Copyrights & Patents Have Become A Religion; All Data Will Be Ignored
from the I-WANT-TO-BELIEVE dept
If you've read Techdirt for any length of time, you'll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a "duty" to protect their interests.
It's not an assertion borne of data or extensive research. It's a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they'll often declare this is only because we're not doing the things that aren't working hard enough or often enough or with enough severity.
Mark Lemley, whose work -- especially that focused on the broken patent system -- has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property.
Lemley opens by noting that we supposedly live in an "age of reason," with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs.
This isn't just a post-file sharing phenomenon. This dates back more than a half-century.
Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it.There's more evidence available now than there was 60 years ago, but nothing's improved.
The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation... This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy... Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn't let up. When the available data doesn't support held beliefs, there are options.
Shoot the messenger:
A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo.Someone can be paid to produce data that agrees with held views.
A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support.Or, you know, 'find God," as it were...
Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all.Lemley quotes Berkely's Rob Merges, a leading patent scholar -- one who turned to faith when the data didn't support his predispositions.
After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who "feel" or "believe" in the fundamental "rightness" of their arguments. Data need not apply.
The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled.There's a reason why religions and governments shouldn't be allowed to intermingle. This adherence to the "moral" rights of creators plays hell with the system.
It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.When the faithful guide the creation of legislation, bad things happen -- things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like "fair use" give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don't want it fixed.
Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products.Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs -- no matter how much data is provided.
If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed "industry killers" have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries.
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Filed Under: belief, copyrights, evidence, faith-based, mark lemley, patents, religion, research, trademark
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Where's a Dawkin's when you need them?
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Re: Where's a Dawkin's when you need them?
I am NOTHING like the MAFIAA.
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Re: Where's a Dawkin's when you need them?
Is this the man you are referring to?
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Re: Re: Where's a Dawkin's when you need them?
And just to be clear, there wasn't any real significance in using him as an example, I pretty much just went with the first name that came to mind.
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Re:
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antidirt.
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antidirt.
Not good enough. You're a person of science! Name one piece of data I've ignored. Or is your claim just based on faith?
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1- spout some ridiculous faith based statement with no backup or if there is backup, its some ??AA funded report that has no backup.
2- Ignore all replies containing facts that disprove said statement
3- find the one or two comments that contain little or incorrect applied facts (or incorrect facts) and reply as if those comments prove you correct.
4- gloat while continuing to ignore the fact based post disproving your statement
so I'd gather
A - your income relies on IP (either directly or you are a paid shill)
or
B - You fit the bill
or both
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"You're" mean's you are, as in "you're not good enough"
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Re: Re: Re: Re:
1- spout some ridiculous faith based statement with no backup or if there is backup, its some ??AA funded report that has no backup.
2- Ignore all replies containing facts that disprove said statement
3- find the one or two comments that contain little or incorrect applied facts (or incorrect facts) and reply as if those comments prove you correct.
4- gloat while continuing to ignore the fact based post disproving your statement
Generalizations made with no evidence to back it up? Sounds faith based to me.
so I'd gather
A - your income relies on IP (either directly or you are a paid shill)
or
B - You fit the bill
or both
Paid shill? LOL! I say what I say because I believe it, not because someone pays me to say it. Your shill theory is more faith based FUD.
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You say what you say because your "beliefs" are in your best financial interest.
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I have faith in my belief based on the fact that I've never seen you, therefore you cannot exist. If you don't exist, you are not capable of ignoring any data, because you don't exist!
Once you come to the same conclusion (that you don't exist) you would see the logic of my fact based faith, but you can't because you don't exist!
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OK. One piece of date you have ignored.
There are plenty more.
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There are plenty more.
I'm not ignoring that data. I want to engage Mike on that very data. I don't think he's ever shown that DNS blocking "breaks the internet." I think it's faith based FUD. The fact that he refused to ever discuss it on the merits should tell you something.
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DNS is a system whereby your computer or internet connected device asks a remote server "What's the IP address for www.example.com?" Computers can't use worded addresses like we see them. Instead they use numbers such as 23.45.87.12 (if using IPv4) or FE80:0000:0000:0000:0202:B3FF:FE1E:8329 (if using IPv6).
Laws such as SOPA would have enabled censorship at the DNS level. They would have allowed for the ordering of ISPs and other online bodies to reject answering your computer's question. Thus, when a computer asks "What's the IP address for www.example.com?", the DNS server is forbidden to answer. Without an answer, the web page fails to load.
Now, of course, the quick and easy solution is to use other DNS servers, but this is a risky proposition. This entails one having to go out and find these other servers and to trust them.
Your American ISP DNS server can be trusted (more or less), so if you put in www.yourbankhere.com, you will get the real web site for your bank. However, if your ISP is forced to deny DNS requests, now you have to ask other DNS servers to resolve that URL. However...how do you know you can trust those responses? What if the DNS server you're asking gives you a counterfeit site, one that looks like your bank?
