Copyright And The End Of Property Rights
from the why-copyright-is-not-property dept
Yes, we've had the debate over and over and over again during the years (so much so that I'm not even going to dig up the links) concerning whether or not copyright is like "property." However, reading an article by Alex Cummings on "the end of ownership," it really drives home why copyright can often be anti-property rights, in that it takes away the standard types of "rights" that people have in property they've purchased. Cummings' piece focuses on the secondary market for copyright-covered content, and how the content industries have been trying for over a century to stamp such things out, but were long held back by important concepts like the first sale right. However, in an all digital world, they're having a lot more luck in killing off secondary markets:Congress declined to heed the industry's cries in 1906, but the issue of how consumers may use copyrighted works has cropped up and again. In the 1930s some record companies placed labels on their discs that said they were for "home use only"—not for playing on the radio. The courts rejected this restriction and sided with broadcasters. In the early 1980s, the music industry successfully lobbied Congress to pass the Record Rental Amendment, ensuring that a Blockbuster-like store for renting music would never emerge.And, of course, he discusses things like the ReDigi case, which basically said even if you purchased a digital item, you have no right to resell it. And the impact of all of this can be pretty broad, going well beyond just digital files, to a question of whether or not you'll really be able to "own" anything you purchase, because companies are increasingly using copyright to stop your basic ownership rights:
Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from "unlocking" a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can't pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).When you begin to think about all of those things -- many of which are already happening -- you begin to see just how anti-property rights copyright can be at times. Some of this, you could argue, is copyright misuse -- individuals and companies stretching the clear intent of copyright law to their own advantage -- but some of it seems to be part of the design of copyright law: to restrict all sorts of things you can do with your own property. It's difficult to see how strong supporters of property rights can also claim that copyright is good for property rights when you look at how many ways it seems to attack those basic concepts, and leads to a world where many of the things you "buy" you no longer own.
How far should a phone company's power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn't really ours anymore.
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Filed Under: copyright, first sale, property rights, resale
Reader Comments
The First Word
“Lets talk about music, as it's the most obvious and easiest to explain example. Most of us alive today think of a "song" in a fundamentally different way than people before us. A song has become a recording and a recording was, until lately, a physical object. In short a single tangible embodiment of two previously distinct aspects, a record of song (music notation say) and it's performance.
That new idea quantified music and we became used to paying for a distinct 'chunk' of something as a result. We liked a song, we brought the song because that was the only way we'd have access to it as 'the song' rather than a 'live' version we'd pay to go see or music notation we'd pay to play ourselves.
In other words this new idea in culture was gated because it was tied to physical production. So what happens when we move past the physicality? We have to deal with this strange new idea of a 'song' outside of the physical body that idea was born with and it's returned us to a very simple idea.
If songs are not longer a physical gated product then they can become output of a person again. If you don't have to pay to access the content you still need to pay if you want that content created. This is in short patronage.
It was an idea that was previously bound up in selling individual physicality of individual songs or albums and all the problems today can come down to how the record industry misunderstood that while we had to buy the songs in the past to access that was never the sum total of why. In the new age in which that 'had to' is done away with only the other 'why' which remains is the support of the artist.
What we are seeing is a shift in how we consume and buy culture to reflect that. It's a strange new and wonderful form of vastly egalitarian patronage. This decentralised support no longer requires a centralised gate keeping industry. Labels as they are are dead, we just have to hope they don't decide to take every one else with them in their utter mad scramble to avoid the inevitable.
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Nice article btw.
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Welcome to the bloodless coup comrades
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What could happen and what i think the copyright industry is afraid of is music becoming free yet again, like it was before the monopoly was granted to the Industry.
And for people saying music has never been free just remeber before recording of music people used to and still do use musical instruments to play for family and friends at parties and people used to play music for free and still do on the payvment, hopeing for donations from people passing by but not demanding it.
With digital media it is going to be hard for the industry to justify the prices they are askign for and the ridiculous prices for ebooks where 99% of the cost has been removed.
Greed is killing America at the movement , corruption in politics is very quickly destroying the economy, and copyright is going to go right down with them.
Don't get me wrong, musicians will still make money, it will just not be from sales,The amount of money content creators make license fees is a drip in the water, the organizations controlling this money take almost everything from the creators.
