Just Calling Something Property, Doesn't Make It Property

from the good-points dept

For years, we've pointed out how rather insidious it is to refer to copyright and patents as "property," as it leads to those who support traditional property rights to default to supporting these government-granted monopoly privileges as if they were property. Stewart Baker, over at the Volokh Conspiracy, does a nice job suggesting that some folks' brains seem to shut off once they see something called "property," even when it has little that makes it "property." He's specifically addressing conservatives and libertarians, but on this debate, I think the traditional labels don't really apply. I've seen liberal/progressives argue on exactly the same lines. For better or for worse, copyright/patent debates don't seem to fall along traditional political lines. Considering that most of the American political spectrum (despite what you might hear...) does believe in basic property rights, calling copyright "property" gets lots of people to agree that it must be important to support, without having them think through the details:

Viewed up close, copyright bears little resemblance to the kinds of property that conservatives value. Instead, it looks like a constantly expanding government program run for the benefit of a noisy, well-organized interest group -- like Superfund, say, or dairy subsidies, except that the benefits go not to endangered homeowners or hardworking farmers but to the likes of Barbra Streisand and Eminem.

It looks like Superfund in other ways, too. Copyright is a trial lawyer's dream -- a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. ... It's asbestos litigation for the Internet age.

Conservatives -- and especially libertarians -- seem like a cheap date on this issue. You'd think libertarians would have been in the forefront of objecting to governmental intrusions into our lives at the behest of a special interest -- let alone the creation of a new class of quasicriminals, defined as more or less everyone who entered high school after 1996, who can be investigated and prosecuted whenever the government or some member of industry decides that they are too troublesome.

Where it gets fun is that Baker points out that you could pull the same trick elsewhere, by calling other non-property things property. For example, he tries to explain how property rights supporters could be taught to like the TSA's security procedures if we just noticed the "property rights" inherent in the discussion:

Come to think of it, maybe I can persuade readers here that TSA's new enhanced security measures are just fine -- as long as we enforce the rules by giving all the passengers on the plane a "property" right not to travel with people who refuse body imaging and enhanced patdowns. Instead of relying on oppressive government regulation, we’d just let the passengers collect millions in "statutory damages" from noncompliant travelers.

And that's kind of the point. You can create all kinds of fake "property rights," if you want to distract from what's actually going on. But it doesn't make the underlying issue property.

Filed Under: copyright, language, property, property rights

If Even The Best Legal Minds Don't Read Boilerplate Contracts... Why Are They Considered Binding?

from the just-wondering dept

Michael Scott points us to a discussion noting that famed circuit court judge Richard Posner has admitted that when he recently took out a mortgage, he didn't bother reading the legal language, which leads to stories of many other lawyers admitting they don't bother reading the legal language of many of the things they sign. And yet... those things are still considered binding. I think most people realize that the language of such things will almost never actually matter, but of course, when it does matter, it really does matter. And, of course, that leads to a general question: why do we even bother with all this ridiculous legal language if no one's really agreeing to it?

Filed Under: binding, boilerplate, contracts, language, lawyers

Why It's Important Not To Call Copyright Infringement Theft

from the it-goes-beyond-semantics:-it's-about-understanding dept

A bunch of folks on all sides of the copyright debate have been submitting the recent post from the blog Copyhype (by a recent law school grad named Terry Hart) about the whole "infringement vs. theft" debate in terms of what to call it when someone's copyright is infringed. Hart is very careful and specific, but in the end tends to lean towards it being perfectly acceptable in many instances to refer to infringement as theft:

It's technically correct that "copyright infringement" and "theft" have distinct legal meanings, but so what? The idea that the legal distinction between the two terms forecloses any colloquial comparison is invalid. "Theft" in the legal sense has always meant something far narrower than "theft" in the everyday sense. In early English common law, for example, the crime of theft only included the taking of another's property by force or by stealth. It didn't include the taking of property by deception or trick, and it also didn't include the taking of property by someone in whom the property was entrusted. While today we would have no problem saying a delivery truck driver engaged in "theft" if he kept a package instead of delivering it, earlier courts had to jump through several hoops before reaching the same conclusion.

