The issue is simply whether or not the respective rights are considered by society to exist, and to be protected by law.
Yes, but if there are other, conflicting rights which are also considered to exist and which are protected, the issue of which has priority, and why, and under what circumstances becomes an issue.
According to the WIPO, Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
Yes, and WIPO is at the center of this bit of disinformation. In any event, such a meaning doesn't make sense, as I've pointed out before.
To the extent that different forms of property differ in their nature, the rights associated with them differ, and hence so must the laws regulating those rights. Laws regulating the rights associated with land ownership, for example, tend to be different from those relating to ownership of personal belongings.
Certainly. However, there are two problems with this. First, there basically are only two property regimes: real property for land, and personal property for pretty much everything else. If creative works were capable of being property at all, they'd be personal property, as I've said. The trouble is, they're incapable of being property, in large part due to their non-rivalrous nature. Copyrights, OTOH, are an artificial monopoly which is related to a work, but distinct from it, and which is rivalrous and is likely property. And copies are property too, but that goes without saying. You can buy or sell copies, and you can buy or sell copyrights, but you can't buy or sell works. Copyrights are a stand-in for what it would be like if works were property. And certainly, copyrights are just another kind of personal property, not particularly different from a brick.
You seem to be suggesting that 'intellectual property' and 'intellectual property rights' are synonymous. They are in fact different things, just as land and the rights associated with land are different things.
I am saying for a fact that they are synonymous, because there is no other reasonable or logical meaning for them.
However, improvements in DRM technology may do something to mitigate that.
Of course, the problem is that DRM is just self-help and is a mechanism for evading the portions of copyright law which happen to be meant to benefit the public from whom the authority for such laws is drawn anyway. DRM is incapable of only protecting the rights of the copyright holder without infringing on the rights of the public. It doesn't expire at the end of the term, it doesn't permit fair uses and other excepted uses while prohibiting those which may be prohibited, etc. And there's the problem of perfect enforcement, which I have discussed before. Control over DRM is another problem, e.g. if I personally make a DVD and apply CSS to it without working with the DVDCCA (which is likely possible, as there's no law against it, and CSS doesn't seem to be patented or anything), can I authorize DeCSS to be used on my DVD and expressly not authorize commercial DVD players, and have my choice be meaningful, or will people still get in trouble for trafficking in DeCSS? In other words, are some copyright holders more equal than others? Likewise, if I create original sound recordings and tape them onto DAT, will a consumer DAT player allow me, the copyright holder, to make multiple generations of copies, or will it arbitrarily prevent me from doing what I have a legal right to do merely because the recording industry can afford professional DAT decks and I can't?
If courts routinely struggle with whether a particular use is lawful or not, and over questions of licensing, and so forth, then I have no faith whatsoever in a mere machine to handle these same sorts of issues. Nor do I appreciate the idea that a lawless activity should be impossible to engage in from the start, rather than being capable of being broken, with enforcement coming after
This view that absolute free speech is inherently good, and must necessarily trump all (or most) other fundamental rights is simply baffling to me. What possible social benefit is there in allowing defamation and incitement?
It's safer than allowing the power of the government to be used against people merely because of their speech. Remember, I did say that while I find the idea of an absolutist right of free speech attractive, I do struggle with it for basically the sorts of reasons you mention.
If freedom of speech is about the right to express any opinion or idea openly, and without fear of censorship or legal reprisal, why do you need the right to precisely duplicate someone else's words?
Why should the precise content of speech have to be justified to anyone? If people are going to have freedom of speech, then that means that they have the freedom to choose what speech they want to engage in. If it's identical, then it's identical. Who cares?
Intellectual property refers to works.
That's clearly not the case. First, if works were property, if they could be property, we wouldn't need copyright law to simulate to some extent what it would be like if they were property. Ordinary personal property laws would suffice. Secondly, a copyright and a work to which a copyright pertains are distinct entities. And when a copyright expires, the work does not. But the work is no longer anyone's property at that point, it is free to the public. Copies, the third kind of distinct entity, are clearly ordinary personal property; a book is no different than a comb or a table, so it can't be that.
If the term 'intellectual property' has any real meaning, then it must refer to the exclusive rights, and not to the subject of those rights, or copies in which those subjects are fixed.
You're using the term in a meaningless and confusing way. This is why I object to it altogether; it doesn't help understanding of these issues in the least, and it strives to confuse laypeople into thinking of whatever vague thing happens to be called 'intellectual property' today as being basically the same as real or personal property, so that they'll use those norms in relation to it, and not others.
Everything that falls under that umbrella is basically sui generis, not just as a group, but even within that group. It is maliciously deceptive to try to wrestle in norms regarding property, and I don't tolerate it.
For example, a literary work is the property of its author, and can quite obviously can be transferred amongst different countries with individual laws concerning the author's rights.
Actually, if it's had some manner of public release, a work can't really be transferred; that would require movement. You can't, say, publish a book in the US and then expect to move the intangible work, which is fixed in every copy, and present in other places too, and just up and move everything to Canada. You can stop publishing in one area and start publishing in another, but you're just expanding where the work is present, not moving it. And whatever remains in the US would remain subject to US law, regardless of what you're doing in Canada. Plus, you'll have difficulty in preventing the work from moving across national borders, so even if you did somehow manage against all odds to transfer the work to a different jurisdiction, it'll just come back again.
This is basically the meaning of the aphorism 'information wants to be free.' It has nothing to do with price, it has to do with movement. Just as you can't put toothpaste back in the tube, information will tend to spread, and not tend to contract. Only if the information -- in this case a whole work -- has not been spread widely, will there be much of a chance of controlling it. But the copyright industry depends on publication. An author only makes money when there are many thousands of copies floating out there, being bought up, lent, resold, etc. You can't do that and then expect to counter it when it be
I'll take your word on this, but are you suggesting that you think the USA will withdraw from the Berne Convention?
If you've been reading Slashdot for long, you'll have seen the many complaints about term length, and indeed, term length is the most common complaint about copyright law (which I consider a bit dangerous to concentrate on, actually, since there are other important issues too). Currently, the US generally uses life+70. For most works, Berne requires a minimum term length of life+50 for works which fall under it. If we went back to the minimum Berne-compatible term, I don't think the people calling for reform would be appeased.
If the single greatest complaint about US copyright law is going to be addressed, it's going to require that we pull out of Berne. And since other big problems about our current law require pulling out of Berne, e.g. re-implementing formalities, there's really very little chance that any possible reform will see us not pull out.
Do you consider other laws which are frequently violated, such as rules governing driving, to be against social norms? Alternatively, do you suppose the ones violating these laws support them in principle, but believe there are cases where other priorities override them?
No, you're right in that there is a category of laws where people believe in them, but tend to break them anyway (for example, in the city where I live, everyone jaywalks). However, part of the calculus is also the degree of enforcement. A law which is acceptable in principle, and which is widely broken without serious harm, and not seriously enforced, is tolerable. If, say, enforcement became heavy-handed and common, people's attitudes would likely change. This is why things like DRM are making people upset with copyright law; people traditionally have believed in copyright law, or at least been tolerant of it, but haven't much felt it to be applicable to them as they make a mix tape, or something. Make it impossible for them to make a mix tape, and they'll start to get upset. On a similar note, the oppressiveness of complete enforcement is why traffic enforcement by camera is so opposed here.
