I know my post was already way too long-winded, but since we've got a huge discussion on ethics going on here, I felt I also needed to point something out.
We've all been talking about the "right to exclude." But really, this is just a legal euphemism. In fact, what is granted to authors is the "right to punish."
Copyright doesn't actually prevent others from doing anything. It only allows artists the right to punish others who do not obey the copyright holder's rules of exclusion.
It grants them the right to sue me for hundreds of thousands of dollars, put me into bankruptcy, ruin my business, and destroy my life and the lives of my dependents, all for creating or distributing my own copy of a work that he authored. Even if I don't actually do any of this myself, the copyright holder is allowed to do these things if I just "contribute to" others doing it. They can do these things to me even if I never intended to make a profit.
If those acts are (rather arbitrarily) deemed criminal offenses, it additionally grants the right to the government to kidnap me at gunpoint, take all my property, throw me in a cell, and keep me locked up with murderers and rapists for years on end, all in the author's name.
This is what we are defending when we defend copyright law. It's important that we never forget that.
Copyright rewards authors, which in turn, rewards the public.
You are, once again, missing the point - the point that you keep bringing up, incessantly, in nearly every single thread on this site.
The point is that the ethical good that is being done, is not because the rights themselves are moral, but because the rights may promote an ethical end.
Think of it this way. The government grants tax breaks to corporations who donate money to charity. But they do not do it because "granting tax breaks to corporations is ethical." It's not even because donating money to charities is, itself, ethical. It's because the charities do ethical acts. And this would be true, even if Congress decided that the best way to promote charity donations is to institute those tax breaks as "property rights."
It is exactly the same with copyright law. The rights granted to authors are not, in and of themselves, ethical in nature. Their ethical value must be evaluated against the good that the rights are designed to promote: the public benefit (however you choose to interpret "benefit").
But if you disagree, and claim it is the rights themselves that are a priori ethical, then again, they are ethical regardless of whether they are recognized by law. You then have no option but to claim I acted unethically when I downloaded "Night of the Living Dead."
You did not - which means that you do not believe those "rights" are an ethical imperative, either.
The two cannot be separated since the theory is that one leads to the other.
Of course the two can be separated, if the theory is wrong. If rewarding authors does not lead to greater public benefit, then they should be separated.
And this is not an ethical determination, but a factual one. Do the rights granted to authors in fact lead to a wider dissemination of works? Do they in fact incentivize artists to create more works? Do they in fact function as "the engine of free expression?"
Most importantly for you, does infringement of these rights in fact lead to a reduction in any of these goals? Would working with infringement achieve these goals better than working against infringement?
These are the sorts of questions that Techdirt deals with. It deals with them by examining evidence, not through faith-based acceptance of the theory. And according to the evidence, the theory is in fact wrong.
"Deserve rewards." Mazer v. Stein.
Put in the context of the rest of the text, Mazer v. Stein does not seem to be saying what you claim it is: that one purpose of copyright is to reward the "sweat of the brow" of authors. That argument is explicitly denied in Feist v. Rural, among many other cases. In fact, see the very first U.S. copyright case, Wheaton v. Peters: "The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published."
Regardless: even if you believe that artists "deserve rewards," that is not the same as saying infringement is unethical. You would be saying it was unethical if it does not reward artists.
In other words: if an artist's "rights" are violated, but that "violation" leads to greater rewards, then that "violation" is not unethical.
That's if you accept the "sweat of the brow" argument for copyright, of course. And if you do accept this argument, it once again leads to the conclusion that downloading "Night of the Living Dead" is unethical, unless I "reward" Romero.
Just because it's an "evil" doesn't mean it's moral to violate the right once granted. "It's evil" is not a defense to copyright infringement, legally or morally.
Not only is it a defense morally, it is an ethical obligation. If that evil is tolerated in order to promote a good, but it does not in fact promote that good, then all we are left with is an evil. In order to be ethical, we are obligated to remove that evil.
At the very least, it is in no way unethical to act against that evil. The only possible way it would be unethical is if it acted against the good that is supposed to be promoted by that evil. Otherwise, you don't have a righteous leg to stand on, and you'll fall off your soapbox.
And if the law does not recognize this, then the law is unethical. Ethically, it doesn't matter if artists' statutory rights are violated. It doesn't matter if downloading a movie for free is infringement or not. It only matters if it acts against the public benefit.
You have already stated that the act of downloading a movie for free, in and of itself, is ethical. So until you actually show evidence that preventing this ethical act provides a greater public benefit, you have no right to get on your high horse.
Access and dissemination are not the only issues in play. A person can get a copyright and then decide to lock up the work, never disseminating it to anyone.
This is a gross misstatement. "It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius" (United States v. Paramount Pictures). "By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas" (Harper & Row v. Nation Enterprises). "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The Constitution of the U. S. has limited [monopolies] to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use" (James Madison). Congress thought the CTEA would "provide copyright owners generally with the incentive to restore older works and further disseminate them to the public." And so forth.
Yes, copyright is fixed at the moment of creation, not publication. But it was fixed at the moment of publication until the Copyright Act of 1976. This is mainly so artists have the "right of first publication." Historically, this has always been seen as distinct from copyright. See, again, Mazer v. Stein: "Congress may, after publication, protect by copyright any writing of an author. Its statute creates the copyright. It did not exist at common law even though he had a property right in his unpublished work." Or, see Wheaton v. Peters: "That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world."
The language of the statutes certainly implies that publication is the goal. The very definition of "fixed" is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The (very recently enacted) criminal laws against "leaking" works, specifically cover "the distribution of a work being prepared for commercial distribution."
And if copyright really was about anything other than "access and dissemination," we would not have such things as statutory royalty rates.
Yes, an artist may never disseminate his work to the public. But he certainly doesn't need copyright to do that, and one of copyright's purposes is to discourage this.
If it was only about access, then giving people the right to deny access is a silly way to accomplish that end.
Then you're arguing against the theory of copyright. I happen to agree, it is silly, and that's why copyright doesn't work. At least not anymore.
I forgot to add this to the mix: the Visual Artists Rights Act, which recognizes moral rights for artists.
That was enacted as a result of the Berne Convention Implementation Act of 1988, which (as you might guess) happened so that the U.S. could legally sign the Berne Convention.
And notice what those "moral rights" entail. They are the right to "claim authorship," and to "prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation." Furthermore, they "shall not apply to any reproduction, depiction, portrayal, or other use of a work" - only to the original artwork.
This generally tracks what "moral rights" are in the other (primarily European) countries that have them. They are completely distinct from the "economic rights" in those countries. They cannot be waived, nor transferred to any other party (except by inheritance). In about half of the countries that adopt them, even the term lengths are different. And they only cover things like the "right to attribution" and the "right to integrity" - rights that, here in the U.S., are generally covered by libel and slander laws.
They are, in other words, the equivalent of CC-BY. (Intentionally: it's actually how CC wrote its BY legal code, and the reason that CC-BY is the least restrictive CC license that is globally enforcable).
And they have absolutely nothing whatsoever to do with piracy.
