrightable recipes is such that most people don't bother.
How is a cease and desist letter related in any way to "Science and useful Arts"?
It's a literary work, albeit not much of one. So it falls under science (which, in the late 18th century English of the clause, roughly means 'general knowledge' as opposed to the useful arts, which roughly means 'applied technology').
Here are some choice bits... oh, assuming the judge didn't copyright it.
Don't worry, he can't. US government works are uncopyrightable. Now, if only this were true for all other governmental agencies and the like.
Can someone share w/me the "minimal degree of creativity" involved in writing a cease and desist letter, which is not (typically) a form of artistic expression in any way?
Choice of wording, basically. It's not as though there is only one possible way to write a C&D. The threshold for creativity is incredibly low. You wouldn't believe how low it is.
Besides, isn't' the area of intellectual "property" generally covering "methods" patent law, not copyright law?
The method, yes. Though novelty and nonobviousness would surely be factors. Copyright can easily deal with the expression of a method, however, just not the underlying method itself. That is, I can write a book about how to go jump in a lake, but all I can copyright is how I describe to do it. I don't get rights regarding actually doing it. This is the idea-expression dichotomy, a fundamental copyright concept, and the leading case is Baker v. Selden, which involved books on double-entry bookkeeping.
Anyway, this isn't a huge deal. There is a process involved in fighting these things, like a long if-then-else statement. All that's happened here is that the first 'then' that could help the defendant didn't work out. There's little doubt that one of the later ones will, but the case hasn't gotten to there yet.
I don't know how things work in your country, but here books and CDs generally are not licensed at all. When you buy one, you own it. The work contained within is unownable, but may be copyrighted. The copyright, while it subsists, may prevent you from doing anything you like with the work. An analogy would be that when you buy a car, you own it, but you're still not allowed to break the speed limit, if such a limit applies. Software is really the only thing that is commonly licensed in the consumer market, and the odd thing is that there is usually no reason to do so. All that it accomplishes is to confuse people into thinking that licensing is important, common, and often a good idea, when none of those this is really true.
Who cares about the encoding? Remember, copyright law is a human construct. It does not matter whether it is encoded with one codec or another, lossy or lossless, compressed or uncompressed, digitally or analog -- if, at the end of the day, a human being (either with or without the aid of some device, such as music playing software) perceives it as being the same song, then it's the same song.
It's just like how it doesn't matter when you copy a book, if you change the typeface, or you write it in script instead of in print, or you use shorthand, or what. It's all the same thing so far as copyright law is concerned.
Based on previous experiences, I suspect that the follow-up comment will be something to the effect of, 'with the right software then, the number 1 could be the White Album, and the number 0 could be Smell The Glove, but surely the Beatles don't own the number 1.'
Well, they don't. First, because again, the specific format of the work is irrelevant so long as a person can somehow perceive it in its intended form. That is, you get a copyright on the White Album, not a specific compressed form of it. Second, because originality, and therefore provenance, are central to copyright. Originality, in this context, means that the work owes its origin to its creator. If you write down the number 1 and you didn't copy from the highly-compressed White Album, then you're fine. It doesn't matter that they are the same number, so long as there's no other connection between them. This is discussed at length in a very good essay here.
Furthermore, a work fixed in some form means nothing without knowledge of how to perceive it, whether directly, or with the aid of a machine or device. If you wrote down the number 1 and asserted that it was your work in a compressed form and that no one had better write down that number, then you'd lose unless you could show how it decompressed and that whoever you accused of infringement knew about that. For standards, this is easy: works encoded in mp3 form, for example, are easily decoded. But if you're using arbitrary techniques that no one else knew, then they couldn't've perceived the work, and thus never had a copy to begin with.
Finally, also note that the reproduction form of copyright infringement, 1) doesn't care about encoding (meaning that mp3's are straight copies, despite being lossy, and are not derivatives, not that it really matters), and; 2) doesn't care about how much was copied, particularly. Copy half of a song, and it's still infringing. Copy one note, and perhaps it is not, but copy many individual notes and reassemble them into the song again, and it's infringing because no one is so stupid as to fall for such an idiotic trick. This is because the law is applied by human beings, usually pretty smart ones who do not appreciate a wrongdoer's attempts at cleverness, who can see through this stuff, rather than mere machines that are easily duped.
