Re: Inalienable versus legislatively created rights
Yes, he is absolutely correct about this. In fact, much of the disagreement on Techdirt could be described that way. People have been conditioned to see copyright as something inherent because otherwise it wouldn't be called a right. Likewise, intellectual property is seen as equivalent to real property primarily due to the name.
In the case of copyright it is an intentional misrepresentation to attach morality to stifling competition. It was about competing ideas in the beginning and became about competition for commerce later on.
Even though I disagree with his legal rationale, I completely agree with Crosbie Fitch about the illegitimacy of copyright. If there is some need for the government to support artists (there isn't BTW), we should do so by subsidizing them, not penalizing their competition. Even if what we were really doing now actually had the result of rewarding artists, the means would still be dishonest, unethical, and generally harmful to a free society.
Glad to hear your opinion. I'm curious, though, about whether you agree that that there are some areas where we should (or even could) be doing more to hold lawyers to a higher standard.
The problem with the page you link to is that it makes assumptions which are not supported by history. It is accurate to say the authors of the Constitution were informed by, and largely agreed with, Paine's writings and philosophy. It is a logical fallacy to suggest that means their opinions were identical to his, or that all we need do to correctly interpret the Constitution is use the filter of Paine's writings. If you want to know how Jefferson and Madison felt about copyright, you need only consider their own words.
Jefferson's writings on the subject clearly show that he saw through the rationalization of copyright and understood its real impact on society. However, he also acknowledged that it was society's choice to make. Jefferson also believed that it was possible for patents to be good for the country. Madison apparently believed in both copyright and patents without Jefferson's reservations.
Thomas Jefferson (1813)
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody...
...Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured.
James Madison (1788)
The utility of this power will scarcely be questioned. The copy right of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. The public good fully coincides in both cases, with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
Arguing that the Copyright Clause is not really about copyrights because Thomas Paine didn't believe in them is revisionist history on the same level as claiming copyright is intended as a protection for artists.
Furthermore, even if Jefferson, Madison, and others felt the way you suggest, their opinions also do not give us a complete perspective on the meaning of the Constitution. The Constitution carries the weight of ratification by numerous people. It is their common understanding which must be considered when we try to decipher the meaning of the text, not just that of particular people who were directly involved in writing it. As Madison's comments show us, the usefulness, and even necessity, of copyrights and patents was accepted by people of the time (or at least members of the merchant class). Short of specific evidence that the majority of people who signed the Constitution believed otherwise, the Copyright Clause clearly empowers Congress to grant copyrights and patents.
And despite your claim to the contrary, US law adopted most of Britain's common law traditions. There were exceptions, primarily where the Constitution disagreed with British tradition, but on the whole, their legal tradition (prior to the revolution) is also ours. This was completely intentional. The Founding Fathers were not trying to break with that tradition, but rather improve on it.
If an artist wants to be a career artist, they are going to need to have some business skills. If, on the other hand, they believe they are pursuing a much higher calling and can't be trifled with those concerns, then that's awesome and I fully support them - but they have to be prepared to live that life, and not expect the world to just throw money at them.
I think you're right. In fact I find myself making exactly those types of decisions every day. I don't get paid for the quality of my work. I get paid for its value in attracting website visitors. I have to find an acceptable compromise between what I want to create and how much work I can justify for the money.
I could be in it purely for the art, and not make any (or much) money. I could do it purely for the money and make art I wasn't particularly proud of. I choose to find a happy medium where I can afford to be a professional and still consider myself an artist. My business suffers for my art and my art suffers for my business. It's not a perfect arrangement, but it's the most acceptable compromise I've been able to find.
Going back to George Clinton, he decided not to compromise his art. He spent big on the best musicians, lavish recordings, and over the top stage shows. When he got into a dispute with his label he would just rename the group (The Parliaments, Funkadelic, Parliament) and start over. On one hand, I admire him for that. On the other hand, I have little sympathy for the consequences that came with avoiding the hard decisions most of us have to make.
Sorry, but that doesn't prove the "we shouldn't have to be business men" argument is not valid. It proves it is not pragmatic. Very different things.
You are mistaken. What Clinton's career shows is that musicians run a business. They are contractors. If you are a contractor, you need to be a business man.
Look, in an ideal world musicians should be able to get on with just making music and not have to care about the money 'cos it'll all be fine. But today, they can't - they have to spend as much time watching their backs and getting the business side right. This is true in a lot of walks of live, and I think that's a shame.
I keep hearing this, but have yet to hear any rationale beyond, "because they're artists." In most cases, the arguments are more like yours, which is to say there isn't one. They shouldn't have to be business men just because. If you have something more enlightening I would love to hear it.
It's worse than a logical fallacy. It's a verifiable hypothesis which has already been disproven.
