A Framework For Copyright Reform
from the some-starting-points dept
I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:- Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
- Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
- Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?
- Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
- Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
- Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
- Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
- Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.
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Filed Under: congress, copyright, copyright reform, creators, facts, framework, mel watt, technology
Reader Comments
The First Word
“LOL
What he means is "pirated copies of 1984 and Animal Farm circulating under the Soviet Union's radar" helped to win the cold war. The Soviets would have used any excuse to stop material like that from spreading. And that would have included copyright.
Always remember, every time a government censors an opinion they are in effect making an "intellectual property" claim on that opinion. You cannot say that because that idea belongs to us and noone else. Only we get to decide if that should be said. You must first ask us for permission. It is the same idea.
The Chinese population are highly lacking in internet, and when they DO have internet it is under high surveillance and restrictions. ITunes is heavily blocked. Indeed, it is hard to access any site from outside China while within China because it is so bad. So yeah, think SOPA but a hundred times worse. And what is the world piracy rate of the country? 80% That is what happens WITHOUT BitTorrent. The copyright advocates are deluding themselves when they say copyright needs "more protection". It's a blatant utopian delusion.
Nowadays, we can only pass around pirated copies of Animal Farm within Iran. Even Christopher Hitchens played a part in distributing the pirated copies when he visited the country in secret. He said of the Iranian mullahs (paraphrasing) "I love how they keep trying to show footage of themselves smashing the satellite dishes in order to prove a point. They aren't fooling anyone. It'll never work. Most Iranians know how to make international phone calls. Many server work-arounds are made to counter every move these thugs make. The more attempts at oppression, the more humourous it gets. We're going to see great things from Iran."
But of course, all of this has to be stopped in the name of a utopian idea that claims to stop theft when it cannot even do anything about pre-owned sales. Insufferable. Plain, insufferable.
No, ladies and gentlemen, copyright is not "anti-communism" it is PRO communism. You have to get this bit right. Especially when free speech is crushed, governments subsidise the destruction of markets, artists end up being locked out from their own works by parties that took no part in the creative process, technological innovation is repressed bitterly, and the fruits of labour of derivative artists are flat out disposable. Sounds like communism to me.
Don't buy into this mentality for a second.
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Too bad this framework won't be heard or used...
I have a very cynical view of this process. I wish it wasn't so. Unfortunately, we the people don't 'matter' because we are just 'users'. The paternalism of their way of thinking is utterly disgusting. Even when the voters are engaged about a subject, all to often its to easy to distract with yet another made up reality show... OH! LOOK! Squirrel!!
The cynic in me says the industry players know how to exploit this ADHD and in the end, this effort will only result in a further ratcheting up of copyright.
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WHOA! Stop at: "everyone just wants stuff for free".
Creators are those who create the works. Everyone else is a consumer of it.* Copyright simply recognizes that creators should be rewarded by consumers. -- And pirates try every way possible to weasel out of paying.
(* Mike's assertion that everyone is both creator and consumer is irrelevant with regard to any given work. More so because in the larger sense, Mike "creates", grows, none of the food he eats or cars he drives and so on; he is in fact sheerly a consumer and that gives him a definite bias.)
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Re: WHOA! Stop at: "everyone just wants stuff for free".
No, copyright recognizes that creators have a right to compensation for their work. Copyright, in its original state, also recognized that creators should have that right for a limited amount of time so the general public (y'know, all those pesky ‘consumers’ who don’t make a damned thing) would reap the benefits of culture and knowledge in the future.
Copyright in a more ‘pure’ state, free from the intrusion of major media conglomerates, would recognize both the right for creator compensation and the right for public benefit before seeking a balance between the two. Today’s copyright leans far more towards ‘creators’ than the general public than it ever has.
The balance must return to an equilibrium for us to ever have a ‘good’ copyright system (if such a thing can truly exist). We must have rights that the general public lost over the years returned to us. We must see the government decide that Hollywood’s best interests don’t always equal the public’s best interests. We must see copyright stripped of its status as a weapon and returned to its status as a shield.
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Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
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Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
On another note, NOW can you shut up about Mike not having a stance? He does. It's "Let's be reasonable."
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Re: Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
That's not the same A.C. The whiny, "debate meeeee!!!" A.C. is in fact Average Joe.
Average Joe would never, in a million years, say something like "IP is a privilege provided for by the government and no one is entitled to anything the government provides."
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Re: Re: Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
I have not once asked Mike to debate me. Again, making up stuff and ignoring the evidence.
Average Joe would never, in a million years, say something like "IP is a privilege provided for by the government and no one is entitled to anything the government provides."
IP is rights provided by the government, not privileges, but I certainly agree that rightholders are not necessarily entitled to these rights. One day you'll represent my position accurately. Um, on second thought, probably not. You ignore evidence too much.
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Re: Re: Re: Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
You may not use the word "debate", but you're awfully loud about "him discussing his views on the merits". Sounds a whole lot like a synonym for debate to me.
Hint, each of those words is a separate link to you saying the same thing, all from just your last 2 pages of logged in comment history.
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Hahahahahahahahahhahahahaha..... Oh AJ, every time I think you've reached your limit, you surprise me.
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I mean, even John Steele was smart enough to get a lawyer to say he wasn't saying anything.
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The main difference is that in court, unlike here, he can't just disappear once he's been caught in an obvious error.
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Re: Re: Re: Re: Re: Re: Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
Even if we believed that (which none of us here do), it's still completely wrong.
You have, repeatedly, asked Mike to debate you in these very comments.
