Well, that's not exactly surprising, since you seem to have no love for the First Amendment.
Those are uses of the phrase to point out that free speech isn't absolute.
No, they are not arguing that free speech isn't absolute. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as shouting 'Fire', so doesn't deserve to be called free speech at all."
The arguments are that government intervention on the human rights of free speech are justified, solely because that right interferes with "Situation X." Situation X being something that is chosen to push emotional buttons.
It is nothing other than an argument for censorship. It is presenting the case that censoring that speech is lawful censorship, thus "OK." (And, of course, nobody ever would believe that "this case" applies to other cases, which we hard-blooded censorship-loving Americans choose to support).
Also, if they were merely pointing out that free speech is not "absolute," there would be no controversy. That is not the argument that any of the quoted people are making. It is a straw man.
Quite obviously, those who bring this up, are almost certainly arguing for government censorship. Hopefully those people will at least learn to tell the truth.
Point me to a situation where that's happening and I'll take a look.
Or you could just, y'know, look at the stories that the article linked to.
There are several examples of the "Heckler's Veto:"
In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."
[...] "Innocence of Muslims," the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines. [...] While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. [...] But words don't have to urge people to commit violence in order to be subject to limits, says [Anthony] Lewis. "If the result is violence, and that violence was intended, then it meets the standard."
"There is obviously freedom of expression in this country. There is also a 100-year-old law by the United States Supreme Court which says you can't cry fire in a crowded theater," said [Christine] Amanpour. "So, now one has to figure out the extremists in this country and the extremists out there who are using this and whipping up hatred."
"What's happening here is deliberate provocation at a transitional time,' Amanpour continued. [...]
"We know there are limits to free speech, the classic being you can't yell fire in a movie theater," said [Amanpour's husband, James] Rubin. "So figuring out how hateful speech is treated by our government, so people around the world don't see, in an unsophisticated way, something coming out in America and thinking 'well the U.S. government could have stopped that' when we can't stop that."
Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on "GMA" that he's not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.
"Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told me. "Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?"
...or of charging speakers with "dangerous" speech because they're "smug:"
New York City Councilman Peter Vallone told BuzzFeed Tuesday that he's asked the Manhattan DA's office to look into charges against a Twitter user, Shashank Tripathi, who spread misinformation during Hurricane Sandy. [...]
"Everyone knows the example of yelling fire in a crowded movie theater," Vallone said. [...]
"I hope the fact that I'm asking for criminal charges to be seriously considered will make him much less comfortable and much less smug," Vallone said.
As for the First Amendment, the Supreme Court has held that its protections of free speech and freedom of the press are not a green light to abandon the protection of our vital national interests. Just as the First Amendment is not a license to yell "Fire!" in a crowded theater, it is also not a license to jeopardize national security.
Those are just the ones linked in the articles above. If you Google, you can find plenty of people who use that phrase to support censorship. In fact, if you look at any argument for censorship in America, and I'll bet that the person who argued for it has used that phrase as justification.
Explain to me how it's more of a license than a sale. Go ahead.
Mike focused on first sale rights, and that's fine, but it's also decisive given the business relationship between Apple and the labels.
Traditionally, a "sale" occurs when a vendor buys individual copies of a product for a one-time fee, then has the freedom to dispose of them however they like. A record store buys X number of copies of a CD, paying a wholesale rate on those copies. But once those copies are gone, the record store is sold out.
That's not what's happening with iTunes. Apple didn't buy X number of MP3's, and sell only those copies at retail. They don't have a warehouse full of MP3's sitting around somewhere.
What iTunes is doing is reproducing and distributing those MP3's. Reproduction and distribution have always been covered by licenses, not sales. The copyright holder grants a license to some other entity to reproduce and/or distribute the works, almost always in exchange for royalty payments on the copies. This is true whether it's a label licensing reproduction/distribution rights to iTunes, or an artist licensing reproduction/distribution rights to the label they sign with.
In fact, there is no reason at all to call it a sale rather than a license. The court in this case (and others) made the right call.
Re: Re: Re: Re: Re: Re: Re: Re: Re: OK, I lied - another comment
Google certainly felt it had a relationship with you - that's why it added your work for the CCIA to its list of disclosures. That relationship involved an intermediary, but it's still a relationship - that's why it was disclosed.
And, yes, CCIA has commissioned a study by my company (Floor64) which I co-authored. And that's, uh, public knowledge. Here's my post back in January announcing the Sky is Rising report, in which it says, upfront, that it was sponsored by CCIA.
Today, in Cannes, at the Midem conference, I did a presentation that was something of a follow up to the presentation I did here three years ago, about how Trent Reznor's experiments represented the future of music business models. This time, the presentation coincided with the release of a new research paper that we've spent the past few months working on, sponsored by CCIA and Engine Advocacy, in which we did a thorough look at the true state of the entertainment industry.
This does not even hint at the suggestion that Techdirt was "working for" the CCIA. Anyone who knows anything about sponsorship deals knows this.
But if it wasn't clear, here's Mike's take again:
I'm not sure how that has anything to do with Google. Google is a CCIA member, as are a bunch of other companies. And, honestly, if you'd asked me yesterday, I would have said that I thought Oracle was a CCIA member too, because it's an organization that represents a bunch of top tech companies, including Microsoft, eBay, Sprint, Facebook, AMD, Fujitsu, Dish Networks and more. However, it appears that Oracle is not a CCIA member, though I only learned this today from the filing, which also notes that Oracle and Sun used to be CCIA members. So, I'm not sure what any of that says about anything.
And, of course, if the point of this exercise is to uncover "shills" who are really speaking on behalf of companies without disclosing it, once again this argument falls down. My position on issues related to copyright and patents has been pretty damn consistent since before Google existed. And that continues up until today. I will regularly call out Google for patent and copyright behavior that I believe is bad. And that's because I say what I think. The editorial content of this site has never been for sale, nor will it ever be. Because the only way I survive in this business is with my reputation.
This is backed up by Google's filing:
In response to the Court's August 20, 2012 Order to Supplement (Dkt. 1238), Google again states that neither it nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case. Pursuant to the Court's clarifications in the Order to Supplement, the required disclosure does not include advertising revenue, disclosed experts, or gifts to universities. Id. at 1-2. It does, however, include (a) "all commenters known by Google to have received payments as consultants, contractors, vendors, or employees"; and (b) employee-commenters at organizations who receive money from Google. Id.
With that in mind, Google provides the following supplemental disclosure. [...]
II. EMPLOYEE-COMMENTERS AT ORGANIZATIONS WHO RECEIVE MONEY FROM GOOGLE
Besides the specific individuals listed below, Google is not aware of any other employee-commenters having commented on the litigation. Google did not pay for comments from any of these commenters.
A. Computer and Communications Industry Association
Oracle’s falsely suggests that Ed Black of the Computer and Communications Industry Association ("CCIA") was acting under the influence of Google money when he wrote a column stating the position that APIs are not copyrightable. Oracle and its counsel had to have known that CCIA’s position on APIs pre-dated Google’s membership in CCIA—and in fact predated Google’s incorporation in 1998. [...]
