Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional
from the arguments-in-the-extreme dept
I've often discussed the original constitutional reasoning behind patents and copyright law, specifically the phrase we all know in Article 1, Section 8: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;From this, I still believe it's quite clear that if copyright or patents are used in a way that does not "promote the progress" of those things, then it is unconstitutional to use copyright or patent law in that way. Not everyone agrees with me, of course. However, I've mostly focused on the "promote the progress" side of things, but haven't delved as much into the details of "science and useful Arts." I have read up extensively on what the founders meant by that, which can be simplified as "science" meaning scientific publishing/books and "useful Arts" meaning inventions. There's also a fair bit of evidence that the real focus of the founders was on patents, rather than copyright. It wasn't that they weren't concerned at all about copyright (they were), but that the bigger issue was patents, and copyright was a sort of "throw in" at the behest of some vocal authors, along with some remembrance of states' fights over local copyright policies. But, on the whole, it was patents that were considered of much more importance to progress than copyrights.
And, not only were copyrights initially for a "limited time" (14-years) but the first federal copyright law in the US limited copyright to books, maps and charts. Tom Bell points out that, based on this, and some other aspects of the early intentions of the founders, you can make an argument that copyright law, as per the constitution, was never intended for things like art and music. After all, what does art or music have to do with "science"? And if it really was intended to cover art and music, then why didn't the founders have it cover music that was being composed at the time? Perhaps it was because they realized that music and paintings had nothing to do with science, and the Constitutional clause is only limited to promoting the progress of science and the useful arts (and, again, in the parlance of the day, "useful arts" was inventions). As Bell states:
Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution's bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution's plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however--"the Progress of Science and useful Arts"--and a great many works now covered by copyright cannot plausibly claim to do both.Bell is interpreting the Constitutional clause in an even stricter manner -- suggesting that any work covered by patents or copyright needs to promote both progress in science and in the useful arts, which is an even higher bar, though I'm not sure I'm convinced it was meant to be both. Also, many would retort that the Constitution grants the Congress the ability to determine if such monopolies promote the progress of science and the useful arts -- and as long as Congress says they do, then we should consider that they do (no matter how wrong they might be). For a variety of reasons, that line of thinking is problematic, but it is the line that the Supreme Court has taken with copyright before (such as in the Eldred case). I'm not necessarily convinced of Bell's thinking here, but it's certainly a point worth pondering (and discussing).
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Filed Under: art, constitution, copyright, music, progress
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It's akin to the frog-in-boiling-water argument; if people from 100 years ago were to see the power of the government today, they would probably think that we had long ago pissed on the original document and lit it on fire. There were many infractions back then, yes, but more as a result of vastly inferior information dispersal. Today, people see everything that is going on, and they root for it.
Everybody rightfully criticized Bush for ignoring the law, and then they supported Obama who is probably two or three times as bad. He seems to have little regard for contractual obligations, personal ownership of money and property, or individual free will, preferring instead to delegate all of these to the federal government for reallocation or regulation as he sees fit. And what's funny is that nobody even thinks it odd that the President is running everything; originally, he was barely mentioned in everyday discussion and did little to no micromanaging of our lives. Not only does this situation make a travesty of individual rights, it is harmful to the country in the long run--government intereference ala copyright is but one bad situation of many.
I think I just wrote this to vent dejectedly against the populist rhetoric the country has devolved into as we all look to the government to do it for us instead of actually doing something cool for ourselves. Fuck it, I can just have a beer or twelve in five hours...
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Constitution ....
"by securing for limited Times to Authors"
doesnt say anything about handing the rights to your children or a corporation
Reference
Copy right clause US constitution Wikipedia
Preamble to the constitution Wikipedia
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sui generis protection
and you know this because you mastered in intellectual property in law school at ... oh wait...
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Re: sui generis protection
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Re:
if you ask me, the best way to administer copyright is to require maintenance fees. you get an automatic initial term of 10 years, and you or your heirs or assignees would be allowed to renew every 10 years for an ever increasing price for a total of 100 years protection (first term is free, second is $2k, third $3k, and fourth $4k, and so on). that way, the public would be able to quickly know whether something still had a valid copyright on it. you could look back 10 years for any filings on it, rather than the current system which has absolutely no recordation whatsoever. at the same time, copyright would only perpetuate if something was still commercially exploitable. this would also prevent labels and studios from permanently locking up content by sticking it in a dusty vault, prohibiting artists from even performing their own material when the label doesn't want to exploit the music.
