I understand your arguments, but what I don't understand is why, for example, Dover (or CD Sheet Music) should be able to take old Schirmer's, Peters and other editions of sheet music that Shirmer's, Peters, etc. are still using today, photocopy them, bind them, and sell them in an "edition" of their own. This isn't innovation.
Yes, it is innovation. If Shirmer wants to publish an edition of, say, Beethoven's 9th Symphony, they must make their edition better than Dover's. In other words, they must innovate.
This is exactly how innovation happens in a free market. It is driven by competion, not monopolies.
In fact, monopolies stifle innovation. It allows the monopolist - the copyright holder, in this case - to quash or block innovation that it doesn't like.
It's unfair that publishing companies (unlike composers) don't die and yet their copyrights still die as if these publishing companies had human lifespans. It seems to me the 75-year rule should be for when the publishing company has ceased to exist for 75 years rather than the composer dying 75 years ago.
This is the most ridiculous thing I have ever heard.
Copyright is not some kind of innate property right. It is there to serve the public good. The public benefits by the widespread distribution and use of newer works. Copyright exists to incentivize these public benefits. That is why it is "fair."
What you are arguing for is essentially perpetual copyright. There are not many people - including most artists and publishers - who would believe this is a moral position. You are arguing that publishers should hold a copyright on the works for as long as they are culturally beneficial. You are arguing for the privatization of public culture. This is not "fair" to anyone except those particular publishers.
It is unfair to think that publishers have the right to this monopoly in the first place. It is unfair that they get to turn shared culture into private property.
It is even unfair under some Lockean "sweat of the brow" argument. It isn't the publishers who put in the labor required to create those works. It is the artists. Extending that monopoly to benefit publishers - even after it has ended for artists - doesn't make any kind of sense at all, no matter how you look at it.
Even some contemporary works of Stravinsky and Prokofiev are now public domain.
No. They used to be in the public domain (and always were). They are not any longer. They were retroactively pulled out of the public domain.
In reality, no previously-copyrighted work has entered the public domain in our lifetimes, and none will until 2019 (assuming no more extensions are passed).
Is there any data on works from the mid to late 20th century going into the public domain? Nope.
Well, there couldn't be, since works from the mid to late 20th century aren't eligible to enter the public domain.
However, when we examine works that could have entered the public domain, vs. works that actually did enter the public domain, we find that works that are in the public domain are better off than those that aren't. (Citation: the study that you are replying to.)
So, you're wrong, or perhaps lying. Not a terrible shocker either way.
This presupposes that you can't make money off of public domain works.
This is absolutely false. Dover, for example, has been making money for decades by reprinting public domain books. And plenty of TV stations did - and do - show "Night of the Living Dead," even though it's always been in the public domain.
In fact, it is easier to make money off of public domain works, because there are fewer barriers to entry - you don't have to licence the rights.
Finally, a law that actually serves the interests of the public. As a cherry on top, it also serves the interests of those who actually create artworks.
It's such a good ruling, that I give it about a year before it's repealed.
Under your definition of exploitation, selling a copy of a book or song you had written to friend is exploitation as I am making money off of your work without your permission.
The moment I get paid for a copy of my book, my claim to that particular copy ends completely. I already got compensated. In fact, if I get fair compensation for that copy of my book, it wouldn't be immoral to sell it without even asking me. I should have said "without compensation, unless you get my permission."
Perhaps exploitation was a poor word choice. [...] Exploitation implies you being taken for granted.
Perhaps it was the wrong word, but I couldn't find anything better. "Unjust enrichment" is not bad if you read it colloquially, but it has way too much legal baggage. "Being taken for granted" seems about right. If you create copies of an album I wrote, and sell them without compensating me, I am being taken for granted.
The point is, when you talk of commercial gain as immoral, it fails to distinguish between the character of that use.
This is a good point. Obviously, commercial gain is not immoral in and of itself. Everyone needs to make a living.
The issue is not commercial gain, but that you exploited me in order to gain it. But whether something is actually "exploitation" is not exactly a hard-and-fast rule. It's like asking if it's immoral to pay a Ph.D. minimum wage.
Usually, questions like this would be answered by normative theories in free-market economics. And, of course, the normative free market view is "all monopolies are inefficient, thus they are always bad." But free-market economics is not the ultimate moral authority; minimum wage laws and laws against child labor also introduce market inefficiencies, but very few would think they're immoral.
Whether a particular use is "economic exploitation" is a hard nut to crack. Nonetheless, I think it is the right line of questioning. I also think the answer depends on the situation.
For what it's worth, this viewpoint is surprisingly universal. Nobody really gives a shit about non-commercial file sharing; in some places, the majority believe it's morally acceptable, and their numbers will only increase with time. But even among those people, almost nobody believes it is moral to sell copies of others' works. And even those who think file sharing is totally wrong, think selling copies is worse.
To me at least, your use of exploitation implied a sort of trading on name or reputation, or a form of fraud, and conflated this with any selling of works.
No, that was not what I meant. I was talking about copyright as an economic monopoly on copies of works that I authored. I was not talking about fraud, plagiarism, libel, or what have you. These issues are entirely separate from copyright, though they are often conflated.
Copyright, first and foremost, is about money. That's why it makes sense to only consider infringement for monetary gain.
If nothing else but permission makes it exploitation, then we are back at square one - it is immoral for me to sell a single copy of your song to a friend without your permission.
Did you create that copy, and hold on to the original? If so, then yes, that is immoral. If it's just a single copy, then it's only trivially immoral - like leaving dirty dishes in the sink for your roommate to wash.
Your example comparing Megaupload and the Pirate Bay doesn't make much sense to me either. Both are indiscriminate.
You're right, they are both indiscriminate; "content-neutral" as it were. But that's not the issue. The issue is that, despite being lumped in together as "pirate sites," they provide very different services. It's like the difference between Amazon, and a lending library with a vending machine in the lobby. Both let you read books, and both take in money, but that's where the similarities end.
By the way, the issue with Megaupload was not that they had a service that paid people, but that (some) users who they paid were using it to profit off of infringement. Thus the "safe harbors" stuff. If Megaupload stopped paying those users when they were properly notified that the users were infringing, then they're in the clear, as far as I'm concerned. Even if they didn't, it would have served everyone (including artists) better if they would have just paid civil damages, and not been shut down.
...and I really do have to leave the thread now. I've spent way too much time talking about this, I have a lot of studying to do.
It's the fuzzier, greyer areas in between I am curious about. Where would a torrent link site fit into this?
First, the people who are actually offering my album - the users in the swarm - are not doing so for financial gain. (In fact, this is not possible using torrent sites.)
So, their behavior is not exploiting me, and is not immoral. The "torrent link site" would not be encouraging or facilitating anything that exploits me, so they would not be exploiting me either, even if they monetized it. If there is an ethical issue, it's that the site possibly exploits its users - but I've never heard any user complain about e.g. The Pirate Bay.
Think about what would happen if the law actually did match my ethics. Say that non-commercial infringement was utterly legal. Would someone like The Pirate Bay be liable under the law? I think it's clear that they would not be.
On the other hand, I am not cool with Megaupload's practice of paying users who offer downloads (including my music.) Those users are directly gaining from my music, financially, and Megaupload is facilitating that (and themselves benefiting in the process).
Obviously, there are other issues that could be considered in this case - actual knowledge, lack of action, etc. These are the situations where DMCA "safe harbors" would come in to play, and justifiably so.
On the other hand, would the user have done such a magnitude of harm that I would sue him? Probably not. It wouldn't be worth my time, frankly. Would I approve of other artists doing this? It would be foolish, but I wouldn't condemn it beyond that. (I would condemn the law, though, if the settlement from that action was completely out of proportion to the user's profits.)
Well, okay, maybe just one more... (famous last words.)
Anyways, I have a couple of questions to clarify some things in my mind. (and if you have already covered this somewhere already I apologize, this is one long ass thread)
I believe you have stated (I thought it was in thread somewhere, but I can't' find it) that there is a difference to you between infringement for personal use and commercial infringement. How does this fit into your view of copyright and where is your personal "line in the sand" between the two?
I did state this. Here's a link to the comment. I realize my views could be misconstrued, so I'll explain them better here.
I do believe it is immoral for someone else to make money directly off my art, without compensation, unless I grant permission. But the ethical problem isn't my "loss" of potential income; it's someone else gaining income directly from my work. This is because it is immoral to exploit other people for profit. It is the same reason that slavery or child labor is wrong, and that minimum wage laws are necessary. It is also the reason that major labels act immorally to artists.