Musicians make money from live shows and merchandise, although many studios are even taking that from them now.
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How do you own an experience, asswipe? Does this mean you will never pay to go to the movie theater, a play, a concert or a sporting event. Ever go to an amusement park or get a massage? This is more of your lame justification to take something of value and give nothing in return, which is utterly shameful.
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Extrapolations Anyone?
Now, anything you print on your own printer, with your own printing materials, is not yours.
It's all just licensed, and the license can be revoked at any time.
Now your car, your house, whatever, is not yours.
The only thing you can "own" is land. They won't be able to 3D print that. At least, not here on earth.
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http://readwrite.com/2013/02/20/3d-printing-will-be-the-next-big-copyright-fight
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But you can't effectively "own" land either if you live in a state that has property tax.
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Actually, the car isn't an example of this. You can certainly own an unregistered car without fear. You just can't take it on a public road -- so the whole thing is more about the use of the roads than about car ownership itself.
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Need proof? Just don’t pay your property tax next time its due.
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Cutural Impact
Successful DRM, alo0ng with a wider range of material being available, will reverse this process, as subgroups become defined by the type of culture they buy in common. Without an ability to freely share, the cultural boundaries will become harder, as their will be little or no leakage across the boundaries.
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Re: Cutural Impact
Fortunately, we don't have successful DRM, and there's never been a time where culture has been more freely shared around the world. If I have a weird special interest, I can find others that share that interest, even if nobody I personally know shares that interest. This also runs counter to the flattening that radio and television has caused.
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In western cultures, many black people choose to follow a very different cultural norms that their neighbors, and the problems this causes has been partially ameliorated by the music etc. that crosses the divide. Without this crossover, black culture would appear much more threatening.
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A microcosm of this for example is the festival I played the other week. It's a three day punk/ska festival put on by a friend of mine but there's actually a rather diverse range of bands, lots of different types of punk, lots of different type of sk, lots of reggae and dub based stuff along with acoustic that anything from punk to folk to country.
The reason that happens, the reason that works, is that even things that you'd think are incredibly drivers, incredibly technical almost metal like punk being seen as part of a larger subculture with a laid back reggae/dub band is their strange common history and the places that they cross over, ska punk bands ect it's a wonderful mix of different and ideas and it would be awfully boring if the scene broke it self down into just individual niche's with out that common understanding.
That's what I'm afraid of if we keep going down this road. That flow of culture ideas and cross over that produces more of itself is going to become increasely stagnated as people find it hard to introduce and be introduced to things outside of their tastes.
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Isn't that an oxymoron?
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It would be harder to do now, because people have becomes used to, and expect DRM free music.
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No, it doesn't. As the above AC said, it assumes that soldering irons exist.
That's not how piracy works. How it really works is that one skilled pirate siphons off the data going to the display and speakers, copies the data to their computer, converts that to an unencumbered video file format, then shares it exactly the same way he shares a ripped DVD.
It only takes one.
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The fee tail was a real property interest held over from feudal times that was used to essentially keep land in the hands of an aristocratic family in order to maintain the irdynasty. The way it did this was to severely restrict what property rights one could transfer - each heir had a life estate, and on their death title would automatically pass to the next lineal heir of the original grantor. So the most you could sell was the right to use the property until you died.
The result was locking large swaths of land into an unproductive feudal/agrarian paradigm. For that reason, this was never implemented in the US to my knowledge and it's abolishment in Britain was an important reform. Basically, we've realized that for property rights to function effectively in a market economy, there have to be limitations on what you can control after you've transferred something to someone else.
One of the major problems with "intellectual property" is that there are very few checks on it comparable to those that evolved for real and personal property (adverse possession is another great example).
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Also I agree with you completely about the dangers of copyright subjecting our cultural life to a feudal tyrant.
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Hence why video game companies are also trying to do away with physical copies, because then they could maintain control after the initial purchase.
Corporates seem to hate the transferring of ownership which occurs once somebody gives them money, thus exposing a general contempt for the rights of the general public. They want for us to swallow the notion that we're paying for temporary licenses rather than ownership.
If it ever devolves to the point where they no longer offer physical products, or ones which require online permission, they will never see another penny from me.
