If Copyright Is 'Property' Why Aren't People Outraged When The Gov't Seizes Content From The Public?

from the property? dept

Fri, Mar 11th 2011 7:29am — Mike Masnick

Michael Scott points us to an interesting analysis of a recent academic paper exploring (yet again) the issue of whether or not patents and copyright should be viewed as property. I won't go into the specific arguments of the paper itself (take a look to read about it, if you'd like), but one key point did strike me as quite interesting:

Professor Fagundes argues that property rhetoric currently is understood through the lens of "ownership" discourse, which understands "property" to mean private rights that are good against the world. Exhibit A for this thesis is the very different public reactions to the Supreme Court's rulings in Kelo and Eldred. In each case, the Court held that the constitution did not protect members of the public from elected officials transferring their rights to another private party. Certain groups were outraged by the Kelo result because, in their view, the Court had fundamentally disregarded specific private owner's property rights. By contrast, the Act at issue in Eldred "took not just from the original plaintiff Eric Eldred, but from every member of the public the entitlement to use expired copyrighted materials for another twenty years." (P. 655.) This transfer, however, was greeted with a public yawn because it was not seen as a transfer of public property into private hands.

If you're not familiar with the two cases (and you should be), Kelo was the Supreme Court case that ruled it was okay for eminent domain to be used by the government to take land away from a landowner and hand it to a private developer. This got a lot of people quite upset about the government overstepping its bounds. Eldred, of course, argued effectively the same thing, in claiming that copyright extension transferred "property" from the public to private interests by blocking it from entering the public domain. While it's worth noting that the Supreme Court seems somewhat consistent on the rulings, it certainly is notable that the folks who got upset by Kelo didn't get as upset by Eldred (yes, some of us were quite upset by Eldred, but it didn't get nearly the same widespread reaction).

It could be that, in general, most people simply don't, implicitly, view copyright as property. Or, it could be that many people don't quite understand copyright issues. I think a bigger issue might just be that most people simply don't understand the importance and value of the public domain. So, without realizing what they're losing, they don't recognize that works failing to move into the public domain is a bad thing.

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Filed Under: copyright, eldred, government, kelo, property, public domain

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WDS (profile), 11 Mar 2011 @ 7:42am

Compensation
We should actually be more outraged by 'Eldred', at least in 'Kelo' the owners of the property were compensated. With pulling of items out of the public domain, the public received nothing to offset the benefit given to the copyright holders.
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Anonymous Coward, 11 Mar 2011 @ 7:56am

"Property" is a social construct embodied in law that is based upon a general right to exclude others.

Once the right to exclude is gone, there is no longer any basis to claim that "property" continues to exist in the original work.

The Fifth Amendment speaks to "private property", and to somehow try and draw Kelo into the mix, in my view, manifests oversight of the above distinctions.
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Anonymous Coward, 11 Mar 2011 @ 8:06am

if its property..
if its property, why isn't property tax being paid on all registered copyrights?
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:Lobo Santo (profile), 11 Mar 2011 @ 8:08am

Re: if its property..
Because that would make sense. (Or cents. Whatever.)
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Anonymous Coward, 11 Mar 2011 @ 8:10am

It could be that people just don't value the works that moved from public to private interests. I have 3 cents in my pocket, I'm happy to give them to you.
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Dark Helmet (profile), 11 Mar 2011 @ 8:21am

Re: if its property..
Do you pay property tax on your computer? Is that not still your property?
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Anonymous Coward, 11 Mar 2011 @ 8:53am

Re: if its property..
Perhaps for much the same reasons that people do not pay taxes on the majority of the property they own.

Moreover, copyrights are generally viewed as a capital asset and treated under our tax laws just like other capital assets (depreciation, capital gains, etc.)

It does bear mentioning that income produced through the use of a capital asset is taxed as ordinary income, just like salaries, etc.
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Anonymous Coward, 11 Mar 2011 @ 9:18am

Good lord I hate that style of academic writing!

"...rhetoric is currently understood through the lense of...discourse, which understands...." Seriously? That's nonsense, not a "thesis."

Neither a "lens" nor "discourse" can "understand" something.
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Anonymous Coward, 11 Mar 2011 @ 9:21am

So people view someone having their land taken away differently than they view someone having their intangible property rights extended for two decades at the expense of the public domain. This is news?
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Anonymous Coward, 11 Mar 2011 @ 9:30am

Re:
Yup. That's why it doesn't make sense to view works in the public domain as property.
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Anonymous Coward, 11 Mar 2011 @ 9:42am

Re:
""Property" is a social construct embodied in law that is based upon a general right to exclude others."