But it is absolutely not because I hold some sort of Lockean "property right" in copies of my work. I do not have any such right, and never did. In fact, thinking of copyright as the same kind of "property" as a car or a table is a priori immoral. Most especially the Lockean view of property as "the products of your labor" - that because I put labor into producing artwork, reproductions of that artwork are my property.
This is absurd on its face, but it also leads to a huge number of ethical wrongs: the loss of first sale rights, the obliteration of fair use, the inhibition of educational uses, control of use by libraries, the ability to block free expression, the ability to enforce shortages of my work, perpetual copyright, etc. And these are just the evils done by granting Lockean copyright; far more result from their enforcement. All of this so that I could theoretically gain a financial return for my labor.
In other words, it would allow me to exploit others for profit. This is exactly why commercial infringement is immoral in the first place. Furthermore, commercial piracy exploits artists like me, but the wrongs I listed exploit everyone. Anyone who holds a Lockean property view of copyright is defending behavior that is more immoral than commercial piracy.
The Lockean position also assumes that a property right is the "return for my labor" that best serves my self-interest. This is absolutely not the case. Artwork is unlike other goods, in that an increase in supply actually increases demand. The wider the distribution to the public, the more valuable the artwork becomes to the public. I can more easily turn this value into financial gain. If I am an artist, it is in my own self-interest to see that the works get distributed to the public as widely as possible. Treating copyright as property acts against this self-interest. Adopting a Lockean position on copyright works against gaining a "fair and just return for my labor."
All this, quite obviously, could not apply to non-commercial copying and distribution. Someone who gets a copy of my art for free is not exploiting me for profit. It's doubtful that they're "exploiting" me at all, even if they do it for selfish reasons. (If I thought they were exploiting me, it should certainly be my burden to prove it.) Furthermore, many of the ethical goods I listed above (library use, educational use, etc) are non-commercial in nature. Treating non-commercial infringement as "exploitation" would allow me to erode or destroy these ethical goods for the sake of profit, and I would be little better than a Lockean.
Of course, non-commercial copying and distribution also serves my self-interest by helping to create value in my work. So it is not only ethical from a social standpoint, but from an author's standpoint as well.
Also note that "secondary infringement" is generally not immoral. If a record label sells my album without paying me, the record label is exploiting me. But the bank that handles the label's money is not exploiting me. The magazine that accepts an ad from the label is not exploiting me. Even the pressing plant that pressed the album is not exploiting me. None of these people are acting immorally.
Also note that none of this is relevant to U.S. copyright law. Copyright law is not there to defend some Lockean "sweat of the brow" property right of authors. Likewise, it is not there to prevent artists from being exploited for profit (obviously). These are generally recognized as noble and worthy, but none of this is the purpose of copyright. Copyright is there to incentivize the creation of artwork, by means of a temporary monopoly; thus serving the interests of the public by promoting science and learning.
So, the law matches the ethical goals of neither myself nor AJ.
Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors
Funny, I was just arguing with a couple of people who claimed this was not the case...
As Feist makes clear, without originality, there is no copyright. [...] My views are Lockean in that I think it's proper for an author to get a property right in the fruits of their intellectual labor, as I said.
Then you believe the Feist ruling was improper. Feist and Locke contradict each other.
Lockean property just is the result of performing labor on natural resources. A Lockean view of copyright would hold that it is property because it originates from labor, and for no other reason. Whenever something is produced by the sweat of your brow, it automatically becomes your property. "Originality" is not even remotely relevant. Just because your labor produces something that is not original, does not mean that it is not labor.
To hold a Lockean "sweat of the brow" argument for copyright, you have no choice but to accept that the ruling took away property from Feist Publications. You may believe it was justified to take away their property, but you would have no choice but to admit that it was their property in the first place.
I also said I subscribe to other schools of thought as well.
So, you arbitrarily choose which school of thought justifies your opinion?
If not, what is your moral reason for choosing one school of thought over another?
I don't know what innate means, but I do think the idea of giving the author (and no one else) the property right is fair.
"Giving?" So, you believe that the property right is created by the State? If so, it means that humans do not have a property right in the fruits of their labor, unless it is created by the State. This is pretty much the polar opposite of a Lockean position. Either that, or you believe copyright is different from other "property rights."
As to how to apply Locke to copyright
I've already read several treatises. They are not convincing.
I told you my view is simple. I think it's fair that authors should get a property right in their writings.
Except it is not "simple." It's actually dodging the question. You say it's fair that authors should get a property right in their writings. Not just that they deserve to be paid for their efforts, but that they deserve a property right that other laborers don't have.
You have never said why it's fair. You said it's because you hold Lockean views, but it appears that you use the Lockean view as an excuse to justify your opinion that it's fair.
That's exactly what it says in the Copyright Clause
That's not even remotely what it says in the Copyright Clause, and you know it. But it doesn't matter for our ethical discussion, so I'll let it slide.
I think we'd have to run through those arguments again. Sounds like you're referring to Arcara
I was, but let's not. I am talking about the fact that you believe your interpretation of the case law was ethical. Arcara was a ruling about prostitution. No court has ever suggested that it might apply to copyright. That you believe it should apply to copyright is an ethical position.
Not at all. I think I'd need a concrete example though
"The right to free speech requires that we should not block access to an entire website because of the infringing speech on it, even if the amount of infringing speech is significant."
Every time anyone has made this argument, you said they had a "pro-piracy agenda," or some such.
I disagree with the premise that copyright means having an ownership interest in the property of others.
It's not a "premise," it's a statement of fact. Let's say a carpenter manufactures a table. Under the Lockean view, that table is his property because it is the result of the carpenter applying labor to raw materials. But as soon as he (voluntarily) parts with that table, it is no longer his property in any fashion whatsoever. The property rights lie entirely in the private posession of that property.
That is not true of a book. If a copyright holder voluntarily parts with his book, by selling it for instance, he retains a property interest in that book. Even though the book is someone else's private posession, it is still the copyright holder's property, to some degree.
If I write a book, I don't corner the entire book market. I have a monopoly over my book. That's not really a monopoly in the sense that I learned the word in macroeconomics.
Then your macroeconomics class wasn't very good. Here's an excerpt from my own economics textbook. It's about patents, but you should get the idea:
A patent is issued to an inventor to provide protection from having the invention copied or stolen for a period of 20 years. Suppose that engineers working for Ford Motor Company discover a way to build an engine that requires half the parts of a regular engine and weighs only half as much. If Ford is successful in obtaining a patent on this discovery, it can (in principle) prevent others from copying it. The patent holder has a monopoly.
- "Economics Today," Roger LeRoy Miller; from Ch. 24, "Monopolies"
He [Romero] got a property right in the fruits of his labor. He knew that right was limited and was going to end.
Romero never had a "property right" in "Night of the Living Dead." It did not "end." He (or actually his distributor) accidentally did not comply with the statutes, so he was never granted that "property right."
Either you believe he was denied his property rights, or you don't. If you don't, then you need to come up with a reason he shouldn't have had it.
It certainly has nothing to do with labor. The sweat on his brow was as shiny as any other filmmaker's; yet they got copyright, and Romero didn't.
But infringement is not like theft. It's more like trespass. If you trespass on my property, you have violated my rights. Even if there's no actual damages, I can collect nominal damages because you have wronged me.
The laws against tresspassing are justified because tresspassing usually indicates the intent to do something immoral (invasion of privacy, damaging the property, theft, a physical attack, etc). They are also justified because without laws against tresspassing, we would not be able to enforce the right of private property. The ownership of private property creates a tremendous social benefit, so laws that are required to protect that social benefit are justified.
But that "violation of rights" is not immoral in and of itself. If it is immoral, it is not because it violates property rights, but because of some other reason. Merely taking a shortcut across someone's parking lot is a "violation of property rights," but nobody sane believes it is immoral.
Not all property rights are good and moral.
Exactly. Yet the only justification you have given that infringement is wrong, is because it infringes on a property right, and only because it infringes on a property right.
You have not provided one ethically consistent reason why copyright as a property right should be good and moral. The fact that it's produced from labor can't be the reason. If it were, you must conclude that the Feist ruling was an intrusion on authors' property rights; you must conclude that Romero was robbed of his property rights.
The only consistent reason you have given that copyright is ethically a property right, is that you think it's fair. That's not an ethical argument, it's a mere opinion.
I think you're using ethics and morals interchangeably. That's fine with me.
Well, you're right. I'll try to use the correct terms (as I understand them).
