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

Thu, Apr 5th 2012 7:41am — Mike Masnick

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. She's careful in her words, and pays some lip service to exceptions and the public, but it's not difficult to see her true feelings. She sneers at "the copyleft agenda" and snidely refers to the horrors that will happen if Congress listens to the public and changes copyright law based on "flawed notions of the public good." She's afraid that the public speaking out against SOPA means that such evil changes are "inevitable", and worries about that. She also suggests that having access to works for free is "a perversion of the Constitutional copyright clause" (she's quoting someone else saying that, but does so in a manner that shows she agrees). Is the public library "a perversion of the Constitutional copyright clause" in her mind?

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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Anonymous Coward, 5 Apr 2012 @ 7:45am

"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."

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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jakerome (profile), 5 Apr 2012 @ 7:50am

And boom!
You just proved her point! Right there, you just used one of these so-called "exceptions" in such a way as to WHOLLY destroy the value of the publication. By printing MULTIPLE sentences from the publication WITHOUT PERMISSION you have greatly harmed the PROPRIETARY RIGHTS of the ABA. Just imagine how many Techdirt readers will now decline to make their regular purchase of Landslide by instead relying on your rewriting (hot news anyone?) of the interview.

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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Ima Fish (profile), 5 Apr 2012 @ 7:50am

It sounds to me like Miss Pallante is looking for a cushy job to retire into.
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:Lobo Santo (profile), 5 Apr 2012 @ 7:51am

She's a tool.
"How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?"
An assembly line robot is mindless; has no understanding of the task it performs; but performs the task very ably. In short, it is a tool which makes the task easier for somebody else.

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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bob, 5 Apr 2012 @ 7:52am

Naturally you're misinterpreting this
What if an obstetrician said, "We need to take care of the mother first and the baby second?" Would you squalk about them being both equal and worthy of protection? Would you say that we must treat the youngest and most powerless with even more care precisely because they need it? That's just the wrong way to see it. It only makes practical sense because for the first part of the pregnancy, the baby can't exist without the mother.

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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PaulT (profile), 5 Apr 2012 @ 7:54am

Re:
"The reality is that it is a two sided deal, not a one sided deal."

Then why do you consistently support every attempt to make it one-sided and attack those who point this out?
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Anonymous Coward, 5 Apr 2012 @ 7:55am

Mike,

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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Samuel Abram (profile), 5 Apr 2012 @ 7:56am

I think you got this backwards...
I think the nation as a whole is more important than the class of creators as a whole. So in your analogy, the mother would be the nation and the baby would be the creators. And I'm saying this as a content creator.
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Anonymous Coward, 5 Apr 2012 @ 7:57am

Re:
Sorry but "the nation" is not a one-sided entity. It includes everyone. If it's "for the nation" it's inherently two-sided deal, actually an n-sided deal since it includes everyone, every 'side.' If it's for the author first then it is a one-sided deal. Only the intellectually bankrupt would attempt to claim that "for the nation" is a "one-sided deal" and that the truly one-sided 'it's for authors' is somehow 'two-sided.'
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Anonymous Coward, 5 Apr 2012 @ 7:57am

so perhaps the best way of dealing with this idiot is to have her questioned by and answerable to the likes of senator Wyden? i'm sure he will be able to rip her comments up for arse paper whilst at the same time giving her valuable advice which she so obviously needs. making her realise that reading off of the RIAA/MAFIAA etc hymn sheets is not a very good thing. knowing what her job is and what she is supposed to do would help enormously as well!
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weneedhelp (profile), 5 Apr 2012 @ 8:00am

Re: Naturally you're misinterpreting this
Nice try boB. You cant equate the choice of the life of an unborn child to copyright. Totally different.

"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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Samuel Abram (profile), 5 Apr 2012 @ 8:01am

About that public domain part...
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.

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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Another AC, 5 Apr 2012 @ 8:02am

Re:
Plus, the nation benefits as well while the work is under copyright since the ideas in the work are never locked up.

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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PaulT (profile), 5 Apr 2012 @ 8:03am

Re:
"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)."

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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Anonymous Coward, 5 Apr 2012 @ 8:05am

Re: Naturally you're misinterpreting this
Keep trotting out that false dichotomy between 'creators' and 'readers/listeners/viewers.' It's incredibly sound, not obviously bullshit, and it's very convincing!

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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weneedhelp (profile), 5 Apr 2012 @ 8:06am

Re:
Since we are quoting, lets get it right:
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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surfer (profile), 5 Apr 2012 @ 8:06am

Re:
and as you continuously condemn any argument as falsehoods, I will continue to ignore your outright lies, and continue my filthy pirating ways.

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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Jason, 5 Apr 2012 @ 8:06am

Dear...
Dear Ms. Pallante,

Please look up the term "civil servant."

Thank you,

The People
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Anonymous Coward, 5 Apr 2012 @ 8:08am

Re:
"Plus, the nation benefits as well while the work is under copyright since the ideas in the work are never locked up."

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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Anonymous Coward, 5 Apr 2012 @ 8:09am

"Her job is supposed to be to promote the progress of science and the useful arts."

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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Anonymous Coward, 5 Apr 2012 @ 8:12am

Re:
So why is she commenting on legislation that didn't pass as if it should have in her official capacity as the US Register of Copyrights? Clearly that's not pursuant to her mandate nor is questioning the opinion of the constituents who rallied against it.
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Anonymous Coward, 5 Apr 2012 @ 8:12am

Although the Register of Copyrights is not appointed directly by the POTUS, it's still an executive branch appointment, so I assume Obama could have her fired if he wanted to.

Which means that her removal seems like a good potential whitehouse.gov petition topic.
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Anonymous Coward, 5 Apr 2012 @ 8:14am

Re: Re:
You post like RD. You might want to ask him about how the CAPS LOCK KEY WORKS, okay?

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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Greevar (profile), 5 Apr 2012 @ 8:14am

Re: Re:
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.
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silverscarcat (profile), 5 Apr 2012 @ 8:15am

Re: Naturally you're misinterpreting this
"we need to support the creators or we won't have any creations"

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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Kevin Marks (profile), 5 Apr 2012 @ 8:15am

Where's the register then?
As you pointed out the other day, not digitising the register of existing copyrights is a huge dereliction of duty by the Copyright Office, causing huge costs to anyone who wants to see if a work is orphaned or not.
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Karl (profile), 5 Apr 2012 @ 8:16am

Re:
Sorry, but the words don't say that - the "for the nation" is something added by people like yourself.