Do you view laws protecting individuals from defamation, incitement and so on as being inherently opposed to the right of free speech too?
Yes. And like a lot of people, I have a tough time trying to reconcile the practical benefits of those sorts of laws with the very attractive position of absolute free speech, which is, after all, what the Constitution actually says. Don't think this is a fringe view, either. Consider, say, Supreme Court justices like Douglas or Black who also had this view.
An author's rights apply only to a specific work, not to the underlying ideas. There is absolutely no question of authors' rights preventing open discussion of anything.
So? Free speech applies to the literal expression, as well as the underlying idea. I'm well aware of the idea/expression dichotomy, it's just not relevant for this discussion.
Surely this is obvious: the author is dead.
Just because he's dead doesn't mean that his reputation, which is subject to injury, is dead too.
Even the right to life is not absolute in the USA, where the state still lawfully kills people.
And I'm opposed to that too. Lots of people are, and it's being worked on. The US is far from perfect, as is everywhere else, really. Copyright law just happens to be my pet issue.
I pointed out the need for coordination, if intellectual property is to be transferred amongst countries. You replied that copyrights are still national, which as far as I can see is irrelevant.
"Intellectual property" is a nonsensical, dishonest term. But if anything is IP, then it is things like copyrights, patents, trademarks, etc., rather than the underlying works, inventions, business reputations, etc. to which those pertain, or copies, embodiments, goods, etc. in which they may be found. So when you said that IP
If the Berne Convention goes against the views of US society, why did the US government ratify it?
Congress has basically been controlled by special interests with regard to copyright law for, oh, about a century. It's been getting worse in the past 40 years. The USTR isn't particularly helpful either. Traditionally, in the US, copyright law has been quite obscure and outside of the notice of most people. This hasn't meant, however, that people don't have various internalized norms. Traditionally, those norms and the law have pretty much been in agreement. But as the laws have changed, and as technological progress has proceeded, they've been getting increasingly at odds.
What do you mean by not real?
I don't see any way to reconcile the idea of an inherent right of free speech, which is inclusive of the right to repeat the speech of others, and to be associated with it, or to alter it in ways which might be opposed by the originator of that speech, and a right to prevent others from doing so. I think that if there is any such thing as an inherent right, it is far more likely to be the former than the latter. If they're artificial, then as a form of copyright, they're going to need to be utilitarian. But the supposed basis for moral rights is anything but utilitarian, though I suppose that the hypocritical implementation of them arguably is.
a similar view that one has a right to own property?
Actually, property rights beyond your ability to personally defend things have long been known to be utilitarian in nature, and indeed, there are lots of limits on real property ownership that derive from this. But it developed organically, so it was a long time before people actually realized this.
In what way?
Why do the rights expire? Why are they sometimes waivable? Why is it that they don't always apply? They are, in fact, just another kind of economic right, but a particularly bad one, in that there's so little economic value involved and so much public cost.
If intellectual property is allowed to be transferred from one country to another
Perhaps something is changing in the EU, but generally and traditionally, they cannot be. Berne, for example, involves reciprocity: if the US grants a US copyright to an author for a work, the UK has to grant a UK copyright to the author for the work, the French have to grant a French copyright to author, etc. The copyrights are all still territorial: a US copyright has no effect outside of the US, and foreign copyrights have no effect within the US.
Those who violate laws designed to protect these rights are not committing victimless crimes, they are violating what society views as the rights of the authors of the works involved. An individual who does not share the views of the broader society cannot simply ignore those views, at least not when they are expressed through law.
Yes, but you are assuming that the laws always reflect societal views. I argue that this is not always so. Sometimes society is in the wrong -- e.g. laws against racial discrimination were a good idea, despite the widespread support for discrimination. But this is not terribly common, and generally involves matters of great importance. Copyright is quite trivial compared to civil rights matters. It's a public convenience, but not anything more. It isn't appropriate for it to conflict with social norms. People who violate laws which are at odds with social norms are not acting wrongly, and should in fact be aided by changing the laws to make their already legitimate behavior actually lawful. US Prohibition was a great example of this. It's also an instructive example because when you have laws that are not in the natural tendency of people to follow, and which are fairly trivial, lawlessness is common, and this can result in widespread disrespect for many laws, support for organized crime, etc. Had alcohol not been banned in the US, the Mafia would have had less opportunity to grow here, there would'v
Reflecting the broader views of the socieities which have ratified it, the Berne Convention (BC) recognises both economic and moral rights of a copyright holder.
I don't think that that's true. I think that society should be prepared to grant rights to authors but only where it is the self-interest of society to do so, and then only to the minimum degree that provides the maximum benefit to the society in question. But I don't recognize that authors or others to whom the authors have transferred them innately have rights which could be recognized, nor do I think that moral rights are publicly beneficial or even real -- everyone who supports them is being hypocritical, IMO. Though it's far from the worst thing about Berne, and not the only reason why the US sensibly rejected it for so long.
I would dance the jig of happiness if the US did the sensible thing and pulled out of TRIPS, Berne, and all the other copyright treaties, and instead implemented whatever system was best for us. And I would be pleased to see other countries do likewise. The only international cooperation that is a good idea vis a vis copyright is for countries to unilaterally have national treatment (since, after all, the nationality of authors has nothing to do with whether or not it will benefit your people to incentivize them to create and publish works), and to work together informally so as to avoid conflicts between their laws (e.g. formalities) which would force authors to choose between copyrights in two different countries, since there would be no possible way to get them in both.
If you violate copyright law, you are not only violating the economic right of the owners of the relevant works to compensation for your use of those works, but also their moral right to control public access to their works, and potentially other rights as well.
That strikes me as somewhat of a tautology; you're saying that when you break the law, you break the law which is bad, so the law should be against that. While I don't like people violating copyright law, I have no qualms whatsoever with legalizing their current piratical behavior so that, for example, noncommercial file sharing amongst natural persons would be perfectly okay. Copyright law is purely and solely utilitarian (when not corrupt) and should generally conform to social norms. Society is speaking and is apparently happy with non-commercial piracy. The law should reflect this. C.f. Prohibition in the US.
Even if a compilation is not creative, it can still be subject to contract or trade secret law.
True. However, in the case of tv listings which have been published online, they're clearly not trade secrets. A contract is possible, but AFAIK none of the sites that have the listings bother with them. Specht v. Netscape would be instructive in such a case.
In the US, at least, you cannot copyright a fact. While it is sometimes possible to copyright a compilation of facts, this is only possible where the selection and arrangement of the facts is itself creative, and even then, that copyright only covers the particular compilation, and not the facts in the compilation. Uncreative compilations are uncopyrightable.
In the case of TV listings, the selection is all the channels and shows offered by a given TV provider in a particular area, during a particular time. That's not creative. The arrangement is typically a grid with time on one axis and channels on another, in ascending order. That's not creative either.
Software is not an exception to First Sale. The issue, rather, is that you're misunderstanding Bobbs-Merrill; it limits the power of the copyright holder after the first sale, but it never said that works couldn't be licensed, rather than being sold.