The CCIA has commissioned studies by Mike Masnick, CEO of Floor64. [...the rest is in the quote above]
The fact that Google uses "commissioned" rather than "sponsored," and "studies" rather than "study" (since the CCIA only sponsored the one study), shows that the connection to Google was so remote, that Google itself didn't know the nature of the relationship between the CCIA and Techdirt. It's also pretty clear that Google was erring on the side of caution, and listed everyone who had ever taken money from the CCIA for any reason and who had also blogged about the case. They did this because Oracle had falsely accused Google of paying for the opinion pieces from the CCIA specifically.
Also of note is that Techdirt had a closer "relationship" with Oracle than it did with Google. Mike again:
Separately, because all of this struck me as interesting, I remembered that we did some work with Oracle too! And, just as with what we did with CCIA, it was disclosed publicly at the time. Oracle (along with Intel) sponsored a section of our site, and a series of webinars that we did. And yet, Oracle did not disclose me in their original filing and I don't believe that they filed a new filing here either. Of course, as with CCIA, our relationship with Oracle did not include them having any say in editorial either.
The whole "Google shill" bullshit is brought up purely as a way to poison the well in any discussion about what Mike or Techdirt has to say. You're not the first one to do it, but you should know better, and you should be ashamed of yourself.
Techdirt has repeatedly asked readers whether they want to support companies whose actions they find objectionable.
There are a few differences here.
1. Mike has usually advocated for consumers not to buy products that are against the consumers' best interests, such as games with always-on DRM. He has not, to my knowledge, asked anyone to contact AdSense, and ask them to stop carrying Ubisoft ads.
2. Mike has not misrepresented what people say in order to get them to boycott anything. Look at what you tweeted. Techdirt does not "trash creators" in general, nor "advocate against their rights," but you informally called for a boycott of Techdirt's advertisers based on those misrepresentations.
Last, while some of what I've said about Mike has been impolite - and I'm not proud of my tone - Mike himself can be pretty rude to those who disagree with him.
Being rude is one thing. Misrepresenting his positions is another. Mike certainly can take a caustic tone, but he takes a caustic tone based on what you actually say. You don't do that.
Leaving aside Techdirt altogether, you've clearly and continuously misrepresented everyone in the "tech industry" and the free culture movement. Some choice quotes:
Google really brought out the Astroturf for those bills [SOPA and PIPA]. They really just whipped people into a frenzy about stuff that’s not in the bill. I don’t think that people who hate bills favor piracy. There are a lot of very smart people who make smart points about why bills are flawed or bad. At the same time, they have a lot of people whipped into frenzy about how this is end of free speech online, and a lot of those people are funded by Google -- and that’s bullshit.
When I was researching my book, I was shocked to find out that the same people who argued music and video should be free were getting money from Google.
The Internet community is always in a complete lather. They operate on one setting, hysterical. I've never seen them try to look at the issue from the other side.
This debate isn't about the consumer. It's about big money versus big money. Look who is going to Washington to object; it's all venture capitalists. They are wigged out about these bills. They want to preserve their right to build a business on someone else's back.
It's just you have [Harvard Law Professor] Lawrence Lessig out there saying that you should be able to do all this stuff for free and it's an affront to free speech.
There is this sense that so far all the books have been about giving it away for free and seeing what happens.
When you sign a record company deal, it's a contractual relationship. With websites you don't get to choose. They didn't ask your permission. You don't vote. They're making money on what you're doing without compensating you.
YouTube’s offer to the media business could be summarized, in geek terminology, as ‘all your video are belong to us’ – so you might as well take what we give you.
The obvious problem is this: How much can you trust a company that deliberately attempts to profit from the work of others without providing any compensation?
There 's more of this floating around the net. It's utterly bogus. Everything I've put in italics is simply not true, and misrepresents the opinions of everyone involved.
Admittedly, that's not nearly as bad as outright liars like the people on Trichordist, but it's still pretty bad.
The irony is that you and Mike agree with each other on many of the solutions to the problems of artists getting paid. So do you and Google, and you and Lessig. If you weren't so busy attacking them, and actually listened to what they say, you might actually realize that you have more in common with the "free riders" than you do with the media industry.
Re: Re: Re: Re: Re: Re: Re: It still looks like a right to me. . .
Really? These are examples of Levine arguing that Mike seeks to "destroy" artists' rights and harm his business?
I was referring to this quote by Mike:
I'd just like to note how absolutely hilarious this is, since you have -- repeatedly and maliciously -- misrepresented my own position on copyright, and argued directly that I and others seek to destroy artists' rights.
This quote, at least, is clearly true. Every one of Levine's quotes are misrepresentations of Mike's positions (with some personal attacks thrown in for good measure).
I have no idea about harming Mike's business, since I'm neither Mike, nor associated with his business. Still, if he's publicly asking people to boycott Techdirt's advertisers ("look at the advertisers that support Techdirt and think whether they deserve support"), then it would not surprise me to learn that he's been doing worse things outside of the public eye.
never let the truth get in the way of your propaganda...
The Trichordist is nothing but propaganda, and Chris Castle is one of their favorite propagandists.
None of the actual quotes in that article disprove (or even contradict) what was said in this one. This article, in fact, includes just about every quote that Castle used to make his point - robbed of any of the other passages that put those quotes into any kind of context.
But with Castle's version, you'll get lots of hate for Google, the EFF, and the Open Rights group, like "what bothers me the most about the massive, worldwide infringement of artist human rights is not just that major multinational corporations like Google are knee-deep in perpetuating this exploitation economy."
This is not "the truth." This is pure propaganda, driven by an anti-technology zealot.
Re: Re: Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway
My point is that if you start claiming that the Framers' intent supersedes the Constitution you can get away with murder.
I'm saying that if there is any doubt about what the Constitution says, you look to the intent of the people who wrote it. Courts do this all the time, by looking at the Congressional record if, say, a word in the statutes has more than one meaning, and a case depends on which meaning you choose.
It's pretty clear in this case that Clause 8 was written specifically to address post-publishing monopoly rights.
As Madison said, copyright has been adjudged to be a right of common law
Madison was likely talking about Millar v. Taylor, the English case that thought the Statute of Anne had removed artists' common-law copyrights. It was overturned in Donaldson v. Beckett. Why Madison said this is a subject of some controversy:
In light of the decision in Donaldson v. Beckett, Madison’s statement that copyright had been adjudged to be a common-law right is problematic. It has been suggested that Madison was relying on the first American edition of Blackstone’s Commentaries, which reported the decision in Millar v. Taylor, but not its subsequent overruling in Donaldson. It has also been suggested that Madison was relying on Burrow’s report of the Donaldson case, in which it was reported that the advisory judges were of the opinion that copyright was a common-law right, but one that had been divested by the Statute of Anne. It is also possible that Madison was referring only to the common-law right of first publication; or that he was simply trying to win the support of those who believed that copyright was a natural right. In any case, Madison later took the position that the English common law was deliberately not made applicable in the United States by the new Constitution. This seems to preclude any argument that Madison believed that the Clause was "securing" a pre-existing right.
