How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
from the time-for-another-job,-maria dept
Maria Pallante, who's only been the US Register of Copyrights for a short while, but has worked in the Copyright Office for some time, has apparently decided that she's going to step up publicly as the copyright-maximalist-in-chief. In two recent talks, she has made it clear that she despises those who fought against SOPA, believes strongly that copyright is the sole way of making money for content creators, and, most disturbing of all, thinks that copyright doesn't need to serve the best interests of the country, but, instead, the best interests of copyright holders.She recently gave an interview to the American Bar Association's "Landslide" publication, which is put out by the "Intellectual Property" Section of the ABA. In showing just how out of touch with the times the ABA remains, there is no link I can share for this story, but in the interview, Pallante is asked about the fact that there is widespread criticism of copyright law being "too restrictive." Her response is downright scary:
"It is my strong view that exceptions and limitations are just that -- they are important but they must be applied narrowly so as not to harm the proprietary rights of the songwriter, book author, or artist. Copyright is for the author first and the nation second."That, right there, should be grounds for termination, as she clearly does not understand her job or the purpose of copyright law. First of all, it's long been shown that it's the exceptions to copyright law, such as fair use, that help songwriters, authors and artists to create such amazing new works. As we've been discussing a lot lately, there is tremendous evidence that greater exceptions really do help those artists. For her to insist that she only wants narrow exceptions suggests that she's making determinations based on pure blind faith, rather than empirical evidence.
But, much more important is the simple wrongness of that second statement. The Constitution is quite clear about whom copyright is for. It's for the public, not for the creators.
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.The purpose is to promote the progress of science and the useful arts. The method is creating monopolies for authors and inventors. But the clear, stated (and well recognized) intent and purpose of copyright law is for the nation. The goal is to maximize the overall benefit to the nation by helping the artists in a way that serves the nation. For someone in a position such as the Register of Copyrights to flip that equation on its head is really scary, and suggests she does not belong in that job.
Then, in a recent appearance before the American Association of Publishers, her short talk was like a big wet kiss to copyright maximalism, while attacking those who fought against SOPA. She talks up the wonders of copyright as if it's the only way to make money in publishing, and praises the Golan decision that said it's okay for the government to pull works out of the public domain and lock them up under copyright. She also insists that what concerned her most about the fight over SOPA was not the broad overreach of Congress and the MPAA, but rather the fact that the public doesn't understand copyright law, according to her.
Her job is supposed to be to promote the progress of science and the useful arts. That means understanding what the evidence actually shows will do so. Instead, she seems to have made some clear decisions about what must work -- and it's the same things that the copyright gatekeepers want. The role of the public, it seems, is just to be educated on her view of copyright law, and she fears that the public might influence the debate further beyond SOPA. This is immensely troubling, and raises significant questions about her impartiality in the role. The Copyright Office is somewhat famous for it's retrograde views on copyright law, but usually they try not to be quite so blatant about it in public.
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Filed Under: copyright office, maria pallante, sopa
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Sorry, but the words don't say that - the "for the nation" is something added by people like yourself. The reality is that it is a two sided deal, not a one sided deal.
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Then why do you consistently support every attempt to make it one-sided and attack those who point this out?
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If you think that's an extremist point of view, you have problems, but they have nothing to do with me.
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I can only attribute the present maximalist attitude of wanting to lock everything up in airtight copyright forever so nobody else can ever use a work or any part of it for any purpose wnatsoever is absolute, unmitigated greed. An attitude of, "It's mine! You can't have it! You can't use it! you can't use any part of it, you can't imitate it, it's mine and it'll still be mine a million millenia after I'm dead!"
My suggestion is, let's go back to the old standard of 28 years, with optional extensions. If someone still finds value in keeping something under copyright he can renew the copyright for another 28 years. And if they want to lock up a particular work for longer than that, let there be a schedule of subsequent renewals with an exponentially increasing fee for each subsequent renewal.
Locking up every work in the world for an entire lifetime (and if the copyright maximalista have their way, ever longer) after the author is dead simply makes no sense at all. I myself, whatever works I produce I intend to put in the public domain, or at most copyleft with minimum restrictions so anyone who wants to can make use of them for their own purposes.
So there, all you greedy copyright maximalists who want to lock up all the world's culture for yourselves forever!
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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.
"The reality is that it is a two sided deal" - Yes, which FOR A LIMITED TIME, lemme make sure you got that, FOR A LIMITED TIME. So for a limited time it is supposed to help the artist FOR A LIMITED TIME be able to monetize their creation. Then it is supposed to benefit society after the LIMITED TIME monopoly expires. Your ilk would like to believe it protects for a lifetime, which was NOT its intended purpose.
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Limited time. Define "limited". In the time of the universe, a few million years is limited. It's not a fixed number, because the constitutional framers were smart enough to realize that the time frames might change with technology and other advancements.
Limited - it only means it has a limit. That limit doesn't have to be short.
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So it is that you're intellectually bankrupt. It is that time-frames have changed, the pace of technology and cultural advancement is such that a much shorter limit would make sense today and yet that's not what we have. What we have are a bunch of entitled publishing companies with strong lobbying arms trying playing word games with 'limited' to encourage obviously bullshit interpretations like 'limited could mean any finite number!"
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Define limited:
1. having a limit; restricted; confined
2. without fullness or scope; narrow
"In the time of the universe" Humans are not the universe so a big fat fucking fail there, please try harder next time.
Greevar put it nicely:
Which just points out that any works created in my lifetime will likely never enter the public domain. How is that limited or temporary? By the time that happens, the works won't be culturally relevant. Nobody will understand the meaning behind the works and will have greatly diminished ability to use it as a basis for new works.
Who's RD?
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limited time
Likewise, it doesn't have to be long. So if the public seeks to reduce copyright duration to 120 seconds, you should have no more complaint than those who now complain that it is 120 years. In fact, zero seconds would also seem to qualify as a "limited time" -- though there is nothing in the Constitution that asserts Congress is compelled to secure copyrights, merely that they are authorized to do so if it Promotes Science and the Useful Arts.
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Yeah you're right, the country's founders surely intended for the term 'limited' to mean a few million years.
By the way, with your skull being that dense, how are you able to lift it up in the morning?
#piracyiseverywhere
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You are 100% wrong. The primary purpose of copyright is to benefit the public, a fact that has been reiterated by Congress and the Supreme Court, repeatedly:
- H.R. Rep. No. 60-2222
- Feist v. Rural
- Twentieth Century Music v. Aiken
- Fox Film Corp. v. Doyal
I could understand the usual kneejerk anti-Techdirt trolls lying about this.
But when the person who is supposed to be in charge of copyright doesn't even know this basic fact, it's time for her to be fired.
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she knows the basic fact, she's just choosing to ignore it because it suits her, because she can and, as stated in an earlier post, she obviously wants to cement her position within the entertainment industry when she is moved on from government!
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Re: Copyright clause
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.