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:

The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors forr limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.
- H.R. Rep. No. 60-2222

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."
- Feist v. Rural

The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.
- Twentieth Century Music v. Aiken

The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.
- 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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Greevar (profile), 5 Apr 2012 @ 8:16am

Re: She's a tool.
Nah, tools at least are indifferent to whom is using them. She's clearly trying to butter up her masters to win favor.
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silverscarcat (profile), 5 Apr 2012 @ 8:17am

Re:
When was the last time something entered the Public Domain?
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Anonymous Coward, 5 Apr 2012 @ 8:19am

This is why copyright needs to end.
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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Anonymous Coward, 5 Apr 2012 @ 8:20am

Re: Re: Re:
"Limited doesn't mean meaningful limits so it's perfectly ok to set 'limits' that are functionally equivalent to limitless."

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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Anonymous Coward, 5 Apr 2012 @ 8:22am

Re: Re:
I'm going to need a sizable research grant to pour over paper archives in Washington to answer that question...
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surfer (profile), 5 Apr 2012 @ 8:23am

fun
actually, this is all starting to become enjoyable. to sit and read all the MAFIAA troll comments here on Techdirt. I wondered what the sub-conscience draw was..

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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wec, 5 Apr 2012 @ 8:25am

I have a general question on rights given by Congress. What Rights given by Congress can you contract away?
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:Lobo Santo (profile), 5 Apr 2012 @ 8:26am

Re: Re: She's a tool.
Hmmm... I'd argue we have no method of clearly proving tools are indifferent to their users.

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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weneedhelp (profile), 5 Apr 2012 @ 8:27am

Re: Re: Re:
I know how caps locks work, and it obviously worked in this case even YOU got the point. Okay? K.

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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Brandon, 5 Apr 2012 @ 8:27am

Copyright is only a part of the changes coming
In all honesty the internet is going to be unrecognizable in the coming years, ISP's working with the entertainment industry, ACTA, Europe will have the right to be forgotten in place, the UN wanting internet control under their powers, and more laws hidden in cybersecurity legislation. Not to mention things in the works we know nothing about.
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Anonymous Coward, 5 Apr 2012 @ 8:28am

Re: Re:
@ #27
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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Michael Becker (profile), 5 Apr 2012 @ 8:29am

Re: Copyright clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
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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Killer_Tofu (profile), 5 Apr 2012 @ 8:30am

Re: Dear...
This should be sent daily to everybody in DC since she is far from the only one who forgot what it means. (Of course sent to them with their name though)
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Karl (profile), 5 Apr 2012 @ 8:31am

Re: Naturally you're misinterpreting this
What if an obstetrician said, "We need to take care of the mother first and the baby second?"

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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Jay (profile), 5 Apr 2012 @ 8:31am

Re:
Uhm... No. It'd be done the same as Chris Dodd's lobbying complaint.
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Pjerky (profile), 5 Apr 2012 @ 8:32am

Wow
That woman shouldn't be allowed anywhere near a government job. She is not a public servant like she claims. She is a money-grubbing lawyer and copyright industry whore. She is probably trying to ensure she has a sweet job lined up after her term as a "public servant" is up.

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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John Fenderson (profile), 5 Apr 2012 @ 8:33am

Re:
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.

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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crade (profile), 5 Apr 2012 @ 8:34am

The government reps should always be for working for the nation first, even if they are doing so by focusing on rights on individuals. If they truly place anything else before the nation, I would say that is treason and / or corruption.
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Karl (profile), 5 Apr 2012 @ 8:34am

Re:
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.

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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Anonymous Coward, 5 Apr 2012 @ 8:36am

I got sick watching that video the women is a menace to the public and should be removed from office now!

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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Karl (profile), 5 Apr 2012 @ 8:37am

Re:
her removal seems like a good potential whitehouse.gov petition topic.

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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DogBreath, 5 Apr 2012 @ 8:37am

Re: Re: She's a tool.
Plus if you bought a tool, say a Sears Craftsman hand tool with a lifetime warranty and it broke, at least you could take it back and get a replacement for free. This tool, Maria Pallante, is obviously broke and I doubt we can get her replaced at any cost.
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John Fenderson (profile), 5 Apr 2012 @ 8:38am

Re:
My understanding is that you can contract away pretty much any of them unless that's specifically prohibited by law. We all contract away tons of very basic rights all the time.

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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Anonymous Coward, 5 Apr 2012 @ 8:39am

Re: Copyright is only a part of the changes coming
Yep the internet will be anonymous and encrypted LoL

Pirates will use the Google Glass to stream videos directly from theaters :)
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What?, 5 Apr 2012 @ 8:46am

Re:
Please name me an item that has "fallen into the public domain" over the past 20 years. Oh, that's right, nothing has, has it?
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Anonymous Coward, 5 Apr 2012 @ 8:48am

Wow! just wow!

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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saulgoode (profile), 5 Apr 2012 @ 8:52am

limited time
Limited - it only means it has a limit. That limit doesn't have to be short.

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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Anonymous Coward, 5 Apr 2012 @ 9:07am

Re: About that public domain part...
Copyright is for a limited time. Works fall into the public domain. Just because you would have a shorter copyright term (as would I) doesn't change the fact that the initial benefit is to the author, not the nation.

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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Anonymous Coward, 5 Apr 2012 @ 9:13am

Re: Re:
Yes, the author can choose to lock it up and not share it with anyone while it's under copyright. That's the copyright author's prerogative. Or the author can share it with the world. When they share it, they share it on their terms. They don't have to make it instantly available to everyone in the world for free, which is what you guys all seem to think should be the rule. It's their property and they can do what they want with it. Just because it's possible to spread the work to all corners of the globe with a click of the mouse doesn't change the fact that, as per the Constitution, we give authors property rights in the work and they can choose not to share it in the way that you would like them to share it.

All of you copy-haters sure don't respect other people's property rights.
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Anonymous Coward, 5 Apr 2012 @ 9:13am

Re: Re: About that public domain part...
Is piracy how it works? Because that's how it's working.
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Anonymous Coward, 5 Apr 2012 @ 9:16am

Re: Re:
PaulT, your perspective is from such an extreme vantage point that everything looks one sided.
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Anonymous Coward, 5 Apr 2012 @ 9:17am

Re: Re:
Good grief. Congress decided to give some foreign works the copyright term that they would have received but for certain formalities. And in return, a much greater number of American works that were in the public domain abroad got their copyrights similarly instated. This was a good deal for American copyright owners. Big deal. It was a one-off deal. It's not like Congress is just pulling everything out of the public domain willy-nilly. You guys are such whiners. How many global IP treaties like that will there be? There's only this one globe, you know.
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Anonymous Coward, 5 Apr 2012 @ 9:19am

Re: Re: Re:
I have 5.3 trillion copies of Moby-Dick.
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Anonymous Coward, 5 Apr 2012 @ 9:19am

Re: Re:
The books, i.e., the expressions, might have been locked up (which is the copyright owner's prerogative since it's their property and they can do with it as they please), but how, pray tell, were the ideas locked up?

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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bshock, 5 Apr 2012 @ 9:19am

sometimes you make me tired, Mike
Okay, so I get it: the occasional naive voice you use in your articles about intellectual property bastards is just a rhetorical device.