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And the key phrase there is "terms that work for me" - not terms that work for the copyright holder.
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'Oh, so I'm just licensing it, and not buying. In that case, knock 75% off the price, I'm not paying full price for something I don't own afterwards.'
'Since I'm licensing it, and therefor paying for access to the content, not the content itself, I fully expect you to replace it should I lose it at any point.'
(Regarding music, and just to twist the knife in the RIAA's guts)
'Since this is a license, and one of the main reasons I'm paying money for this song/album is to show my support for the artist, I fully expect you to pay 'licensing' rates to the artist, not 'sale', as paying them with 'sale' rates means it's not in fact a license.'
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However in the digital realm it's complicated. When you buy a CD it has been proven that very little go to the artist so basically you are paying for the material and the distribution. That said, it makes sense for you to pay for the a SERVICE that provides the digital content (ie: Netflix, The Pirate Bay - if it was paid) which replaces the distribution. You know, because there are costs associated to providing that service.
"But what about the artists?!" one might ask. It's also known that Shakespeare (if memory serves) earned money from the performances of his stuff and by owning part of the theater in which those performances took place thus taking advantage of his own presence to make money, not the works themselves. The digital world poses some challenges to this model as the performances can be recorded. However I have yet to know somebody that won't go crazy in expectation when their favorite performer comes to town. Techdirt has written ad nausean that there are other ways of monetizing any "intellectual" work and selling your own presence is one of the many. Building a fan base that throws money at you (patronize in a sense) is another.
The obvious conclusion is that intangible assets that can be copied to infinity should be free for private copying and rented for commercial purposes (very narrowly defined). There are nuances but generally for the entertainment part this is especially true.
The most prolific trolls will argue that why then we shouldn't copy money. In a sense, the lack of a solid basis to support the value of the money makes it become useless and this is the main problem with stock markets. They ignore the physical parity much like intellectual property ignores there's no physical asset tied to the digital goods other than the equipment they are currently written into. When you earn your wages the value of that money lies within your productive hours but those too are intangible. Ultimately the entire system needs to be rethought. But if we go with this simple truth, the artists should earn as much as the time they invested in their creation and these earnings should cease as soon as it became ready. This is also not the ideal scenario thus making the monetization of other aspects necessary.
The whole discussion is not an easy one and there will be no solution that will be optimal for all the sides. Still I'm sure there's a middle ground that can be reached if sanity prevails...
Sry about my lack of cohesion.. I just threw a lot of thoughts in this comment ;/
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Lets talk about music, as it's the most obvious and easiest to explain example. Most of us alive today think of a "song" in a fundamentally different way than people before us. A song has become a recording and a recording was, until lately, a physical object. In short a single tangible embodiment of two previously distinct aspects, a record of song (music notation say) and it's performance.
That new idea quantified music and we became used to paying for a distinct 'chunk' of something as a result. We liked a song, we brought the song because that was the only way we'd have access to it as 'the song' rather than a 'live' version we'd pay to go see or music notation we'd pay to play ourselves.
In other words this new idea in culture was gated because it was tied to physical production. So what happens when we move past the physicality? We have to deal with this strange new idea of a 'song' outside of the physical body that idea was born with and it's returned us to a very simple idea.
If songs are not longer a physical gated product then they can become output of a person again. If you don't have to pay to access the content you still need to pay if you want that content created. This is in short patronage.
It was an idea that was previously bound up in selling individual physicality of individual songs or albums and all the problems today can come down to how the record industry misunderstood that while we had to buy the songs in the past to access that was never the sum total of why. In the new age in which that 'had to' is done away with only the other 'why' which remains is the support of the artist.
What we are seeing is a shift in how we consume and buy culture to reflect that. It's a strange new and wonderful form of vastly egalitarian patronage. This decentralised support no longer requires a centralised gate keeping industry. Labels as they are are dead, we just have to hope they don't decide to take every one else with them in their utter mad scramble to avoid the inevitable.
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(Sigh.) You've NEVER "owned" someone else's intellectual property.
But you live in a complex world, kids, where intellectual property is real enough to be easily distinguished in both common law and statute. -- You little pirates actually DO know, and delight in the stealing, until you get caught!