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Plenty of people who are actually experts on the subject have explained at great length the damage that DNS blocking will do. They're certainly a lot more convincing that you are.
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This left me to wonder if it really was something that would "break the internet", or if it was merely a policy choice to be decided on a case by case basis.
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antidirt.
Wrong phrasing.
"Name one person who ignores all the data."
Now she can't post "antidirt" as a response without lying...
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United States Constitution, Article I, Section 8
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Also, to answer your question, you regularly pump out faith-based FUD while ignoring all data, so it's you and you're a hypocrite too.
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Yes, some people subscribe to the incentive theory of IP. I've never experienced any of those people ignoring all evidence, which is the claim being made. It's simple to claim that "there is loads of evidence" against IP. It's quite another to produce that evidence, acknowledge its strengths, yet accept its weaknesses. I've never seen any data that conclusively proves anything one way or another. If you have this perfect evidence, please produce it. Let's see the evidence, and let's hear exactly what it proves. It should be easy for you, since there's loads of it. Else this seems like more faith based FUD.
Also, to answer your question, you regularly pump out faith-based FUD while ignoring all data, so it's you and you're a hypocrite too.
If I regularly pump it out, it should be a simple matter for you to provide evidence of even one time I've done this. Or is this faith based too?
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The data is inconclusive, but it's faith to support IP and science to resist it? That makes little sense. This post is rather ironic given all the faith based FUD Techdirt regularly pumps out. Let's start with the title: Name one person who ignores all the data. If you can't do that, can you admit your claim is based on faith?
There you go, FUD. Of course, because whether or not something is FUD is entirely based on opinion, you'll insist that anything I pull out of your rear end is a legitimate opinion. If you do this, I'll pretend to be you and just ignore it.
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Seriously, that's what you got from this article?
I didn't see it as slamming the Pro-IP crowd any more so than the anti-IP crowd. Both sides seem to have those who base their arguments on faith instead of facts.
One of the reasons I was drawn to Techdirt in the first place is that Mike tends to make his arguments and observations from empirical data when possible, sometimes even when that data goes against his views. Other IP blogs I've read would never do that, usually because they are too busy trying to pull the emotional heart strings of their readers to actually deal with facts.
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After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”
He cannot find any real empirical data to support the current system, so he falls back on 'faith in the necessity' of of it. That certainly seems to be ignoring the data to me.
The imaginary property system we've got now is an artificial government construct, meaning it would not exist without an outside force creating it. As such, it's opponents don't need to provide evidence for why it should't exists, or shouldn't exist in it's current form, rather it's supporters need to provide evidence as to why it should, and he could not find data to support that position.
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Re: Re: The evidence is that intellectual property is THEIR STUFF, not yours.
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Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
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Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
That's not evidence. That's virtually the definition of begging the question.
The issue is why should works or inventions be 'their stuff?' If it benefits society to grant rights to authors and inventors, even after accounting for any harm that exclusivity causes society, then I think most of us would be okay with granting the pertinent amount of rights. But it would have to be shown; otherwise, you're harming society and not producing any commensurate benefit.
The article talks about how there is increasingly a refusal to even consider the question and look for evidence that could help answer it, whatever the answer turned out to be. You seem to be embodying this problem, as you jumped straight to your preferred solution and claimed that it supported itself.
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Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
Of course it does! How could what a person creates be anything other than THEIRS? It's self-evident as that you own your body.
I see that, as usual, there's more demand for my attention than I can respond to, so this will just have to do the rest of you:
Creators are not obliged to take consumers into any account whatsoever. If you don't want to take THEIR deal on their terms, you've no moral basis for forcing it on them.
Just leave their stuff alone -- unless you DO pay. That will cure just about all problems with copyright.
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Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
Of course it does! How could what a person creates be anything other than THEIRS? It's self-evident as that you own your body.
I see that, as usual, there's more demand for my attention than I can respond to, so this will just have to do the rest of you:
Creators are not obliged to take consumers into any account whatsoever. If you don't want to take THEIR deal on their terms, you've no moral basis for forcing it on them.
Just leave their stuff alone -- unless you DO pay. That will cure just about all problems with copyright.
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Re: Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
You have no idea how desperately I wish that were true.
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Re: Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
Sorry, but it's not self-evident at all.
There may be a natural right to property so far as one's own personal, easily defendable possessions go. But anything beyond that relies on the willingness of the rest of the world to respect the claim. Creative works and inventions might be protectable so long as you never let them leave the confines of your mind, but what good is that. Once you've shared them with someone else though, it's more or less impossible to prevent them from spreading, if anyone cares to spread them further.
Remember what Mr. Self-Evident himself, Thomas Jefferson, said on this subject:
Incidentally, people aren't property, so no, you don't own your body. No one does.
Creators are not obliged to take consumers into any account whatsoever.
Absolutely.
If you don't want to take THEIR deal on their terms, you've no moral basis for forcing it on them.