You seem so set on denying that copyright is at all about rewarding authors, but the fact is it's about rewarding authors which in turns rewards the public.
And you are so set on denying that copyright is all about benefitting the public, that you deny that copyright even can be about anything other than "violating artists' rights." You deny that any other viewpoint even could be ethical.
You are so single-mindedly focused on this that you viciously insult anyone who dares to even ask whether those "rights" do, in fact, result in any benefit to the public whatsoever. You are so in denial that enforcing those rights even could be unethical, that you ignore every violation of due process, free speech, or free enterprise. You chortle with glee at cruel and unusual punishments for even minor offenses, as long as the victims of those punishments are "pirates." You are so focused on artists enforcing their rights, that you don't even care when enforcing those rights actually harms artists. And you call everyone who is not as narrow-minded as you a "lying slimeball."
And to justify all this, the only real argument you have put forth is a tautology. "Unlawful infringement is evil because it is unlawful infringement." This is quite literally the only thing you have said in the entire thread.
Make no mistake about it. You have not behaved ethically here. You have not shown that you even have an understanding of what "ethical" actually means.
I disagree with your premise that rewarding authors is secondary or even irrelevant to unrestrained public access to works.
Well, that's not what I said. I said that public access to works is the purpose of copyright. Rewarding authors is not "secondary" or "irrelevant," it's simply not why copyright exists.
To the degree that rewarding authors actually does result in the widespread distribution of works to the public, then those rewards are justified. But they are not justified as an end in themselves, but as a means to an end.
And you'll notice that at no point was rewarding authors justified on moral grounds. It provides "the incentive to profit," "a marketable right," "the economic incentive." These are not moral terms, but economic terms. It shows that infringement is an economic, not moral, issue.
In contrast, the only time anything even remotely resembling moral language is used, is when we are talking about the public. We "advance public welfare," "create and disseminate ideas," or serve "the public benefit by resulting in the proliferation of knowledge." This is the purpose of copyright; providing an economic incentive is the method by which that purpose is accomplished. "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors" (Fox Film Corp. v. Doyal).
And make no mistake about it, that method was not considered an ethical imperative. "The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly" (H.R. Rep. No. 60-2222). "But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good" (James Madison).
I can't help but note that if the original goal of (and the only "ethical good" intended by) our Founders in establishing copyright was *solely* to foster the "widespread distribution of artworks to the public" and "growth of the public domain" they would never have granted the Congress the power to lock up works for any duration at all.
That is the great contradiction in copyright law: we grant a temporary monopoly on expression, in order to accomplish more widespread dissemination of that expression.
Keep in mind that throughout most of U.S. history, "widespread dissemenation to the public" meant "publication by commercial publishers." The theory is that without this monopoly on the economic exploitation of expression, publishers would go out of business, and authors wouldn't be able to get money from them to keep writing. Thus, even though expression would be unhindered, there would be less of it overall.
And I say "economic exploitation" for a reason. Until very recently, "infringement" was synonymous with "commercial infringement." Non-profit use by the public was usually encouraged. Exemptions from the copyright monopoly for libraries, research, news reporting, and so forth have been codified in the statutes pretty much since copyright existed. Even before Congress included it in the 1976 Copyright Act, fair use existed in a long-standing body of case law. I have looked for historical cases where non-commercial copying was considered infringement, but the earliest one I could find was from the 1970's. And prior to 1997, you could not be charged with criminal infringement unless you were doing it for pecuniary gain.
Simply put, the impact on public use was minimal. Since commercial publishers were both the only ones who could accomplish widespread distribution, and also the only ones who had to worry about copyright, the whole arrangement was a good bargain for the public.
And if copyright was still limited to "economic exploitation," it would still be morally justified, in my opinion. But, unfortunately, it is not. Copyright's impact on the public, at this particular point in history, is far more damaging than beneficial.
we as a society (through our legislative process) have determined that authors have an ethical and legal right to control their works for a limited period of time. This is the message embodied in our Constitution and realized by our Congress.
It's a good hypothesis. It is also not true.
Authors do not have the Constitutional right to copyright. The right to make copyright laws is granted to Congress, not to artists.
And it is granted for one purpose: to "promote the progress of Science" (in the case of copyright). Both Congress and the Supreme Court have made it very clear that the beneficiaries of copyright law are the public.
In other words: in theory, the "ethical good" that comes from copyright is increased public access to artistic works. It is the only ethical value that copyright promotes.
The ethical motivations for copyright have absolutely nothing to do with the "property rights" of authors. In fact, such "property rights" are theoretically viewed as a social evil, only tolerable if they result in a benefit to the public that outweighs this evil.
It is very hard to see how "piracy," at least of the non-commercial variety, conflicts with this ethical goal. After all, non-commercial piracy is nothing other than increased public access to artworks. You know how I downloaded "Night of the Living Dead" for free? That, and that alone, is the "social good" that copyright exists to promote.
This is why copyright is granted to Congress, and not to authors directly, under the Constitution. As representatives of the general public, Congress is supposed to make sure that the monopoly rights that the public grants to copyright holders, work first and foremost to the public's benefit.
At least in theory. In practice, multinational commercial rights holders have completely taken over copyright. The idea that copyright benefits the public first and foremost has been buried under a mountain of lobbying money and propaganda.
There is no question in my mind that copyright laws, as they currently stand, impede the widespread distribution of artworks to the public, and impede the growth of the public domain. This makes our current laws unethical.
I'm using right to mean that which is proper under the law.
And, again, legal does not equal moral. If that is your definition of a "right," and if something is wrong only because it violates that "right," then you are forced to conclude that anyone who violates an unjust legal right is immoral.
This is exactly why the slavery example was brought up. Under your current definition of morality, anyone who helped a slave escape to the North was not just violating the slave owner's statutory property right under the law, but he was acting immorally.
So, as I (and many others) said above, two things cannot be used as premises for moral arguments:
1. That an act is immoral because it violates the law.
2. That an act is immoral because it violates a statutory property right.
I have never thought of ethics as involving rights.
The notion that people have ethical rights is the basis for all ethical judgements. An act is morally wrong if it violates one of these rights; it is morally good (or at least morally neutral) if it does not.
But legal rights and ethical rights are not synonymous; otherwise, the legal property rights of a slaveholder would be ethical rights, and violating them would be morally wrong.
Can you explain to me what an ethical right is?
An ethical right is one that is ethically good for people to have, regardless of whether it is recognized by law or not. Various moral theorists have called these "human rights," or "natural rights," or "civil liberties." If the law infringes upon these rights, the law itself is unethical.
For purposes of this discussion, I am not going to demand that an ethical right be something as strong as a human right. Only that the right is granted for ethical reasons that exist independent of the law. If there are no such reasons, then it is not unethical to break that law - only unlawful. On the other hand, if there are such reasons, then violating that right is unethical - even if it is not unlawful.
And, here, you are being inconsistent. If there really were ethical reasons for granting rights under copyright law, those rights would be an "ethical rights" existing independent of the law, and I would be violating those rights when I downloaded "Night of the Living Dead." Furthermore, by allowing me to violate those ethical rights, copyright law itself would be unethical (at least as it stood at the time).