Examples:
In response to Mike's rational silence to your insulting and irrational comments, you insult him personally and misrepresent everything he's said on this site:
You're not here for debate. You're not giving your impartial opinion. You are nothing other than an extremist advocate, whose motivations are to smear anyone who disagrees with your radical agenda.
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Re: Re: WHOA! Stop at: "everyone just wants stuff for free".
Copyright was a shield until people started taking whatever they wanted without compensating the rights holder. Remember all of these laws and enforcement actions came about as a reaction to the freeloaders
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No, they came about as a result of advances in technology causing the oligarchy of media companies losing their effective monopoly on the means of distribution.
Pirates are the excuse, but not the reason.
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Re: WHOA! Stop at: "everyone just wants stuff for free".
Wrong, wrong, wrong.
Creators are those who create the works, everyone else are FANS of it.
It is a serious mistake to think of fans as consumers because fans do not want to be treated as consumers.
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Re: WHOA! Stop at: "everyone just wants stuff for free".
Because encapsulates the WHOLE argument, just not the way Mike disparages it.
Mike's whole argument in this article is about how this is wrong. Sincee uses all emperical data and studies to show otherwise (compared to you and your CAPS), I'm going to side with Mike on this one. Mike 1, OOTB 0.
Creators are those who create the works. Everyone else is a consumer of it.(* Mike's assertion that everyone is both creator and consumer is irrelevant with regard to any given work. More so because in the larger sense, Mike "creates", grows, none of the food he eats or cars he drives and so on; he is in fact sheerly a consumer and that gives him a definite bias.)
You're trying to look at individual instances as opposed to the big picture. Lawmaking doesn't work that way. If you're going to make good law, it has to encompass all situations. Aka, Mike (as well as me, and I'm sure with your intelligence you too) may be a consumer of food and cars, but he writes a blog and that is creating content. You and I write comments (to different degrees of intellegence) so we create content too. Hell even the MAFIAA creates and consumes. I saw Iron Man 3 this week and it used songs that the director/actors/produces never created. You can't tell me that In other words, Mike's right again, we both create and consume. That's part of living in society. Mike 2, OOTB 0.
Copyright simply recognizes that creators should be rewarded by consumers.
Again you're sounding very much like you feel as though this is a right protected by the Constitution. This is an economic/business right and we live in a capitalist society. That means that you should make market value for anything you create (technology, arts, sciences, etc). Most of us have no problem with that. The problem comes when someone thinks that their market share should be protected by the government. Your market share should be protected by your business model/plan. The Constitution and laws should be there mainly to protect innovation and creation. Mike 3, OOTB 0.
-- And pirates try every way possible to weasel out of paying.
Again, Mike supplies studies showing this isn't true. This is simply FUD spread to convince Congress that certain businesses can't exist without help from lawmakers to get laws passed to benefit them. According to a lot of the evidence this isn't true and a decent cost benefit analysis on these laws might show the real reason why this debate needs to happen. Mike 4, OOTB 0.
I'm sure somewhere in that mess we covered Mike's 5th talking point as well. Your points you bring up are exactly why Mike's talking points need to be discussed rather than simply dismissed as you would like.
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Re: WHOA! Stop at: "everyone just wants stuff for free".
I have software, source code, manuals, examples, etc that I want to live out in the world. I want people to use it, to learn from it. All 12 people in the world that are interested in a particular, obscure branch of mathematics.
If the world goes down this "ideas as property path", and copyright laws get subverted the wrong way, it's going to be impossible for me to put my "stuff" out there for those 12 people to see.
The only entities with the legal permits to do so will be large corporate entities, and maybe some rich people. I won't be able to have my little obscure math web site.
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Re: WHOA! Stop at: "everyone just wants stuff for free".
Not only does that not encapsulate the whole argument, it only encapsulates a tiny, and the least important, part of the range of arguments.
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So what? It's not like they keep track of who they buy from and who they steal from to make sure the revenue balances out. Here's a newsflash: The content industries; games, video, music, software don't pool their income and losses.
That like saying Walmart should be happy because the shoplifters who steal from Kohl's spend more at WalMart than they steal. And Kohl's should be content because WalMart is getting more revenue than losses from theft, even though they aren't.
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No, it doesn’t really play out as a similar situation, if only because piracy does not equal theft.
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Your fair share paying for a $100 million movie is $3 rental!
Don't you pirates have the least shame that you're NOT rewarding the creators when you won't pay such a tiny fraction? Any inkling of how disgusting it is to just sit on your fat ass eating chips while watching what others WORKED to finance and make, then hear you complain that YOU'RE being ripped off at that rate?
Society isn't organized for consumers; they can't just present demands. Just PAY what's asked or DON'T CONSUME. That's the only principle you need, and of course it's the one most objected to here at Techdirt! But that's the only moral choice you have in a FAIR market.
I'm ranting because Mike presents too many false assertions all at once to detail, so I just boil it down to the basics of WHO MAKES, and WHO PAYS.
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Re: Your fair share paying for a $100 million movie is $3 rental!
But then, since when has logic ever played a role in your thinking?
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Re: Your fair share paying for a $100 million movie is $3 rental!
News flash. A great movie does not need to cost $100 million. In fact, some of the best movies have seen have been done on a shoestring budget.
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Re: Your fair share paying for a $100 million movie is $3 rental!
Possibly the most blatant lie to ever be spewed from your vile mind.
You must work at Amy's Baking Co.
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Re: Your fair share paying for a $100 million movie is $3 rental!