Sure. But there is no moral dimension to copyright to begin with. It's entirely utilitarian. Creators can't obligate anyone to respect their claims to copyright. They have to convince the rest of the world to go along with it willingly, and that will only happen if the rest of the world finds it to be in their own interests. In the absence of copyright, there is no deal, and while no one can force a creator to create or publish, everything else is fair game.
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Re: Re: Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
2. *IF* 'creators' (read: korporations who own individual peoples' creative output) are so jealous and protective of their precious "IP", then let it stay locked up in their file cabinets... see how much 'benefit' they get from that... their precious "IP" will be 100% safe...
3. *BUT* *IF* they want to release it to the world TO MAKE MONEY (which is their total motivation), then expect it will be copied/transformed... you can't have it both ways: skim off all the cream and have none of the sour milk...
you literally profit from the public at large choosing your craptastic junk over *their* craptastic junk, but then go on to say the public -who MADE YOU- can't benefit in any further manner ? ? ?
(which was *purportedly* the *other* -ignored- part of the copyright/patent 'deal' )
the other poster nailed anti-dirt's posting style, i vacillate between him being a twue bewiever authoritarian, and a paid stooge of one stripe or another...
*someone* has to be the paid shills that are known to exist...
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Re: Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
It remains "theirs" right up to the point at which they give a copy to someone else. At that point all bets are off.
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Re: Re: Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
Nearly the entirety of human history is proof that you are wrong.
"Creators are not obliged to take consumers into any account whatsoever."
If they have any desire to be given money for their creations, they absolutely do have to take consumers into account.
"If you don't want to take THEIR deal on their terms, you've no moral basis for forcing it on them."
If you want to talk about the terms of the deal, shall we have a discussion about the whole limited control for a limited time deal that was originally made? The copyright industry broke that deal years ago, so you can't get all upset about the public ignoring it too.
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Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
The grownups here are discussing what IP policy is based upon and how it affects our society. Not sure what you are discussing.
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Re: Re: Re:The evidence is that intellectual property is THEIR STUFF, not yours.
Hardly, as evidence has shown in the past, most pirates are simply people who would pay, were the product offered on decent terms, or in some cases offered at all. In fact, 'pirates' tend to spend more than the more 'legitimate' purchasers, again clearly indicating they are willing to pay, if options are made available to them.
Here's a little light reading for you.
Two New Reports Confirm: Best Way To Reduce Piracy Dramatically Is To Offer Good Legal Alternatives
Dear RIAA: Pirates Buy More. Full Stop. Deal With It.
Another Day, Another Study That Says 'Pirates' Are The Best Customers... This Time From HADOPI
RIAA Prefers Customers Who Buy A Little To Pirates Who Buy A Lot
All told the results seem to be pretty clear, 'pirates' are willing to pay, often more than those who get their entertainment legitimately, and the biggest thing stopping them is the lack of reasonable ways for them to hand over their money, not a desire to get everything for free.
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After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”
He cannot find any real empirical data to support the current system, so he falls back on 'faith in the necessity' of of it. That certainly seems to be ignoring the data to me.
The imaginary property system we've got now is an artificial government construct, meaning it would not exist without an outside force creating it. As such, it's opponents don't need to provide evidence for why it should't exists, or shouldn't exist in it's current form, rather it's supporters need to provide evidence as to why it should, and he could not find data to support that position.
He's saying the data doesn't show anything either way. It's inconclusive. The reason it's inconclusive is because it has to be. It's not something that can be decided definitively using science. If you think science can answer the question, then please tell us how. Maybe you can figure out what the others can't.
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"It's not something that can be decided definitively using science."
Faith based proposition at its clearest and finest. I've heard literally the exact same sentence, word for word (I am not kidding here) from theists I've debated with, in their arguments in favour of God.
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The question seems simple enough, but the answer is quite complicated. I’ll sketch out for you my personal viewpoint: There’s many arguments both for and against IP. My own belief is that all of these arguments have merit, though each is subject to a meritorious objection. Everybody’s right and everybody’s wrong. There is no one true and correct answer in the scientific sense. We’re not, say, calculating the distance between two objects using geometry. We’re questioning something that is intrinsically far less provable: Do we want IP?
There’s many schools of thought, but they are generally broken into two distinct groups. The first group thinks the morality of a given act is determined only by its consequences. The second group agrees that the morality of an act can be determined by its consequences, but it also believes that sometimes the consequences of the act are irrelevant to its morality. That is, this second group thinks that some things are moral, consequences be damned.
For example, take the right to life protected by due process. A member of the first group would say that the morality of this due process right depends on the consequences, and it’s conceivable that the greater good could outweigh an individual’s right to life protected by due process. A member of the second group would say that this due process right is inviolable. No matter the consequences, it is never moral to take someone’s life without due process. The first group always sees morality as something extrinsic to the act, while the second group allows the possibility of morality as something intrinsic to the act.