By saying I did nothing ethically wrong, you are now left with only one conclusion. The rights granted by copyright are not ethical rights. Whatever the reasons copyright laws exist, they are not ethical reasons. It may be necessary to prevent infringement, for non-ethical reasons; but preventing infringement is not a moral imperative.
And thus, by your own answers, violating copyright is not unethical. It is unlawful, certainly; and preventing it may be necessary for e.g. practical or utilitarian purposes. But it should never be considered immoral.
You're asking me to identify an ethical right, but I don't think there is such a thing.
That's an interesting viewpoint, and I think you're the only one on the planet who actually believes it.
It does, of course, make you absolutely amoral - since without ethical rights, there could never be anything unethical about violating any rights at all, since you can't violate something that doesn't exist.
I think if someone owns the copyright to a movie and if it's infringing for me to download that movie, then I am violating that owner's rights and I'm acting unethically.
If your answer above is true, then you can't believe this. The person who holds the copyright on a movie has no ethical claim to any of those rights. You just said so.
So, if I infringe on those rights, I have done something unlawful, but I could not possibly do anything unethical.
It amazes me that you have the unmitigated gall to repeatedly insulting Mike for not believing piracy is immoral enough for you, when you can't give one reason why piracy is immoral in the first place. Or, as it turns out, why anything else is morally wrong, either.
So, if you think it's ethical for me to download "Night of the Living Dead," but not, say, "Transformers 3," then you have to explain the ethical reasons - not the legal reasons - that one has copyright protection, and the other doesn't.
Either that, or just admit that copyright has nothing to do with ethics. And realize you're a complete tool for criticizing Mike on this issue.
Did you act ethically when you downloaded a movie in the public domain and where your downloading did not violate anyone's rights? Yes, that was ethical in my opinion.
Good, that's a start.
Now, answer me this: what rights do other filmmakers have, that Romero does not?
And remember, we're talking ethics, not laws - so "copyright" isn't a valid answer. For if a filmmaker has an ethical right, then he has it regardless of whether it's recognized by copyright law or not.
I think it's obvious that I'm only asking about the situation where the downloading is in fact infringement.
And that would make a difference if I asked whether it was legal. I am not. I am asking if it is ethical, something that has absolutely nothing to do with whether it was infringement or not.
Ethically, there are really only two valid answers to that question:
1. What I did was not ethical. "Night of the Living Dead" only entered the public domain because of a loophole in the law - one that has since been closed. The law was unjust, and George Romero was robbed of his rights. I should want to pay the people who spend the time, energy, and money to create the content that I value, so I had an ethical imperative to buy the movie from him. If Romero demands that I pay him, even though it's not legally required, he is only standing up for his own rights.
2. What I did was ethical. "Night of the Living Dead" is a cultural landmark, so I was doing nothing worse than experiencing my own cultural heritage. The spread of culture is a moral good, and I have no ethical imperative to pay for it. If Romero thinks this is unjust, he is only expressing his own sense of entitlement and greed.
And there are even more questions I can ask that muddy the waters. What if I had no idea that "Night of the Living Dead" was public domain? What if I was some sixteen-year-old kid, browsing the Pirate Bay, and I downloaded the movie from that site? Would I be unethical for doing so?
That last question is exactly like the question you asked Mike:
(1) Person A uses bittorrent to download "Night of the Living Dead." He could pay for it on iTunes, but it's easy to file-share, so he just takes it without paying.
(2) Person B uses bittorrent to download "Night of the Living Dead." It's not available where he lives, but he really wants to see the movie because he likes the protagonist.
(3) Person C uses bittorrent to download a "Night of the Living Dead." It's available on DVD, but he doesn't have a player. Instead he wants to stream it on his laptop.
Do you see now why this is a bullshit question? If downloading "Night of the Living Dead" isn't unethical, it makes no difference at all why someone does it.
Why won't you give me a straight answer? Should I search out every post you made on this site, and reply to all of them, saying how you're a slimy totalitarian apologist liar?
Do you think that when someone downloads a movie because they simply want to watch it for free without paying for it, that person has acted immorally?
Just the other day, I downloaded Night of the Living Dead, simply because I wanted to watch it for free without paying for it.
Did I act immorally?
Before you answer, remember this: Night of the Living Dead is in the public domain.
But that shouldn't make a difference. After all, morality is not dependent on legality - so, morally, it makes no difference at all whether the movie is in the public domain or not. Either the act itself is immoral, or it is not.
I know I am late to this party, but I have to pick at this one a bit, because it's sort of a perfect piracy apologists view of the world.
I'm late to your comment, but I have to pick at this one a bit, because anyone who uses the phrase "piracy apologists view of the world" is spouting bullshit.
When a ruling supports piracy in some format...
No ruling, ever, has "supported piracy in some format." Tautologically, a court ruling cannot "support piracy" in any way, shape, or form. The fact that you think it can, shows that you think perfectly legal things are "piracy."
..it's a "sweeping judgement" or "changes everything". When it goes against piracy, it's narrow or (in this case) "highly fact specific".
Funny, usually copyright maximalists accuse people of doing exactly the opposite. If it's not presented as "highly fact specific," but instead a "sweeping judgement" that "changes everything," the copyright maximalist camp accuses them of spreading FUD.
The reality is that a site that intentionally links to infringing content is infringing.
The reality is that a site that is told by the copyright holders of specific links on their system that point to infringing content, and do nothing to take those links down, then they can be liable for contributory infringement under civil liability theories.
Other than that, they're not infringing.
What is interesting is that it sets up a whole potential for a precedent, at least in that country, that this is infringement. That could mean anything including embedded content.
Aren't you doing exactly the same thing that you accuse the "piracy apologists" of doing? If a ruling supports copyright maximalism, it's a "sweeping judgement" or "changes everything." The plain fact is that the ruling is, in fact, fairly narrow.
I like how the court cut past all the horse crap that serial infringers through up there to block the law (I didn't host it, I didn't know, SODDI)
That's not "blocking the law." That's following it. If a site doesn't host the material, and/or didn't know it was infringing, then they are not infringing under U.S. law.
The fact that you view these sites as "serial infringers" shows, once again, that you think perfectly legal acts are "piracy."
you cannot blindly ignore the ramifications of your actions, just because you are doing them "on the internet".
This is complete bullshit, because these actions were not considered infringing until people were doing them "on the internet."
For example, the "linking sites" that we're talking about are no different than Hot Wacks. If you don't know, Hot Wacks was an annual magazine with discographies, mail-order contact info, and reviews, all devoted solely to bootleg recordings. It has been around since the 1970's, and the latest edition is still for sale on Amazon. And as far as I know, it has never been considered infringing. Yet somehow, when a website does the same thing, they're evil pirates who deserve to be arrested.
It seems like you're saying that contributory infringers aren't direct infringers, but Patry is right because the Act makes contributory infringers into direct infringers. Huh?
Bad wording on my part. I should have phrased it: "It does this by making those who 'authorize' no longer contributory infringers, but direct infringers."