Of course, there's dispute as to whether or not your average EULA is a license or a sale or what, which mostly revolves around how you interpret the UCC. But it's also worth noting that there is no real reason for licensure in the realm of software sold to customers in cardboard boxes, etc. The developers don't really gain a significant advantage, it isn't something that is desired by the customers. Other than unthinking tradition, I've never seen why people would bother, and no one has ever managed to come up with any ideas as to what is so important about licensing here.
RAM just means that any portion of the memory can be read and written, as opposed to having to access memory sequentially (as with a tape). There's many different technologies. Since people want it to be very fast, affordable, and reliable over a long period of time, some technologies are better than others.
DRAM is volatile, and widely popular. But there are other kinds of RAM in the past (e.g. core) which weren't volatile, and there is R&D going on to make a form of non-volatile RAM that is superior to DRAM.
Indeed, all else being equal, I'd rather have non-volatile RAM. It'd be great for laptop battery life and preserving data against power loss. You'd want to add a switch that could purge the RAM in case you needed to restart from a crash, though.
That brings up an interesting question. When you, I, or anyone purchases music, the purchaser becomes the licensee of said content, right?
No, at least not for most forms of music purchase, e.g. vinyl, tape, CD. Authorized downloads likely involve some manner of license to permit the downloading itself, but needn't necessarily cover anything beyond that.
Generally speaking, only the licensee is authorized to listen to the music.
Since there's no license, that's untrue. Besides which, licenses only cover, and are only available for, acts which are otherwise infringing. Since the mere right to listen is not part of copyright to begin with, merely listening can't infringe, and so can't be licensed and doesn't need to be.
What if a corporation/non-profit/non-singular entity or group purchases the music?
For corporate entities, the entity itself is the owner, rather than, say, the shareholders. Owning a share of Disney stock doesn't entitle you to make copies of Steamboat Willy.
What you're really asking is whether some sort of collective ownership of a copy could get around copyright laws. After all, where the laws don't restrict you, you don't need a clever tactic. I'd say that you'd have to look at precisely what you're doing and what the relevant law is. For example, I think that since the fourth factor of a fair use analysis would likely go against the use (since you're basically looking for a way to buy one copy as a substitute for other purchases), it would be difficult to avoid breaking the law if you went through with it.
230 doesn't apply to copyright infringement, and in cases where it is applicable, it doesn't matter whether the ISP filters or not, it still applies. (In fact, remember that the CDA was meant to encourage filtering, it's just ironic that it ended up having the opposite effect)
No, not Gurps. It was West End Games that had the Star Wars RPG license for a long time. It was a fun game. I'd be interested to know how this stacks up against it.
Maybe. But bear in mind that software patents are quite new, yet we had software industries before that were thriving much like they are now. Software patents are less common and often unavailable elsewhere in the world now, yet there are plenty of inventive developers worldwide. We have pretty good evidence that software patents aren't providing a public benefit which outweighs their costs. I'm not averse to looking into other fields as well, but we can start with this one, where it is particularly evident.
The claim that software is somehow special and different from all the other fields of technology simply isn't very convincing
Well, I think that what's unusual is not software itself, but the software industry (and also the business method industry). Patents are meant to serve the public interest by encouraging the invention and availability on the market of novel, nonobvious inventions, to disseminate and preserve the knowledge underlying those inventions, and to make those inventions free to all as much as possible, as rapidly as possible, still bearing the totality of the goals in mind. Of course, bear in mind that there are other encouragements as well which are independent of the patent system, as well as other mechanisms for dissemination and preservation. Also remember that the most immediate freedom is to not have patents at all.
I don't think that software patents are actually encouraging invention or bringing-to-market, dissemination or preservation of knowledge about them, and they are certainly interfering with making the inventions free to all. I think that if we abolished software patents, we'd see the industry thrive just as much as it is now, and possibly more so. This might not be true forever, and so I would only put a moratorium on software patents, to be revisited periodically, but for the time being, we ought to abolish them as they are simply not doing what patents are supposed to do. They're not promoting the progress of the software arts, and may very well be impeding them. Let's take a pragmatic view, rather buying into the 'everything under the sun' dogma.
Have a requirement for the copyright on the binary be the disclosure of the source code. This is desirable copyright policy since part of the purpose of copyright is to preserve and disseminate human knowledge widely and meaningfully. A binary can be used, but the knowledge that goes into it -- much of which isn't protected by copyright, btw -- is quite difficult to suss out at best. This hasn't traditionally been a problem for other copyrighted works; it's a lot easier to analyze a novel and to make lawful changes to it during the term, and any changes at all after the end of the term. Software merely needs a supplemental deposit requirement to bring it up to the standard of other works. This is also rather similar to the patent field, where it is generally considered to not be good enough that an invention might describe itself and be self-evident, and so the patent applicant must disclose a lot of his knowledge about the invention to help the public understand and use it.
This would mean that you couldn't have a trade secret and a copyright on the same material at once, but the same goes for patents, and I don't see that that's a big loss.
Also, source code and binaries are basically embodiments of the same work. I wouldn't characterize one as a derivative of the other. It's much like how a set of blueprints and a finished structure are both embodiments of the architectural work contained within both, and aren't two separate works.
Courts do routinely look at certain factors in making their decision, however.
Does the presence of the citation have an effect on the purpose and character of the use? No, not really. The use of the quoted material is still just as commercial or non-commercial, or whatever, either way.
Does the presence of the citation have an effect on the nature of the work the quoted material comes from? Absolutely not.
Does the presence of the citation have an effect on the amount and substantiality of the quoted material in relation to the entire work from which it is drawn? Again, absolutely not.
Does the presence of the citation alter the degree to which the use of the quoted material affects the value of and market for the work from which it is drawn? I don't see how. Either the quote is going to be a substitute for the work or it won't be. Additional material which is not itself part of the quote won't change that. This isn't to say that the quote can't have an effect; for example, while titles and short phrases are not copyrightable, consider the book 'Men are from Mars, Women are from Venus' where you've learned all you really need to about it merely by knowing the title.
So while fair use is about what's fair, it's not quite as loose as you seem to think. Proper citations are important for academic and often professional honesty, and for providing thorough information so that readers can go back and verify your material and benefit from your research. But from the standpoint of copyright law, it is irrelevant.
No it's not. The presence of citations in a quote doesn't affect whether it is infringing or not. Rather, it is good practice for purposes of avoiding plagarism (which isn't illegal). Citing others' work, when it is used, is good academic and professional practice. Nothing to do with the law, though.
The problem becomes, how many ways can you write a single piece of code? At present, you are fairly limited by the languages available as to what you can and cannot do. This means that you could get several pieces of code doing the same task that look nearly identical. Now is this going to be copyright infringement? Variable names could even come out looking very similar if both programs were coded using the same naming convention. There is a huge problem with treating a software copyright like an "art" copyright.
Actually, it's not. Copyright pertains to the expression portion of software, but not the underlying ideas, functionality, etc. Ultimately, maintaining this distinction takes priority over copyrightability. For example, where there is only one or only a limited way of expressing a given idea, the idea and expression are considered to have merged, and there cannot be a copyright, lest it effectively protect the uncopyrightable idea. This is known as the merger docrine.