"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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The Infamous Joe (profile), 5 Apr 2012 @ 9:20am

Re: Re: Re:
That's the copyright author's prerogative.

It used to be. Welcome to the future.
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Karl (profile), 5 Apr 2012 @ 9:21am

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.

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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Anonymous Coward, 5 Apr 2012 @ 9:24am

Re: Re:
Considering that Congress has extend the term a few times, as we all know, then of course there's going to a longer period until works fall into the public domain. That's how the math works. So what? All works will still eventually fall into the public domain. Considering U.S. law is now harmonized with world IP law, there's no reason to think the term will get expanded.

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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Anonymous Coward, 5 Apr 2012 @ 9:26am

Re: Re: Naturally you're misinterpreting this
It's not "creator" control, but "holder/posessor" control, since the vast bulk of copyrights are corporate-held.
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Anonymous Coward, 5 Apr 2012 @ 9:27am

Re: Re:
So what. Congress decided to extend the copyright term to bring us in line with the rest of the world. The term is still limited and the works will fall into the public domain at some point. Until works fall into the public domain, they are someone's property to do with as they please. If you don't like what someone else does with their property, then you are just a whiner. If you're so obsessed with other people's property and have to have it, then guess what, you do so on their terms.

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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Anonymous Coward, 5 Apr 2012 @ 9:30am

Re: Re: Re: Re:
Mike's little bunch of pickpockets and thieves. You guys are great. It's OK to violate other people's rights if everyone's doing it and few people get caught, right?
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Anonymous Coward, 5 Apr 2012 @ 9:31am

Re: Re: Re: Re:
You sure it's enough?
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Anonymous Coward, 5 Apr 2012 @ 9:32am

Re: Re: Re:
So why doesn't Congress include the "moral rights" clause ALL European copyright laws include that would enable work-for-hire creators (the vast majority of creators these days) greater financial returns and greater control over their work?
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Anonymous Coward, 5 Apr 2012 @ 9:40am

Re: Re: Re: Re: Re:
Is name calling the best cognitive discourse you can provide?
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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Anonymous Coward, 5 Apr 2012 @ 9:41am

Re: Re: Re: Re: Re: Re:
I apologize, my "r" key is sticking.
I need to buy a better keyboard.
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bob, 5 Apr 2012 @ 9:43am

Re: Re: Naturally you're misinterpreting this
Hey, bub, you can create all you want for love. Some of us have a mortgage to pay. The farmer isn't growing food for love. The home builder isn't nailing boards for love. Yet somehow you're such a creator hater that you insist that creators must only do it for love, whatever that may be.
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ChrisB (profile), 5 Apr 2012 @ 9:43am

Re: Re: Re: Re: Re:
> It's OK to violate other people's rights if everyone's doing it

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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Anonymous Coward, 5 Apr 2012 @ 9:45am

Re:
Obama has consistently shown that he and his administration consistently sides with corporations and their interests.

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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bob, 5 Apr 2012 @ 9:46am

Re: I think you got this backwards...
Sorry. People exist without nations and only regimes like the Third Reich really believed that the nation was more important than the individual. Go back and read some of the stuff that the founders of the US were writing. They wanted to create a very limited government and they explicitly said that their goal was to support the inalienable rights of the individual.
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Mike C. (profile), 5 Apr 2012 @ 9:47am

Re: Re: Re:
You must be new here or you would have seen this post about how a book based on the IDEAS in "Catcher In The Rye" is PERMANENTLY banned in the United States. If copyright is only for the specific expression, why is a sequel based on the ideas in a book forbidden?
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bob, 5 Apr 2012 @ 9:47am

Re: Re: Re: Naturally you're misinterpreting this
Alas, that's not true. Every time someone puts a pen to paper, they create something that's born with an implicit copyright. The corporations hold a tiny, tiny fraction and then only after paying the creators a negotiated rate.
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Michael Long (profile), 5 Apr 2012 @ 9:49am

Re: Re: Re:
And she gets to be wined and dined and attend conferences where people hang on her every word.
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Anonymous Coward, 5 Apr 2012 @ 9:51am

What I find most disconcerting in debates such as these is the willful, vehement defence by the ignorant of policies that serve only to screw them over as much as they will screw over anyone else.

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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varagix, 5 Apr 2012 @ 9:57am

Re: Re: Re:
Not everyone against (current) copyright wants it instantly and free. But we'd like to be available to everyone at the same time (no excuse not to anyways, especially if it stops people from pirating or importing used copies, making no money for the rights holder either way), at a reasonable price, and not be at risk of being sued or fined over using the things we buy in what would otherwise be entirely legal ways just because the rights holder (who's not necessarily the author) doesn't like it.

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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PaulT (profile), 5 Apr 2012 @ 9:58am

Re: Re: Re:
Lol yeah... My perspective is from the POV of somebody who thinks that work should enter the public domain as originally promised, and that culture should not be locked up by a bunch of corporations who haven't worked out that you actually have to offer material legally before people will buy it. Someone who wants an actual free market where they will not try to change fundamental laws and freedoms because they wish the marketplace was what suited them instead of the very customers they try to rip off and restrict.

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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AzureSky (profile), 5 Apr 2012 @ 9:58am

somebody needs to call for this stupid cunts resignation and sterilization for the good of the human race....
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ToFit, 5 Apr 2012 @ 10:01am

Re: Re: Re:
This is again a wrong interpretation of the actual goal of copyright. Copyright is ONLY a restriction on one paticular expression. Current corporate overreach does not have the right to restrict cultural advancement in the sciences or arts. Copyright is only on the expression of an idea and not the idea itself. The problem is that copyright maximalists want to restrict culture (which is never an achievable goal). Ideas will propogate and often the same ideas will propogate from multiple sources or re-mix from similar original sources. A truely unique idea is nearly impossible- we all stand on the backs of giants predating our existence.

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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Anonymous Coward, 5 Apr 2012 @ 10:06am

Re: Re: About that public domain part...
You are wrong. If something is created to go out to the public (and that is everything, otherwise, why would there need to be protection if someone is hoarding it to themselves), the public benefits from it. The public ALWAYS benefits from creations. The protection is from other creators using someone else's creation to make their own for a limited time. Copyright, in my mind, is to promote original creations, which benefits the public and creators.

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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Anonymous Coward, 5 Apr 2012 @ 10:16am

Re: Re: Re: Re: Naturally you're misinterpreting this
I think it's clear the comment meant "vast bulk of copyrights of significant worth are corporate held.". Yes, that note I just scribbled is technically copyrighted, but I don't see it being bought by Disney anytime soon. The copyright and my ownership of it is unaffected by any copyright expansion or contraction.