For limited times is not at all at odds with the limited time of the author's natural lifespan.
Except it doesn't actually say "the author's natural lifespan," nor even suggest it, and none of the discussion around the Clause even mentions it.
No doubt the inheritors of the author's estate would appoint an executor to share out any writings found, perhaps influenced by an author's previously declared preferences.
Again, such a thing is not even mentioned by anyone involved with the Clause. Not just from when the Clause was created, but at any time in their entire lives.
They weren't discussing the Constitutional clause. They were angsting over the utility of monopolies.
No, they were "angsting" about the utility of one specific kind of monopoly - the post-publication monopoly on works, granted to authors and inventors, to act as an incentive to create useful works.
Jefferson was suggesting to Madison that he insert something into the Bill of Rights saying that monopolies may be granted to authors and inventors. Madison did not do so.
That is not at all the case. Jefferson (with George Mason and others) wanted something inserted into the Bill of Rights that said that the federal government could not grant monopolies under any circumstances. Jefferson and Madison were arguing because such an Amendment would conflict with the already-existing "copyright clause."
Bear in mind that if Madison had written the clause as "To grant to authors and inventors monopolies over the reproduction, communication and use of their work" then it would have been immediately struck out by other Framers.
Except that such language (or similar) was in the earlier drafts of the Clause, so the Framers certainly knew what was being discussed, and they didn't strike it out.
You're also ignoring the Continental Congress Resolution of 1783, authored by Hugh Williamson, Ralph Izard, and James Madison. Its preamble repeated almost verbatim the justifications of Joel Barlow, and most certainly was talking about a post-publication monopoly:
Resolved, that it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administrators and assigns, the copyright of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors, or publishers, their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper.
This recommendation was not "immediately struck out." In fact, it was a driving force behind the copyright laws in serveral states.
The Declaration and the Constitution expressed in form Paine’s theory of political rights.
This is unquestionably true. But that's not just what they did. And I think it's what is causing some of the confusion.
Remember, at the time, the rights granted to the Government in the Constitution were considered the only powers the Government would ever have. The Framers had a much narrower view of the Constitution and the federal government than we do in the modern day. They believed that if the government wasn't explicitly granted a power through the Constitution, then that power was disallowed. (See e.g. the debates about the First Amendment, specifically the arguments of those who thought it unnecessary.)
Protecting the natural rights of its citizenry is certainly an important part of the Constitution - in fact, that is paramount. But there are plenty of Clauses that were inserted, not for "natural rights" reasons, but for purely utilitarian reasons. The "copyright clause" should be read as one of those.
Nobody in their right mind thinks that the Constitution was protecting "natural rights" in e.g. Clause 7, "To establish Post Offices and post Roads;" or the latter part of Clause 5, to "fix the Standard of Weights and Measures." The "copyright clause" should be read the same way: as a purely utilitarian power of a functional government - not as the protection of any sort of "natural right."
Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway
I expect President Obama agrees with you that it is the intent of the Framers of the Constitution that should take priority over what the Constitution actually says (and means according to the language of the Framers).
NB The Framers didn't call it the 'the copyright clause', nor did they write anything about creating rights, but I will think on your suggestion that one can prove the Constitution empowered Congress to create rights such as copyright by inferring this as the Framers' intent.
No idea what Obama has to do with this, but whatever.
The "copyright clause" does not mention copyright, this much is true. However, an early proposal for Clause 8 did explicitly mention copyrights: "To secure to literary authors their copy rights for a limited time." Another explicitly mentioned patents.
Moreover, if the Clause was not meant to give Congress the right to grant post-publication monopolies, then how could it even possibly be read? "Congress shall have the Power, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their unpublished writings and discoveries?" That doesn't even make sense; it would mean that the right to unpublished works (which even the Supreme Court said was a natural right) could only be secured by Congress for "limited times," and that after that, everyone in the U.S. would have access to your unpublished works. Nobody believes this, with good reason.
>The Founders who wrote the Clause discussed it in terms
>of a monopoly.
No, I think you'll find the Framers didn't.
The Framers certainly did, and I linked to quotes from them that showed they did.
Yes, he certainly did write more than that. In the comment I linked to, I quoted Jefferson and Madison specifically talking about copyright. Here's the exchange:
The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.
- Thomas Jefferson to James Madison, July 31, 1788
With regard to monopolies they are justly classified among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments, than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many and not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.
- James Madison to Thomas Jefferson, October 17, 1788
Yes, quite a lot of people recognised copyright as a reproduction monopoly. However, we're talking about the Constitutional clause, not the monopoly of copyright granted much later.
All of the sources I quoted were from when the Continental Convention was still in session, or during the ratification debates. None were from after the Copyright Act of 1790 was enacted.
I agree with Paine that one should recognise an author's intellectual work as their natural property, and that law should recognise this. It's the privilege abridging the liberty of those to whom the author gives their property that is unethical.
A man's opinions, whether written or in thought, are his own until he pleases to publish them himself; and it is adding cruelty to injustice to make him the author of what future reflection or better information might occasion him to suppress or amend. There are declarations and sentiments in the Abbe's piece, which, for my own part, I did not expect to find, and such as himself, on a revisal, might have seen occasion to change, but the anticipated piracy effectually prevented him the opportunity, and precipitated him into difficulties, which, had it not been for such ungenerous fraud, might not have happened.
So, it appears Paine's "legal property" was the right of first publication, and something closer to the "droit d'auteur" in European law (i.e. the right to be free of inaccuracy). And not any sort of post-publication monopoly right.
Still, as I said, his particular viewpoint had nothing to do with the "copyright clause." He wasn't at the Convention, did not have a hand in writing it, and never commented on it.
This is not to say that Paine's viewpoints were not important - they certainly were. Just not in regards to Article 1, Section 8, Clause 8.
After you read the article, read Levine's comments there. You'll find plenty of attacks on Techdirt ("Nearly everything Techdirt says is wrong. They misstate facts, misuse statistics, and misunderstand laws").
His comments also show that Techdirt did not misrepresent his position: "Just as you have a right to free speech and privacy (at least in Europe), I have a right to be paid for my work (worldwide and in the Universal Declaration of Human Rights, Article 27)".
...Or, how about these gems from Levine's Twitter feed?
Mikey loves to trash creators and their representatives but he has a widdle tantrum when you criticize him. Typical of bullies.
Mike Masnick at Techdirt just HATES it when creators hit back. Apparently he's allowed to advocate against your rights...
...but you're not allowed to hit back. Creators, look at the advertisers that support Techdirt and think whether they deserve support...
Techdirt, which specializes in sputtering outrage against creators who assert their rights, has decided that it wants a market for everything except creative work. [Here.]
From this, some intelligent people conclude, Thingz shud be free on teh Interwebz. [From "Thingz" to "Interwebz" is a link to Techdirt. Here.]