There's also the scenes a faire doctrine, which makes uncopyrightable things like stock story elements. For example, in horror movies, someone originated the routine bit where the mood is set when you see a wolf howling, silhouetted against the moon. But it's unprotectable since it's a common, stock element. The doctrine is used in the software field, both for elements which would be common across much software, as well as for portions of the code which are dictated by external considerations such as efficiency or platform compatability, and so lack some originality.
Finally, there's the fact that copyright infringement has nothing to do with identicality, but rather has to do with originality. That is, it isn't unlawful for Alice's program to be identical to Bob's program, so long as Alice didn't copy her program from Bob. For many works, independent creation -- when it happens -- can still be tricky to show. But for closed source software, it would be tricky for the alleged infringer to have seen the source. The accused would want to have kept some records to help vindicate themselves, and if they did have some kind of access (e.g. Alice used to work for Bob's company and could reasonably have snuck a copy out), they'd have a pretty strong case. Reverse engineering can qualify as access -- e.g. if you decompile the binary -- but again, the underlying functionality isn't protected by copyright, only the way in which it is expressed can be, subject to the limits discussed above. That's why cleanroom reverse engineering is a good strategy to follow.
You might also want to look at the abstraction-filtration-comparison test in the Altai case to see how courts will often compare two pieces of software to see if there has been infringement.
So the authority to offer compensation for taking land is there.
Yes. You've agreed that the government has the power to take land. Remember that word: take. Not 'buy,' or 'purchase,' but take. That is to take it from the previous owner, whether that person likes it or not.
Which brings us to this: No such thing as "just compensation" can be established by third parties if the property is not offered for sale.
Assuming that you're right -- you're not, btw -- then we'd have a little conundrum.
You are saying that the government can forcibly take property from people, but only if it is offered for sale, which means that it isn't being taken at all. That is a nonsensical position.
Alternatively, we could say that the government has the power to take land that is not offered for sale, but only if they pay a just price for it, again, regardless of the fact that it isn't for sale. This leaves you with the problem of computing that price, but this is presumably doable, and if there is an argument about it, it can be settled in court like so many other arguments.
The value of the property to the owner is as high as the owner says it is
Actually, that is wrong. The price is as high as the owner says it is. But if the price is too high, then the property will not sell. The actual value of the property is whatever you can, in fact, sell it for. This is often considerably lower than the initial asking price.
For example, I have a rock (it's one of those tiger-repelling rocks) for which I ask one hundred billion dollars. But if all I can ever actually sell it for is a mere one million dollars, then it's worth one million dollars and nothing more. You're on Slashdot, I'm sure you understand this in application. Think of how rapidly computers depreciate in value. The second you open the box it becomes used, and thus even if you sold it the next day, without anything having come out with better specs, you still cannot get as high a price for it as you paid. Cars do the same thing.
It's an enumerated power, and there is no authority implied or specified that allows mucking about with commerce internal to a state.
Unless that commerce is interstate commerce despite remaining within the state. Honestly, your argument has lost since Gibbons, which was back in the 1820's.
That observation in no way precludes the fact that there are other ways to build roads, including ways that don't screw with people's properties at all. You can go under them; you can go around them; worst case, you can even go over them, though you certainly ought to pay for that privilege.
The funny part is that tunneling would 'screw with' the owner's property, as would building an elevated road. Due to aircraft, we no longer have 'cuius est solum, eius est usque ad coelum et ad inferos' but you weren't quite going that high up. Also an elevated road can be quite bothersome. The Central Artery in Boston was elevated, and had nightmarish effects that have cost a lot of money to ameliorate. Of course, they replaced it with a tunnel that brings with it the nightmare that it'll collapse on you....
Anyway, it's actually a real pain in the ass to build a road when you have to get the property owners in the path to voluntarily sell to you. Some will sell for a reasonable price, some will try to get an unreasonably high price, and some will absolutely refuse to sell. If we did it that way, nothing would ever get built, given the hundreds or thousands of different owners along the path for the road. Going around might work, but it would make the roads a mess and insanely inefficient. Imagine driving from New York City to Philadelphia via Missouri.
Governments derive their powers from their people, with the idea being that if people could live harmoniously together without government we would, but in practice we don't, so we put together governments to help with this. We invest a takings power with the government because it is recognized that the government works better for the populace as a whole when it can work for them without each individual having significant veto power over it. (This is also why votes are usually taken by majorities without unanimity being required.) We also recognize that we don't want the government running roughshod over individuals, so we put in some protections for them too.
If I own a piece of land, and I want to sell it, that is where it can be determined that it has a specific monetary value.
Okay. Alice is a homeowner and Bob is an arsonist. Bob burns down Alice's house. Since Alice didn't want to sell, her house has no known value. Does this mean that Bob doesn't have to pay anything to Alice? Or alternatively, can we compute the value, by looking at the property in question, and comparing it with other, similar property, for which we have a history of value as determined by the market?
Honestly, how someone can be against the idea of appraisal is just astounding to me.
How do you compensate for [blah, blah, blah].
Generally a check or a wire transfer.
It is what we call blackmail, where one party is forced to do something it does not believe is legal, ethical or otherwise proper, by another party that wields a coercive force.
So you're saying that federal highway funding is a coercive force. In that case, what damage did the federal government do to the states prior to the creation of the interstate highway system? Was it a lot of damage, them not spending all that money?
Or are you an ass, who thinks that the states have gotten addicted to federal money and somehow have a right to it because they cannot properly balance the amount of government spending in their state with the amount of revenue they, themselves, can raise? If a state wants to ignore federal mandates tied to federal spending, all they need to do is either 1) go without that spending, or 2) get the money for that spending themselves. No one is stopping them. Well, other than enough of the voters to win elections, who
About states rights, not everything in the constitution is written there.
Sure, but you at least need some wiggle room. You need to find, somewhere, some arguable limit on the federal spending power. An implied limit would be fine, a penumbral limit, fine, but so far I'm not seeing any support for it, nor are you showing me any.
The states have the right to set their own speed limit. The tenth amendment shows that since the federal government does not have the power to set a speed limit, the states get it.
That is absolutely right. The states can set whatever speed limit they want -- within some other limits, e.g. the commerce power would prohibit a 1mph speed limit on the interstate -- and the federal government can't stop them.
But that doesn't mean that the states can force the federal government to give them money. If the states want to fight with the federal government, then that's fine, but unless you can find something in the Constitution to help the states, the federal government doesn't have to spend its money with them. It isn't blackmail anymore than working at a job for wages is slavery. It is unequal bargaining power, but I don't see a remedy for that in the Constitution either.
. Only one thing is going to fix this, and that is a nice, dirty civil war. It may not happen in our lifetimes, but at this rate, it will happen soon.
I think that a civil war over the speed limit would be a stupider reason for going to war than Jenkin's ear, and only slightly less stupid than the pig. Get some perspective.
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The issue is simply whether or not the respective rights are considered by society to exist, and to be protected by law.
Yes, but if there are other, conflicting rights which are also considered to exist and which are protected, the issue of which has priority, and why, and under what circumstances becomes an issue.