At bottom I'm a Lockean. I think it makes sense to give people a property right in their creations, both physical and intellectual.
First, it's not a property right in "their creations." It's a property right in other peoples' creations. It is claiming ownership over the fruits of the labor of others. It's important that we be clear about this.
Second, whatever your take on these "property rights," they are certainly not Lockean. Under the Lockean view, property is:
- Innate. It arises from the state of nature. It does not have its origins in the State, and exists independently of it. It cannot be "lost" by laws.
- Absolute. There can be no "fair use" of property, whether "broad" or "narrow." All unauthorized use is theft or tresspassing (depending upon what kind of use we're talking about).
- Perpetual. The property right in my car never expires. Even after my death, I can will it to others. There would be no term limits on copyright.
- Created by applying labor to unowned resources. If I take a collection of facts, and apply labor to it, then by definition that collection of facts becomes my property.
Given all of the above, it is undeniable that treating copyright as a Lockean property right is completely unethical.
...At least it would, if we stopped here. But Locke himself placed restrictions on property rights, which most copyright maximalists conveniently ignore:
- Property ownership cannot result in a monopoly. One can only take from the common store (and thus create property) if "there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his inclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all."
- Only the resources that are utilized by the property owner are his property. Claiming an ownership right over something you don't utilize is unethical, because it prevents others from utilizing it: "If either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other. [...] He was only to look, that he used them before they spoiled, else he took more than his share, and robbed others. And indeed it was a foolish thing, as well as dishonest, to hoard up more than he could make use of."
In light of these two restrictions, it's really hard to see how Locke's theory of property should apply to copyright at all. Combine this with the unquestionable ethical wrongs that result in a Lockean "property view" of copyright, and I can say with confidence that holding this view is immoral.
You may not hold this view of property (though other copyright maximalists, like Noah Webster, certainly did). But it does show that if you're going to justify treating copyright as a "property right," it has to be for reasons that are not Locke's. You have to find some other way of showing how they are "fair."
I also recognize that free speech is a fundamental value, and copyright in some ways inhibits free speech.
You do more than this. You say that copyright is entirely unlike other restrictions on speech. For example, you directly claimed that infringing speech is no more "speech" than prostitution. You claimed this specifically to justify protected speech being blocked. You have advocated this even before fair use or idea/expression determinations could be made. You have advocated this even when links to infringing speech result in the blocking of actual non-infringing speech.
Yet if you think anyone is even suggesting that protecting free speech justifies infringing on the "property right" of copyright holders, you claim they're "piracy apologists" who "just want stuff for free." You have never even considered that they might be defending free speech rights. You have never even considered that the right to free speech might justify allowing infringement, even temporarily. I'm betting that even reading these sentences makes you angry.
You clearly think that copyright is vastly more important than free speech. This makes your opinion on whether "the inhibition is great" highly questionable, to say the least.
And let's not forget that free speech rights are not the only rights that are in conflict with copyright. Holding a copyright means nothing other than that you have an ownership interest in the property of others. For the sake of argument, let's take the Lockean view of property. Copyright says that if I apply my own labor, using resources that I paid for, I do not own the fruits of that labor. At least, not if my fruits taste too much like yours.
Being a monopoly, it's also a restraint on free trade. I don't know if you consider free trade any kind of "right," but at the very least, monopolies are not ethical.
As to the morality of infringement, I have the very simple view that the property right and the morality of infringing that right are coextensive.
There is nothing a priori moral about owning property. If there was, there would be no word for "greed."
Theft is not immoral because it "infringes on a property right." It is immoral because it deprives the owner of the use of that property. If someone steals my sandwich, it's not immoral because he gets a free lunch; it's immoral because I don't get to eat.
Besides, if you hold this vew, then we're right back to the slavery counterexample. Owning a slave was a property right. Helping a slave escape infringed on that property right. If infringing on a property right was a priori unethical, then helping a slave escape his master would be unethical.
This is why deontological ethics is often a failure. It doesn't lead to moral behavior, just to obedience.
It's moral for the owner of the right to "Night of the Living Dead" to have copyright rights in his work, for all the reasons I think copyright makes sense. But once he loses that right, the right is gone and it's not immoral for you to download the movie.
If you hold a Lockean view of copyright (even vaguely), then it is not possible for Romero to "lose" that right. The film was the fruit of his labor, and the government doesn't have the right to deny him of that, any more than The Pirate Bay does.
Since the "fruit of his labor" view is invalid, there must be some other reason that it's ethical for others to hold that "property right," while Romero doesn't. The only other reason you've given me is "the law says so," which is not an ethical reason.
FYI: When "Night of the Living Dead" was released, all works under copyright had to have a copyright notice on them. The film was accidentally distributed without one. It didn't comply with the statutory requirements, so into the public domain it went.
I think Mike Masnick is a morally-bankrupt coward
I think your opinion of Mike Masnick says nothing about Mike Masnick.
He has answered. Many times. You've even acknowledged his answer: he, personally, believes it's unethical because it goes against the wishes of artists.
Just because you don't like the answer, doesn't mean he hasn't given you one. And just because you don't agree with his answer, does not mean that his answer is unethical.
And FYI, he stated his position before you even asked him. And you know this, because I quoted them to you.
Aside from his personal ethics, he claims that copyright is fundamentally not an ethical issue. This is not dodging the question, it's saying it's the wrong question to ask. And he is correct. It is fundamentally an economic issue.
he never explains why it's moral to violate someone's economic right
This is a totally idiotic statement.
1. There is no such thing as an "economic right." Prices are set because of supply and demand, not because there's a "right" to that price. The number of products produced is determined by marginal analysis, not because there is a "right" to produce that number of products. Nobody has a "right" to make a profit. And so on.
2. Even if you believe there are "economic rights," there's no way in Hell that a government-enforced monopoly is one of them.
3. Even if you believe it is, the statement is irrelevant, because Mike never claimed it was "moral" to "violate" that right.
4. Even if you believe that's what he's talking about, he gave you a reason right in the quote to believe it is ethically moral: "there's the greatest overall economic good and everyone has the greatest opportunity to benefit." Only an idiot would claim this stance is immoral.
Admitting the fact that is illegal does not mean that he thinks it to be immoral.
I meant both the fact that he thought it was illegal, and the fact that he believes it goes against the wishes of artists. Obviously.
It's too bad he won't discuss these issues. Wonder what he's so scared of?
He does discuss these issues. Just not with you, because you've done nothing but an asshole.
And it's incredibly hypocritical to say he "won't discuss these issues," when you won't discuss them, either.
In this entire thread, you haven't discussed ethics. You sidestep the issue by going off on tangents about legal statutes or colonial history. In fact, you are sidestepping the issue right now. You are attacking Mike's viewpoints, in order to avoid talking about your own.
I've indulged you thus far, but no longer. No more talking about Mike. No more talking about the law. No more talking about history. From here on out, we are talking only about ethics, and about your ethics in particular.
In this entire thread, the only justification for your ethical viewpoint is that something is bad because the government says so. That is not an ethical answer; it is a defense of totalitarianism.
So, are you finally going to say why your viewpoint is ethical, or not?
Do you think Mike thinks that simple piracy is immoral? The most he'll say is that piracy is not OK because it goes against the wishes of creators. But that doesn't equate to thinking it's immoral.
That's total bullshit. If he thinks going against the wishes of creators is "not OK," then he thinks that going against the wishes of creators is immoral. This means that, in general, piracy is immoral - because if it was not against the wishes of the artist, then it would not be piracy in the first place.
There are definitely situations where the artist is not the copyright holder - but if the copyright holder is going against the wishes of the artist, they're not being ethical either. There are not a lot of people who would disagree with him on this point.
And, of course, he has always said that piracy is unlawful.
That, right there, is enough to know that he does not endorse or excuse piracy, and does not believe it is ethical.
And there is absolutely nothing wrong with this viewpoint. Certainly it does not make him unethical.
Additionally, he asked you a question - which as far as I know, you refused to answer. It was: if the copyright holder is better off because of piracy, can they really be considered a "victim" of piracy?
I won't speak for Mike, but this seems to mirror the common-sense view that someone must be harmed for an act to be considered immoral. And I don't mean "harmed" in some theoretical or ideological way - I mean harmed in a way that can be objectively determined by evidence.
Of course, he's made it clear that he considers piracy to be an economic issue, and that his personal moral opinion is unimportant. Since copyright really is an economic issue, this is a completely valid viewpoint.