No, there is such a thing as public property.
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Anonymous Coward, 11 Mar 2011 @ 9:43am

Re: Re: if its property..
But you pay property tax on the property that your computer resides on. So, in a sense, yes. Your computer takes up space and you (or your landlord) pay property tax on the space that it takes up.
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Shadow-Slider, 11 Mar 2011 @ 9:52am

Not quite the same
In the Eldred case (if laws can be considered contracts) was altered unilaterally against the public potential rights in currently copyrighted works. And instead gave a undeserved extension to the copyright holders.

So it more of a contract dispute, whereas in the Kelo case the plaintiff had his current property rights taken by the state and given to another private person.

One is a broken promise the other confiscation of property. Now the E.U. copyright harmonization is different matter, the public rights in the public domain were actual not just potential like in currently copyrighted works that were extended.

Just so you know I do not like broken promises either.
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V, 11 Mar 2011 @ 9:57am

Sometimes...
Sometimes the sheep bay... sometimes they don't. Who is to know the mind of a stupid, sheep follower...
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Anonymous Coward, 11 Mar 2011 @ 9:57am

Re: Re:
Yes, so?

The public, though its elected officials, can still exclude people from the local park or whatever between the hours of 10pm-8am or whatever.
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Anonymous Coward, 11 Mar 2011 @ 10:00am

"I think a bigger issue might just be that most people simply don't understand the importance and value of the public domain."

I also think a big issue is that people don't appreciate the value of public airwave use and the value of what was taken away from us when public airwave use was wrongfully taken from the public and handed/sold over to private interests in return for nothing to the public.

It's why the FCC gradually began handing over exclusive public airwave use to private interests, because at one time people understood the value of public airwaves and it would be difficult for the FCC to immediately grant monopolies on public airwaves over to a very small hand full of private interests without public outrage. So they first imposed laws that ensured a minimal amount of competition. As more and more people gradually got used to having what's rightfully theirs slowly taken away, eventually we wound up with what we have today, where a hand full of private interests control the overwhelming majority of public airwave use (the only public airwave use not in control by private interests is Wifi, but those airwaves aren't that good at traveling long distances through buildings and we have restrictions to also limit their broadcasting ability).

Another problem is government granted taxi cab monopolies. Our right to benefit from competition is very valuable, but most people are too unaware of the value wrongfully taken from us through these monopolies. Sure, you may argue that everyone drives, but part of the reason why we have such a strong necessity for each individual to drive and for families to own so many cars for each member of their family is exactly because public transportation is artificially expensive and scarce. In some other countries (ie: Chili) with competition, this isn't so much the case and families can much more easily go without having a car for each member. These monopolies also cut down on carpooling and are probably a greater strain on the environment and gas use.

People need to stop assuming that, if it's not physical 'property', it's not valuable and hence we should allow the government to abuse it by granting monopoly power over its use. We need to genuinely appreciate what's being taken from us and demand it back.
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Anonymous Coward, 11 Mar 2011 @ 10:04am

Re: if its property..
Because property tax is (in every jurisdiction I'm aware of) limited to real property (i.e. land and buildings).

It's the same reason you don't pay property tax on your shirts.
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Anonymous Coward, 11 Mar 2011 @ 10:04am

Re:
(we need to genuinely appreciate the value of what's been taken from us *)
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Anonymous Coward, 11 Mar 2011 @ 10:24am

Re: Re:
Perhaps you missed the phrase "original work". It was inserted for a reason...i.e., the discussion here pertains to copyright law.
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Shadow-Slider, 11 Mar 2011 @ 10:45am

Re: Not quite the same
amendment

So it more of a contract dispute, whereas in the Kelo case the plaintiff had his current property rights taken by the state (but compensated for it) and given to another private person.
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btrussell (profile), 11 Mar 2011 @ 10:54am

Re: Re: if its property..
If I am making money with it, I will be paying tax.
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Anonymous Coward, 11 Mar 2011 @ 10:56am

Re: Re: Re:
"can still exclude people from the local park"

But they don't have to and when they don't it's still considered property.

It's property title is not based on the governments ability to exclude others from its use, something doesn't have to exclude others for it to be property.
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Anonymous Coward, 11 Mar 2011 @ 11:01am

Re: Re: Re:
"the discussion here pertains to copyright law."

But we're comparing intellectual 'property' to real property to evaluate their similarities and differences.
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Anonymous Coward, 11 Mar 2011 @ 11:03am

Re: Re: Re: if its property..
and if you aren't, then it should automatically be in the public domain since the lack of its sale means it isn't helping to fund your original or any future works (and copy'right' law is about promoting the progress of the science and the arts, not about giving the author wrongful control over something for no good reason).
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Anonymous Coward, 11 Mar 2011 @ 11:04am

Re: Re: Re: Re:
Having the right to exclude and exercising the right to exclude are not the same thing.

