Well, remember that there are three equally important kinds of progress. 1) The creation and publication of original works; 2) the creation and publication of derivative works, and; 3) no restrictions as to what anyone may do with those works.
In an ideal world, we'd max them all out: all the works that could be created would be, and there would be no copyrights. Sadly, we don't live in this world, so the best we can do is try to get as close as we can. Merely fully pursuing any one of these goals is one strategy (and in fact, if we abolished copyright, we'd be at 100% on the third kind). But since a trade-off from one goal might yield a greater or lesser increase in another, we may be able to get to a maximum which is greater than if we merely pursued only one of the goals. Copyright aims to do this: the idea is to temporarily give up a small amount of our freedom as to works (and thus diminish the creation and publication of derivatives somewhat) in order to spur on far, far more creation and publication of original works, and a small amount for derivatives). The trick is to not overshoot, and take away too much freedom for too little net gain. Of course, that's what has happened.
So yes, attacking the idea that it would be ideal for the public to have free and convenient copies of works is contrary to promoting the progress of science.
Also, kudos for reading the clause correctly; so many people erroneously think that copyright is about the useful arts.
So? There's nothing wrong with not wanting to pay for it; that's just greed. It's the exact same motivation as the other side wanting to get paid for it. There's no moral high ground as copyright is an amoral field. (Though, if there were a moral side, it would be pirates, who greatly disseminate, preserve, and unauthorizedly contribute to our cultural legacy in defiance of those who would lock it up and dole it out for monopoly prices)
And any discussion of how bad copyright or DRM is must be accompanied by serious proposals for how we can continue to get entertainment media created in the same quantity and variety using an alternate system.
Why? The goal of copyright is to have as many works created and published as possible with as few restrictions on the public as possible. It's perfectly acceptable to have less quantity and variety so long as there is a more than proportionate increase in the freedom that the public has with respect to those works. Stop leaving out half of the equation.
My understanding is that this mostly refers to unlicensed production of bootleg copies.
No, infringement by any method is capable of being criminal infringement.
There is some ambiguity here, in that it could mean infringement without monetary gain is still investigated by the FBI but not that it is punishable by 5 years in federal prison.
No, take a look at 17 USC 506 and 18 USC 2319 for the relevant statutes.
If you willfully infringe "by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than" $2,500, and it is a second offense, then you can be sentenced to up to 6 years. (First offenders max out at 3)
No, he was basically correct. If you want absolute control over a creative work, then you must never reveal it to anyone. For once you do, your control will be less than absolute, and eventually zero. It's like keeping secrets; two people can keep a secret only if one of them's dead.
(Also, patents don't involve ideas, they involve inventions, which are a different thing. Mere ideas aren't patentable.)
Unless you're telling me that you would have independently come up with the same representation of an idea then you're not demonstrating how copyright has infringed your rights.
Wrong. I have a right to tell your story, with your words. Just like my freedom of speech protects me if I want to reprint Shakespeare's Hamlet. Copyright is only a partial, temporary limit on that inherent right to repeat what you've said, and that right originates, not from the author, but from everyone else who is willing to grant it to the author.
They don't like the risk either. There are mechanisms used for this sort of thing in all manner of fields. Various quality checks, progress milestones that have to be reached, etc. No one just hands out a check for zillions of dollars and blithely assumes that they'll get anything back for it. And if they're stupid enough to do it, they sure don't do it twice.
Create works where you make money without having to exploit the copyright (e.g. fine art, a lot of commercial art, live performance by you, etc.)
There's a reason why the artist starving in a garret or waiting tables is a cliche. Artists almost never make money (having been an artist, I know), and when they do, it often doesn't involve copyrights. Being able to support yourself from your copyrights is like a modest lottery win. Being able to get rich from your copyrights is like a major lottery win, in that it's about as unlikely!
So what you're saying is that we've already produced our best, and won't produce anything better or equal in the next few decades, and thus hindering the production of new works is a good thing?
I don't think so.
But, if we could have 90% as many works created if we reduced copyright to, say, 5% of its current size, then that would probably be a good thing to do. The objective of copyright isn't to cause as many new works to be created and published as possible; only as many as possible for the least cost. There is a point of diminishing returns, and we are well beyond it.
IIRC, the average economic value to an author of the 20 years retroactively added to copyrights by the CTEA is 5 cents. Just how much of an incentive do you think that really is? And longer terms than that just get worse and worse. This is because of the teeny tiny percentage of works that ever have economic value related to copyright, the vast majority have it immediately, rather than over their entire life.
Yes but why as an artist don't I have to right to control my work?
Well, you inherently have a right of free speech and press, as does everyone else. When you create or publish a work, this is the right you exercise. When someone else copies or republishes that work, they do the same.
Copyright can't be a natural right, since it is the right to prevent other people from exercising their natural right of free speech, and the two are squarely opposed.
However, it is possible that, when you ask everyone else in the world to please not exercise their rights so that you can have a monopoly which you can exploit for your own financial gain, that they would comply. That is what a copyright is -- everyone else giving you a small amount of power over them. It doesn't originate from the act of authorship, it originates with the audience.