Maybe try arguing in good faith?
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E. Zachary Knight (profile), 5 Apr 2012 @ 10:17am

Re: Re: Re: Re: Naturally you're misinterpreting this
So it should be rephrased to be: "The vast majority of commercialized copyrights are corporate held." Doesn't make a darn bit of difference.

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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VMax, 5 Apr 2012 @ 10:43am

Re: Re: Re: Naturally you're misinterpreting this
If you have a mortgage to pay and can't make money "creating content", go find another job. If people don't value your work you don't get paid, that's the way the market works.
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Anonymous Coward, 5 Apr 2012 @ 10:45am

Re: Re: Re: Re: Re:
The ghost of Herman Melville always wants more.
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jupiterkansas (profile), 5 Apr 2012 @ 10:47am

Re: Re: Re:
Yes, respect the wishes of the creators - especially the dead ones.
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Anonymous Coward, 5 Apr 2012 @ 10:53am

Re: Re: I think you got this backwards...
inalienable rights

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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Adam V, 5 Apr 2012 @ 11:00am

Re: Re: Re: Naturally you're misinterpreting this
> The farmer isn't growing food for love. The home builder isn't nailing boards for love.

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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JEDIDIAH, 5 Apr 2012 @ 11:01am

Re: Re: Re: Re: Naturally you're misinterpreting this
So every "private paper" is a creative work?

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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JEDIDIAH, 5 Apr 2012 @ 11:05am

Good luck nailing Jello to the wall.
You are out of touch with reality. Childish insults don't change that.

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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The Logician (profile), 5 Apr 2012 @ 11:06am

Lore here. My, the maximalists are out in force today, aren't they? Can't stand to see their new favorite lady shot down like the fake she is. I know you were probably expecting my dear brother instead, and it isn't often I agree with him, but I have to say, you maximalists really excel at deluding yourselves. It doesn't matter what you say or do. Technology doesn't care. Neither do we. The future is ours, not yours.

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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Anonymous Coward, 5 Apr 2012 @ 11:19am

Yes it is supposed to be for the author first and the public second. The artist first in terms of order NOT PRIORITY. The key thing here is the limited time. For the statute to hold the public must get their turn to benefit from it otherwise the premise for it's existence under the law does not exist. Extending copyright ad infinitum so that it never enters the public domain defeats the entire purpose of the statute in the first place.
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The Infamous Joe (profile), 5 Apr 2012 @ 11:23am

Re: Re: Re: Re: Re:
Don't shoot the messenger, guy. I didn't invent the Internet. You'll want to speak with Al Gore if you have a problem with it.
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Anonymous Coward, 5 Apr 2012 @ 11:25am

Re: Re: I think you got this backwards...
Well if that is true you can't force a monopoly onto others, and that actually was exactly why the US proclaimed independence from the U.K. in the first place.
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Pitabred (profile), 5 Apr 2012 @ 11:32am

Re: Re: Re: Re:
Not intellectually bankrupt. Morally.
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Anonymous Coward, 5 Apr 2012 @ 11:37am

Re: Re: Re: Re: Re:
Why can't it be both?
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ToFit, 5 Apr 2012 @ 11:40am

Re: Re: Re: Re: Re:
What about the public right? What about general culture and the actual advancement of sciences and arts? Public domain is not pickpocket exclusive- it is the right for all corporate and indivudal interests overall.
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Anonymous Coward, 5 Apr 2012 @ 11:43am

Re: Naturally you're misinterpreting this
bob, put the analogies down. You clearly don't know how to use them properly and we're afraid you are going to hurt yourself or someone else around you.

"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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Not an Electronic Rodent (profile), 5 Apr 2012 @ 11:46am

Re: Re: Naturally you're misinterpreting this
You ASSume no one creates for pure love of what they do. You ASSume every artists only does it to get paid.
You forgot to mention ASSuming that being paid for the rest of your life and that of your children and grandchildren for a piece of work you once did long ago is the only possible way to encourage someone to create something.
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Anonymous Coward, 5 Apr 2012 @ 11:51am

In her speech before the AAP she neither attacked those who fought against SOPA nor did she say anything about Golan other than referencing Justice Ginsburg's majority opinion, and specifically the portion of the opinion relating to the incentive associated with copyright law, which opinion was buttressed by Eldred.
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Chosen Reject (profile), 5 Apr 2012 @ 12:18pm

Re: Re: Re: Re: Re: Naturally you're misinterpreting this
Boy don't you feel like an idiot. Obviously your 5 year old would not have picked up that crayon if it weren't for the copyrights conferred upon her for said drawing. My 3 year keeps registering her drawings in her name, but I'm pretty sure they are works for hire and the copyright should go to me. If you'll excuse me, I have to see to a cease and desist filed by Crayola.
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jupiterkansas (profile), 5 Apr 2012 @ 12:25pm

Re: Wow
No books in Star Trek, unless it's a museum artifact. I'd much rather have a Star Trek future than a Blade Runner future.
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Neppe (profile), 5 Apr 2012 @ 12:26pm

Re: Re: Re: Re: Naturally you're misinterpreting this
If you're a corporation - which is where all transferable rights seem to end up - then current evidence seems to indicate that you can copyright seeds at the very least

Arstechnica and Monsanto
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JEDIDIAH, 5 Apr 2012 @ 12:30pm

Harlan wants to steal my stuff.
What about my right to be sued by Harlan Ellison just because he made some really bad TV scripts decades ago and thinks he now owns basic story ideas?

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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Anonymous Coward, 5 Apr 2012 @ 12:33pm

Re:
Except that nothing falls into the public domain until after everyone who cares about it is long dead due to the life + 70 years on copyright.
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Chosen Reject (profile), 5 Apr 2012 @ 12:33pm

Re: Re: About that public domain part...
Copyright is first and foremost to benefit the public. The whole constitutional reason for its existence is to promote the progress of science (useful arts is covered by patents). The means by which the promotion is secured is to grant a limited monopoly to the acts of copying and distributing copies of the work. The idea being that this limited monopoly will encourage others to create AND publish their works.

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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Anonymous Coward, 5 Apr 2012 @ 12:44pm

Re:
"By the way, calling for the Register's removal makes you look like a petulant ass. Grow up, Mike."