Mike (and Techdirt) generally falls into the first group, and he thinks only the consequences matter. Mike doesn’t present his arguments in moral terms, but I assume this is simply because he’s not familiar with the underlying philosophical debate. When he argues, say, that IP is nonrivalrous and thus illegitimately protected by law, he’s implicitly making the claim that IP protection is morally wrong. He concludes that it’s morally wrong based only on the consequences. He thinks that IP protection does not maximize the greater good, so it’s immoral.
As you’ve probably guessed, I generally fall into the second group. While I think that the consequences matter to a significant degree, I also think that some rights are inviolable, irrespective of the consequences. For example, I believe that the investment of labor creates in someone a moral claim to the thing labored upon. The laborer’s moral claim is superior to the claim of someone else who didn’t labor to create the thing. This holds true (to some degree) no matter the consequences. If I spend two years writing a novel, my moral claim to it trumps yours and everyone else’s. The morality comes in part from my investment of labor in creating the novel.
Let me jump to the punchline: Members of the first group, like Mike, often present their side as descriptive facts. For example, the claim that the numbers have been crunched and we’d all be better off if we didn’t have IP. That sounds good on the surface, but the reality is that the numbers can’t be crunched unless the person crunching them first decides which numbers to crunch and which numbers to ignore. This person has to make the very same type of moral judgments that members of the second group make. One cannot get from the fact that IP is nonrivalrous to the claim that it shouldn’t be protected without first deciding questions of intrinsic moral value. It’s not calculating the circumference of a circle, it’s deciding that some moral claims are inherently superior to others.
"It's not something that can be decided definitively using science."
Faith based proposition at its clearest and finest. I've heard literally the exact same sentence, word for word (I am not kidding here) from theists I've debated with, in their arguments in favour of God.
The fact that science has not definitively answered the question either way suggests that perhaps science is not up to the task. Given the fact that moral judgments have to be made, it’s not surprising that the data is inconclusive. If anyone claimed that IP is good or bad and they can prove it, I’d be skeptical either way. It’s just not that simple.
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One of the founding principles underlying IP law is the encouragement of sharing knowledge via widespread dissemination of technical information in the useful arts and original works of authorship in the sciences.
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Talk about grasping for straws. This argument is bullshit because it ignores the fact that those civilisations were more or less in a constant state of war. I highly doubt that Attila the Hun would have respected Roman copyright laws as he pillaged his away across the Roman Empire.
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The point being made is that one (and only just one of many) of the underlying bases in the US for patent and copyright law was to encourage the reduction of such know-how to written form, and then publish that information so that others may learn as well. A wonderful solution to a vexing problem that is retained in secrecy may certainly help the solution holder, but unless others are able to divine the secret or independently arrive at the same or a similar solution, it is not disseminated for the benefit of all.
With this in mind the word "progress" was inserted into the constitutional text to signify that one enumerated power granted to the Congress was to enact legislation it believed useful to encourage learning in the sciences and useful arts.
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IP law, if introduced back then, would only encourage inventors to hoard their ideas even harder.
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When few people were literate, knowledge was passed down by direct teaching, and naturally lost when it was no longer of value to a society. Also, prior to the printing press, there were few copies of many works, and they were liable to destruction due to wars or fires, like the destruction of the library of Alexander.
The loss of knowledge had nothing to do with artificial property rights, and a lot to do with utility, and lack of written works, and copies of those works.
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If we used that as the basis of judging the patent system, we should pretty quickly conclude that the vast majority of patents failed to meet that bar. If you talked to engineers, most of them recognize that patents are completely useless for disseminating technical information. They do not do that. Rather, they disseminate a lawyer's vision of what they might later be able to sue over.
Those are very different things.
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Second, I have heard the same complaint on numerous occasions by engineers, only to discover after talking with them in some detail that they had merely skimmed the specification and exerted no effort trying to understand what it really was talking about. Once they understood I was not going to let them off the hook and they would actually have to read it for comprehension, patent specifications began to make sense to them and they told me the specifications were actually quite instructional, informative, insightful, and helpful.
Now, I will be the first to admit that far too many applications are crafted almost as if by rote, and the choice of language is less that artful and challenging to understand. Then again, this is true of virtually every technical publication I have ever read. Patent specifications are simply one more technical publication that require rolling up one's sleeves and studying them for content and comprehension.
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I think you miss my point. Perhaps it's because you have little experience with software engineers in particular. But, for most, the issue is never the technical challenge. There is no technical challenge. As one recently noted to me, you can make anything you want in software, it's just a question of if it's worth the effort.
They don't learn anything from patent applications at all.
The suggestion that it's because they're just not putting in the hard work to read the claims and understand them is laughably wrong. You've just had little to no contact with actual software engineers it seems.
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It will undoubtedly come as a surprise to most as it did to me, but the aerospace industry is likely the most prolific creator of software, far surpassing in amount and complexity that which emanates from the likes of software industry leaders.
Ponder for just a moment how much software is used in the research, development, manufacture, distribution, operation and maintenance of military/commercial aircraft and their associated systems, including the infrastructure within which they operate. The majority of that software was created internally because of its unique nature, and the technical solutions that the software is implementing is anything but ordinary. These solutions are among the most technically esoteric and challenging that I have ever confronted, and I never ceased to be amazed at how such complex matters could even be understood, much less resolved in such elegant and reliable manners.