However, it would be pretty stupid of the rest of the world to just let you walk all over them merely because it would benefit you at their expense. It's not going to happen unless the rest of the world gets some benefit as well. Indeed, a meager benefit for everyone else, while you are richly rewarded, still wouldn't make sense, so in fact, the public at large is going to have to wind up getting the best end of the deal, or else they won't bother.
The general idea is that the public benefits from the creation of works, the publication of works, and from works being in the public domain. Copyright, while it lasts, keeps works out of the public domain. That's a public detriment, then. It also causes some works to not be created and published that otherwise might have been (e.g. unauthorized sequels or adaptations). That too, is detrimental. But, if it can cause the creation and publication of works which otherwise would not have been created and published, then that is beneficial.
So, the benefit needs to outweigh the detriments, yielding a net public benefit. What we want is the greatest net public benefit -- the greatest public benefit for the least public detriment. Since exchanging one iota from one side may yield varying results on the other side, it can be tricky. Certainly it doesn't scale linearly, e.g. going from no copyright to a year of copyright may have a big net benefit, going from one million years to one million and one years has virtually none.
What's wrong with the free market system?
Well, copyrights are government-granted monopolies meant to subsidize authors (and, indirectly, publishers), so arguments for a free market tend to be synonymous with abolishing copyright. It isn't my position on the subject, but it's a valid thing to argue for.
There's nothing in the Constitution about free entertainment.
True. No one is suggesting that authors should be forced to create works. The idea is abhorrent.
But there's nothing in the Constitution that says that authors must be able to make a living from their writing, either. What the Constitution does say is that copyright must promote the progress of science; i.e. serve public aims.
Well, the Rule Against Perpetuities dates back to the late 17th century. Copyright dates back to the early 18th century, but the time chosen for the latter was 14+14, not life+21. It seems then, that the original framers of copyright would've found your suggested term to often be too long, and and in any case, to not have a good foundation (i.e. it ought to be a fixed term of years, rather than based on the life of the author, or someone else, whether that's long or short).
In order to create a copy, I need to already have a copy in my possession. As an uploader, I do. As a downloader, I don't.
Not quite. A copy is defined in the Copyright Act as a tangible object in which the work has been fixed. So, colloquial uses of the word aside, an mp3 file is not a copy, but the hard drive (or CD, or RAM, etc.) in which the file resides, is. You can't send tangible objects over the network, which means that it is impossible for anyone to download a copy. What actually happens is that the downloader creates a new copy on his end. It is the same as if Alice telephoned Bob, Alice read aloud from a book, and Bob wrote down everything Alice said. Bob's copy is unquestionably a copy, and it was made in an infringing manner, but Bob never actually had Alice's copy at any time.
The interesting thing is that since distribution is the distribution of copies, uploading isn't actually distribution. Sadly, the courts haven't corrected this widespread error yet, and few people have even raised the issue (since it doesn't matter much in the end in your average P2P case). What uploaders are actually doing is performance or display, which, if public, is infringing.
If the articles I've been reading are right, the RIAA has been going after people who have files in their p2p shares.
Yes. They also have been going after certain service providers and software developers. The logic is simple: attack the head of the snake. If an entire P2P network (e.g. Napster, Grokster) can be brought down, this affects many thousands or perhaps millions, of direct infringers. If a person with a file server or who is a P2P uploader is brought down, this affects hundreds or thousands of direct infringers. If a mere downloader -- a leech, who doesn't do anything else of note -- is brought down, this only affects him.
Also, it is a lot easier to find an uploader than it is to find a downloader.
Even RIAA, MPAA, et al have limited resources, so they try to allocate them in the most effective way to pursue their strategy. This means that if a lawsuit can have collateral effects that are beneficial to them, they'll prefer it over others. This is why the first round of suits were against networks et al, and it wasn't until later that suits against uploaders began. It's easier for them to do, and they hope it works better.
I leave it to you to judge how well their overall strategy has worked for them, but this is basically why they've done what they've done.
From my understanding of US law, somone has to be ruled guilty all the way to the top before the supreme court can come in and clear this up.
First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.
Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme Courts), it can choose which cases decided below it wishes to hear, in order to make the most of its limited resources. IMO, this is not a question they would probably wish to spend time on unless there is a circuit split (i.e. various parallel appellate courts adopt different interpretations and the S.Ct. has to step in to set a single standard for everyone).
It is the binding precedents that differentiate the US system from those that at least in theory base it solely on the law.
No, we're in the English common law tradition, and most English-speaking countries do the same thing, AFAIK. Frankly, I've never understood how the civil law system you refer to can work on any reasonable basis. I guess it takes all kinds.
Actually, copyright infringement is a strict liability offense. Intent usually is totally irrelevant.
By that reasoning, it seems evident to me that willfully putting a copyrighted file in one's shared documents folder, with full knowledge that would enable other people to download it, even if no downloads actually occurred, is copyright infringement. (The infringement being their making of the copy that they put there).
