Show me these free copies on YouTube. I couldn't find any at all. Your question is flawed from the get go.
You missed my point. In Mike's utopian world, where content is unprotected, many copies would be on YouTube. The fact that you didn't find any reflects the actual world we live in, where YouTube is renting copies and has no reason to compete with itself.
And like RadioactiveSmurf indicated - at least 2.5 million people choose to go the legitimate route online, even though free versions were available to them. So my answer to your question is "quite a few of them".
I'm one of those who went the "legitimate route." So what? Not everyone is a selfish pirate. We know that. What does that have to do with protecting content?
Yep. Brought to you almost daily on Techdirt. Just don't ask him any questions.
It is clear that revenue generation once you embrace digital distribution and the age of the Internet requires a multi-pronged approach and further experimentation.
I have more content to stream than I could possibly ever watch. They seem to be trying new things. I'm not sure what your point is. I rent movies online from several different sources.
They key thing you always seem to miss is that simply fighting against the rising tide is a losing strategy. You criticize Mike as if he actually advocates throwing out all rules and letting chaos reign. He has never said that and your continued obtuseness is so very frustrating. Most of the solutions I have seen proposed on Techdirt are nuanced with the unique parameters associated with the particular situation.
Mike doesn't think YouTube should be liable for anything that its users do--even if YouTube knows about it and directly profits from it. Heck, he's not sure that Ulbricht should be liable for running Silk Road, even though he encouraged others to sell drugs and directly profited from each transaction. He doesn't think YouTube's users should be liable for anything either. That's just suing the "fans." Protecting content in any way is just holding on to a dinosaur business model. I think it's clear that Mike sees nothing wrong with anyone uploading whatever they like to YouTube. Has he ever indicated otherwise? Of course, he won't just talk about these things directly. That would be too easy.
I think movies compete the same way everyone does. Why would I buy from a grocery store when I can have a two man operation steal everything I need? My gf works in retail, people rob them blind every day and they still "compete". You make it sound like they are defenseless babies. They are adults entering an enterprise knowing full well what the risks are. Dont you know what the risks are? Why do you act like the risks are anyone else's but their own to deal with?
I'm sure they understand the risks far greater than any of us. Regardless, what's your point? Just because there are risks, i.e., piracy, why shouldn't they do anything to mitigate those risks? I don't understand why content shouldn't be protected. Can you explain?
So are we supposed to ignore the fact that the interview made +15 million online even though, as the article has stated, there were illegal free options available? You complete through convenience and service! If you can't then you lose.
I rented it from YouTube. It was pretty funny. I probably wouldn't have rented it had there not been so much press about the North Korea thing and the film being pulled. I don't think you can glean much from this one piece of datum, especially given the uniqueness of what happened.
That said, in Mike's utopian vision, everyone could simply upload the video to YouTube. In his view, nothing should be done to protect the content. How many would rent it for $6 from YouTube when there's tons of free copies available on the same platform?
Morally, though, I don't see why Mike thinks Sony, who put out over $40M to make the movie, should have to compete with everyone else, who put out nothing, to create it. What justifies the free-riding he so desperately yearns for?
He'll never address these issues, sadly. He'll just keep calling their business model outdated without ever telling us what they should do, specifically, instead.
So the "future" that you think they should embrace is just an open Internet with no rules whatsoever. Is that right? Tell me this, when they're trying to sell their film through legitimate channels, how are they going to compete with everyone else just giving it away for free? Do you really think that is sustainable? They're really just supposed to sit back and let everybody else give their stuff away? That's your suggestion? If it's more than that, then give us specifics, Mike. Stop with the high-level nonsense. Tell us exactly why their business model is wrong and how you would fix it. If you're going to continuously lash out at the MPAA, then give us details of how you would do it better. I know you have so much experience, what with your blog and all.
Another day, another good ruling on copyright.*** Again, the court relies on the distinctions with the Aereo ruling, and how nothing involved with Dish is infringing.
You didn't think there was any way to distinguish Aereo from other cloud services. You said that a decision against Aereo would be terrible for the cloud. And, yet, now you're praising this court for applying the test from Aereo. I thought the sky... err the cloud... was falling. I thought it was all doom and gloom unless Aereo won. What happened, Mike? Did your sensationalist FUD not pan out again? Funny how that works.
To clarify, perhaps "real world" was not entirely clear. I actually meant everyday examples *that don't require a lawsuit* because it's obvious. Examples that are common. Your shit in the street and a human cannonball are not exactly good examples, because they're not at all common.
So, not extreme legal cases or obscure philosophers. Every day real world examples. The point is that it almost never happens. For all your "labor begets ownership" the fact is that almost never happens in real life. Thus it's hard to see how it's a "natural law" at all. It's a decision that some judges have made in tough cases because it seems like the best result. But it's hardly common or natural.
Do you even know what natural law is?
As for the Turtles case, I didn't address it because I wasn't familiar with the details like I was with the others. And, frankly, your repeated arguments that I didn't understand or read the stuff you were talking about shows, again, why no one wants to engage with you here. Stop trying to show off about how you read this or that. It doesn't further the conversation. It makes you look like a jackass (not trying to insult you here, just letting you know what you look like when you pretend that you're smarter than everyone else because you read a book or a case).
It’s exceedingly clear that you haven’t studied these things. I’m pointing out the obvious because you keep saying I’m wrong about something you haven’t really looked into. Don’t take it personally.
Having now read the Flo & Eddie case, I still don't see how it supports your position at all. Again it's an obscure situation, not a common every day case, and it involves an interpretation of basically obsolete California common law that only comes into play because of an error in federal copyright law that left out pre-1972 sound recordings.
There’s the California case, which held that the Turtles have property rights in their sound recordings under STATUTORY law (specifically, Section 980 of the California Civil Code), and then there’s the case in New York, which held that there are property rights in the sound recordings under COMMON law. I’m talking about the latter. There is no statute granting such rights in New York, yet courts recognize these rights based on labor. The court said: “The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them.” This is labor begetting ownership. Why did the Turtles have the rights? Because they expended labor in creating the sound recordings. The labor begets ownership thing could not be any clearer in this example, yet you don’t seem to grasp it.
Your attempt to distinguish "sweat of the brow" from "labor begets ownership" is fascinating, but makes no sense. If labor begets ownership and that's the basis of copyright, as you claim, than of course the compilation of facts would be copyrightable, because there was labor involved. You seem to be tapdancing around this because it so demolishes your argument.
There’s no tapdancing, and it demolishes nothing. It’s extremely simple: The Constitution requires originality. You seem to think that the “labor begets ownership” rule is that all labor, no matter what, leads to a copyright. That is not the rule. The rule IN THIS CONTEXT is that it must be intellectual labor, that is, labor that leads to the creation of something original. This is a constitutional requirement. But it’s still labor leading to a copyright. Without that intellectual labor, there is no copyright. I don’t think this could be any clearer, yet you don’t seem to grasp it either.
This could have been an interesting conversation in which we delved into what actually leads to ownership. Instead, it resulted in your usual appeals to authority. Oh well. If you're doing all this reading on philosophers and legal cases that makes you feel so smart, how about some basic studies in logic and logical fallacies?
Can you point to even one single logical fallacy of mine? I’m all ears.
I’ll provide another “real world” example from the more recent case law: Morris Commc'ns Corp. v. PGA Tour, Inc., 235 F. Supp. 2d 1269 (M.D. Fla. 2002) aff'd, 364 F.3d 1288 (11th Cir. 2004). I came across this one a while back, and it’s a great example of labor begetting ownership—even in the absence of any intellectual property doctrine.
Morris, the plaintiff, published newspapers, both in print and electronically. The issue was whether the PGA Tour could prevent Morris from reporting golf scores in real-time. The PGA compiled the scores through a system of people stationed around the course who called in the scores to a central location. Morris wanted to disseminate the scores as gathered in this central location; he did not want to wait until they were published on the PGA’s website.
The court called this what it is, free riding on the PGA’s labor:
Morris asks the Court to force the PGA Tour to provide Morris with the compilation of scores, for which the PGA Tour spends considerable money and time creating, at no cost to Morris. While Morris does invest its own cost in re-keying the scores for syndication, Morris free-rides on the PGA Tour's efforts in compiling the scores. As Morris admits in its Memorandum of Law, “Morris cannot duplicate the functions of RTSS, which depends on the efforts of hundreds of volunteers each week.” Even if it is the efforts of “volunteers”, the PGA Tour has still invested time and money in the organization and technology to make RTSS possible. [footnote 14]
[footnote 14] Morris's claim that replication of RTSS would be socially wasteful belies its claim that it does not free-ride. Replication would be wasteful, precisely because the PGA Tour has invested time, money, and resources that Morris has not and does not wish to expend.
The court held that the PGA had a PROPERTY right in the scores. Why? Because of labor, of course:
The PGA Tour claims that the restrictions have a valid business justification, because they are necessary to protect a property right in the scores that it compiled by use of RTSS. Morris argues that the PGA Tour lacks a property right in the score, thus negating the claimed business justification. For the following reasons, the Court finds that the PGA Tour does have a property right in the scores compiled by the use of RTSS, but that property right vanishes when the scores are in the public domain.
The PGA Tour's property right does not come from copyright law, as copyright law does not protect factual information, like golf scores. See Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). However, the PGA Tour controls the right of access to that information and can place restrictions on those attending the private event, giving the PGA Tour a property right that the Court will protect.
In the early half of the 20th Century, the Supreme Court dealt with a similar issue in several cases, known as the “ticker cases”. In Board of Trade of the City of Chicago v. Christie Grain and Stock Company, 198 U.S. 236, 25 S.Ct. 637, 49 L.Ed. 1031 (1905), the appellee sought an injunction preventing the use and distribution of “continuous quotations of prices on sales of grain.” See id. at 245, 25 S.Ct. 637. There the Supreme Court held, “plaintiff's collection of quotations is entitled to the protection of the law. It stands like a trade secret. The plaintiff has the right to keep the work which it has done, or paid for doing, to itself.... The plaintiff does not lose its rights by communicating the result to persons, even if many, in confidential relations to itself, under a contract not to make it public.” Id. at 250, 25 S.Ct. 637. The Supreme Court further stated, “[t]ime is of the essence in matters like this ... if the contracts with the plaintiff are kept, the information will not become public property until the plaintiff has gained its reward. A priority of a few minutes probably is enough.” Id. at 251, 25 S.Ct. 637.
In Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), plaintiff sought an injunction forcing defendant to furnish plaintiff with a ticker and a declaration that defendant was a monopolist. See id. at 603, 46 S.Ct. 367. The Supreme Court held that the allegations did not support a claim under the Sherman Act and refused to grant the injunction. See id. at 603–05, 46 S.Ct. 367. The Supreme Court reiterated the holding of the Christie Court that the exchange had a property right in the information “which relates solely to its own business upon its own property.” Id. at 606–07, 46 S.Ct. 367. Further, the exchange was able to determine to whom it will sell: “the ordinary right of a private vendor of news or other property.” Id. at 605, 46 S.Ct. 367. Accordingly, the Court found that the exchange's actions were appropriate and legitimate to protect and to further its business. See id. at 606, 46 S.Ct. 367.
Like the “ticker cases”, the instant case deals with facts that are not subject to copyright protection. The compiler of the information in both cases collects information, which it created, at a cost. Also the events occur on private property to which the general public does not have unfettered access, and the creator of the event can place restrictions upon those who enter the private property. The vastly increased *1282 speed that the Internet makes available does not change the calculus or the underlying property right. Accordingly, the PGA Tour, like the exchanges in the ticker cases, has a property right in the compilation of scores, but that property right disappears when the underlying information is in the public domain.