"Contributory infringement" is not the same as "authorization." Neither is "inducement" nor "vicarious infringement." All of these were taken from civil case law theories of secondary liability. None of the modern secondary infringement cases (Napster, Grokster, etc) were based on the idea that they "authorized" reproduction or distribution. They did not.
Interesting demand, seeing as you are not even capable of reigning in your compulsive hatred of Techdirt, and the insults and borderline slander that go along with it.
But, sure, I'll go with it.
Do you agree that under the Ninth Circuit's reasoning in Perfect 10 v. Amazon.com, a party that knowingly links to an infringing file can be liable as a contributory infringer for whatever infringement takes place by others who use that link?
In that particular case on that particular record, myVidster wasn't liable. But nowhere in the opinion does the court of appeals say that a linking site can never be liable.
And neither did Mike. He said a link can never be infringement. He's right.
Huh? That makes no sense. A contributory infringer is an infringer.
This is wrong. A contributory infringer is one who contributes to the infringement of another. They need not, themselves, actually infringe anyone's copyright to be considered liable.
And it is indeed a big difference, because the quote from Mike was specifically about the myVidster case. That case was significant because the MPAA had claimed that linking or embedding is direct infringement. The exact quote: "myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."
As it turns out, the MPAA was wrong. Big surprise there.
Sony v. Universal, 464 U.S. 417, 435, n.17 (1984).
Here's another direct quote from Sony: "The Copyright Act does not expressly render anyone liable for infringement committed by another. [...] The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity."
And half of the passage you quoted explained exactly how secondary infringement is not in the copyright satute, but arose solely from civil case law. "Contributory copyright infringement is a form of secondary liability with roots in the tort-law concepts of enterprise liability and imputed intent." "In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept of 'inducement.'" And so on.
It's really amazing that the very case you quote explains how you're wrong.
In civil cases, it doesn't make that much difference. But in criminal cases, it does. Criminal cases cannot go beyond the "express language in the copyright statute." They cannot use the contributory infringement standards from Napster, Grokster, etc, because those standards did not arise from the copyright statute - as the court in Sony made explicitly clear.
As Patry explains in his treatise:
Patry is right in one sense - the "to authorize" phrase is designed to punish contributory infringers. It does this by making them no longer contributory infringers, but direct infringers.
Of course, "authorized" is a very strong word - for example, Napster or Grokster didn't "authorize" the use of any copyrighted materials. They materially contributed to others' infringements; they induced infringement by others. But the doctrine of contributory infringement that was created under Napster, Grokster, etc., had absolutely nothing to do with "authorizing." As the text of the cases themselves make absolutely clear, those cases created their versions of secondary liability directly from civil case law, not 17 USC.
As an aside - here's a phrase by Patry that I really love:
There is no reason to keep pretending that the Copyright Wars involve matters of morality or principle - they don't and never have. The Copyright Wars and their predecessors have always been about one thing and one thing only - a fruitless effort to resist, to the end, the very nature of capitalism, which is a dynamic, creative force by which new innovations and business models replace old ones.
That's not what the Ninth Circuit said in Perfect 10 v. Amazon.com, which I quoted at length.
Sorry. The Techdirt link you pointed me to was about myVidster, which was a streaming case. In that case, the link site would have to induce or encourage direct infringement, because viewing an unauthorized performance in private is not an infringing act. Even if the link site actively encouraged people to watch those streams, they would not be liable for infringement. At least according to Judge Posner.
So, in that particular case, the linking site would have to directly assist or encourage the uploaders, since they are the only ones who are directly infringing. And it was absolutely apropos to the website seizures, since the majority of them are streaming cases (amazingly enough).
The Perfect 10 case dealt with users who were downloading (i.e. copying) images to their computers, which is an infringement in and of itself, so the above doesn't apply. And, yes, in that particular case, Google could be liable for contributory infringement (but not direct infringement, inducement, or vicarious infringement) if they "knowingly takes steps that are substantially certain to result in such direct infringement."
However, merely providing a link does not impute such knowledge; they must have "actual knowledge that specific infringing material is available using its system" (emphasis in original).
Right there Posner says that there is "contributory infringement," which just above you said doesn't exist.
See? Lying again. I never said that contributory infringement doesn't exist. I said that it is the application of liability to people who do not themselves infringe. And I am right.
So right there it's pretty clear that he doesn't see how linking and embedding can possibly be infringing.
In that article, he is asking how those particular sites - which did not host or store any materials themselves, and whose links were put there by users, not site owners - could be held liable for any form of infringement.
Given the myVidster ruling - which held that myVidster is not even liable for contributory infringement - it's a very good question.
But it does not mean that a site that provides links can never be liable for contributory infringement. Just that it must be shown that they must do more than merely provide links to infringing material.
Strike one.
You need to read the part of the opinion that comes later (under the helpful section heading "IV Secondary Liability for Copyright Infringement A. Contributory Infringement") where the court of appeals says that linking can give rise to indirect liability for infringement.
I have. But "contributory infringement" is not actually infringement. It can give rise to civil liability for contributing to someone else's infringement, but it is not in itself infringement.
A link site may be held liable for contributing to the infringement, if the site hosting the links is "intentionally inducing or encouraging direct infringement." That is, if the site hosting the link intentionally induced or encouraged users to upload infringing material to third-party hosting sites, it can be held liable for those users' infringements. But merely providing a link to already-existing material does not, by itself, do this.
And, yes, Mike made the distinction: "After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be."
You may disagree with him that providing links does not "intentionally induce or encourage" the users to upload videos to the third-party sites. (You would be wrong, but you could disagree.) What you cannot claim is that Mike said no liability whatsoever could ever possibly arise from any linking sites. That would be an outright lie.
Strike two.
The Copyright Act doesn't distinguish between direct and indirect infringers, and both are treated the same under Section 506.
This is complete and utter bullshit. If the statutes didn't distinquish between "direct" and "indirect" infringers, then both would be "direct infringers" under the statute. Either you infringe on the rights granted in 17 USC 106, or you don't. If you don't, then you're not an infringer.
Civil law can hold some people liable for the infringement of others, under theories of "contributory" or "vicarious" infringement. But that liability does not arise from copyright statutes, but from "rules of fault-based liability derived from the common law." As Judge Posner observed in the myVidster ruling:
The law doesn't recognize "secondary infringement" either. The only distinctions relevant to this case are between direct infringement (which really ought just to be called infringement) and contributory infringement, and between contributory infringement and noninfringement. The direct infringers in this case are the uploaders.
This is so universally accepted, that I'm surprised you even bring it up. If you believe it, then you're even more ignorant of the law than I am.
But I don't believe you are. Which means that you're simply being misleading. Again.
Mike has made clear many times that he doesn't think linking should give rise to any liability.
You are, once again, lying. I've never seen Mike say that links should never give rise to any liability.
He has said that linking should not be an infringement in and of itself. And the courts agree - including the case you just mentioned:
Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.
This is relevant to the seizures, which are criminal cases, because there is no "secondary liability" in the criminal statutes. But that's not saying, and Mike never said, that there should be no liability at all.