What if a year passed between making the copy and putting it there? This leads into an interesting question of whether a fair use analysis should look at the facts as they were at the time of the use, or if it should consider facts from other times. I think that the latter is what we can expect to occur, though I don't think that it should.
Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced.
Well, you copied, and that's infringing for sure.
Is it possible for part of the work to be reconstructed from less than four chunks? Even copying and distributing a small part of the work can be infringing, so this is important.
What if someone else unknown by me releases the other 3 chunks.
It'll be difficult to convince anyone that you weren't working together in some fashion. The argument against liability exists, but it seems very weak, and it's unlikely that the judge is going to be your friend or anything. Frankly, if none of the three secondary liability theories can be made to work for this hypo, I would be surprised if a court didn't craft a fourth just for you.
However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation ?
The key-maker, so long as your bits were truly randomly generated, and so long as the key wasn't similarly created. If XORing two randomly generated numbers happens to produce a work, then that's just a bizarre coincidence, similar to intelligible output from monkeys with typewriters. But if the key-maker copied from the original work in order to create a key that would produce it from your pad when XORed, which is far more likely than him just randomly coming up with that, then that's infringing. The actual form that the work takes isn't all that important, so long as it can be perceived, either naturally or with the aid of a device or process. Whether a copyrighted sound recording is in wav, or FLAC, or ACC, or MP3, or wax cylinder, it really makes no difference; whether lossless or lossy, again, no difference.
And again, while you're skating by, you're not going to be making friends, and secondary liability is a real threat.
The violator may be the downloader, the person who takes those files and re-creates the original but they're alot harder to catch in this scenario.
Him too. Downloaders are usually liable for copying. Distribution is far from the only kind of infringement. (And technically, providing files on a server is really not distribution; it's public performance or display, but that's another fight altogether)
It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime.
Sort of. There are two kinds of mistakes: mistakes of fact, and mistakes of law. If you make a mistake as to a fact, e.g. you try to kill someone with a voodoo doll, or you steal a car thinking that it belongs to someone else, or you shoot a corpse when thinking that it was a living person, then you're still culpable. It's only if you make a mistake as to the law, e.g. you try to smuggle a roll of dental floss into the country, because you think it is banned, that you're off the hook. This is because, as you say, it's not actually illegal to bring dental floss into the country, even if you thought that it was; your weird beliefs don't define what the law is.
Note, of course, that that's a matter of criminal law. Civil law can operate differently. For example, if you tried to steal a car that belonged to you, then there's no tort, since no one was harmed. And in any kind of law, mistakes involving intent may be relevant (though usually not in copyright law, actually, which is strict liability); for example, if you drive off in a car because you honestly thought that it was yours, and it wasn't, your innocent intent can save you.
That's incorrect. A trial court certainly may establish a precedent; it's just that the precedent would be influential, rather than binding. Influential effects of precedents are very common, in fact. For example, one appellate court might follow in the footsteps of another appellate court at the same level; courts in one state may look at the opinions of courts in another state as to similar laws; a state court might find that the interpretation of state law by a federal court is worth following; a court in one country might take guidance from a court in another country, and so on.
Frankly, people cite trial court opinions all the time. An appellate court opinion to the same effect is better, of course, but that doesn't mean that the former isn't a precedent.
Copyright deals with promoting the progress of science. Patents deal with promoting the progress of the useful arts.
The things to remember is that the Constitution was written in 1787 and that English changes a lot.
When the Constitution was written, science meant 'knowledge, generally,' and the useful arts meant 'applied technology,' basically. Note that 'art' in this meaning is still around: state-of-the-art technology, prior art, persons having ordinary skill in the art, etc. Indeed, because usefulness falls into the patent field, usefulness is often a reason to prohibit copyrights, and is never a reason to grant them. The copyrightability of software was dubious for years because of its usefulness. And useful objects (e.g. an assembled machine) are not copyrightable as to their useful components, if at all.
The structure of the clause also makes it clear:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
It always goes copyright, then patents. I.e. Science/Authors/Writings and useful Arts/Inventors/Discoveries.
For some things, that's true, but there are also plenty of dumb things in the treaties already, such as having to remove certain works from the public domain. Still, if we stop having copyright treaties altogether, it deprives our own maximalists of one of their more useful tools.
The realities of digital distribution preclude formal copyright registration in many cases. Requiring a formal process to receive the benefits of copyright protection would destroy blogging, open-source software, and several online communities not to mention commercial enterprises.
I disagree.
First, as with patents, and as with works which are fixed simultaneously with their broadcast, we could offer a grace period post-publication in which to register. This dispenses with the time element, though in order to encourage swift registration, if a work is infringed after publication but before registration, and timely registration does occur, then the remedies should be somewhat less than they could have been.
Second, copyright should be granted only where necessary, and never where unnecessary. It is an incentive to get authors to create and publish that which they otherwise would not have, where it ultimately benefits the public for this to occur. The mechanism of the incentive is a concentration of the economic value of the work in the hands of the copyright holder.