Ownership of a physical object *is*, by definition, ownership of a bundle of rights (and people disagree on what rights that should include) that have that object as a referent. Ownership of a copyright is, just the same, ownership of a bundle of rights with -- yep -- physical objects as referents.
No, the sine qua non of copyright is the creative work, which is intangible. For example, there is no physical object involved in the public performance of a copyrighted play, but the performance can nevertheless infringe. Fixation is required for protection to subsist (in the US, at least) and some of the exclusive rights can only be of relevance where copies are involved (e.g. the reproduction and distribution rights), but copies aren't what copyright is all about.
Specifically, *exclusion rights* over a sphere of activity attach when someone brings something useful into the domain of human action (i.e. homesteading an object or instantiating a new idea).
Sounds like someone is a Lockean.
Remember, those rights don't attach merely because someone does something useful, but because others are willing to grant those rights to the creator because to do so is ultimately to their own net benefit. Certainly it isn't always true. You can beautify your house, and by so doing increase the value of my adjoining property by virtue of its proximity to yours, but you aren't entitled to any of the windfall I enjoy.
Just doing something isn't good enough.
Those are very strong parallels.
I agree that there is a strong argument for copyrights being property. Nevertheless, I think it is against public policy for them to be so. Copyright is meant to maximally serve the public interest, and for this to occur, Congress must have a pretty free hand to adjust copyright's length and breadth in any direction. I don't think that the takings clause is meant to interfere with this in such a way that retroactive lessening or abolishment of copyright is effectively impractical.
Why does it matter whether a) peoples' opinions about how the law *should be* given a set of axioms, conflicts with b) currently existing property law.
Because often it's appropriate for the law to reflect those norms, rather than to conflict with them. Conflict is acceptable if it's for a good reason, and attempting to use the law to alter norms is acceptable in rare, very extreme cases. But generally, norms should prevail.
Prohibition is a conflict where there was no good reason to go against societal norms, and the result was widespread disrespect for the law, corruption, and to hugely empower organized crime. Eminent domain is a conflict where there is a good reason, and conflicting norms are likely, I'm sad to say, shortsighted and irrational. Even here, however, rather than forcing the law down the throats of the people, an attempt should be made to show why takings can be appropriate. Civil rights laws protecting unpopular, discriminated-against minorities are an example of when norms are in the wrong and need to be forcibly broken down.
Personally, I'd rate copyright as being in the neighborhood of Prohibition. It's possible that some copyright could be as worthwhile in the face of conflicting norms as eminent domain is, but I don't think the copyright we currently have comes close to qualifying.
Anyway, remember that the government receives its power and legitimacy from the consent of the governed. Go too far against that, and you end up with a government that needs to be disposed of and replaced. Hence the concern for social norms when formulating laws.
The topic here is whether it's possible to consistently distinguish IP from other forms of property (and thus treat it differently) on the grounds that it "doesn't have natural limits", and I believe I have shown that *that approach* is invalid.
Well, and this goes back to why I don't care for the term 'intellectual property' to begin with, I think that you and the earlier poster were talki
No, I just know why you can't understand a simple point: you cannot consistently oppose IP but support spectrum rights on the grounds that there is scarcity in one and not the other.
Is consistency necessary? Is it ideal?
I support the concept of copyright simply because I think that if it is possible to maximally serve the public interest with regard to creative works, we ought to do so. If the mechanism of certain exclusive rights which are limited in time and scope is the best mechanism, then we ought to employ it. If a particular configuration of rights and limits is better at that than a different configuration, then we ought to use the better one.
But copyright is sui generis. The closest that it comes to property law is that a copyright itself (as opposed to the creative work the copyright governs, or copies in which that work is embodied) could be considered a piece of property; I don't think it is, but an honest argument can be made. References to property in conjunction with copyright strike me as inevitably being misleading (often deliberately so). They're usually an attempt to get us to think emotionally, rather than rationally, and to apply norms from an unrelated field (real and personal property) which are not appropriate in the copyright domain. (And of course, those norms are often at odds with property law too -- look at all the bizarre ado over the Kelo case a few years back)
I suppose that there is consistency in that copyright law is utilitarian, and property law is also utilitarian, and the regulation of the airwaves is also utilitarian. It would be nice if we could achieve greater utility in all these fields, but the means by which we do so can certainly be wholly unrelated to one another without upsetting anyone. I see no reason why, in considering what to do about copyright that anyone would ever bother to look at property law or FCC regulations; they're as irrelevant to the subject as the composition of the Moon.
