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Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All

from the almost-every-point-is-wrong dept

Tue, May 5th 2015 8:19am — Mike Masnick

Last summer, when President Obama finally got around to nominating a new IP Czar (technically the "Intellectual Property Enforcement Coordinator" or IPEC), Danny Marti, we were at least moderately hopeful that he didn't come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we'd hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern -- but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a "Creativity Conference" put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look: After kicking off with a weak joke about his job title, he starts right in with the misleading talking points.

Summarizing my job, in the spirit of this conference, I think it's fair to say that the IPEC Office is the Executive branch's "creative conscience."

First of all... what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti's predecessor, Victoria Espinel, we often wondered why there was an "enforcement coordinator" at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to "promote the progress of science and the useful arts." And enforcement is often not the best way to do that. In fact, as we've spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it's interesting to see Marti suggest that his role is about being a "creative conscience." For a second, I thought that maybe this meant he'd actually consider what was best for creativity -- meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you'll quickly learn, by "creative conscience" he actually means "protector of a few legacy gatekeepers who often screw over actual creators."

Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action.

Again, that's good if we're talking about actual creativity and all creators. But... he's not.

I'm also responsible for helping marshal the federal government's resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy.

And there we go, right off the tracks. He is focused on protecting the existing system -- even when it is shown to harm creativity, free expression and innovation. That's a problem. Maybe he didn't really mean that? Nope, he means it:

Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We're speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company's market edge. Or the brands that distinguish our companies and their goods and services.

Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you're going to make really silly statements like Marti does next:

Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the "core copyright industries" -- those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials -- added more than $1 trillion to gross domestic product and created and supported millions of jobs.

That's not true. We've gone through these numbers in the past, and shown how they're simply misleading and no one should be using them to make a serious point. They very broadly define the "core copyright industries" such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don't actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the "core copyright industry" isn't contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws.

Intellectual property-based industries are among the U.S.'s strongest exporters.

Well, sure, that's true if you argue that any company with a brand is an "intellectual property-based business," but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that's plainly ridiculous.

Overall, IP industries accounted for over 60% -- Six Zero -- of US exports.

Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands.

The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars.

And how much of that is because of copyright law -- and how much of it is because it's content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he's focused entirely on being the "creative conscience," his actual focus appears to be almost entirely on the commercial side of the creative ledger.

That is why it's so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content.

That last one is a "I work for the President and need to give my shout out to the TPP and TTIP agreements" talking point. But, really, what did he say before that shows why it's "so important to understand and protect IP"? Frankly, I don't see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn't even enter the equation, which is kind of odd if you're positioning yourself as the "creative conscience."

Does he consider how strong copyright is being used to ban books, steal money from artists, shut down innovative services for creators and expose critics? Does he consider how strong patent laws are being used to stifle innovation and make the technology that creators use much more expensive? What kind of "creative conscience" is he?

Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will "open foreign markets" while stifling free expression?

Without understanding these things, for him to just automatically leap to the claim that we have to "protect" the existing system, it's difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances.

The timing of today's event is fitting. Sunday is World Intellectual Property Day -- a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives.

Is it? Really? No, "World Intellectual Property Day" is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity "in our daily lives" is frequently done without the use of intellectual property laws -- and, all too frequently, conflicts with those laws.

This year's theme is "Get Up, Stand Up. For Music" invoking Bob Marley and Peter Tosh's tune, to illustrate how song can serve as a call to action.... Bob Marley's song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over.

Right. Like, remember that time that Bob Marley's family tried to reclaim the copyrights to two of his albums, including "Burnin'" where "Get Up, Stand Up" first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley's family for the right to use that theme for this year's "World Intellectual Property Day," right?

Yes, ladies and gentlemen, Danny Marti is the US's "creative conscience"... for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws -- when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others' songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That's not exactly a ringing endorsement for stronger copyright laws.

And, again, if we're speaking up for "artistic communities, the world over," how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count?

Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist's right to make a living off of his or her artistic labor.

Yes, unless you're Bob Marley's family. Then let us stand up for Universal Music's right to go to court to block the Marley family from that right! Or, unless you're a remix artist creating wonderful new songs by building on the works of the past.

Also, where in the constitution does it say that anyone has a "right to make a living off of his or her artistic labor?" I have many friends who "labor" quite hard in making music, but don't make livings from it. Should I send them to Marti to solve that? Will he "marshal the federal government" to make sure they make a living?

Because this is another nefarious myth. You have no "right" to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have "a right to make a living" from their creative labor, shouldn't they be guaranteed a living? Everyone knows that's crazy. So why do we repeat the myth when it comes to music? Most musicians -- in fact, nearly every musician -- has never "made a living" off of their music. Only a very few have. And it's not because they had a "right" to make a living.

And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not.

Of course, we're back to the misleading use of "theft." Do we consider what UMG did to Bob Marley's estate "theft"? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar "feel" to a Marvin Gaye song as "theft"? Does he consider a woman posting a 30-second video of her child dancing to a Prince song "theft"? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan -- many of whose greatest works where near note-for-note replicas of others' songs -- engaged in theft?

Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word "theft" doesn't really cut it -- which is also why that's not what the law says. You'd think that the guy whose role is to help enforce the law would understand that copying a song isn't "theft." It's worrisome that he does not.