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There, fixed that for you...
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Re: Re: sui generis protection
And I don't mean to make it personal, but he's a professor at a 4th tier law school. If you want to talk about authoritative IP scholars, you're better off with profs like Patrick Duffy, Roger Schechter, Wendy Seltzer, or Susan Crawford; judges would include Ginsburg, Posner, Easterbrook, Patel, Dyke, and Moore.
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Patents & Copyrights
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Re: sui generis protection
(1) I was not the one suggesting this
(2) It was being suggested by a law professor
(3) I don't even agree that it makes sense -- I was just laying out Tom's argument
And yet you attack me personally, not Tom, and claim that I only wrote this post because I did not go to law school.
Funny.
Please. If you want to attack me, at least focus on directing your attack at the right person. Otherwise you just look like a fool. No wonder you refuse to say who you are. Too embarrassed about how your comments will reflect on you personally.
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"Limited times" and "promote the Progress"
He realized that free interchange of information and later free sharing of ideas was a very powerful idea and would lead to prosperity for the country far beyond other countries. But when one locks up the ideas, and charge for the interchange of information one also shapes and hinders said activities, and harms both.
Let me explain that to Jefferson, the postal service was the internet of the day, where both information and political speech was conducted, and that was why he preempted those who would monetize this by making it a monopoly with very specific limits. Too bad that was not worded to guarantee some sort of protection for the later methods, such as telegraph, telephone, and now net for the same.
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Correlation does not imply causation and all that. You deride 'studies' for their inaccuracy then make a whopping claim with no supporting evidence. Good day to you sir.
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Re: Re: Re: sui generis protection
Yes, but you attacked *me* for his comments, and insisted that I wouldn't have made the argument if I had gone to law school.
In other words, you are wrong (check your name, buddy).
And I don't mean to make it personal
But you will...
he's a professor at a 4th tier law school. If you want to talk about authoritative IP scholars, you're better off with profs like Patrick Duffy, Roger Schechter, Wendy Seltzer, or Susan Crawford; judges would include Ginsburg, Posner, Easterbrook, Patel, Dyke, and Moore.
And who are you again?
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Re:
Life, liberty, and the Pursuit of Happiness. Perhaps you recall that? What the heck is wrong with trying to have a little pleasure and make some money? Or are you trying to say that the entire population consists of drug lords, actors, and sports stars (who, by the way, work their BUTTS off)?
I invite you to read Ayn Rand and think about what the country could be like if everyone worked hard for their OWN benefit and also believed in a little personal responsibility.
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classic fallacy
if P then Q
q then P = NOT VALID
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There, fixed that for you...'
DITTO
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This is a fairly dull argument, mostly because it is meaningless.
"by securing for limited Times"
Tell me how long limited is. Right now, but law, I think it is 70 years, no?
You can argue up and down and all over, but the constitution uses a vague term that allows the congress, house, and president the leeway to pass laws that define those limits.
It's a non-starter, something that reads like an idea someone came up with between bong hits.
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Fixed that one for you, too...
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Re: classic fallacy
Is P the power to enact patent and copyright law?
Is Q the actual patent and copyright law?
If so, where did anyone imply that the fact that congress has enacted patent and copyright law that that gives them the right to do so?
I am confused.
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Re: Re: Re: Re: sui generis protection
Mike, perhaps this is yet another hint that you need to work on your writing style, to more clearly separate out other people words from your words. It seems that a number of people (what you would call morons in a hurry) can't tell the difference.
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Re: Re: sui generis protection
I must also note that one person's response to the article by reference to law school tiers is wide of the mark. It is not where on sits that is important, but rather what they have to add to the conversation regarding patent and copyright law.
That said, I must however note some concern that copyrights are being equated with promoting both science AND the useful arts. I know of no other person who openly associates copyrights with the useful arts. In fact, when the original patent and copyright acts were enacted in 1790 the former referenced useful arts and the latter science. Where this conjunctive association is viewed as emanating eludes me completely.
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http://en.wikipedia.org/wiki/United_States_copyright_law#Duration_of_copyright
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unique thoughts and experience
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Your reading too much into the text of Article 1, Section 8
"Promoting the progress" is one reason to grant "exclusive Rights", not the only reason.
The second amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
By your reasoning, the people cannot use Arms for any purpose other than Militia duty.
If they intended to limit the scope of "exclusive Right" , they would have said so.