He goes on to knock those who quote the Supreme Court opinion in Dowling v. US, where Justice Blackmun makes it clear that infringement and theft are two different things. Hart claims that people who quote Dowling are quoting Blackmun out of context, while also noting Justice Breyer's concurring opinion in the Grokster case that says "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft."

His overall argument, however, is that there's nothing wrong with calling copyright infringement theft, because beyond the legal definition, it accurately shows how people feel about having works infringed, and that's useful to the debate on these issues:

The debate over the labels we give to copyright is interesting in an academic sense but largely meaningless in the real world. Creators often use words like "theft" to reflect how they feel about acts of infringement. Shifting the focus from the colloquial meaning of the word to the legal meaning accomplishes little more than arguing for the sake of argument, while misusing language from case law only forecloses a fuller understanding of the law.

I agree, in part, but mostly disagree with Hart's conclusion here. I agree that arguing back and forth over which Supreme Court justice said what is somewhat meaningless. However, I disagree strongly that this becomes argument for the sake of argument. Whether we are speaking legally or economically or about the impact on any individual or organization, "theft" and "infringement" are two separate and different things. This is important. If you are seeking to understand what is happening and how to respond to it, calling it "theft" immediately shuts the door on a variety of important points. It closes off a path to understanding both what's happening and how one might best deal with it. I find that incredibly dangerous from the perspective of a content creator. Calling infringement theft or not isn't just a semantic argument from people who like to argue. It's about actually understanding what's going on, and that's simply not possible when you put up a wall to understanding.

So, yes, arguing over what justice said what in which Supreme Court ruling may not enlighten anyone, but looking at the actual details of what's going on, and making sure that you do not falsely lump two very different concepts into one in such a way as to preclude actual understanding, is no mere semantic argument. It's about actually understanding the issues in a way that can move people forward. Calling it theft is wrong. And not because some Supreme Court justice said so, but because it's wrong at an absolute level. You can call an apple and orange because of how it makes you feel, but that doesn't make it correct, and hinders your ability to understand the differences between apples and oranges.

Filed Under: copyright, infringement, language, theft, understanding

The Language Of 'Piracy' As A Spectacle

from the is-this-useful-or-not? dept

I've discussed in the past why I'm not thrilled about the use of the word "piracy," even as it has become rather standard for describing unauthorized file sharing. It's inaccurate, and is used by the entertainment industry to paint a picture of pure evil, where a more nuanced and accurate view might help. At the same time, with the rise of "The Pirate Party" in various countries, a group of folks have tried to take the word back -- but I still wonder if the name limits the party's upside, even as it may have enabled some of the initial attention (and vote-getting ability).

That said, Nancy Baym points us to an interesting analysis of piracy in the context of "language of spectacle", by Gabriella Coleman, and how that can help drive political messages and involvement:

But what keeps me interested in the politics of piracy is how it can speak the language of spectacle, which can be a powerful tactic and technique for broadcasting a political message. Here I'm just paraphrasing and cribbing the work of Stephen Duncombe, who has argued, I think quite persuasively, that we cannot rely solely on reasoned debate for building political programs. Duncombe does not argue that we must toss out rationality and truth seeking (these are absolutely necessary) but notes how on their own or if not clothed in some other cloak, they may not be enough to convey and compel, especially in this day of total media saturation. Or to put a but more poetically by him "Reality needs fantasy to render it desirable, just as fantasy needs reality to make it believable."

Much (though not all) of contemporary digital piracy follows the logic of spectacle. It builds and conveys a fantastical drama of right and wrong, of new possibilities, of freedom from the noose of the law; it signals and speaks to the thrill and fun in twisting, even breaking, existing structures and constraints; and provides a window into another way of acting/behaving. In many cases what it provides is a commons (and I will be exploring it in depth in my class next semester on the commons) and many folks, I imagine, turn to piracy simply for the free stuff, and a number of them come out of the other side transformed into copy fighters willing to engage in a politics beyond sharing stuff and waving the pirate flag.