If an author would have created his work sans copyright, then he should not get a copyright; it not an incentive to him, and is therefore unnecessary. If an author isn't interested exploiting the economic value of his work via copyright, then copyright is likely not an incentive to him. If an author merely wants a copyright in order to sit on a work, then he is providing little benefit to the public, and certainly doesn't deserve our sympathy.
If an author is willing to step forward and make some clear indication that he wants a copyright, then I'm willing to take his word for it. However, this means no automatic grants. Further, since we're granting economic rights, and we expect that an author legitimately incentivized by this grant intends to use it to make money, it is quite reasonable to expect him to make at least a token investment in the form of a fee in order to secure a copyright. This doesn't merely serve as proof of incentive, but it also helps to stem abuses. I'm not actually worried about covering the costs of the Copyright Office.
Most authors are not incentivized by copyrights, and evidence this by failing to lift a finger in order to obtain them. Instead, they are incentivized by other things (e.g. art for art's sake, fame, money that can be obtained from a work sans copyright, etc.). We know this from historical example and from the paucity of registrations as compared to works created. For example, I bet that you would have still posted your comment above even if it were outright uncopyrightable. I applaud the fact that you'd contribute to our culture for free, but I'm not going to give you a reward out of my own pocket, and that is exactly what copyright is.
So if some blogger doesn't care enough about a copyright to actually get one, why should I care? OTOH, if he does care enough to actually get one, then kudos for him.
The bloggers would still be with us, but most of them would be public domain bloggers. Some might try to get copyrights, but would probably discover that it wasn't worthwhile. A few would actually manage to turn a profit by using them. I predict that few to none would quit. This would mean that everyone would be better off! We'd have more works in the public domain right away, but still incentivize authors that really needed it.
Ditto for most of the OSS people. They're not _quite_ sitting on their works via copyrights, despite twisting the system somewhat, so I do have sympathy for them. Nevertheless, I see no reason to make an exception. If they want the ability to prevent others from using their work in ways that they don't approve of -- which is precisely the same ability sought by closed-sourcers -- then they need to follow the same rules in order to get that ability.
(N.b. that I am a strong supporter of registration and deposit, and that I think that for software, deposit should include a full copy of the source to the work, with sufficien
"Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The structure of the Constitutional powers of the federal government is "everything that is not explicitly permitted, is prohibited."
You skipped ahead a bit too far. May I remind you of the following?
The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;...
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Creating a transferable right is a different thing than "securing" a right to "Authors and Inventors".
No, the right is inherently assignable from the beginning. It's all part of one thing. And it certainly falls under the elastic clause.
Besides, all that Congress had to do was to grant the right. Even if they had remained silent on the issue of alienability, it would have been permitted at common law. Our policy has always swung this way; look at the treatment of the fee tail in the US, for example.
It was only a few years after the Bill of Rights was ratified that the Sedition Act was passed. "Practice of the day" in no way overrides the meaning of the text.
True, but it is often illuminating as to what the meaning of the text may have been at the time, and might be now. Why, even the Alien and Sedition Acts were the subject of debate; the alienability of copyright never was.
Your interpretation of the copyright clause isn't one that I agree with, it isn't one that has the first atom of support in legal history, and frankly, it certainly wouldn't even be a good idea. If you want to go nuts with it, go ahead, but nuts is certainly the word that is springing to mind.
If the purpose of modern copyright is to encourage the creation of artistic works
Fortunately, it's not.
The purpose of copyright is: 1) Encourage the creation and publication of creative works; 2) Have no copyright, or if there must be any, then as little as possible, for as short a time as possible.
This is because while we do want more works created, we also want those works in the public domain. While we may want to incur a public cost in granting copyright, we want that cost to be as minimal as possible, and we want to get as much of a bang for our buck as possible.
I can guaran-fucking-tee you that taking away people's own creative work is pretty much the worst possible way to achieve that.
No, probably not. Where an author isn't incentivized by copyright, he shouldn't get a copyright; why pay for the cow, when the milk is free? Authors who are incentivized by copyright likely won't have a problem with this. It's certainly quite similar to how we used to do things in the US from our first federal copyright law in 1790 to as recently as 1978 when our copyright laws went insane.
I agree. But we can (and traditionally have) made deposit of copies of the work with the Library of Congress a condition in order to get a copyright. That way it doesn't matter if the author tries to conceal or destroy the work later. We need to substantially strengthen deposit and registration. They need to be mandatory and expansive.
Although even the Mouse is covered under trademark rules... you couldn't use their image of the mouse in your cartoons even if it was out of copyright only reproduce old versions of movies, which should be fine.
No, actually the trademark would be gutted, at best, if certain crucial works entered the public domain. Trademarks are not a substitute for copyright, and where they interact, they're actually inferior.
Slashdot Mirror
Well, remember that there are three equally important kinds of progress. 1) The creation and publication of original works; 2) the creation and publication of derivative works, and; 3) no restrictions as to what anyone may do with those works.