According to the WIPO, Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
Yes, and WIPO is at the center of this bit of disinformation. In any event, such a meaning doesn't make sense, as I've pointed out before.
To the extent that different forms of property differ in their nature, the rights associated with them differ, and hence so must the laws regulating those rights. Laws regulating the rights associated with land ownership, for example, tend to be different from those relating to ownership of personal belongings.
Certainly. However, there are two problems with this. First, there basically are only two property regimes: real property for land, and personal property for pretty much everything else. If creative works were capable of being property at all, they'd be personal property, as I've said. The trouble is, they're incapable of being property, in large part due to their non-rivalrous nature. Copyrights, OTOH, are an artificial monopoly which is related to a work, but distinct from it, and which is rivalrous and is likely property. And copies are property too, but that goes without saying. You can buy or sell copies, and you can buy or sell copyrights, but you can't buy or sell works. Copyrights are a stand-in for what it would be like if works were property. And certainly, copyrights are just another kind of personal property, not particularly different from a brick.
You seem to be suggesting that 'intellectual property' and 'intellectual property rights' are synonymous. They are in fact different things, just as land and the rights associated with land are different things.
I am saying for a fact that they are synonymous, because there is no other reasonable or logical meaning for them.
However, improvements in DRM technology may do something to mitigate that.
Of course, the problem is that DRM is just self-help and is a mechanism for evading the portions of copyright law which happen to be meant to benefit the public from whom the authority for such laws is drawn anyway. DRM is incapable of only protecting the rights of the copyright holder without infringing on the rights of the public. It doesn't expire at the end of the term, it doesn't permit fair uses and other excepted uses while prohibiting those which may be prohibited, etc. And there's the problem of perfect enforcement, which I have discussed before. Control over DRM is another problem, e.g. if I personally make a DVD and apply CSS to it without working with the DVDCCA (which is likely possible, as there's no law against it, and CSS doesn't seem to be patented or anything), can I authorize DeCSS to be used on my DVD and expressly not authorize commercial DVD players, and have my choice be meaningful, or will people still get in trouble for trafficking in DeCSS? In other words, are some copyright holders more equal than others? Likewise, if I create original sound recordings and tape them onto DAT, will a consumer DAT player allow me, the copyright holder, to make multiple generations of copies, or will it arbitrarily prevent me from doing what I have a legal right to do merely because the recording industry can afford professional DAT decks and I can't?
If courts routinely struggle with whether a particular use is lawful or not, and over questions of licensing, and so forth, then I have no faith whatsoever in a mere machine to handle these same sorts of issues. Nor do I appreciate the idea that a lawless activity should be impossible to engage in from the start, rather than being capable of being broken, with enforcement coming after
This view that absolute free speech is inherently good, and must necessarily trump all (or most) other fundamental rights is simply baffling to me. What possible social benefit is there in allowing defamation and incitement?
It's safer than allowing the power of the government to be used against people merely because of their speech. Remember, I did say that while I find the idea of an absolutist right of free speech attractive, I do struggle with it for basically the sorts of reasons you mention.
If freedom of speech is about the right to express any opinion or idea openly, and without fear of censorship or legal reprisal, why do you need the right to precisely duplicate someone else's words?
Why should the precise content of speech have to be justified to anyone? If people are going to have freedom of speech, then that means that they have the freedom to choose what speech they want to engage in. If it's identical, then it's identical. Who cares?
Intellectual property refers to works.
That's clearly not the case. First, if works were property, if they could be property, we wouldn't need copyright law to simulate to some extent what it would be like if they were property. Ordinary personal property laws would suffice. Secondly, a copyright and a work to which a copyright pertains are distinct entities. And when a copyright expires, the work does not. But the work is no longer anyone's property at that point, it is free to the public. Copies, the third kind of distinct entity, are clearly ordinary personal property; a book is no different than a comb or a table, so it can't be that.
If the term 'intellectual property' has any real meaning, then it must refer to the exclusive rights, and not to the subject of those rights, or copies in which those subjects are fixed.
You're using the term in a meaningless and confusing way. This is why I object to it altogether; it doesn't help understanding of these issues in the least, and it strives to confuse laypeople into thinking of whatever vague thing happens to be called 'intellectual property' today as being basically the same as real or personal property, so that they'll use those norms in relation to it, and not others.
Everything that falls under that umbrella is basically sui generis, not just as a group, but even within that group. It is maliciously deceptive to try to wrestle in norms regarding property, and I don't tolerate it.
For example, a literary work is the property of its author, and can quite obviously can be transferred amongst different countries with individual laws concerning the author's rights.
Actually, if it's had some manner of public release, a work can't really be transferred; that would require movement. You can't, say, publish a book in the US and then expect to move the intangible work, which is fixed in every copy, and present in other places too, and just up and move everything to Canada. You can stop publishing in one area and start publishing in another, but you're just expanding where the work is present, not moving it. And whatever remains in the US would remain subject to US law, regardless of what you're doing in Canada. Plus, you'll have difficulty in preventing the work from moving across national borders, so even if you did somehow manage against all odds to transfer the work to a different jurisdiction, it'll just come back again.
This is basically the meaning of the aphorism 'information wants to be free.' It has nothing to do with price, it has to do with movement. Just as you can't put toothpaste back in the tube, information will tend to spread, and not tend to contract. Only if the information -- in this case a whole work -- has not been spread widely, will there be much of a chance of controlling it. But the copyright industry depends on publication. An author only makes money when there are many thousands of copies floating out there, being bought up, lent, resold, etc. You can't do that and then expect to counter it when it be
I'll take your word on this, but are you suggesting that you think the USA will withdraw from the Berne Convention?
If you've been reading Slashdot for long, you'll have seen the many complaints about term length, and indeed, term length is the most common complaint about copyright law (which I consider a bit dangerous to concentrate on, actually, since there are other important issues too). Currently, the US generally uses life+70. For most works, Berne requires a minimum term length of life+50 for works which fall under it. If we went back to the minimum Berne-compatible term, I don't think the people calling for reform would be appeased.
If the single greatest complaint about US copyright law is going to be addressed, it's going to require that we pull out of Berne. And since other big problems about our current law require pulling out of Berne, e.g. re-implementing formalities, there's really very little chance that any possible reform will see us not pull out.
Do you consider other laws which are frequently violated, such as rules governing driving, to be against social norms? Alternatively, do you suppose the ones violating these laws support them in principle, but believe there are cases where other priorities override them?
No, you're right in that there is a category of laws where people believe in them, but tend to break them anyway (for example, in the city where I live, everyone jaywalks). However, part of the calculus is also the degree of enforcement. A law which is acceptable in principle, and which is widely broken without serious harm, and not seriously enforced, is tolerable. If, say, enforcement became heavy-handed and common, people's attitudes would likely change. This is why things like DRM are making people upset with copyright law; people traditionally have believed in copyright law, or at least been tolerant of it, but haven't much felt it to be applicable to them as they make a mix tape, or something. Make it impossible for them to make a mix tape, and they'll start to get upset. On a similar note, the oppressiveness of complete enforcement is why traffic enforcement by camera is so opposed here.
Do you view laws protecting individuals from defamation, incitement and so on as being inherently opposed to the right of free speech too?