Your viewpoint, on the other hand, is not even remotely ethical. Mike's views are more ethical than yours by pretty much any moral standard. At the very least, his views are much more mainstream than yours among the general populace.
And, again, none of this has anything to do with ethics.
Speaking of ethics, I should also let you know that I do, in fact, hold kind of a "fruits of my labor" moral viewpoint. I believe it is unethical for anyone else to make money directly off of my works, without compensation, unless I grant permission.
But the ethical problem isn't my "loss" of potential income; it's someone else gaining income directly from my work.
So, for example, someone who sells my album without compensating me, has acted unethically. Someone who buys that album has not. Neither is it unethical to "pirate" my album, provided that it's not done for profit.
And, since it's not unethical for others to "pirate" my work for non-profit reasons, it's not unethical for someone to facilitate that "piracy" - even for profit. For example, let's say someone decided to run a non-profit library that is open to the public. It would not be unethical for a landlord to rent space to this library, even though the landlord is making money. It would be unethical to claim the landlord is "pirating" books.
In fact, the end goal of writing music - like the end goal of all artistic creation - is widespread public enjoyment of my music. Anything that achieves this goal must of necessity serve an ethical end. And here, I mean that it serves my own private ethical interests in creating art; not (just) the interests of the public. So my "sweat of the brow" moral interests must be balanced against my private "widespread distribution" moral interests.
But obviously, both interests are trumped by the public good. Gaining the fruits of my labor simply cannot result in public harm, or else it is unethical. It would be nothing but outright greed.
Until very recently, copyright law satisfied my ethical viewpoint, so I have no problem with the way it was. It is only now that "piracy" is shorthand for "non-commercial sharing between members of the general public" that I believe it is unethical. Not just slightly unethical, either; but outright dangerous.
Before you claimed categorically that no Founder held a Lockean view of copyright. Now you admit that some did. If we can get you to "almost all did" we'll be there.
I was not claiming categorically that no Founder held a Lockean view of copyright. The statement I was refuting was that all Founders did have a Lockean view of copyright. The A.C. seemed to be saying that the Lockean view of copyright as private property, and the "fruits of labor" view that Locke held, were universally accpted among the Founders. Perhaps I misunderstood his intent, but if that is what he meant, it is something I will still categorically reject.
I'll concede the point that most of the states' copyright laws were justified, partially or mainly, by a Lockean "natural rights" standpoint, due mainly to the arguments of Joel Barlow. I will also concede that the Continental Congress report, being directly influenced by Barlow, espoused this view as well.
I will also concede this point. In general, Revolutionary law did not see any conflict between the "natural rights" view of copyright, and the "public good" view of copyright. Most statutes at the time espoused both views.
But I won't concede that about the majority of Founders unless you can actually show me passages written by those Founders themselves. Madison, for example, was actually in the committee that wrote the Continental Congress report - but saying he held a Lockean "natural rights" view of copyright would be, at best, an oversimplification.
And when it comes to the Continental Convention in Philadelphia, the viewpoint of everyone involved was that copyright was a monopoly, not any sort of property right. Examples:
I like it as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me. [...] Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding __ years but for no longer term and for no other purpose. [...] These restrictions I think are so guarded as to hinder evil only. However if we do not have them now, I have so much confidence in our countrymen as to be satisfied that we shall have them as soon as the degeneracy of our government shall render them necessary.
- Thomas Jefferson to James Madison
As to those monopolies, which, by way of premiums, are granted for certain years to ingenious discoveries in medicine, machines and useful arts; they are common in all countries, and more necessary in this, as the government has no resources to reward extraordinary merit.
- Rev. Nicholas Cottin, Remarks on the Amendments to the Federal Constitution
I have just been reading Smith on the Wealth of Nations & he has taught me to look with an unfavorable eye on monopolies - But a monopoly of the mental kind I take to be laudable & an exception to the Rule.
- James Kent to Nathaniel Lawrence
[M]onopolies in trade or arts, other than to authors of books or inventors of useful arts, for a reasonable time, ought not to be suffered.
- "Centinel," from Pennsylvania, quoted in "The Documentary History Of The Constitution Of The United States Of America"
So, while the "natural rights" argument was certainly espoused in the state statutes, as well as in the report of the Continental Congress, it does not appear to have played any role whatsoever in the debate surrounding the Copyright Clause itself.
Additionally, the first Federal Copyright Act was entitled "An Act for the encouragement of learning," and did not mention authors' "natural rights" at all.
And in any case, the "natural rights" view (also called the "common law copyright" view) was laid to rest in Wheaton v. Peters. But this is probably another tangent.
And, again, none of this has anything to do with ethics. Even if I did concede that all the Founders held the view that copyright was based on Lockean views of "natural rights," or "equitable justice," or whatever, that does not mean that the Founders were correct, or that their viewpoints were moral. We are currently arguing about history, not ethics.
I'll gladly address the rest of your points, but I want to see if we can reach a consensus on the issue of whether the framers held Lockean views about copyright.
Well, keep in mind that this was the idea I was rebutting: "To our Founders, men had a just and equitable right to their property; intellectual property was no different."
It is absolutely true that many Colonial governments held a "natural rights" view of copyright. But it would be an overstatment to say they considered it a Lockean form of property; generally they used wording like "the Sole privilege." Nor would it be accurate to say that this is the reason copyright laws were enacted. For example, nearly all had various registration requirements, and about half had an explicit legal requirement that the author release "a sufficient number of copies" to the public "at reasonable prices." Nearly all of the bills creating the statutes had titles like "A Bill to Advance Learning and the Sciences."
It's interesting to keep in mind that prior to 1783, general copyright statutes did not exist. Individual authors had to petition the colonial governments to pass bills granting them private monopolies on specific works. But this is another one of my tangents.
In any case, talking about Colonial law is not the same as talking about the Founding Fathers.
To do that, we have to look to the Founders that were involved in the Copyright Clause. Most simply didn't give a rat's ass; the original draft didn't even contain one at all. The only ones that I know about were Charles Pinckney, James Madison, and Thomas Jefferson. We only know Pickney cared because he introduced an earlier draft; as far as I know, he never wrote about his reasoning.
Madison and Jefferson we've already heard from once, but this exchange may clear things up:
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
Madison himself wrote two proposed versions of the Copyright Clause: "to secure to literary authors their copyrights for a limited time," and "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries."
These are not the words of people talking about some Lockean view of private property. They are not creating the Copyright Clause due to some utilitarian notion of a "just and equitable right."
However, while researching this post, I ran across a quote from Thomas Paine: "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."
So, that's one founding father who did think of copyright fundamentally in terms of Lockean property. However, he had nothing to do with the Copyright Clause.
It's also of note that a few of the Founders (e.g. Ben Franklin) were themselves "pirates" of English books. It would be hard to believe that they held some sort of "natural rights" view of copyright, where authors had "a just and equitable right to their property."
Let's just say this. For the most part, the Founders did not consider copyright to be exactly the same as Locke's notion of private property.
Some of them did. Some of them believed copyright was an author's "property," but of a different sort. Some of them did not think of copyright as any form of property at all. Some believed copyright should exist to guarantee a "just reward" for the fruits of their labors. Some believed that copyright should exist solely to serve the public interest.
The only thing that is categorically true, is that they all believed knowledge and learning would be advanced by providing authors with a special reward for their labors.
And absolutely none of this has anything to do with whether current copyright law is ethical.
All of my discussions with Karl suffer from this same problem. It's like debating a brick wall. If you prove his point wrong, rather than concede it he'll go off on a bunch of tangents.
If I go off on a bunch of tangents, it's only because I'm replying to points that were raised by other people in the debate. But you're right. This has gotten off track. We were not talking about Colonial history, nor about the legislative history of copyright.
We were talking about ethics. So let's get back to that.
For the sake of argument, let's say you're right about the monopoly right in expression being an innate "property" right, and that if I infringe on this right by creating or distributing my own copies without authorization, then I am "stealing" this property. And let's say that this property right is a priori ethical (though you've never said why it should be ethical).
So, once again, I ask you: How could it possibly be ethical for me to download a copy of "Night of the Living Dead?" After all, I am "stealing" Romero's property. The fact that I am doing it without breaking the law tells us nothing about the ethics of the act - only that the law is unjust.
How is it that you can believe it's evil to infringe on the author's property rights in one instance, but absolutely ethical to to infringe on the author's property rights in another?
You have never given me an answer to this. And, frankly, I don't think you even can.