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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Chosen Reject (profile), 5 Apr 2012 @ 12:47pm

Re: Re: Re:
which is the copyright owner's prerogative since it's their property and they can do with it as they please
Absolutely, an author can decide not to release his works. However, he has that option with or without copyright. We grant copyright's for the express purpose of hoping that new works will be created AND published. If they choose not to publish, there shouldn't be a grant of copyright. Patents are the same way. We give the monopoly if and only if the patentee releases the invention publicly, which is what the patent process does. Unregistered and unpublished copyrights do not promote the progress, so copyright's should no longer apply. I recognize that is not currently the law, but given the constitution's stated purpose of copyright, it should be. No progress is made if a work isn't created, that much is obvious, but similarly, no progress can be made if the work is locked up and unusable to build upon.
he owner gets the benefit first so that the nation can get the benefit later.
No, the owner gets the copyright first, but copyright law's only reason for existing is for the public benefit. Copyright grants one kind of benefit to the copyright holder, but the public still benefits from the creation AND the publishing of the work, so sequentially, both benefit at the same time, only in different ways. So the copyright holder gets to benefit commercially firstly and exclusively before the public can benefit commercially after. But other benefits are gained by the public upon publication of the work.
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saulgoode (profile), 5 Apr 2012 @ 12:54pm

"Ironically, the Golan decision was handed down on the same day as Internet Black-out Day, when opponents of anti-piracy legislation used accusations and censorship as their primary tool of opposition. The S&P sensation was stunning for any number of reasons, including the hand-cuffing of so many dedicated and thoughtful members of Congress, many of whom have spent their careers working on the behalf of civil liberties. Most concerning to me was the apparent disregard of copyright law -- and copyright owners -- by ordinary citizens; and the apparent confusion as to what constitutes a legitimate public interest on the Internet."

-- Maria Pallante, addressing the American Association of Publishers
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Anonymous Coward, 5 Apr 2012 @ 12:56pm

Re:
Exactly. The "public" never benefits from a work at all, because anything created during their lifetime will not enter the public domain during it due to continuously extended copyrights.
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Not an Electronic Rodent (profile), 5 Apr 2012 @ 12:58pm

Re: Re: Re: Naturally you're misinterpreting this
As a creator I will freely admit I create mostly because I get paid for it, even though I would not do it if I did not also enjoy doing so. On the other hand I don't get paid for the same piece of work over and over for the rest of my life without doing any further work. Trying to suggest that there's nothing possible between almost infinite copyright and not being paid is deceitful at best or mind-bendingly dumb at worst.
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Almost Anonymous (profile), 5 Apr 2012 @ 1:02pm

Re: Re: Re:
"""Limited time. Define "limited". In the time of the universe, a few million years is limited."""

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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paid shill, 5 Apr 2012 @ 1:07pm

dumb cunt
what a dumb cunt. not surprising though given the amount of stupid people in America
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DCL, 5 Apr 2012 @ 1:11pm

Re: Re: Naturally you're misinterpreting this
It makes me sad to say this, but to point out that analogy further...

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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Almost Anonymous (profile), 5 Apr 2012 @ 1:13pm

Re: And boom!
Totally true. I totally didn't purchase Landslide, that's a lost sale right there.

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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Anonymous Coward, 5 Apr 2012 @ 1:24pm

Re: Re: Re: Re: Re: Re: Re:
In the case of the missing 'r', it's sometimes best to 'Brooklynize' your statements, such that matter becomes mattah, better becomes 'bettah' and so forth. Also, Brooklynese is pithy; your entire argument in the previous post could be stated thus:

What are ya, a fuckin' baby? Start makin' sense, ya fuckin' stupid fuck.
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John Fenderson (profile), 5 Apr 2012 @ 1:27pm

Re: Re: Re:
Congress decided to extend the copyright term to bring us in line with the rest of the world.

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.

The term is still limited and the works will fall into the public domain at some point.

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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Almost Anonymous (profile), 5 Apr 2012 @ 1:47pm

Re: Re: Re: Re: Re: Re:
A cop once asked me for some advice on figuring out how to jailbreak his iPhone so he could get free apps. So yeah, cops are people too, and people will copy.

#piracyiseverywhere
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WulfTheSaxon (profile), 5 Apr 2012 @ 2:19pm

Re: Re: Re:
Well, for starters, you�ve got 99 year leases (at least traditionally). Then there are rules against perpetuities (21 years in the UK, usually 90 in the US).
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Samuel Abram (profile), 5 Apr 2012 @ 2:50pm

Re: Re: About that public domain part...
Copyright is for a limited time. Works fall into the public domain. Just because you would have a shorter copyright term (as would I) doesn't change the fact that the initial benefit is to the author, not the nation.

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.

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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Samuel Abram (profile), 5 Apr 2012 @ 2:53pm

Re: Re: Re: Re: Re: Re: Re: Re:
Being from Brooklyn (I've lived in the same house my whole life in Brooklyn), I can say with certainty that the "Brooklynese" stereotype is not the norm. Some people have the "Brooklyn accent", but some people in other neighborhoods don't.
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Samuel Abram (profile), 5 Apr 2012 @ 2:57pm

Re: fun
I'm not against copyright; but I'm against when the scope is taken to extremities like the *AAs want, when the terms are limitless, and when the exceptions (like fair use) are meaningless.

I'm no abolitionist, but I do understand the tendencies thereto.
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Rekrul, 5 Apr 2012 @ 3:26pm

Sadly, the entire US government seems to think that her view of copyright is spot-on.
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k-h, 5 Apr 2012 @ 3:39pm

Copyright is just an excuse
To get government control of the internet.
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John Fenderson (profile), 5 Apr 2012 @ 3:49pm

Re: Re: Re:
All of you copy-haters sure don't respect other people's property rights.

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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JMT (profile), 5 Apr 2012 @ 3:52pm

Re:
"Sorry, but the words don't say that - the "for the nation" is something added by people like yourself."

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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Samuel Abram (profile), 5 Apr 2012 @ 3:55pm

It was in...
In the US? 1998. (1923+75=1998). There won't be any more retroactive term extensions (and there will be some, mark my words) until 2018, which is in six years.
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Anonymous Coward, 5 Apr 2012 @ 4:24pm

"Public interest certainly does not mean people should have unfettered access to works of authorship without paying for them."

And since when did you get to decide what the public interest is?
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Cowardly Anonymous, 5 Apr 2012 @ 4:27pm

Re:
Copyright, under a functioning government beholden to the Constitution as it exists Today, is an accord between the people, by way of Congress, and anyone choosing to innovate. These innovators are promised a higher than normal reward for taking on the risks inherent in innovation, should they succeed.

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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JMT (profile), 5 Apr 2012 @ 5:07pm

Re: Re: Re:
"Just because it's possible to spread the work to all corners of the globe with a click of the mouse doesn't change the fact that, as per the Constitution, we give authors property rights in the work and they can choose not to share it in the way that you would like them to share it."

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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Cowardly Anonymous, 5 Apr 2012 @ 5:58pm

Re: Naturally you're misinterpreting this
The Constitution does not say this. The clause would have to be held as a responsibility, rather than power, of Congress for your claim to be true. It holds that Congress is granted the power to create such laws.