In an ideal world, we'd max them all out: all the works that could be created would be, and there would be no copyrights. Sadly, we don't live in this world, so the best we can do is try to get as close as we can. Merely fully pursuing any one of these goals is one strategy (and in fact, if we abolished copyright, we'd be at 100% on the third kind). But since a trade-off from one goal might yield a greater or lesser increase in another, we may be able to get to a maximum which is greater than if we merely pursued only one of the goals. Copyright aims to do this: the idea is to temporarily give up a small amount of our freedom as to works (and thus diminish the creation and publication of derivatives somewhat) in order to spur on far, far more creation and publication of original works, and a small amount for derivatives). The trick is to not overshoot, and take away too much freedom for too little net gain. Of course, that's what has happened.
So yes, attacking the idea that it would be ideal for the public to have free and convenient copies of works is contrary to promoting the progress of science.
Also, kudos for reading the clause correctly; so many people erroneously think that copyright is about the useful arts.
So? There's nothing wrong with not wanting to pay for it; that's just greed. It's the exact same motivation as the other side wanting to get paid for it. There's no moral high ground as copyright is an amoral field. (Though, if there were a moral side, it would be pirates, who greatly disseminate, preserve, and unauthorizedly contribute to our cultural legacy in defiance of those who would lock it up and dole it out for monopoly prices)
And any discussion of how bad copyright or DRM is must be accompanied by serious proposals for how we can continue to get entertainment media created in the same quantity and variety using an alternate system.
Why? The goal of copyright is to have as many works created and published as possible with as few restrictions on the public as possible. It's perfectly acceptable to have less quantity and variety so long as there is a more than proportionate increase in the freedom that the public has with respect to those works. Stop leaving out half of the equation.
Yeah, SelectaVision will never die!
My understanding is that this mostly refers to unlicensed production of bootleg copies.
No, infringement by any method is capable of being criminal infringement.
There is some ambiguity here, in that it could mean infringement without monetary gain is still investigated by the FBI but not that it is punishable by 5 years in federal prison.
No, take a look at 17 USC 506 and 18 USC 2319 for the relevant statutes.
If you willfully infringe "by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than" $2,500, and it is a second offense, then you can be sentenced to up to 6 years. (First offenders max out at 3)
The original copyright term was 14+14, not 17. It's likely related to the term chosen for the Statute of Monopolies, which was 14 years for patents.
No, he was basically correct. If you want absolute control over a creative work, then you must never reveal it to anyone. For once you do, your control will be less than absolute, and eventually zero. It's like keeping secrets; two people can keep a secret only if one of them's dead.
(Also, patents don't involve ideas, they involve inventions, which are a different thing. Mere ideas aren't patentable.)
Unless you're telling me that you would have independently come up with the same representation of an idea then you're not demonstrating how copyright has infringed your rights.
Wrong. I have a right to tell your story, with your words. Just like my freedom of speech protects me if I want to reprint Shakespeare's Hamlet. Copyright is only a partial, temporary limit on that inherent right to repeat what you've said, and that right originates, not from the author, but from everyone else who is willing to grant it to the author.
They don't like the risk either. There are mechanisms used for this sort of thing in all manner of fields. Various quality checks, progress milestones that have to be reached, etc. No one just hands out a check for zillions of dollars and blithely assumes that they'll get anything back for it. And if they're stupid enough to do it, they sure don't do it twice.
But then how do new people get started?
Traditional methods have been:
Take a loss
Obtain patronage
Create works where you make money without having to exploit the copyright (e.g. fine art, a lot of commercial art, live performance by you, etc.)
There's a reason why the artist starving in a garret or waiting tables is a cliche. Artists almost never make money (having been an artist, I know), and when they do, it often doesn't involve copyrights. Being able to support yourself from your copyrights is like a modest lottery win. Being able to get rich from your copyrights is like a major lottery win, in that it's about as unlikely!
So what you're saying is that we've already produced our best, and won't produce anything better or equal in the next few decades, and thus hindering the production of new works is a good thing?
I don't think so.
But, if we could have 90% as many works created if we reduced copyright to, say, 5% of its current size, then that would probably be a good thing to do. The objective of copyright isn't to cause as many new works to be created and published as possible; only as many as possible for the least cost. There is a point of diminishing returns, and we are well beyond it.
IIRC, the average economic value to an author of the 20 years retroactively added to copyrights by the CTEA is 5 cents. Just how much of an incentive do you think that really is? And longer terms than that just get worse and worse. This is because of the teeny tiny percentage of works that ever have economic value related to copyright, the vast majority have it immediately, rather than over their entire life.
Yes but why as an artist don't I have to right to control my work?
Well, you inherently have a right of free speech and press, as does everyone else. When you create or publish a work, this is the right you exercise. When someone else copies or republishes that work, they do the same.
Copyright can't be a natural right, since it is the right to prevent other people from exercising their natural right of free speech, and the two are squarely opposed.
However, it is possible that, when you ask everyone else in the world to please not exercise their rights so that you can have a monopoly which you can exploit for your own financial gain, that they would comply. That is what a copyright is -- everyone else giving you a small amount of power over them. It doesn't originate from the act of authorship, it originates with the audience.