This is just damn ironic, given that rental of lawfully made copies of movies is not protected by copyright, due to first sale. I can go to the BestBuy right now, buy a copy of the most recent $100 million movie, and then rent it to everyone in town for whatever price I set, on whatever terms I set, without giving another penny back to the movie studio. Those $3 rental fees won't get anywhere near Hollywood; they aren't entitled to them.
Society isn't organized for consumers; they can't just present demands. Just PAY what's asked or DON'T CONSUME.
That's why we need to get better organized. We outnumber publishers and major copyright holders. We can use our collective power to dictate the terms of copyright however we see fit for our own purposes. We can order them to either enjoy whatever copyright laws we establish, however one-sided in our favor they may be, or not create and publish.
But it's very stupid to allow authors, publishers, and the like to have control over copyright law. We need to get cracking.
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When you're being paid or have been paid to be confused (ie: through campaign contributions and revolving door favors) it's easy to see how things can quickly get so confusing.
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The BLS doesn't compile such data.
So it seems it is you that is guilty of "flat out mis-statements".
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Mean .............................................. 2,573 1,338 2,388 3,099 2,984 2,903 1,985 2,345 1,550
Share .............................................. 5.1 4.2 4.9 5.4 4.9 5.3 5.0 5.2 4.8
SE .................................................. 54.50 83.45 87.34 110.15 107.14 117.64 83.36 94.94 134.24
CV(%) ............................................. 2.12 6.24 3.66 3.55 3.59 4.05 4.20 4.05 8.6
http://www.bls.gov/cex/22012/midyear/age.pdf
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In one of their recent reports "Consumer Expenditures in 2011 (annual report)" 2008 to 2011 figures for average spending on entertainment are thus:
2008 = $2,835
2009 = $2,693
2010 = $2,504
2011 = $2,572
Which is a slight decline, though more recent results may differ.
http://www.bls.gov/cex/#news
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Both are expensive games to run. The revolving door is far more cost-effective, but depends on already having poured money on gaining the necessary trust.
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LOL
What he means is "pirated copies of 1984 and Animal Farm circulating under the Soviet Union's radar" helped to win the cold war. The Soviets would have used any excuse to stop material like that from spreading. And that would have included copyright.
Always remember, every time a government censors an opinion they are in effect making an "intellectual property" claim on that opinion. You cannot say that because that idea belongs to us and noone else. Only we get to decide if that should be said. You must first ask us for permission. It is the same idea.
The Chinese population are highly lacking in internet, and when they DO have internet it is under high surveillance and restrictions. ITunes is heavily blocked. Indeed, it is hard to access any site from outside China while within China because it is so bad. So yeah, think SOPA but a hundred times worse. And what is the world piracy rate of the country? 80% That is what happens WITHOUT BitTorrent. The copyright advocates are deluding themselves when they say copyright needs "more protection". It's a blatant utopian delusion.
Nowadays, we can only pass around pirated copies of Animal Farm within Iran. Even Christopher Hitchens played a part in distributing the pirated copies when he visited the country in secret. He said of the Iranian mullahs (paraphrasing) "I love how they keep trying to show footage of themselves smashing the satellite dishes in order to prove a point. They aren't fooling anyone. It'll never work. Most Iranians know how to make international phone calls. Many server work-arounds are made to counter every move these thugs make. The more attempts at oppression, the more humourous it gets. We're going to see great things from Iran."
But of course, all of this has to be stopped in the name of a utopian idea that claims to stop theft when it cannot even do anything about pre-owned sales. Insufferable. Plain, insufferable.
No, ladies and gentlemen, copyright is not "anti-communism" it is PRO communism. You have to get this bit right. Especially when free speech is crushed, governments subsidise the destruction of markets, artists end up being locked out from their own works by parties that took no part in the creative process, technological innovation is repressed bitterly, and the fruits of labour of derivative artists are flat out disposable. Sounds like communism to me.
Don't buy into this mentality for a second.
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It has a relation to totalitarianism, and with the soviet union being a totalitarian state, it was it's natural ally.
But of course, you can turn the argument upon its head, and claim that copyright is "anti-democracy", since it's "pro-totalitarian" ;)
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It seems pretty accurate to me. As your site demonstrates daily, it does boil down to your tech buddies vs. my artist friends. Of course the public is a stakeholder too, and they count at the ballot box, but the two interests who are going to drive most of this copyright reform are techies and artists. The public's interest is derivative of those two interests.
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Of course I'm happy to be proven wrong on this...
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You don't have "artist friends." You have "lawyer friends."
And part of Mike's job is to do consulting work for artists, to help them make more money. So, he has "artist friends" too.
The public's interest is derivative of those two interests.
This is flat-out ridiculous. The public's interest is the only interest that matters.
This is to say that the public doesn't benefit from artists and technology - certainly, they do. But as far a copyright is concerned, those two interests are derivative of the public's interest. Not the other way around.
I know you love to pretend that the public isn't a stakeholder, that they're just onlookers in the copyright debates. They're not.
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Oh look. More sweeping pronouncements stated as fact that are not based on any evidence. Your specialty!
This is flat-out ridiculous. The public's interest is the only interest that matters.
So artists don't matter? Techies don't matter? I don't agree.
This is to say that the public doesn't benefit from artists and technology - certainly, they do. But as far a copyright is concerned, those two interests are derivative of the public's interest. Not the other way around.
But we give the exclusive rights to the artists/authors so that in turn can benefit the public. We don't give the rights to the public first.
I know you love to pretend that the public isn't a stakeholder, that they're just onlookers in the copyright debates. They're not.