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And with that simple idiotic statement rises a great chorus of laughter from thousands of royalty check-cashing novelists, actors, filmmakers, and musicians from around the world.
But don't linger on past successes, what's your next joke?
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Re: Your reading too much into the text of Article 1, Section 8
Actually, no. There's a pretty clear distinction between the beginning to both of those:
The copyright clause quite clearly says it's "TO" promote the progress.
The bear arms clause doesn't say that's why it's there, it just uses the militia as an example (and, I should note, there are some who believe that the second amendment should only refer to militias).
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Re: unique thoughts and experience
"Contrary to colonist experience and thoughts -- i.e. constant pooling to survive in a strange land -- unique and original individual thought and experience is possible here in the Americas (without the Queen or especially without Catherine the Great)."
What the hell. Seriously. I don't mean that as a question. I want you to picture me with my head back, perplexed look on my face, arms askew in failure to comprehend why you would choose this combination of words to describe (I'm guessing, because with your confusing language, who really knows) American thought. Are you actually British, or do you just want to sound like a bad stereotype so that ignorant people (American and otherwise) will think that you are.
Colonist experience? Are you crazy? Lady, you're talking about a country that has such an over-inflated opinion of its own culture it's ridiculous. Colonial thinking? We're the most individualistic nation on the planet. We're also arguably one of the most segregated. Pooling together. Have you ever BEEN to New York City? Chicago? L.A.? We don't band together. We tell everyone to fuck the fuck off.
And a small inclusion: I'm not sure what the point of including a Russian matriarch in your comment was, but trust me: epic failure.
"Any individual who is truly composing their own experiences as literary expression has the right to control distribution with regard to health and morale issues."
Uh....no. Not even close to reality. You're not an artist, plain and simple. Let me tell you...as a PUBLISHED AUTHOR (not successful yet, mind you, so not tooting my own horn here)...you're just flat out wrong. Art...real art...yearns to be seen/read/heard/experienced. That's why we artists create it. Yes, we want to be able to make a living at it, those of us that seek to KEEP CREATING more art. For the writer, read any book on writing fiction and they'll all say the same thing (I can cite quotes if you really want me too): we write because we can't NOT write. I don't really know what health or morale (did you mean morality?) have to do with anything. I don't care. I just want to write about the topics and the characters I love.
"Hand over your copyrights or be bashed over the head"
Wow, I straight forward sentence. Too bad it should read, "Stop allowing your agents/labels/managers/publishers abuse copyright and make money more directly THIS way".
"Sonny and Cher placed on stage to perform music they inspired (and more!) are both health and moral issues"
Ok, you're done. Forever. Sonny and Cher PLACED on stage? Who were they placed there by, you idiot, your corporate GODS? What in the world do they have to do with health? Or morality for that instance. Please...and while I have strong opinions, I usually don't go this far, but I'm begging you here...please, no kids. All abortions for you. And that's from someone who was raised (but trust me, doesn't practice) Catholic.
Idiots...
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- Wiktionary
Owning arms privately IS militia duty. Most people think that the forces organized by the government are the militia, this isn't the case. The word 'Regulated' refers to regular or standard equipment (A more archaic form) not the more modern implication of hierarchical control. Just thought this was relevant since the blog post discusses meanings of words in the Constitution...
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No. Not always. This being the real world, at some point the reality of not making a living will come crashing in to to join the relative clamor of angry spouses, hungry kids and debt collection agencies and a revaluation of priorities will have to take place which could easily result in no longer having the time to keep creating thereby reducing output (at the very least) and more than likely, quality.
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Yes.
"Not always."
Yes always and forever.
"This being the real world, at some point the reality of not making a living will come crashing in to to join the relative clamor of angry spouses, hungry kids and debt collection agencies and a revaluation of priorities will have to take place which could easily result in no longer having the time to keep creating thereby reducing output (at the very least) and more than likely, quality."
Oh you pathetic wannabe important person. Friend...no. Not even close. Again not close. If that day should come, if they day arrives when all of life's trappings keep me from doing that which I yearn to do...then I have done something WRONG. The idea that one can not sustain a life as an artist without copyright is a lie. If it weren't a lie, then the timeless classics of artists, novelists, and musicians that existed BEFORE copyright would never have existed. But hey, great try...for a non-artist. Businessman, go away. Get a cigar. Suck that black smoke deep and blow it out your ass, per George Carlin.
It's amazing how much people in suits have to say about art.
Idiots. All around me.