When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity.

Of course, if that "discussion" or "common identity" strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti's world "theft") and thus he will "marshal the forces of the federal government" to bring you down. All in an effort to protect the glorious markets of the creative conscience.

Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer.

And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail.

And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one.

In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way... I feel that we're rapidly approaching the administration's favorite buzzword. I know it's coming, I just know it... and...

One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem -- government, the private sector, and civil society -- can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior.

Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out "anti-social behavior" online. Hmm. Anti-social behavior? Wouldn't that bar songs like "Get Up, Stand Up" that could be seen as "anti-social" in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression?

Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair.

I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is "unfair." Yet, these all seem to be things that IPEC supports.

Stakeholder responsibility will create an environment conducive to creativity.

Let me translate this for you: "Search engines should start censoring sites that the MPAA dubs "unfair" because they challenge the MPAA's business model."

It will benefit those who make a living producing creative works.

Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down.

It will benefit those who enjoy those works.

Unless you no longer have access to them, thanks to US courts censoring them.

Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity.

How? This is a serious question, but I'd like someone to answer it, because history doesn't come even remotely close to supporting that claim as can be seen by Marti's next ridiculous statement:

The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy.

And each and every single one of those was decried initially by the legacy forces -- the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it -- especially innovations like the VCR. And, of course, the internet. We've had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we "respected" IP in the terms of the legacy gatekeepers, we'd have none of those innovations.

Look, I get it: Marti's very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn't even realize just how ridiculous it was for anyone in the "intellectual property" world to cite Bob Marley as a good example of supporting creators.

So go on, Marti, "Get Up, Stand Up!" but recognize that what you're standing up for, is not for the "creative conscience" or for creators themselves, but those who seek to be gatekeepers on that creativity.

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Filed Under: copyrights, creative conscience, danny marti, intellectual property, ip czar, ipec, patents, protectionism, trademarks
Companies: microsoft, mpaa

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Ninja (profile), 5 May 2015 @ 7:04am

Ouch.
Nice IP pounding here but as the article itself notes they lack self-awareness to even feel guilty. I love that Bob Marley example. Even if you disagree with Estates living on works of the deceased this is a whole new level of evil. As expected from UMG.

I anxiously wait for the trolls focusing on minor points totally out of context, pulling pseudo-facts out of their arses and so on. Because you can't argue with the article otherwise.
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antidirt (profile), 5 May 2015 @ 8:12am

Re: Ouch.
I'm having trouble finding even one argument in the post that makes sense. There's so much wrong! Wanna pick a point and have a go?
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jupiterkansas (profile), 5 May 2015 @ 8:43am

Re: Re: Ouch.
antidirt: Doesn't understand TechDirt, but keeps reading it.
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Anonymous Coward, 5 May 2015 @ 8:47am

Re: Re: Ouch.
"I'm having trouble finding even one argument in the post that makes sense. There's so much wrong! Wanna pick a point and have a go?"

Lazy retort.

Mike's arguments are in his post. If you're so hot to debunk, you pick one.
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Rich, 5 May 2015 @ 8:49am

Re: Re: Re: Ouch.
He needs to kill time before the next issue of Archie & Jughead comes out.
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Anonymous Coward, 5 May 2015 @ 8:53am

Re: Re: Ouch.
Wait, you're inviting other people to choose which point you're going pretend to tear down? Has trolling on the internet become interactive? Choose-your-own-troll-adventure sounds like an interesting new way to waste time on the internet. I guess you can consider yourself part of the "creative" community now.
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James Burkhardt (profile), 5 May 2015 @ 9:05am

Re: Re: Ouch.
Sure. Infringement is not theft. Since you do not believe this makes sense, please cite relevant law which establishes that infringing on an IP right is theft. Please remember I debunked the PA law you cited last time (it was written to cover a situation where copyright did not yet apply).
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Kevin Carson, 5 May 2015 @ 9:07am

By definition any monopoly price markup adds to GDP, since GDP is the sum total of what everything costs. GDP measures the cost of all the "broken windows" and embedded costs involved in creating a given level of consumption goods.

As Maurice Dobb pointed out, if the state gave a privileged class the authority to set up toll-gates across roads and pocket the revenue, according to the standard marginalist model those gatekeepers would render the "service" of not obstructing transportation that was previously freely allowed, and the gates' "marginal productivity" would be whatever the toll added to the final price of goods.

Genuine productivity and progress, on the other hand, is deflationary and destroys GDP.
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antidirt (profile), 5 May 2015 @ 9:08am

Re: Re: Re: Ouch.
Wait, you're inviting other people to choose which point you're going pretend to tear down? Has trolling on the internet become interactive? Choose-your-own-troll-adventure sounds like an interesting new way to waste time on the internet. I guess you can consider yourself part of the "creative" community now.

I thought we were all creators! Seriously, though, it's a stream-of-consciousness anti-IP rant. I don't even know where to begin.
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Dreddsnik, 5 May 2015 @ 9:16am

"I don't even know where to begin."

A is for 'Apple' B is for 'Book' etc .....
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antidirt (profile), 5 May 2015 @ 9:18am

Re: Re: Re: Ouch.
Sure. Infringement is not theft. Since you do not believe this makes sense, please cite relevant law which establishes that infringing on an IP right is theft. Please remember I debunked the PA law you cited last time (it was written to cover a situation where copyright did not yet apply).