I'm really getting sick of you lying, Joe. For a while, it was interesting debating the law with you. Now I realize you're just spouting off off-topic legal quotes to smear Techdirt. It's really sad.
At first, early on in the thread, I used right/wrong to mean legal/illegal.
If you actually mean this, then you're still acting like a troll. Here are the exact words you used at the beginning of the thread, substituting "unlawful" for "wrong":
But it does matter that it's unlawful. If it weren't unlawful, it wouldn't matter that it happens. But because it is unlawful, it matters that it happens. You and Mike and the rest of the gang might not think that it matters that it's unlawful, but in the real world when someone is doing something unlawful, it actually matters.
The fact that you don't/won't acknowledge that much speaks volumes[...]
Nobody at Techdirt has ever said that piracy is not unlawful. Never. They have always acknoledged it.
So, by your definition, you're attacking them for something that they never said.
And there's your problem. In common usage, nobody thinks right/wrong means legal/illegal. Everyone believes "right" means "moral," and "wrong" means "immoral." People also mean "immoral" when they say "not OK."
Don't blame Mike for answering the question you asked, rather than the question you meant to ask.
Plus, according to your (new) definitions, the question you asked Mike doesn't even make sense. You're simply asking Mike if he thinks piracy is unlawful.
You know for a fact that he has explicitly said this - and I know, because I personally quoted, to you, multiple times when he did.
All of which he said before you even asked.
You have your answer. You've had it for a long, long time. You're just being an asshole.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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We've all been talking about the "right to exclude." But really, this is just a legal euphemism. In fact, what is granted to authors is the "right to punish."
Copyright doesn't actually prevent others from doing anything. It only allows artists the right to punish others who do not obey the copyright holder's rules of exclusion.
It grants them the right to sue me for hundreds of thousands of dollars, put me into bankruptcy, ruin my business, and destroy my life and the lives of my dependents, all for creating or distributing my own copy of a work that he authored. Even if I don't actually do any of this myself, the copyright holder is allowed to do these things if I just "contribute to" others doing it. They can do these things to me even if I never intended to make a profit.
If those acts are (rather arbitrarily) deemed criminal offenses, it additionally grants the right to the government to kidnap me at gunpoint, take all my property, throw me in a cell, and keep me locked up with murderers and rapists for years on end, all in the author's name.
This is what we are defending when we defend copyright law. It's important that we never forget that.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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You are, once again, missing the point - the point that you keep bringing up, incessantly, in nearly every single thread on this site.
The point is that the ethical good that is being done, is not because the rights themselves are moral, but because the rights may promote an ethical end.
Think of it this way. The government grants tax breaks to corporations who donate money to charity. But they do not do it because "granting tax breaks to corporations is ethical." It's not even because donating money to charities is, itself, ethical. It's because the charities do ethical acts. And this would be true, even if Congress decided that the best way to promote charity donations is to institute those tax breaks as "property rights."
It is exactly the same with copyright law. The rights granted to authors are not, in and of themselves, ethical in nature. Their ethical value must be evaluated against the good that the rights are designed to promote: the public benefit (however you choose to interpret "benefit").
But if you disagree, and claim it is the rights themselves that are a priori ethical, then again, they are ethical regardless of whether they are recognized by law. You then have no option but to claim I acted unethically when I downloaded "Night of the Living Dead."
You did not - which means that you do not believe those "rights" are an ethical imperative, either.
Of course the two can be separated, if the theory is wrong. If rewarding authors does not lead to greater public benefit, then they should be separated.
And this is not an ethical determination, but a factual one. Do the rights granted to authors in fact lead to a wider dissemination of works? Do they in fact incentivize artists to create more works? Do they in fact function as "the engine of free expression?"
Most importantly for you, does infringement of these rights in fact lead to a reduction in any of these goals? Would working with infringement achieve these goals better than working against infringement?
These are the sorts of questions that Techdirt deals with. It deals with them by examining evidence, not through faith-based acceptance of the theory. And according to the evidence, the theory is in fact wrong.
Put in the context of the rest of the text, Mazer v. Stein does not seem to be saying what you claim it is: that one purpose of copyright is to reward the "sweat of the brow" of authors. That argument is explicitly denied in Feist v. Rural, among many other cases. In fact, see the very first U.S. copyright case, Wheaton v. Peters: "The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published."
Regardless: even if you believe that artists "deserve rewards," that is not the same as saying infringement is unethical. You would be saying it was unethical if it does not reward artists.
In other words: if an artist's "rights" are violated, but that "violation" leads to greater rewards, then that "violation" is not unethical.
That's if you accept the "sweat of the brow" argument for copyright, of course. And if you do accept this argument, it once again leads to the conclusion that downloading "Night of the Living Dead" is unethical, unless I "reward" Romero.
Not only is it a defense morally, it is an ethical obligation. If that evil is tolerated in order to promote a good, but it does not in fact promote that good, then all we are left with is an evil. In order to be ethical, we are obligated to remove that evil.
At the very least, it is in no way unethical to act against that evil. The only possible way it would be unethical is if it acted against the good that is supposed to be promoted by that evil. Otherwise, you don't have a righteous leg to stand on, and you'll fall off your soapbox.
And if the law does not recognize this, then the law is unethical. Ethically, it doesn't matter if artists' statutory rights are violated. It doesn't matter if downloading a movie for free is infringement or not. It only matters if it acts against the public benefit.
You have already stated that the act of downloading a movie for free, in and of itself, is ethical. So until you actually show evidence that preventing this ethical act provides a greater public benefit, you have no right to get on your high horse.
This is a gross misstatement. "It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius" (United States v. Paramount Pictures). "By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas" (Harper & Row v. Nation Enterprises). "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The Constitution of the U. S. has limited [monopolies] to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use" (James Madison). Congress thought the CTEA would "provide copyright owners generally with the incentive to restore older works and further disseminate them to the public." And so forth.
Yes, copyright is fixed at the moment of creation, not publication. But it was fixed at the moment of publication until the Copyright Act of 1976. This is mainly so artists have the "right of first publication." Historically, this has always been seen as distinct from copyright. See, again, Mazer v. Stein: "Congress may, after publication, protect by copyright any writing of an author. Its statute creates the copyright. It did not exist at common law even though he had a property right in his unpublished work." Or, see Wheaton v. Peters: "That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world."
The language of the statutes certainly implies that publication is the goal. The very definition of "fixed" is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The (very recently enacted) criminal laws against "leaking" works, specifically cover "the distribution of a work being prepared for commercial distribution."
And if copyright really was about anything other than "access and dissemination," we would not have such things as statutory royalty rates.
Yes, an artist may never disseminate his work to the public. But he certainly doesn't need copyright to do that, and one of copyright's purposes is to discourage this.
Then you're arguing against the theory of copyright. I happen to agree, it is silly, and that's why copyright doesn't work. At least not anymore.
That was enacted as a result of the Berne Convention Implementation Act of 1988, which (as you might guess) happened so that the U.S. could legally sign the Berne Convention.
And notice what those "moral rights" entail. They are the right to "claim authorship," and to "prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation." Furthermore, they "shall not apply to any reproduction, depiction, portrayal, or other use of a work" - only to the original artwork.