Tell you what, who want's to read a story? Mike, I'm willing to put a novel I'm trying to get published out free of charge. Set a way up for me to release it to the techdirt community, and I'll do it. Consider me dumb and in need of help.
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Re: Re: Re: Re: sui generis protection
And I never claimed to be authoritative. I merely pointed out that others, who are seen as much more authoritative, have stronger, and well accepted positions.
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Anyway, it's common sense that a person who can devote themselves to their art full time will generally create a larger, higher quality body of work than someone who can only practice their art in the hours beyond their regular day job. For many, copyright is what grants them the ability to create full time. If you have a rich benefactor or a trust fund to rely on, good for you, but a lot of other artists don't.
As for the "timeless classics". No one I know wants to go back to patronage.
In regard to the blind insults, calling me a "suit" and a "wannabe important person" need I remind you who just just dropped the "I'M A PUBLISHED AUTHOR!" card without any citation?
And it's funny you mention George Carlin, a man who made a shitload of money via book, rerun and DVD royalties. Not too sure what your strategy with that was...
Good luck with the novel though. Maybe Mike will help you design a T-Shirt for it. Be sure to let everyone know when you sell enough to quit your day job.
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Re: Re: agreed..
If "art" is ALL you can do, your USELESS. NEXT! nice one DH
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I'm curious. Can you point to a SINGLE EXAMPLE of anyone here saying that people in music or art shouldn't get paid? Nearly every day we're pointing out examples of artists and musicians working out NEW BUSINESS MODELS that help them get PAID MORE than they did under old business models.
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I have explained this to you before, multiple times, and I will try again.
No. I am not expecting them to get paid for selling t-shirts or playing miniputt. The whole point is that those things are basically worthless without the music. But with the music they become a lot more valuable. The ability to sell those things and make a profit is BECAUSE of the music. So they are getting paid for the music. It's just that they're not selling the music.
How much can we bet that you'll misunderstand this again next week?
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Why not just pay them for doing what we want, making music? Why must they make a secondary action (that isn't what they do best) to make a living? Is not song writer enough?
Opportunity costs, would you prefer a great songwriter and musicial to spent their time writing and recording new music, or would you prefer them to be a semi-professional miniputt player and t-shirt sales person?
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Hey, if the economics supported it, that would be great. But no one's ever paid them for making music.
In the past they paid them for selling CD or for performing. So what's so different now?
Why must they make a secondary action (that isn't what they do best) to make a living? Is not song writer enough?
Because the market won't support just paying people for making music and it never has. Sure, I agree it would be great if it could, but you seem to want to be in a world that doesn't exist.
Some of us like living in reality.
Opportunity costs, would you prefer a great songwriter and musicial to spent their time writing and recording new music, or would you prefer them to be a semi-professional miniputt player and t-shirt sales person?
Or would you prefer someone hawking plastic discs? Same thing, different decade.
Only difference? When you get beyond plastic discs to music on the internet, the artists have a lot more power, in that they're no longer locked into just a few gatekeepers as they were in the past.
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It's not the same thing at all, especially when it's a retort to the other anon's sentiment that these ancillary services will decrease the artist's time to make more art. Having to fly around the country to play mini-golf with silver-spoon fans is not the time-expenditure equivalent of the label selling CDs, or tapes, or anything else that the distributors previously handled. And since the distributors will never be able to play mini-golf with the fans in the artist's place, it will never be as time efficient as selling copies.
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First off, for the miniputt (and it's one person doing it, hardly a trend or anything we think others will do as well) you had to fly to Josh. So... uh... nice one, but no.
with silver-spoon fans is not the time-expenditure equivalent of the label selling CDs, or tapes, or anything else that the distributors previously handled. And since the distributors will never be able to play mini-golf with the fans in the artist's place, it will never be as time efficient as selling copies.
You know what's even more efficient than selling copies? Giving away music for free.
Never bet against efficiency.
But, more to the point, you are totally missing the point. You always had to do promotional stuff. It's just different promotional stuff. Because Josh Freese agreed to play minigolf with ONE FAN who paid $20k, it doesn't mean that playing minigolf is the solution -- nor did anyone claim it was. But i'll tell you one thing, I be that hour of minigolf was a lot more rewarding and paid a lot better than back when he had to hawk CDs to make money.
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No, this isn't "promotional stuff", this is how he is making a living in your world. Making music, spending months writing, rehearsing, recording, producing, and finally releasing a product is a zero dollar game. The MUSIC is the promotion for the miniputt.