Can you link to the comment? I didn't read them all, and I don't recall this one you're referring to. Regardless, you are correct that the statute was passed before the Copyright Act of 1976. That's why it applied to unpublished works. How does that refute the fact that Pennsylvania defined (and still defines) something that is otherwise infringement to be "theft"? The fact that it is now preempted is irrelevant. It explicitly defines an act of infringement as "theft."
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Anonymous Coward, 5 May 2015 @ 9:26am

Re: Re: Re: Re: Ouch.
Well at least you actually admit to not reading the article...
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Anonymous Coward, 5 May 2015 @ 9:34am

Re: Re: Re: Re: Ouch.
Wait. Are you saying that a single state law passed long ago that stipulated an isolated definition that nobody else has ever agreed with proves a fact? Can I cite the Indiana state law that declared that Pi = 3 as proof all the mathematicians in the world are wrong?
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PaulT (profile), 5 May 2015 @ 9:46am

Re: Re: Re: Re: Ouch.
This is what you've been reduced to? Your pathetic attacks have been torn down so many times, your rebuttals so thoroughly debunked that you don't even dare to state what you actually object to this time? Yet you continue to attack...

Hey, at least you're not the one who's reduced to animal impressions when you have nothing to say, so you're still not the biggest fool around here. If only we could find someone with a shred of intellectual honesty to debate a real opinion, that would be something...
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antidirt (profile), 5 May 2015 @ 9:53am

Re: Re: Re: Re: Re: Ouch.
Wait. Are you saying that a single state law passed long ago that stipulated an isolated definition that nobody else has ever agreed with proves a fact? Can I cite the Indiana state law that declared that Pi = 3 as proof all the mathematicians in the world are wrong?

Well, nobody here has been able to even admit that, yes, Pennsylvania explicitly defines a certain type of infringement to be theft. It is a descriptive fact, yet no one can even say it. Baby steps. We can talk about what it means in the bigger picture, but it would be nice to acknowledge that I'm right about this particular statute.

Let's look at your claim "that nobody else has ever agreed with" it. How did you determine this? And how do you reconcile that position with the undeniable fact that there are many theft statutes involving intangibles?
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Anonymous Coward, 5 May 2015 @ 10:00am

Re: Re: Re: Re: Re: Ouch.
More like selective blindness, he did not read a comment debunking his argument, how convenient.
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antidirt (profile), 5 May 2015 @ 10:05am

Re: Re: Re: Re: Re: Re: Ouch.
More like selective blindness, he did not read a comment debunking his argument, how convenient.

I'm here asking for a link and already discussing his point on the merits. Are you seriously implying that I'm dodging the argument? Give me a break. Let's talk about the merits. I don't like talking about talking about it.
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tqk (profile), 5 May 2015 @ 10:06am

Re: Ouch.
I anxiously wait for the trolls focusing on minor points totally out of context, pulling pseudo-facts out of their arses and so on. Because you can't argue with the article otherwise.

I can. You know that old saying, "Consider the source." Well, in politics, there's another lesser known one, "Consider the audience." He's talking to "rightsholders", and essentially begging the MPAA for bri^Mdonations for the Democrats. Of course, he's going to be talking their language, telling their lies, and spinning their spin, regardless how ugly it might sound to anyone outside the big studios.

I'll just put this down as a single data point and hope he can be less of a paid shill when talking to real people, when not begging Hollywood for campaign cash for his boss. It doesn't look good, but I can hope for better.

Yes, it was an awful read, though well written and researched. Marley would be spinning in his grave. Still, he was really only trying to tell potential contributors what they wanted to hear. I imagine Chris Dodd was on his feet cheering and whistling (and whispering "Whew!" sotto voce).

Poor guy must have desperately needed the job. I wonder if the Mafia have him on outstanding gambling debts or something.
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Anonymous Coward, 5 May 2015 @ 10:07am

Re: Re: Ouch.
Why don't you pick one and have a go. That would be refreshing for all of us.
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Anonymous Coward, 5 May 2015 @ 10:12am

Mike Masnick just hates it when copyright law is enforced.
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Anonymous Coward, 5 May 2015 @ 10:12am

Re: Re: Re: Re: Ouch.
"It explicitly defines an act of infringement as "theft.""

No, just no, it refers to actually depriving someone of their stuff as an act of theft. Infringement is another matter entirely. Words means things.
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Anonymous Coward, 5 May 2015 @ 10:23am

Re: Re: Re: Re: Re: Re: Re: Ouch.
"I don't like talking about talking about it."

Classic anti-dirt
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Anonymous Coward, 5 May 2015 @ 10:24am

Re:
By using the word apple, you have performed theft. Please return the word.
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Anonymous Coward, 5 May 2015 @ 10:29am

Re: Re: Ouch.
I'm having trouble finding even one argument in the post that makes sense. There's so much wrong! Wanna pick a point and have a go?

We're still waiting for just one point that you could pick apart.

So far, we've seen logical cul-de-sacs, cherry picking, and attacking the source, but no logical explanation backing what you are trying to imply.
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Anonymous Coward, 5 May 2015 @ 10:33am

Re: Re: Re: Re: Re: Re: Re: Ouch.
There is a profile link associated with the James Burkhardt's comment, and you have a profile as well, either would let you find the relevant comment quickly.
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antidirt (profile), 5 May 2015 @ 10:33am

Re: Re: Re: Re: Re: Ouch.
No, just no, it refers to actually depriving someone of their stuff as an act of theft. Infringement is another matter entirely. Words means things.