BTW, I did not use the word "claims". I deliberately used the word "specification", because it is the latter that is supposed to be a detailed description of the invention to which the patent pertains. In working with engineers I consistently instructed them to focus on the specification because it is the part of an application that by law is required to be "enabling". Claims can come into play at times, but in a well-written application the enablement takes place in the specification, i.e., that part of the patent that precedes the claims.
Do not interpret my comments here as meaning that I am a supporter of all manner of "software" patents, because that would be a mistake. I am merely attempting to point out that much of the grousing that arises about people who look at patents and complain that they are unintelligible is because the have not done the grunt work that needs to be done to understand any technical publication. Patents are just one type of a technical publication, with some patents obviously being much easier to understand than others depending upon the subject matter and the communication skills of its author.
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I have to say that I don't believe you. I spend a lot of time with software engineers. A lot. None of them agree with you.
Just this week, on our podcast, we had a patent attorney and a software coder, both of whom agreed that they never once found a patent useful in such a way.
I think you're exaggerating to make you believe your position. But you're wrong. Software patents are simply not useful in disclosing anything.
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Good grief, Mike. Maybe, just maybe, his experience differs from yours. He handled software patents in the aerospace industry, and you hang out with like-minded types in Silicon Valley. That you jump to an ad hominem and question his integrity actually says a lot more about you than it does about him. You seem never able to give anyone on "the other side" even an inch. What's up with that? It just makes you come across as quite unreasonable.
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I used to believe that the principals here might actually appreciate input borne from long experience in my fields of practice. Sadly that has not proven to be the case.
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I used to believe that the principals here might actually appreciate input borne from long experience in my fields of practice. Sadly that has not proven to be the case.
Yes, it is true that my day-to-day experience tends to be mainly with software engineers in the tech industry, but I've spent plenty of time around aerospace engineeers. My father is a PhD in electrical engineering, and worked as a software programmer in the aerospace industry since the mid-1960s until his retirement a few years ago. Nearly all of his friends were as well and the discussions I've had with them seem to match the views of software engineers in the tech industry. They would help the company get patents because it was required, but they found the process to be useless -- one of helping the lawyers get paid. None can ever remember finding a patent useful for their work. None think the patent system functions as a useful tool for development.
I had these discussions with them because I thought that, perhaps, things *were* different in the aerospace industry. I recognize that when you're designing a fighter plane or a missile system (as they did) things need to be pretty exact. My father's PhD thesis actually became a useful algorithm for a variety of other fields (including digital music) and when people tell him he should have patented it, he laughs at the ridiculousness of the idea and points out that doing so would only have held back all these industries that went on to make something either directly out of his work or (as he readily admits) by discovering the same things independently. But the idea of actually finding a patent useful for their work? None of them can remember that ever happening.
Small sample size, perhaps, but considering you seem to think I don't know anyone in that field (why you always make these kinds of wrong assumptions, I can only guess...), just figured I should let you know you're wrong.
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Assuming you are from NY or that general area of the NE, my familiarity with the aero industry suggests that your father was possibly at one time in Grumman's employ at its Long Island facility. If this is true, I can easily understand why he and his colleagues spoke as you say they did because I have had intimate insight into the inner workings of that company, and especially the relationship between its legal department and business community. In fact, what you attribute to them is likely true of virtually every other business person throughout the industry, and based upon my experience dealing with them and their legal departments I can well understand why they have such a negative perception. It is a perception that is deserved, and I am the first to admit that without hesitation.
I am fortunate though. Even with such a perception rampant within the corporate organization I represented (Martin Marietta, and then later Lockheed Martin), I was able to get past that perception precisely because I joined the organization from private law and brought with me a view of the law that subordinated the desires of lawyers to the needs of the business organizations. It is interesting to note how perceptions change when people come to realize and believe that someone calling himself a lawyer is really there to try and make life easier for the other persons in the organization.
This is neither the time nor place, but perhaps an occasion will arise where I can divulge in some detail precisely when patents are useful and when they are not. Hint: Most times they are completely unnecessary, and the only reason they have been pursued is because persons advising the organization have not a whit of business acumen about the organization and the industry within which it operates.
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A reasonably good guess, but not really true. Technically, my father was employed by Grumman for about 2 years in the 1960s, but he was out of there by the 1970s working for other aerespace/defense contractors. The friends of his that I have talked about this with never worked at Grumman at all.
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Take LMC for example, it is a relatively large company, but when you consider that it comprises the remnants of General Dynamics, Lockheed, Martin Marietta, Loral, General Electric Federal Systems, etc., its total employment base is but a tiny fraction of the base of all its predecessor companies back in the 90's. I daresay that what remains is somewhere in the neighborhood of +80% smaller, with all the lost jobs representing a major drain on our nation's technology base. Some of those who lost jobs were able to land on their feet. Unfortunately, I know far too many who were not so lucky. Sad beyond words to watch lives and careers lost, even though I well understand why all of this came about.