The PGA “has a property right” because it “collects information, which it created, at a cost.” Labor begets ownership. Note the reference to Feist. This was not a copyright case. It was a labor begets ownership case. PGA labored to collect those scores, and those scores were not published. They were not in the public domain. As such, they were the PGA’s property and Morris could not free ride.
The Eleventh Circuit, quite naturally, affirmed:
PGA has refused to grant Morris access to PGA tournaments unless Morris agrees not to sell the product of PGA's proprietary RTSS—compiled real-time golf scores—to non-credentialed third-party Internet publishers. Morris responds that it has a right to sell such product notwithstanding that RTSS was developed and paid for, and is operated by, PGA. We disagree with Morris. The compiled real-time golf scores acquired through RTSS are not a product that Morris has a right to sell because they are a derivative product of RTSS, which PGA owns exclusively.
Duh. It’s a no-brainer. Labor begets ownership, and Morris did not labor to collect the scores. The PGA did. And this gave the PGA a property interest in the scores: “PGA has a right to control its property interest in its RTSS and the compiled golf scores, which are the product of RTSS[.]” This wasn’t based on copyright or trade secrets or any other branch of IP. It was a straightforward application of labor begets ownership. Is this not (another) "real world" example? If not, explain why not.
I can dig up many, many more examples just like this, spanning centuries of time. Yet, I suppose, you’ll just deny them all—the fact that you haven't really researched any of them notwithstanding.
I asked for *real world* examples, not court examples.
And all you can come up with is shit in the street, hot news and a human cannonball -- with hot news and publicity rights being completely under attack as unreasonable extensions of the law.
These don't look good for you. I asked for REAL WORLD examples where labor actually begets ownership.
Each one of those cases is a “real world” example of where labor begets ownership. The plaintiff in Haslem v. Lockwood had a proprietary interest in the manure superior to the defendant because of his labor. The plaintiff in INS v. AP had a proprietary interest in the news superior to the defendant because of its labor. The plaintiff in Zacchini v. Scripps-Howard had a proprietary interest in his performance superior to the defendant because of his labor. Each one of those is a “real world” example of labor begetting ownership. Why deny that?
Funny how you completely failed to mention Flo & Eddie v. Sirius XM. That opinion came out just two months ago. That’s a “real world” example. Why did the Turtles have proprietary rights to their sound recordings? Labor. Said the Court:
[A]rtists can acquire a common law copyright in “any original material product of intellectual labor”—including sound recordings—by expending “time, effort, money, and great skill” in its creation. The term “any original material product of intellectual labor” includes sound recordings.
The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them.
I cut out the citations so it’s easier to read. Now, please, explain to me how that is not a “REAL WORLD example[] where labor actually begets ownership.” Quite clearly, it is. Can you explain how it's not?
Look, I get that this is all new to you—it has not gone unnoticed that you don’t deny never having really studied these things. But don’t confuse your absence of knowledge with knowledge of absence. I know you don’t want it to be true, but that doesn’t change the fact that it is true. I assume you didn’t read the sources I linked to (Blackstone and Kent). I assume as well that you probably wouldn’t understand them even if you did. It took me a long time to get to where I really understand them. I was up until 3 AM this morning reading case law from the 1700s and 1800s. I don’t think I can even estimate the number of hours I’ve spent poring over these things. I love this stuff. Clearly, you’re simply unfamiliar with it.
That said, I get what you’re saying on one level: Where does occupancy fit into this modern world? Occupancy is a mode of acquiring property that is not already owned. Most things nowadays are already owned, so its application to tangible things is limited. It comes up in cases where property is abandoned and has no owner (the manure is an old example, but you can easily think of more modern ones—the law of treasure-troves is a favorite of mine). It comes up where the property is simply unowned (such as the fishing example).
But where it comes up most often today is with intellectual property. All branches of intellectual property are based on the notion that labor begets ownership. Trademark: Use of the mark leads to a proprietary interest. That use is labor. Copyright: Creation of original works leads to a proprietary interest. That creation is labor. Trade secrets: Development of the secret leads to a proprietary interest. That development is labor. Publicity, hot news, patents, etc. You name it. All based in labor. You really should spend some time looking into this before you brush it off. Clearly you haven’t done so.
And I love how you repeat over and over again that copyright is also from this mythical "labor begets ownership regime" using court quotes over other concepts as your basis, ignoring that the court explicitly rejected that claim in Feist. You know this so I don't know why you ignore it. But to refresh your memory:
The primary objective of copyright is not to reward the labor of authors...
and
Without a doubt, the “sweat of the brow” doctrine flouted basic copyright principles.
and
In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not “sweat of the brow,” is the touchstone of copyright protection
Yes, Feist. I’m glad you pulled out that case. You seem to think it erases centuries of labor begetting ownership. It does no such thing. Nor does it conflict with anything the Court said in INS v. AP.
I’m happy to explain.
First, let’s be clear about exactly what “sweat of the brow” is. It concerns granting copyright protection to compilations of FACTS. Said the Court:
Making matters worse, these courts developed a new theory to justify the protection of factual compilations. Known alternatively as “sweat of the brow” or “industrious collection,” the underlying notion was that copyright was a reward for the hard work that went into compiling facts.
Some courts had been inclined to recognize copyrights in compilations of facts, based on the compilers’ LABORS. But, as you well know, the problem with this doctrine is that facts are not copyrightable. There’s nothing original about facts, and the Constitution requires works to be original (not to be confused with novel) before they can be protected by copyright. It doesn’t matter how much work one puts into compiling facts. The facts themselves can never be copyrighted because they are not the product of intellectual labor.
As the Court noted: “[O]riginality requires independent creation plus a modicum of creativity.” The writings that are protected “are founded in the creative powers of the mind.” They are “the fruits of intellectual labor[.]” You need INTELLECTUAL LABOR to get a copyright. That intellectual labor is embodied in the originality requirement. Slavishly copying facts is not intellectual labor. It’s physical labor, but it’s not intellectual labor because there’s nothing original about it. You need to apply intellectual labor to come up with something original before you can get a copyright. Feist only confirms that labor begets ownership. The critical thing missing in Feist was the intellectual labor. Without intellectual labor, that is, without originality, there was no copyright:
It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. “No one may claim originality as to facts.” Id., § 2.11[A], p. 2–157. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.
So what can be copyrighted with compilations of facts? The selection and arrangement of the facts. Why? Because this involves intellectual labor:
Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer §§ 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.
If somebody copies the unprotectable facts, the remedy is not in copyright law (as facts are not copyrightable), but rather in unfair competition law: “Protection for the fruits of such research ... may in certain circumstances be available under a theory of unfair competition.” And speaking of unfair competition law, let’s turn to your next point:
In fact, Feist actually rejects your reading of the hot news doctrine to somehow support "labor begets ownership" as applying to copyright.
The best example is International News Service v. Associated Press, 248 U.S. 215 (1918). In that decision, the Court stated unambiguously that the 1909 Act conferred copyright protection only on those elements of a work that were original to the author. Associated Press had conceded taking news reported by International News Service and publishing it in its own newspapers. Recognizing that § 5 of the Act specifically mentioned “periodicals, including newspapers,” § 5(b), the Court acknowledged that news articles were copyrightable. Id., at 234. It flatly rejected, however, the notion that the copyright in an article extended to the factual information it contained: “The news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.”
All the Court is saying there is that the facts in a copyrighted news article are not protected by copyright. No duh. Facts are not original. An author does not create facts from intellectual labor. Facts are not copyrighted, as per the Constitution. We know that. INS v. AP was not a copyright case. The federal courts were hearing the case based on diversity of citizenship, not a federal question under the Copyright Act.
The Court noted that news articles can be copyrighted:
No doubt news articles often possess a literary quality, and are the subject of literary property at the common law; nor do we question that such an article, as a literary production, is the subject of copyright by the terms of the act as it now stands.
Why are news articles “the subject of literary property at the common law”? Because of labor, of course. But that protection is thin. Why? Because news articles contain lots of facts, and facts can’t be copyrighted as they are not original. But, again, this was not a copyright case. It was an unfair competition case. Even though the news articles were not claimed to be copyrighted, the Court found that they were nevertheless property to be protected as between the parties. Why? They were “gathered at the cost of enterprise, organization, skill, labor, and money.” Labor begets ownership.
So we're left with a few discredited court rulings that you take out of context, no real world examples and a clear delineation that copyright is not subject to that standard.
Very convincing.
I can find example after example from decade after decade applying this theory in context after context. I read over two dozen opinions applying occupancy to “real world” examples just last night. This stuff runs incredibly deep. Yet, you, without having really made any effort to understand it, completely reject that it’s real. Not very convincing, my friend. Why don't you start with the Flo & Eddie opinion, released just two months ago, recognizing property rights explicitly because of labor? Explain how that is not labor begetting ownership. Don't just ignore the parts you don't like! And let's hear a cogent response to my arguments about Feist. Shall I dig up more and more examples? I’m happy to. There are so many to choose from. I can go on for days with citation after citation after citation.
I don't know what goes on in your stupid little head sometimes, the best explanation I can think of is that you're probably on drugs, but that's not what she was saying. Here, let me quote what she said.
"The activities of chillingeffects.org are repugnant to the purposes of Section 512. Data collected by high-volume recipients of DMCA notices such as Google, and senders of DMCA notices such as trade associations representing the film and music industries demonstrate that the overwhelming majority of DMCA notices sent are legitimate, yet the site unfairly maligns artists and creators using the legal process created by Section 512 as proponents of censorship."
I'll note first that you do not deny that Aistars did not say that "providing transparency" is "repugnant," as her remarks are now being framed. That claim is sensationalist nonsense.
If you're going to quote what she wrote, you should provide more than two sentences:
From these examples it is clear that the volume of infringement individual authors and small businesses must manage online is having a chilling effect on artistic expression. To make matters worse, many recipients of takedown notices, supported by organizations such as the Electronic Frontier Foundation, attempt to intimidate and bully those artists who do stand up for their rights. The site Chillingeffects.org, for example, bills itself as a “clearinghouse” for DMCA notices. It publishes notices forwarded to the site by recipients such as Google, leaving intact information that directs readers to the infringing URLs. Until recently the site also publicized the names and personal information of any artist sending a notice to seek the removal of an infringing URL.
The activities of chillingeffects.org are repugnant to the purposes of Section 512. Data collected by high-volume recipients of DMCA notices such as Google, and senders of DMCA notices such as trade associations representing the film and music industries demonstrate that the overwhelming majority of DMCA notices sent are legitimate [footnote 12], yet the site unfairly maligns artists and creators using the legal process created by Section 512 as proponents of censorship. Moreover, by publishing the personal contact information of the creators sending notices (a practice which Chilling Effects only recently discontinued), it subjects creators to harassment and personal attacks for seeking to exercise their legal rights. Finally, because the site does not redact information about the infringing URLs identified in the notices, it has effectively become the largest repository of URLs hosting infringing content on the internet.
[footnote 12] MPAA, for example, reports that its companies sent a total of 25,235,151 notices regarding infringing URLs to site operators and search engines in the time period between March 2013 and August 2013. In response, they received a grand total of 8 counternotices. Bruce Boyden,The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem, December 2013, available at http://cpip.gmu.edu/2013/12/05/the-failure-of-the-dmca-notice-and-takedown-system-2/.