Here's the statute for those following along: "A person is guilty of theft if he publicly presents for profit, without the consent of the author thereof, any unpublished dramatic play or musical composition." Source: http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.039.031.000..HTM

I'm not following you. It defines as "theft" the unconsented, public presentation of an unpublished work. This statue was passed before the 1976 Act. It limits the subject matter to unpublished works because published works were, at the time, protected solely by the 1909 Act. Unpublished works, by contrast, were not protected by the 1909 Act, and states could, as Pennsylvania did here, protect such works. Pennsylvania did in fact protect these works with this theft statue.

If the works had been published, and, assuming formalities, protected by the 1909 Act, then unconsented, public presentations would have been infringements under the 1909 Act. The same actions by the defendant would have amounted to infringement. But if they were unpublished, and thus unprotected by the 1909 Act, it wasn't infringement, but rather it was theft. The same acts by the defendant would amount to either infringement or theft, depending on whether the work was published or not. It's not the defendant's acts that change. It's the statutory definition.
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Anonymous Coward, 5 May 2015 @ 10:41am

Re: Re: Re: Re: Re: Ouch.
Hey, at least you're not the one who's reduced to animal impressions when you have nothing to say, so you're still not the biggest fool around here.

No. That's the same guy.
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RD, 5 May 2015 @ 10:42am

Theft of Labor
"And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not."

Ok. I agree. So we should immediately lobby for a repeal of all income taxes. Taxes are theft of labor, de-facto. Put your money where your mouth is and get this rolling. Unless you only mean to protect large multinational corporations who hold the copyrights to the actual output of the artists, and not helping the artists themselves.
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RD, 5 May 2015 @ 10:46am

Re: Re: Re: Re: Ouch.
"Can you link to the comment? I didn't read them all, and I don't recall this one you're referring to. "

Well then FUCK YOU. No, really,

FUCK

YOU.

THIS is why you get auto-reported on every. single. article. you post on. You can't be arsed to defend your arguments, or even remember or find the few responses you ever give, but you are *certain* YOU are right, and the entire rest of everyone on this site is wrong.
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RD, 5 May 2015 @ 10:48am

Re: Re: Re: Re: Re: Re: Re: Ouch.
"Let's talk about the merits."

Everyone here is, and has been, arguing the merits with you for YEARS.

Just because *you* have defined "the merits" to mean "anything Big Media and Copyright Law says" doesn't mean it's true.
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Anonymous Coward, 5 May 2015 @ 10:48am

Re: Re: Ouch.
Yeah, this is just Masnick throwing out all his bullshit platitudes at once, hoping something will stick. Pathetic, really.
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James Burkhardt (profile), 5 May 2015 @ 10:58am

Re: Re: Re: Re: Re: Re: Ouch.
https://www.techdirt.com/articles/20150501/16584030850/how-to-use-intellectual-property-properly.sht ml#c565

You have argued that the PA law was preempted. Meaning the state assumed by the law no longer exists. The law, when enacted, did not define IP infringement as theft, because there was no IP infringement. In the situation the law was written to protect, actual theft would occur, as the person who presented such a work for profit would get the IP associated with the work, depriving the original author of those rights. You are correct that a STATE law has a situation which, due to newer, overriding FEDERAL law a minor edge case of infringement (unpublished, narrow group of works, that are shared with a profit motive) is considered theft if we assume that by establishing rights over unpublished works the federal law has not overridden the state law (very likely a court would have to sort this out). My point is that showing me a law that was conceived, written and enacted before the associated action was considered infringement and therefore was clearly not the intent of the law is not the best support for your case. The fact that laws from overlapping jurisdictions written to cover the same previously uncovered situation exist does not establish theft in federal statute in regards to IP infringement.

As to intangible theft statutes, you listed 2. Trade secrets is one. Specifcally MISAPPROPRIATION of trade secrets, not theft. But even then, trade secrets refers to somehting you specificly have no rights in if it got out (for instance Coke could not legally prevent, as in get an injunction, anyone from copying the coke formula once known, which is why its a secret!). If the secret is revealed, you no longer have any rights to the secret. The drawback to keeping IP (specifically patents) as a trade secret is you lose the protection if someone else discovers that secret. So taking that secret by misappropriation (rather then via independent discovery or reverse engineering) revokes any rights you had to that secret, and could very well be considered theft.

The other is Aggrivated Identity Theft. 'Indentity theft', which is a misnomer. You can't steal an Identity. It is more properly referred to as Identity Fraud, or Misappropriation of an Identity. Identity theft is actually only a crime when used to exercise rights that are not yours. Often, this can lead to the deprivation of those rights to the victim.