Yes. And like a lot of people, I have a tough time trying to reconcile the practical benefits of those sorts of laws with the very attractive position of absolute free speech, which is, after all, what the Constitution actually says. Don't think this is a fringe view, either. Consider, say, Supreme Court justices like Douglas or Black who also had this view.
An author's rights apply only to a specific work, not to the underlying ideas. There is absolutely no question of authors' rights preventing open discussion of anything.
So? Free speech applies to the literal expression, as well as the underlying idea. I'm well aware of the idea/expression dichotomy, it's just not relevant for this discussion.
Surely this is obvious: the author is dead.
Just because he's dead doesn't mean that his reputation, which is subject to injury, is dead too.
Even the right to life is not absolute in the USA, where the state still lawfully kills people.
And I'm opposed to that too. Lots of people are, and it's being worked on. The US is far from perfect, as is everywhere else, really. Copyright law just happens to be my pet issue.
I pointed out the need for coordination, if intellectual property is to be transferred amongst countries. You replied that copyrights are still national, which as far as I can see is irrelevant.
"Intellectual property" is a nonsensical, dishonest term. But if anything is IP, then it is things like copyrights, patents, trademarks, etc., rather than the underlying works, inventions, business reputations, etc. to which those pertain, or copies, embodiments, goods, etc. in which they may be found. So when you said that IP
If the Berne Convention goes against the views of US society, why did the US government ratify it?
Congress has basically been controlled by special interests with regard to copyright law for, oh, about a century. It's been getting worse in the past 40 years. The USTR isn't particularly helpful either. Traditionally, in the US, copyright law has been quite obscure and outside of the notice of most people. This hasn't meant, however, that people don't have various internalized norms. Traditionally, those norms and the law have pretty much been in agreement. But as the laws have changed, and as technological progress has proceeded, they've been getting increasingly at odds.
What do you mean by not real?
I don't see any way to reconcile the idea of an inherent right of free speech, which is inclusive of the right to repeat the speech of others, and to be associated with it, or to alter it in ways which might be opposed by the originator of that speech, and a right to prevent others from doing so. I think that if there is any such thing as an inherent right, it is far more likely to be the former than the latter. If they're artificial, then as a form of copyright, they're going to need to be utilitarian. But the supposed basis for moral rights is anything but utilitarian, though I suppose that the hypocritical implementation of them arguably is.
a similar view that one has a right to own property?
Actually, property rights beyond your ability to personally defend things have long been known to be utilitarian in nature, and indeed, there are lots of limits on real property ownership that derive from this. But it developed organically, so it was a long time before people actually realized this.
In what way?
Why do the rights expire? Why are they sometimes waivable? Why is it that they don't always apply? They are, in fact, just another kind of economic right, but a particularly bad one, in that there's so little economic value involved and so much public cost.
If intellectual property is allowed to be transferred from one country to another
Perhaps something is changing in the EU, but generally and traditionally, they cannot be. Berne, for example, involves reciprocity: if the US grants a US copyright to an author for a work, the UK has to grant a UK copyright to the author for the work, the French have to grant a French copyright to author, etc. The copyrights are all still territorial: a US copyright has no effect outside of the US, and foreign copyrights have no effect within the US.
Those who violate laws designed to protect these rights are not committing victimless crimes, they are violating what society views as the rights of the authors of the works involved. An individual who does not share the views of the broader society cannot simply ignore those views, at least not when they are expressed through law.
Yes, but you are assuming that the laws always reflect societal views. I argue that this is not always so. Sometimes society is in the wrong -- e.g. laws against racial discrimination were a good idea, despite the widespread support for discrimination. But this is not terribly common, and generally involves matters of great importance. Copyright is quite trivial compared to civil rights matters. It's a public convenience, but not anything more. It isn't appropriate for it to conflict with social norms. People who violate laws which are at odds with social norms are not acting wrongly, and should in fact be aided by changing the laws to make their already legitimate behavior actually lawful. US Prohibition was a great example of this. It's also an instructive example because when you have laws that are not in the natural tendency of people to follow, and which are fairly trivial, lawlessness is common, and this can result in widespread disrespect for many laws, support for organized crime, etc. Had alcohol not been banned in the US, the Mafia would have had less opportunity to grow here, there would'v
Reflecting the broader views of the socieities which have ratified it, the Berne Convention (BC) recognises both economic and moral rights of a copyright holder.
I don't think that that's true. I think that society should be prepared to grant rights to authors but only where it is the self-interest of society to do so, and then only to the minimum degree that provides the maximum benefit to the society in question. But I don't recognize that authors or others to whom the authors have transferred them innately have rights which could be recognized, nor do I think that moral rights are publicly beneficial or even real -- everyone who supports them is being hypocritical, IMO. Though it's far from the worst thing about Berne, and not the only reason why the US sensibly rejected it for so long.
I would dance the jig of happiness if the US did the sensible thing and pulled out of TRIPS, Berne, and all the other copyright treaties, and instead implemented whatever system was best for us. And I would be pleased to see other countries do likewise. The only international cooperation that is a good idea vis a vis copyright is for countries to unilaterally have national treatment (since, after all, the nationality of authors has nothing to do with whether or not it will benefit your people to incentivize them to create and publish works), and to work together informally so as to avoid conflicts between their laws (e.g. formalities) which would force authors to choose between copyrights in two different countries, since there would be no possible way to get them in both.
If you violate copyright law, you are not only violating the economic right of the owners of the relevant works to compensation for your use of those works, but also their moral right to control public access to their works, and potentially other rights as well.
That strikes me as somewhat of a tautology; you're saying that when you break the law, you break the law which is bad, so the law should be against that. While I don't like people violating copyright law, I have no qualms whatsoever with legalizing their current piratical behavior so that, for example, noncommercial file sharing amongst natural persons would be perfectly okay. Copyright law is purely and solely utilitarian (when not corrupt) and should generally conform to social norms. Society is speaking and is apparently happy with non-commercial piracy. The law should reflect this. C.f. Prohibition in the US.
Even if a compilation is not creative, it can still be subject to contract or trade secret law.
True. However, in the case of tv listings which have been published online, they're clearly not trade secrets. A contract is possible, but AFAIK none of the sites that have the listings bother with them. Specht v. Netscape would be instructive in such a case.
most of them have a bust of Shakespeare hidden somewhere about their apartment
Well, they need some sort of way to open the hidden door to their secret lairs.
That is correct.
In the US, at least, you cannot copyright a fact. While it is sometimes possible to copyright a compilation of facts, this is only possible where the selection and arrangement of the facts is itself creative, and even then, that copyright only covers the particular compilation, and not the facts in the compilation. Uncreative compilations are uncopyrightable.
In the case of TV listings, the selection is all the channels and shows offered by a given TV provider in a particular area, during a particular time. That's not creative. The arrangement is typically a grid with time on one axis and channels on another, in ascending order. That's not creative either.
Software is not an exception to First Sale. The issue, rather, is that you're misunderstanding Bobbs-Merrill; it limits the power of the copyright holder after the first sale, but it never said that works couldn't be licensed, rather than being sold.