However, it would be pretty stupid of the rest of the world to just let you walk all over them merely because it would benefit you at their expense. It's not going to happen unless the rest of the world gets some benefit as well. Indeed, a meager benefit for everyone else, while you are richly rewarded, still wouldn't make sense, so in fact, the public at large is going to have to wind up getting the best end of the deal, or else they won't bother.
The general idea is that the public benefits from the creation of works, the publication of works, and from works being in the public domain. Copyright, while it lasts, keeps works out of the public domain. That's a public detriment, then. It also causes some works to not be created and published that otherwise might have been (e.g. unauthorized sequels or adaptations). That too, is detrimental. But, if it can cause the creation and publication of works which otherwise would not have been created and published, then that is beneficial.
So, the benefit needs to outweigh the detriments, yielding a net public benefit. What we want is the greatest net public benefit -- the greatest public benefit for the least public detriment. Since exchanging one iota from one side may yield varying results on the other side, it can be tricky. Certainly it doesn't scale linearly, e.g. going from no copyright to a year of copyright may have a big net benefit, going from one million years to one million and one years has virtually none.
What's wrong with the free market system?
Well, copyrights are government-granted monopolies meant to subsidize authors (and, indirectly, publishers), so arguments for a free market tend to be synonymous with abolishing copyright. It isn't my position on the subject, but it's a valid thing to argue for.
There's nothing in the Constitution about free entertainment.
True. No one is suggesting that authors should be forced to create works. The idea is abhorrent.
But there's nothing in the Constitution that says that authors must be able to make a living from their writing, either. What the Constitution does say is that copyright must promote the progress of science; i.e. serve public aims.
Well, the Rule Against Perpetuities dates back to the late 17th century. Copyright dates back to the early 18th century, but the time chosen for the latter was 14+14, not life+21. It seems then, that the original framers of copyright would've found your suggested term to often be too long, and and in any case, to not have a good foundation (i.e. it ought to be a fixed term of years, rather than based on the life of the author, or someone else, whether that's long or short).
In order to create a copy, I need to already have a copy in my possession. As an uploader, I do. As a downloader, I don't.
Not quite. A copy is defined in the Copyright Act as a tangible object in which the work has been fixed. So, colloquial uses of the word aside, an mp3 file is not a copy, but the hard drive (or CD, or RAM, etc.) in which the file resides, is. You can't send tangible objects over the network, which means that it is impossible for anyone to download a copy. What actually happens is that the downloader creates a new copy on his end. It is the same as if Alice telephoned Bob, Alice read aloud from a book, and Bob wrote down everything Alice said. Bob's copy is unquestionably a copy, and it was made in an infringing manner, but Bob never actually had Alice's copy at any time.
The interesting thing is that since distribution is the distribution of copies, uploading isn't actually distribution. Sadly, the courts haven't corrected this widespread error yet, and few people have even raised the issue (since it doesn't matter much in the end in your average P2P case). What uploaders are actually doing is performance or display, which, if public, is infringing.
If the articles I've been reading are right, the RIAA has been going after people who have files in their p2p shares.
Yes. They also have been going after certain service providers and software developers. The logic is simple: attack the head of the snake. If an entire P2P network (e.g. Napster, Grokster) can be brought down, this affects many thousands or perhaps millions, of direct infringers. If a person with a file server or who is a P2P uploader is brought down, this affects hundreds or thousands of direct infringers. If a mere downloader -- a leech, who doesn't do anything else of note -- is brought down, this only affects him.
Also, it is a lot easier to find an uploader than it is to find a downloader.
Even RIAA, MPAA, et al have limited resources, so they try to allocate them in the most effective way to pursue their strategy. This means that if a lawsuit can have collateral effects that are beneficial to them, they'll prefer it over others. This is why the first round of suits were against networks et al, and it wasn't until later that suits against uploaders began. It's easier for them to do, and they hope it works better.
I leave it to you to judge how well their overall strategy has worked for them, but this is basically why they've done what they've done.
From my understanding of US law, somone has to be ruled guilty all the way to the top before the supreme court can come in and clear this up.
First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.
Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme Courts), it can choose which cases decided below it wishes to hear, in order to make the most of its limited resources. IMO, this is not a question they would probably wish to spend time on unless there is a circuit split (i.e. various parallel appellate courts adopt different interpretations and the S.Ct. has to step in to set a single standard for everyone).
It is the binding precedents that differentiate the US system from those that at least in theory base it solely on the law.
No, we're in the English common law tradition, and most English-speaking countries do the same thing, AFAIK. Frankly, I've never understood how the civil law system you refer to can work on any reasonable basis. I guess it takes all kinds.
Actually, copyright infringement is a strict liability offense. Intent usually is totally irrelevant.
By that reasoning, it seems evident to me that willfully putting a copyrighted file in one's shared documents folder, with full knowledge that would enable other people to download it, even if no downloads actually occurred, is copyright infringement. (The infringement being their making of the copy that they put there).
What if a year passed between making the copy and putting it there? This leads into an interesting question of whether a fair use analysis should look at the facts as they were at the time of the use, or if it should consider facts from other times. I think that the latter is what we can expect to occur, though I don't think that it should.