Both of these thefts of intangibles are not properly called thefts, but even if they are, in both cases the theft deprives the victim of rights related to the intangible. Therefore they are not good examples for your argument.
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James Burkhardt (profile), 5 May 2015 @ 11:01am

Re: Re: Re: Re: Re: Re: Ouch.
Yes, but you see, because the action was not infringement under the 1909 Act, the theft was precisely that, theft of the associated rights by publishing material you did not create. The first to publish became the copyright holder under the old system.
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James Burkhardt (profile), 5 May 2015 @ 11:02am

Re: Re: Re: Ouch.
I picked a point. I don't see you debating it.
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James Burkhardt (profile), 5 May 2015 @ 11:05am

Re: Re: Re: Re: Re: Ouch.
Its especially notable given that I had challenged him multiple times to establish under what statute the theft occured, and his only response was to someone else. So i responded to that one.
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Anonymous Coward, 5 May 2015 @ 11:32am

Oh Bummer
So the Dems are cowing to Hollywood and the music labels and people are surprised? I know they think the Dems aren't shills for corporate America, but the rest of us know they are. Only they front for different corporations than the Repubs. Sorry if this burst anyone's bubble.
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Anonymous Coward, 5 May 2015 @ 11:36am

Re: Theft of Labor
Yes, taxes is actual theft of someones labor, however, most people tend to agree with it because they do actually protect us from other threats like China and Russia... well not so much any more, but still tho. If Russia landed an invasion force Obama would defend... well maybe he would not defend us... fuck that guy, but the Ladies and Gents in the military would shoot a few before Obama's lady parts starting hurting and cried for retreat.
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Anonymous Coward, 5 May 2015 @ 11:38am

Re: Oh Bummer
the difference between a Dem and Rep.

Dems are shills for businesses that support liberal agendas.
Rep are shills for businesses that support religious agendas.

Sadly both seek to enslave you, they just disagree on how to accomplish that.
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RD, 5 May 2015 @ 11:49am

Re: Re: Re: Re: Re: Re: Ouch.
"Its especially notable given that I had challenged him multiple times to establish under what statute the theft occured, and his only response was to someone else. So i responded to that one."

And this is his main method of "debating the merits" of every single thing he does here. Don't answer the relevant question, ignore it, answer some sideline/edge comment and attack it with vigor (because it's meaningless and doesn't prove a thing) then continue to ignore all other refutation and throw up his hands and declare victory because he "wasn't proven wrong" because he didn't read or ignored all posts that would do so.
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Ninja (profile), 5 May 2015 @ 11:55am

Re: Re: Ouch.
I'll let you have that pleasure. By all means entertain us.
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Ninja (profile), 5 May 2015 @ 11:59am

Re: Re: Re: Re: Re: Re: Ouch.
I knew it would be entertaining and enlightening to some extent. I had forgotten about that discussion already!

See, AJ is both entertainment and culture. Though truth be said he sparks culture from other, wiser people that tear his nonsense in the comments.
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jackn, 5 May 2015 @ 12:56pm

Re: Re: Re: Re: Re: Re: Ouch.
We do owe him thanks for increasing awareness and motivating the 'other side.' I'm sure who ever is paying him thinks these 'anti-logic' posts are helping their cause, but in reality, reading such BS delivered with such astonishing arrogance in only hurting them.

Thanks for the fun and help with the cause, anti-dirt. With you intense interest on minimizing the Artists and Maximizing the gatekeepers, You should start your own blog.
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Zonker, 5 May 2015 @ 12:59pm

When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity.
Well, Marti, if what you just said is true then why do your IP laws explicitly make the sharing of stories illegal? We are constantly reminded by FBI warnings that sharing stories is punishable by up to $150,000 in fines and imprisonment. The only way we are allowed to obtain stories is by paying whoever holds the rights to the story for a copy that we then don't actually own.

Instead, why don't we pay creative people a salary or commission for creative works which can then be shared freely? The funding can come from wealthy patrons of the arts or crowd funded by supporters of the artists in exchange for the products of their creativity. We could even allow creative people with free time to voluntarily create independent works on their own. People could buy T-shirts, coffee mugs, action figures, or other merchandise to further support the artists who brought them such a rich and vibrant culture. People could pay to watch them perform live in their local area, pay for autographs or photos or backstage passes. The possibilities are endless!
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Anonymous Coward, 5 May 2015 @ 12:59pm

Re: Re: Re: Re: Ouch.
huh?
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tqk (profile), 5 May 2015 @ 2:16pm

Re: Oh Bummer
So the Dems are cowing to Hollywood and the music labels and people are surprised?

This isn't Red Team vs. Blue Team. Have you seen the size of the military's budget? That blows all other considerations out of discussion. They both, Dems and GOP do this, you know?
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Anonymous Coward, 5 May 2015 @ 2:57pm

Re: Re: Re: Ouchl
Normal people consider taking something for sale without permission theft.

So if that's the best you can
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rapnel, 5 May 2015 @ 3:22pm

Re: Re: Re: Re: Ouch.
I thought we were all creators! We are. This moment would not exist without us. Our presence, actions and reactions, words and voices, telephone calls and text messages, drum beats and motion pictures - these would not exist were it not for us. You can't truly claim ownership to all of us, can you?

..

Perhaps there's a way to beat present "copyright" by taking their game to them, maximalists, thieves and tyrants that they are. Everything that crosses our path is copyright by us as it would not otherwise exist without us, because it's our "experience" alone - taken to the extreme that would mean that you can not have a copyright unless we release our copyrights for free to all. No claim to your works for the purposes of elimination and control. No justification for income. No relevant or profitable role to play. You know, like perhaps "art". .. ahh, were it that I could sue the owners of the oceans for wiping away my footprints..