This generally tracks what "moral rights" are in the other (primarily European) countries that have them. They are completely distinct from the "economic rights" in those countries. They cannot be waived, nor transferred to any other party (except by inheritance). In about half of the countries that adopt them, even the term lengths are different. And they only cover things like the "right to attribution" and the "right to integrity" - rights that, here in the U.S., are generally covered by libel and slander laws.
They are, in other words, the equivalent of CC-BY. (Intentionally: it's actually how CC wrote its BY legal code, and the reason that CC-BY is the least restrictive CC license that is globally enforcable).
And they have absolutely nothing whatsoever to do with piracy.
And you are so set on denying that copyright is all about benefitting the public, that you deny that copyright even can be about anything other than "violating artists' rights." You deny that any other viewpoint even could be ethical.
You are so single-mindedly focused on this that you viciously insult anyone who dares to even ask whether those "rights" do, in fact, result in any benefit to the public whatsoever. You are so in denial that enforcing those rights even could be unethical, that you ignore every violation of due process, free speech, or free enterprise. You chortle with glee at cruel and unusual punishments for even minor offenses, as long as the victims of those punishments are "pirates." You are so focused on artists enforcing their rights, that you don't even care when enforcing those rights actually harms artists. And you call everyone who is not as narrow-minded as you a "lying slimeball."
And to justify all this, the only real argument you have put forth is a tautology. "Unlawful infringement is evil because it is unlawful infringement." This is quite literally the only thing you have said in the entire thread.
Make no mistake about it. You have not behaved ethically here. You have not shown that you even have an understanding of what "ethical" actually means.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Well, that's not what I said. I said that public access to works is the purpose of copyright. Rewarding authors is not "secondary" or "irrelevant," it's simply not why copyright exists.
To the degree that rewarding authors actually does result in the widespread distribution of works to the public, then those rewards are justified. But they are not justified as an end in themselves, but as a means to an end.
And you'll notice that at no point was rewarding authors justified on moral grounds. It provides "the incentive to profit," "a marketable right," "the economic incentive." These are not moral terms, but economic terms. It shows that infringement is an economic, not moral, issue.
In contrast, the only time anything even remotely resembling moral language is used, is when we are talking about the public. We "advance public welfare," "create and disseminate ideas," or serve "the public benefit by resulting in the proliferation of knowledge." This is the purpose of copyright; providing an economic incentive is the method by which that purpose is accomplished. "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors" (Fox Film Corp. v. Doyal).
And make no mistake about it, that method was not considered an ethical imperative. "The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly" (H.R. Rep. No. 60-2222). "But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good" (James Madison).
I can't help but note that if the original goal of (and the only "ethical good" intended by) our Founders in establishing copyright was *solely* to foster the "widespread distribution of artworks to the public" and "growth of the public domain" they would never have granted the Congress the power to lock up works for any duration at all.
That is the great contradiction in copyright law: we grant a temporary monopoly on expression, in order to accomplish more widespread dissemination of that expression.
Keep in mind that throughout most of U.S. history, "widespread dissemenation to the public" meant "publication by commercial publishers." The theory is that without this monopoly on the economic exploitation of expression, publishers would go out of business, and authors wouldn't be able to get money from them to keep writing. Thus, even though expression would be unhindered, there would be less of it overall.
And I say "economic exploitation" for a reason. Until very recently, "infringement" was synonymous with "commercial infringement." Non-profit use by the public was usually encouraged. Exemptions from the copyright monopoly for libraries, research, news reporting, and so forth have been codified in the statutes pretty much since copyright existed. Even before Congress included it in the 1976 Copyright Act, fair use existed in a long-standing body of case law. I have looked for historical cases where non-commercial copying was considered infringement, but the earliest one I could find was from the 1970's. And prior to 1997, you could not be charged with criminal infringement unless you were doing it for pecuniary gain.
Simply put, the impact on public use was minimal. Since commercial publishers were both the only ones who could accomplish widespread distribution, and also the only ones who had to worry about copyright, the whole arrangement was a good bargain for the public.
And if copyright was still limited to "economic exploitation," it would still be morally justified, in my opinion. But, unfortunately, it is not. Copyright's impact on the public, at this particular point in history, is far more damaging than beneficial.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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It's a good hypothesis. It is also not true.
Authors do not have the Constitutional right to copyright. The right to make copyright laws is granted to Congress, not to artists.
And it is granted for one purpose: to "promote the progress of Science" (in the case of copyright). Both Congress and the Supreme Court have made it very clear that the beneficiaries of copyright law are the public.
In other words: in theory, the "ethical good" that comes from copyright is increased public access to artistic works. It is the only ethical value that copyright promotes.
The ethical motivations for copyright have absolutely nothing to do with the "property rights" of authors. In fact, such "property rights" are theoretically viewed as a social evil, only tolerable if they result in a benefit to the public that outweighs this evil.
It is very hard to see how "piracy," at least of the non-commercial variety, conflicts with this ethical goal. After all, non-commercial piracy is nothing other than increased public access to artworks. You know how I downloaded "Night of the Living Dead" for free? That, and that alone, is the "social good" that copyright exists to promote.
This is why copyright is granted to Congress, and not to authors directly, under the Constitution. As representatives of the general public, Congress is supposed to make sure that the monopoly rights that the public grants to copyright holders, work first and foremost to the public's benefit.
At least in theory. In practice, multinational commercial rights holders have completely taken over copyright. The idea that copyright benefits the public first and foremost has been buried under a mountain of lobbying money and propaganda.
There is no question in my mind that copyright laws, as they currently stand, impede the widespread distribution of artworks to the public, and impede the growth of the public domain. This makes our current laws unethical.
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And, again, legal does not equal moral. If that is your definition of a "right," and if something is wrong only because it violates that "right," then you are forced to conclude that anyone who violates an unjust legal right is immoral.
This is exactly why the slavery example was brought up. Under your current definition of morality, anyone who helped a slave escape to the North was not just violating the slave owner's statutory property right under the law, but he was acting immorally.
So, as I (and many others) said above, two things cannot be used as premises for moral arguments:
1. That an act is immoral because it violates the law.
2. That an act is immoral because it violates a statutory property right.
I have never thought of ethics as involving rights.
The notion that people have ethical rights is the basis for all ethical judgements. An act is morally wrong if it violates one of these rights; it is morally good (or at least morally neutral) if it does not.
But legal rights and ethical rights are not synonymous; otherwise, the legal property rights of a slaveholder would be ethical rights, and violating them would be morally wrong.
Can you explain to me what an ethical right is?
An ethical right is one that is ethically good for people to have, regardless of whether it is recognized by law or not. Various moral theorists have called these "human rights," or "natural rights," or "civil liberties." If the law infringes upon these rights, the law itself is unethical.
For purposes of this discussion, I am not going to demand that an ethical right be something as strong as a human right. Only that the right is granted for ethical reasons that exist independent of the law. If there are no such reasons, then it is not unethical to break that law - only unlawful. On the other hand, if there are such reasons, then violating that right is unethical - even if it is not unlawful.