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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Cowardly Anonymous, 5 Apr 2012 @ 6:02pm

Re: Re: I think you got this backwards...
Nation, here, is not taken to mean government, but the citizenry. This is made quite obvious by the "as a whole" that follows nation. In other words, you are arguing something wholly different than the issue you are attempting to refute. I'd advise you to refrain from such disingenuous tactics in the future, as they simply render you laughable to most, which actually harms your position.
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Cowardly Anonymous, 5 Apr 2012 @ 6:08pm

Re: Re: Re: Re: Naturally you're misinterpreting this
Which is just plain ludicrous. There is no way such a system can ever be adequately served by any government. Imagine if everyone took the approach of zealously guarding their copyright. Not sustainable, in the least.
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Cowardly Anonymous, 5 Apr 2012 @ 6:12pm

Re: Re: Naturally you're misinterpreting this
Still needs an absolute time-limit. Patents can also be used to ensure people never innovate in a given direction if you don't put that limit in. More problematic, not everything is good enough to recoup, but might be able to if tweaked in just the right way. To round things out, the cost of production isn't always known at patent-filing time.
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Cowardly Anonymous, 5 Apr 2012 @ 6:15pm

Re:
You're missing the point. Those benefits are only awarded to the author in the hopes that this will promote more creation. Those benefits are only useful in so much as they accomplish this, which is plainly spelled out in the language of the Constitution.
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AC Cobra, 5 Apr 2012 @ 6:35pm

Remove Her!
I was going to say calling for her removal seemed like a largely symbolic statement, but a perfectly reasonable piece of symbolism. But the more I learn about her the more it seems like a serious idea! Government officials have been fired for less. She is clearly a pro-corporate extremist, in a democracy where public opinion is swinging the other way after years of expansion by the government/corporate complex.
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weneedhelp_not signed in, 5 Apr 2012 @ 7:35pm

Re: Re: Re: Naturally you're misinterpreting this
Hey...there...boB,
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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weneedhelp_not signed in, 5 Apr 2012 @ 7:44pm

Re: Re: Re: Re: Naturally you're misinterpreting this
boB, you are so full of fail today. Stop playing silly childish games. You know that comment meant registered copyrights.

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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weneedhelp_not signed in, 5 Apr 2012 @ 8:01pm

Re: Re: Re:
"we give authors property rights in the work and they can choose not to share it in the way that you would like them to"

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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Karl (profile), 5 Apr 2012 @ 8:30pm

Re: dumb cunt
what a dumb cunt

I don't like her either, but let's avoid throwing around the C-word, shall we?
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Karl (profile), 5 Apr 2012 @ 8:45pm

Re: Re: Re: Re: Naturally you're misinterpreting this
Every time someone puts a pen to paper, they create something that's born with an implicit copyright.

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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Karl (profile), 5 Apr 2012 @ 8:57pm

Re: Re: Re:
All of you copy-haters sure don't respect other people's property rights.

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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Anonymous Coward, 5 Apr 2012 @ 11:30pm

Re: Re: Re:
Stop saying that! Copyright is NOT in the constitution. The right of Congress to create it is. Your ignorance (continued and willful) is not just annoying, anymore. It is downright criminal. Stop spreading the lies.
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Anonymous Coward, 5 Apr 2012 @ 11:31pm

Re: Re: Re: Re: Re:
Copying isn't theft. Stop spreading the lies.
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Anonymous Coward, 5 Apr 2012 @ 11:34pm

Re: Re:
I hear it was around 2002.
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Anonymous Coward, 5 Apr 2012 @ 11:35pm

Re: Re: Re:
Yes. We know it will take longer. However the extensions broke the cycle. Something was always entering the public domain, and now nothing is. How is that fair to the public? When the deal is retroactively changed, that is fraud. Stop spreading the lies.
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Anonymous Coward, 5 Apr 2012 @ 11:51pm

Re: sometimes you make me tired, Mike
Intellectual Property is theft, or at least an attempt at theft.

It is neither. That you equate it so is troublesome to your position.
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Anonymous Coward, 6 Apr 2012 @ 12:39am

The book 1984 is in the public domain in Canada and many other places. In the US, it is protected until 2044, just in case the author decides to stop being dead since 1950 and write again.

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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That One Guy (profile), 6 Apr 2012 @ 12:47am

Re: Re: Re:
Congratulations, I actually felt dumber after having read your reply, and that really takes some doing.
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Anonymous Coward, 6 Apr 2012 @ 2:12am

Re: Re: Re: Re: Naturally you're misinterpreting this
I declare that for reading my comment, you're creating copyright infringement by unlawfully viewing it! Give me three billion dollars, I demand it!
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silverscarcat (profile), 6 Apr 2012 @ 7:13am

Re: Re: Re:
"All works will still eventually fall into the public domain."

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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Christopher Bingham, 6 Apr 2012 @ 8:21am

So has anyone started the "Fire Maria Pallante" petition on whitehouse.gov? Or is there a better site?

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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wvhillbilly (profile), 6 Apr 2012 @ 10:56am

Re: Re: Re:
It puzzles me why these copyright maximalists want to lock everything in the world up forever, when the commercial value of most copyrights is exhausted in about 18 years. Back when copyright expired in 28 years with an option for a 28 year extension very few people opted for the renewal, simply because it wasn't worth the trouble.

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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Jonathan, 6 Apr 2012 @ 3:32pm

Re: Re: Re:
Congress decided to extend the copyright term to bring us in line with the rest of the world.

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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Anonymous Coward, 6 Apr 2012 @ 7:50pm

Re: Re: Re: Re:
The rights granted by Section 106 are property. You don't understand what the word property means, Karl. Yes, the law could be changed so that the property rights were taken. Rules that apply to property can be changed by law. So what? Under the law as it currently exists, and has existed for over two centuries, copyrights are property.
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Anonymous Coward, 6 Apr 2012 @ 7:53pm

Re: Re:
Good grief, Karl. The quotes you found only support what I'm saying. Yes, the primary purpose of copyright is to benefit the nation. But the way that is accomplished is by giving property rights to authors first. So sequentially speaking, the benefit goes to the author FIRST, and then the nation gets its benefits LATER. And whatever amount of sharing of the property the author chooses to do while the work is under copyright is just more benefit to the nation in the meantime.
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Karl (profile), 7 Apr 2012 @ 12:13am

Re: Re: Re: Re: Re:
The rights granted by Section 106 are property. You don't understand what the word property means, Karl. Yes, the law could be changed so that the property rights were taken.

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:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

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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Eponymous Coward, 7 Apr 2012 @ 2:24am

Re: Re: I think you got this backwards...
We the people usurp the rights of the individual, the good of the many stand over the ideal of the one Bob...
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Eponymous Coward, 7 Apr 2012 @ 3:11am

Re: Re: Re: Re: Re:
YES! If the will of the people is to abolish all forms of private property and make it communal then that is what shall be done if so decided. That is the nature of a democracy; that the interest of the many trump the desire of the individual as long as the many operate within the legal framework established. In the case of copyright it's not out of line that if the people get exhausted by it being over leveraged, they can thus take steps to rid ourselves of it or lesson it in accord with OUR desire. Not the desire of the individual rights holder, for we are not bound by the one. This is the tyranny of the many that we shouldn't be so cavalier about for it carries many downsides. But if the people feel the need to exercise their power we should at least respect their right to. And again the rights of the people stand above those of any creator and/or corporation.
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Anonymous Coward, 7 Apr 2012 @ 6:05am

Re: Re: Re: Re: Re: Re:
You don't make a lot of sense, Karl. Copyright is property that belongs to its owner. Unless and until the law is changed, that's the way it actually is. That's the reality right now.