Copyright isn't a thing apart from being a false manifestation wrought from a desire to maintain control over others.

The market will pay for your art, artists, because it enhances their experience. Those that claim to represent fulfillment, in whole or in part, of your experience also claim to represent the entirety of creation as existing because of them. It is beyond sad that the new Czar believes in the one before the all.
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Rekrul, 5 May 2015 @ 4:18pm

I've said it before and I'll say it again; Whatever purpose copyright may have had when it was first created, that purpose is long dead. You'd be hard-pressed to find a single member of the government who honestly believes that copyright has any other purpose other than protecting the profits of the entertainment industry.
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That One Guy (profile), 5 May 2015 @ 4:51pm

Re:
That's because whether they've been bought out, or are just stupid and gullible, at this point they've been fooled into thinking that the rights and profits of large companies and the public are one and the same, and that giving large companies more power and expanded rights in any way benefits the public.

A variation of 'trickle down economics' basically, where helping the rich and powerful companies become even more so will (somehow) help the public as well.
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Anonymous Coward, 5 May 2015 @ 5:09pm

Re:
Maybe Google should just give away all their IP as well. That way there can be more than one search engine.

I'm sure Masnick will support that and write an article every other day suggesting it. Uh huh.
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James Burkhardt (profile), 5 May 2015 @ 5:28pm

Re: Re:
I am unaware of anything in google's ip portfolio that is being used to prevent other search engines from existing. Could you provide some examples?
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Anonymous Coward, 5 May 2015 @ 5:39pm

Re: Re:
Maybe Google should just give away all their IP as well. That way there can be more than one search engine.

You mean like the time he basically did just that:

https://www.techdirt.com/blog/innovation/articles/20130328/11323422494/google-promises-not-to-l aunch-patent-lawsuits-against-open-source-software-could-go-much-further.shtml
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Anonymous Coward, 5 May 2015 @ 5:47pm

Re: Re:
There is already more than one search engine.

Just because Google happens to be the reason why you think the sky is falling doesn't magically make it the only search engine, dumbtard.
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antidirt (profile), 5 May 2015 @ 5:54pm

Re: Re: Re: Re: Re: Re: Re: Ouch.
Got the link and read the other comment. Thanks.

I think your argument about it not being infringement when it was enacted makes little sense. The same actions could be either infringement or theft, depending on whether the work was published.

I cited 18 USC 1832, which is entitled "Theft of trade secrets." Misappropriation of trade secrets is a tort, not a crime. I'm talking about the crime of theft of trade secrets. The point I made is that it's intangible property that can be stolen. There is such thing as theft of trade secrets, even though they are intangible. You haven't refuted that. The same applies to the aggravated identity theft statute I cited.

I think the point you're missing is that these three statutes are evidence that the term "theft" is in fact applied to intangibles. There are many other examples. Intangibles can be the subject of theft because, when it comes to intangible property, "theft" has a broad meaning. It means doing something inconsistent with the owner's intangible rights, and this applies whether the thing stolen is tangible or intangible.

There is a deprivation of rights under the Pennsylvania statute for unpublished works just as there is under the Copyright Act for published works. Whether it's a crime, such as theft, or a tort, such as infringement, is simply a matter of degree. The underlying rationale is the same. The wrong is the deprivation of the intangible rights. and deprivation in this context means doing something inconsistent with those rights.
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antidirt (profile), 5 May 2015 @ 6:01pm

Re: Re: Re: Re: Re: Re: Re: Ouch.
Yes, but you see, because the action was not infringement under the 1909 Act, the theft was precisely that, theft of the associated rights by publishing material you did not create. The first to publish became the copyright holder under the old system.

It wasn't infringement because Congress had chosen to begin federal protection at publication. Are you arguing that when it's the right of first publication, it's theft, but when it's some other right, it's not? The right of first publication is as intangible as the other intangible rights. Why could its violation be theft, but violation of the other rights could not?
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That One Guy (profile), 5 May 2015 @ 6:39pm

Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
It means doing something inconsistent with the owner's intangible rights, and this applies whether the thing stolen is tangible or intangible.

'Broad' would be putting it lightly, that definition is ridiculous. If you're going to claim that 'theft' under the law is now defined as anything that is 'inconsistent with the owner's intangible rights', you're going to need to provide a citation to back that up.

Has a person committed theft if they sneak some food into a theater, because they've 'violated' the theater's 'intangible rights' to prohibit people bringing outside food into the premise?

Is a person committing theft if they take pictures in an art gallery that has signs prohibiting such activity?

Here's the thing though, despite trying the emotional angle by calling copyright infringement theft, the ones doing so would be screaming their heads off if it were actually treated as such.

If they're going to claim that someone 'stole' their song/movie by downloading it, then they would have to show that they have been deprived of that song/movie; that something they had before is now missing. Theft is removing from the possession of one person an item, such that they don't have it, and they would have a wicked time showing that a song or movie has been 'stolen' when they still have it.

Statutory damages? Thrown out the window. Prove the losses or get out of court, which would utterly defang those who love to shake down others by threatening them with tens, if not hundreds of thousands of dollars in 'damages'.

Not to mention, if it's going to be treated as theft, then the fines are going to be in the double-digit amount in almost every case, and I really don't see them liking that.