So being a musician is pointless, except in how it allows you to sell miniputt (or dinner dates, trips to Malibu grand prix, whatever, right Mike?). It's the income, so it isn't the promotion, it's the way of life.
Amanda Palmer makes little playing music, but makes half her yearly income selling crap online on a Friday night, and you don't see anything wrong with it?
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I love the way your write in your comments. If this happens I will be one of the first to check it out. I would even be willing to pay a modest sum ($5-$15 depending on the size of the book) for such a book, based on how you write your comments. Keep the comments coming.
I read TechDirt first for the insights of the community (i.e. the writers) and disagree with some of what is said, but agree with more of it. I read it second to find your comments and get a bit of a laugh for my day. Most of the time it is perfectly placed in my day and brings much needed relief.
Thanks again. And I hope Mike takes you up on this offer.
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Hit up the contact form. We'll see what we can do.
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"Amanda Palmer makes little playing music, but makes half her yearly income selling crap online on a Friday night, and you don't see anything wrong with it?"
And 10 years ago, an aspiring musician would spend "months writing, rehearsing, recording" a demo tape, only to be rejected by a label, have his or her dream shattered and go back to waiting tables. OR, he or she was contracted by the label, forced to change the music to make it "commercial", be exploited to no end, and end up making little money from the damn CDs! This was the story for MANY MANY musicians! And you dont see anything wrong with it?
No business model is perfect, but some will work better than others in the given market conditions and given technology available.
At least Amanda Palmer doesn't have label execs bossing her around. She does what she wants, AND gets to earn thousands of dollars on a Friday night! And you don't see what is right with that?
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huh.
So just to recap, artists make the music, labels produce the music and then create the merchandise if the music gets popular enough, and then the label sells it and gives the artists a minimal sum for it, while keeping most of the money for themselves.
So in the end of all this, anyone who thinks they are fighting for fairness when they say that the artists should be making more money is true, but they shouldnt be making it from the people, they should be making more money from the labels that are financing them.
Either way copyrights are stupid as shit now, all information on the internet is being transfered for free whether people like it or not, and it's going to continue to happen until the corporations fighting it finally completely collapse under the weight of the task they are currently trying to undertake. do you know how many people torrent music that is copywritten? or movies? It's impossible that they are going to get rid of it without completely reworking the way the internet works, and I for one like it the way it is, where i can share my information without 30 different security agencies screening every last drop of my personal information every time i turn on my web browser. Because that's where this is heading, and i doubt anyone who thinks that artists and big label corporations should be making more money, thinks that those corporations should also know what you bought for lunch last tuesday from mcdonalds. But if you keep fighting for them, and if on some miraculous change of events that leaves the world smoldering in a pile of manure the corporations actually manage to pull of such a feat as to take away the free information exchange that IS the internet, then i fear we will all be in a situation that no one wants to be in. Really ask yourself where you stand, and don't bring irrational beliefs into the mix. Your mystical and magical corporations that you seem to hold in such high regard would suck you dry for everything you own if you told them they could have it, and then they would leave you covered in shit sitting in the street trying desperately to understand what just occured while they went and sold all of your things and put the money into an emergency fund so when they go bankrupt the executives could go move to peurto rico and live hapilly for the next 2000 years off of the money they 'made.'
but i digress. It would all be for the sake of being "fair" if the corporations did that, wouldn't it? If fledgling artists couldn't use the internet to make money for themselves and to get big, then the corporations would have all the money and control that they had back 30 years ago when the internet didnt exist.
do you really want to go back in time 30 years just because some fuckass behind a desk in an office building thinks it's not good for some kids to listen to some music? All they do when they try to fix it is make it worse for the people who actually want to buy the music by putting DRM on it, or some form of security.
anyways, copyrights are out of date and the whole copyright system needs a serious revamping.information exchange at the moment is free regardless of what people may try to do, but the only problem that i do see with this is that fledgling artists who do want to get set up on their feet will find it harder just writing for a living because they won't be able to make the money off of it that they used to be able to 10 years ago when transfering music over the internet didn't seem possible.
that's my only slight peeve, is that while sharing this information for free is a prospect of actual progress as a society, all information being completely free would stop some artists from doing their music or book-writing because lets face it, humans as a society are incredibly greedy creatures and while some of the writers will continue to write just for the love of writing, many of them rely too much on the money that they receive to be able to continue to write music or books. the big labels will have to begin giving the artists their dues if they want the real progress to start.
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blahh !
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