The "activities of chilling effects.org" that she said were "repugnant" were that of gathering links, providing personal information, and maligning creators as "proponents of censorship." She was talking about legitimate notices, which she noted account for the "overwhelming majority" of notices sent. (You left out the footnote to Prof. Boyden's paper.) But what she did not say was that transparency itself is repugnant.
antidirt just hates it when due process is enforced. DMCAed, bitch!
I'm flattered that you think of me so often, but that's not me you're replying to. I love it when copyright and due process are enforced. Preferably at the same time.
That said, this post of Mike's is just stupid. Particularly, his ongoing personal attack of Aistars. Mike says:
Sandra Aistars, of the Copyright Alliance, referred to the site as "repugnant" in Congressional testimony just a few months ago. Yes, providing transparency on censorship is "repugnant." Says a lot about the Copyright Alliance, doesn't it?
That's not fair. She was making the point that gathering all the links that have been removed defeats the purpose of having the links removed. She wasn't talking about transparency. She wasn't saying that providing transparency is repugnant. Give me a break. It actually "says a lot about" Mike that he has to be so hyperbolic all of the time. The transparency argument is a good one, but so is Aistars' argument about gathering links. There's no need to pretend like she was talking about one thing when she was in fact talking about another. It's just childish, bordering on delusional, for Mike to pretend otherwise. Sadly, such nonsense is Mike's stock-in-trade.
That's a lot of words to never actually respond to the point that I raised: in almost no actual situation does labor beget ownership. Instead, it's always something else. I gave you a bunch of examples and your response is "yes, other things beget ownership" but you still haven't shown real world cases where labor begets ownership. Because they basically don't exist.
The entire basis of your argument, that there's some sort of "natural law" saying labor begets ownership is simply wrong.
I’ll give you four concrete examples, some old and some new.
Haslem v. Lockwood, 37 Conn. 500 (1871). This is one of the first property law opinions that I’ve read. It discusses the two modes of acquisition I mentioned above: occupancy and accession. Here are the facts:
Manure which had accumulated in a frequented place in a public street of a borough, where the fee of the street belonged to the borough, was raked into heaps by the plaintiff in the evening, and left in that condition, to be carried away by him the next evening. During the forenoon of the next day the defendant, finding the manure in heaps, loaded it into his cart and carried it away.
So you’ve got manure on a public street. The plaintiff raked it into piles with the intention of coming back the next day to pick it up. The defendant came along in the meantime, found the piles, and took them. Who should win? What principles should be applied?
The court, quite naturally, turned to natural law. It first noted that the manure would belong to the owner of the animal:
The manure originally belonged to the travelers whose animals dropped it, but it being worthless to them was immediately abandoned[.]
This is the principle of ACCESSION. In general, whether your animals create manure, calves, meat, skin, etc., it belongs to you because it’s your animals. When your horse poops on the street, that’s your poop. And if you leave it there, you abandon it. It goes back to the commons until someone else claims it. That’s what happened in this case.
The defendant tried to escape liability by pointing out that the streets were owned by the borough, not the plaintiff, but the court didn’t buy it:
The defendant appears before the court in no enviable light. He does not pretend that he had a right to the manure, even when scattered upon the highway, superior to that of the plaintiff; but after the plaintiff had changed its original condition and greatly enhanced its value by his labor, he seized and appropriated to his own use the fruits of the plaintiff's outlay, and now seeks immunity from responsibility on the ground that the plaintiff was a wrong doer as well as himself. The conduct of the defendant is in keeping with his claim, and neither commends itself to the favorable consideration of the court. The plaintiff had the peaceable and quiet possession of the property; and we deem this sufficient until the borough of Stamford shall make complaint.
Because the plaintiff had “had changed its original condition and greatly enhanced its value by his labor,” he had “peaceable and quiet possession of the property.” The defendant could not have “seized and appropriated to his own use the fruits of the plaintiff's outlay” simply by pointing out that the borough owned the street. The borough might bring its own claim, but between the plaintiff and the defendant, that doesn’t change anything. The plaintiff’s claim is superior because he labored on the manure first. This is the principle of OCCUPATION. It’s the notion that labor begets ownership. This stuff is literally millennia old.
The court further rejected the argument that, whatever rights the plaintiff had acquired by way of occupancy in raking the manure, were lost when he left the piles on the street:
It is further claimed that if the plaintiff had a right to the property by virtue of occupancy, he lost the right when he ceased to retain the actual possession of the manure after scraping it into heaps.
We do not question the general doctrine, that where the right by occupancy exists, it exists no longer than the party retains the actual possession of the property, or till he appropriates it to his own use by removing it to some other place. If he leaves the property at the place where it was discovered, and does nothing whatsoever to enhance its value or change its nature, his right by occupancy is unquestionably gone. But the question is, if a party finds property comparatively worthless, as the plaintiff found the property in question, owing to its scattered condition upon the highway, and greatly increases its value by his labor and expense, does he lose his right if he leaves it a reasonable time to procure the means to take it away, when such means are necessary for its removal?
Suppose a teamster with a load of grain, while traveling the highway, discovers a rent in one of his bags, and finds that his grain is scattered upon the road for the distance of a mile. He considers the labor of collecting his corn of more value than the property itself, and he therefore abandons it, and pursues his way. A afterwards finds the grain in this condition and gathers it kernel by kernel into heaps by the side of the road, and leaves it a reasonable time to procure the means necessary for its removal. While he is gone for his bag, B discovers the grain thus conveniently collected in heaps and appropriates it to his own use. Has A any remedy? If he has not, the law in this instance is open to just reproach. We think under such circumstances A would have a reasonable time to remove the property, and during such reasonable time his right to it would be protected. If this is so, then the principle applies to the case under consideration.
A reasonable time for the removal of this manure had not elapsed when the defendant seized and converted it to his own use. The statute regulating the rights of parties in the gathering of sea-weed, gives the party who heaps it upon a public beach twenty-four hours in which to remove it, and that length of time for the removal of the property we think would not be unreasonable in most cases like the present one.
So even though the plaintiff did not have actual possession of the piles, he had constructive possession. Since he had “greatly increase[d] its value by his labor and expense,” he had possession, and this meant that he had a “reasonable time to remove the property.” The court looked by analogy at the statute on seaweed on a beach, which permits someone 24 hours to remove the piles of seaweed once they’ve been gathered. Since 24 hours is reasonable there, the court held that 24 hours is reasonable here. As the plaintiff had left the piles less than 24 hours, he had the superior claim.
The case law is teeming with applications of natural law modes of acquisition of property, such as accession and occupation. You seem to deny this, and I can only assume it’s because you’re simply not familiar with this aspect of property law. These notions date back many, many centuries—especially in the context of land, animals, and the like. But they turn up in intellectual property as well.
Int'l News Serv. v. Associated Press, 248 U.S. 215 (1918). The is where the Supreme Court adopted the “hot news” doctrine. Of course, the opinion is no longer good law because of the Erie doctrine, it nonetheless shows how labor begets ownership. The Court, when it had the power to make such declarations, did so. Said the Court:
Obviously, the question of what is unfair competition in business must be determined with particular reference to the character and circumstances of the business. The question here is not so much the rights of either party as against the public but their rights as between themselves. See Morison v. Moat, 9 Hare, 241, 258. And, although we may and do assume that neither party has any remaining property interest as against the public in uncopyrighted news matter after the moment of its first publication, it by no means follows that there is no remaining property interest in it as between themselves. For, to both of them alike, news matter, however little susceptible of ownership or dominion in the absolute sense, is stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money, and to be distributed and sold to those who will pay money for it, as for any other merchandise. Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public.
In order to sustain the jurisdiction of equity over the controversy, we need not affirm any general and absolute property in the news as such. The rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right (In re Sawyer, 124 U. S. 200, 210, 8 Sup. Ct. 482, 31 L. Ed. 402; In re Debs, 158 U. S. 564, 593, 15 Sup. Ct. 900, 39 L. Ed. 1092); and the right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired (Truax v. Raich, 239 U. S. 33, 37–38, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Brennan v. United Hatters, 73 N. J. Law, 729, 742, 65 Atl. 165, 9 L. R. A. [N. S.] 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698; *237 Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881). It is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition.
The question, whether one who has gathered general information or news at pains and expense for the purpose of subsequent publication through the press has such an interest in its publication as may be protected from interference, has been raised many times, although never, perhaps, in the precise form in which it is now presented.
Because of the “the cost of enterprise, organization, skill, labor, and money” in collected the news, the Court found “quasi property” rights as between the parties. Note that this is but an application of the general rule: “a court of equity . . . treats any civil right of a pecuniary nature as a property right.” Though these rights weren’t legal—that is, recognized in courts of law—they were nonetheless—recognized in courts of equity. Those courts determined what is just and right, equitable and moral. A person has “the right to acquire property by honest labor” and “is as much entitled to protection as the right to guard property already acquired.” Labor begets ownership.
The defendant, said the Court, was reaping where he had not sown:
The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves. The right of the purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant's right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant—which is what defendant has done and seeks to justify—is a very different matter. In doing this defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant's legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself and a court of equity ought not to hesitate long in characterizing it as unfair competition in business.
This was an unfair business practice. While INS v. AP is no longer good law, the law of unfair competition goes back centuries. And it is based on these same notions of fairness, and, of course, labor begetting ownership. If you want to see real world applications of natural law, read some of the unfair competition case law. These torts were invented by the courts based on equitable principles.
Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977). The plaintiff had a “human cannonball” performance that a news station aired in its entirety. The news station argued that the First Amendment trumped the performer’s property rights under the state’s right of publicity. The Supreme Court first distinguished the right of publicity from the other three types of privacy torts:
Time, Inc. v. Hill, which was hotly contested and decided by a divided Court, involved an entirely different tort from the ‘right of publicity’ recognized by the Ohio Supreme Court. As the opinion reveals in Time, Inc. v. Hill, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 (3d ed. 1964), and the same author's well-known article, Privacy, 48 Calif.L.Rev. 383 (1960), both of which divided privacy into four distinct branches.7 The Court was aware that it was adjudicating a ‘false light’ privacy case involving a matter of public interest, not a case involving ‘intrusion,’ 385 U.S., at 384-385, n. 9, 87 S.Ct., at 540, ‘appropriation’ of a *572 name or likeness for the purposes of trade, id., at 381, 87 S.Ct., at 538, or ‘private details' about a non-newsworthy person or event, id., at 383 n. 7, 87 S.Ct., at 539. It is also abundantly clear that Time, Inc. v. Hill did not involve a performer, a person with a name having commercial value, or any claim to a ‘right of publicity.’ This discrete kind of ‘appropriation’ case was plainly identified in the **2856 literature cited by the Court8 and had been adjudicated in the reported cases.9
The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. ‘The interest protected’ in permitting recovery for placing the plaintiff in a false light ‘is clearly that of reputation, with the same overtones of mental distress as in defamation.’ Prosser, supra, 48 Calif.L.Rev., at 400. By contrast, the State's interest in permitting a ‘right of publicity’ is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.10 As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude on dissemination of information to the public. In ‘false light’ cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in ‘right of publicity’ cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as the gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply *574 sought compensation for the broadcast in the form of damages.
The right of publicity, said the Court, is analogous to patent and copyright law in that it seeks to protect “the right of the individual to reap the reward of his endeavors.” Labor begets ownership. The other three privacy torts, by the way, also come (at least in part) from natural law—more specifically, the Lockean notion of bodily integrity.