If you're not promoting science and useful arts, and securing copyrights for LIMITED times, then copyright is in violation of this clause. Its actually pretty clear.
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I can't tell if you genuinely believe this or if you're just plain lying, but either way your self-serving position is quite wrong.
"The reality is that it is a two sided deal, not a one sided deal."
You're right that it is supposed to be a two-sided deal, where the copyright holder gets a limited-time (not life-time) monopoly on controlling their work and in return the public gets full, unfettered access to the works after that time. Unfortunately that's not how modern copyright law works; it's not totally twisted in favour of the copyright holder, and is not at all a two-sided deal.
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However, it is worth noting that the Constitution merely assigns this accord as a power of Congress, not a responsibility. In other words, the people, by way of Congress, is granted the ability to alter or exit the agreement at any time.
Had you been content with 28*2 years, you may have been able to hold on to that, which was more than would make sense given the fast cycle time we have Today. You reached for so very much more, and you have to deal with the fact that many are going to be calling for a complete termination of the deal.
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And boom!
Remember, Maria Pallante's job isn't to serve the public, her job is to serve the content industry first and citizens maybe later.
"It is my strong view that exceptions and limitations are just that -- they are important but they must be applied narrowly so as not to harm the proprietary rights of the songwriter, book author, or artist. Copyright is for the author first and the nation second."
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By the way, that link is not for the faint-hearted. It is the stuff nightmares are made of. I would copy some article titles here for you, but I could be sued just for pondering the idea!
#piracyiseverywhere
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She's a tool.
Therefore, logically, Maria Pallante is a tool. She performs the task with no understanding; making the job of copyright maximalism easier for whomever is using her.
So, yep, tool.
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Come to think of it, there are examples to the contrary--in my experience the user must be at least 0.5% smarter than the tool they are attempting to use else the tool will control the situation and hilarity/doom ensues.
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Naturally you're misinterpreting this
The same is true for creative works. This isn't a chicken-v-egg dilemma. If the creator doesn't work, the reader/listener/viewer can't enjoy it.
Now I understand that we're all giants because we stand on other shoulders, but we have plenty of good fair use rules that govern issues like that. This woman is merely saying what the constitution says: we need to support the creators or we won't have any creations. In other words, in order to promote the progress of science and useful arts, we need to give the creator control.
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I think you got this backwards...
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I really do wish that passage had made it to the Constitution.
The proof is in the practice. The U.S. government is primarily an instrument of mercantilism in its purest form, fiat-currency be damned, and has been since the early-mid 19th century. Look to the nearly every bit of legislation since then, and this is most clear.
It's always been up to the people to take back what is theirs again and again. Industry and government certainly won't do it for them. Look to the erosion of rights over the past few decades in favor of copyright and corporate self-determination.
Being a very predictable lot, power-players never know their charade has been penetrated until they see the fires from the torches brandished by the large mob on their lawn Then they start acting all bent out of shape and misunderstood.... sound familiar?
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Indeed; that's exactly what happened with SOPA/PIPA.
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Pathetic.
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Re: Naturally you're misinterpreting this
"we need to support the creators or we won't have any creations." Absolute bullshit, and you know it.
A bunch of emotion filled crap.
You ASSume no one creates for pure love of what they do. You ASSume every artists only does it to get paid. Such a sad view of the world, and it shows you have no passion. Must be a sad existence.
So no points for you, a complete fail.
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Please explain to me where copyright comes into play in either of these situations. Can you copyright a turnip? Can you copyright a brick in a house? If so, what rights does that give the "creator"?
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Arstechnica and Monsanto
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I have spent many many hours creating content via youtube, creating webpages, video editing, etc and I can tell you right now money was never the motivating factor. Creating a quality product for a fair price, and complete customer satisfaction. I know that is hard to grasp for a greedy parasite who's whole industry is based on screwing the content creator, and the fans they have.
"Yet somehow you're such a creator hater that you insist that creators must only do it for love" Really? I said that? News to me.
And you completely missed the point. The farmer & builder & insert any art here, love what they do, and just because another market force may diminish their ability to make as much money, the builder will still build, and the farmer will still grow, the musician will still create. It is not the rest of societies responsibility to prop up those industries.
See you and you ilk have no passion other than the pursuit of the almighty dollar, so I dont expect you to understand. You have never poured you heart and soul into something, and then was so proud of it you wanted to share it with the world.
Look at Anthrax for example. They knew damn well the perceived risks of creating content. Did that stop them? No. Even if they never made another dime from music, do you think they would just put down their instruments and never play again?
So, still fail, thanks for playing boB.
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The human capacity for imagination, creativity and originality is not something that can be reduced down to some capitalist bullshit trope.
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The reality is that since the day copyright was codified into the constitution we've done absolutely nothing but one-sidedly expand 'creator' control, in quotes because it's really whoever buys the copyrights, while diminishing fair use, the public domain, and other 'issues like that.' We've done this with absolutely no empirical evidence that it's necessary and she's trying to give the 'creator' more control without any empirical evidence. She doesn't even want to maintain the current balance, she just wants to keep tipping it.
"In other words, in order to promote the progress of science and useful arts, we need to give the creator control."
Prove it.
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Maybe try arguing in good faith?
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But since you brought up the fact that everything is copyrighted, why don't you explain to me why my 5 year-old's crayon drawings need copyright?
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That's a moronic and destructive idea. It clouds a number of related issues and complicates the enforcement of copyright as it relates to creating new works. It also undermines the correct treatment of "private papers".
Ditching mandatory registration was one of the more idiotic revisions of copyright.
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The corporations hold a tiny, tiny fraction and then only after paying the creators a negotiated rate.
The corporations hold a tiny, tiny fraction and then only after paying the creators a tiny, tiny, tiny, tiny, tiny rate.
FTFY
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This wasn't true until 1978. That's within most of our lifetimes (I was eight at the time).
So, when most of us were born, nothing we created was "born with an implicit copyright." It wasn't considered any sort of general human right at all. It was only for people who expected to make money off of their works, and who had explicitly ask for that protection (and again if they wanted longer terms).
That was the law in this country for 200 years. Automatic copyright is a blip on the timeline, relatively speaking.
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Everyone who posts on Techdirt is a fucking 'creator' by default. Yes just writing some stupid text into a textbox makes you an author of some creative work called a "comment". And if it seems petty, HUGE works that "big professional content industry" could never dream of making, like Wikipedia, are largely made by people typing text into a textbox on a website, much like we are doing. Hell, I'm the "author" of many parts of Wikipedia, I'm sure many others here are too.
There is no clear distinction between consumer and producer since we produced this thing called the Internet.
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Re: Naturally you're misinterpreting this
Fine, we support the creators.
However, that doesn't mean that we support the fact that their creations aren't accessible to everyone.
People support creators who make their content available to everyone around the world as soon as possible.
See, the reason people pirate isn't because we think we're entitled to stuff...
It's because we're TIRED of being screwed over by the copyright holders who keep their stuff away from us.