It's an interesting thought, and it gets me thinking. Folks like Bill Patry make compelling arguments that the use of moral panics and folk devils with words like "piracy" distort the debate in negative ways, but Coleman suggests that by embracing that term, people may be able to build a stronger case on this particular issue. Which seems more compelling? Or is it a combination of both?

Filed Under: language, piracy, politics, spectacle

Grammar Nazis: Useful Language Experts, Or Elitist Snobs?

from the well-this-ought-to-be-fun dept

I know that my grammar is not ideal, though I really do strive to get the basics right. There are times, however, when I feel that the strict "rules" that are put forth by grammar go too far. If the text makes the point in a way that people can understand, what is the problem? On top of that, there's the utter snobbishness with which some (no, not all!) grammar aficionados put down anyone who makes a silly mistake. I have no problem with someone letting me know about a typo or a grammatical problem in a friendly and useful manner -- but all too often the message is delivered in the tone suggesting that making such an elementary grammatical error suggests that I obviously never made it out of the second grade. So I'm glad to see an English professor taking on the grammar nazis.

Salon is running a review of a new book by English professor Jack Lynch, called The Lexicographer's Dilemma, which argues that grammar nazis should chill out. Grammar rules are mostly to make people feel elite, not to make them any clearer, according to the book. Again, I have no problem with basic grammar rules for the sake of clarity, but focusing too much on the rules over the clarity is a mistake, and it's nice to see at least some "experts" agreeing.

Filed Under: english, grammar, language

Music Industry Copies Language Of Copyright Reformers In Pushing For Three Strikes

from the oh-come-on dept

It's really funny to watch the entertainment industry lobbyists use a popular trick among disingenuous debaters: it tries to flip the arguments being used towards themselves against their opponents. For example, we've seen copyright maximalists argue against those of us who question the need for gov't intervention in issues like copyright claim that copyright represents a true free market, and weakening copyright law is somehow unfair gov't meddling in the free market. The latest trick is particularly neat. Plenty of people argue that all of the attempted changes that the entertainment industry has been pushing for around the world are unnecessary attempts by this industry to prop up an obsolete business model. Would you believe that the entertainment industry is now using the same language in favor of its proposals?

Indeed. As lots of people are pushing back on dangerous plans to "kick people off the internet," ISPs have pointed out how costly such a three strikes policy would be for ISPs who are suddenly drafted to be copyright police. In response, the head of BPI, the major UK music lobbyist group, responded by charging that ISPs were relying on an obsolete business model. Seriously:

"BT is clinging on to an old business model which is supported by illegal downloading. That's not only unfair to artists and creators, but penalises BT's many customers who use the internet legally,"

This implies -- incorrectly -- that file sharing is somehow a massive boon to ISPs. The very same ISPs who keep claiming they need to use traffic shaping to prevent any network from being overloaded by file sharing. It's pretty ridiculous to claim that ISPs are relying on file sharing as any sort of business model at all. A huge percentage of people have internet access, not because of file sharing, but because these days it's hard to get through life without an internet connection. Suggesting that they make their money because of file sharing is patently ridiculous. It's the sort of thing that a reporter should push back on, when an industry rep spews such nonsense.

Filed Under: copyright, language, reform
Companies: bpi

Can There Be A Fair File Sharing Trial When The Language Is All Biased?

from the questions-questions-questions dept

In the past, we've discussed the various problems with the language choices by the entertainment industry in discussing file sharing. Terms like "intellectual property," "piracy," "theft" and even its descriptions of "losses" are all misleading and biased. This, in fact, is a key point in William Patry's upcoming book -- where he looks at how the language has been co-opted by the industry to pre-bias the casual observer (including journalists and politicians). Ben Jones is wondering if there can even be a "fair trial" for file sharers given this widespread use of biased language. It's a decent question, and goes back to an earlier point we raised about why the jury verdicts in the recent file sharing trials were hardly a good barometer on the public's understanding of copyright issues. When the industry has been so successful in choosing language that so clearly biases the casual observer (and is then able to exclude anyone who is actually knowledgeable about the subject from the jury), it shouldn't be any surprise at all that rulings will tend towards those who have been able to define the terms.