Anyhoo, I'll point out yet again that you simply need to adjust your notions: you DON'T own any part of someone else's work, whether physical or intellectual, and you DON'T have any right to enjoy content without paying for the privilege.
'copyright can often be anti-property rights, in that it takes away the standard types of "rights" that people have in property they've purchased.' -- See what you did, there? You can't even write without quoting "rights", because those you imagine you have in the content are not real, while those the creator has in his intellectual property ARE in common law and statute.
"Cummings' piece focuses on the secondary market for copyright-covered content," -- DOUBLY STUPID: YOU HAVE NO RIGHTS IN THE CONTENT AS SUCH, ONLY IN THE MEDIA OR GADGETS.
At best, this piece merely points out increasing corporate control which is enabled by technology. And... yawn.
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Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
The irony, it blinds me! Sure, it's not a sense of entitlement to want to control what a person can do with something they paid for. You are NOT entitled to any sort of control to a song I paid for. Regardless of who created it.
you DON'T own any part of someone else's work
Yes you do. If you paid for said work you do.
you DON'T have any right to enjoy content without paying for the privilege
This has absolutely nothing to do with the article. I've paid to have a determined digital content then I have the right to sell it to somebody else (I am considering it will be deleted afterwards if we are talking about IP in the same sense as real property). NOBODY has to pay you for the "used" song. And honestly, considering we pay levies for blank media then I can enjoy whatever I want, it has been paid already.
because those you imagine you have in the content are not real, while those the creator has in his intellectual property ARE in common law and statute.
His rights are as real as your damned creator concerning the digital content. The fact that your rotten masters went through all sorts of douchebaggery to stack the deck for the COPYRIGHT HOLDERS (not the creators) and left the other side, the customers, in some limbo does not mean these customers should not have rights over what they purchased.
You are a despicable piece of entitled shit.
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Re: Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
Let's take an example:
You see/buy a piece of furniture. Someone had it, now you own it, and you can do what you will with it.
Yes, that's include copying it, selling it (even for profit), renting it etc.
A table is not considered IP (you could argue that the design is, but fuck you), so people see no problem with replicating it.
Then we came to this: music, movies, other intangible things are became so easily reproductible, that their creators whined until an artificial thing called "IP" created. Which is basically says you own the idea behind a tangible product, and others can't "take it away" without your consent. Which is ridiculous.
Imagine the following:
You craft a table, with your specific design. Your neighbor sees it, and he craft his own table, which is similar to yours. Is that bad, illegal or frowned upon? No, because he used his own materials, did the hard work of creating it. He practically used "your idea", but did the replication himself.
Now substitute "table" with a plastic disk and "design" with music, and see how our world upturns.
Owning ideas is BS. If you can't do something useful and profitable with your idea, then don't whine when others do.
The content industry's problem is that they still think replicating something and selling it is what should be profitable.
If you could copy a furniture with 2 clicks of a mouse, every carpenter would starve, or would have to adapt to the new tech, because replication would not be profitable anymore. Creating custom furniture (As a software developer, I don't give a damn about someone copying our product. The real value is the service we provide to our customer: new features they ask for). Providing easy access and support for furniture. Whatever you want. (and honestly, it's not OUR job to find out how YOU will profit from your work. Nobody is entitled to profit just because he did something.)
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Re: Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
Odd, hearing this from THE most odious, entitled shitbag on Techdirt.
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"Because someone feels entitled to something that they purchased does NOT automatically identify that person as a pirate."
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Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
Copyright allows the rights holder to determine what consumers can do with their own property after they have legally bought it on an open market.
And you think consumers are the ones with a sense of "entitlement?"
intellectual property is real enough to be easily distinguished in both common law and statute.
It bears repeating - once again - that there is no common law copyright. There never was.
https://www.techdirt.com/articles/20130412/16073622693/julie-samuels-favorite-techdirt-posts-w eek.shtml#c618
You need to get this idea out of your head, because it's absolutely, 100% wrong.
you DON'T own any part of someone else's work, whether physical or intellectual,
Nobody owns the "intellectual" part of someone else's work, not even the artist.
They are granted statutory monopoly rights over certain parts of their "intellectual" output - expression, in the case of copyright.