It's like Nelson on the Simpsons taking Bart's skateboard and going "Haw haw" when Bart (in this case the public) tries to get the skateboard back.
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Re: Naturally you're misinterpreting this
Obstetricians say these sorts of things all the time. For example, even the most rabid anti-abortion activists will acknowledge that abortion is acceptable if it's the only way to save the woman's life.
Of course, any good obstetrician would say that taking care of the mother is taking care of the baby.
It is an objective fact that the sole purpose of copyright is to benefit the public. I just posted a slew of quotes from Congress and the Supreme Court that make this clear.
The "balance" in copyright is not between authors' rights vs. the rights of the public. It's between two competing public interests: the public good of access to a larger body of works, vs. the public detriment of a government-enforced monopoly.
You are absolutely right that copyright laws, when properly balanced in this way, benefit both authors and the public. But benefiting authors is only good if it also benefits the public. If it doesn't, authors don't deserve those benefits.
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If you put the needs of the mother first then if the baby dies the mother can have another... if you put the baby first and the mother dies then if the baby survives you don't get another baby for another 18 years.
Right now i see copyright law putting the baby first so there will be another 18 years (lifetime +) to wait for the next round of babies.
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Re: Naturally you're misinterpreting this
"If the creator doesn't work, the reader/listener/viewer can't enjoy it."
Yes, this is why the creator gets the exclusive rights FIRST but for A LIMITED TIME. The creator gets the ability to be first to market, and the exclusive right to benefit commercially to offset their substantially higher initial cost of producing the work, that's all. Then it goes to the public for the benefit of all which is the entire point.
Maybe we need to alter it (at least for patents) such that THAT is the test for works that are offered for commercial profit instead of a set amount of time. Once the cost is recouped the disadvantage has been removed and competing with others offering the same or similar products on an even playing field can truly commence.
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Funny how you use the chicken and egg as an argument to uphold treating one side preferentially, when the chicken and egg dilemma is famous for the difficulty in trying to put one item of a cycle before another.
Furthermore, I must disagree with your assessment of the artist. Given that copyright was devised with intent to encourage artists, the artist must have existed and created something worth having prior to copyright. If there was enjoyable material produced without copyright, then we can not say that there would be nothing for the populace to enjoy without the creations of artists who utilize copyright.
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The benefits accrue to the author first (via the granting of exclusive rights), and then later to the nation (when the work falls into the public domain). Plus, the nation benefits as well while the work is under copyright since the ideas in the work are never locked up.
It's you that ignores the first part of the bargain--the rights and benefits to the author--and pretends like it's only the benefit to the nation that matters.
By the way, calling for the Register's removal makes you look like a petulant ass. Grow up, Mike.
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About that public domain part...
If the works actually DID fall into the public domain, I would agree with you 100%. However, congress has retroactively extended and extended copyright terms so as to make works after 1923 (such as Mickey Mouse) never fall into the public domain. With every copyright extension (such as 1998's Sonny Bono Copyright Term Extension Act) the "creators" win and the nation loses out.
NB: I put creators in scare quotes because I am one such creator and I am not benefiting from perpetual copyright extensions.
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Re: About that public domain part...
Mike and all the other copy-whiners have the ridiculous notion that it should be for the nation right away. That's not the deal provided for in the Constitution.
The author gets property rights in their works. They can do whatever they want with it while the rights are in force: publish it, lock it up, give it away for free. The choice is theirs. Once the term is up, the benefit enures to the nation.
Mike's always whining about the part whether the author gets exclusive rights, and he pretends like that's the part where the nation must get the benefit. That's not how it works.
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At the same time, new works can be created based off of someone else's work and surpass the original creation. This also benefits the public.
As you can see, everything is supposed to benefit the public. And longer copyrights can block the public from getting more, and possibly better, works.
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Why do we want them to create AND publish works? Because we hope that by doing so progress is being made. Clearly, the entire reason for copyrights is to promote the progress. We want the public to be benefited, and we hope that copyrights will do that. In the hope to benefit the public, we give limited monopolies to creators. We are not hoping to promote the progress of bank accounts, we are hoping to promote the progress of creative works for all people, which includes the public, and we hope that granting copyrights will do that. Copyright is first and foremost about benefiting the public. If it doesn't do that, we get rid of it. It is not about benefiting the author. That the author is benefited is just the means to entice them to benefit the public. It's ultimately about the public.
Hopefully, with all the times I repeated myself above, you'll figure out that copyright is for the public first.
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Save the straw men for the Wizard of Oz. When "Steamboat Willie" was created in 1928, the copyright term was 56 years. Now it's 95. "Steamboat Willie" should have been in the public domain decades ago.
We're not "whining" because we didn't get Steamboat Willie in 1928; we're legitimately upset because we didnt' get every single work made in 1928 back in 1984 (1928 + 56 = 1984) and no copyright has expired in the US since 2002.
There's a huge gap between copyright maximalism and copyright abolitionism. Though I am not part of the latter, it is indeed bred by the former.
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How can you say with a straight face that a work locked up under copyright isn't locked up? Maybe your face wasn't straight, there's no way to tell...
Not sure I've ever seen a more text-book case of cognitive dissonance in my life.
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All of you copy-haters sure don't respect other people's property rights.
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It used to be. Welcome to the future.
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Tell you what, if you want to be accepted as an rational adult and perhaps a subject matte expert, then please present your discussions as such.
Otherwise, I will suspect that you are not an adult or subject matte expert you are wanting to be seen as.
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I need to buy a better keyboard.
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What are ya, a fuckin' baby? Start makin' sense, ya fuckin' stupid fuck.
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Yes. Now you get it. Everyone violates copyright. Everyone.
The system was workable when there wasn't digital distribution. The police didn't have the time or desire to bust people for mix tapes or bootleg VHS. The internet has brought this common practice into the open and revieled how draconian the law is. Yes, if everyone does it, the law is broken and should be scrapped.
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#piracyiseverywhere
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Good luck nailing Jello to the wall.
Copyright never granted an author "control". Artistic megalomania was never the point. It granted them an exclusive right to profit.
Given the nature of creativity, control is impossible. That's part of the reason that copyright was intended to be very temporary. The founding fathers rightfully understood that draconian "property" enforcement could have unacceptable unintended consequences.
You couldn't really "control" a work in 1783. Subsequent changes in technology really didn't change anything. They just made things more visible.
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Harlan wants to steal my stuff.
Copyright grants jerks like Harlan the legal standing to shake me down over works that were created before I was born.
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And just because we don't like it doesn't mean all of use pirate. Quite a few of us, myself included, just simply refuse to have anything to do with it.
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If an individual has the same idea as Disney. Disney should not have an automatic right to restrict open content such as the Grimm Stories shared for centuries. Why can't any Joe Schmo make a different version of Sleeping Beauty at this point in time? What is the harm after nearly a century of exclusive big content control?
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I definitely respect other people's property rights.