I'm sure there's more, but it's pretty clear that Levine has, repeatedly, misrepresented Techdirt's position, while Techdirt has not misrepresented his.
No, it is not. Copyright is a monopoly right arising from statute. It is a government-created barrier to free trade, which is exactly what mercantilism is.
The point is that private property creates the underlying rights needed for investment and competition - and then the marketplace does its ruthless work.
That is not why private property exists - not economically, not politically. Property exists because it is the most efficient way to allocate scarce resources; private property exists as a necessity to utilize that property. (You can't eat an apple without that apple being private property.)
But this is not what copyright is. It does not allow you to utilize the works you author; you would have that right without copyright. The only thing copyright does is take away the ability of everyone else to utilize the works you author. It is not done for the allocation of scarce resources, because expressing an idea is not a scarce resource.
If there was a free market, i.e. one with perfect competition, the government would have no regulations preventing the trade of the works you author. You would still have the right to put the works you author into the market, but competitors would also have the right to put the works you author into the market. The market would then decide which version of the works you author is the more valuable, and supply and demand would do "its ruthless work."
Copyright is a government imposition on the free market. It grants copyright holders the right to have a monopoly on their works. It is no more part of a "free market" than any other form of price control.
It's telling that the solution proferred to life without copyrighted is a compulsory license or government funding and THAT is mercantilism.
No, it's not mercantilism, because there is no monopoly, and no barrier to free trade. You obviously don't know what "mercantilism" means. Hint: it is not the same as "government funding."
the natural right of a human being, even an artist, to decide how his or her work should be exploited by the world.
That is not a "natural right." It has never been considered a natural right, even in those countries where "droit d'auteur" ("moral rights") are endorsed. In the U.S., your "natural right" to the works you author end at publication. In the countries where "moral rights" are accepted, those "moral rights" are distinct from "economic exploitation" rights. They only include such things as attribution and right of first publication - things which have absolutely nothing to do with piracy, commercial or otherwise.
Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing.
Theft of a car has to do with removing my use of the car altogether. It is only "exclusive" because a car is a scarce resource (a rivalrous good), and cannot be utilized by more than one person at a time. Stealing my car is not illegal because you get a free car; it's illegal because I don't have it any more.
It is theft because it removes my possession of the car, not because it's "taking my exclusive right to use and sell my car." As someone else pointed out, that would mean that the government is committing "auto theft" when my driver's license expires, because it is "taking my exclusive right to use" that car.
That's absurd, of course. Just as absurd as claiming copyright infringement is theft.
Re: Re: Re: Congress has no power to grant copyright anyway
Crosby, your views are provably false. You may personally think the Constitution did not allow Congress to create post-publication monopoly rights, but that was clearly the intent of the Founders and the Copyright Clause.
The Founders who wrote the Clause discussed it in terms of a monopoly. From what survives from the newspapers of the period, everyone in the Colonies also viewed it as a monopoly. I wrote a couple of posts about it; here's one that quotes the Founders, and here's one that quotes others from the contemporary public discussion around the Clause.
It's also unfortunate (for your argument) that you quote Paine, because Paine believed that copyright was a natural property right, not just a monopoly: "It may, with propriety, be remarked, that in all countries where literature is protected (and it cannot flourish where it is not), the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them at birth." He was in the minority among the Founders, and had nothing at all to do with the Copyright Clause, but it's what he believed.
Re: Re: Re: It still looks like a right to me. . .
I certainly meant to link it, since I think that's fair. (They're not equivalent but I do think they're linked.) I didn't mean to use the latter as an inarguable justification of the former. My point - which you can disagree with, but I think it's reasonable - is there's a recognition that creators have a human right to their creations.
The "moral rights" that are talked about in the U.N. document, like the "droit d'auteur" aspects of copyright that are enshrined in law in many European countries, are not economic rights. They protect things like attribution, the right to integrity of the work, and the right of "refusal" (e.g. the right to be credited as Allan Smithee). They are there to protect against things like plagiarism, which is not copyright infringement; they are the equivalent of CC-BY (and the reason CC-BY is the loosest CC license that is legal in many countries). Those rights cannot be sold or transferred, even voluntarily, and most end with the author's death.
They are not included in U.S. copyright, except for the very limited provisions in 17 USC 106A. They are, instead, covered by things like libel and slander laws. In countries where moral rights are recognized, they are considered distinct from the "economic exploitation" rights granted by copyright; in about half of those countries, they even have different term lengths. They don't belong in any discussion of statutory royalties, or performing rights organizations, or the business models of media or technology companies.
So, and this is important, unlawful copying does not infringe on those rights. If I reproduce and distribute an album by the Rolling Stones, I am not suddenly claiming that it is authored by someone other than the Rolling Stones. I may or may not be infringing on their economic exploitation rights, that arise solely from a specific nation's laws. But I am not violating anyone's universal human rights. As a matter of fact, in some countries where moral rights are recognized (such as Spain's "Derecho moral"), non-commercial copying is entirely legal.
In other words, the "human right to their creations" that authors enjoy, has absolutely nothing to do with piracy. Those rights cannot justify antipiracy measures; they cannot justify domain seizures; they were not being protected by SOPA or PIPA.
The human rights of authors do not belong in any discussion about piracy. Trying to "link" the two is not "fair," it is wrong-headed.
To me, my natural right to my creative work is similar to my natural right to my labor.
I'm sure you know this, but the U.S. has explicitly rejected the "sweat of the brow" argument for copyright, just as it rejected the view that copyright is a natural property right. In the words of Justice McLean in Wheaton v. Peters:
That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by improperly obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.
The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product by the transfer of his manuscripts or in the sale of his works when first published.
Whatever "natural right" an author has to the products of his creative labor, it ends at publication.
Anyway, all very interesting stuff, and it's nice to have a smart, friendly conversation about this. You should check out the book I linked to, as it offers a balanced look at all of this.
It is; and I will, as soon as I can afford a copy.
Re: Re: Re: Re: You're just plain wrong: moral ownership IS the basis.
Ignore the One Ring in The Hobbit
In fact, the One Ring seems to be modeled after the Ring of Gyges, the "ring of invisibility" that is used in Plato's Republic to discuss (and possibly satirize) morality.
Others have said Tolkien got his inspiration from the Ring of the Nibelung, Wagner's epic opera, though Tolkien himself denied it.
Simply calling it a "retransmission" is begging the question, frankly. It's like calling the wire from your antenna to your TV a "retransmission."
I personally do not buy Hart's made-up idea of the "missing link." It is very hard for me to believe that the court in Prime Time (a case about transmitting the same program, which was not free over-the-air, to multiple subscribers in Canada) ever intended the the "transmission" from a private antenna to a private receiver to be "a step in the process by which [a] protected work wends its way to a public audience." You might as well call the "retransmission" from my computer to my monitor a "public performance." It doesn't pass the sniff test (like most of Hart's legal analysis).