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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The Infamous Joe (profile), 7 Apr 2012 @ 6:37am

Re: Re: Re: Re: Re: Re: Re:
So, people pay taxes on their copyrights, now? Good to know.

Oh, you don't know what indisputable means, do you?
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dgingras (profile), 7 Apr 2012 @ 9:48am

Karl makes perfect sense
Karl has spent a lot of time patiently explaining to you why you are wrong, even digging up one of Jefferson's original statements on the subject, yet you insist on holding on to your repudiated arguments.

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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Anonymous Coward, 7 Apr 2012 @ 11:06am

Re: Karl makes perfect sense
Karl doesn't make any sense and he know idea what the actual, legal meaning of the word "property" is. Karl hasn't repudiated anything. Even Mike admits that legally speaking, copyright is property. Ask him. Congress, the Supreme Court, and the Executive Branch all agree that copyright is property. It is a legal fact, that is incontestable. You don't have the slightest idea what you're talking about.

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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The Infamous Joe (profile), 7 Apr 2012 @ 11:21am

Re: Re: Karl makes perfect sense
Then where are your citations? I'll wait.
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dgingras (profile), 7 Apr 2012 @ 2:42pm

Re: Re: Re: Karl makes perfect sense
We'll be waiting forever - our intransigent AC poster provides nothing but ad hominems and unsubstantiated assertions. Our side of the argument presents citations from laws, quotes from Supreme Court decisions and from the founding fathers, along with reasoned arguments.

If he cannot respond to reason with reason, there is no debate, only diatribe from his side.
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dgingras (profile), 7 Apr 2012 @ 2:50pm

Re: Re: Re: I think you got this backwards...
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?

Indeed; that's exactly what happened with SOPA/PIPA.
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Karl (profile), 7 Apr 2012 @ 5:47pm

Re: Re: Re: Re: Re: Re: Re:
You haven't, nor can you, dispute two facts:

(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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Karl (profile), 7 Apr 2012 @ 5:56pm

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Copyright is property

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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M, 7 Apr 2012 @ 8:08pm

Re: Re: Naturally you're misinterpreting this
Damn right. I'll take this further.

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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Anonymous Coward, 8 Apr 2012 @ 8:25pm

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"No, it would not."

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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Chiquita, 9 Apr 2012 @ 12:57am

Re: Re: Naturally you're misinterpreting this
I completely agree, and was just about to say this. Creation, for creative people, is a deeply-entrenched natural drive that they have likely experienced since childhood. If you can make a decent living out of your passion for art/music/film then that is wonderful, but it is not *why* creative people create.

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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Anonymous Coward, 9 Apr 2012 @ 9:22am

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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.

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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Anonymous Coward, 9 Apr 2012 @ 9:28am

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Explaining to you how you misunderstand the law is a full time job for two people. Good lord, Karl. Property rights can come from common law or from statutory law. Property is a broad term that means all of your rights in a thing. The thing, in copyright, is the underlying work which is fixed in a tangible medium as per the Act. The statutory rights created in the work are the author's property to do with as he pleases, just like with any other type of personal property.

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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Anonymous Coward, 9 Apr 2012 @ 9:57am

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Citations or stfu, troll.
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Anonymous Coward, 9 Apr 2012 @ 10:19am

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LMAO. Do your own homework. I'll help you this once, though:

"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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Anonymous Coward, 9 Apr 2012 @ 11:51am

Re: Re: I think you got this backwards...
"Oh yeah, well you're a Nazi!" - paywall bob

Pathetic.
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Karl (profile), 9 Apr 2012 @ 9:59pm

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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).

You left a couple sentences out there, buddy.

Let's fill in that quote a little more:

Although the language of the Act, its legislative history and rules of statutory interpretation are sufficient answers to Roth's claim, we note, en passant, adoption of her interpretation of � 301 would, in addition, raise a serious issue concerning the Act's constitutionality. See 1 Nimmer on Copyright, supra, at � 1.11. An interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution. See Loretto v. Teleprompter Manhattan CATV Corp., ___ U.S. ___, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 82 n. 6, 100 S.Ct. 2035, 2041 n. 6, 64 L.Ed.2d 741 (1980). The agreement between Roth and the appellees, pursuant to which Roth surrendered any rights she might otherwise have obtained in the copyright, was valid when it was entered into, and a subsequently enacted statute which purported to divest Pritikin and McGrady of their interest in the copyright by invalidating the 1977 agreement could be viewed as an unconstitutional taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); see also Michelman, Property, Utility, And Fairness: Comments On The Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165 (1967). Resolution of this issue is not required for our holding, and will have to wait for an appropriate case.

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?

We turn to the trial court's takings analysis. The Court of Federal Claims held that Zoltek could bring its action against the government under the Tucker Act, by alleging that the infringement was a taking of private property for public use under the Fifth Amendment. See Zoltek, 58 Fed.Cl. at 707. We reverse. [...]

As the Supreme Court has clearly recognized when considering Fifth Amendment taking allegations, "property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Here, the patent rights are a creature of federal law. [...] Had Congress intended to clarify the dimensions of the patent rights as property interests under the Fifth Amendment, there would have been no need for the new and limited sovereign immunity waiver. [...]

If, as the dissent argues is suggested by Crozier, a patent is a type of property that comes within the ambit of Fifth Amendment Takings Clause protection, why should we not likewise permit claims for patent infringement to arise under the Tucker Act?

The answer is simple. Unlike regulatory takings and the inverse condemnation of real property, the "taking" of a license to use a patent creates a cause of action under �1498. The dissent fails to appreciate that this destroys whatever force its argument by analogy may otherwise have had. Indeed, if we were to interpret �1491 as the dissent would have us, it would render superfluous �1498 � the remedy that Congress fashioned specifically to compensate patentees for the use of their patents by the federal government. [...]