Having the right to exclude is essential for something to be "property." Exercising that right is not.

If nobody has a right to exclude anyone else from using something, who is the "owner" of that thing? I don't think you can have "property" without an owner.
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Anonymous Coward, 11 Mar 2011 @ 11:05am

Re: Re: Re: Re:
(if intellectual property isn't really property, simply defining it that way by changing the definition of what constitutes property means you are using a different meaning of the word 'property' than what it means when people refer to real property. To conflate the two is disingenuous at best).
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Anonymous Coward, 11 Mar 2011 @ 11:06am

Re: Re: Re: Re: if its property..
Well, there goes the foundation of open source software licensing.

Exclusive rights can be an incentive to production/distribution even without profit. It's not "no good reason" without profit.
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Anonymous Coward, 11 Mar 2011 @ 11:06am

Re: Re: if its property..
You (or your landlord) pay property tax on the space that your shirts take up.
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Anonymous Coward, 11 Mar 2011 @ 11:08am

Re: Re: Re: Re: Re: if its property..
Open source licensing don't create exclusive privileges.
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Anonymous Coward, 11 Mar 2011 @ 11:08am

Re: Re: Re: Re: Re: Re: if its property..
(or they generally don't anyways).
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Anonymous Coward, 11 Mar 2011 @ 11:09am

Re: Re: Re: if its property..
First of all, that's not really true. My shirts take up different spaces at different times, and I don't pay taxes on all such space. Second, my property taxes are not based on volume or space. They are based the value of real property.

Second, even if it were true (it's not), paying a tax on "a space your X takes up" is not the same as paying a tax on X.
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Anonymous Coward, 11 Mar 2011 @ 11:13am

Re: Re: Re: Re: Re: if its property..
Let me rephrase what I said. Thanks for the clarification.

If it isn't funding the author and it isn't released under a license that at least allows the free copying and distribution of the works (if not the free creation and distribution of derivative works as well) then the law should require that it automatically be released into the public domain.

Again, copy'right' is about creating (mostly a financial) incentive to create in order to expand the public domain and promote the progress, not about simply giving unowed control of the works to an author.
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Anonymous Coward, 11 Mar 2011 @ 11:21am

Re: Re: Re: Re: if its property..
"First of all, that's not really true."

Yes it is. Your shirts aren't spaceless, they take space, and you pay property taxes on that space.

"My shirts take up different spaces at different times"

So? They still take up space.

"and I don't pay taxes on all such space."

When they're on private property you do.

"Second, my property taxes are not based on volume or space."

They partly are. 2 acres of land is generally worth more than 1 acre of land in the same area.

"They are based the value of real property."

and your IP 'property' taxes perhaps should be based on the value of your IP, not to you (ie: not how much you personally make from it) but to society (ie: it should be based on how much society loses as a result of your ability to exclude others or to charge them monopoly prices).

"Second, even if it were true (it's not), paying a tax on "a space your X takes up" is not the same as paying a tax on X."

Well, then, you should pay taxes on the imaginary space that our IP takes up. Oh, wait, it doesn't take up any real space because it's not really property. Property takes up space, IP is not really property.
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Anonymous Coward, 11 Mar 2011 @ 11:23am

Re:
"It could be that people just don't value the works that moved from public to private interests."

Or that they are mostly unaware of these issues thanks to a broken media that's wrongfully given its monopoly power by the government. But that's changing and now people are becoming more aware and upset at the problem.
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Anonymous Coward, 11 Mar 2011 @ 11:24am

Re: Re: Re: Re: Re: Re: Re: if its property..
I think all (or at least the most popular) open source licenses, rely on exclusive rights (i.e. copyright).

If the author doesn't have copyright protection (even though he isn't making money), then you can use his work however you want, even if he doesn't want you to use it commercially or to use it in a commercial derivative work.

The control provided by copyright is fundamental to the utility of open source licenses.
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Anonymous Coward, 11 Mar 2011 @ 11:25am

Re: Re: Re: Re: Re:
Public property is owned by the public, so the 'owner' is the public and no one is excluded.
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Anonymous Coward, 11 Mar 2011 @ 11:28am

Re: Re: Re: Re: Re: Re: if its property..
I think your qualifications are kind of arbitrary. Why require either for-profit distribution or opposite-end free distribution? The public benefits from a wide range of intermediate publication/distribution decisions.

"Again, copy'right' is about creating (mostly a financial) incentive to create in order to expand the public domain and promote the progress, not about simply giving unowed control of the works to an author."