The language of "public performance" statute seems to support Aero: "To perform or display a work 'publicly' means [...] to transmit or otherwise communicate a performance or display of the work [...] to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
The plural, "members," means that the sentence should be read "in the same place or in separate places as each other and at the same time or at different times as each other."
In other words, to perform a work "publicly," the "device or process" must transmit a single performance in a way that multiple members of the public can receive it. Just like every normal person in the English-speaking world thinks, when they hear the word "public performance."
BTW, your free speech rights don't extend to my private property. You don't have fair use of my pool.
Yet another reason that copyright is not like most private property rights.
If you want to make a "property" comparison, copyright would be closer to privately-owned property that is open to the general public. (It is not, but that is the closest real-property comparison.)
And in that case, my free speech rights can extend to your private property. Historically, it did; see Marsh v. Alabama (1946). Since then, First Amendment rights have contracted, and now the Federal government has no obligation to protect free speech rights on privately-held public forums. See Hudgens v. NLRB.
State laws, however, may (and often do) protect free speech rights, above and beyond the First Amendment. And some states do, in fact, have limited protection of free speech rights in privately-owned public spaces. See e.g. Robbins v. Pruneyard Shopping Center (California; upheld by the U.S. Supreme Court in Pruneyard Shopping Center v. Robbins), New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp. (New Jersey), or Block v. Westminster Mall Company (Colorado).
So, my free speech rights might extend to your private property.
He supports the rights to free speech and due process of everyone, "pirate sites" or not.
he supports the people who ignore copyright,
He supports artists who make money without relying on copyright, because he supports artists making money, and relying on copyright to make money is usually a bad business decision. He also supports artists being able to create their art freely, without being sued or silenced by rightsholders.
he is against any legal action against these sites,
He has never, ever said this. He is against taking legal action against these sites when there is collateral damage to other people and other sites that are not pirates.
he comes up with (already killed in court) first amendment arguments to support them,
He does not "come up with" those arguments, and they were never "killed in court." For example, just because a First Amendment challenge to copyright extension was rejected, does not mean that ex parte seizures of domain names can survive a First Amendment challenge. Such a challenge has not been allowed to be made, and with the dropping of charges against Puerto 80, it might never be made.
In any case, "the court" is not the source of free speech rights; it is entirely possible that the court (even the Supreme Court) can get it wrong. We should then do whatever is appropriate for citizens to do when faced with government encroachments of our rights. It doesn't matter if "piracy" is involved or not.
encourages people to both use the infrastructure created by piracy as well as to profit from piracy...
He has never, once, encouraged people to "profit from piracy." He has encouraged artists to use file sharing infrastructures legally, to promote themselves and/or earn money. That is not piracy. That is authorized distribution.
In any case, if rightsholders do end up profiting from the "piracy" of their own works... well, what's wrong with that? Why is it worse than fighting a costly, and losing, battle that will ultimately end with the rightsholders losing money and alienating their customer base? Finding a way to deal with piracy that earns rightsholders money is not "supporting piracy."
but doesn't support piracy?
Yep. You can believe all of the above, and still not support piracy. Most people do exactly that. This is something you can't seem to comprehend.
On the post: Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'
Re: Re: Re: Re: Re:
Well, that's not exactly surprising, since you seem to have no love for the First Amendment.
Those are uses of the phrase to point out that free speech isn't absolute.
No, they are not arguing that free speech isn't absolute. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as shouting 'Fire', so doesn't deserve to be called free speech at all."
The arguments are that government intervention on the human rights of free speech are justified, solely because that right interferes with "Situation X." Situation X being something that is chosen to push emotional buttons.
It is nothing other than an argument for censorship. It is presenting the case that censoring that speech is lawful censorship, thus "OK." (And, of course, nobody ever would believe that "this case" applies to other cases, which we hard-blooded censorship-loving Americans choose to support).
Also, if they were merely pointing out that free speech is not "absolute," there would be no controversy. That is not the argument that any of the quoted people are making. It is a straw man.
Quite obviously, those who bring this up, are almost certainly arguing for government censorship. Hopefully those people will at least learn to tell the truth.
On the post: Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'
Re: Re: Re:
Or you could just, y'know, look at the stories that the article linked to.
There are several examples of the "Heckler's Veto:"
- Does 'Innocence of Muslims' meet the free-speech test?
- Christiane Amanpour Implies 'Extremists In This Country' Inspired Murderous Riots In N. Africa
- Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?'
...or of charging speakers with "dangerous" speech because they're "smug:"
- Councilman Pushes For Charges Against Twitter User Who Spread Falsehoods
...or of overturning the Pentagon Papers case:
- Dianne Feinstein: Prosecute Assange Under the Espionage Act
These are flat-out arguments for censorship.
Those are just the ones linked in the articles above. If you Google, you can find plenty of people who use that phrase to support censorship. In fact, if you look at any argument for censorship in America, and I'll bet that the person who argued for it has used that phrase as justification.
On the post: Universal Music Settles Key Fight Over Eminem Royalties... With Secret Agreement
Re:
Mike focused on first sale rights, and that's fine, but it's also decisive given the business relationship between Apple and the labels.
Traditionally, a "sale" occurs when a vendor buys individual copies of a product for a one-time fee, then has the freedom to dispose of them however they like. A record store buys X number of copies of a CD, paying a wholesale rate on those copies. But once those copies are gone, the record store is sold out.
That's not what's happening with iTunes. Apple didn't buy X number of MP3's, and sell only those copies at retail. They don't have a warehouse full of MP3's sitting around somewhere.
What iTunes is doing is reproducing and distributing those MP3's. Reproduction and distribution have always been covered by licenses, not sales. The copyright holder grants a license to some other entity to reproduce and/or distribute the works, almost always in exchange for royalty payments on the copies. This is true whether it's a label licensing reproduction/distribution rights to iTunes, or an artist licensing reproduction/distribution rights to the label they sign with.
In fact, there is no reason at all to call it a sale rather than a license. The court in this case (and others) made the right call.
On the post: Anti-Pornography Guy Politicizes 10 Year Old Girl's Murder
Re: They can take my pr0n when . . .
On the post: No, Copyright Is Not A Human Right
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: OK, I lied - another comment
http://www.techdirt.com/articles/20120824/12563220150/apparently-im-google-shill-i-didnt-even- know-it.shtml
On the post: No, Copyright Is Not A Human Right
Re: Re: Re: Re: Re: Re: Re: Re: Re: OK, I lied - another comment
Good Lord, this again?
For the curious, here's Mike's sarcastically-titled post about the subject: Apparently I'm A Google Shill And I Didn't Even Know It. Here's the passage you're referring to:
Mike was clearly using "commissioned" only because the Google report used that word, and he used it as a synonym for "sponsored." Here's the language from Mike's announcement of the study, The Sky Is Rising: The Entertainment Industry Is Large & Growing... Not Shrinking:
This does not even hint at the suggestion that Techdirt was "working for" the CCIA. Anyone who knows anything about sponsorship deals knows this.