The news station lost because it tried to reap where it had not sown:
The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the ‘right of exclusive control over the publicity given to his performance’; if the public can see the act free on television, it will be less willing to pay to see it at the fair.12 The *576 effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. ‘The rationale for (protecting the right of publicity) is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.’ Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's **2858 name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a ‘right of publicity’ involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place.
The interest being protected was the “product of petitioner's own talents and energy, the end result of much time, effort, and expense.” Labor begets property.
The Court noted that it’s the same underlying rationale for copyright:
Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954):
‘The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.'
Copyright, like the right of publicity, are rewards based on labor. Such labors “deserve rewards commensurate with the services rendered.” Labor begets ownership.
Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13 CIV. 5784 CM, 2014 WL 6670201 (S.D.N.Y. Nov. 14, 2014). This is the Turtles’ lawsuit over pre-1972 sound recordings under New York. These recordings are neither protected nor preempted by the 1976 Copyright Act, so the question was whether they were protected under the state’s common law. The court held that they are. Can you guess why? Labor begets ownership. Said the court:
New York has elected to “fill th[e] void” Congress left, by continuing to enforce its preexisting body of copyright common law for pre–1972 sound recordings. Capitol Records, Inc. v. Naxos of Am., Inc. (Naxos), 4 N.Y.3d 540, 559–60, 565, 797 N.Y.S.2d 352, 830 N.E.2d 250 (2005); see Capitol Records v. Mercury Records Corp., 221 F.2d 657, 662–63 (2d Cir.1955); Firma Melodiya v. ZYX Music GmbH, 882 F.Supp. 1306, 1316 (S.D.N.Y.1995). Under that law, artists can acquire a common law copyright in “any original material product of intellectual labor” A.J. Sandy, Inc. v. Junior City, Inc., 17 A.D.2d 407, 234 N.Y.S.2d 508, 510 (App.Div.1962)—including sound recordings—by expending “time, effort, money, and great skill” in its creation. 104 N.Y. Jur.2d Trade Regulation § 262; see RCA Mfg. Co. v. Whiteman, 114 F.2d 86, 88 (2d Cir.1940). The term “any original material product of intellectual labor” includes sound recordings. See, e.g., Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc.2d 878, 252 N.Y.S.2d 553, 554–55 (Sup.Ct.1964); Metro. Opera Ass'n, Inc. v. Wagner–Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483, 492–93 (Sup.Ct.1950) aff'd, 279 A.D. 632, 107 N.Y.S.2d 795 (App.Div.1951).
The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them. That copyright was then transferred to White Whale, and eventually to Flo and Eddie, which now owns the sound recordings. Sirius does not contest Flo and Eddie's claim to possess a common law copyright in the Turtles recordings (though it insinuates that some of the underlying ownership transfers are undocumented). Rather, Sirius contends that Flo and Eddie's rights as holder of the copyright in the sound recordings does not give them the exclusive right to publicly perform those works.
How does one acquire the common law rights? Simple: “by expending time, effort, money, and great skill’ in its creation.” The Turtles had the rights because they expended “time, effort, money and skill to create them.” Labor begets ownership. We don’t often think about copyright this way because the Copyright Act for the most part preempts state law, but where it doesn’t, you see labor theory applied. As mentioned above, labor is also one reason we have statutory rights. But even when the statutory rights aren’t there, the common law declares those rights to exist because of labor.
You seem to deny all of this, and, again, I have to assume it’s because you haven’t ever really looked into it. The reports are full of courts invoking natural law. This has been going on for centuries. All you have to do is look, and you’ll see it too.
In the end, you've got nothing but a tautology for your argument. "Natural law" says "labor begets ownership" for "moral" reasons. Yet, when we dig in, we find it's all exceptions and labor never actually begets any ownership at all, but you have an excuse for every single possible counter example. But the problem is that the underlying rule doesn't actually exist in any real world. Even when we show that labor never begets ownership, you simply move the goalposts (as you've done for years) and say "sure, but morals." Okay.
Still think I’m moving the goalposts? I can find example after example from decade after decade applying these principles in multiple contexts. In contract law, the courts don’t simply enforce the contract because it’s a contract. The courts enforce it because it’s the right thing to do. People SHOULD keep their promises. You seem to think that law and morality don’t overlap. Nothing could be further from the truth. The former flows from the latter. And when the contract is immoral, it’s not enforced. And even when there’s no contract, the courts might enforce one anyone based on the morality. These moral issues arise in all law: contracts, property, privacy, publicity, etc. You name it. I don’t get the sense you’ve studied this closely. Is that correct?
If you want to check out some of the classical references, I recommend starting with Blackstone’s Commentaries from the 1760s. Source: http://lonang.com/library/reference/blackstone-commentaries-law-england/ Check out Book II in particular. Kent’s Commentaries from 50 years later are also a must-read. Here’s Kent explaining the different modes of acquiring property (occupancy, accession, intellectual labor): http://lonang.com/library/reference/kent-commentaries-american-law/kent-36/ These treatises base property on natural law because that is where property law comes from, if you go back to first principles. I can dig up links to many early treatises on copyright law, all replete with references to natural law. You’d be surprised at how deeply this stuff runs, apparently. I'm not (just) making the normative argument that the law should be this way. I'm arguing that it is in fact this way in the descriptive sense.
You’re correct. Labor begets ownership, but it’s not the only mode of acquiring ownership under natural law. The one you’re referring to is acquisition. So in the examples above about the sticks or the leaves in the neighbor’s yard, those belong to the neighbor even if he expended no labor on them. Say, a seed planted itself and the tree grew without him laboring on it. Nevertheless, the tree, branches, leaves, fruits, etc. that are in the tree are his because the land beneath is his. He acquired them not from labor, but from acquisition. Your dogs have a litter of pups? That litter is yours, because of acquisition. Same with the fish that jumps in the boat. It’s your boat, ergo, it’s your fish. You own it, even absent labor. The answer to your question is simply that there are OTHER ways of acquiring property. Labor is but one. Acquisition dates back to Roman law (maybe earlier).
Sorry. I brain-farted. It's accession, not acquisition. Mea culpa. I thought one thing and typed another.
Okay. What about the case where a fish leaps into the boat. You still get possession then. Labor has nothing to do with who gets ownership of the fish. It may lead to ownership. It may not. Or you may get ownership through other means entirely unrelated to labor. Labor has nothing to do with it. It actually comes right back around to capital. You get ownership if you supply the rod and the boat. Not the labor.
You’re correct. Labor begets ownership, but it’s not the only mode of acquiring ownership under natural law. The one you’re referring to is acquisition. So in the examples above about the sticks or the leaves in the neighbor’s yard, those belong to the neighbor even if he expended no labor on them. Say, a seed planted itself and the tree grew without him laboring on it. Nevertheless, the tree, branches, leaves, fruits, etc. that are in the tree are his because the land beneath is his. He acquired them not from labor, but from acquisition. Your dogs have a litter of pups? That litter is yours, because of acquisition. Same with the fish that jumps in the boat. It’s your boat, ergo, it’s your fish. You own it, even absent labor. The answer to your question is simply that there are OTHER ways of acquiring property. Labor is but one. Acquisition dates back to Roman law (maybe earlier).
If you're going to request my labor, then I would set some sort of agreement first about what it's in exchange for. There is no moral obligation from the labor, just the contract.
I think there are underlying moral issues that take shape in contract doctrine. For example, even if we have a contract, a court may not enforce it for many reasons. Maybe the terms are unconscionable, or maybe the liquidated damages amount is unreasonable. Maybe there was fraud that vitiated consent, or maybe it involves an illegal act. If it’s unfair—that is, unjust and immoral—to enforce the contract, the court won’t enforce it. And this goes the other way. Even if there is no contract, a court will sometimes find one based on quasi-contract or detrimental reliance theories—which are themselves morally-based. Just because there’s a contract, that doesn’t mean morality is not involved. The law typically follows the morality, naturally. If you ask someone to do the work, then I think there is a moral claim on their part, even if there is no contract. If they work at your request, to your benefit and their detriment, then I think they could sue you for restitutionary damages. There are other avenues to right this wrong because it is a wrong, whether there’s a contract or not. Even if there’s no loss under the contract to be compensated, your gain at another’s expense is a wrong that the law will remedy. You don’t seem to think it’s a wrong, but I don’t think the courts agree with you. The law certainly does not.
You're merely getting into the realm of social relationships. But, unlike you, I do not keep a running tally of favors owed by me to neighbors or owed by my neighbors to me. If I can help my neighbor out I do. My moral obligation is to help when possible because I like my neighbor.
I find your position a lot more morally compromising, where you apparently feel you only do favors when you expect to be paid back -- and in fact appear to suggest that there is a moral requirement to pay you back. I don't expect my neighbor to repay my favor at all.
On the contrary, I agree that one has the moral obligation to help one’s neighbors, with no moral obligation in return. I disagree that this is because I "like my neighbor," which is your criteria. I never said that I expect all favors to be repaid. That was your caricature of my position.
If by shorthand, you mean "wrong" then I agree. But if you mean "generally true" then I do not agree. At all.
Because, as I stated earlier in this discussion, in almost every case, labor does not beget ownership at all. It is a very rare exception, and thus no law at all. And you prove that with your next statement:
If something is in the commons, that is, not already owned, then labor begets ownership. Think of a fisherman in the ocean casting his net and pulling in fish. He owns those fish legally, and this flows from his moral claim to the fish based on his labor.
So now you're admitting that "labor begets ownership" only in the very rare circumstance in which none of the underlying material is originally owned -- a case that happens quite rarely.
Sigh. Lockean theory is complex. I boiled it down to one phrase, while focusing on one context. You do understand that my three-word synopsis does not cover all facets of this complex theory, right? I was originally talking about labor on the commons. You changed it to labor on property stolen from another. That’s fine, but if you’re going to change the context, my three-word synopsis is not going to cover all other fact-patterns. How could it? Let’s skip the “gotcha” game.
Even in the example you cite, the fisherman bagging the fish, even there labor does not, in fact, "beget ownership." Because there is no ownership associated with the labor. I could go out and "labor" away at fishing all day long and if I catch nothing, I get nothing. Or what of the fish that I catch, but which slips away as I try to take it off the line, leading someone else to catch it. I did the labor. I got no ownership.
In that case, possession begets the ownership. Not the labor. The amount of labor has no impact on the ownership.
The fisherman who catches fish does in fact have ownership of the fish. His labor led to that ownership. How could he have caught any fish without labor? If you go out and catch no fish, you get no ownership. Why? Because your labor was not PRODUCTIVE. Again, since I’ve only grossly-oversimplified the theory, I did not specify that Locke was referring to productive labor—not just any labor. You, who caught nothing, own nothing. Your labor was not productive, so you have no moral claim to anything.
If I offer you $50 to rake up the leaves in my yard, and you agree and then do the work, I owe you the $50 legally, as we had a contract. But I also owe you the money morally, since you labored for my benefit.
I see no moral obligation beyond the contract there.
So if I labor, at your request, for hours, to rake your leaves, benefitting you to my detriment, you see no moral obligation at all on your part to repay me for my labors? Are you serious? I couldn’t disagree more. I find it amazing that you see no moral issue there whatsoever. Let me guess: You live in Silicon Valley?
If you help an old woman across the street, do you believe she morally owes you money? You labored for her benefit.