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Sure, which is why your first instinct is to insult the EFF when they point things out.
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It doesn't take a fool to note you have an axe to grind against anyone who disagrees with IP-centric organizations and individuals.
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I refer you to such acts as the sacking of Alexandria and present day ISIL trashing of ancient and modern culture.
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You'd have an argument there if, AND ONLY, if after the two years, you actually receive a new right.
The thing is...you don't.
What happens with copyrights is that the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously, is instead curtailed. Not only that, but their property rights are curtailed as well. As it stands now, if you spend two years writing a novel and then publish it, I
1) Cannot utter aloud the text of the novel
2) Use my own equipment, property that I have purchased and otherwise own, to copy the text of the novel
You do not receive anything at all when you write and publish a piece of work. What happens is everyone else's rights are curtailed.
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The thing is...you don't.
What happens with copyrights is that the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously, is instead curtailed. Not only that, but their property rights are curtailed as well. As it stands now, if you spend two years writing a novel and then publish it, I
1) Cannot utter aloud the text of the novel
2) Use my own equipment, property that I have purchased and otherwise own, to copy the text of the novel
You do not receive anything at all when you write and publish a piece of work. What happens is everyone else's rights are curtailed.
I think the legal relations between the author and the public simultaneous change such that the author has a right to exclude the public from doing certain things while the public has a duty to refrain from doing certain things. I don't agree that it takes anything away from the public since the work did not exist until the author created it. For example, you can't copy my novel until my novel exists. The moment it does exist, you still can't copy it. You never could before I wrote it, and you still can't once I do write it. I don't see how any rights have been taken away.
Regardless, did you notice how you made a moral judgment? You spoke of "the free speech rights of everyone else, their inherent right to make speech up to and including speech that has been uttered by someone else previously." Can you prove scientifically that these free speech rights are "inherent"? Of course not.
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Why would copyright exist in the first place, then?
If, as you say, nothing is taken from the public, why do we need copyright laws that restrict the natural tendencies of humans to copy, embellish, reuse and re-purpose stories?
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The moment that the work exists isn't the important moment. The moment it's shared with others is the pivotal moment.
Prior to the existence of copyright, once you told your story to another person they had a natural right to re-tell it or embellish it. Copyright restricts that natural right. I'm not sure why you deny that.
Also, since you argue that the "laborer’s moral claim is superior to the claim of someone else who didn’t labor to create the thing", do you apply that to physical products? If I spend two weeks creating a chair and sell it to you, do I have a moral claim to restrict whomever I wish from sitting upon that chair? It was my sweat of the brow that created the chair, so I have a "superior claim", right?
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Not so. He doesn't bother talking about it in 'moral' terms for two reasons I believe.
First is that copyright, much like pretty much any good law, is one based upon utility. The greatest good in exchange for the least amount of harm. As such it should be looked at not on 'moral' terms but efficiency, 'Is it's stated goal, that of causing more things to be created, and advancing the arts and sciences, best served with the current laws on it?' Is more being created because of copyright, or in spite of it?
And I don't know about you, but the proliferation of copyright and patent trolls, those who 'create' nothing more than legal fees, the fact that Fair Use is treated as a 'right' you need to pay for, the idea held by at least one judge and I'm sure many others that the only 'fair use' with regards to sampling and remixing is paid use(which is the absolute opposite of 'fair use'), and how all of that stifles creativity by either shutting down what has been made, or ensuring that it's never made in the first place, that seems to me a pretty good indication that the law as it stands now is not best serving it's stated purpose.
Second is that arguing a utilitarian law on the basis of 'morality' is a complete and utter waste of time, as morality is entirely subjective. What you perceive to be moral others may not, and vice versa. You, and others may consider a copyright duration of two lifetimes(and counting) a 'moral right', while others may see a couple of decades to be more than sufficient, and it more moral for the works to enter the public domain sooner so that people may build upon them and make even more works.
It's a never-ending cycle, one side thinks the morality rests on the incentives provided to the individual creator, the other side believes that the morality rests on the benefits to the public who's rights are curtailed in order to provide those incentives, and it's not likely to get anywhere quick. As such, it's best to just ignore that aspect of it completely, and focus merely on 'Does it do what it's supposed to?'
When he argues, say, that IP is nonrivalrous and thus illegitimately protected by law, he’s implicitly making the claim that IP protection is morally wrong.
Citation needed.
In particular, the claim you're attributing to him that IP is 'illegitimately protected by law'. I've seen him claim that certain forms of IP protection is a waste of time, and in fact can be counterproductive(suing your fans is generally not a good PR move), but I don't ever recall him making the claim that IP protections as a whole are immoral, or moral, or has anything do do with morality at all. Pretty sure I've also seen him mention that it doesn't make sense to treat rivalrous and non-rivalrous goods as though they were the same, but again, no mention of morality either way.