When we purchase music we purchase a license to listen to the songs we paid for. I don't think the music industry understands this; apparently this has not been clarified in the courts. We are not buying the piece of plastic they are printed on.
No, you're buying the piece of plastic actually. Remember, not everything to do with creative works falls within the realm of copyright law. Copyright prevents you from lawfully making a copy of the piece of plastic, or from publicly performing it, but copyright does not prohibit you from listening to it privately. Private performances of musical works and sound recordings is in the public domain, and you don't need anyone's permission or license to do it. You do, however, need a copy of the work (the piece of plastic) in order to have access to the work you want to listen to, so that's what you go out and buy.
This point really has never been disputed by anyone who knows the law, so I wouldn't rely on the courts to side with your bizarre theories, if I were you.
We can have a thousand copies because we can only listen to one at a time.
You can _have_ that many copies, but making new copies yourself is something that falls under copyright law, and is generally prohibited.
Because the carrier medium can be damaged we should all be able to get a download of a new instance of the song we paid for from the Internet if we purchased the license to listen to it. Since the record companies have not provided a way for us to get a replacement copy the Internet downloads can ethically be justified.
It would be nice if owners of copies were allowed to freely download more copies, but that's not how things currently work. As for ethics, copyright and copyright infringement both have nothing to do with ethics in any respect; it's a utilitarian, amoral field.
No, even in civil trials, the plaintiff still bears the burden of persuasion. If he cannot make a prima facie case, then the defendant wins by default. What is different is that the standard changes. In a criminal trial, he must prove his allegations beyond a reasonable doubt in order to make the prima facie case; in a civil trial, the standard is far lower, and he only has to show that his allegations are more likely than not, even if only infinitesimally so. Since it's easier to show that modest amount of proof, rather than a far greater amount, a civil defendant is more likely to face a plaintiff with a viable case, is all.
Yes, that is true. I should be more careful with my wording. I ought to have said that fair uses are not copyright infringements. They can still be unlawful for some other reason (e.g. they're libelous). Thanks for the catch.
A fair use is non-infringing. All of the statutory exceptions are the same way. Ultimately, a copyright infringement is an act which is prima facie infringing and for which there is no defense, excuse, etc. Fair use is a defense, so while it is prima facie infringing, it is not, ultimately infringing.
It's similar to a homicide case: the prosecutor would first have to prove that you killed someone. If they cannot accomplish that (for example, the victim walks into the courtroom, alive and well), then you're off the hook to begin with. If they can prove you did it, only then do you have to even bother defending yourself by arguing, say, self-defense. Do a good job, and even though it was proved that you killed the victim, you can still get off the hook, because killing in legitimate self defense is not a crime.
The only thing that operates along the lines of what you had suggested would be AHRA, which makes certain conduct non-actionable, rather than non-infringing. That is, it's still infringing, but it cannot be tried in court. This was actually a sneaky move by the music industry for their own benefit, and very unusual to boot.
For example, I might make a blanket statement that an individual who has a legitimately obtained copy of a work should be free to use that work however they see fit in private for their own benefit, regardless of any literal copying or transformative editing involved.
Still, though, there are scenarios where that might not be a fair use. Space shifting, for example, is quite like what you describe, but it's always been borderline, and the number of alternatives provided now (e.g. iTunes, pre-encoded DRMed and licensed copies included on disc, etc.) chip away at it.
I might also make a blanket statement that it is reasonable to prohibit redistribution of a legitimately obtained work that is subject to copyright or any derivative work, in any way that materially disadvantages the copyright holder, to anyone else without the copyright holder's consent.
So you are opposed to the idea of first sale, which is how we have things like used book stores, video rentals, and libraries? How odd. N.b. also that first sale is unrelated to fair use.
Game mechanics may be patentable. They don't always qualify due to a lack of novelty and nonobviousness. And for whatever reason, few game designers seem to pursue patents on their rules. I don't know why. The only patented game rule I know of is for Magic: The Gathering, and it involves rotating cards in play, IIRC.
Copyrights and trademarks have their uses with regard to games, but they don't protect the underlying game itself, just various things connected to it (the art on the box, the name, etc.).
Things can get tricky when foreign languages are involved. The touchstone, though, is customer confusion. How many people, intending to go to Slashdot, go to Barropunto instead? If it rarely happens, then it probably isn't infringing.