But if it wasn't clear, here's Mike's take again:
This is backed up by Google's filing:
The fact that Google uses "commissioned" rather than "sponsored," and "studies" rather than "study" (since the CCIA only sponsored the one study), shows that the connection to Google was so remote, that Google itself didn't know the nature of the relationship between the CCIA and Techdirt. It's also pretty clear that Google was erring on the side of caution, and listed everyone who had ever taken money from the CCIA for any reason and who had also blogged about the case. They did this because Oracle had falsely accused Google of paying for the opinion pieces from the CCIA specifically.
Also of note is that Techdirt had a closer "relationship" with Oracle than it did with Google. Mike again:
The whole "Google shill" bullshit is brought up purely as a way to poison the well in any discussion about what Mike or Techdirt has to say. You're not the first one to do it, but you should know better, and you should be ashamed of yourself.
On the post: No, Copyright Is Not A Human Right
Re: OK, I lied - another comment
There are a few differences here.
1. Mike has usually advocated for consumers not to buy products that are against the consumers' best interests, such as games with always-on DRM. He has not, to my knowledge, asked anyone to contact AdSense, and ask them to stop carrying Ubisoft ads.
2. Mike has not misrepresented what people say in order to get them to boycott anything. Look at what you tweeted. Techdirt does not "trash creators" in general, nor "advocate against their rights," but you informally called for a boycott of Techdirt's advertisers based on those misrepresentations.
Last, while some of what I've said about Mike has been impolite - and I'm not proud of my tone - Mike himself can be pretty rude to those who disagree with him.
Being rude is one thing. Misrepresenting his positions is another. Mike certainly can take a caustic tone, but he takes a caustic tone based on what you actually say. You don't do that.
Leaving aside Techdirt altogether, you've clearly and continuously misrepresented everyone in the "tech industry" and the free culture movement. Some choice quotes:
- http://www.reuters.com/article/2011/12/18/idUS411011457520111218
- http://www.adweek.com/news/technology/internet-community-always-complete-lather-136310
- http://www.spin.com/articles/qa-free-ride-author-rob-levine-why-free-downloading-actually-costly
- http://freeridethebook.wordpress.com/2012/01/06/to-live-outside-the-law-you-must-be-honest/
There 's more of this floating around the net. It's utterly bogus. Everything I've put in italics is simply not true, and misrepresents the opinions of everyone involved.
Admittedly, that's not nearly as bad as outright liars like the people on Trichordist, but it's still pretty bad.
The irony is that you and Mike agree with each other on many of the solutions to the problems of artists getting paid. So do you and Google, and you and Lessig. If you weren't so busy attacking them, and actually listened to what they say, you might actually realize that you have more in common with the "free riders" than you do with the media industry.
On the post: No, Copyright Is Not A Human Right
Re: Two last comment
And nobody - not Techdirt, not Lessig, not the ORG, not Google, nobody - has ever said otherwise.
On the post: No, Copyright Is Not A Human Right
Re: Re: Re: Re: Re: Re: Re: It still looks like a right to me. . .
I was referring to this quote by Mike:
I'd just like to note how absolutely hilarious this is, since you have -- repeatedly and maliciously -- misrepresented my own position on copyright, and argued directly that I and others seek to destroy artists' rights.
This quote, at least, is clearly true. Every one of Levine's quotes are misrepresentations of Mike's positions (with some personal attacks thrown in for good measure).
I have no idea about harming Mike's business, since I'm neither Mike, nor associated with his business. Still, if he's publicly asking people to boycott Techdirt's advertisers ("look at the advertisers that support Techdirt and think whether they deserve support"), then it would not surprise me to learn that he's been doing worse things outside of the public eye.
On the post: No, Copyright Is Not A Human Right
Re: Re: Idiots...
The Trichordist is nothing but propaganda, and Chris Castle is one of their favorite propagandists.
None of the actual quotes in that article disprove (or even contradict) what was said in this one. This article, in fact, includes just about every quote that Castle used to make his point - robbed of any of the other passages that put those quotes into any kind of context.
But with Castle's version, you'll get lots of hate for Google, the EFF, and the Open Rights group, like "what bothers me the most about the massive, worldwide infringement of artist human rights is not just that major multinational corporations like Google are knee-deep in perpetuating this exploitation economy."
This is not "the truth." This is pure propaganda, driven by an anti-technology zealot.
Just like everything else on Trichordist.
On the post: Copyright: The New Mercantilism
Re: Re: Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway
I'm saying that if there is any doubt about what the Constitution says, you look to the intent of the people who wrote it. Courts do this all the time, by looking at the Congressional record if, say, a word in the statutes has more than one meaning, and a case depends on which meaning you choose.
It's pretty clear in this case that Clause 8 was written specifically to address post-publishing monopoly rights.
As Madison said, copyright has been adjudged to be a right of common law
Madison was likely talking about Millar v. Taylor, the English case that thought the Statute of Anne had removed artists' common-law copyrights. It was overturned in Donaldson v. Beckett. Why Madison said this is a subject of some controversy:
For limited times is not at all at odds with the limited time of the author's natural lifespan.
Except it doesn't actually say "the author's natural lifespan," nor even suggest it, and none of the discussion around the Clause even mentions it.
No doubt the inheritors of the author's estate would appoint an executor to share out any writings found, perhaps influenced by an author's previously declared preferences.
Again, such a thing is not even mentioned by anyone involved with the Clause. Not just from when the Clause was created, but at any time in their entire lives.
They weren't discussing the Constitutional clause. They were angsting over the utility of monopolies.
No, they were "angsting" about the utility of one specific kind of monopoly - the post-publication monopoly on works, granted to authors and inventors, to act as an incentive to create useful works.
Jefferson was suggesting to Madison that he insert something into the Bill of Rights saying that monopolies may be granted to authors and inventors. Madison did not do so.
That is not at all the case. Jefferson (with George Mason and others) wanted something inserted into the Bill of Rights that said that the federal government could not grant monopolies under any circumstances. Jefferson and Madison were arguing because such an Amendment would conflict with the already-existing "copyright clause."
Bear in mind that if Madison had written the clause as "To grant to authors and inventors monopolies over the reproduction, communication and use of their work" then it would have been immediately struck out by other Framers.
Except that such language (or similar) was in the earlier drafts of the Clause, so the Framers certainly knew what was being discussed, and they didn't strike it out.
You're also ignoring the Continental Congress Resolution of 1783, authored by Hugh Williamson, Ralph Izard, and James Madison. Its preamble repeated almost verbatim the justifications of Joel Barlow, and most certainly was talking about a post-publication monopoly:
This recommendation was not "immediately struck out." In fact, it was a driving force behind the copyright laws in serveral states.
The Declaration and the Constitution expressed in form Paine’s theory of political rights.
This is unquestionably true. But that's not just what they did. And I think it's what is causing some of the confusion.