I, personally, have never been conflicted this issue. I don't believe that copyright is a form of "property," in the Lockean sense. "Stealing" this form of "property" is not a priori unethical. It is, in fact, accomplishing the only ethical thing that copyright itself even could accomplish: the widespread distribution of works to the public.
That does not mean I believe it is legal. It does not even mean I believe it should be legal; we often tolerate restrictions on ethical acts, if it achieves a greater good overall. It means that I believe it is a necessary evil. And that, therefore, it should be as limited as possible to achieve its ethical goals.
But you, obviously, do not believe that. You believe it is so unethical, that people should have their property taken away, be sued into bankruptcy, have their businesses destroyed, and possibly taken at gunpoint and thrown in jail. You believe that it is so unethical, that prosecuting it deserves more exemptions from due process and prior restraint than other forms of unlawful speech. You believe it is so unethical, that it should be punished even if authors benefit from it.
And you believe that piracy is so unethical, it entitles you to act like an asshole to everyone who disagrees with you. You have - consistently - mucked up numerous threads on this site with personal insults, called the Techdirt authors "slimebags" and "liars" and "cowards," because their personal ethical views don't view piracy as unethical enough for you.
On the post: Do Bad Things Happen When Works Enter The Public Domain? The Data Says... No
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Yes, it is innovation. If Shirmer wants to publish an edition of, say, Beethoven's 9th Symphony, they must make their edition better than Dover's. In other words, they must innovate.
This is exactly how innovation happens in a free market. It is driven by competion, not monopolies.
In fact, monopolies stifle innovation. It allows the monopolist - the copyright holder, in this case - to quash or block innovation that it doesn't like.
It's unfair that publishing companies (unlike composers) don't die and yet their copyrights still die as if these publishing companies had human lifespans. It seems to me the 75-year rule should be for when the publishing company has ceased to exist for 75 years rather than the composer dying 75 years ago.
This is the most ridiculous thing I have ever heard.
Copyright is not some kind of innate property right. It is there to serve the public good. The public benefits by the widespread distribution and use of newer works. Copyright exists to incentivize these public benefits. That is why it is "fair."
What you are arguing for is essentially perpetual copyright. There are not many people - including most artists and publishers - who would believe this is a moral position. You are arguing that publishers should hold a copyright on the works for as long as they are culturally beneficial. You are arguing for the privatization of public culture. This is not "fair" to anyone except those particular publishers.
It is unfair to think that publishers have the right to this monopoly in the first place. It is unfair that they get to turn shared culture into private property.
It is even unfair under some Lockean "sweat of the brow" argument. It isn't the publishers who put in the labor required to create those works. It is the artists. Extending that monopoly to benefit publishers - even after it has ended for artists - doesn't make any kind of sense at all, no matter how you look at it.
Even some contemporary works of Stravinsky and Prokofiev are now public domain.
No. They used to be in the public domain (and always were). They are not any longer. They were retroactively pulled out of the public domain.
In reality, no previously-copyrighted work has entered the public domain in our lifetimes, and none will until 2019 (assuming no more extensions are passed).
On the post: Do Bad Things Happen When Works Enter The Public Domain? The Data Says... No
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Well, there couldn't be, since works from the mid to late 20th century aren't eligible to enter the public domain.
However, when we examine works that could have entered the public domain, vs. works that actually did enter the public domain, we find that works that are in the public domain are better off than those that aren't. (Citation: the study that you are replying to.)
So, you're wrong, or perhaps lying. Not a terrible shocker either way.
On the post: Do Bad Things Happen When Works Enter The Public Domain? The Data Says... No
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This presupposes that you can't make money off of public domain works.
This is absolutely false. Dover, for example, has been making money for decades by reprinting public domain books. And plenty of TV stations did - and do - show "Night of the Living Dead," even though it's always been in the public domain.
In fact, it is easier to make money off of public domain works, because there are fewer barriers to entry - you don't have to licence the rights.
On the post: Portugal: File Sharing For Personal Use Is Legal And IP Addresses Are Not People
Nice
It's such a good ruling, that I give it about a year before it's repealed.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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It's super effective!
Under your definition of exploitation, selling a copy of a book or song you had written to friend is exploitation as I am making money off of your work without your permission.
The moment I get paid for a copy of my book, my claim to that particular copy ends completely. I already got compensated. In fact, if I get fair compensation for that copy of my book, it wouldn't be immoral to sell it without even asking me. I should have said "without compensation, unless you get my permission."
Perhaps exploitation was a poor word choice. [...] Exploitation implies you being taken for granted.
Perhaps it was the wrong word, but I couldn't find anything better. "Unjust enrichment" is not bad if you read it colloquially, but it has way too much legal baggage. "Being taken for granted" seems about right. If you create copies of an album I wrote, and sell them without compensating me, I am being taken for granted.
The point is, when you talk of commercial gain as immoral, it fails to distinguish between the character of that use.
This is a good point. Obviously, commercial gain is not immoral in and of itself. Everyone needs to make a living.
The issue is not commercial gain, but that you exploited me in order to gain it. But whether something is actually "exploitation" is not exactly a hard-and-fast rule. It's like asking if it's immoral to pay a Ph.D. minimum wage.
Usually, questions like this would be answered by normative theories in free-market economics. And, of course, the normative free market view is "all monopolies are inefficient, thus they are always bad." But free-market economics is not the ultimate moral authority; minimum wage laws and laws against child labor also introduce market inefficiencies, but very few would think they're immoral.
Whether a particular use is "economic exploitation" is a hard nut to crack. Nonetheless, I think it is the right line of questioning. I also think the answer depends on the situation.
For what it's worth, this viewpoint is surprisingly universal. Nobody really gives a shit about non-commercial file sharing; in some places, the majority believe it's morally acceptable, and their numbers will only increase with time. But even among those people, almost nobody believes it is moral to sell copies of others' works. And even those who think file sharing is totally wrong, think selling copies is worse.
To me at least, your use of exploitation implied a sort of trading on name or reputation, or a form of fraud, and conflated this with any selling of works.
No, that was not what I meant. I was talking about copyright as an economic monopoly on copies of works that I authored. I was not talking about fraud, plagiarism, libel, or what have you. These issues are entirely separate from copyright, though they are often conflated.
Copyright, first and foremost, is about money. That's why it makes sense to only consider infringement for monetary gain.
If nothing else but permission makes it exploitation, then we are back at square one - it is immoral for me to sell a single copy of your song to a friend without your permission.
Did you create that copy, and hold on to the original? If so, then yes, that is immoral. If it's just a single copy, then it's only trivially immoral - like leaving dirty dishes in the sink for your roommate to wash.
Your example comparing Megaupload and the Pirate Bay doesn't make much sense to me either. Both are indiscriminate.
You're right, they are both indiscriminate; "content-neutral" as it were. But that's not the issue. The issue is that, despite being lumped in together as "pirate sites," they provide very different services. It's like the difference between Amazon, and a lending library with a vending machine in the lobby. Both let you read books, and both take in money, but that's where the similarities end.
By the way, the issue with Megaupload was not that they had a service that paid people, but that (some) users who they paid were using it to profit off of infringement. Thus the "safe harbors" stuff. If Megaupload stopped paying those users when they were properly notified that the users were infringing, then they're in the clear, as far as I'm concerned. Even if they didn't, it would have served everyone (including artists) better if they would have just paid civil damages, and not been shut down.
...and I really do have to leave the thread now. I've spent way too much time talking about this, I have a lot of studying to do.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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First, the people who are actually offering my album - the users in the swarm - are not doing so for financial gain. (In fact, this is not possible using torrent sites.)
So, their behavior is not exploiting me, and is not immoral. The "torrent link site" would not be encouraging or facilitating anything that exploits me, so they would not be exploiting me either, even if they monetized it. If there is an ethical issue, it's that the site possibly exploits its users - but I've never heard any user complain about e.g. The Pirate Bay.
Think about what would happen if the law actually did match my ethics. Say that non-commercial infringement was utterly legal. Would someone like The Pirate Bay be liable under the law? I think it's clear that they would not be.
On the other hand, I am not cool with Megaupload's practice of paying users who offer downloads (including my music.) Those users are directly gaining from my music, financially, and Megaupload is facilitating that (and themselves benefiting in the process).
Obviously, there are other issues that could be considered in this case - actual knowledge, lack of action, etc. These are the situations where DMCA "safe harbors" would come in to play, and justifiably so.
On the other hand, would the user have done such a magnitude of harm that I would sue him? Probably not. It wouldn't be worth my time, frankly. Would I approve of other artists doing this? It would be foolish, but I wouldn't condemn it beyond that. (I would condemn the law, though, if the settlement from that action was completely out of proportion to the user's profits.)