And yet I said: "Of course the public is a stakeholder too . . . ." Again, ignoring all evidence you don't like to make claims not based on the evidence. You're really good at it, Karl. Kudos. It's truly remarkable.
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Exactly like your statement about Mike, which is part of the point.
The other part of the point is that your stated opinions have never been about benefiting creative artists. They have only been about using and abusing the law to go after supposed "pirates."
You yourself have stated outright that it doesn't matter whether the infringement actually does any harm to the creative artists. You yourself have supported people who go after "pirates," but are in no way related to the creative artists. You yourself have called people "pirates" who are only trying to enjoy the content that they paid for, thus supported the artists. (That's assuming that paying for content actually benefits the actual creative artists, which is often not true.)
No matter who your friends are, your viewpoints support infringement lawsuits and the lawyers who benefit from them. And nothing else.
So artists don't matter? Techies don't matter? I don't agree.
I don't agree either, but that's not what I said. For the purposes of copyright law, artists matter because art matters to the public. "Techies" matter because technology matters to the public.
What matter is the public use of art and technology. Whatever benefits the public use is a good under copyright law; whatever limits the public use is an evil under copyright law.
But we give the exclusive rights to the artists/authors so that in turn can benefit the public. We don't give the rights to the public first.
We couldn't "give rights to the public first," because those rights are removed from the public in order to create copyright rights in the first place. The rights that the public holds are free speech rights. Copyright removes some of those free speech rights from everyone except the author, who now has the "exclusive right" to those free speech rights.
In theory, these rights are voluntarily given up by the public, and held exclusively by authors, because granting authors a monopoly will incentivize authors to make more works available for public use. (A use which is temporarily limited by copyright law.) The public does this, because the public benefits more from the use of those works, than it loses by giving up those particular free speech rights.
"Protecting" copyright industries has little to do with copyright law, exactly as "protecting" technology industries has little to do with copyright law. The sole gauge of copyright's success is in determining how much those laws benefit the general public.
And yet I said: "Of course the public is a stakeholder too . . . ."
..."at the ballot box," then said their interest was "derivative" of the interests of artists and "techies."
That's not a stakeholder, that's an onlooker. A stakeholder is invited to actively participate, and their interests are considered primary. To be a stakeholder, the public absolutely must have groups at the table who represent their interests: free speech groups, civil liberties groups, educational groups, organizations representing public libraries, groups representing the blind or disabled, and so forth.
Unless these groups are provided at least as much input as private industry organizations (whether entertainment or technology), the whole process is flawed.
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What's a soapbox?!?
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This can't be emphasised enough. AJ is just like so many other copyright maximilists who claim to be all about supporting artists, but on closer inspection their arguments are clearly in support of a system that makes a lot of money from artists (via recored companies) but offers nothing in return.
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... And a growing segment of the public is considering whether they wish to continue giving anyone those rights at all anymore. Copyright itself is being completely reconsidered these days.
The public is the most important stakeholder concerning copyright for the simple fact that those exclusive rights are granted by the public in the first place. That which is granted can always be revoked.
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This sounds good as a high-level principle, but you never explain exactly how we measure the "the progress." What variables are there? How are they weighted? How does one measure them? And what about all the things that simply cannot be measured? How do you account for that? You make it sound like this is simple to do, but it seems to me to be impossible.
I like objective data as much as you, but I fail to see how this stuff could ever really be measured in meaningful way. Thoughts? I'd love to hear the details of how you think we obtain and agree upon this data. As it is, I think you just keep repeating this as a rhetorical device, but I've yet to see you give it any concreteness.
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And if the effectiveness of copyright can't be measured, then there's really no reason to have copyright.
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Well, except when he said this: "If we go by the originalist mandate, 'science' was the part that copyright was about, and it meant 'learning.' The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business."
But since Mike explicitly called this a "framework," your statement isn't even a criticism. This isn't a "solution" to questions about copyright law, it's a systematic approach to answering the questions.
For the record, the Supreme Court has defined it as "promoting broad public availability of literature, music, and the other arts." (Twentieth Century Music Corp. v. Aiken.) I think the court got it right.
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Let's apply it to scientific progress.
Did David Hume actually tell us how to measure the speed of light in a vacuum? No, he didn't.
On the other hand, Hume gave us a "framework" for discovering how light traveled in a vacuum. That framework was empirical science. Hume said that unless your data about how fast light traveled was accompanied by actual, measured, empirical data, it shouldn't even be considered a scientific discovery.
Mike is saying something similar. Unless potential copyright statutes can actually be empirically proven to provide a public benefit, they should not be considered "good" copyright statutes. This is entirely in accord with copyright law, from the Founders forward. If, on the other hand, copyright statutes are only alleged to be for the public benefit, without any data whatsoever to back this assertion up, then they should be disregarded - exactly as Hume disregarded any scientific theory that was not based on empirical evidence.
The fact that it has taken copyright law centuries to catch up to scientific theory, says that copyright law is outdated, illogical, and not even remotely scientific. It condemns copyright law to the same kind of "truthiness" that said that the sun revolves around the earth.
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Again, this is all just high-level stuff that doesn't tell us anything concrete. Let's assume that it's true that the biggest infringers are the biggest spenders. So what? What exactly do you think we should do about that fact, Mike? You never tell us anything concrete. Make an argument about what we should do given that fact. Get some skin in the game.
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Make a law that people can respect and they just might respect the laws. It's pretty hard to respect a copyright law that block my attempts to be creative in so many ways.