Remember, at the time, the rights granted to the Government in the Constitution were considered the only powers the Government would ever have. The Framers had a much narrower view of the Constitution and the federal government than we do in the modern day. They believed that if the government wasn't explicitly granted a power through the Constitution, then that power was disallowed. (See e.g. the debates about the First Amendment, specifically the arguments of those who thought it unnecessary.)
Protecting the natural rights of its citizenry is certainly an important part of the Constitution - in fact, that is paramount. But there are plenty of Clauses that were inserted, not for "natural rights" reasons, but for purely utilitarian reasons. The "copyright clause" should be read as one of those.
Nobody in their right mind thinks that the Constitution was protecting "natural rights" in e.g. Clause 7, "To establish Post Offices and post Roads;" or the latter part of Clause 5, to "fix the Standard of Weights and Measures." The "copyright clause" should be read the same way: as a purely utilitarian power of a functional government - not as the protection of any sort of "natural right."
On the post: Copyright: The New Mercantilism
Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway
NB The Framers didn't call it the 'the copyright clause', nor did they write anything about creating rights, but I will think on your suggestion that one can prove the Constitution empowered Congress to create rights such as copyright by inferring this as the Framers' intent.
No idea what Obama has to do with this, but whatever.
The "copyright clause" does not mention copyright, this much is true. However, an early proposal for Clause 8 did explicitly mention copyrights: "To secure to literary authors their copy rights for a limited time." Another explicitly mentioned patents.
Moreover, if the Clause was not meant to give Congress the right to grant post-publication monopolies, then how could it even possibly be read? "Congress shall have the Power, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their unpublished writings and discoveries?" That doesn't even make sense; it would mean that the right to unpublished works (which even the Supreme Court said was a natural right) could only be secured by Congress for "limited times," and that after that, everyone in the U.S. would have access to your unpublished works. Nobody believes this, with good reason.
>The Founders who wrote the Clause discussed it in terms
>of a monopoly.
No, I think you'll find the Framers didn't.
The Framers certainly did, and I linked to quotes from them that showed they did.
Madison didn't do much more discussion of the clause than this:
http://www.constitution.org/fed/federa43.htm
Yes, he certainly did write more than that. In the comment I linked to, I quoted Jefferson and Madison specifically talking about copyright. Here's the exchange:
Yes, quite a lot of people recognised copyright as a reproduction monopoly. However, we're talking about the Constitutional clause, not the monopoly of copyright granted much later.
All of the sources I quoted were from when the Continental Convention was still in session, or during the ratification debates. None were from after the Copyright Act of 1790 was enacted.
I agree with Paine that one should recognise an author's intellectual work as their natural property, and that law should recognise this. It's the privilege abridging the liberty of those to whom the author gives their property that is unethical.
Hmm. You might be right about this, actually. Here's the letter from Paine to the Abbe Raynal in full. This is what Paine believed the "legal property" of authors to be:
So, it appears Paine's "legal property" was the right of first publication, and something closer to the "droit d'auteur" in European law (i.e. the right to be free of inaccuracy). And not any sort of post-publication monopoly right.
Still, as I said, his particular viewpoint had nothing to do with the "copyright clause." He wasn't at the Convention, did not have a hand in writing it, and never commented on it.
This is not to say that Paine's viewpoints were not important - they certainly were. Just not in regards to Article 1, Section 8, Clause 8.
On the post: No, Copyright Is Not A Human Right
Re: Re: Re: Re: Re: It still looks like a right to me. . .
Within five minutes of Googling, I found this article on Future Of Copyright:
http://www.futureofcopyright.com/home/blog-post/2011/10/14/interview-with-robert-levine- on-the-current-free-ride-culture-on-the-interne.html
After you read the article, read Levine's comments there. You'll find plenty of attacks on Techdirt ("Nearly everything Techdirt says is wrong. They misstate facts, misuse statistics, and misunderstand laws").
His comments also show that Techdirt did not misrepresent his position: "Just as you have a right to free speech and privacy (at least in Europe), I have a right to be paid for my work (worldwide and in the Universal Declaration of Human Rights, Article 27)".
...Or, how about these gems from Levine's Twitter feed?
Or, perhaps you should just do a search on Levine's website promoting his book:
I'm sure there's more, but it's pretty clear that Levine has, repeatedly, misrepresented Techdirt's position, while Techdirt has not misrepresented his.
On the post: Copyright: The New Mercantilism
Re:
No, it is not. Copyright is a monopoly right arising from statute. It is a government-created barrier to free trade, which is exactly what mercantilism is.
The point is that private property creates the underlying rights needed for investment and competition - and then the marketplace does its ruthless work.
That is not why private property exists - not economically, not politically. Property exists because it is the most efficient way to allocate scarce resources; private property exists as a necessity to utilize that property. (You can't eat an apple without that apple being private property.)
But this is not what copyright is. It does not allow you to utilize the works you author; you would have that right without copyright. The only thing copyright does is take away the ability of everyone else to utilize the works you author. It is not done for the allocation of scarce resources, because expressing an idea is not a scarce resource.
If there was a free market, i.e. one with perfect competition, the government would have no regulations preventing the trade of the works you author. You would still have the right to put the works you author into the market, but competitors would also have the right to put the works you author into the market. The market would then decide which version of the works you author is the more valuable, and supply and demand would do "its ruthless work."
Copyright is a government imposition on the free market. It grants copyright holders the right to have a monopoly on their works. It is no more part of a "free market" than any other form of price control.
It's telling that the solution proferred to life without copyrighted is a compulsory license or government funding and THAT is mercantilism.
No, it's not mercantilism, because there is no monopoly, and no barrier to free trade. You obviously don't know what "mercantilism" means. Hint: it is not the same as "government funding."
the natural right of a human being, even an artist, to decide how his or her work should be exploited by the world.
That is not a "natural right." It has never been considered a natural right, even in those countries where "droit d'auteur" ("moral rights") are endorsed. In the U.S., your "natural right" to the works you author end at publication. In the countries where "moral rights" are accepted, those "moral rights" are distinct from "economic exploitation" rights. They only include such things as attribution and right of first publication - things which have absolutely nothing to do with piracy, commercial or otherwise.
Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing.
Theft of a car has to do with removing my use of the car altogether. It is only "exclusive" because a car is a scarce resource (a rivalrous good), and cannot be utilized by more than one person at a time. Stealing my car is not illegal because you get a free car; it's illegal because I don't have it any more.
It is theft because it removes my possession of the car, not because it's "taking my exclusive right to use and sell my car." As someone else pointed out, that would mean that the government is committing "auto theft" when my driver's license expires, because it is "taking my exclusive right to use" that car.
That's absurd, of course. Just as absurd as claiming copyright infringement is theft.
On the post: Copyright: The New Mercantilism
Re: Re: Re: Congress has no power to grant copyright anyway
The Founders who wrote the Clause discussed it in terms of a monopoly. From what survives from the newspapers of the period, everyone in the Colonies also viewed it as a monopoly. I wrote a couple of posts about it; here's one that quotes the Founders, and here's one that quotes others from the contemporary public discussion around the Clause.