Gone are the million dollar plus lawsuits, and instead the most they might be able to squeeze out of the defense would be a couple hundred for a really prolific downloader.

Gone are the 'pirates cost the economy trillions every year with their actions' claims, instead replaced by thousands or tens of thousands, which wouldn't have nearly the same punch when it comes to trying to convince lawmakers to pass laws to 'defend' them.

Those who claim that copyright infringement is theft might like to use the word as an appeal to emotion, but when it comes down to it, the absolute last thing they would ever want to happen would be for it to be actually treated as such.
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That One Guy (profile), 5 May 2015 @ 6:43pm

Re: Re:
You know, just because you can't pry yourself away from using Google religiously, doesn't mean that other search engines don't exist. Really, if you don't like how they operate, then stop using their product. I mean isn't that pretty much the maximalist mantra, 'If you don't like the terms, do without'?
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James Burkhardt (profile), 5 May 2015 @ 7:24pm

Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
I think your argument about it not being infringement when it was enacted makes little sense. The same actions could be either infringement or theft, depending on whether the work was published.
But depending on wether it was published or unpublished, the effect of presenting it for profit has different effects. My point is that it can be infringement if the work is published, and therefore the rights are held by the creator, or theft if it is unpublished, because your actions deprive the creator of his rights and are instead held by the thief. Two very different outcomes, resulting in two different crimes. The infringement is not theft and the theft is not infringement. A single action can be one or the other. You can infringe IP by violating the rights granted to an IP holder, or your can steal IP by taking away those rights from the creator, but those are two different actions. This basic legal concept will be important later.
I think the point you're missing is that these three statutes are evidence that the term "theft" is in fact applied to intangibles. There are many other examples. Intangibles can be the subject of theft because, when it comes to intangible property, "theft" has a broad meaning. It means doing something inconsistent with the owner's intangible rights, and this applies whether the thing stolen is tangible or intangible.

I agree that theft can be applied to intangibles. So does mike. Which is why he destinguished between the IP (aka the intangible rights) and the underlying idea, which, while also intangible, is not property.
Now, as to your insistance that because the law presents the ability to steal some intangibles, infringement is theft under statute. Im not sure how you make that logical leap, but you tried to define theft in that statement. But your definition does not match a legal one. You did not quote your Black's Law Dictionary when that one came up i notice. Mine's still in the mail, so I will have to default to dictionary.law.com.
theft
n. the generic term for all crimes in which a person intentionally and fraudulently takes personal property of another without permission or consent and with the intent to convert it to the taker's use (including potential sale).
So my point, which you generally ignored, that the term theft can be applied to the intangibles in the situations you listed statutes for, because an actual conversion of rights occurs. I discussed the PA law above and The identity theft statue concerns exercising the rights of someone else for personal gain. the trade secrets law, involves the declaration that you have property rights in a secret, and would lose those rights if it were widely known. This will contrast with a scenario I will bring up later.

Whether it's a crime, such as theft, or a tort, such as infringement, is simply a matter of degree.
Nice of you to admit that they are different things It will make this next part easier. Though both theft and infringement have both torts and crimes associated with them. this is not a case where the civil tort is called infringement and the crime is called theft. the tort of conversion and the crime of infringement are also things.

Let me quote for you the statement that got me into this:
Describing a company that owns a variety of copyrights, patents and trademarks as having "a portfolio full of intellectual property" makes sense; saying a music pirate has "a hard drive full of stolen intellectual property" does not.
The company owns the IP. It has intangible rights in the underlying intangible things. The music pirate violates these rights when he makes copies. He has not stolen the physical copies, which are not IP, but he has stolen the IP. Theft of IP simply means doing something inconsistent with the IP holder's rights. The IP is stolen when the pirate violates the rights that make up the IP.
This fails on many levels. You dispute Mike's statement the pirate does not have a hard drive full of IP. Given your definition of property as a bundle of rights, and the fact that the pirate does not have a hard drive full of rights, Mikes statement is factual on the surface. As for your claim that theft of the IP occurs whenever it is violated, I point you to your own statemetns that theft and infringement are distinct. Moreover, given the definition of theft I just listed, and your own definition of property as a bundle of rights, "doing something inconsistent with" the rights is not theft. Theft requires the 'taking' of the rights and converting them to the takers use. However, in infringement, the taker who has stolen the underlying good can abuse the rights of the IP holder, but can not convert those rights. Any attempt to assert those rights would harm the taker. The intangible good has been taken. But the rights have not.

I have asked you to point me to a statute (preferably federal) that defines infringement as theft. The closest you came was to show me that in a situation where the rights to a thing were not yet established, establishing those rights for yourself instead of the creator is theft (which agrees with the legal definition of theft I have established) You have chosen in general to instead show me proof that you can steal an intangible. Its a great bit of research. But it does not answer my question. Which I will rewrite for clarity. Please show me a statute where an action that would at the time of enactment be considered infringement was additionally defined as theft.
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nasch (profile), 5 May 2015 @ 8:00pm

Re:
Genuine productivity and progress, on the other hand, is deflationary and destroys GDP.

How so?
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nasch (profile), 5 May 2015 @ 8:01pm

Re: Re: Oh Bummer
Dems are shills for businesses that support corporatist agendas.
Rep are shills for businesses that support corporatist agendas.