But property rights don't enter into it. "Intellectual property" is a misnomer created to intentionally muddy these waters. Ideas and thoughts are not property, and to treat them as property distorts the law and rights to an unacceptable degree. At least according to the framers of the Constitution when they were debating copyright.
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The US Constitution only gives Congress the power to create copyright laws. It does not give anybody copyright. Copyright is not constitutionally guaranteed or protected.
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Help me out here AC. Why is it, when there is a global demand for (insert whatever here), why in the world would you not want to meet that demand? You ilk would rather keep (insert whatever here) at an artificially high price point and sell less, than dropping a price and selling more? Now I know, I know... all those 1's and 0's are soooo costly to reproduce.
Its amazing. So what happens is certain individuals say what? $xx.xx dollars, screw that its not worth it... and then just get it for free. If they didnt feel like they were being ripped off they might just crack open the wallet and spend.
"All of you copy-haters sure don't respect other people's property rights."
All of you greetards sure don't respect other people's rights.
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Neither do you, apparently. The rights in 106 naturally are common rights. They belong to us, and we voluntarily grant them to authors (through our representatives in Congress).
So, they're not the authors' "property rights" in the first place. If we as a people decide not to respect them, then it's our prerogative to take them away. It's our "property" and we can do what we want with it.
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The rights that are granted in Section 106 are "property" that, by nature, belongs to the commons. If copyright was not "granted" by the government, every single person on earth would have the right to do every single thing that is listed in 17 USC 106. The only "right" that is granted to authors, is the ability to prevent every other person on the planet from exercising those rights.
And those rights are only granted for the sole reason of the public benefit. Naturally, every single ability that is "granted" to authors in 106 (excepting the ability to exclude) is the natural right of every single human being on the planet - including authors. In other words, that "property" is the property of the commons, exclusively, unless the public voluntarily voluntarily gives it up.
Perhaps I should let Thomas Jefferson explain it:
So, every single right granted to authors (106 or no) can be rendered null and void by the public simply retracting those rights from copyright holders. This is the only thing that "piracy" is: the public retracting the rights that they own from copyright holders.
Also, copyright "as it currently stands" has not existed for "over two centuries." Copyright law changed dramatically in 1976, which is probably within the lifespan of most people who comment here (I was eight). This is a minor blip on the timeline of copyright.
And copyright law changes have only increased. Before the NET Act of 1997, infringement for non-commercial use was not unlawful in any way. If the RIAA had tried to sue Jammie Thomas at that time, the case would have been thrown out of court. And that was less than twenty years ago.
In fact, copyright as it stands today lasts at least twice as long as copyright has lasted for the last two hundred years; and it is now automatic, unlike the previous two centuries when it was not.
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You haven't, nor can you, dispute two facts:
(1) Copyright is property. It's the exclusive property of the owner or his assignees.
(2) Copyright benefits its owner first, and then the nation later on when the copyright expires and falls into the public domain.
You, Mike, and all the other copy-haters can pretend all you want, but those two things are indisputable facts.
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Oh, you don't know what indisputable means, do you?
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Karl makes perfect sense
Copyright is NOT property. It is a grant, a prerogative, a privilege, given by the People to those who "create". That grant allows the author to profit from his writings, exclusive of others (a monopoly), but is time-limited. As per the Constitution, Congress is given the power to administer this grant on behalf of the People.
Copyright ALLOWS the author to benefit financially, but that is secondary to the benefit accrued by the people in encouraging the author to continue creating. Clearly, the copyright "bargain" is meant to benefit society as its primary goal.
Should this bargain no longer benefit society, the People have the Constitutional power, through Congress, to modify it or even do away with it.
All of this is documented history. Please do a little bit of research, starting with the Federalist Papers and the letters exchanged between Jefferson and Madison.
Lastly, Mike consistently makes the point that the copyright monopoly pendulum has swung too far to the wrong side of the bargain and society is no longer receiving the benefits that were intended. The majority here agree and have provided cogent arguments why that is true.
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I agree with you to a certain extent that the pendulum has swung too far, but that is irrelevant to the fact that copyright is property. We can certainly define the contours of the property right differently, but that doesn't mean that it's not property. All property rights are defined by law. Even Mike admits that copyright is property as the word "property" is used in the Constitution.
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If he cannot respond to reason with reason, there is no debate, only diatribe from his side.
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(1) Copyright is property. It's the exclusive property of the owner or his assignees.
It is treated as if it were personal property, by statute, because that is the most convenient way to treat it. But it is solely a monopoly right. It has always been referred to as such, by the Founding Fathers, Congress, and the Supreme Court.
That is why the Supreme Court held that copyright infringement is not theft: "interference with copyright does not easily equate with theft, conversion, or fraud" (Dowling v. United States).
Copyright has never been treated the same as real property, chattel, or even money. All of these would be property even without laws proclaiming them as such. On the other hand, there isn't even such a thing as a "common law copyright," much less a copyright that exists outside of law.
(2) Copyright benefits its owner first, and then the nation later on when the copyright expires and falls into the public domain.
Fair use; the idea/expression dichotomy; statutory royalty rates; the many copyright exemptions enjoyed by libraries and educational institutions... These were all put in place precisely because copyright is designed to benefit the public first and foremost, even while works are still under copyright.
So, no, they're not "indisputable facts." They're indisputably your opinion. The facts are much more nuanced and complicated than your simplistic opinion.
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Everything else you say is honestly too dumb to even comment on. You've got everything all mixed up, and frankly, you're just clueless. I love, love, love how confident you remain, no matter how many times you are proven wrong. It's awesome. Mike's Army is Strong!
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Maybe this will make you understand things a bit better.
Under the "takings clause" of the Fifth Amendment, the U.S. government cannot take personal property from its owner without just compensation.
If Congress decided to do away with copyright altogether, and not compensate copyright holders in any way, would it violate the Fifth Amendment?
No, it would not.
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Looking forward, there would be no Fifth Amendment issue. As to currently vested rights, there likely would be a Fifth Amendment issue.
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Under the "takings clause" of the Fifth Amendment, the U.S. government cannot take personal property from its owner without just compensation.
If Congress decided to do away with copyright altogether, and not compensate copyright holders in any way, would it violate the Fifth Amendment?
No, it would not.
ROFLMAO! I like you, Karl, but you are just clueless when it comes to the law. You know enough to be dangerous--just like Mike--but not enough to get it right.
Although, on this point even Mike gets it right. Even Mike admits that copyright is property under the Takings Clause. Ask him.
That's right. The same Mike who says "copyright is not property" without hesitation or qualification also admits that under the Constitution, which is the supreme law of the land, copyright is property.
Makes you wonder what kind of snake oil he's selling, no?
And if you don't me or Mike, ask the Second Circuit. For they've already explicitly held that copyright is property for purposes of the Takings Clause.
You are too clueless, Karl. I love how you speak so confidently even though you know not what you speak. It's classic good times!
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"An interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution." Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983).
The "just compensation" clause is the same thing as the Takings Clause. See U.S. Const. amend. V. The Takings Clause has been incorporated against the states, so neither the federal nor state governments can take your copyrights without due process of law or without just compensation.