Filed Under: bias, file sharing, language, trials

Using Trademark To 'Privatize The English Language'

from the did-you-(R)-that? dept

Jeanne sent in news of yet another overly aggressive trademark claim, this time on a blogger who just so happened to use the phrase "feel the fear and do it anyway" in a blog post. Apparently, that's also the title of some book that neither I nor the blogger in question has ever heard of -- but the author's lawyers insisted that since the title is trademarked, the blogger needed to add the (R) symbol after his quote, and include a message claiming "This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission." The blogger, Leo Babauta, has decided not to give in, pointing out how ridiculous it is to "privatize the English language" this way:

I find it unbelievable that a common phrase (that was used way before it was the title of any book) can be trademarked. We're not talking about the names of products... we're talking about the English language. You know, the words many of us use for such things as ... talking, and writing, and general communication? Perhaps I'm a little behind the times, but is it really possible to claim whole chunks of the language, and force people to get permission to use the language, just in everyday speech?

Well, that's for the lawyers to figure out, but trademark law is only supposed to apply to use in commerce, and it seems like a stretch to claim the blog post is use in commerce (though, since the blog has ads, the lawyers might disagree). However, the fact that the use of the phrase seems to have absolutely nothing to do with the book again raises questions about how this could possibly be considered confusing or dilutive of the mark. Either way, Barbauta makes a point we've been trying to make here for a long, long time:

As an aside, I think the idea of jealously protecting copyright and trademarks, in this digital age, is outdated and ignorant. You want your ideas to spread, and you should encourage people to spread your ideas, not put up all kinds of boundaries and restrictions and obstacles to that being done. This blog, for example, is Uncopyrighted, and will always be free, because I want people to spread my posts and ideas. I think it's actually good for me as a writer, and it's (not insignificantly) better for the writing community in general if we can share each others' work freely. I'm hoping that with posts like this, and the good work of thousands of other like-minded people, the old mindset of fencing off ideas and language will slowly change.

Exactly.

Filed Under: language, trademark

Microsoft Parrots Google In Suggesting Tie-Up With Yahoo Violates Antitrust Laws

from the just-stay-quiet dept

Back in February, we pointed out that Google was playing with fire in suggesting that a Microsoft-Yahoo merger would violate antitrust laws. It seemed fairly obvious that those statements would come back to haunt Google -- a company many others have been accusing of antitrust violations. And, indeed, even with Microsoft still trying to buy Yahoo, Microsoft is now making nearly identical antitrust claims against Google concerning its ad deal with Yahoo. It's all legal posturing, of course, in an attempt to get the government to annoy a competitor. As Declan McCullagh points out at the link above, if either company really believes that the other was violating antitrust laws, it's perfectly free to file a private antitrust lawsuit. But, instead, both companies are playing a game in trying to get the government to be a pest for the other -- and now they get to use each other's scary monopoly language when tossing around accusations as well. So once again, might we suggest that both Microsoft and Google might be better off keeping their mouths zipped on anything involving antitrust violations from the other one?

Filed Under: antitrust, congressional oversight, language
Companies: google, microsoft, yahoo

W00t! I'm The Word Of The Year! Merriam-Webster Is Totally l337!

from the m3rr14m-w3b$73r dept

Back in 2001, the folks at the Oxford English Dictionary caused a little stir with they added Homer Simpson's "Doh!" to their dictionary of the English language. Merriam-Webster has upped the ante now by not only adding "w00t" to the dictionary, but choosing it as the 2007 word of the year. Last year, "truthiness" beat out "google" for the honor. When asked about the numerical characters in word, Merriam-Webster John Webster explained that this "is simply a different and more efficient way of representing the alphabetical character." Um, more efficient? Hardly -- w00t is from leet speak, and the orthographic substitutions of numbers for certain letters are intended to make more secure, yet easily remembered words for passwords. Is Merriam-Webster grasping for attention? With traffic on sites like urban dictionary catching up to Merriam-Webster, perhaps they wanted to curry favor with all of the l33t kids.

Filed Under: dictionary, language
Companies: merriam-webster