Of course, there's dispute as to whether or not your average EULA is a license or a sale or what, which mostly revolves around how you interpret the UCC. But it's also worth noting that there is no real reason for licensure in the realm of software sold to customers in cardboard boxes, etc. The developers don't really gain a significant advantage, it isn't something that is desired by the customers. Other than unthinking tradition, I've never seen why people would bother, and no one has ever managed to come up with any ideas as to what is so important about licensing here.
Feh. I'd rather have the US get out of Berne and the other copyright treaties, and simply unilaterally offer national treatment.
Actually, that happened ages ago. Check out MAI v. Peak.
Isn't RAM volatile?
RAM just means that any portion of the memory can be read and written, as opposed to having to access memory sequentially (as with a tape). There's many different technologies. Since people want it to be very fast, affordable, and reliable over a long period of time, some technologies are better than others.
DRAM is volatile, and widely popular. But there are other kinds of RAM in the past (e.g. core) which weren't volatile, and there is R&D going on to make a form of non-volatile RAM that is superior to DRAM.
Indeed, all else being equal, I'd rather have non-volatile RAM. It'd be great for laptop battery life and preserving data against power loss. You'd want to add a switch that could purge the RAM in case you needed to restart from a crash, though.
That brings up an interesting question. When you, I, or anyone purchases music, the purchaser becomes the licensee of said content, right?
No, at least not for most forms of music purchase, e.g. vinyl, tape, CD. Authorized downloads likely involve some manner of license to permit the downloading itself, but needn't necessarily cover anything beyond that.
Generally speaking, only the licensee is authorized to listen to the music.
Since there's no license, that's untrue. Besides which, licenses only cover, and are only available for, acts which are otherwise infringing. Since the mere right to listen is not part of copyright to begin with, merely listening can't infringe, and so can't be licensed and doesn't need to be.
What if a corporation/non-profit/non-singular entity or group purchases the music?
For corporate entities, the entity itself is the owner, rather than, say, the shareholders. Owning a share of Disney stock doesn't entitle you to make copies of Steamboat Willy.
What you're really asking is whether some sort of collective ownership of a copy could get around copyright laws. After all, where the laws don't restrict you, you don't need a clever tactic. I'd say that you'd have to look at precisely what you're doing and what the relevant law is. For example, I think that since the fourth factor of a fair use analysis would likely go against the use (since you're basically looking for a way to buy one copy as a substitute for other purchases), it would be difficult to avoid breaking the law if you went through with it.
So?
230 doesn't apply to copyright infringement, and in cases where it is applicable, it doesn't matter whether the ISP filters or not, it still applies. (In fact, remember that the CDA was meant to encourage filtering, it's just ironic that it ended up having the opposite effect)
No, not Gurps. It was West End Games that had the Star Wars RPG license for a long time. It was a fun game. I'd be interested to know how this stacks up against it.
Maybe. But bear in mind that software patents are quite new, yet we had software industries before that were thriving much like they are now. Software patents are less common and often unavailable elsewhere in the world now, yet there are plenty of inventive developers worldwide. We have pretty good evidence that software patents aren't providing a public benefit which outweighs their costs. I'm not averse to looking into other fields as well, but we can start with this one, where it is particularly evident.
The claim that software is somehow special and different from all the other fields of technology simply isn't very convincing
Well, I think that what's unusual is not software itself, but the software industry (and also the business method industry). Patents are meant to serve the public interest by encouraging the invention and availability on the market of novel, nonobvious inventions, to disseminate and preserve the knowledge underlying those inventions, and to make those inventions free to all as much as possible, as rapidly as possible, still bearing the totality of the goals in mind. Of course, bear in mind that there are other encouragements as well which are independent of the patent system, as well as other mechanisms for dissemination and preservation. Also remember that the most immediate freedom is to not have patents at all.
I don't think that software patents are actually encouraging invention or bringing-to-market, dissemination or preservation of knowledge about them, and they are certainly interfering with making the inventions free to all. I think that if we abolished software patents, we'd see the industry thrive just as much as it is now, and possibly more so. This might not be true forever, and so I would only put a moratorium on software patents, to be revisited periodically, but for the time being, we ought to abolish them as they are simply not doing what patents are supposed to do. They're not promoting the progress of the software arts, and may very well be impeding them. Let's take a pragmatic view, rather buying into the 'everything under the sun' dogma.
Have a requirement for the copyright on the binary be the disclosure of the source code. This is desirable copyright policy since part of the purpose of copyright is to preserve and disseminate human knowledge widely and meaningfully. A binary can be used, but the knowledge that goes into it -- much of which isn't protected by copyright, btw -- is quite difficult to suss out at best. This hasn't traditionally been a problem for other copyrighted works; it's a lot easier to analyze a novel and to make lawful changes to it during the term, and any changes at all after the end of the term. Software merely needs a supplemental deposit requirement to bring it up to the standard of other works. This is also rather similar to the patent field, where it is generally considered to not be good enough that an invention might describe itself and be self-evident, and so the patent applicant must disclose a lot of his knowledge about the invention to help the public understand and use it.
This would mean that you couldn't have a trade secret and a copyright on the same material at once, but the same goes for patents, and I don't see that that's a big loss.
Also, source code and binaries are basically embodiments of the same work. I wouldn't characterize one as a derivative of the other. It's much like how a set of blueprints and a finished structure are both embodiments of the architectural work contained within both, and aren't two separate works.
Courts do routinely look at certain factors in making their decision, however.
Does the presence of the citation have an effect on the purpose and character of the use? No, not really. The use of the quoted material is still just as commercial or non-commercial, or whatever, either way.
Does the presence of the citation have an effect on the nature of the work the quoted material comes from? Absolutely not.
Does the presence of the citation have an effect on the amount and substantiality of the quoted material in relation to the entire work from which it is drawn? Again, absolutely not.
Does the presence of the citation alter the degree to which the use of the quoted material affects the value of and market for the work from which it is drawn? I don't see how. Either the quote is going to be a substitute for the work or it won't be. Additional material which is not itself part of the quote won't change that. This isn't to say that the quote can't have an effect; for example, while titles and short phrases are not copyrightable, consider the book 'Men are from Mars, Women are from Venus' where you've learned all you really need to about it merely by knowing the title.
So while fair use is about what's fair, it's not quite as loose as you seem to think. Proper citations are important for academic and often professional honesty, and for providing thorough information so that readers can go back and verify your material and benefit from your research. But from the standpoint of copyright law, it is irrelevant.
Yes, but that has nothing to do with citing the quoted works. Attribution or the lack thereof doesn't factor into fair use.
No it's not. The presence of citations in a quote doesn't affect whether it is infringing or not. Rather, it is good practice for purposes of avoiding plagarism (which isn't illegal). Citing others' work, when it is used, is good academic and professional practice. Nothing to do with the law, though.
The problem becomes, how many ways can you write a single piece of code? At present, you are fairly limited by the languages available as to what you can and cannot do. This means that you could get several pieces of code doing the same task that look nearly identical. Now is this going to be copyright infringement? Variable names could even come out looking very similar if both programs were coded using the same naming convention. There is a huge problem with treating a software copyright like an "art" copyright.