Certainly, but the knowledge that one will have certain control over their work, and will be able to decide how they want to publicize/distribute it, is an incentive to create works that do benefit the public, even if they don't fit certain distribution models.
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Anonymous Coward, 11 Mar 2011 @ 11:32am

Re: Re: Re: Re: Re: if its property..
I am currently in a building in which my shirts are taking up space. I am not paying taxes on such space.

Area (acres) is not volume (space), but that' really getting off point.

I really don't understand how you're transitioning from "taxes on space your personal property takes up" to "IP taxes."

This notion of "property must take up space" and "you must pay taxes on space-taking property" has no basis in reality.
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Anonymous Coward, 11 Mar 2011 @ 11:33am

Re: Re: Re: Re: Re:
"real property" and "really property" are not the same thing. "Real property" refers to land/buildings.
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Anonymous Coward, 11 Mar 2011 @ 11:33am

Re: Re: Re: Re: Re: Re:
(Or I guess you're right, when it comes to street sweeping, people are excluded).
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Anonymous Coward, 11 Mar 2011 @ 11:33am

Re: Re: Re: Re: Re: Re:
"and no one is excluded."

Um...try camping in a municipal park and see if you get excluded.
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Anonymous Coward, 11 Mar 2011 @ 11:33am

Re: Re: Re: Re:
The article here, however, concerns copyright law, and my comments are limited accordingly.
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Anonymous Coward, 11 Mar 2011 @ 11:36am

Re: Re: Re: Re: Re: Re: Re: if its property..
Good point about the open source model.
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Anonymous Coward, 11 Mar 2011 @ 11:36am

Re: Re: Re: Re: Re: Re: if its property..
"I am currently in a building in which my shirts are taking up space. I am not paying taxes on such space."

If it's a privately owned building, then someone is, even if not you directly.
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Steve R. (profile), 11 Mar 2011 @ 11:37am

Public Resources Need to be Protected
There is a tremendous logical disconnect when it comes to the concept of protecting stuff held by the government as a trustee for the public.

Copyright is one example. The copyright holders claim ever increasing rights over the content. In fact TechDirt has covered a pending court case that will decide if the copyright privilege can be "restored" to an author. I don't recall theft of the public domain as being mentioned as a highly visible argument.

Another example is the radio spectrum. There have been many assertions of the need to privatize the spectrum. Little acknowledgment given to eliminating this resource as being in the public domain.

What I find particularly irksome with the privatization of the spectrum land-grab is that radio waves do not stop at a property line. So if the spectrum were privatized, how could the spectrum owner possibly transmit across property lines since that would constitute trespass?

I guess the logical deficiencies don't matter to those who would rape the public trust for their own selfish benefits.
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Anonymous Coward, 11 Mar 2011 @ 11:40am

Re: Re: Re: Re: Re: Re: Re: if its property..
True. They pay taxes on their real property. I pay taxes on my real property. No one pays taxes on personal property (e.g., shirts), unless we're talking about taxes on certain transfers, inheritance, etc.
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Anonymous Coward, 11 Mar 2011 @ 11:42am

Re: Public Resources Need to be Protected
"I don't recall theft of the public domain as being mentioned as a highly visible argument."

That's because it's hard to view works in "the public domain" as property. Nobody has exclusive rights to those works, and exclusive rights are the foundation of "property."
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Anonymous Coward, 11 Mar 2011 @ 11:45am

Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"I think all (or at least the most popular) open source licenses, rely on exclusive rights (i.e. copyright)."

No, it's generally not an exclusive right. The license applies to everyone equally, the author doesn't have the exclusive right to do what he wants with the works once released under most open source licenses. The author can deny certain uses of the work with the license, but most open source software doesn't deny people the ability to use the work commercially, only the ability to deny others the ability to use the works, which wouldn't be needed without copy'right'. Only licenses like creative commons - for non - commercial use denies the ability for people to use the work commercially, though it is true that some people use that license. However, plenty of works are created without that license and I don't necessarily agree with the use of a non-commercial license.
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Anonymous Coward, 11 Mar 2011 @ 11:49am

Re: Re: Public Resources Need to be Protected
I think it's because people are mostly unaware of these issues, thanks to a broken media, though that's now changing and people are becoming more outraged at what the govt is doing.
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Anonymous Coward, 11 Mar 2011 @ 12:01pm

Re: Re: Re: Re: Re: Re: Re: if its property..
"but the knowledge that one will have certain control over their work, and will be able to decide how they want to publicize/distribute it"

But the ability to deny others the ability to freely redistribute it when that ability isn't doing anything to fund the author shouldn't be allowed. Open source software doesn't deny others the ability to redistribute the work, it only requires that the source code be included. To the extent that the author denies free redistribution and that denial isn't making the author any money, then copy'right' should be negated since it's not promoting the progress by helping fund the work.