It's also unfortunate (for your argument) that you quote Paine, because Paine believed that copyright was a natural property right, not just a monopoly: "It may, with propriety, be remarked, that in all countries where literature is protected (and it cannot flourish where it is not), the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them at birth." He was in the minority among the Founders, and had nothing at all to do with the Copyright Clause, but it's what he believed.
If you're curious, here's a link to my take on the "ethics" of copyright. It goes into why I agree with the majority of the Founders, and that copyright should not be considered some sort of Lockean property right.
On the post: No, Copyright Is Not A Human Right
Re: Re: Re: It still looks like a right to me. . .
The "moral rights" that are talked about in the U.N. document, like the "droit d'auteur" aspects of copyright that are enshrined in law in many European countries, are not economic rights. They protect things like attribution, the right to integrity of the work, and the right of "refusal" (e.g. the right to be credited as Allan Smithee). They are there to protect against things like plagiarism, which is not copyright infringement; they are the equivalent of CC-BY (and the reason CC-BY is the loosest CC license that is legal in many countries). Those rights cannot be sold or transferred, even voluntarily, and most end with the author's death.
They are not included in U.S. copyright, except for the very limited provisions in 17 USC 106A. They are, instead, covered by things like libel and slander laws. In countries where moral rights are recognized, they are considered distinct from the "economic exploitation" rights granted by copyright; in about half of those countries, they even have different term lengths. They don't belong in any discussion of statutory royalties, or performing rights organizations, or the business models of media or technology companies.
So, and this is important, unlawful copying does not infringe on those rights. If I reproduce and distribute an album by the Rolling Stones, I am not suddenly claiming that it is authored by someone other than the Rolling Stones. I may or may not be infringing on their economic exploitation rights, that arise solely from a specific nation's laws. But I am not violating anyone's universal human rights. As a matter of fact, in some countries where moral rights are recognized (such as Spain's "Derecho moral"), non-commercial copying is entirely legal.
In other words, the "human right to their creations" that authors enjoy, has absolutely nothing to do with piracy. Those rights cannot justify antipiracy measures; they cannot justify domain seizures; they were not being protected by SOPA or PIPA.
The human rights of authors do not belong in any discussion about piracy. Trying to "link" the two is not "fair," it is wrong-headed.
To me, my natural right to my creative work is similar to my natural right to my labor.
I'm sure you know this, but the U.S. has explicitly rejected the "sweat of the brow" argument for copyright, just as it rejected the view that copyright is a natural property right. In the words of Justice McLean in Wheaton v. Peters:
Whatever "natural right" an author has to the products of his creative labor, it ends at publication.
Anyway, all very interesting stuff, and it's nice to have a smart, friendly conversation about this. You should check out the book I linked to, as it offers a balanced look at all of this.
It is; and I will, as soon as I can afford a copy.
On the post: No, Copyright Is Not A Human Right
Re: Re: Re: Re: You're just plain wrong: moral ownership IS the basis.
In fact, the One Ring seems to be modeled after the Ring of Gyges, the "ring of invisibility" that is used in Plato's Republic to discuss (and possibly satirize) morality.
Others have said Tolkien got his inspiration from the Ring of the Nibelung, Wagner's epic opera, though Tolkien himself denied it.
On the post: Aereo: Has No One Noticed It's Insane That We're Being Accused Of Infringing BECAUSE We Carefully Followed The Cablevision Precedent?
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Simply calling it a "retransmission" is begging the question, frankly. It's like calling the wire from your antenna to your TV a "retransmission."
I personally do not buy Hart's made-up idea of the "missing link." It is very hard for me to believe that the court in Prime Time (a case about transmitting the same program, which was not free over-the-air, to multiple subscribers in Canada) ever intended the the "transmission" from a private antenna to a private receiver to be "a step in the process by which [a] protected work wends its way to a public audience." You might as well call the "retransmission" from my computer to my monitor a "public performance." It doesn't pass the sniff test (like most of Hart's legal analysis).
The language of "public performance" statute seems to support Aero: "To perform or display a work 'publicly' means [...] to transmit or otherwise communicate a performance or display of the work [...] to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
The plural, "members," means that the sentence should be read "in the same place or in separate places as each other and at the same time or at different times as each other."
In other words, to perform a work "publicly," the "device or process" must transmit a single performance in a way that multiple members of the public can receive it. Just like every normal person in the English-speaking world thinks, when they hear the word "public performance."
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Yet another reason that copyright is not like most private property rights.
If you want to make a "property" comparison, copyright would be closer to privately-owned property that is open to the general public. (It is not, but that is the closest real-property comparison.)
And in that case, my free speech rights can extend to your private property. Historically, it did; see Marsh v. Alabama (1946). Since then, First Amendment rights have contracted, and now the Federal government has no obligation to protect free speech rights on privately-held public forums. See Hudgens v. NLRB.
State laws, however, may (and often do) protect free speech rights, above and beyond the First Amendment. And some states do, in fact, have limited protection of free speech rights in privately-owned public spaces. See e.g. Robbins v. Pruneyard Shopping Center (California; upheld by the U.S. Supreme Court in Pruneyard Shopping Center v. Robbins), New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp. (New Jersey), or Block v. Westminster Mall Company (Colorado).
So, my free speech rights might extend to your private property.
Just FYI.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Example, he supports the rights of pirate sites,
He supports the rights to free speech and due process of everyone, "pirate sites" or not.
he supports the people who ignore copyright,
He supports artists who make money without relying on copyright, because he supports artists making money, and relying on copyright to make money is usually a bad business decision. He also supports artists being able to create their art freely, without being sued or silenced by rightsholders.
he is against any legal action against these sites,
He has never, ever said this. He is against taking legal action against these sites when there is collateral damage to other people and other sites that are not pirates.
he comes up with (already killed in court) first amendment arguments to support them,
He does not "come up with" those arguments, and they were never "killed in court." For example, just because a First Amendment challenge to copyright extension was rejected, does not mean that ex parte seizures of domain names can survive a First Amendment challenge. Such a challenge has not been allowed to be made, and with the dropping of charges against Puerto 80, it might never be made.
In any case, "the court" is not the source of free speech rights; it is entirely possible that the court (even the Supreme Court) can get it wrong. We should then do whatever is appropriate for citizens to do when faced with government encroachments of our rights. It doesn't matter if "piracy" is involved or not.
encourages people to both use the infrastructure created by piracy as well as to profit from piracy...
He has never, once, encouraged people to "profit from piracy." He has encouraged artists to use file sharing infrastructures legally, to promote themselves and/or earn money. That is not piracy. That is authorized distribution.
In any case, if rightsholders do end up profiting from the "piracy" of their own works... well, what's wrong with that? Why is it worse than fighting a costly, and losing, battle that will ultimately end with the rightsholders losing money and alienating their customer base? Finding a way to deal with piracy that earns rightsholders money is not "supporting piracy."
but doesn't support piracy?
Yep. You can believe all of the above, and still not support piracy. Most people do exactly that. This is something you can't seem to comprehend.
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