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Anyways, I have a couple of questions to clarify some things in my mind. (and if you have already covered this somewhere already I apologize, this is one long ass thread)
I believe you have stated (I thought it was in thread somewhere, but I can't' find it) that there is a difference to you between infringement for personal use and commercial infringement. How does this fit into your view of copyright and where is your personal "line in the sand" between the two?
I did state this. Here's a link to the comment. I realize my views could be misconstrued, so I'll explain them better here.
I do believe it is immoral for someone else to make money directly off my art, without compensation, unless I grant permission. But the ethical problem isn't my "loss" of potential income; it's someone else gaining income directly from my work. This is because it is immoral to exploit other people for profit. It is the same reason that slavery or child labor is wrong, and that minimum wage laws are necessary. It is also the reason that major labels act immorally to artists.
But it is absolutely not because I hold some sort of Lockean "property right" in copies of my work. I do not have any such right, and never did. In fact, thinking of copyright as the same kind of "property" as a car or a table is a priori immoral. Most especially the Lockean view of property as "the products of your labor" - that because I put labor into producing artwork, reproductions of that artwork are my property.
This is absurd on its face, but it also leads to a huge number of ethical wrongs: the loss of first sale rights, the obliteration of fair use, the inhibition of educational uses, control of use by libraries, the ability to block free expression, the ability to enforce shortages of my work, perpetual copyright, etc. And these are just the evils done by granting Lockean copyright; far more result from their enforcement. All of this so that I could theoretically gain a financial return for my labor.
In other words, it would allow me to exploit others for profit. This is exactly why commercial infringement is immoral in the first place. Furthermore, commercial piracy exploits artists like me, but the wrongs I listed exploit everyone. Anyone who holds a Lockean property view of copyright is defending behavior that is more immoral than commercial piracy.
The Lockean position also assumes that a property right is the "return for my labor" that best serves my self-interest. This is absolutely not the case. Artwork is unlike other goods, in that an increase in supply actually increases demand. The wider the distribution to the public, the more valuable the artwork becomes to the public. I can more easily turn this value into financial gain. If I am an artist, it is in my own self-interest to see that the works get distributed to the public as widely as possible. Treating copyright as property acts against this self-interest. Adopting a Lockean position on copyright works against gaining a "fair and just return for my labor."
All this, quite obviously, could not apply to non-commercial copying and distribution. Someone who gets a copy of my art for free is not exploiting me for profit. It's doubtful that they're "exploiting" me at all, even if they do it for selfish reasons. (If I thought they were exploiting me, it should certainly be my burden to prove it.) Furthermore, many of the ethical goods I listed above (library use, educational use, etc) are non-commercial in nature. Treating non-commercial infringement as "exploitation" would allow me to erode or destroy these ethical goods for the sake of profit, and I would be little better than a Lockean.
Of course, non-commercial copying and distribution also serves my self-interest by helping to create value in my work. So it is not only ethical from a social standpoint, but from an author's standpoint as well.
Also note that "secondary infringement" is generally not immoral. If a record label sells my album without paying me, the record label is exploiting me. But the bank that handles the label's money is not exploiting me. The magazine that accepts an ad from the label is not exploiting me. Even the pressing plant that pressed the album is not exploiting me. None of these people are acting immorally.
Also note that none of this is relevant to U.S. copyright law. Copyright law is not there to defend some Lockean "sweat of the brow" property right of authors. Likewise, it is not there to prevent artists from being exploited for profit (obviously). These are generally recognized as noble and worthy, but none of this is the purpose of copyright. Copyright is there to incentivize the creation of artwork, by means of a temporary monopoly; thus serving the interests of the public by promoting science and learning.
So, the law matches the ethical goals of neither myself nor AJ.
Hope that clears things up.
On the post: Another Judge Blasts Copyright Trolls
Funny, I was just arguing with a couple of people who claimed this was not the case...
Well, whatever.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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I personally think your view of copyright is both unethical and contradictory.
But you presented it. I don't agree with it, but neither of us is going to change each others' minds.
So, I'm going to drop this conversation.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Then you believe the Feist ruling was improper. Feist and Locke contradict each other.
Lockean property just is the result of performing labor on natural resources. A Lockean view of copyright would hold that it is property because it originates from labor, and for no other reason. Whenever something is produced by the sweat of your brow, it automatically becomes your property. "Originality" is not even remotely relevant. Just because your labor produces something that is not original, does not mean that it is not labor.
To hold a Lockean "sweat of the brow" argument for copyright, you have no choice but to accept that the ruling took away property from Feist Publications. You may believe it was justified to take away their property, but you would have no choice but to admit that it was their property in the first place.
I also said I subscribe to other schools of thought as well.
So, you arbitrarily choose which school of thought justifies your opinion?
If not, what is your moral reason for choosing one school of thought over another?
I don't know what innate means, but I do think the idea of giving the author (and no one else) the property right is fair.
"Giving?" So, you believe that the property right is created by the State? If so, it means that humans do not have a property right in the fruits of their labor, unless it is created by the State. This is pretty much the polar opposite of a Lockean position. Either that, or you believe copyright is different from other "property rights."
As to how to apply Locke to copyright
I've already read several treatises. They are not convincing.
I told you my view is simple. I think it's fair that authors should get a property right in their writings.
Except it is not "simple." It's actually dodging the question. You say it's fair that authors should get a property right in their writings. Not just that they deserve to be paid for their efforts, but that they deserve a property right that other laborers don't have.
You have never said why it's fair. You said it's because you hold Lockean views, but it appears that you use the Lockean view as an excuse to justify your opinion that it's fair.
That's exactly what it says in the Copyright Clause
That's not even remotely what it says in the Copyright Clause, and you know it. But it doesn't matter for our ethical discussion, so I'll let it slide.
I think we'd have to run through those arguments again. Sounds like you're referring to Arcara
I was, but let's not. I am talking about the fact that you believe your interpretation of the case law was ethical. Arcara was a ruling about prostitution. No court has ever suggested that it might apply to copyright. That you believe it should apply to copyright is an ethical position.
Not at all. I think I'd need a concrete example though
"The right to free speech requires that we should not block access to an entire website because of the infringing speech on it, even if the amount of infringing speech is significant."
Every time anyone has made this argument, you said they had a "pro-piracy agenda," or some such.
I disagree with the premise that copyright means having an ownership interest in the property of others.
It's not a "premise," it's a statement of fact. Let's say a carpenter manufactures a table. Under the Lockean view, that table is his property because it is the result of the carpenter applying labor to raw materials. But as soon as he (voluntarily) parts with that table, it is no longer his property in any fashion whatsoever. The property rights lie entirely in the private posession of that property.
That is not true of a book. If a copyright holder voluntarily parts with his book, by selling it for instance, he retains a property interest in that book. Even though the book is someone else's private posession, it is still the copyright holder's property, to some degree.
If I write a book, I don't corner the entire book market. I have a monopoly over my book. That's not really a monopoly in the sense that I learned the word in macroeconomics.
Then your macroeconomics class wasn't very good. Here's an excerpt from my own economics textbook. It's about patents, but you should get the idea:
He [Romero] got a property right in the fruits of his labor. He knew that right was limited and was going to end.
Romero never had a "property right" in "Night of the Living Dead." It did not "end." He (or actually his distributor) accidentally did not comply with the statutes, so he was never granted that "property right."
Either you believe he was denied his property rights, or you don't. If you don't, then you need to come up with a reason he shouldn't have had it.
It certainly has nothing to do with labor. The sweat on his brow was as shiny as any other filmmaker's; yet they got copyright, and Romero didn't.
But infringement is not like theft. It's more like trespass. If you trespass on my property, you have violated my rights. Even if there's no actual damages, I can collect nominal damages because you have wronged me.
The laws against tresspassing are justified because tresspassing usually indicates the intent to do something immoral (invasion of privacy, damaging the property, theft, a physical attack, etc). They are also justified because without laws against tresspassing, we would not be able to enforce the right of private property. The ownership of private property creates a tremendous social benefit, so laws that are required to protect that social benefit are justified.
But that "violation of rights" is not immoral in and of itself. If it is immoral, it is not because it violates property rights, but because of some other reason. Merely taking a shortcut across someone's parking lot is a "violation of property rights," but nobody sane believes it is immoral.
Not all property rights are good and moral.
Exactly. Yet the only justification you have given that infringement is wrong, is because it infringes on a property right, and only because it infringes on a property right.