Actually, it's not. Copyright pertains to the expression portion of software, but not the underlying ideas, functionality, etc. Ultimately, maintaining this distinction takes priority over copyrightability. For example, where there is only one or only a limited way of expressing a given idea, the idea and expression are considered to have merged, and there cannot be a copyright, lest it effectively protect the uncopyrightable idea. This is known as the merger docrine.
There's also the scenes a faire doctrine, which makes uncopyrightable things like stock story elements. For example, in horror movies, someone originated the routine bit where the mood is set when you see a wolf howling, silhouetted against the moon. But it's unprotectable since it's a common, stock element. The doctrine is used in the software field, both for elements which would be common across much software, as well as for portions of the code which are dictated by external considerations such as efficiency or platform compatability, and so lack some originality.
Finally, there's the fact that copyright infringement has nothing to do with identicality, but rather has to do with originality. That is, it isn't unlawful for Alice's program to be identical to Bob's program, so long as Alice didn't copy her program from Bob. For many works, independent creation -- when it happens -- can still be tricky to show. But for closed source software, it would be tricky for the alleged infringer to have seen the source. The accused would want to have kept some records to help vindicate themselves, and if they did have some kind of access (e.g. Alice used to work for Bob's company and could reasonably have snuck a copy out), they'd have a pretty strong case. Reverse engineering can qualify as access -- e.g. if you decompile the binary -- but again, the underlying functionality isn't protected by copyright, only the way in which it is expressed can be, subject to the limits discussed above. That's why cleanroom reverse engineering is a good strategy to follow.
You might also want to look at the abstraction-filtration-comparison test in the Altai case to see how courts will often compare two pieces of software to see if there has been infringement.
So the authority to offer compensation for taking land is there.
Yes. You've agreed that the government has the power to take land. Remember that word: take. Not 'buy,' or 'purchase,' but take. That is to take it from the previous owner, whether that person likes it or not.
Which brings us to this: No such thing as "just compensation" can be established by third parties if the property is not offered for sale.
Assuming that you're right -- you're not, btw -- then we'd have a little conundrum.
You are saying that the government can forcibly take property from people, but only if it is offered for sale, which means that it isn't being taken at all. That is a nonsensical position.
Alternatively, we could say that the government has the power to take land that is not offered for sale, but only if they pay a just price for it, again, regardless of the fact that it isn't for sale. This leaves you with the problem of computing that price, but this is presumably doable, and if there is an argument about it, it can be settled in court like so many other arguments.
The value of the property to the owner is as high as the owner says it is
Actually, that is wrong. The price is as high as the owner says it is. But if the price is too high, then the property will not sell. The actual value of the property is whatever you can, in fact, sell it for. This is often considerably lower than the initial asking price.
For example, I have a rock (it's one of those tiger-repelling rocks) for which I ask one hundred billion dollars. But if all I can ever actually sell it for is a mere one million dollars, then it's worth one million dollars and nothing more. You're on Slashdot, I'm sure you understand this in application. Think of how rapidly computers depreciate in value. The second you open the box it becomes used, and thus even if you sold it the next day, without anything having come out with better specs, you still cannot get as high a price for it as you paid. Cars do the same thing.
It's an enumerated power, and there is no authority implied or specified that allows mucking about with commerce internal to a state.
Unless that commerce is interstate commerce despite remaining within the state. Honestly, your argument has lost since Gibbons, which was back in the 1820's.
That observation in no way precludes the fact that there are other ways to build roads, including ways that don't screw with people's properties at all. You can go under them; you can go around them; worst case, you can even go over them, though you certainly ought to pay for that privilege.
The funny part is that tunneling would 'screw with' the owner's property, as would building an elevated road. Due to aircraft, we no longer have 'cuius est solum, eius est usque ad coelum et ad inferos' but you weren't quite going that high up. Also an elevated road can be quite bothersome. The Central Artery in Boston was elevated, and had nightmarish effects that have cost a lot of money to ameliorate. Of course, they replaced it with a tunnel that brings with it the nightmare that it'll collapse on you....
Anyway, it's actually a real pain in the ass to build a road when you have to get the property owners in the path to voluntarily sell to you. Some will sell for a reasonable price, some will try to get an unreasonably high price, and some will absolutely refuse to sell. If we did it that way, nothing would ever get built, given the hundreds or thousands of different owners along the path for the road. Going around might work, but it would make the roads a mess and insanely inefficient. Imagine driving from New York City to Philadelphia via Missouri.
Governments derive their powers from their people, with the idea being that if people could live harmoniously together without government we would, but in practice we don't, so we put together governments to help with this. We invest a takings power with the government because it is recognized that the government works better for the populace as a whole when it can work for them without each individual having significant veto power over it. (This is also why votes are usually taken by majorities without unanimity being required.) We also recognize that we don't want the government running roughshod over individuals, so we put in some protections for them too.
If I own a piece of land, and I want to sell it, that is where it can be determined that it has a specific monetary value.
Okay. Alice is a homeowner and Bob is an arsonist. Bob burns down Alice's house. Since Alice didn't want to sell, her house has no known value. Does this mean that Bob doesn't have to pay anything to Alice? Or alternatively, can we compute the value, by looking at the property in question, and comparing it with other, similar property, for which we have a history of value as determined by the market?
Honestly, how someone can be against the idea of appraisal is just astounding to me.
How do you compensate for [blah, blah, blah].
Generally a check or a wire transfer.
It is what we call blackmail, where one party is forced to do something it does not believe is legal, ethical or otherwise proper, by another party that wields a coercive force.
So you're saying that federal highway funding is a coercive force. In that case, what damage did the federal government do to the states prior to the creation of the interstate highway system? Was it a lot of damage, them not spending all that money?
Or are you an ass, who thinks that the states have gotten addicted to federal money and somehow have a right to it because they cannot properly balance the amount of government spending in their state with the amount of revenue they, themselves, can raise? If a state wants to ignore federal mandates tied to federal spending, all they need to do is either 1) go without that spending, or 2) get the money for that spending themselves. No one is stopping them. Well, other than enough of the voters to win elections, who
About states rights, not everything in the constitution is written there.
Sure, but you at least need some wiggle room. You need to find, somewhere, some arguable limit on the federal spending power. An implied limit would be fine, a penumbral limit, fine, but so far I'm not seeing any support for it, nor are you showing me any.
The states have the right to set their own speed limit. The tenth amendment shows that since the federal government does not have the power to set a speed limit, the states get it.
That is absolutely right. The states can set whatever speed limit they want -- within some other limits, e.g. the commerce power would prohibit a 1mph speed limit on the interstate -- and the federal government can't stop them.
But that doesn't mean that the states can force the federal government to give them money. If the states want to fight with the federal government, then that's fine, but unless you can find something in the Constitution to help the states, the federal government doesn't have to spend its money with them. It isn't blackmail anymore than working at a job for wages is slavery. It is unequal bargaining power, but I don't see a remedy for that in the Constitution either.
. Only one thing is going to fix this, and that is a nice, dirty civil war. It may not happen in our lifetimes, but at this rate, it will happen soon.
I think that a civil war over the speed limit would be a stupider reason for going to war than Jenkin's ear, and only slightly less stupid than the pig. Get some perspective.