Why? Because copyrights are property as that word is used in the Constitution.
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You left a couple sentences out there, buddy.
Let's fill in that quote a little more:
So, no, they didn't outright say that copyright automatically is property protected by the Fifth Amendment. They raised the issue that it probably was, but didn't decide the issue.
It doesn't help your case (or their opinion) that not a single one of the cases they cited dealt with any form of intellectual property... or any form of property that wasn't "real property" (real estate).
That case was decided in 1986. So, what actually happened when "an appropriate case" came along?
- Zoltek v. United States (2006)
Now, that lawsuit is still ongoing; but even in the latest court case (March 14th of this year), where it was found that the government could be liable under §1498(a), the court reiterated that "The trial court’s determinations on that issue [that Zoltek did have a Fifth Amendment claim] are vacated."
The government came to a similar conclusion in 1998:
- De Graffenried v. United States
Now, I'd also like to point out that these are cases where the government has used specific patents held by specific individuals - and even in these cases, the government isn't infringing on the "takings clause." Copyright and patent holders may sue the government, of course, but they must rely on specific statutes enacted by Congress that allow them to do so.
I have never heard of a single case where anyone brought a Fifth Amendment charge against a generally-applicable statute enacted by Congress under its Title 1, Section 8 powers. Indeed, it would not make any sense: that would mean the government would have to cut rights holders a check every time they expanded fair use, created exemptions for libraries, enacted statutory royalties, created more exemptions to DMCA anti-circumvention laws, etc.
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You left a couple sentences out there, buddy.
Yes, Karl. When I copied only one sentence from the opinion, there was more to the opinion that I didn't copy. Good catch!
So, no, they didn't outright say that copyright automatically is property protected by the Fifth Amendment. They raised the issue that it probably was, but didn't decide the issue.
Nope. What they said was that an "interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution." That was followed by two citations to Supreme Court cases backing up the point. That's as cut and dry as you could possibly hope. Yes, they didn't apply that law to the facts of the case, so you are right to point out that they didn't decide the issue in the case, but you are missing the import of the statement of law. Just because they didn't apply that law to the case doesn't mean they weren't stating the actual law.
You are so desperate to find some way--any way--that you can spin this into you being right. It's hilarious that you just don't admit that you're wrong. Anything but that, right?
It doesn't help your case (or their opinion) that not a single one of the cases they cited dealt with any form of intellectual property... or any form of property that wasn't "real property" (real estate).
Did you read the footnote cited in Pruneyard? It explains the broad meaning of the word "property." Imagine what you could learn about the word property if you actually researched the actual law on point, rather than just come at it with your vision of what the law should be. That footnote explains why property interests such as copyright are property as that term is used in the Fifth Amendment.
The Zoltek case you quoted only refers to the fact that infringement is not a taking. Duh. We're not talking about infringement, we're talking about an actual taking, as in, taking the copyright (or other intellectual property right) away from its holder. Again, you think you're finding support for your argument, but in fact you are not. You, again and as always, don't understand what you're reading.
The De Graffenried case you cited is the same issue: infringement is not a taking. That's true, and it's irrelevant to what we're talking about.
Sorry, Karl, but you are just clueless. Here's my suggestion: learn what it means for something to be property, and then apply that to intellectual property rights. If you do that, you'll see why the Supreme Court refers to copyright as property regularly.
This is why you get unanimous Supreme Court opinions saying things like this: "The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property."
That's right, "his property." See http://scholar.google.com/scholar_case?case=11927843113158763814
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We can quote you on this later, right?
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"A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations."
Munn v. Illinois, 94 US 113 - Supreme Court 1877
Based on this, it seems to me that the 5th amendment actually COULD apply to a reduction in copyright, then, if they tried to make it retroactive. (On the other hand, the court would probably rule however it wanted to rule. You could make the case that EVERYONE has copyrighted material and it's impractical and downright silly to have a nationwide class-action lawsuit.)
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There is not a single law in the statutes that says intellectual property is subject to "regulatory taking" laws.
So, no, they weren't stating the actual law. They were opining that it might be the case, but they didn't actually decide it. Nor is there a single court case that actually decided that it was - as opposed to Zoltek, which explicitly decided that it was not.
Did you read the footnote cited in Pruneyard? It explains the broad meaning of the word "property."
I read all of the footnotes cited in Pruneyard. Then I hunted down the actual cases (where I could, without acces to Lexis-Nexus). The footnotes explained the broad definition of rights attached to real estate regarding the takings clause.
Not one case was about any other form of property. Not one case mentioned either patents or copyrights.
The Zoltek case you quoted only refers to the fact that infringement is not a taking. Duh. We're not talking about infringement, we're talking about an actual taking
If copyright and patents were property, the way that you and Pruneyard define it, then infringement absolutely would be subject to the takings clause. In fact that's what the Pruneyard footnotes were saying: that any infringements of real property rights, whether "taking the property right away from its holder" or not, were subject to the Takings Clause.
Here's my suggestion: learn what it means for something to be property, and then apply that to intellectual property rights.
Here's my suggestion: learn that patents and copyrights are legally different from other forms of property.
This is the relevant part of Zoltek:
Zoltek held that when the property rights are solely creatures of federal law, there is no Fifth Amendment claim.
That's right, "his property."
Good Lord. I already made it clear that copyright and patent are treated as if they were personal property, by statute. But this is solely because Congress chose (but was not required) to implement the "exclusive rights" as property rights. If Congress did not choose to implement those "exclusive rights" this way, but in some other way - or not at all - then there would be no property rights.
And there is absolutely zero indication that the Supreme Court would find it unconstitutional if they did:
- Graham V. John Deere
- Sony v. Universal
Further evidence of my assertation is the fact that it already happened. Mazer v. Stein tells the story:
- Mazer v. Stein
Yet, despite the fact that copyright protection for "fine arts" statues was eliminated from copyright protection, nobody even suggested that it violated the takings clause.
By the way - leaving aside the takings clause for a moment, the same case that you cited, Fox v. Doyal, makes it absolutely clear that your interpretation of copyright is wrong:
The fact that "Congress did not sanction an existing right but created a new one" is the primary reason Zoltek ruled that patents are not subject to the takings clause.
This is not an academic argument, either.
The RIAA has already attempted to attack the "termination rights" provisions in the 1976 Copyright Act under the takings clause; expect more of that to come.
And the subject has been raised in regards to orphan works legislation. This kind of legislation has stalled, but since it's supported by so many people (even the American Association of Publishers and Maria Pallante herself), it seems like some version will become law sooner or later.
Here's a question for you. Do you honestly believe that the Supreme Court will find orphan works legislation to be categorically invalid under the Takings Clause? I don't.
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I'm not going to go through line by line and explain how you got it wrong because that's just a waste of time. No matter how often or how wrong you are proved to be, you never get deterred or admit your mistake.