Labor begets no moral requirement without the contract.
My neighbor is old and frail. I helped him take out his garbage the other day because it was the nice thing to do. I see no moral obligation on his part.
I understand that you can come up with all sorts of difficult fact patterns. What if I took out the neighbor’s garbage, but I had borrowed three cups of flour the week before and not repaid the favor? Does the fact that the neighbor is old and frail change the outcome? Etc. I could make these up all day. So what? There will always be difficult cases close to the margin, where it becomes increasingly more complicated. No doubt. But this is not science so much as it is art. The raking leaves thing is not a close case, IMO. The fact that you can find hard cases says not one thing about the easy cases.
Working for a paycheck actually disproves your "labor begets ownership" concept, because working for a paycheck shows that labor does not, in fact, beget ownership. In all those cases, it's the capital provider, not the labor, who owns the products.
The owner is paying for the labor and the resources, and retains ownership after. At no point does the "labor beget ownership" at all. The laborer "owns" only his or her willingness to supply the labor, but the result of that labor is not owned.
This is an important point: the choice to labor or not is a rivalrous, excludable good. The laborer can offer *that* for sale. But the result of that labor begets no ownership at all.
Capital begets ownership. Not labor. It's been that way for a long, long time.
No. Because at no time does the laborer "own" the product of his labor in an employer/employee relationship. There is no "transfer." The laborer is selling the ability to do the labor, not the ownership of any product.
If you hire a gardener to handle your garden, the gardener, at no time, has ownership of the garden, no matter how much labor he puts into it. Labor does not beget ownership. At all.
Yes, I understand that. But that's not what we're talking about here. You claimed that labor begets ownership, but that's true almost nowhere in society.
I think we're talking past each other, and I think I see the source of the confusion: The labor begets ownership thing is just a shorthand. If something is in the commons, that is, not already owned, then labor begets ownership. Think of a fisherman in the ocean casting his net and pulling in fish. He owns those fish legally, and this flows from his moral claim to the fish based on his labor. But it's different, obviously, when the thing labored upon is not in the commons, that is, somebody else owns it. If I offer you $50 to rake up the leaves in my yard, and you agree and then do the work, I owe you the $50 legally, as we had a contract. But I also owe you the money morally, since you labored for my benefit. Your labor creates in you a moral claim. So when I say that labor begets ownership, I mean it in the broad sense. Whether that ownership is of the thing itself, as with the fisherman, or it's of the sum of money promised, as with the raking, labor begets a moral claim to it. I hope you understand that the theory is way more complicated than this and that I'm oversimplifying.
If copyrighted works are property, ownership can only ever be transferred, it can and will never end, at least in theory. My keyboard is mine and my PC is mine. They are my own property until I either sell them, give them to someone else, or throw them away.
I think the fault in your reasoning is with your supposition that anything labeled "property" must have ownership that is potentially never-ending. All property rights are limited in many ways, and this is so because there are countervailing considerations. Copyright is no different. It is limited in many ways, including term, because of countervailing interests.
Copyrighted works cannot be property and have never been treated as such. The sweat of the brow, welfare for the author and his/her family, and the "I made it, so I own it" arguments keep getting tossed out because they are emotion-based opinions that reject the established fact that copyright is a monopoly privilege.
Copyright is, and has been for centuries, understood to be grants of property rights. An author is granted the rights, in part, because he deserves them. The "I made it so I own it" thing is fundamental to property law around the globe. It's amazing that anyone denies this. And I hope you realize that "I made it so I own it" is a gross oversimplification. The theory is more complicated than that. By a lot.
All of your arguments, Antidirt, are based on your desire to corrupt the purpose of copyright from a limited term monopoly privilege to actual property. Since the premise is flawed, all you can ever do is repeat yourself because you can't admit to being wrong.
I think it's both. It's a limited monopoly and it's a set of property rights. Those terms are not mutually exclusive. I've never understood that debate. I'm happy to admit I'm wrong, but I doubt very seriously that you've read much old case law. Literally centuries of jurists referring to it as property. I think you don't know about it because you simply haven't looked into it. Mike surely will never ever write about it.
The privacy analogy fails on two fronts. Firstly, no: I don't see that anyone has a natural or moral right to privacy. Rather, it's something we all agree upon as a right because it makes us all happier. It's artificial.
So you insult me and say that my replies aren’t even “answers” because they sound like something a freshman would say, but then this is your explanation? We just agreed on it? And that’s it? That’s the extent of your analysis? Honestly, your approach makes it abundantly clear that you have neither studied nor thought about it very much. It’s hilarious that you brush off what I’m saying when you have nothing yourself. I had started to write out a lengthy response to you. I was going to explain the seminal article by Warren & Brandeis on the right to privacy. I was going to delve into its development under various state laws. I was going to explain the constitutionalization of the right under the substantive due process doctrine. We didn’t just “all agree upon” it, as you so thoughtlessly put it. The right to privacy is, like so many other things, linked to Locke. I’m happy to discuss all these things with you, but it’s clear that you have no interest in what I have to say. You just want to pretend like I can’t back up what I believe, while you have made no real effort to back up anything that you believe.
The same is true of copyright -- it's neither moral nor natural, it's something people agree on because they believe it will benefit everyone. The difference is that, in the case of the latter, I don't believe it is actually beneficial.
And if I pull out centuries of case law, treatises, commentary, etc. all disagreeing with you, you’ll just brush them off as meaningless. And you’ll do this even though you’ve never actually studied these things and even though you have no basis for your beliefs—whatever they may be. I understand that you don’t really understand these things. I don’t understand why you’re so hostile to anybody suggesting that there’s more to them than your unsubstantiated opinions.
Secondly, privacy exists precisely because something is not made public by a person — copyright exists to retain control of something after it has been made public. I no more agree with that than I agree with the UK's out-of-control superinjunctions or Europe's right to be forgotten.
But privacy is nonrivalrous. So why shouldn’t everything be nonprivate?
As for the concept of leaving "enough and as good" for others, that's precisely what doesn't happen with copyright. Instead, a monopoly is created on a piece of expression, and others are forced to go without entirely.
You haven’t actually addressed the point I made in the lengthy ANSWER that you’re responding to. These works are not plucked out of the public domain by authors. They don’t even exist until the author creates them. Nothing is taken from the public when an author is granted a copyright. If you disagree, then explain how a poem I write later today is taken from the public. How could the public possibly have my poem such that I am taking it away from the public when I write it for the first time?
Your are treating copyrightable material as a commodity, with each piece as good and equal to the next. But that's not how it works. Every copyright is a monopoly, every one creating an artificial and unnecessary exclusion on a piece of culture, depriving the commons of that culture and excluding others from its use, despite there being no natural limitation or scarcity that forces that state of affairs. And as you surely suspect by now, I entirely reject the silly idea that copyright promotes the creation of new works and adds to the public domain — that's what it's supposed to do, and may have done in some of its less ludicrously extreme forms, but what it is now utterly failing to do.
No, I’m not treating it as a commodity. I’m treating it as a resource that belongs to the author because of his time, effort, money, skill, etc. in creating it. I simply disagree with your freshman-like move of calling it “culture” such that now everyone has some moral claim to it. An author doesn’t take culture from the public. He creates new culture that never existed before. You say that copyright “depriv[es] the commons,” but you have yet to explain how the commons can be deprived of a work that never existed before the author created it. How, exactly, does the author take something from the commons when the work was never in the commons in the first place?
I know you’ve indicated that you’re done with this conversation, and that’s fine. I’ll stick around longer if you want to keep discussing it. But I must ask you to drop the insults. Stop pretending like I’m not answering you just because you disagree with my answer. It’s still an answer. And I’m happy to go down any tangential roads you’d like. But it is dishonest of you to say that I haven’t answered a thing. This comment right here is an answer. I know you don’t like it. I know you think I’m wrong. But it’s an answer. Be honest and just admit that much, if you please.
In almost no actual real world situation does "labor beget ownership." In almost every real situation the "exceptions" that you describe take over. And all of those exceptions debunk the "rule" that labor begets ownership, because it's almost never true.
Have you never worked for a paycheck? How is this idea foreign to you? What situations are you referring to? Can you give me one example?
Ownership of the underlying components may lead to ownership of the later product, but it is almost never labor that creates the conditions for ownership. Claiming otherwise sounds like someone who is a first year philosophy student with no real world experience.
Then what, specifically, is it based on? What would an expert such as yourself say?
Besides, if "labor begets ownership," and you believe that is the basis for copyright, why is that so few of the "laborers" retain their own copyrights?
Are you talking about when an author transfers his ownership to another IN EXCHANGE for something of value? Do you really not understand how the author had to have been granted the resource before he could trade it to another? The fact that it's transferable is irrelevant to the fact that the benefit goes to the author first. Care to explain why you disagree?
On the post: The MPAA Isn't About Helping Hollywood. It's About Preserving Its Own Need To Exist.
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You missed my point. In Mike's utopian world, where content is unprotected, many copies would be on YouTube. The fact that you didn't find any reflects the actual world we live in, where YouTube is renting copies and has no reason to compete with itself.
And like RadioactiveSmurf indicated - at least 2.5 million people choose to go the legitimate route online, even though free versions were available to them. So my answer to your question is "quite a few of them".
I'm one of those who went the "legitimate route." So what? Not everyone is a selfish pirate. We know that. What does that have to do with protecting content?
On the post: The MPAA Isn't About Helping Hollywood. It's About Preserving Its Own Need To Exist.
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Yep. Brought to you almost daily on Techdirt. Just don't ask him any questions.
It is clear that revenue generation once you embrace digital distribution and the age of the Internet requires a multi-pronged approach and further experimentation.
I have more content to stream than I could possibly ever watch. They seem to be trying new things. I'm not sure what your point is. I rent movies online from several different sources.
They key thing you always seem to miss is that simply fighting against the rising tide is a losing strategy. You criticize Mike as if he actually advocates throwing out all rules and letting chaos reign. He has never said that and your continued obtuseness is so very frustrating. Most of the solutions I have seen proposed on Techdirt are nuanced with the unique parameters associated with the particular situation.
Mike doesn't think YouTube should be liable for anything that its users do--even if YouTube knows about it and directly profits from it. Heck, he's not sure that Ulbricht should be liable for running Silk Road, even though he encouraged others to sell drugs and directly profited from each transaction. He doesn't think YouTube's users should be liable for anything either. That's just suing the "fans." Protecting content in any way is just holding on to a dinosaur business model. I think it's clear that Mike sees nothing wrong with anyone uploading whatever they like to YouTube. Has he ever indicated otherwise? Of course, he won't just talk about these things directly. That would be too easy.
On the post: The MPAA Isn't About Helping Hollywood. It's About Preserving Its Own Need To Exist.
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I'm sure they understand the risks far greater than any of us. Regardless, what's your point? Just because there are risks, i.e., piracy, why shouldn't they do anything to mitigate those risks? I don't understand why content shouldn't be protected. Can you explain?
On the post: The MPAA Isn't About Helping Hollywood. It's About Preserving Its Own Need To Exist.
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I rented it from YouTube. It was pretty funny. I probably wouldn't have rented it had there not been so much press about the North Korea thing and the film being pulled. I don't think you can glean much from this one piece of datum, especially given the uniqueness of what happened.
That said, in Mike's utopian vision, everyone could simply upload the video to YouTube. In his view, nothing should be done to protect the content. How many would rent it for $6 from YouTube when there's tons of free copies available on the same platform?