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The out come would be I would STOP buying content altogether. Indeed, I would mostly be unable to do so, not having Internet access, thus losing Steam. I wouldn't have the money to buy anymore, because of the statutory damages. I would be paying it off for the rest of my life, even if I was found guilty of sharing 1 song with just 1 person.
Imagine if you will, Walmart finding out that it's suffering thefts (and no, not for one second do I agree that infringement = theft) but notices that those who steal also tend to spend more than non-thieves. At that point, a smart executive would immediately begin planning how to get those thieves to spend more. Not kick them out of the store and lose their revenue entirely. Sure, you're preventing theft, but it doesn't bring in more revenue and profits.
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You're fucking insane. Go take your meds and get life *away* from your computer, before the voices coming from your computer make you do bad things to your dollies.
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LOL! I know he won't debate me. He's too scared. I'm just challenging him to actually say something concrete. This high-level nonsense doesn't tell us anything useful. Anyone can make sweeping pronouncements like this. Stating something concrete is difficult, but it's way more productive. Mike wants so desperately to be in on the debate. That's great. But he needs to actually bring something useful to the table.
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What do you extrapolate from this post, eh? For all that your wrote, you didn't really say anything.
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I'm pointing out that Mike has not said one concrete thing. And I suspect, based on years of watching him only approach copyright from a high-level, he never will. I'd love to see him actually make even one concrete suggestion based on any of his "framework" above. Mike hasn't presented any "salient points." It's just a bunch of rhetoric. Krugman at least says concrete things about the economy. Mike just gives us the view from the clouds without ever putting any real skin in the debate.
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If you actually believe he brings nothing useful to the table, then why are you eating it up? Why not find something more nutritious?
And as I saw earlier today, the only reason people demand feedback from Mike is so that they can make every effort later to use those words against him.
I just replied to three of your comments in a row, but you no debate me? All you seem to be interested in is discrediting the blog owner.
And I find it amusingly ironic that you dog Mike for making sweeping statements in an article about politicians and lobbyists making sweeping statements - people whose statements have far more influence than anything said here. But I guess you agree with those sweeping statements so it's fine.
And now I'm sorry I bothered to reply to you at all.
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Yes. Mike never takes a concrete stand on copyright. He pretends like he is completely unable to form a solid opinion on things. And he claims that since he doesn't know something for a fact with 100% certainty, he is unable to form an opinion on it. Now, he will of course cite with glee anything that anybody says that reflects negatively on copyright. And he'll latch onto just about any argument that calls for less copyright. But when pressed for his personal views to be stated concretely, he makes excuses and runs away every time. Just watch him over the next couple years with this copyright revision. He'll have all sorts of opinions, but none of them concrete and he won't discuss his views on the merits.
I just replied to three of your comments in a row, but you no debate me?
Do you want the honest answer?
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The real reason you won't debate anyone here is that you're dead scared that all of your sacred tenets will be disproved.
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If you don't think he's honest or trustworthy, why come to his website - constantly - to try and out him. What's in it for you? You've been on this blog for years. That's one very sad life. Why do you care so much?
Find something you love to put your energy toward, rather than something you hate.
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Honestly, I don't think anybody here has any idea wtf you are talking about. There are thousands of posts about every aspect of copyright on this blog.
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http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-t echdirt.shtml#c1210
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And now he suddenly decides to log in. Sounds like the only reason he's doing it is to find more screenshots of how he thinks he's pwned Masnick under his own terms. I suppose if the wife doesn't put out he's got to have SOME source of whack-off material.
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You are many things Joe, but scary definitely isn't one of them.
And what the hell is "high-level" about any of this? It certainly ain't rocket science.
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that's not bad. the very people that make laws that the whole country are supposed to follow, dont know what is the most important American document written! what a freakin' joke!!
'don't claim that the Constitution says that Congress must "protect" the entertainment industry. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships'
i wonder what the rest of the world, the real pirates of Somalia and Asia in particular, would say about that? i wonder what would be said if that worked in reverse?
'Too many representatives continued to set this up as a battle between "content creators" and "the tech industry".'
that's because they were/are continuing to show their lack of knowledge and interest in what it is really about. when you are clueless, kick up a shit storm to divert attention. usually works with others that are equally as thick as you!
'the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity'
that's because it is so much easier to just ramp up something that is already in place, even though it is totally useless, than actually looking into what should be done, what needs to be done to create an equal playing field where all interests are catered for and would protect all sides.
the only way a discussion on copyright reform would be to take that discussion completely out of the hands of Congress (who are totally clueless and too lazy to learn the Constitution, let alone anything else) and the entertainment industries (who want to take everything, including what it hasn't, never has had and never will have any right to and give absolutely nothing to the very, and largest, group, the people, who they totally rely on to exist) and put into the hands of a group of people that were genuinely interested in making it work for everyone.
i know, i have to get off this stuff! i'm hallucinating again!!
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The Mike Masnick Copyright Reform Plan
Umm..... uh........ well............
THE END
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Re: The Mike Masnick Copyright Reform Plan
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We're sorry you're too stupid to understand this, even though it's not that complicated.
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A sad misunderstanding
Actually, they go hand in hand. You promote the progress by protecting the rights of the people who make that progress. One is not mutually exclusive of the other.
In modern times we understand that without such protections, it's less likely that major progress will be made. We have plucked all the low hanging fruit from the tree of progress, and now we must work harder to reach the higher branches. We must protect those who seek bigger things, and encourage them to keep doing it. This doesn't happen when every time they get there, someone else takes and benefits from their results without them.