The Second Circuit unequivocally said that copyright is property. Before you decide that that's not the proper statement of the law, maybe, just maybe, you should consider the fact that the judges on the Second Circuit have forgotten more law than you'll ever know. Maybe they actually know something you don't--I know, I know, it couldn't be! But it's true, Karl.
If copyright and patents were property, the way that you and Pruneyard define it, then infringement absolutely would be subject to the takings clause.
You're just embarrassing yourself with this. Infringement is to trespassing, as taking is to eminent domain. Do you really not understand the difference between violating someone's property rights and actually taking ownership of those property rights away? Imagine all the things you would know if you studied them rather than making them up.
Zoltek held that when the property rights are solely creatures of federal law, there is no Fifth Amendment claim.
Nope. Infringement is not a taking, but actual taking is, which is what I'm talking about. You're just clueless on this point.
Good Lord. I already made it clear that copyright and patent are treated as if they were personal property, by statute. But this is solely because Congress chose (but was not required) to implement the "exclusive rights" as property rights. If Congress did not choose to implement those "exclusive rights" this way, but in some other way - or not at all - then there would be no property rights.
Yep, intellectual property rights are personal property created by statute. So what, they're still property rights that are subject to the Fifth Amendment. Your idiotic reading of the law would mean that Congress could take away all of your property rights that are statutory without due process or just compensation. Congress may choose not to create these rights, sure. But once they give someone these property rights, there are certain rules, such as the Fifth Amendment, that kick in.
You don't have a clue what you're talking about.
Yet, despite the fact that copyright protection for "fine arts" statues was eliminated from copyright protection, nobody even suggested that it violated the takings clause.
I love how you pretend that "nobody" said a word when I know you didn't actually research this. Tell me this, when they changed the law, did they actually take away rights retroactively that had been granted? If not, no takings.
The fact that "Congress did not sanction an existing right but created a new one" is the primary reason Zoltek ruled that patents are not subject to the takings clause.
Nope. It wasn't a taking because infringement = taking. Yes, Congress created the rights. So what? Congress and legislatures create property rights all the time. If you actually stopped trying to convince about your understanding of property and spent that time actually learning about property, imagine all the stuff you'd know.
You really are an insufferable fool.
There is a Supreme Court case that applies the Takings Clause analysis to intellectual property. I don't want to insult you with the cite, since I know you're such a constitutional law expert and all. LOL!
If you want to understand what property really is, and want to talk about it like you do, then spend the time and learn what it means to be property under the Fifth Amendment. There's lots of case law on point since property is so fundamental to our society.
I know it's pointless to ask, but please stop talking like you understand all of this when you so clearly don't. The fact that the Second Circuit could so casually say that copyright is property under the Fifth Amendment should tell you that maybe you don't understand all of this. I know your gut reaction is to assume federal judges know less than yourself, but look deep in the mirror and tell me that's so.
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I know this is over, but just in case you're still paying attention, you should read this:
- Crozier v. Krupp
So, according to that case, at least, infringement by the government is a "taking of property for public use."
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You do realize that the Takings Clause only applies to property. So if you're now arguing that infringement can be a taking, you're necessarily conceding that copyright is property.
Are you now admitting that copyright is property? And if so, do you agree that Mike Masnick is being deliberately manipulative when he: (1) admits that copyright is property is property under the Constitution, (2) but then proceeds to claim categorically that copyright is not property?
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I am not arguing this. I am replying to the notion that "Infringement is not a taking."
If patents were property subject to the Fifth Amendment, then infringement would be subject to the "takings clause," because (according to Crozier v. Krupp) the government, by infringing a person's patent, "had taken his property."
But, the court in Crozier - like in Zoltek - found that the actions of the government were not subject to the takings clause. In fact, they did so for the same reason the Zoltek court did. "Prior to the passage of the act of 1910 [...] no right of action existed..."
Are you now admitting that copyright is property? And if so, do you agree that Mike Masnick is being deliberately manipulative when he: (1) admits that copyright is property is property under the Constitution, (2) but then proceeds to claim categorically that copyright is not property?
Copyright is not property "under the Constitution." The Constitution does not grant property rights to artists (or anyone else, in fact). It grants a right to Congress, restricted by the condition that it must be in the public interest.
Copyright is property under the statutes that Congress enacted, but they were not, and are not, required to do so. The "property rights" that Congress created are solely monopoly rights, conferring no other benefit to the "property owner." As such, they are far more restricted than traditional, common-law property rights (which neither Congress nor the Constitution created).
Furthermore, Mike usually talks about property from an economic, rather than a legal, sense. And in that sense, copyright is not property; economically, property is created to solve inefficiencies in the allocation of scarce resources, something that copyright (like all other government-granted monopoly rights) is not even supposed to do.
And Mike is certainly being less manipulative than people who claim infringement is "stealing," and that copyrights can and should be treated like every other form of property. It is not the same under the law, it exists for a different purpose, and pretending otherwise is purely disingenuous.
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If you don't believe my analysis of the case, let's ask someone else:
Just who is that dastardly copy-hater and freetard?
Marybeth Peters, United States Register of Copyrights, 1994-2011.
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Again, you fail to understand that the Second Circuit's dictum was not a statement of law, but was made ex nihilo.
Something both myself and the (former) Register of Copyrights understand.
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Which would be fantastic if the corporations who demand copyright "protections" actually allowed works to enter the public domain. They don't, and even rob works from the public domain retroactively.
Unfortunately, they game the system to their supposed benefit... and those in charge of the system have a habit of bowing to their needs instead of those of the public. The system is broken. End of story.
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I like how you continue attempting to impress me, and get me to change my pirating ways by stealing from the public domain and stealing from the content creators, all in the name of your perverted view of the Constitution.
When truth, realism, legitimate terms and equity are part of copyright again, I will dis-continue to share your booty for free to offset to immense damage you cause.
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fun
For an industry as large as you 'claim', isn't it a bit ironic that it has come to the realization that you have to defend your obnoxious lies in a popular blog, in a vain attempt to incite blind support for your idiotic views on copyright? There are 7 billion people on the planet, and 1.26 billion of them on the internet. With probably
half not knowing a thing about copyright (or caring), and the other half enlightened by your education campaign of how bad copyright is, I can only conclude that over 600 million people on the planet can prove every copyright claim as lies, compared to your 224,000 employees in IP intensive industries.
Interestingly, there are over 2,800 informed people against copyright to one troll who is for copyright.
Now please leave, so the grown-ups can have a discussion of how to dismantle your government monopoly, without your input. Fair is fair, consumers weren't allowed at the table for SOPA/PIPA/ACTA/TPP, why should we allow you in the discussion on how to dismantle your monopoly?
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I'm no abolitionist, but I do understand the tendencies thereto.
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You're kidding right? Did you miss that whole article from yesterday about the gulf between 1920ish and 2010 where relatively few new books are published thanks to copyright locking them away?
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Again, all you copy-whiners seem to think the benefit for the nation comes first. That's not what the Constitution provides for. The owner gets the benefit first so that the nation can get the benefit later.