Morally, though, I don't see why Mike thinks Sony, who put out over $40M to make the movie, should have to compete with everyone else, who put out nothing, to create it. What justifies the free-riding he so desperately yearns for?
He'll never address these issues, sadly. He'll just keep calling their business model outdated without ever telling us what they should do, specifically, instead.
On the post: The MPAA Isn't About Helping Hollywood. It's About Preserving Its Own Need To Exist.
On the post: Court Says Dish's Hopper Technology Does Not Infringe On Copyrights
I remember when you were FREAKING OUT about Aereo. This post in particular comes to mind: https://www.techdirt.com/articles/20140330/23341526739/those-who-insist-aereo-ruling-wont-impact-clo ud-computing-dont-seem-to-understand-cloud-computing.shtml
You didn't think there was any way to distinguish Aereo from other cloud services. You said that a decision against Aereo would be terrible for the cloud. And, yet, now you're praising this court for applying the test from Aereo. I thought the sky... err the cloud... was falling. I thought it was all doom and gloom unless Aereo won. What happened, Mike? Did your sensationalist FUD not pan out again? Funny how that works.
On the post: All Of These Works Should Be In The Public Domain, But Aren't
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So, not extreme legal cases or obscure philosophers. Every day real world examples. The point is that it almost never happens. For all your "labor begets ownership" the fact is that almost never happens in real life. Thus it's hard to see how it's a "natural law" at all. It's a decision that some judges have made in tough cases because it seems like the best result. But it's hardly common or natural.
Do you even know what natural law is?
As for the Turtles case, I didn't address it because I wasn't familiar with the details like I was with the others. And, frankly, your repeated arguments that I didn't understand or read the stuff you were talking about shows, again, why no one wants to engage with you here. Stop trying to show off about how you read this or that. It doesn't further the conversation. It makes you look like a jackass (not trying to insult you here, just letting you know what you look like when you pretend that you're smarter than everyone else because you read a book or a case).
It’s exceedingly clear that you haven’t studied these things. I’m pointing out the obvious because you keep saying I’m wrong about something you haven’t really looked into. Don’t take it personally.
Having now read the Flo & Eddie case, I still don't see how it supports your position at all. Again it's an obscure situation, not a common every day case, and it involves an interpretation of basically obsolete California common law that only comes into play because of an error in federal copyright law that left out pre-1972 sound recordings.
There’s the California case, which held that the Turtles have property rights in their sound recordings under STATUTORY law (specifically, Section 980 of the California Civil Code), and then there’s the case in New York, which held that there are property rights in the sound recordings under COMMON law. I’m talking about the latter. There is no statute granting such rights in New York, yet courts recognize these rights based on labor. The court said: “The Turtles originally acquired a common law copyright in their sound recordings by expending time, effort, money and skill to create them.” This is labor begetting ownership. Why did the Turtles have the rights? Because they expended labor in creating the sound recordings. The labor begets ownership thing could not be any clearer in this example, yet you don’t seem to grasp it.
Your attempt to distinguish "sweat of the brow" from "labor begets ownership" is fascinating, but makes no sense. If labor begets ownership and that's the basis of copyright, as you claim, than of course the compilation of facts would be copyrightable, because there was labor involved. You seem to be tapdancing around this because it so demolishes your argument.
There’s no tapdancing, and it demolishes nothing. It’s extremely simple: The Constitution requires originality. You seem to think that the “labor begets ownership” rule is that all labor, no matter what, leads to a copyright. That is not the rule. The rule IN THIS CONTEXT is that it must be intellectual labor, that is, labor that leads to the creation of something original. This is a constitutional requirement. But it’s still labor leading to a copyright. Without that intellectual labor, there is no copyright. I don’t think this could be any clearer, yet you don’t seem to grasp it either.
This could have been an interesting conversation in which we delved into what actually leads to ownership. Instead, it resulted in your usual appeals to authority. Oh well. If you're doing all this reading on philosophers and legal cases that makes you feel so smart, how about some basic studies in logic and logical fallacies?
Can you point to even one single logical fallacy of mine? I’m all ears.
On the post: All Of These Works Should Be In The Public Domain, But Aren't
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Morris, the plaintiff, published newspapers, both in print and electronically. The issue was whether the PGA Tour could prevent Morris from reporting golf scores in real-time. The PGA compiled the scores through a system of people stationed around the course who called in the scores to a central location. Morris wanted to disseminate the scores as gathered in this central location; he did not want to wait until they were published on the PGA’s website.
The court called this what it is, free riding on the PGA’s labor:The court held that the PGA had a PROPERTY right in the scores. Why? Because of labor, of course:The PGA “has a property right” because it “collects information, which it created, at a cost.” Labor begets ownership. Note the reference to Feist. This was not a copyright case. It was a labor begets ownership case. PGA labored to collect those scores, and those scores were not published. They were not in the public domain. As such, they were the PGA’s property and Morris could not free ride.
The Eleventh Circuit, quite naturally, affirmed:Duh. It’s a no-brainer. Labor begets ownership, and Morris did not labor to collect the scores. The PGA did. And this gave the PGA a property interest in the scores: “PGA has a right to control its property interest in its RTSS and the compiled golf scores, which are the product of RTSS[.]” This wasn’t based on copyright or trade secrets or any other branch of IP. It was a straightforward application of labor begets ownership. Is this not (another) "real world" example? If not, explain why not.
I can dig up many, many more examples just like this, spanning centuries of time. Yet, I suppose, you’ll just deny them all—the fact that you haven't really researched any of them notwithstanding.
On the post: All Of These Works Should Be In The Public Domain, But Aren't
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And all you can come up with is shit in the street, hot news and a human cannonball -- with hot news and publicity rights being completely under attack as unreasonable extensions of the law.
These don't look good for you. I asked for REAL WORLD examples where labor actually begets ownership.
Each one of those cases is a “real world” example of where labor begets ownership. The plaintiff in Haslem v. Lockwood had a proprietary interest in the manure superior to the defendant because of his labor. The plaintiff in INS v. AP had a proprietary interest in the news superior to the defendant because of its labor. The plaintiff in Zacchini v. Scripps-Howard had a proprietary interest in his performance superior to the defendant because of his labor. Each one of those is a “real world” example of labor begetting ownership. Why deny that?
Funny how you completely failed to mention Flo & Eddie v. Sirius XM. That opinion came out just two months ago. That’s a “real world” example. Why did the Turtles have proprietary rights to their sound recordings? Labor. Said the Court:I cut out the citations so it’s easier to read. Now, please, explain to me how that is not a “REAL WORLD example[] where labor actually begets ownership.” Quite clearly, it is. Can you explain how it's not?
Look, I get that this is all new to you—it has not gone unnoticed that you don’t deny never having really studied these things. But don’t confuse your absence of knowledge with knowledge of absence. I know you don’t want it to be true, but that doesn’t change the fact that it is true. I assume you didn’t read the sources I linked to (Blackstone and Kent). I assume as well that you probably wouldn’t understand them even if you did. It took me a long time to get to where I really understand them. I was up until 3 AM this morning reading case law from the 1700s and 1800s. I don’t think I can even estimate the number of hours I’ve spent poring over these things. I love this stuff. Clearly, you’re simply unfamiliar with it.
That said, I get what you’re saying on one level: Where does occupancy fit into this modern world? Occupancy is a mode of acquiring property that is not already owned. Most things nowadays are already owned, so its application to tangible things is limited. It comes up in cases where property is abandoned and has no owner (the manure is an old example, but you can easily think of more modern ones—the law of treasure-troves is a favorite of mine). It comes up where the property is simply unowned (such as the fishing example).
But where it comes up most often today is with intellectual property. All branches of intellectual property are based on the notion that labor begets ownership. Trademark: Use of the mark leads to a proprietary interest. That use is labor. Copyright: Creation of original works leads to a proprietary interest. That creation is labor. Trade secrets: Development of the secret leads to a proprietary interest. That development is labor. Publicity, hot news, patents, etc. You name it. All based in labor. You really should spend some time looking into this before you brush it off. Clearly you haven’t done so.
And I love how you repeat over and over again that copyright is also from this mythical "labor begets ownership regime" using court quotes over other concepts as your basis, ignoring that the court explicitly rejected that claim in Feist. You know this so I don't know why you ignore it. But to refresh your memory:
The primary objective of copyright is not to reward the labor of authors...
and
Without a doubt, the “sweat of the brow” doctrine flouted basic copyright principles.
and
In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not “sweat of the brow,” is the touchstone of copyright protection
Yes, Feist. I’m glad you pulled out that case. You seem to think it erases centuries of labor begetting ownership. It does no such thing. Nor does it conflict with anything the Court said in INS v. AP.
I’m happy to explain.
First, let’s be clear about exactly what “sweat of the brow” is. It concerns granting copyright protection to compilations of FACTS. Said the Court:Some courts had been inclined to recognize copyrights in compilations of facts, based on the compilers’ LABORS. But, as you well know, the problem with this doctrine is that facts are not copyrightable. There’s nothing original about facts, and the Constitution requires works to be original (not to be confused with novel) before they can be protected by copyright. It doesn’t matter how much work one puts into compiling facts. The facts themselves can never be copyrighted because they are not the product of intellectual labor.
As the Court noted: “[O]riginality requires independent creation plus a modicum of creativity.” The writings that are protected “are founded in the creative powers of the mind.” They are “the fruits of intellectual labor[.]” You need INTELLECTUAL LABOR to get a copyright. That intellectual labor is embodied in the originality requirement. Slavishly copying facts is not intellectual labor. It’s physical labor, but it’s not intellectual labor because there’s nothing original about it. You need to apply intellectual labor to come up with something original before you can get a copyright. Feist only confirms that labor begets ownership. The critical thing missing in Feist was the intellectual labor. Without intellectual labor, that is, without originality, there was no copyright:So what can be copyrighted with compilations of facts? The selection and arrangement of the facts. Why? Because this involves intellectual labor:If somebody copies the unprotectable facts, the remedy is not in copyright law (as facts are not copyrightable), but rather in unfair competition law: “Protection for the fruits of such research ... may in certain circumstances be available under a theory of unfair competition.” And speaking of unfair competition law, let’s turn to your next point:
In fact, Feist actually rejects your reading of the hot news doctrine to somehow support "labor begets ownership" as applying to copyright.
The best example is International News Service v. Associated Press, 248 U.S. 215 (1918). In that decision, the Court stated unambiguously that the 1909 Act conferred copyright protection only on those elements of a work that were original to the author. Associated Press had conceded taking news reported by International News Service and publishing it in its own newspapers. Recognizing that § 5 of the Act specifically mentioned “periodicals, including newspapers,” § 5(b), the Court acknowledged that news articles were copyrightable. Id., at 234. It flatly rejected, however, the notion that the copyright in an article extended to the factual information it contained: “The news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.”
All the Court is saying there is that the facts in a copyrighted news article are not protected by copyright. No duh. Facts are not original. An author does not create facts from intellectual labor. Facts are not copyrighted, as per the Constitution. We know that. INS v. AP was not a copyright case. The federal courts were hearing the case based on diversity of citizenship, not a federal question under the Copyright Act.
The Court noted that news articles can be copyrighted:Why are news articles “the subject of literary property at the common law”? Because of labor, of course. But that protection is thin. Why? Because news articles contain lots of facts, and facts can’t be copyrighted as they are not original. But, again, this was not a copyright case. It was an unfair competition case. Even though the news articles were not claimed to be copyrighted, the Court found that they were nevertheless property to be protected as between the parties. Why? They were “gathered at the cost of enterprise, organization, skill, labor, and money.” Labor begets ownership.