Say for example, I take a digital representation of a copyrighted work, say an mp3 file, and then I proceed to use RAID6 algorithm where I split the file up into 6 chunks, any 4 of which someone can re-create the file. Distribution of 3 of those chunks by me is not a copyright violation since the original work cannot be reproduced.
Well, you copied, and that's infringing for sure.
Is it possible for part of the work to be reconstructed from less than four chunks? Even copying and distributing a small part of the work can be infringing, so this is important.
What if someone else unknown by me releases the other 3 chunks.
It'll be difficult to convince anyone that you weren't working together in some fashion. The argument against liability exists, but it seems very weak, and it's unlikely that the judge is going to be your friend or anything. Frankly, if none of the three secondary liability theories can be made to work for this hypo, I would be surprised if a court didn't craft a fourth just for you.
However, if someone publishes "the key" that once xor'd with the file I originally published, generates the original file, who is in violation ?
The key-maker, so long as your bits were truly randomly generated, and so long as the key wasn't similarly created. If XORing two randomly generated numbers happens to produce a work, then that's just a bizarre coincidence, similar to intelligible output from monkeys with typewriters. But if the key-maker copied from the original work in order to create a key that would produce it from your pad when XORed, which is far more likely than him just randomly coming up with that, then that's infringing. The actual form that the work takes isn't all that important, so long as it can be perceived, either naturally or with the aid of a device or process. Whether a copyrighted sound recording is in wav, or FLAC, or ACC, or MP3, or wax cylinder, it really makes no difference; whether lossless or lossy, again, no difference.
And again, while you're skating by, you're not going to be making friends, and secondary liability is a real threat.
The violator may be the downloader, the person who takes those files and re-creates the original but they're alot harder to catch in this scenario.
Him too. Downloaders are usually liable for copying. Distribution is far from the only kind of infringement. (And technically, providing files on a server is really not distribution; it's public performance or display, but that's another fight altogether)
It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime.
Sort of. There are two kinds of mistakes: mistakes of fact, and mistakes of law. If you make a mistake as to a fact, e.g. you try to kill someone with a voodoo doll, or you steal a car thinking that it belongs to someone else, or you shoot a corpse when thinking that it was a living person, then you're still culpable. It's only if you make a mistake as to the law, e.g. you try to smuggle a roll of dental floss into the country, because you think it is banned, that you're off the hook. This is because, as you say, it's not actually illegal to bring dental floss into the country, even if you thought that it was; your weird beliefs don't define what the law is.
Note, of course, that that's a matter of criminal law. Civil law can operate differently. For example, if you tried to steal a car that belonged to you, then there's no tort, since no one was harmed. And in any kind of law, mistakes involving intent may be relevant (though usually not in copyright law, actually, which is strict liability); for example, if you drive off in a car because you honestly thought that it was yours, and it wasn't, your innocent intent can save you.
Copyright infringement is not a criminal offense for a good reason
Some copyright infringement is criminal, actually. Take a look at 17 USC 506, for example. It's just a fairly low priority for the DOJ is all.
That's incorrect. A trial court certainly may establish a precedent; it's just that the precedent would be influential, rather than binding. Influential effects of precedents are very common, in fact. For example, one appellate court might follow in the footsteps of another appellate court at the same level; courts in one state may look at the opinions of courts in another state as to similar laws; a state court might find that the interpretation of state law by a federal court is worth following; a court in one country might take guidance from a court in another country, and so on.
Frankly, people cite trial court opinions all the time. An appellate court opinion to the same effect is better, of course, but that doesn't mean that the former isn't a precedent.
You're misreading the clause.
Copyright deals with promoting the progress of science. Patents deal with promoting the progress of the useful arts.
The things to remember is that the Constitution was written in 1787 and that English changes a lot.
When the Constitution was written, science meant 'knowledge, generally,' and the useful arts meant 'applied technology,' basically. Note that 'art' in this meaning is still around: state-of-the-art technology, prior art, persons having ordinary skill in the art, etc. Indeed, because usefulness falls into the patent field, usefulness is often a reason to prohibit copyrights, and is never a reason to grant them. The copyrightability of software was dubious for years because of its usefulness. And useful objects (e.g. an assembled machine) are not copyrightable as to their useful components, if at all.
The structure of the clause also makes it clear:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
It always goes copyright, then patents. I.e. Science/Authors/Writings and useful Arts/Inventors/Discoveries.
For some things, that's true, but there are also plenty of dumb things in the treaties already, such as having to remove certain works from the public domain. Still, if we stop having copyright treaties altogether, it deprives our own maximalists of one of their more useful tools.
The realities of digital distribution preclude formal copyright registration in many cases. Requiring a formal process to receive the benefits of copyright protection would destroy blogging, open-source software, and several online communities not to mention commercial enterprises.
I disagree.
First, as with patents, and as with works which are fixed simultaneously with their broadcast, we could offer a grace period post-publication in which to register. This dispenses with the time element, though in order to encourage swift registration, if a work is infringed after publication but before registration, and timely registration does occur, then the remedies should be somewhat less than they could have been.