Mike, the ultimate copy-whiner, pretends like it works the other way around. It's amusing.
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But again, all you copy-haters seem to gloss right over the fact that first, as described in the Constitution, the benefit goes to the author. The author is given property rights in their creation, and they can do whatever they please with that property--including nothing, if they so wish. The fact that you don't like what authors or their assignees do with that property is just childish whining (which is Mike's #1 specialty).
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NOT if copyright is lifetime +70 years (or extended further.
Point is, if Public Domain doesn't happen in your life time, it's useless.
Reduce copyright back to 14 years and people might start respecting it again.
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In terms of the clearly stated goal of the copyright clause, the benefit to the nation is the only thing that matters.
The benefit to the creators isn't the goal, it is the means. The benefit to the creators isn't there because the creators deserve the benefit, it's there because it was deemed the best way to achieve the only goal: the benefit to the nation.
If you drive to work every day, it's arriving at work that's the only thing that matters. The car is the means, and is of no other importance.
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No, it's you that ignores the objective fact that it is only the benefit to the nation that matters. I just posted a whole slew of quotes that make this absolutely, 100% clear.
Your mistake is in thinking it's a "bargain" between authors and the public. It isn't. It's a "bargain" between two competing public interests. If that bargain benefits authors, then so much the better; if it doesn't, then too bad for authors.
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All of you whiners who take for free what the owner sells for a price are no better than pickpockets and thieves. Your all part of Pirate Mike's little Fagin's Gang of degenerates.
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Oh, man, I can't believe you even went there. The US is the one who pressured other nations to enact draconian copyright laws that couldn't have been passed here, specifically so they could come back later to the US and force the laws domestically in the name of "harmonizing" IP law worldwide.
Your argument is nothing but a cheap trick.
No they won't, unless we can apply enough counterpressure. The intent, history, and pattern is clear: the term of copyright will continue to be extended over time, so that at every step of the way they can say "see, it's limited!" when the result is no different than if it were permanent.
It's another cheap trick.
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I know I shouldn't feed the troll but you are completely wrong here. It is the US pushing longer copyright terms and draconian IP on the rest of the world. Witness the US position in ACTA and TPP. As Wikileaks showed us, the MPAA offered to draft NZ law and campaign to get it passed.
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You don't see the irony in saying Mike looks like a "petulant ass" and then telling him to "grow up" do you?
You petulant ass, why don't you grow up yourself first before telling others to do the same?
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Dear...
Please look up the term "civil servant."
Thank you,
The People
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Re: Dear...
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As part of an executive agency, her job is to help enforce the laws enacted by Congress under its legislative power conferred by Article 1, Section 8, Clause 8.
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Which means that her removal seems like a good potential whitehouse.gov petition topic.
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I was just thinking the same thing.
Even if the White House does nothing about it (which I think is likely), it will at least send the message that people are watching.
It might also reiterate the plain fact that copyright doesn't exist to serve rights holders, a fact that seems to be lost on politicians nowadays.
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Which should make all of the name calling trolls here quite happy.
I wish Obama was a man of his word.
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Where's the register then?
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So people like Palent has no job since there will be no BS granted monopolies out there anymore.
But it is not going to happen via governments but through people saying enough is enough.
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Just for my job, I have contracted away freedom of speech through nondisclosure contracts, freedom of commerce through noncompetition clauses, freedom of action through performance clauses, and so on.
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Copyright is only a part of the changes coming
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Re: Copyright is only a part of the changes coming
Pirates will use the Google Glass to stream videos directly from theaters :)
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Wow
What she said was disgusting, short-sighted, hateful, ignorant, and devolved. She made references to the Jetsons and Bladerunner having physical books shown in the futuristic stories as evidence that we cannot imagine a future without physical books. Yet she completely skips over the fact that those were both written 30+ years ago. Long before digital distributing was really conceivable to most people.
On top of that she shows an almost hatred toward the public (yes I watched and listened to the entire video) and the public domain. The only exceptions she makes are for things like libraries. Then she goes on to say that we couldn't have creative works and culture without publishers and copyright. Yet the internet is proving that wrong every single day.
This woman is incompetent and spiteful towards the public. She should be fired and fined. That was a stones throw away from being a hate speech.
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Re: Wow
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WTF! without copyright there wouldn't be knowledge or arts?
Is she crazy, open source proves her wrong today and thousands of years without copyright laws just shows how stupid she is.
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It is all coming back to me now why I never will stop pirating anything ever or pay publishers, labels or studios.
That is why I will go CC by SA, GPL or any other copyleft route and support those people, not the old guard that must die.
I have no political powers and am not rich but damn, every single chance I get to stick it to them I will remember how that video of her talking made me feel.
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sometimes you make me tired, Mike
"Oh, why does Mr. Such-and-such seem to forget that copyright was designed to benefit We The People?"
But this device has gotten a little old, Mike.
Would it hurt just to admit publicly and definitively, once and for all, that benefiting the public was never the reason behind copyright, but merely the rationalization? Would it really alienate your critics any worse? Would it really damage your credibility any more?
Intellectual Property is theft, or at least an attempt at theft. Wealthy and/or opportunistic bastards stomped into our culture and decided they could wall off portions of it for their own gain. In an ironic and all-too-familiar pattern with such thieves, they then turned around and accused people who simply practiced the most basic function of culture -- sharing -- of being the real thieves.
Years ago, I was outraged by the fact that such a position might be perceived as cynical or even controversial. Now it just seems boringly delusional that anyone would bother pretending otherwise.
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Re: sometimes you make me tired, Mike
It is neither. That you equate it so is troublesome to your position.
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Of course it's how it works.
The benefits to the public (in theory) accrue immediately - even from works that are under copyright protection (not just for works in the public domain).
The public gets immediate access to the works, and immediate and unrestricted use of the ideas in the works. Additionally, they get certain unrestricted uses of those works, which trump all rights of the authors (e.g. fair use, statutory royalty schemes). In theory, this is supposed to offset the detriment to the public of a government-created monopoly on expression.
The only one who is "whining" here are the authors (more accurately, the publishers) who want the public cut out of the deal altogether. That the Register of Copyrights listens to their whining is sad and alarming.
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This debate has NOTHING to do with creators, it has everything to do with corporate control, greed and profits. If you argue otherwise, you're simply an ignorant fool.
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Go on and whine about your precious copyrights, for all the good it will do you. You push us, we'll push right back. The really amusing thing is that she likely has no idea of the hornet's nest she's stirring up, or that it's going to blow up right in her face. Just like it will in yours, my poor deluded maximalist friends. People can only stand being walked on for so long. Like water, they have a boiling point, and it's about to be reached. And I'm really going to enjoy watching you fools burn.
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-- Maria Pallante, addressing the American Association of Publishers
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dumb cunt
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Re: dumb cunt
I don't like her either, but let's avoid throwing around the C-word, shall we?