Sure, hypothetically, there are situations where such control can create incentive to create more works, but in at least some of those instances the authors will create the works regardless. Even without copy'right' plenty of works will still be created, so these privileges aren't required for the creation of works. and besides, the author likely has to make money somehow, so if he doesn't want to create a work under reasonable conditions (ie: not requiring that society waste resources to understand and enforce all his arbitrary wishes) it's better he spend his time finding another way to contribute to the economy. It's not the governments job to distort the free market by choosing where labor should be channeled, the free market does a good job of that all on its own and to the extent that a need for certain types of content arise, the free market will fulfill them if the need is worth the social investment (but to the extent that the govt distorts the market in favor of creating more works, they will distort it in a way that causes people to create works even though the need is not worth the social investment).
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Anonymous Coward, 11 Mar 2011 @ 12:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
I'm not saying the license creates an exclusive right. I'm saying it depends on the author's preexisting exclusive right.

If the author doesn't have copyright protection, then the premise of the license (i.e., you can only use my work if you agree to X, Y, Z conditions, such as distributing your derivative work freely under the same license) evaporates.

If nobody owns copyright in any part of Linux, for example, I can say to hell with the GPL and create derivatives that I sell commercially and don't let anyone else use under any license except my own, because the authors have no right to stop me.

Understand?
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Anonymous Coward, 11 Mar 2011 @ 12:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
This might help (if it works):

http://books.google.com/books?id=ELieXMxR1h4C&pg=PA209&lpg=PA209&dq=open+source+lice nses+depend+on+copyright&source=bl&ots=0nCN2DEFML&sig=iEy3LUerA5Vy87tlZJ-KK8Yah5A&hl =en&ei=LYB6Tc6yG4TprAGwyaGPBg&sa=X&oi=book_result&ct=result&resnum=10&ved=0C F4Q6AEwCQ#v=onepage&q=open%20source%20licenses%20depend%20on%20copyright&f=false
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Anonymous Coward, 11 Mar 2011 @ 12:07pm

Re: Re: Re: Re: Re: Re: Re: Re: if its property..
but the ability to exclude others from the use of your shirts doesn't necessarily require an institution (ie: the govt) to implement. The ability to exclude others from intellectual 'property' does.
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Anonymous Coward, 11 Mar 2011 @ 12:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"and create derivatives that I sell commercially and don't let anyone else use under any license except my own, because the authors have no right to stop me."

No, without copy'rights' you can't do this. Without such laws you can't deny others the use of it through anything other than secrecy.
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Anonymous Coward, 11 Mar 2011 @ 12:14pm

Re:
""Property" is a social construct embodied in law that is based upon a general right to exclude others."

Then if you would like to (personally) define it that way, then no one has an inherit right to any intellectual property. An institution is required for such rights to exist and institutions don't exist in nature. There is absolutely nothing wrong with anyone infringing on your intellectual 'property' since it wrongfully belongs to you in the first place. To the extent that the govt creates these laws it should only be to promote the progress because you are not entitled to any intellectual property and neither is anyone else.
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known coward, 11 Mar 2011 @ 12:19pm

Kelo is why the second amendment was invented.

Eldred while awful, does not do the grievous harm to the individuals involved the way Kelo does.
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Anonymous Coward, 11 Mar 2011 @ 12:19pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
I understand that you are confused.

If there are no copyrights there are no licenses possible, in the same way you took the code others can come in and take that as well, what the GPL does is make others share it, without copyright there could be some secrecy but it would be open still.
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Anonymous Coward, 11 Mar 2011 @ 12:21pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
(sorry for not putting up a good debate, I really don't have time and I'm here wasting way more time then I planned).

The reason why you pay taxes on real property is because the government spends resources enforcing its exclusion. With personal property, that's not so much the case. When you're on the street, yes there are police, but objects are in your position and so you can better enforce the exclusion of others. When you're on private property, the govt pays to enforce the exclusion of others and so you need to pay taxes. With your IP, the same should apply. You need to pay property taxes because the govt is paying to enforce your 'property'.
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Anonymous Coward, 11 Mar 2011 @ 12:21pm

Why is ICE not going after people who steal from the public domain?

Why are AG's not going after those people it is a crime, written into the law, but they don't enforce it why?
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Anonymous Coward, 11 Mar 2011 @ 12:48pm

Re:
Kelo is why the Fifth Amendment was invented.

The Supreme Court is why the invention has been reduced to a mere shell of its original intent.
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Anonymous Coward, 11 Mar 2011 @ 1:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
While DRM technology is certainly not perfect, it can do this in some cases, whereas that use would violate most GPL-type licenses.
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Anonymous Coward, 11 Mar 2011 @ 1:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"If there are no copyrights there are no licenses possible"

that's kind of my point. The GPL depends on on copyright.