By change, I meant that what we would traditionally consider fair use should probably be expanded.
We really don't traditionally consider anything to be a fair use. Each specific use -- not type of use, but each specific _act_ -- is considered on its own merits. There have been parodies and satires that were not fair uses, quoting in news reporting that was unfair, etc.
If you want to make certain classes of use non infringing, you want statutory exceptions. You don't want to screw around with fair use.
So you are against being able to time shift shows from the TV (thus killing Tivo) and against being able to space-shift music from a CD to another device (thus killing mp3 players)?
Your view isn't just overly narrow (in fact it is also broader in some places than what is currently allowed), but is instead completely unrelated to what fair use currently is.
There is no master list of fair and unfair uses. All the law says is that fair uses are lawful, and that a court can look at various circumstances regarding any specific use in question in order to see whether or not it is fair. It's very clever in that it doesn't include or exclude anything in particular. Anything can be a fair use, but nothing is guaranteed to be. Further, it allows for newly invented uses (no one from the mid-19th century, when fair use was developed, imagined time shifting television shows) to be protected without having to constantly fight battles in Congress.
Fair use is a catch-all, but there are also plenty of specific exceptions in the statutes (e.g. covering a song). I think that the uses you suggest would be better off as statutory exceptions. There's no need to screw around with fair use. Even if you have good intentions, well, we know what's paved with those.
So if I were, say, Mad Magazine, and I parodied a movie and sold copies of the magazine in which the parody was printed, you'd be against it? Or if I were a book critic and I quoted a book in my newspaper column, etc.? What if the review pans the book, causing it to flop in the marketplace?
Just because you do it for profit, or it affects the economic value of the work used doesn't mean it isn't fair use. You need to look at the totality of the circumstances. The current test does a decent job of this.
That's great, but it has nothing to do with fair use. If you want that, get a specific statutory exception covering it.
Also please n.b. that with the exception of downloaded music, ordinary consumers don't license music at all. The stupid software industry has just managed to screw up how people think of their rights in connection with works and the scope of protection the works enjoy.
I strongly disagree.
First, fair use is simply the principle that where an otherwise-infringing act is nevertheless fair, and in line with the overall goals of copyright, it is not infringing. I cannot imagine for the life of me what we would need to change about that.
Second, fair use has never been "hashed out." It's an amazingly vague bit of law and it evolves all the time in response to new developments in society.
If you think that there should be some other exceptions to copyright (such as a blanket personal use exception, or something) then implement those independently of fair use. Fair use isn't meant to be clear, it's meant to be a last resort that is capable of applying to any use, or not, as needs demand.
Consider the mashup DJs that release their own "creative works" on CD (which they then expect to have covered by copyright) or the hobbiest mashup artist that releases stuff on youtube etc. Is this fair use of the original material?
Maybe. It's certainly transformative. Some mash-ups may use only portions of the works in question, further bolstering their position. As always, you can't make a blanket statement as to what is or isn't a fair use. Each specific case must be considered in light of its own circumstances. But remember that no one seems to have much of a problem with the medium of collage in the world of the visual arts. (Not to mention art by appropriation, such as is practiced by Richard Prince) Why should the audio arts be treated differently?
The real change has been a shift is society's values. Me, me, me!
Copyright has always been about greed. The public only offers copyrights because the public is greedy for the new works that will be created and published, and the offer is limited so that the work falls into the public domain. The mechanism used to get the artists to create is their greed for money. So I don't think that too much has really changed.
I agree that copyrights and patents are good ideas. However, do you think that the current laws in those fields are ideal? If not, do you think they should generally be revised in favor of more protection, or less? Isn't it possible that the human condition is also improved by unrestricted access and use of creative and inventive materials? If so, isn't it possible that we have too much protection right now, and that we could aid humanity by diminishing these protections; while it might reduce the amount of investment (though remember that the economic value of these monopolies might not scale linearly; going from 0 to 1 year is worth far more than going from 1 million years to 1 million and one!), the increased benefits to the public could easily outweigh whatever public losses there happened to be. If it would be for the net public good, why not do it?
It's to promote the progress of science. The useful arts is what patents deal with. English changes a lot, the clause was written back in the late 18th century, and well, there you go. But take a look at the then-meanings of the words in your convenient pocket OED, or just look at the structure of the clause itself, and think about which field has terms like 'prior art' or 'state of the art technology.'