Second, copyright should be granted only where necessary, and never where unnecessary. It is an incentive to get authors to create and publish that which they otherwise would not have, where it ultimately benefits the public for this to occur. The mechanism of the incentive is a concentration of the economic value of the work in the hands of the copyright holder.
If an author would have created his work sans copyright, then he should not get a copyright; it not an incentive to him, and is therefore unnecessary. If an author isn't interested exploiting the economic value of his work via copyright, then copyright is likely not an incentive to him. If an author merely wants a copyright in order to sit on a work, then he is providing little benefit to the public, and certainly doesn't deserve our sympathy.
If an author is willing to step forward and make some clear indication that he wants a copyright, then I'm willing to take his word for it. However, this means no automatic grants. Further, since we're granting economic rights, and we expect that an author legitimately incentivized by this grant intends to use it to make money, it is quite reasonable to expect him to make at least a token investment in the form of a fee in order to secure a copyright. This doesn't merely serve as proof of incentive, but it also helps to stem abuses. I'm not actually worried about covering the costs of the Copyright Office.
Most authors are not incentivized by copyrights, and evidence this by failing to lift a finger in order to obtain them. Instead, they are incentivized by other things (e.g. art for art's sake, fame, money that can be obtained from a work sans copyright, etc.). We know this from historical example and from the paucity of registrations as compared to works created. For example, I bet that you would have still posted your comment above even if it were outright uncopyrightable. I applaud the fact that you'd contribute to our culture for free, but I'm not going to give you a reward out of my own pocket, and that is exactly what copyright is.
So if some blogger doesn't care enough about a copyright to actually get one, why should I care? OTOH, if he does care enough to actually get one, then kudos for him.
The bloggers would still be with us, but most of them would be public domain bloggers. Some might try to get copyrights, but would probably discover that it wasn't worthwhile. A few would actually manage to turn a profit by using them. I predict that few to none would quit. This would mean that everyone would be better off! We'd have more works in the public domain right away, but still incentivize authors that really needed it.
Ditto for most of the OSS people. They're not _quite_ sitting on their works via copyrights, despite twisting the system somewhat, so I do have sympathy for them. Nevertheless, I see no reason to make an exception. If they want the ability to prevent others from using their work in ways that they don't approve of -- which is precisely the same ability sought by closed-sourcers -- then they need to follow the same rules in order to get that ability.
(N.b. that I am a strong supporter of registration and deposit, and that I think that for software, deposit should include a full copy of the source to the work, with sufficien
"Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The structure of the Constitutional powers of the federal government is "everything that is not explicitly permitted, is prohibited."
You skipped ahead a bit too far. May I remind you of the following?
Creating a transferable right is a different thing than "securing" a right to "Authors and Inventors".
No, the right is inherently assignable from the beginning. It's all part of one thing. And it certainly falls under the elastic clause.
Besides, all that Congress had to do was to grant the right. Even if they had remained silent on the issue of alienability, it would have been permitted at common law. Our policy has always swung this way; look at the treatment of the fee tail in the US, for example.
It was only a few years after the Bill of Rights was ratified that the Sedition Act was passed. "Practice of the day" in no way overrides the meaning of the text.
True, but it is often illuminating as to what the meaning of the text may have been at the time, and might be now. Why, even the Alien and Sedition Acts were the subject of debate; the alienability of copyright never was.
Your interpretation of the copyright clause isn't one that I agree with, it isn't one that has the first atom of support in legal history, and frankly, it certainly wouldn't even be a good idea. If you want to go nuts with it, go ahead, but nuts is certainly the word that is springing to mind.
If the purpose of modern copyright is to encourage the creation of artistic works
Fortunately, it's not.
The purpose of copyright is: 1) Encourage the creation and publication of creative works; 2) Have no copyright, or if there must be any, then as little as possible, for as short a time as possible.
This is because while we do want more works created, we also want those works in the public domain. While we may want to incur a public cost in granting copyright, we want that cost to be as minimal as possible, and we want to get as much of a bang for our buck as possible.
I can guaran-fucking-tee you that taking away people's own creative work is pretty much the worst possible way to achieve that.
No, probably not. Where an author isn't incentivized by copyright, he shouldn't get a copyright; why pay for the cow, when the milk is free? Authors who are incentivized by copyright likely won't have a problem with this. It's certainly quite similar to how we used to do things in the US from our first federal copyright law in 1790 to as recently as 1978 when our copyright laws went insane.
I agree. But we can (and traditionally have) made deposit of copies of the work with the Library of Congress a condition in order to get a copyright. That way it doesn't matter if the author tries to conceal or destroy the work later. We need to substantially strengthen deposit and registration. They need to be mandatory and expansive.
Although even the Mouse is covered under trademark rules... you couldn't use their image of the mouse in your cartoons even if it was out of copyright only reproduce old versions of movies, which should be fine.
No, actually the trademark would be gutted, at best, if certain crucial works entered the public domain. Trademarks are not a substitute for copyright, and where they interact, they're actually inferior.