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Copyright is just an excuse
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And since when did you get to decide what the public interest is?
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Remove Her!
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Old music is being removed from the public domain and placed under new copyrights, and existing ones are nearly eternal. Happy Birthday is still copyrighted 120 years after it was written, and will remain under protection until at least 2030, so only thieves would sing that in public without a license from ASCAP or Harry Fox.
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No one but Congress can fire the five RIAA lawyers now on the Federal bench. But we might be able to get this stooge out of the position she holds. I would expect it would need to be a very large number of people before anyone takes notice.
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Notice how the Federal Circuit didn't say that it wasn't a taking because copyright is not property and therefore it cannot be taken for purposes of the Takings Clause. Nope, it wasn't a taking because it was taken. If copyright isn't property, then you'd think the Federal Circuit would have just said so. Instead, they analyzed the claim with the assumption that copyright is property.
I know, I know. You'll find some way to spin this so that it doesn't say what it actually says. And I know you think you're smarter and know more than the judges on the Federal Circuit.
But I hope, just maybe, there's a tiny voice in the back of your head that's saying, "Hey, maybe I'm not a legal expert after all. Maybe, just maybe, I don't understand the Takings Clause or what property is." I can dream, right?
Just to give you an idea of what "property" means in the Takings Clause, consider this: Robert Meltz, Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q. 307, 319-20 (2007).
Wow, I bet that's totally different than the meaning of "property" and "taking" that you pulled out of your ass. Amazing what you learn when you actually look stuff up--you know, for real.
Sorry, Karl, but you're clueless. And that's fine. I don't mind that you don't understand something, and I think it's great that you're interested in this stuff.
What I can't stand is the, "I know what I'm talking about and you don't" attitude that infiltrates all of your legal pronouncements. You don't know the law, Karl. It would suit you well to stop pretending like you do.
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There are undoubtably certain situations in which the "takings clause" would apply to copyright. Say, for example, that in 2003, the state of New York decided it was "unfair" that the royalties to Beatles songs went to the Michael Jackson estate, and not to Paul McCartney. That state then declared that any royalties that accrued in their state were the property of Sir Paul.
Would that implicate the takings clause? Almost certainly, it would. I say "almost," because there would be so much wrong with that New York law, that the clerk typing a transcript of the case would collapse from carpal tunnel syndrome before the Fifth Amendment was even mentioned.
So, yes, if the Government acted contrary to the statutory laws passed by Congress in removing a copyright from its owner, without compensation, it would certainly not pass Fifth Amendment muster.
Of course, that's not even close to anything I was talking about.
Here is exactly what I asked:
If Congress decided to do away with copyright altogether, and not compensate copyright holders in any way, would it violate the Fifth Amendment?
Notice that the word "retroactive" is nowhere to be found. And without the retroactive aspect of Congress doing away with copyright, the answer to that question is an unequivocal "no."
The 1909 Act did away with copyright proetection for fine arts under the 1870 Act. The 1976 Act enacted "reversion rights" for artists, which previously did not exist, and "took" the copyrights away from what was previously the rightful owners of those copyrights. It officially codified the "fair use" doctrine, under which copyright holders lost all "property" rights for uses that were determined to be fair use. Sony v. Universal expanded the uses that were considered fair use. And, of course, when Congress enacted its first copyright clause, under the condition that one seeking such protection follow certain statutory proceedings, nobody who held a copyright when that statute was enacted enjoyed any sort of copyright protection unless they complied with federal statutory preceedings, regardless of whether they followed state statutes.
Not one of these developments even suggested a "taking clause" claim, much less was decided to conflict with it. It is not even remotely controversial to claim that the Fifth Amendment is irrelevant, if Congress decides to define the scope of the limited monopoly known as copyright, without retroactively changing that scope.
And, as I said before, this is not an academic question. The RIAA has already challenged "reversion rights" under the takings clause, though it was in regards to "Gap Grants" (it's from that analysis that I quoted Marybeth Peters.) As 2013 approaches, I fully expect some RIAA lawyer to claim that "reversion rights" are invalid under the takings clause, even though they only apply to copyrights granted after the statute was enacted. I fully expect this particular argument to fail.
Now, despite me not mentioning it, you have been focusing on one question: what if Congress did away with (some or all) rights in copyright, and applied them to still-active copyrights? That is, what if Congress changed the scope of copyrights retroactively?
Though it bears absolutely no relevance to the point I was making, it is certainly an interesting question. I say "interesting," because the clerk typing a transcript of all relevant cases would have time to step outside the courtroom for a smoke break.
Simply put, no court has ever held that retroactive changes to copyright law passed by Congress involve the takings clause. The court in Roth v. Pritikin raised the possibility that it might be the case, but that was dicta, and they expressly said that they would not decide on that possibility.
Certainly, retroactive extensions to copyright law have not been held to conflict with the takings clause, as I'm sure you know.
Additionally, such changes have happened before, at least as far as I can tell. I alreay mentioned the undoing of copyright protection for "models or designs intended to be perfected as works of the fine arts," cited in Mazer v. Stein. The 1909 Copyright Act did away with the protections afforded these works in the 1870 Act (though they were reinstated a couple decades later).
You asked: "when they changed the law, did they actually take away rights retroactively that had been granted? If not, no takings." Well, I have just read the 1909 Act in its entirety, and I see no sort of "grandfather clause" for these types of works. So, it appears that, yes, Congress did actually take away rights retroactively that had been granted. Former copyright "owners" of those works suddenly found themselves without any sort of "property" whatsoever. All without implicating the Fifth Amendment.
Still, that Act was not challenged in court, so there is no definitive case on the matter. That is why the aforementioned Register of Copyrights, Marybeth Peters, says flat out that "the Office does not know of any cases in which courts deemed Congress' copyright revisions to be takings."
And, once again, this is not a theoretical concern. Many, many people (both in the government and the publishing industry) want "orphan works" legislation to pass. If Congress was not allowed to pass retroactive changes to copyright under the Fifth Amendment, orphan works legislation would be unconstitutional on its face. (The law would necessarily rob the existing copyright holder of their "property rights," and since the holder by definition cannot be found, he or she certainly cannot be compensated.)
I seriously doubt that a single member of the Supreme Court would hold that to be true.
Would you? I asked before, but you never answered.
What I can't stand is the, "I know what I'm talking about and you don't" attitude that infiltrates all of your legal pronouncements.
You and me both, buddy.
You're just some anonymous coward who's afraid to put a name to their posts. I have absolutely no evidence whatsoever that you're any more versed in the law than your average citizen (including me).
I never claimed I was a constitutional lawyer or anything. I never claimed to be any sort of lawyer at all. But even I can see that you are the one with an "I know what I'm talking about and you don't" attitude that "infiltrates all of your legal pronouncements."
If an idiot like me can see it, I'm guessing that everyone reading these comments can see it, too. That's quite an attitude, considering that you're no more reputable as a legal expert than your average /b/tard.
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theft
Lets all hope his is jailed soon.
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