And, here, you are being inconsistent. If there really were ethical reasons for granting rights under copyright law, those rights would be an "ethical rights" existing independent of the law, and I would be violating those rights when I downloaded "Night of the Living Dead." Furthermore, by allowing me to violate those ethical rights, copyright law itself would be unethical (at least as it stood at the time).
By saying I did nothing ethically wrong, you are now left with only one conclusion. The rights granted by copyright are not ethical rights. Whatever the reasons copyright laws exist, they are not ethical reasons. It may be necessary to prevent infringement, for non-ethical reasons; but preventing infringement is not a moral imperative.
And thus, by your own answers, violating copyright is not unethical. It is unlawful, certainly; and preventing it may be necessary for e.g. practical or utilitarian purposes. But it should never be considered immoral.
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That's an interesting viewpoint, and I think you're the only one on the planet who actually believes it.
It does, of course, make you absolutely amoral - since without ethical rights, there could never be anything unethical about violating any rights at all, since you can't violate something that doesn't exist.
I think if someone owns the copyright to a movie and if it's infringing for me to download that movie, then I am violating that owner's rights and I'm acting unethically.
If your answer above is true, then you can't believe this. The person who holds the copyright on a movie has no ethical claim to any of those rights. You just said so.
So, if I infringe on those rights, I have done something unlawful, but I could not possibly do anything unethical.
It amazes me that you have the unmitigated gall to repeatedly insulting Mike for not believing piracy is immoral enough for you, when you can't give one reason why piracy is immoral in the first place. Or, as it turns out, why anything else is morally wrong, either.
So, if you think it's ethical for me to download "Night of the Living Dead," but not, say, "Transformers 3," then you have to explain the ethical reasons - not the legal reasons - that one has copyright protection, and the other doesn't.
Either that, or just admit that copyright has nothing to do with ethics. And realize you're a complete tool for criticizing Mike on this issue.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Good, that's a start.
Now, answer me this: what rights do other filmmakers have, that Romero does not?
And remember, we're talking ethics, not laws - so "copyright" isn't a valid answer. For if a filmmaker has an ethical right, then he has it regardless of whether it's recognized by copyright law or not.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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It is a serious question.
Either an act is ethical, or it is not ethical, regardless of whether it is within the law or not.
Saying you're asking about "infringement" doesn't matter. Ethically, it doesn't matter if it's infringement or not.
So, which is it? Did I act ethically or not?
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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And that would make a difference if I asked whether it was legal. I am not. I am asking if it is ethical, something that has absolutely nothing to do with whether it was infringement or not.
Ethically, there are really only two valid answers to that question:
1. What I did was not ethical. "Night of the Living Dead" only entered the public domain because of a loophole in the law - one that has since been closed. The law was unjust, and George Romero was robbed of his rights. I should want to pay the people who spend the time, energy, and money to create the content that I value, so I had an ethical imperative to buy the movie from him. If Romero demands that I pay him, even though it's not legally required, he is only standing up for his own rights.
2. What I did was ethical. "Night of the Living Dead" is a cultural landmark, so I was doing nothing worse than experiencing my own cultural heritage. The spread of culture is a moral good, and I have no ethical imperative to pay for it. If Romero thinks this is unjust, he is only expressing his own sense of entitlement and greed.
And there are even more questions I can ask that muddy the waters. What if I had no idea that "Night of the Living Dead" was public domain? What if I was some sixteen-year-old kid, browsing the Pirate Bay, and I downloaded the movie from that site? Would I be unethical for doing so?
That last question is exactly like the question you asked Mike:
Do you see now why this is a bullshit question? If downloading "Night of the Living Dead" isn't unethical, it makes no difference at all why someone does it.
Why won't you give me a straight answer? Should I search out every post you made on this site, and reply to all of them, saying how you're a slimy totalitarian apologist liar?
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Just the other day, I downloaded Night of the Living Dead, simply because I wanted to watch it for free without paying for it.
Did I act immorally?
Before you answer, remember this: Night of the Living Dead is in the public domain.
But that shouldn't make a difference. After all, morality is not dependent on legality - so, morally, it makes no difference at all whether the movie is in the public domain or not. Either the act itself is immoral, or it is not.
Which is it?
On the post: Why The Internet Archive Says It Can Show You Every TV News Program
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Why should this matter? Copyright exists to benefit the public, not rights holders.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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Any time.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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I'm late to your comment, but I have to pick at this one a bit, because anyone who uses the phrase "piracy apologists view of the world" is spouting bullshit.
When a ruling supports piracy in some format...
No ruling, ever, has "supported piracy in some format." Tautologically, a court ruling cannot "support piracy" in any way, shape, or form. The fact that you think it can, shows that you think perfectly legal things are "piracy."
..it's a "sweeping judgement" or "changes everything". When it goes against piracy, it's narrow or (in this case) "highly fact specific".
Funny, usually copyright maximalists accuse people of doing exactly the opposite. If it's not presented as "highly fact specific," but instead a "sweeping judgement" that "changes everything," the copyright maximalist camp accuses them of spreading FUD.
The reality is that a site that intentionally links to infringing content is infringing.
The reality is that a site that is told by the copyright holders of specific links on their system that point to infringing content, and do nothing to take those links down, then they can be liable for contributory infringement under civil liability theories.
Other than that, they're not infringing.
What is interesting is that it sets up a whole potential for a precedent, at least in that country, that this is infringement. That could mean anything including embedded content.
Aren't you doing exactly the same thing that you accuse the "piracy apologists" of doing? If a ruling supports copyright maximalism, it's a "sweeping judgement" or "changes everything." The plain fact is that the ruling is, in fact, fairly narrow.
I like how the court cut past all the horse crap that serial infringers through up there to block the law (I didn't host it, I didn't know, SODDI)
That's not "blocking the law." That's following it. If a site doesn't host the material, and/or didn't know it was infringing, then they are not infringing under U.S. law.
The fact that you view these sites as "serial infringers" shows, once again, that you think perfectly legal acts are "piracy."
you cannot blindly ignore the ramifications of your actions, just because you are doing them "on the internet".
This is complete bullshit, because these actions were not considered infringing until people were doing them "on the internet."
For example, the "linking sites" that we're talking about are no different than Hot Wacks. If you don't know, Hot Wacks was an annual magazine with discographies, mail-order contact info, and reviews, all devoted solely to bootleg recordings. It has been around since the 1970's, and the latest edition is still for sale on Amazon. And as far as I know, it has never been considered infringing. Yet somehow, when a website does the same thing, they're evil pirates who deserve to be arrested.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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Bad wording on my part. I should have phrased it: "It does this by making those who 'authorize' no longer contributory infringers, but direct infringers."
"Contributory infringement" is not the same as "authorization." Neither is "inducement" nor "vicarious infringement." All of these were taken from civil case law theories of secondary liability. None of the modern secondary infringement cases (Napster, Grokster, etc) were based on the idea that they "authorized" reproduction or distribution. They did not.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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Interesting demand, seeing as you are not even capable of reigning in your compulsive hatred of Techdirt, and the insults and borderline slander that go along with it.