I'm not sure how you view openness and secrecy as compatible, but that's not consistent with the GPL based on my recollection.

Whatever obligations/restrictions there are in the GPL have no teeth at all without copyright, because nobody would need to agree to the GPL to use the work it covers.
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Anonymous Coward, 11 Mar 2011 @ 1:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
First, what does that have to do with taxes?

Second, I can exclude people from using my shirt or copying my stuff by non-governmental means (e.g., violence or threats of violence), but that doesn't have anything to do with "rights."
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Anonymous Coward, 11 Mar 2011 @ 1:12pm

Re:
"it is a crime, written into the law,"

citation?

Funny how "stealing" is the word of the day today.
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Anonymous Coward, 11 Mar 2011 @ 1:15pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"The reason why you pay taxes on real property is because the government spends resources enforcing its exclusion."

I actually don't think that's true at all. I mean, the government doesn't really spend more resources enforcing private rights to exclude people from real property than they do enforcing private rights to exclude people from using personal property. Taxes on real property is often justified because it is a finite resource. I think it mostly has to do with historical taxation tradition from agrarian/feudal society.

Anyway, I should be doing more actual work as well.
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btr1701 (profile), 11 Mar 2011 @ 3:08pm

Re: Re: Re: if its property..
> But you pay property tax on the property that
> your computer resides on.

No, I don't. My computer's a laptop and it goes anywhere I like. 99% of the time, it's not residing anywhere that I pay property tax.
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btr1701 (profile), 11 Mar 2011 @ 3:11pm

Re: Re: Kelo
> Kelo is why the Fifth Amendment was invented.

Yep. It's the single most destructive decision to be handed down in the last 100 years.

Thankfully, most states reacted appropriately and passed state laws or amended their state constitutions barring governments from using eminent domain in this way. So while doing it may not violate the US Constitution, per the Supreme Court, it will likely violate a state law or constitution and be invalidated on that basis.
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Anonymous Coward, 11 Mar 2011 @ 4:31pm

Re: Re: Re: Kelo
"It's the single most destructive decision to be handed down in the last 100 years."

I think that's going a bit overboard.

Japanese internment (Korematsu)? Forced sterilization (Buck v. Bell)? There are others you may or may not agree with depending on your political leanings.
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Anonymous Coward, 11 Mar 2011 @ 4:38pm

Re: Re:
"thanks to a broken media that's wrongfully given its monopoly power by the government"

WTF?
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Anonymous Coward, 11 Mar 2011 @ 6:14pm

Re: Re: Re: Re: if its property..
But if you left your laptop on public property by itself it will get taken. You don't pay property taxes on that public property and so you aren't paying for the government to protect it. When the laptop is in your position you are mostly responsible for securing it and it doesn't cost the govt very much to enforce its security.

You have to pay private property taxes on private property to compensate society for the value of that property and to compensate society for the cost of enforcing it. Private property, like your television, located on your private property that you pay taxes on, like your house, doesn't cost the govt very much extra to enforce since it's located on private property that the govt already enforces, private property that you pay property taxes on.

IP is way more difficult to enforce than private property laws and hence it costs the government more (not to mention court costs). It also costs society more to comply with these laws because society must now spend time and effort to determine what they are and aren't allowed to do with an idea or a 'piece of' content. Without these laws, everyone can much more easily assume they can do whatever they want which isn't as costly. It's much easier to enforce private property laws because that property isn't located on other peoples private property or on public property, IP laws are much more expensive to enforce because that 'property' could be located on other peoples private property and on public property. If you want to require society to pay for the enforcement of these laws and to pay for the inconvenience (in time and effort) of avoiding infringement, you should compensate society with 'property' taxes and the property taxes should be greater than the property taxes on real property, since the inconvenience and cost of this enforcement is greater. Otherwise, you are merely stealing from society the money they are spending to enforce these laws and the time and effort they are wasting to abide by them to determine what is and what is not infringement on each piece of 'property'.
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Anonymous Coward, 11 Mar 2011 @ 6:16pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
With DRM you are trying to deny people use not through a license, but through denying them the ability to 'infringe'. The legal system isn't paying for the enforcement of DRM in your instance.
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Anonymous Coward, 11 Mar 2011 @ 6:26pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"I mean, the government doesn't really spend more resources enforcing private rights to exclude people from real property than they do enforcing private rights to exclude people from using personal property. "

Even if true, the enforcement of IP does cost money.

"Taxes on real property is often justified because it is a finite resource."