For example, I believe that the investment of labor creates in someone a moral claim to the thing labored upon. The laborer’s moral claim is superior to the claim of someone else who didn’t labor to create the thing
That would be a 'sweat of the brow' argument, an argument which has been, as far as I know, rejected in the US as a valid excuse/justification for copyright.
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Citation needed, but be aware that there are numerous, well-respected academics and other professionals whose work places your utilitarian assumption in doubt. Even the Supreme Court in Eldred v. Ashcroft did not accept an invitation to ensconce utilitarianism into copyright law to the extent you seem to believe is constitutionally required.
I hesitate to provide a link that is not fully vetted for accuracy, but in this instance it may prove helpful as it talks in general terms about competing legal and philosophical theories that are in play when discussing copyright law. It generally discusses all sides of the issue without taking a position on any. It can be found at: http://en.wikipedia.org/wiki/Philosophy_of_copyright
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As for 'citation needed' I think I'd go with the very act that authorizes copyright in the US in the firs place, which starts out with "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".
Unless there are some footnotes I'm missing, the wording there seems to make it pretty clear that the goal is the promotion of progress and the arts, with the means being the 'rights' granted via copyright, not the other way around.
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Yeah, that ruling was a pretty nasty one when it came to the public domain and the 'deal' of copyright. 'Infinite expansions to copyright duration are perfectly fine, as long as the individual expansions themselves aren't infinite.'
As I noted above, while copyright may not be entirely utilitarian(despite what the text of the bill would seem to suggest), treating is as a 'moral' issue is going to get complicated fast, with at times vastly differing ideas of what is and is not 'moral' with regards to copyright. Given that, whether it is or not 'necessarily utilitarian', discussing it on those terms is almost certainly the best way to treat it, as that can be tested and verified, whereas the moral angle cannot.
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If he meant 'the data is inconclusive' he would have said so. Instead he's saying that the data does not support the position he holds, that of 'people are better off with IP laws than without them', which is why he goes straight to the faith position and claims that it doesn't matter. When you're talking about an artificial construct, something that does not exist naturally, it's on the supporters to provide evidence for it, not other people to present evidence against it, and if you can't justify it with evidence showing why you're better off with, than without, then it's time to consider either scrapping it entirely, or starting from scratch.
Even assuming that he did mean that the data is inconclusive, funny then that rather than more studies regarding the 'best' balance of IP laws between the public and creators(or those who buy their rights more often) are never called for, and instead the laws always go one way, up.
It's always more things covered by copyright, longer copyright durations, and harsher punishments for violations, never the other way around.
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The concept of "your stuff" is central!
And certainly academics never prove anything.
That's why the US Constitution handwaves proof for persons with the phrase "self-evident".
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The concept of "your stuff" is central!
And certainly academics never prove anything.
That's why the US Constitution handwaves proof for persons with the phrase "self-evident".
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1. This isn't even close to true and you know it. Seriously, who do you think you're fooling? People who are unfamiliar with Lemley? Because anyone who knows anything about Lemley knows that you're simply wrong here.
2. If it were true, Lemley wouldn't be one of the most respected law professors/legal practitioners in the land today. He's a top 10 in citations overall, and the number one most cited professor when it comes to IP issues:
http://www.leiterrankings.com/faculty/2014_scholarlyimpact.shtml
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While what I stated was my personal opinion, I can say I am not alone in my observation of how his work is structured and that upon which it relies. It is an opinion shared by many practitioners and academics, who find much of his work much more examples of advocacy vs. scholarship.
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Appeal to authority. Please support this claim, or be revealed as merely a bloviator with an agenda of your own.
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o.o
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Apparently there is also another group that relies on neither facts nor faith, but instead relies on misguided delusions that everything bad in the world is Google's fault.
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Patent/Copyright goal:
By Contraposition,
No progressing of Science & useful Arts, then
no patent/copyright.
http://en.wikipedia.org/wiki/Contraposition
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Compare "Licenses and patents" to the "Indulgences" sold by the catholic church and then compare the right of gatekeeping/distribution with the monopoly to read and interpret scripture for the other half.
Finally, in order to even understand copyright you first need to blatantly ignore common sense, empirical evidence and the physical world.
And of course, the IP maximalists like religious enforcers/zealots operating under the same tribalistic mindset where you are either for or against, no middle ground, no nuances, nothing in between, etc., and of course trying to cause moral panic over thought or imaginary crimes and portraying any kind of dissent or critical view as immoral.
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OK I'll make the comparison.
The catholic church only sold indulgences to other catholics. The priests of IP demand that everyone pays up.
As far as the "right to read and interpret scripture" is concerned, well that was largely a function of the technology of the day - and when the printing press came along it was broken (although it is worth pointing out that this only really applied in the West where the scripture was not translated into the languages of the people).
SO I'd conclude that IP is like religion on a bad day - and then a little bit worse!
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The evidence is that intellectual property is THEIR STUFF, not yours.
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Re: The evidence is that intellectual property is THEIR STUFF, not yours.