You have not provided one ethically consistent reason why copyright as a property right should be good and moral. The fact that it's produced from labor can't be the reason. If it were, you must conclude that the Feist ruling was an intrusion on authors' property rights; you must conclude that Romero was robbed of his property rights.
The only consistent reason you have given that copyright is ethically a property right, is that you think it's fair. That's not an ethical argument, it's a mere opinion.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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I think you're using ethics and morals interchangeably. That's fine with me.
Well, you're right. I'll try to use the correct terms (as I understand them).
At bottom I'm a Lockean. I think it makes sense to give people a property right in their creations, both physical and intellectual.
First, it's not a property right in "their creations." It's a property right in other peoples' creations. It is claiming ownership over the fruits of the labor of others. It's important that we be clear about this.
Second, whatever your take on these "property rights," they are certainly not Lockean. Under the Lockean view, property is:
- Innate. It arises from the state of nature. It does not have its origins in the State, and exists independently of it. It cannot be "lost" by laws.
- Absolute. There can be no "fair use" of property, whether "broad" or "narrow." All unauthorized use is theft or tresspassing (depending upon what kind of use we're talking about).
- Perpetual. The property right in my car never expires. Even after my death, I can will it to others. There would be no term limits on copyright.
- Created by applying labor to unowned resources. If I take a collection of facts, and apply labor to it, then by definition that collection of facts becomes my property.
Given all of the above, it is undeniable that treating copyright as a Lockean property right is completely unethical.
...At least it would, if we stopped here. But Locke himself placed restrictions on property rights, which most copyright maximalists conveniently ignore:
- Property ownership cannot result in a monopoly. One can only take from the common store (and thus create property) if "there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his inclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all."
- Only the resources that are utilized by the property owner are his property. Claiming an ownership right over something you don't utilize is unethical, because it prevents others from utilizing it: "If either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other. [...] He was only to look, that he used them before they spoiled, else he took more than his share, and robbed others. And indeed it was a foolish thing, as well as dishonest, to hoard up more than he could make use of."
In light of these two restrictions, it's really hard to see how Locke's theory of property should apply to copyright at all. Combine this with the unquestionable ethical wrongs that result in a Lockean "property view" of copyright, and I can say with confidence that holding this view is immoral.
You may not hold this view of property (though other copyright maximalists, like Noah Webster, certainly did). But it does show that if you're going to justify treating copyright as a "property right," it has to be for reasons that are not Locke's. You have to find some other way of showing how they are "fair."
I also recognize that free speech is a fundamental value, and copyright in some ways inhibits free speech.
You do more than this. You say that copyright is entirely unlike other restrictions on speech. For example, you directly claimed that infringing speech is no more "speech" than prostitution. You claimed this specifically to justify protected speech being blocked. You have advocated this even before fair use or idea/expression determinations could be made. You have advocated this even when links to infringing speech result in the blocking of actual non-infringing speech.
Yet if you think anyone is even suggesting that protecting free speech justifies infringing on the "property right" of copyright holders, you claim they're "piracy apologists" who "just want stuff for free." You have never even considered that they might be defending free speech rights. You have never even considered that the right to free speech might justify allowing infringement, even temporarily. I'm betting that even reading these sentences makes you angry.
You clearly think that copyright is vastly more important than free speech. This makes your opinion on whether "the inhibition is great" highly questionable, to say the least.
And let's not forget that free speech rights are not the only rights that are in conflict with copyright. Holding a copyright means nothing other than that you have an ownership interest in the property of others. For the sake of argument, let's take the Lockean view of property. Copyright says that if I apply my own labor, using resources that I paid for, I do not own the fruits of that labor. At least, not if my fruits taste too much like yours.
Being a monopoly, it's also a restraint on free trade. I don't know if you consider free trade any kind of "right," but at the very least, monopolies are not ethical.
As to the morality of infringement, I have the very simple view that the property right and the morality of infringing that right are coextensive.
There is nothing a priori moral about owning property. If there was, there would be no word for "greed."
Theft is not immoral because it "infringes on a property right." It is immoral because it deprives the owner of the use of that property. If someone steals my sandwich, it's not immoral because he gets a free lunch; it's immoral because I don't get to eat.
Besides, if you hold this vew, then we're right back to the slavery counterexample. Owning a slave was a property right. Helping a slave escape infringed on that property right. If infringing on a property right was a priori unethical, then helping a slave escape his master would be unethical.
This is why deontological ethics is often a failure. It doesn't lead to moral behavior, just to obedience.
It's moral for the owner of the right to "Night of the Living Dead" to have copyright rights in his work, for all the reasons I think copyright makes sense. But once he loses that right, the right is gone and it's not immoral for you to download the movie.
If you hold a Lockean view of copyright (even vaguely), then it is not possible for Romero to "lose" that right. The film was the fruit of his labor, and the government doesn't have the right to deny him of that, any more than The Pirate Bay does.
Since the "fruit of his labor" view is invalid, there must be some other reason that it's ethical for others to hold that "property right," while Romero doesn't. The only other reason you've given me is "the law says so," which is not an ethical reason.
FYI: When "Night of the Living Dead" was released, all works under copyright had to have a copyright notice on them. The film was accidentally distributed without one. It didn't comply with the statutory requirements, so into the public domain it went.
I think Mike Masnick is a morally-bankrupt coward
I think your opinion of Mike Masnick says nothing about Mike Masnick.
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I'll get back to you on it.
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Link to the comment where you did this, because I don't see it anywhere in this (very long) thread.
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He has answered. Many times. You've even acknowledged his answer: he, personally, believes it's unethical because it goes against the wishes of artists.
Just because you don't like the answer, doesn't mean he hasn't given you one. And just because you don't agree with his answer, does not mean that his answer is unethical.
And FYI, he stated his position before you even asked him. And you know this, because I quoted them to you.
Aside from his personal ethics, he claims that copyright is fundamentally not an ethical issue. This is not dodging the question, it's saying it's the wrong question to ask. And he is correct. It is fundamentally an economic issue.
he never explains why it's moral to violate someone's economic right
This is a totally idiotic statement.
1. There is no such thing as an "economic right." Prices are set because of supply and demand, not because there's a "right" to that price. The number of products produced is determined by marginal analysis, not because there is a "right" to produce that number of products. Nobody has a "right" to make a profit. And so on.
2. Even if you believe there are "economic rights," there's no way in Hell that a government-enforced monopoly is one of them.
3. Even if you believe it is, the statement is irrelevant, because Mike never claimed it was "moral" to "violate" that right.
4. Even if you believe that's what he's talking about, he gave you a reason right in the quote to believe it is ethically moral: "there's the greatest overall economic good and everyone has the greatest opportunity to benefit." Only an idiot would claim this stance is immoral.
Admitting the fact that is illegal does not mean that he thinks it to be immoral.
I meant both the fact that he thought it was illegal, and the fact that he believes it goes against the wishes of artists. Obviously.
It's too bad he won't discuss these issues. Wonder what he's so scared of?
He does discuss these issues. Just not with you, because you've done nothing but an asshole.
And it's incredibly hypocritical to say he "won't discuss these issues," when you won't discuss them, either.
In this entire thread, you haven't discussed ethics. You sidestep the issue by going off on tangents about legal statutes or colonial history. In fact, you are sidestepping the issue right now. You are attacking Mike's viewpoints, in order to avoid talking about your own.
I've indulged you thus far, but no longer. No more talking about Mike. No more talking about the law. No more talking about history. From here on out, we are talking only about ethics, and about your ethics in particular.
In this entire thread, the only justification for your ethical viewpoint is that something is bad because the government says so. That is not an ethical answer; it is a defense of totalitarianism.
So, are you finally going to say why your viewpoint is ethical, or not?
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That's total bullshit. If he thinks going against the wishes of creators is "not OK," then he thinks that going against the wishes of creators is immoral. This means that, in general, piracy is immoral - because if it was not against the wishes of the artist, then it would not be piracy in the first place.
There are definitely situations where the artist is not the copyright holder - but if the copyright holder is going against the wishes of the artist, they're not being ethical either. There are not a lot of people who would disagree with him on this point.
And, of course, he has always said that piracy is unlawful.
That, right there, is enough to know that he does not endorse or excuse piracy, and does not believe it is ethical.
And there is absolutely nothing wrong with this viewpoint. Certainly it does not make him unethical.
Additionally, he asked you a question - which as far as I know, you refused to answer. It was: if the copyright holder is better off because of piracy, can they really be considered a "victim" of piracy?