But IP can artificially make something a finite resource.
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Any Mouse (profile), 11 Mar 2011 @ 6:28pm

Re: Re: Re: Re: Re: Re:
I think you misread that. 'Really' as in 'truly,' not 'real' as in 'physical.'
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Anonymous Coward, 11 Mar 2011 @ 6:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
(and, to the extent that the efforts of IP holders artificially make their work finite, they should pay taxes).
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Anonymous Coward, 11 Mar 2011 @ 6:33pm

Re: Re: Re:
For example, try broadcasting on the frequency that channel 11 uses up and see what the FCC does. Try building your own cable company and building infrastructure to peoples houses and, in most (if not all) cities, see what happens. Or your own internet service provider. You need rights of way and cities grant monopolies on those.
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Anonymous Coward, 11 Mar 2011 @ 6:35pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
In fact, the whole purpose of IP is to make something a finite resource, because monopolies are intended to create artificial scarcity.
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Anonymous Coward, 11 Mar 2011 @ 6:40pm

Re: Re: Re: Re: Re: Re: Re: Re: if its property..
To the extent that the GPL is used to create artificial scarcity, I think that property taxes should be paid for its enforcement. Just like with real property (as you pointed out), property taxes are paid on it because its a finite resource. The GPL can create artificial scarcity in some instances by denying people certain uses of something. Property taxes should be paid on that. Likewise, to the extent that IP artificially makes something scarce, property taxes should be paid (not to mention they should be paid for the social cost of enforcing such laws).
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Anonymous Coward, 11 Mar 2011 @ 6:42pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
It's also worth nothing that your monitor is a finite resource. Monitors are finite resources. So are laptops and the material required to make your T - Shirt.
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Anonymous Coward, 11 Mar 2011 @ 6:44pm

Re: Re: Re: Kelo
You might rethink your comment if you read some of the research by Ilya Somin, a law professor at George Mason.

Kelo did create much controversy, and many states reacted accordingly, but in the final analysis what was done was in most instances little more than window dressing. Eminent Domain is a powerful political tool, and as such is not one that is easily surrendered.

As an aside, the property that was seized in Kelo was in order to permit, in part, Pfizer to construct a facility on the property. Pfizer later merged with Wyeth, and then decided to abandon the property, in favor of another location, just about the time that local property tax breaks were set to expire.
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Anonymous Coward, 11 Mar 2011 @ 7:10pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"First, what does that have to do with taxes?"

Government cost money. You need a government to enforce your alleged property, governments cost money, you should pay for the enforcement of your 'property'.

"Second, I can exclude people from using my shirt or copying my stuff by non-governmental means (e.g., violence or threats of violence)"

No you can't. Not in any way that will even come close to working, which means you can't.
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Anonymous Coward, 11 Mar 2011 @ 7:14pm

Re:
"Why is ICE not going after people who steal from the public domain?"

It's not in their personal interest, they're not interested in the public good or the creation of art or even the good of artists, only in their selves. So why should we trust them to influence our laws?
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Jesse, 11 Mar 2011 @ 10:47pm

Copyrighted or not, most people will download it if they want it.
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justanotheroneofthepeople, 12 Mar 2011 @ 12:18am

The real masters of creativity know how to twist the truth.
And get re-elected.
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vivaelamor (profile), 12 Mar 2011 @ 6:41am

Re:
'Neither a "lens" nor "discourse" can "understand" something.'

They said "through the lens" not 'by the lens'. A discourse can understand something in the sense of defining a specific meaning. I would cite some definitions, but there are so many which could apply, I'd rather just suggest that you look the word up.
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vivaelamor (profile), 12 Mar 2011 @ 6:58am

Re: Re: Public Resources Need to be Protected
'That's because it's hard to view works in "the public domain" as property. Nobody has exclusive rights to those works, and exclusive rights are the foundation of "property".'

Ownership is more of a foundation to property than exclusive rights. Ownership can be non exclusive, whereas exclusive rights by definition cannot. The fact that we have the term 'public property' underscores the fact that exclusive rights are not an essential element to the concept of property. If it were then the difference between property and not property would be the smallest exclusion, which is a frivolous distinction.
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Anonymous Coward, 12 Mar 2011 @ 9:31am

Re: Re: Re: Re:
Umm, yes we have a government... because a total free for all does not work. If we had everyone broadcasting on channel 11 at the same time then there would be no point in tuning into channel 11 as what you received would be unpredictable at best, if you got a useful signal at all. Our system could use improvements but we have a system for a reason.
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Anonymous Coward, 12 Mar 2011 @ 10:12am

Re:
They're creative liars :)
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Anonymous Coward, 12 Mar 2011 @ 3:18pm

Re: Re: Re: Public Resources Need to be Protected
To clarify, "exclusive" is meant to signify the right to "exclude", and not "sole".
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vivaelamor (profile), 13 Mar 2011 @ 7:31am

Re: Re: Re: Re: Public Resources Need to be Protected
'To clarify, "exclusive" is meant to signify the right to "exclude", and not "sole".'