You seem to have a basic and serious misunderstanding of the connections at play, and choose a literal and one sided view of the problem. You will likely always be disappointed in these sorts of hearings, because they understand there is more than one side to the coin.
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Re: A sad misunderstanding
Take a few steps back and consider that statement.
Perhaps you might have an inkling as to why your position is indefensible.
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The collection of 3DS and Steam games I possess would also like to invalidate your other argument. But hey, that's all you got. Anyone who isn't for the status quo or extending it must be a filthy, filthy pirate.
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Re: A sad misunderstanding
Mike wants to separate the means from the ends. He wants to promote the progress so long as we don't do it by granting to authors exclusive rights. It's important to pretend like the two aren't interrelated since he hates the means so much. That's why he always and only focuses on the negatives, or his version of the negatives anyway, of copyright. He'll never put things into perspective or acknowledge that there are even positives. His mantra is that it's completely broken, and his dream is to see the day when authors have no exclusive rights whatsoever.
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You are the one looking at this issue with blinders on, most likely because you wish copyright to continue as an income stream for the lawyers.
Mike advocates that copyright should promote progress, whatever the means. You are the one who has decided that granting authors exclusive is the *only* path. Your narrow view leaves out way too many possibilities that could achieve the same ends.
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That's kind of the problem.... the 'whatever that means' part.
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Are you seriously saying that someone should declare what the best path is before exploring ALL the paths? That's just crazy.
If you seriously think that our current copyright system is the best way, then you have no reason to be afraid of exploring different means to achieve the same goals.
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Mike has never claimed such a thing. And your imagination does not count as evidence that he has.
"It's important to pretend like the two aren't interrelated since he hates the means so much."
No, its pretty clear that Mike and many others hate the damage those means, in their current form, are causing. Whatever the desired results from copyright, when the current downsides are considered it's hard to justify keeping the system unless it's massively reformed.
"That's why he always and only focuses on the negatives, or his version of the negatives anyway, of copyright. He'll never put things into perspective or acknowledge that there are even positives."
To be fair, it's pretty hard to see the positives. Feel free to present evidence of modern copyright producing the results intended when it was enacted. In fact, why don't you start your own 'Great Things About Copyright' blog so we can all see how awesome you think things really are!
"His mantra is that it's completely broken..."
That's pretty much the case...
"...and his dream is to see the day when authors have no exclusive rights whatsoever."
... but this claim is the product of your imagination and is not backed up by any evidence you've ever shared here.
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Re: A sad misunderstanding
Of course not. This is a question of the best approach to achieving the ends (promoting the progress) which means separating it from the means to look for other means that could do a better job.
Nobody would argue that rights protection is more effective at promoting the progress than, say, shooting every artist in the head. Less hyperbolically, most people here wouldn't argue that rights protection is more effective at promoting the progress than, say, a government Ministry Of Art that regulates all creativity and artistic funding. Those would both be inferior to the copyright system. But none of that means that rights protection is synonymous with promoting the progress, nor does it mean that it's the best approach, and any honest approach to the question requires giving up the assumption that it is.
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I think that you are trying to apply an incredibly narrow black and white approach to something that is many shades of grey.
It would be hard for you to honestly deny that ownership and control of an end product is good for artists. Being able to sell or market their works in a manner that helps them to support themselves as artists in the future always promotes the progress, it allows the best artists to continue being artists.
Do you think it is fair that an artist who paints a picture can sell the picture (or charge admission to see it, if they want), but a musician, computer programmer, movie actor, or writer should somehow be denied that right because their works are more easily put in a digital format?
Without some form of protection, there is a good possiblity that many of today's top artists would not be able to be artists on a full time basis, and would instead have to spend their time earning a living in other ways. Some of those ways may be related to their art, but for many it would be the good old 9 to 5 J.O.B. and not much more.
Promotion the progress and rights protection are not mutually exclusive, and so far, few arguments show that rights protection harms those who choose to freely distribute their work.
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Re: Re: Re: A sad misunderstanding
Under copyright law, most artists did not have ownerhip or control over the end product. They were forced to assign ownership and control of their copyrights to a third party (record labels, publishers, or studios), and merely received some form of royalties due to the copyright owner's exploitation of these rights.
And even then, they made the vast majority of their income through other means. For example, in 2004, the highest grossing artist was Paul McCartney. He made less than 15% of his income through copyright royalties.
Without some form of protection, there is a good possiblity that many of today's top artists would not be able to be artists on a full time basis, and would instead have to spend their time earning a living in other ways.
Even with this protection, the vast majority of creative artists were forced to make their living "in other ways." Of the artists who were actually signed to labels (a very small minority), 9 out of 10 were forced to make their living outside of copyright industries. Less than 10% of artists on a major label wer ever able to recoup their costs, meaning that they made not one cent on artist royatlies. They were eventually forced to make their living in other ways (such as working at the local 7-11) in order to make ends meet.
Whatever you think copyright accomplishes, allowing artists to make a living at their art was never one of them.
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Incorrect. Nobody is ever forced. There is no law that says you must sell your work to someone else to exploit. That is a choice, not a legal requirement.
As for Mr McCartney, he makes quite a bit performing concerts as a result of his reputation built up through the copyright works he wrote and recorded over his career. On the years that he does not tour, his income from royalties is significantly higher. It should also be pointed out that in 2004, the Beatles catalog was not available on Itunes and other places.
Less than 10% of artists on a major label wer ever able to recoup their costs, meaning that they made not one cent on artist royatlies.