I won't speak for Mike, but this seems to mirror the common-sense view that someone must be harmed for an act to be considered immoral. And I don't mean "harmed" in some theoretical or ideological way - I mean harmed in a way that can be objectively determined by evidence.
Of course, he's made it clear that he considers piracy to be an economic issue, and that his personal moral opinion is unimportant. Since copyright really is an economic issue, this is a completely valid viewpoint.
Your viewpoint, on the other hand, is not even remotely ethical. Mike's views are more ethical than yours by pretty much any moral standard. At the very least, his views are much more mainstream than yours among the general populace.
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Speaking of ethics, I should also let you know that I do, in fact, hold kind of a "fruits of my labor" moral viewpoint. I believe it is unethical for anyone else to make money directly off of my works, without compensation, unless I grant permission.
But the ethical problem isn't my "loss" of potential income; it's someone else gaining income directly from my work.
So, for example, someone who sells my album without compensating me, has acted unethically. Someone who buys that album has not. Neither is it unethical to "pirate" my album, provided that it's not done for profit.
And, since it's not unethical for others to "pirate" my work for non-profit reasons, it's not unethical for someone to facilitate that "piracy" - even for profit. For example, let's say someone decided to run a non-profit library that is open to the public. It would not be unethical for a landlord to rent space to this library, even though the landlord is making money. It would be unethical to claim the landlord is "pirating" books.
In fact, the end goal of writing music - like the end goal of all artistic creation - is widespread public enjoyment of my music. Anything that achieves this goal must of necessity serve an ethical end. And here, I mean that it serves my own private ethical interests in creating art; not (just) the interests of the public. So my "sweat of the brow" moral interests must be balanced against my private "widespread distribution" moral interests.
But obviously, both interests are trumped by the public good. Gaining the fruits of my labor simply cannot result in public harm, or else it is unethical. It would be nothing but outright greed.
Until very recently, copyright law satisfied my ethical viewpoint, so I have no problem with the way it was. It is only now that "piracy" is shorthand for "non-commercial sharing between members of the general public" that I believe it is unethical. Not just slightly unethical, either; but outright dangerous.
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I was not claiming categorically that no Founder held a Lockean view of copyright. The statement I was refuting was that all Founders did have a Lockean view of copyright. The A.C. seemed to be saying that the Lockean view of copyright as private property, and the "fruits of labor" view that Locke held, were universally accpted among the Founders. Perhaps I misunderstood his intent, but if that is what he meant, it is something I will still categorically reject.
I'll concede the point that most of the states' copyright laws were justified, partially or mainly, by a Lockean "natural rights" standpoint, due mainly to the arguments of Joel Barlow. I will also concede that the Continental Congress report, being directly influenced by Barlow, espoused this view as well.
I will also concede this point. In general, Revolutionary law did not see any conflict between the "natural rights" view of copyright, and the "public good" view of copyright. Most statutes at the time espoused both views.
But I won't concede that about the majority of Founders unless you can actually show me passages written by those Founders themselves. Madison, for example, was actually in the committee that wrote the Continental Congress report - but saying he held a Lockean "natural rights" view of copyright would be, at best, an oversimplification.
And when it comes to the Continental Convention in Philadelphia, the viewpoint of everyone involved was that copyright was a monopoly, not any sort of property right. Examples:
So, while the "natural rights" argument was certainly espoused in the state statutes, as well as in the report of the Continental Congress, it does not appear to have played any role whatsoever in the debate surrounding the Copyright Clause itself.
Additionally, the first Federal Copyright Act was entitled "An Act for the encouragement of learning," and did not mention authors' "natural rights" at all.
And in any case, the "natural rights" view (also called the "common law copyright" view) was laid to rest in Wheaton v. Peters. But this is probably another tangent.
And, again, none of this has anything to do with ethics. Even if I did concede that all the Founders held the view that copyright was based on Lockean views of "natural rights," or "equitable justice," or whatever, that does not mean that the Founders were correct, or that their viewpoints were moral. We are currently arguing about history, not ethics.
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Well, keep in mind that this was the idea I was rebutting: "To our Founders, men had a just and equitable right to their property; intellectual property was no different."
It is absolutely true that many Colonial governments held a "natural rights" view of copyright. But it would be an overstatment to say they considered it a Lockean form of property; generally they used wording like "the Sole privilege." Nor would it be accurate to say that this is the reason copyright laws were enacted. For example, nearly all had various registration requirements, and about half had an explicit legal requirement that the author release "a sufficient number of copies" to the public "at reasonable prices." Nearly all of the bills creating the statutes had titles like "A Bill to Advance Learning and the Sciences."
It's interesting to keep in mind that prior to 1783, general copyright statutes did not exist. Individual authors had to petition the colonial governments to pass bills granting them private monopolies on specific works. But this is another one of my tangents.
In any case, talking about Colonial law is not the same as talking about the Founding Fathers.
To do that, we have to look to the Founders that were involved in the Copyright Clause. Most simply didn't give a rat's ass; the original draft didn't even contain one at all. The only ones that I know about were Charles Pinckney, James Madison, and Thomas Jefferson. We only know Pickney cared because he introduced an earlier draft; as far as I know, he never wrote about his reasoning.
Madison and Jefferson we've already heard from once, but this exchange may clear things up:
Madison himself wrote two proposed versions of the Copyright Clause: "to secure to literary authors their copyrights for a limited time," and "to encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries."
These are not the words of people talking about some Lockean view of private property. They are not creating the Copyright Clause due to some utilitarian notion of a "just and equitable right."
However, while researching this post, I ran across a quote from Thomas Paine: "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."
So, that's one founding father who did think of copyright fundamentally in terms of Lockean property. However, he had nothing to do with the Copyright Clause.
It's also of note that a few of the Founders (e.g. Ben Franklin) were themselves "pirates" of English books. It would be hard to believe that they held some sort of "natural rights" view of copyright, where authors had "a just and equitable right to their property."
Let's just say this. For the most part, the Founders did not consider copyright to be exactly the same as Locke's notion of private property.
Some of them did. Some of them believed copyright was an author's "property," but of a different sort. Some of them did not think of copyright as any form of property at all. Some believed copyright should exist to guarantee a "just reward" for the fruits of their labors. Some believed that copyright should exist solely to serve the public interest.
The only thing that is categorically true, is that they all believed knowledge and learning would be advanced by providing authors with a special reward for their labors.
And absolutely none of this has anything to do with whether current copyright law is ethical.
Is that a good enough answer?
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If I go off on a bunch of tangents, it's only because I'm replying to points that were raised by other people in the debate. But you're right. This has gotten off track. We were not talking about Colonial history, nor about the legislative history of copyright.
We were talking about ethics. So let's get back to that.
For the sake of argument, let's say you're right about the monopoly right in expression being an innate "property" right, and that if I infringe on this right by creating or distributing my own copies without authorization, then I am "stealing" this property. And let's say that this property right is a priori ethical (though you've never said why it should be ethical).
So, once again, I ask you: How could it possibly be ethical for me to download a copy of "Night of the Living Dead?" After all, I am "stealing" Romero's property. The fact that I am doing it without breaking the law tells us nothing about the ethics of the act - only that the law is unjust.
How is it that you can believe it's evil to infringe on the author's property rights in one instance, but absolutely ethical to to infringe on the author's property rights in another?
You have never given me an answer to this. And, frankly, I don't think you even can.
I, personally, have never been conflicted this issue. I don't believe that copyright is a form of "property," in the Lockean sense. "Stealing" this form of "property" is not a priori unethical. It is, in fact, accomplishing the only ethical thing that copyright itself even could accomplish: the widespread distribution of works to the public.
That does not mean I believe it is legal. It does not even mean I believe it should be legal; we often tolerate restrictions on ethical acts, if it achieves a greater good overall. It means that I believe it is a necessary evil. And that, therefore, it should be as limited as possible to achieve its ethical goals.
But you, obviously, do not believe that. You believe it is so unethical, that people should have their property taken away, be sued into bankruptcy, have their businesses destroyed, and possibly taken at gunpoint and thrown in jail. You believe that it is so unethical, that prosecuting it deserves more exemptions from due process and prior restraint than other forms of unlawful speech. You believe it is so unethical, that it should be punished even if authors benefit from it.
And you believe that piracy is so unethical, it entitles you to act like an asshole to everyone who disagrees with you. You have - consistently - mucked up numerous threads on this site with personal insults, called the Techdirt authors "slimebags" and "liars" and "cowards," because their personal ethical views don't view piracy as unethical enough for you.
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