Thank you, but it still doesn't make sense. If property is the right to exclude then you're still denying the concept of the commons and public property. If everybody in the world owns something equally then why would that suddenly cease to be property, rather than become the property of everyone? Still a frivolous distinction.
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Anonymous Coward, 13 Mar 2011 @ 10:18am

Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
"To the extent that the GPL is used to create artificial scarcity,"

(but I don't think the GPL should be taxed because the GPL doesn't create artificial scarcity. You can use GPL code for commercial and non-commercial purposes. Part of the purpose of the GPL is to prevent others from creating artificial scarcity to facilitate abundant code. but without copy'right' others won't be able to create artificial scarcity regardless, so the GPL is attempting, at least in part, to serve the purpose of negating copy'right' by resisting the artificial scarcity that copy'right' tries to create).
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Karl (profile), 14 Mar 2011 @ 12:39am

Re:
Once the right to exclude is gone, there is no longer any basis to claim that "property" continues to exist in the original work.

That's an interesting theory, and many noble philosophers have embraced it.

There is, however, another way to conceive of "property:" the right to unrestricted use.

It's not generally put in those terms, and indeed it couldn't be, to classical philosophers. After all, they were concerned mainly with physical property. Such property cannot have "unrestricted use" without being exclusive, because use by one person would preclude use by another. Generally speaking, these same philosophers would have regarded "intellectual property" a contradiction.

It is, however, the way people think of property in the colloquial sense. "It's mine, I can do whatever the hell I want with it." That's also why many people get upset when they can't do what they want with stuff they purchase (DRM'ed media, denial of resale rights, etc).

But rephrasing the issue in this way would probably help people understand why expanding copyright is a bad thing. "Dear citizen: you're supposed to be able to do whatever the hell you want with your stuff, but instead we took that right away from you and gave it to the company that made that stuff. Love, the government."

The sad thing is, I think things have gotten so bad, nobody realizes they even should "own" their physical property in this way. They no longer consider believe they own anything, "intellectual property" or not.
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Anonymous Coward, 14 Mar 2011 @ 10:55am

Re: Re: Re: Re: Re: Re: Re:
That's exactly how I read it, but I thought he was taking my reference to "real (land/building) property" as "really (truly) property."
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Anonymous Coward, 14 Mar 2011 @ 10:56am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
Point?
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Anonymous Coward, 14 Mar 2011 @ 11:00am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: if its property..
Ok, as to your first point, that would justify taxes on personal property (e.g., shirts), which we do not have. I'm not saying we should or shouldn't, but the analogy from IP to personal property is weak, because we do not have taxes on personal property.

As to your second point, if you think government is the only way people effectively protect their personal property, you haven't tried taking people's property from them enough (which is a good thing).
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btr1701 (profile), 14 Mar 2011 @ 4:33pm

Re: Re: Re: Re: Kelo
> > "It's the single most destructive decision to be handed down
> > in the last 100 years."

> I think that's going a bit overboard.

> Japanese internment (Korematsu)? Forced sterilization
> (Buck v. Bell)? There are others you may or may not agree
> with depending on your political leanings.

I meant destructive vis-a-vis property rights, since property is the subject of the thread.
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vivaelamor (profile), 14 Mar 2011 @ 6:00pm

Re: Re:
"That's an interesting theory, and many noble philosophers have embraced it."

I would be interested in knowing which philosophers so that I may better understand that view. In my mind there is no basis for the right to exclude to determine what is property and it seems too much to hope for the Anon's here to explain their views to me.

'Generally speaking, these same philosophers would have regarded "intellectual property" a contradiction.'

This reminds me of a previous comment I made about Locke:

If anything, intellectual property impedes on the Lockean idea of property rights. In his Second Treatise Of Government, Locke states: "every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his". As you copy someone their idea also becomes part of you, no less part of you than if you had come up with an idea yourself. Should you labour to create a physical manifestation of that copy then Locke's philosophy would let you claim that as your property.

Also, a key point that doesn't seem to have come up yet is the distinction between copyright and copyrighted material. I believe the former is property and the latter is an entitlement (often to control other people's property).

A book is property of whoever owns the physical book, while the right to copy that book is property of the copyright holder.

This distinction is perhaps most obvious when people talk about theft of intellectual property, because theft would involve transferring the rights rather than infringing on them.
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