But that monopoly is not absolute, nor does it cover all parts of "intellectual" output. You can't copyright anything other than expression. You have a First Amendment right to fair use of a work. You have a property right to do as you please with your possessions, such as reselling them.
There's an old saying: "your rights end at the tip of my nose." Copyright doesn't follow that saying. It is nothing other than an infringement on the free speech and property rights of the public.
If you want a picture of copyright, imagine a fist hitting the public's nose — forever.
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Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
You never have and you never will. Copyright grants the right to determine how a work is distributed and by what terms, but it does not make the works yours. Those works were made from the raw materials of your host culture. It belongs to everyone and can never be the exclusive property of any person. So, it makes no sense whatsoever that you act so indignant against people that supposedly are violating the "property" of the creators. Not getting paid for copies? Well, why don't you just get people to pay for the time invested in creating directly? Nobody can "steal" your time and will to create.
It is of the utmost arrogance to demand tribute from the public for the remixed content. No, you have no logical (emphasis on logical) right to demand people pay you for access to their own culture. As an artist, one exchanges the service of creating new content for pay, but not for the subsequent copies.
As I have said many times, selling content is like building a house on a state park that is built with materials derived from the local area and renting the place for private profit. As with culture, you have taken something that belongs to everyone and claimed it for your own use to leverage for personal gain.
"...you DON'T have any right to enjoy content without paying for the privilege."
I sure do have the right! It's my culture and I have every right to it. If you wanted to be paid, you should have solicited us before you published it. You should have sold the labor you put into it so that you get paid for something you made since you certainly should not be able to sell our own culture to us simply because you unjustly claim it is yours by right of remixing.
It's you people that are the parasites. You are the ones that take that which is not yours, claim it as your property, and coerce us to pay you for what is our own common wealth.
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Re: (Sigh.) You've NEVER "owned" someone else's intellectual property.
"Intellectual" and "property" are two words than can not go together. Period. It's easy enough to prove. OOTB, I have an idea of making a flying car fueled by pixie dust and rainbows.
Now, since I've "given" you my idea, I want you to give it back. It's my "property". Give it back, damn you!
See, if were actual property you could. Since it's not you can't. Thus, no property.
Game. Set. Match.
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The reason the above is my biggest problem with licensure is that people are going to treat the things they buy like property regardless of the bullshit a company's lawyers has cooked up.
Also, You say "end of property rights," and I think "end of moral obligation to buy my goods, commence moral obligation to pirate my goods."
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free legal digital music....all you want!!!!
signal.... same songs, same stations , same dj's...
to make a point just because the word "digital" appears does not change the rights of a person to own paid for goods...
i buy it ... i own it... or they keep it !!!!!
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Re: free legal digital music....all you want!!!!
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there should be a bounty on politicians who do otherwise.
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But they do! Pretty much every campaign I've seen is based on the notion that the candidate will represent the voters.
The problem is that they're lying.
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The Concept of Sale is Being Eliminated
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Oh irony, all those bad things the industry doesn't like are the things that actually could help them.
Deprive everybody else of rights and soon nobody will respect those who hold any "rights".
Personally I don't care, legally or illegally, if I paid for I will use it as I see fit, not as I was told.
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Acer
Dear Acer, I just sold your piece of shit computer to some dumb c*** who thought it was worth more than a used condom. Just letting you know, as per the EULA.
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When information is property - the right way
Of course, information isn't (Might be under Law) property of one main group, the single information of being shared isn't. But it can be property of each of your own copy, like say you had an idea (Even if you got it from somewhere else), you own that single copy but only that copy in your head and more if you created copies of it in your head. If someone else copies it, they also own that copy but you your self still owns the one in your own head, not the others. I think the same goes for digital too, free or not. And of course, people who copy for free or not would legitimately own that copy because they didn't "remove" anything away. Of course, I might of got a lot of information about something like this from this article from Nina Paley I think.
So yeah, legally or not, Intellectual Property can pretty much violate any property right.
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So lets hear it, unless you are just another mindless parrot screeching in the background.
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I respect the property rioghts of monopoly holders, but that dfoesn'r mean I respect the monopoly myself.
Monopoly in this case is being able to stop others from producing their own instances of a thing with their own materials while property is having right to dictate only in regards to your own materials
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