But, sure, I'll go with it.
Do you agree that under the Ninth Circuit's reasoning in Perfect 10 v. Amazon.com, a party that knowingly links to an infringing file can be liable as a contributory infringer for whatever infringement takes place by others who use that link?
"Can be?" Sure. "Is necessarily?" No.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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And neither did Mike. He said a link can never be infringement. He's right.
Huh? That makes no sense. A contributory infringer is an infringer.
This is wrong. A contributory infringer is one who contributes to the infringement of another. They need not, themselves, actually infringe anyone's copyright to be considered liable.
And it is indeed a big difference, because the quote from Mike was specifically about the myVidster case. That case was significant because the MPAA had claimed that linking or embedding is direct infringement. The exact quote: "myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."
As it turns out, the MPAA was wrong. Big surprise there.
Sony v. Universal, 464 U.S. 417, 435, n.17 (1984).
Here's another direct quote from Sony: "The Copyright Act does not expressly render anyone liable for infringement committed by another. [...] The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity."
And half of the passage you quoted explained exactly how secondary infringement is not in the copyright satute, but arose solely from civil case law. "Contributory copyright infringement is a form of secondary liability with roots in the tort-law concepts of enterprise liability and imputed intent." "In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept of 'inducement.'" And so on.
It's really amazing that the very case you quote explains how you're wrong.
In civil cases, it doesn't make that much difference. But in criminal cases, it does. Criminal cases cannot go beyond the "express language in the copyright statute." They cannot use the contributory infringement standards from Napster, Grokster, etc, because those standards did not arise from the copyright statute - as the court in Sony made explicitly clear.
As Patry explains in his treatise:
Patry is right in one sense - the "to authorize" phrase is designed to punish contributory infringers. It does this by making them no longer contributory infringers, but direct infringers.
Of course, "authorized" is a very strong word - for example, Napster or Grokster didn't "authorize" the use of any copyrighted materials. They materially contributed to others' infringements; they induced infringement by others. But the doctrine of contributory infringement that was created under Napster, Grokster, etc., had absolutely nothing to do with "authorizing." As the text of the cases themselves make absolutely clear, those cases created their versions of secondary liability directly from civil case law, not 17 USC.
As an aside - here's a phrase by Patry that I really love:
That's not what the Ninth Circuit said in Perfect 10 v. Amazon.com, which I quoted at length.
Sorry. The Techdirt link you pointed me to was about myVidster, which was a streaming case. In that case, the link site would have to induce or encourage direct infringement, because viewing an unauthorized performance in private is not an infringing act. Even if the link site actively encouraged people to watch those streams, they would not be liable for infringement. At least according to Judge Posner.
So, in that particular case, the linking site would have to directly assist or encourage the uploaders, since they are the only ones who are directly infringing. And it was absolutely apropos to the website seizures, since the majority of them are streaming cases (amazingly enough).
The Perfect 10 case dealt with users who were downloading (i.e. copying) images to their computers, which is an infringement in and of itself, so the above doesn't apply. And, yes, in that particular case, Google could be liable for contributory infringement (but not direct infringement, inducement, or vicarious infringement) if they "knowingly takes steps that are substantially certain to result in such direct infringement."
However, merely providing a link does not impute such knowledge; they must have "actual knowledge that specific infringing material is available using its system" (emphasis in original).
Right there Posner says that there is "contributory infringement," which just above you said doesn't exist.
See? Lying again. I never said that contributory infringement doesn't exist. I said that it is the application of liability to people who do not themselves infringe. And I am right.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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In that article, he is asking how those particular sites - which did not host or store any materials themselves, and whose links were put there by users, not site owners - could be held liable for any form of infringement.
Given the myVidster ruling - which held that myVidster is not even liable for contributory infringement - it's a very good question.
But it does not mean that a site that provides links can never be liable for contributory infringement. Just that it must be shown that they must do more than merely provide links to infringing material.
Strike one.
You need to read the part of the opinion that comes later (under the helpful section heading "IV Secondary Liability for Copyright Infringement A. Contributory Infringement") where the court of appeals says that linking can give rise to indirect liability for infringement.
I have. But "contributory infringement" is not actually infringement. It can give rise to civil liability for contributing to someone else's infringement, but it is not in itself infringement.
A link site may be held liable for contributing to the infringement, if the site hosting the links is "intentionally inducing or encouraging direct infringement." That is, if the site hosting the link intentionally induced or encouraged users to upload infringing material to third-party hosting sites, it can be held liable for those users' infringements. But merely providing a link to already-existing material does not, by itself, do this.
And, yes, Mike made the distinction: "After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be."
You may disagree with him that providing links does not "intentionally induce or encourage" the users to upload videos to the third-party sites. (You would be wrong, but you could disagree.) What you cannot claim is that Mike said no liability whatsoever could ever possibly arise from any linking sites. That would be an outright lie.
Strike two.
The Copyright Act doesn't distinguish between direct and indirect infringers, and both are treated the same under Section 506.
This is complete and utter bullshit. If the statutes didn't distinquish between "direct" and "indirect" infringers, then both would be "direct infringers" under the statute. Either you infringe on the rights granted in 17 USC 106, or you don't. If you don't, then you're not an infringer.
Civil law can hold some people liable for the infringement of others, under theories of "contributory" or "vicarious" infringement. But that liability does not arise from copyright statutes, but from "rules of fault-based liability derived from the common law." As Judge Posner observed in the myVidster ruling:
This is so universally accepted, that I'm surprised you even bring it up. If you believe it, then you're even more ignorant of the law than I am.
But I don't believe you are. Which means that you're simply being misleading. Again.
Strike three.
On the post: Dutch Court Says Linking Can Be A Form of Copyright Infringement
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You are, once again, lying. I've never seen Mike say that links should never give rise to any liability.
He has said that linking should not be an infringement in and of itself. And the courts agree - including the case you just mentioned:
This is relevant to the seizures, which are criminal cases, because there is no "secondary liability" in the criminal statutes. But that's not saying, and Mike never said, that there should be no liability at all.
I'm really getting sick of you lying, Joe. For a while, it was interesting debating the law with you. Now I realize you're just spouting off off-topic legal quotes to smear Techdirt. It's really sad.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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If you actually mean this, then you're still acting like a troll. Here are the exact words you used at the beginning of the thread, substituting "unlawful" for "wrong":
Nobody at Techdirt has ever said that piracy is not unlawful. Never. They have always acknoledged it.
So, by your definition, you're attacking them for something that they never said.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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And there's your problem. In common usage, nobody thinks right/wrong means legal/illegal. Everyone believes "right" means "moral," and "wrong" means "immoral." People also mean "immoral" when they say "not OK."
Don't blame Mike for answering the question you asked, rather than the question you meant to ask.
Plus, according to your (new) definitions, the question you asked Mike doesn't even make sense. You're simply asking Mike if he thinks piracy is unlawful.
You know for a fact that he has explicitly said this - and I know, because I personally quoted, to you, multiple times when he did.
All of which he said before you even asked.
You have your answer. You've had it for a long, long time. You're just being an asshole.
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