So we're left with a few discredited court rulings that you take out of context, no real world examples and a clear delineation that copyright is not subject to that standard.
Very convincing.
I can find example after example from decade after decade applying this theory in context after context. I read over two dozen opinions applying occupancy to “real world” examples just last night. This stuff runs incredibly deep. Yet, you, without having really made any effort to understand it, completely reject that it’s real. Not very convincing, my friend. Why don't you start with the Flo & Eddie opinion, released just two months ago, recognizing property rights explicitly because of labor? Explain how that is not labor begetting ownership. Don't just ignore the parts you don't like! And let's hear a cogent response to my arguments about Feist. Shall I dig up more and more examples? I’m happy to. There are so many to choose from. I can go on for days with citation after citation after citation.
On the post: Chilling Effects On Chilling Effects As DMCA Archive Deletes Self From Google
"The activities of chillingeffects.org are repugnant to the purposes of Section 512. Data collected by high-volume recipients of DMCA notices such as Google, and senders of DMCA notices such as trade associations representing the film and music industries demonstrate that the overwhelming majority of DMCA notices sent are legitimate, yet the site unfairly maligns artists and creators using the legal process created by Section 512 as proponents of censorship."
I'll note first that you do not deny that Aistars did not say that "providing transparency" is "repugnant," as her remarks are now being framed. That claim is sensationalist nonsense.
If you're going to quote what she wrote, you should provide more than two sentences:The "activities of chilling effects.org" that she said were "repugnant" were that of gathering links, providing personal information, and maligning creators as "proponents of censorship." She was talking about legitimate notices, which she noted account for the "overwhelming majority" of notices sent. (You left out the footnote to Prof. Boyden's paper.) But what she did not say was that transparency itself is repugnant.
On the post: All Of These Works Should Be In The Public Domain, But Aren't
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On the post: Chilling Effects On Chilling Effects As DMCA Archive Deletes Self From Google
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I'm flattered that you think of me so often, but that's not me you're replying to. I love it when copyright and due process are enforced. Preferably at the same time.
That said, this post of Mike's is just stupid. Particularly, his ongoing personal attack of Aistars. Mike says:That's not fair. She was making the point that gathering all the links that have been removed defeats the purpose of having the links removed. She wasn't talking about transparency. She wasn't saying that providing transparency is repugnant. Give me a break. It actually "says a lot about" Mike that he has to be so hyperbolic all of the time. The transparency argument is a good one, but so is Aistars' argument about gathering links. There's no need to pretend like she was talking about one thing when she was in fact talking about another. It's just childish, bordering on delusional, for Mike to pretend otherwise. Sadly, such nonsense is Mike's stock-in-trade.
On the post: All Of These Works Should Be In The Public Domain, But Aren't
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The entire basis of your argument, that there's some sort of "natural law" saying labor begets ownership is simply wrong.
I’ll give you four concrete examples, some old and some new.
Haslem v. Lockwood, 37 Conn. 500 (1871). This is one of the first property law opinions that I’ve read. It discusses the two modes of acquisition I mentioned above: occupancy and accession. Here are the facts:So you’ve got manure on a public street. The plaintiff raked it into piles with the intention of coming back the next day to pick it up. The defendant came along in the meantime, found the piles, and took them. Who should win? What principles should be applied?
The court, quite naturally, turned to natural law. It first noted that the manure would belong to the owner of the animal:This is the principle of ACCESSION. In general, whether your animals create manure, calves, meat, skin, etc., it belongs to you because it’s your animals. When your horse poops on the street, that’s your poop. And if you leave it there, you abandon it. It goes back to the commons until someone else claims it. That’s what happened in this case.
The defendant tried to escape liability by pointing out that the streets were owned by the borough, not the plaintiff, but the court didn’t buy it:Because the plaintiff had “had changed its original condition and greatly enhanced its value by his labor,” he had “peaceable and quiet possession of the property.” The defendant could not have “seized and appropriated to his own use the fruits of the plaintiff's outlay” simply by pointing out that the borough owned the street. The borough might bring its own claim, but between the plaintiff and the defendant, that doesn’t change anything. The plaintiff’s claim is superior because he labored on the manure first. This is the principle of OCCUPATION. It’s the notion that labor begets ownership. This stuff is literally millennia old.
The court further rejected the argument that, whatever rights the plaintiff had acquired by way of occupancy in raking the manure, were lost when he left the piles on the street:So even though the plaintiff did not have actual possession of the piles, he had constructive possession. Since he had “greatly increase[d] its value by his labor and expense,” he had possession, and this meant that he had a “reasonable time to remove the property.” The court looked by analogy at the statute on seaweed on a beach, which permits someone 24 hours to remove the piles of seaweed once they’ve been gathered. Since 24 hours is reasonable there, the court held that 24 hours is reasonable here. As the plaintiff had left the piles less than 24 hours, he had the superior claim.
The case law is teeming with applications of natural law modes of acquisition of property, such as accession and occupation. You seem to deny this, and I can only assume it’s because you’re simply not familiar with this aspect of property law. These notions date back many, many centuries—especially in the context of land, animals, and the like. But they turn up in intellectual property as well.
Int'l News Serv. v. Associated Press, 248 U.S. 215 (1918). The is where the Supreme Court adopted the “hot news” doctrine. Of course, the opinion is no longer good law because of the Erie doctrine, it nonetheless shows how labor begets ownership. The Court, when it had the power to make such declarations, did so. Said the Court:Because of the “the cost of enterprise, organization, skill, labor, and money” in collected the news, the Court found “quasi property” rights as between the parties. Note that this is but an application of the general rule: “a court of equity . . . treats any civil right of a pecuniary nature as a property right.” Though these rights weren’t legal—that is, recognized in courts of law—they were nonetheless—recognized in courts of equity. Those courts determined what is just and right, equitable and moral. A person has “the right to acquire property by honest labor” and “is as much entitled to protection as the right to guard property already acquired.” Labor begets ownership.
The defendant, said the Court, was reaping where he had not sown:This was an unfair business practice. While INS v. AP is no longer good law, the law of unfair competition goes back centuries. And it is based on these same notions of fairness, and, of course, labor begetting ownership. If you want to see real world applications of natural law, read some of the unfair competition case law. These torts were invented by the courts based on equitable principles.
Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977). The plaintiff had a “human cannonball” performance that a news station aired in its entirety. The news station argued that the First Amendment trumped the performer’s property rights under the state’s right of publicity. The Supreme Court first distinguished the right of publicity from the other three types of privacy torts:The right of publicity, said the Court, is analogous to patent and copyright law in that it seeks to protect “the right of the individual to reap the reward of his endeavors.” Labor begets ownership. The other three privacy torts, by the way, also come (at least in part) from natural law—more specifically, the Lockean notion of bodily integrity.
The news station lost because it tried to reap where it had not sown:The interest being protected was the “product of petitioner's own talents and energy, the end result of much time, effort, and expense.” Labor begets property.
The Court noted that it’s the same underlying rationale for copyright:Copyright, like the right of publicity, are rewards based on labor. Such labors “deserve rewards commensurate with the services rendered.” Labor begets ownership.
Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13 CIV. 5784 CM, 2014 WL 6670201 (S.D.N.Y. Nov. 14, 2014). This is the Turtles’ lawsuit over pre-1972 sound recordings under New York. These recordings are neither protected nor preempted by the 1976 Copyright Act, so the question was whether they were protected under the state’s common law. The court held that they are. Can you guess why? Labor begets ownership. Said the court:How does one acquire the common law rights? Simple: “by expending time, effort, money, and great skill’ in its creation.” The Turtles had the rights because they expended “time, effort, money and skill to create them.” Labor begets ownership. We don’t often think about copyright this way because the Copyright Act for the most part preempts state law, but where it doesn’t, you see labor theory applied. As mentioned above, labor is also one reason we have statutory rights. But even when the statutory rights aren’t there, the common law declares those rights to exist because of labor.
You seem to deny all of this, and, again, I have to assume it’s because you haven’t ever really looked into it. The reports are full of courts invoking natural law. This has been going on for centuries. All you have to do is look, and you’ll see it too.
In the end, you've got nothing but a tautology for your argument. "Natural law" says "labor begets ownership" for "moral" reasons. Yet, when we dig in, we find it's all exceptions and labor never actually begets any ownership at all, but you have an excuse for every single possible counter example. But the problem is that the underlying rule doesn't actually exist in any real world. Even when we show that labor never begets ownership, you simply move the goalposts (as you've done for years) and say "sure, but morals." Okay.
Still think I’m moving the goalposts? I can find example after example from decade after decade applying these principles in multiple contexts. In contract law, the courts don’t simply enforce the contract because it’s a contract. The courts enforce it because it’s the right thing to do. People SHOULD keep their promises. You seem to think that law and morality don’t overlap. Nothing could be further from the truth. The former flows from the latter. And when the contract is immoral, it’s not enforced. And even when there’s no contract, the courts might enforce one anyone based on the morality. These moral issues arise in all law: contracts, property, privacy, publicity, etc. You name it. I don’t get the sense you’ve studied this closely. Is that correct?
If you want to check out some of the classical references, I recommend starting with Blackstone’s Commentaries from the 1760s. Source: http://lonang.com/library/reference/blackstone-commentaries-law-england/ Check out Book II in particular. Kent’s Commentaries from 50 years later are also a must-read. Here’s Kent explaining the different modes of acquiring property (occupancy, accession, intellectual labor): http://lonang.com/library/reference/kent-commentaries-american-law/kent-36/ These treatises base property on natural law because that is where property law comes from, if you go back to first principles. I can dig up links to many early treatises on copyright law, all replete with references to natural law. You’d be surprised at how deeply this stuff runs, apparently. I'm not (just) making the normative argument that the law should be this way. I'm arguing that it is in fact this way in the descriptive sense.
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Sorry. I brain-farted. It's accession, not acquisition. Mea culpa. I thought one thing and typed another.
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You’re correct. Labor begets ownership, but it’s not the only mode of acquiring ownership under natural law. The one you’re referring to is acquisition. So in the examples above about the sticks or the leaves in the neighbor’s yard, those belong to the neighbor even if he expended no labor on them. Say, a seed planted itself and the tree grew without him laboring on it. Nevertheless, the tree, branches, leaves, fruits, etc. that are in the tree are his because the land beneath is his. He acquired them not from labor, but from acquisition. Your dogs have a litter of pups? That litter is yours, because of acquisition. Same with the fish that jumps in the boat. It’s your boat, ergo, it’s your fish. You own it, even absent labor. The answer to your question is simply that there are OTHER ways of acquiring property. Labor is but one. Acquisition dates back to Roman law (maybe earlier).
If you're going to request my labor, then I would set some sort of agreement first about what it's in exchange for. There is no moral obligation from the labor, just the contract.