We reverse the trial court's ruling that Zoltek can allege patent infringement as a Fifth Amendment taking under the Tucker Act.
- 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:

Because a patent owner's property rights under the applicable statutory scheme to not include the right to exclude the governmnet from using his or her patented invention, when the government uses a patented invention, it does not "take" any property interest that belongs to the patent owner. Stated in another way, the government does not have to resort to exercising its sovereign power of eminent domain to utilize a patent owner's patented invention because the statutory framework that defines a patent owner's property rights gives the government the authority to use all patented inventions. Thus, the government cannot "take" what it already possesses.
- 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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Karl (profile), 9 Apr 2012 @ 10:22pm

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Roth v. Pritikin

If you don't believe my analysis of the case, let's ask someone else:

RIAA cites two takings cases, Roth v. Pritikin, 710 F.2d 934 (2d Cir. 1983) and Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-1016 (1984), regarding copyright and trade secrets, respectively, but neither expressly holds that copyright revisions are takings. [...] In dismissing Roth's interpretation of section 301, the court proffered, in passing, that "a subsequently enacted statute which purported to divest Pritikin and McGrady of their interest in the copyright by invalidating the 1977 agreement could be viewed as an unconstitutional taking."

The court did not address the issue on the merits, however...

Just who is that dastardly copy-hater and freetard?

Marybeth Peters, United States Register of Copyrights, 1994-2011.
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Anonymous Coward, 10 Apr 2012 @ 5:58am

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So even though the Second Circuit explicitly said that an "interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution," you think that copyright is not property nor is it protected by the Just Compensation Clause. Amazing.

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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Anonymous Coward, 10 Apr 2012 @ 6:00am

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Again, you fail to understand that the Second Circuit's statement of the law, i.e., that a copyright is property subject to Fifth Amendment rights, stands alone. The fact that the circuit court didn't apply that law in the case doesn't mean they weren't stating the law.
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Anonymous Coward, 10 Apr 2012 @ 11:39am

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"infringement is not a taking."

We can quote you on this later, right?
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Anonymous Coward, 10 Apr 2012 @ 12:01pm

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Of course. Taking means the property is taken away, as in, the property right is extinguished. The government can't take someone's copyright away without due process of law or without just compensation because copyright is property under the Fifth Amendment. Infringing someone's property rights is not the same thing as taking their rights away from them. It's the difference between someone just cutting across your land--as in trespassing--and someone taking your land away from you--as in eminent domain.
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Anonymous Coward, 10 Apr 2012 @ 12:18pm

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The trespassing analogy was one I was thinking of, too. But if the government were to claim it was merely "permenantly trespassing", the courts would say that's the same as a taking.

"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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The Infamous Joe (profile), 10 Apr 2012 @ 12:22pm

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The Constitution gives Congress the ability to give creators a limited monopoly, it does not mandate that they must. Tomorrow, congress could decide to abolish copyright. (Not that they would!)
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Karl (profile), 11 Apr 2012 @ 12:42am

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Just because they didn't apply that law to the case doesn't mean they weren't stating the actual law.

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:

As the Supreme Court has clearly recognized when considering Fifth Amendment taking allegations, "property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Here, the patent rights are a creature of federal law.

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:

Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.
- Graham V. John Deere

As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product.
- Sony v. Universal

Further evidence of my assertation is the fact that it already happened. Mazer v. Stein tells the story:

The Act of 1870 defined copyrightable subject matter as:
"... any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statute, statuary, and of models or designs intended to be perfected as works of the fine arts." (Emphasis supplied [in original].)

In 1909, Congress again enlarged the scope of the copyright statute. The new Act provided in � 4:
"That the works for which copyright may be secured under this Act shall include all the writings of an author."

Significant for our purposes was the deletion of the fine arts clause of the 1870 Act.
- 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 Constitution empowers the Congress "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 production to which the protection of copyright may be accorded is the property of the author and not of the United States. But the copyright is the creature of the Federal Statute passed in the exercise of the power vested in the Congress. As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one. [...] The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.

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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Karl (profile), 11 Apr 2012 @ 1:28am

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Again, you fail to understand that the Second Circuit's statement of the law

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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Anonymous Coward, 11 Apr 2012 @ 5:08am

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LMAO! You're the gift that keeps on giving. Despite having no training in the law, whether constitutional or property, you speak with the air of an expert. It's awesome! And you truly don't understand any of this. That's the best part.

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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Anonymous Coward, 11 Apr 2012 @ 5:09am

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You don't even understand what the Register was saying. Sorry, Karl, but you're a clueless ass.
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The Infamous Joe (profile), 11 Apr 2012 @ 6:29am

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Mike, accidentally post this clowns IP address.
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Anonymous Coward, 11 Apr 2012 @ 10:12am

More goodness for you, Karl.
We also agree with the government that no �taking� has occurred as a matter of law. The government must provide just compensation when it �takes� a person's property by destroying, physically occupying, or excessively regulating it for a public purpose. See U.S. Const. amend. V, cl. 4; Greenbrier v. United States, 193 F.3d 1348 (Fed.Cir.1999). The property at issue in this case is Boyle's copyright. A copyright owner has the exclusive right, inter alia, to reproduce the copyrighted work, to prepare derivative works, and to distribute copies to the public. See 17 U.S.C. � 106 (1994). The registration of Wells Fargo's service mark only provided Wells Fargo with certain rights under the trademark statute; it did not deprive Boyle of any of his rights under the copyright statute. Thus, neither the government's registration and publication of Wells Fargo's service mark nor its failure to cancel that mark can be found to have destroyed, physically occupied, or regulated Boyle's property, viz., his exclusive rights to reproduce and distribute his work and to prepare derivative works. Therefore, the court properly dismissed Boyle's taking claim for failure to state a claim.
Boyle v. United States, 200 F.3d 1369, 1374 (Fed. Cir. 2000).

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:
The Takings Clause covers personal property, both tangible and intangible. Generally held to be property under the clause are franchises, money, debts of a lender, liens, most contract rights, patents and copyrights, trade secrets, unpatented mining claims, and causes of action once reduced to final, unreviewable judgment.
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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Karl (profile), 12 Apr 2012 @ 12:07am

Re:
It appears we are speaking at cross purposes. I will give you the benefit of the doubt, and assume that this is because I didn't make myself clear (rather than the easier explanation that you are just an anti-Techdirt reactionary).

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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Karl (profile), 14 Apr 2012 @ 8:41pm

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Nope. Infringement is not a taking,

I know this is over, but just in case you're still paying attention, you should read this:

In other words, the situation prior to the passage of the act of 1910 was this. Where it was asserted that an officer of the Government had infringed a patent right belonging to another � in other words, had taken his property for the benefit of the Government � the power to sue the United States for redress did not obtain unless from the proof it was established that a contract to pay could be implied � that is to say, that no right of action existed against the United States for a mere act of wrongdoing by its officers.
- 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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Anonymous Coward, 16 Apr 2012 @ 11:31am

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So, according to that case, at least, infringement by the government is a "taking of property for public use."

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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Karl (profile), 18 Apr 2012 @ 2:36pm

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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,

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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H.P. Albarelli Jr., 10 Aug 2012 @ 6:11am

theft
Masnick is quite the expert at stealing copyrighted materials.
Lets all hope his is jailed soon.
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