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As for the work by those who use metrics of their choosing to develop evidence somewhat resembling the scientific method, in most instances I have found their chosen metrics to not be particularly relevant to the issue they profess to be studying.
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Then the zealots dig in.
Of course it does! How could what a person creates be anything other than THEIRS? It's self-evident as that you own your body.
I see that there's more demand for my attention than I can respond to, so this will just have to do the rest of you:
Creators are not obliged to take consumers into any account whatsoever. If you don't want to take THEIR deal on their terms, you've no moral basis for forcing it on them.
Just leave their stuff alone -- unless you DO pay. That will cure just about all problems with copyright.
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Copyright is meant to provide increased incentive to create(though after someone is dead they hardly need 'incentive'), so that the public will ultimately benefit more once the creations fall into the public domain(something which should happen in the US approximately the same time the sun goes supernova at this rate) and they can build upon it for the next 'wave' of creativity.
Trademark is mean to prevent consumer confusion, and prevent them from buying potentially cheap or even harmful knockoffs of given brands.
The patent system is meant to provide incentive for people to register their inventions for government protection, rather than hoarding them as 'trade secrets', with the result that once the patent duration expires, everyone else gets access to the invention as well, and can use it, or build upon it, as much as they want.
You want total control of your creation? Keep it to yourself. You want government protections for your creations? Then you get to deal with the fact that IP law, before it was bought and twisted, was ultimately meant to serve the public, not the creators.
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Let's notice The Coward has this entire time focused on the "rights" of creators and not once so much as mentioned, or even noticed, the rights of the people, the fundamental justification for copyright. And let's also notice he has no reply to your point.
The Coward's only concern is that he gets what he wants and cares nothing about the society that he takes it from. And he calls other "pirate"...
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Then they have no rights under copyright, either. The copyright clause of the constitution *specifically* calls for the rights to apply ONLY for a limited time, and so that the works are MADE AVAILABLE TO THE PUBLIC. The fact that you and your ilk can't see this is the central problem with copyright as it exists today.
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Cool. So when I create a copy of Harry Potter and the Deathly Hallows with my scanner, it is MINE and I can do with it as I please, sharing it with all of pirate buddies. Good to know.
Nothing is self-evident, certainly not the concept of ownership.
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You say that as if the restriction on copying other's ideas and stories is the natural state of human culture, instead of something that has only existed for the last few hundred years or so.
One could argue that copyright itself is immoral, since once an idea or story is shared it goes against our very nature to restrict our ability to copy it and build upon it and share it with others.
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Wouldn't that apply equally the other way? If the creators don't want to take OUR deal on our terms, they've no moral basis for forcing it on us.
Once the creator has sold me a book, it's no longer their business what I do with it. I might use it as toilet paper. I might write notes on its margin. I might make a copy and give it to a friend.
It's not "their stuff". It's the book I paid for. It's self-evident that I own it.
Copyright and patents want to restrict what I do with something that I own. That's the problem.
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better off free
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Some stupid drawing of a super generic idea getting a patent is absurd. Unless your patenting a new type of paper that you made, otherwise it's a non thing, totally Imaginary property. Its not real. Once the old people keel over we have to fix this stuff all up so it's not completely broken.
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truth
Science does not deal with truth, only with conceptual models that describe behavior. This is why religion, law, and fiction hate science, because it undermines their concepts of the truth by denying the concept of truth.
Data will always be inconclusive when faced with the truth.
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That's because there is no explanation. More works are not going to magically produce themselves if corpses hold onto their copyrights for another twenty years, but you won't hear the copyright fanboys admit this.
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But seriously, when you associate with proven spammers and liars, don't be surprised when you get tarred by the same brush.
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As a matter of law, however, the Supreme Court was quite clear in Eldred v. Ashcroft that the current terms are constitutionally permissible under the "limited times" provision of Article 1, Section 8, Clause 8. It is a policy choice, and the group to whom complaints should be addressed to change the policy is the Congress.
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But to humor you, the aforementioned individuals consistently insist that the law is the law, and therefore it makes sense to make claims such as "life + 70 is a limited period".
It's also not a surprise that the individuals you choose the defend would be the ones who use TOR/multiple IP addresses (which according to the RIAA/MPAA, is very very naughty) to spam the website with nothing but insults and insinuations. When your side has nothing, calling everyone who disagrees with you a filthy pirate is all you have to fall back on.
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Re:
It would appear it be that way if you assume that copyright laws are written by and for artists. But they're not. They're written by and for movie studios, record labels, book publishers, etc, not to mention their armies of lawyers, who all have a massive financial interest in stronger copyright laws and longer terms.
You can ask average_joe, out_of_the_blue and Slonecker what their financial interest is, but honest answers to that question are hard to come by.
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Thou shalt not covet thy neighbor's ox, ass, spouse, copyrighted or patented items, though fair use apply, for IPR adherents do abhor fair use and the commons, nor shall they be granted entry into discussions on IPR. Amen.
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