I think there are underlying moral issues that take shape in contract doctrine. For example, even if we have a contract, a court may not enforce it for many reasons. Maybe the terms are unconscionable, or maybe the liquidated damages amount is unreasonable. Maybe there was fraud that vitiated consent, or maybe it involves an illegal act. If it’s unfair—that is, unjust and immoral—to enforce the contract, the court won’t enforce it. And this goes the other way. Even if there is no contract, a court will sometimes find one based on quasi-contract or detrimental reliance theories—which are themselves morally-based. Just because there’s a contract, that doesn’t mean morality is not involved. The law typically follows the morality, naturally. If you ask someone to do the work, then I think there is a moral claim on their part, even if there is no contract. If they work at your request, to your benefit and their detriment, then I think they could sue you for restitutionary damages. There are other avenues to right this wrong because it is a wrong, whether there’s a contract or not. Even if there’s no loss under the contract to be compensated, your gain at another’s expense is a wrong that the law will remedy. You don’t seem to think it’s a wrong, but I don’t think the courts agree with you. The law certainly does not.
You're merely getting into the realm of social relationships. But, unlike you, I do not keep a running tally of favors owed by me to neighbors or owed by my neighbors to me. If I can help my neighbor out I do. My moral obligation is to help when possible because I like my neighbor.
I find your position a lot more morally compromising, where you apparently feel you only do favors when you expect to be paid back -- and in fact appear to suggest that there is a moral requirement to pay you back. I don't expect my neighbor to repay my favor at all.
On the contrary, I agree that one has the moral obligation to help one’s neighbors, with no moral obligation in return. I disagree that this is because I "like my neighbor," which is your criteria. I never said that I expect all favors to be repaid. That was your caricature of my position.
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Because, as I stated earlier in this discussion, in almost every case, labor does not beget ownership at all. It is a very rare exception, and thus no law at all. And you prove that with your next statement:
If something is in the commons, that is, not already owned, then labor begets ownership. Think of a fisherman in the ocean casting his net and pulling in fish. He owns those fish legally, and this flows from his moral claim to the fish based on his labor.
So now you're admitting that "labor begets ownership" only in the very rare circumstance in which none of the underlying material is originally owned -- a case that happens quite rarely.
Sigh. Lockean theory is complex. I boiled it down to one phrase, while focusing on one context. You do understand that my three-word synopsis does not cover all facets of this complex theory, right? I was originally talking about labor on the commons. You changed it to labor on property stolen from another. That’s fine, but if you’re going to change the context, my three-word synopsis is not going to cover all other fact-patterns. How could it? Let’s skip the “gotcha” game.
Even in the example you cite, the fisherman bagging the fish, even there labor does not, in fact, "beget ownership." Because there is no ownership associated with the labor. I could go out and "labor" away at fishing all day long and if I catch nothing, I get nothing. Or what of the fish that I catch, but which slips away as I try to take it off the line, leading someone else to catch it. I did the labor. I got no ownership.
In that case, possession begets the ownership. Not the labor. The amount of labor has no impact on the ownership.
The fisherman who catches fish does in fact have ownership of the fish. His labor led to that ownership. How could he have caught any fish without labor? If you go out and catch no fish, you get no ownership. Why? Because your labor was not PRODUCTIVE. Again, since I’ve only grossly-oversimplified the theory, I did not specify that Locke was referring to productive labor—not just any labor. You, who caught nothing, own nothing. Your labor was not productive, so you have no moral claim to anything.
If I offer you $50 to rake up the leaves in my yard, and you agree and then do the work, I owe you the $50 legally, as we had a contract. But I also owe you the money morally, since you labored for my benefit.
I see no moral obligation beyond the contract there.
So if I labor, at your request, for hours, to rake your leaves, benefitting you to my detriment, you see no moral obligation at all on your part to repay me for my labors? Are you serious? I couldn’t disagree more. I find it amazing that you see no moral issue there whatsoever. Let me guess: You live in Silicon Valley?
If you help an old woman across the street, do you believe she morally owes you money? You labored for her benefit.
Labor begets no moral requirement without the contract.
My neighbor is old and frail. I helped him take out his garbage the other day because it was the nice thing to do. I see no moral obligation on his part.
I understand that you can come up with all sorts of difficult fact patterns. What if I took out the neighbor’s garbage, but I had borrowed three cups of flour the week before and not repaid the favor? Does the fact that the neighbor is old and frail change the outcome? Etc. I could make these up all day. So what? There will always be difficult cases close to the margin, where it becomes increasingly more complicated. No doubt. But this is not science so much as it is art. The raking leaves thing is not a close case, IMO. The fact that you can find hard cases says not one thing about the easy cases.
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The owner is paying for the labor and the resources, and retains ownership after. At no point does the "labor beget ownership" at all. The laborer "owns" only his or her willingness to supply the labor, but the result of that labor is not owned.
This is an important point: the choice to labor or not is a rivalrous, excludable good. The laborer can offer *that* for sale. But the result of that labor begets no ownership at all.
Capital begets ownership. Not labor. It's been that way for a long, long time.
No. Because at no time does the laborer "own" the product of his labor in an employer/employee relationship. There is no "transfer." The laborer is selling the ability to do the labor, not the ownership of any product.
If you hire a gardener to handle your garden, the gardener, at no time, has ownership of the garden, no matter how much labor he puts into it. Labor does not beget ownership. At all.
Yes, I understand that. But that's not what we're talking about here. You claimed that labor begets ownership, but that's true almost nowhere in society.
I think we're talking past each other, and I think I see the source of the confusion: The labor begets ownership thing is just a shorthand. If something is in the commons, that is, not already owned, then labor begets ownership. Think of a fisherman in the ocean casting his net and pulling in fish. He owns those fish legally, and this flows from his moral claim to the fish based on his labor. But it's different, obviously, when the thing labored upon is not in the commons, that is, somebody else owns it. If I offer you $50 to rake up the leaves in my yard, and you agree and then do the work, I owe you the $50 legally, as we had a contract. But I also owe you the money morally, since you labored for my benefit. Your labor creates in you a moral claim. So when I say that labor begets ownership, I mean it in the broad sense. Whether that ownership is of the thing itself, as with the fisherman, or it's of the sum of money promised, as with the raking, labor begets a moral claim to it. I hope you understand that the theory is way more complicated than this and that I'm oversimplifying.
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I think the fault in your reasoning is with your supposition that anything labeled "property" must have ownership that is potentially never-ending. All property rights are limited in many ways, and this is so because there are countervailing considerations. Copyright is no different. It is limited in many ways, including term, because of countervailing interests.
Copyrighted works cannot be property and have never been treated as such. The sweat of the brow, welfare for the author and his/her family, and the "I made it, so I own it" arguments keep getting tossed out because they are emotion-based opinions that reject the established fact that copyright is a monopoly privilege.
Copyright is, and has been for centuries, understood to be grants of property rights. An author is granted the rights, in part, because he deserves them. The "I made it so I own it" thing is fundamental to property law around the globe. It's amazing that anyone denies this. And I hope you realize that "I made it so I own it" is a gross oversimplification. The theory is more complicated than that. By a lot.
All of your arguments, Antidirt, are based on your desire to corrupt the purpose of copyright from a limited term monopoly privilege to actual property. Since the premise is flawed, all you can ever do is repeat yourself because you can't admit to being wrong.
I think it's both. It's a limited monopoly and it's a set of property rights. Those terms are not mutually exclusive. I've never understood that debate. I'm happy to admit I'm wrong, but I doubt very seriously that you've read much old case law. Literally centuries of jurists referring to it as property. I think you don't know about it because you simply haven't looked into it. Mike surely will never ever write about it.
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So you insult me and say that my replies aren’t even “answers” because they sound like something a freshman would say, but then this is your explanation? We just agreed on it? And that’s it? That’s the extent of your analysis? Honestly, your approach makes it abundantly clear that you have neither studied nor thought about it very much. It’s hilarious that you brush off what I’m saying when you have nothing yourself. I had started to write out a lengthy response to you. I was going to explain the seminal article by Warren & Brandeis on the right to privacy. I was going to delve into its development under various state laws. I was going to explain the constitutionalization of the right under the substantive due process doctrine. We didn’t just “all agree upon” it, as you so thoughtlessly put it. The right to privacy is, like so many other things, linked to Locke. I’m happy to discuss all these things with you, but it’s clear that you have no interest in what I have to say. You just want to pretend like I can’t back up what I believe, while you have made no real effort to back up anything that you believe.
The same is true of copyright -- it's neither moral nor natural, it's something people agree on because they believe it will benefit everyone. The difference is that, in the case of the latter, I don't believe it is actually beneficial.
And if I pull out centuries of case law, treatises, commentary, etc. all disagreeing with you, you’ll just brush them off as meaningless. And you’ll do this even though you’ve never actually studied these things and even though you have no basis for your beliefs—whatever they may be. I understand that you don’t really understand these things. I don’t understand why you’re so hostile to anybody suggesting that there’s more to them than your unsubstantiated opinions.
Secondly, privacy exists precisely because something is not made public by a person — copyright exists to retain control of something after it has been made public. I no more agree with that than I agree with the UK's out-of-control superinjunctions or Europe's right to be forgotten.
But privacy is nonrivalrous. So why shouldn’t everything be nonprivate?
As for the concept of leaving "enough and as good" for others, that's precisely what doesn't happen with copyright. Instead, a monopoly is created on a piece of expression, and others are forced to go without entirely.
You haven’t actually addressed the point I made in the lengthy ANSWER that you’re responding to. These works are not plucked out of the public domain by authors. They don’t even exist until the author creates them. Nothing is taken from the public when an author is granted a copyright. If you disagree, then explain how a poem I write later today is taken from the public. How could the public possibly have my poem such that I am taking it away from the public when I write it for the first time?
Your are treating copyrightable material as a commodity, with each piece as good and equal to the next. But that's not how it works. Every copyright is a monopoly, every one creating an artificial and unnecessary exclusion on a piece of culture, depriving the commons of that culture and excluding others from its use, despite there being no natural limitation or scarcity that forces that state of affairs. And as you surely suspect by now, I entirely reject the silly idea that copyright promotes the creation of new works and adds to the public domain — that's what it's supposed to do, and may have done in some of its less ludicrously extreme forms, but what it is now utterly failing to do.
No, I’m not treating it as a commodity. I’m treating it as a resource that belongs to the author because of his time, effort, money, skill, etc. in creating it. I simply disagree with your freshman-like move of calling it “culture” such that now everyone has some moral claim to it. An author doesn’t take culture from the public. He creates new culture that never existed before. You say that copyright “depriv[es] the commons,” but you have yet to explain how the commons can be deprived of a work that never existed before the author created it. How, exactly, does the author take something from the commons when the work was never in the commons in the first place?
I know you’ve indicated that you’re done with this conversation, and that’s fine. I’ll stick around longer if you want to keep discussing it. But I must ask you to drop the insults. Stop pretending like I’m not answering you just because you disagree with my answer. It’s still an answer. And I’m happy to go down any tangential roads you’d like. But it is dishonest of you to say that I haven’t answered a thing. This comment right here is an answer. I know you don’t like it. I know you think I’m wrong. But it’s an answer. Be honest and just admit that much, if you please.
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Have you never worked for a paycheck? How is this idea foreign to you? What situations are you referring to? Can you give me one example?
Ownership of the underlying components may lead to ownership of the later product, but it is almost never labor that creates the conditions for ownership. Claiming otherwise sounds like someone who is a first year philosophy student with no real world experience.
Then what, specifically, is it based on? What would an expert such as yourself say?
Besides, if "labor begets ownership," and you believe that is the basis for copyright, why is that so few of the "laborers" retain their own copyrights?
Are you talking about when an author transfers his ownership to another IN EXCHANGE for something of value? Do you really not understand how the author had to have been granted the resource before he could trade it to another? The fact that it's transferable is irrelevant to the fact that the benefit goes to the author first. Care to explain why you disagree?
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