Many of those same artists use the work and it's wide distribution and promotion to be able to build a fan base and charge for access to their live shows. You seem to have a very limited understanding of what a label deal involves and what artist can get as a result. If they are forced back to working at the 7-11 after that, they likely are not the artist that the public wants to hear from, read, or buy art from, plain and simple. You don't see successful and popular bands working at the 7-11 (except for fun).
Even with this protection, the vast majority of creative artists were forced to make their living "in other ways."
it depends on what you consider as a creative artist. There is no unlimited source of revenue to pay people who feel they are an artist, the system is built so that those who are appreciated by the public can make a living being an artist. Copyright and all that goes with it means that song writers can write songs without having to spend their time performing for the public, or that book writers who are not good public speakers aren't forced to do speaking tours or lecture for a living in order to be able to support their hobby of writing.
Would you, as Mike Masnick appears to want to, deny the artists the rights to own the material they create? Are musical artists lesser than a painter or a sculptor? Does a writer lose ownership once he publishes a single copy of his book? Is a singer forced to sing for their supper because they have no way to own their works and creations?
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All the major labels had roughly the same "standard" contract. That included assigning all the rights to the recordings, and it was not a point that the labels were willing to negotiate. There are very few cases where artists retained their copyrights, but these are all well-known, gold or platinum artists who were able to negotiate this in their second contract with the labels. You can very nearly count them on one hand.
And unless you signed with a major, you could not get on commercial radio, could not play most of the larger venues, and could not get your records into national record stores. The major labels acted (and act) collectively, essentially forming a total monopoly on music.
So, no, you weren't "forced." You were only "required" to assign the rights if you hoped to actually make a living at your art.
Many of those same artists use the work and it's wide distribution and promotion to be able to build a fan base and charge for access to their live shows.
Yes, they did, but this revenue stream is unaffected by piracy (it's actually increased in the past ten years). In fact, you don't need copyright at all to do this.
If they are forced back to working at the 7-11 after that, they likely are not the artist that the public wants to hear from, read, or buy art from, plain and simple.
We're talking artists that sold units in the tens of thousands, sometimes the hundreds of thousands. That simply isn't enough to make money under the old major label system.
There is no unlimited source of revenue to pay people who feel they are an artist, the system is built so that those who are appreciated by the public can make a living being an artist.
You're right, there is not an unlimited source of money. But under the old label system, the vast majority of that money did not go to the creative artist at all.
Most of the people under that system could not make a sustainable living, whether they were appreciated by the public or not. Most songwriters could not write songs unless they spent their time performing for the public; most book writers who are not good public speakers were forced to do speaking tours or lectures. The ones who didn't have to do this were a small, small, small minority of songwriters or authors. That was (and is) true even among the songwriters or authors on major labels or who were signed with big publishing houses.
Again, if you look at the top grossing artists on major labels, nearly all of them made a tiny percentage of their income from royalties. They all make their money from other things - live touring, product endorsements, etc.
The notion that copyright helps artists make money, is almost entirely a myth. It is a myth that naive artists believe, in the same way that they believe copyright is some sort of "natural right" earned by their labor, but it is a myth nonetheless. It is like the myth of the "rock star lifestyle:" something that is deliberately promulgated by people who earn their money off of artists, in order to keep a fresh supply of labor to stock the plantation.
Would you, as Mike Masnick appears to want to, deny the artists the rights to own the material they create?
Neither myself nor Mike are copyright abolitionists. Mike wants copyright to fundamentally benefit the general public - which, not coincidentally, is also copyright's Constitutional purpose.
I personally want to see copyright continue. I simply recognize that the current form is an abomination. It hurts artists more than it helps them, and it does tremendous damage to the public good.
Specifically, I would start by re-legalizing all forms of non-commercial copying and distribution. I would also like to see copyright transfers abolished by law: copyright "ownership" should remain with the artists, and only licenses should be allowed. There are a few other things I'd like to see, but listing them would make this a novel-length reply.
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Um, what? That makes zero sense.
It's just as easy for a painter to put their work into a digital format as a musician. And it's just as easy for a musician to charge admission or sell a song by not putting it out there in a digital format.
I'm all for the system you describe: if you want control over your work, you must control every copy personally, as property. But if you put your work into an infinitely copiable digital format and release it to the public, you shouldn't whine and complain when people help themselves to copies.
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Even Mike can't help misreading the Constitution
The Constitution actually says 'SECURE'.
How can one who so evidently misreads the Constitution criticise others for misreading the Constitution?
See my comments here: https://freedom-to-tinker.com/blog/abridy/copyrights-fundamental-rights-and-the-constitution/
The author clearly has a natural (common law) right to exclude others from their writings.
Per Wheaton v Peters
while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters
This is why Madison primed his audience to understand the clause as empowering Congress to secure a natural right (by saying that copyright had been adjudged as a common law right), because securing the individual’s (natural) rights was the whole point of instituting a government in the first place.
That to secure these rights, Governments are instituted among Men
So, per the Constitution, Congress has power to secure the author’s exclusive right to their writings, and on the same basis, the inventor’s exclusive right to their designs, but not to grant transferable reproduction/manufacturing monopolies (for immortal corporations to consequently amass into an arsenal). Copyright (nor patent) does not secure a natural (aka common law) right, despite Madison saying copyright (& patent) had been adjudged to be a common law right.
Today, copyright is described as an ‘exclusive right’ precisely in order to hoodwink people into believing it to be the right that the Constitution empowered Congress to secure. But of course, the Constitution cannot empower Congress to secure a right that doesn’t already exist – only to secure one that does, or to grant a privilege (which would have been rejected by other Framers as antithetical).