FTFY
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Anonymous Coward, 5 May 2015 @ 8:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
Honest curiousity, did the right of first publication exist at the time that that legislation was penned? It doesn't make much sense for a right of first publication to exist when the rights are granted upon first publication, and I don't think the legislators would have created a chicken/egg scenario like that. I would think the right of first publication would probably be more recent than the legislation being discussed, as it's more in line with the more recent "copyright at point of fixation" setup. Do you know when the right to first publication was encoded? The comment here https://www.techdirt.com/articles/20150501/16584030850/how-to-use-intellectual-property-properly.sht ml#c565 seems to indicate that that particular PA law was written 4 years before automatic copyright (and I believe, copyright at point of fixation) was encoded into law.

Going by the "The first to publish became the copyright holder under the old system." line in James' comment, I think he's describing the scenario where someone publishes someone else's work before they have the chance to, and thereby obtain the federal copyright protections that should have been afforded to the original creator that it is considered theft. Specifically the theft of the federal copyright protections themselves.
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Anonymous Coward, 5 May 2015 @ 9:08pm

Re: Re: Re:
Yeah, nice try, but no.
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antidirt (profile), 5 May 2015 @ 9:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
Honest curiousity, did the right of first publication exist at the time that that legislation was penned?

The right of first publication existed long before the Pennsylvania statute was enacted. For example, the highest appellate court in New York declared it to be well-settled in 1872.
The rights of authors in respect to their unpublished works, have been so frequently and elaborately considered and carefully adjudicated by the courts of this country and of England, and are now so well understood and established that there is but little to do in passing upon the merits presented by the record before us, save to apply the rules clearly deducible from adjudged cases of conceded authority. The author of a literary work or composition has, by law, a right to the first publication of it. He has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. This exclusive right is confined to the first publication. When once published it is dedicated to the public, and the author has not, at common-law, any exclusive right to multiply copies of it or to control the subsequent issues of copies by others. The right of an author or proprietor of a literary work to multiply copies of it to the exclusion of others is the creature of statute. This is the right secured by the “copyright” laws of the different governments.
Palmer v. De Witt, 47 N.Y. 532, 536 (1872).

I think he's describing the scenario where someone publishes someone else's work before they have the chance to, and thereby obtain the federal copyright protections that should have been afforded to the original creator that it is considered theft. Specifically the theft of the federal copyright protections themselves.

Someone who published a previously-unpublished work without the consent of the owner would not get the copyright. Under the 1909 Act, only the author/proprietor/executor/administrator/assign "shall have copyright." See Sections 8-9: http://copyright.gov/history/1909act.pdf
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Anonymous Coward, 5 May 2015 @ 9:11pm

lying to the public is working well so far why would they bother to stop. they have common core intentionally designed to dumb down the populace and the adults are mainly apathetic to what happens in their country as long as they have their bread and circuses.

Until the dumb people are outnumbered by the ones that stop and think about what they are told, people in positions of power have no need to tell the truth.
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Anonymous Coward, 5 May 2015 @ 9:27pm

Re: Re: Re:
Remember - the last time the shills told Google to do that, they left Spain and Germany. Then the shills threw a big fuss saying Google couldn't do that.

Shills gotta shill.
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ottermaton (profile), 6 May 2015 @ 7:45am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
I'll be waiting for your reply over here.
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James Burkhardt (profile), 6 May 2015 @ 10:18am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
Ok, not sure why you didn't want to make an of these comments to me (https://www.techdirt.com/articles/20150503/07004830868/our-new-ip-czar-gives-his-first-speech-it-is -not-encouraging-all.shtml#c681), but You make a point I wish you had brought up sooner. I was potentially wrong as to the rights stolen by the thief under the PA law. I will not debate the innards of the 1909 Act Sections 8-9, though I do not think they provide the protection you think they do.

Instead I shall use your own citation. You cite law which clearly indicates rights (the right of first publication) that are completely and totally converted by the theft. These rights are being stolen, as you can not retrieve them once violated. So my stance still stands.
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antidirt (profile), 6 May 2015 @ 11:59am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Ouch.
The ownership of the rights is completely unaffected by the unconsented publication. There is no need to retrieve anything because nothing ever left. Sorry I haven't responded to your other points, but my time is limited and it seems pretty clear that you haven't studied this much.
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Anonymous Coward, 7 May 2015 @ 7:32am

Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it.

And he's going to keep right on doing that because these people don't DO nuance. If you give them an inch, they take 20 miles. There is NO POINT at all in expecting them to be reasonable about their expansionism so there's no point in giving way to them on anything, PARTICULARLY nomenclature.

They use loaded words like "property" and "consume" because We the People let them. And the whole damn world is going to keep on calling intellectual assets "property" for as long as these people tell it to.

NOW do you understand why we need to get out there and educate the world into using the correct terms and the correct interpretations of the law and Constitution? We've let the other side get away with their idea of education for far too long. It's been time to push back since they started it but it's not too late.

When our words and our terms are the ones being used, we will own the narrative and they won't be able to lie to the people any more. That's why words are so damn important. You see, Marti isn't ignorant, he's educated. The trouble is, he's been educated by the maximalists. It's time we did some educating of our own.
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Anonymous Coward, 7 May 2015 @ 4:53pm

Don't copy that Marti.
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