Thus you will see lawyers carefully seguing from author’s exclusive right to copyright without actually declaring them to be the same thing. You can see Annemarie making statements about ‘Exclusive rights’ (in the sense of legislatively created ‘rights’) and then statements about ‘copyright’, but she didn’t actually say a) that copyright was the exclusive right the Constitution empowered Congress to secure, nor b) that copyright secured an author’s exclusive right to their writings.
It is amazing how many people think the progress clause clearly empowered Congress to grant/create copyright, even though, from Madison’s own explanation, the clause is intended only to empower Congress to secure an author’s common law right – because Madison knew that’s all the power he/Congress would need to legislate copyright/patent – because he’d already primed the other Framers with the understanding that copyright and patent were common law rights.
As Madison explains in Federalist #43
The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.
Hence Congress can secure common law rights – not grant monopolies – even though Madison knew copyright and patent weren’t common law rights and were obviously grants of monopoly.
While Madison may insinuate monopolies are common law rights to Framers en masse, when it comes to discussions with a conspirator, Jefferson, he reveals he knows precisely what he’s talking about, i.e. monopolies, and that they are privileges to be granted:
Corruption from the start, that even Madison acknowledged, that thanks to his weakness, we enjoy today – cultural and technological gridlock.
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Re: Even Mike can't help misreading the Constitution
http://www.techdirt.com/articles/20130412/16073622693/julie-samuels-favorite-techdirt-posts -week.shtml#c618
(Funnily enough, the first quote from that post is also from Wheaton v. Peters, but it most certainly does not imply copyright was merely recognizing a natural right, but rather created one that wasn't there before).
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Re: Re: Even Mike can't help misreading the Constitution
You have to understand: Crosbie believes that copyright was intended to protect unpublished writings only. In his eyes, the notion that copyright was supposed to be a post-publication monopoly is an abomination, a twisting of the intent of "copyright clause."
He is, in other words, a copyright abolitionist.
It is indeed ironic that his "natural rights" argument is echoed by copyright maximalists. But they are both wrong.
You linked to quotes about the post-publication monopoly not being a natural right. If you want to see a discussion with Crosbie directly, in which I show that the "copyright clause" was indeed talking about a post-publication monopoly, it is here:
http://www.techdirt.com/articles/20121025/18244920850/copyright-new-mercantilism.shtml#c135
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Re: Re: Re: Even Mike can't help misreading the Constitution
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Re: Re: Re: Re: Even Mike can't help misreading the Constitution
For example an author writes a book. The book is stolen and a copy is sold to a publisher. The copy is not stolen property and subsequent copies would also not be stolen property. So the author's only recourse would be against the original thief.
Here is a case that deals with this issue.
http://en.wikipedia.org/wiki/Dowling_v._United_States_(1985)
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Re: Re: Re: Re: Re: Even Mike can't help misreading the Constitution
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Re: Re: Re: Re: Re: Even Mike can't help misreading the Constitution
It's important to note that, if this book weren't covered by copyright for whatever reason, that doesn't mean there aren't other ways to go after the thief and publisher. Trade secrets and privacy rights are examples.
Had copyright never existed, it's a pretty sure bet that the scenario you describe would have been covered by some other set of laws. (Since copyright is essentially a financial right, I'd guess it would be subsumed under trade secrets laws.) So, copyright laws aren't necessary to protect this particular right.
Which makes it all the more doubtful that this particular right is what the Founders were considering.
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The reality is that right now, many people choose to get gobs of convenient content for free, and most of those people also choose to pay for some content in various forms. This has been going on for a long time. Content still generates tons of cashflow. It's in different configurations than before, but the money is still all there, notwithstanding wages not keeping pace with inflation and debt.
What needs to be abandoned in these discussions is the notion that this longstanding reality - that not all content needs to be licensed and paid for ad infinitum - is an unsustainable situation which government needs to put an immediate and total stop to, or even curb to some degree. Likewise, pitting every proposal against the binary choice of strictly paying for every use and experience of content, versus no payment or enforcement for anything, is utter nonsense. And as we repeatedly point out here, it is counterproductive to regard as a hostile adversary every consumer who expects certain things - or anything - to be free.
Yet, the copyright maximalists have long dominated Congress's ear and have very well established these strict, absolute parameters for the conversation. It will require creative thinking to get lawmakers to understand that progress will come from realizing it is their duty to abandon this polarized framing of the issues.
A much more realistic starting point for policy is to acknowledge that the public fully expects that certain kinds of uses of content need not be licensed or subject to fees, and that most people draw some kind of distinction between the acceptability of unlicensed commercial and noncommercial uses. This has been manifesting in people's actual behavior for decades, and is supported by polls and the surge of democratized, creative output. Lawmakers and industry need to stop fighting these expectations and developments; these changes need to be enshrined and protected by law, not punished.
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Stop calling readers and fans "consumers" !
"Every creator is also a consumer of content" NO. "content" is a problematic word itself, but if we accept that physical metaphor, the content is NOT consumed here!
Reading and copying etc. do NOT consume things!!!
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excellent article
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Japanese translation
http://bit.ly/17fS1oZ
It is also relevant to Japan as the Japanese large publishers are lobbying to turn the authors rights into publishers rights before they move into the digital age. The government, on the other hand, is trying to build content distribution platform integrated with copyright clearance authority. It is in fact a revival of 1935-47 wartime regime for censorship.
Thank you,
Hiroki Kamata
Editor, E-Book 2.0 Forum
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Limited time
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