The studios have made multiple attempts to sell content online. Hell, Sony has the entire content creation and distribution chain covered from end to end. They produce the content, own the copyrights, have a content network, and produce all the hardware required for accessing it. And yet they can't turn all that into a viable online content business.
If it was all about the content, there would be no market for Netflix streaming to begin with. Since it's the studios, not Netflix, who have failed repeatedly in the market, we don't need to debate whether content is the key. We already know it isn't.
You're asking the wrong question Mike. Obviously this is due to studio pressure. The real question is whether the studios are trying to milk Netflix for all it's worth or just marginalize them.
Hollywood executives have made no secret of the fact they believe Netflix and Redbox are harming them financially. Their ultimate goal is to stop being dependent on those 2 companies for their revenue. Besides the release window nonsense everyone is familiar with, there's also something called Ultraviolet, which all the major studios except Disney are involved in. The entire point seems to be to regain control over viewing by partnering* with everyone in between the studio and the viewer.
They have also been quite clear about their belief that the key to success is making others less competitive. They assume it's the content, rather than the service which is the draw. Obviously that's ridiculous. The studios already have all the content and have never been able to create a successful streaming or download business with it, whereas Netflix has a tiny subset of that and has managed to leverage that into piles of money. Nevertheless, killing the golden goose is a perfect description of what passes for a business strategy in the entertainment industry.
* In the same sense that a pimp partners with a 14 year old runaway on the street
Or maybe it would be more accurate to say Righthaven's victims and their lawyers will be left holding the bag. The rest of us are just left cleaning up elephant crap.
No doubt you're right. Unfortunately, the show is a circus and guess who's paying to put it on in our courts? So I guess I've just answered my own question. The American people will be left holding the bag as usual.
As if preparing food for themselves wasn't bad enough, some people even share it with their friends. A few months ago I went to a friend's house where I had a very nice supper and watched a movie on the 110" screen in his home theater. I spent the entire time expecting the movie theater and restaurant police to break down the door.
People could always smoke, drink, and eat in their living rooms, and yet they were making money from people paying to do those things at the theater. Likewise, they made plenty of money from movies people could also see at home. It wasn't until they lost one of the key attractions to their overall experience (smoking) that they ran into problems.
The problem theater owners have is essentially the same as nearly everyone in the content business. They over value the content and undervalue delivery to the consumer. And by everyone I mean all the way from the beginning of the creative process until you reach the consumer.
Content does not have any intrinsic value. If the complete works of William Shakespeare had stayed in his mind or been written down but never performed, their value would be exactly nothing. Performances of his plays by actors just sitting around a table reciting lines would be worth slightly more. Take the same works and make them into productions by a company of skilled, classically trained actors and the value skyrockets.
The point is, people don't value content. They value consuming content. A movie, no matter how good, is worth nothing to you if you don't watch it. Likewise, the more satisfying the experience of consuming it is, the more it is worth.
For most movies, nothing a theater could add would enhance my enjoyment enough to justify paying their prices. For a small minority it will. Which category a movie falls into has nothing to do with whether I have other options for consuming it. It has everything to do with whether my enjoyment of the movie will be increased significantly by seeing it in a theater.
The enjoyment factor will also vary from one theater to another. For many years, there was a local theater where you could buy drinks and food and even smoke while you were watching a movie. They were essentially a discount theater, which in their later years meant they were showing movies you could already buy or rent on DVD.
A couple years ago Billy Joes closed their doors, but it had nothing to do with competition from home video. In fact it was entirely due to a state smoking ban. The value of the Billy Joes experience dropped to the point where they could no longer attract enough business.
I agree. That's one of the problems I have with our legal system. In most professions where certain responsibilities are assumed under the law, such as medical doctors or CPAs, there are fairly well defined boundaries for what they can be assumed to know. If a doctor harms patients because he ignores standard accepted practices, relying instead on his own pet theories, he opens himself up to liability for damages, may have his license taken away, and could even face criminal charges.
If a lawyer does the same thing, he gets to hide behind his responsibility in the adversarial process. Within certain boundaries, this is a necessary evil. The common understanding of laws is more fluid than medical standards or accounting practices. But at some point there needs to be a line you can't step over. Otherwise the adversarial process ceases to be an instrument of justice and instead becomes a tool for circumventing the law. We have long since passed that point.
Any solution would no doubt be just as complex as the problem. However, when a judge calls your arguments, "flagrantly false-to the point that the claim
is disingenuous, if not outright deceitful," wherever the line is, you have almost certainly crossed it. And it's not just an offense against the defendants. Practices like this are harmful to society as a whole. Beyond the financial cost to the public, which is no small thing considering the number of cases Righthaven has pursued, it taints the entire legal system with the stink of corruption.
A justice system which appears to be corrupt is virtually indistinguishable from one that actually is. People who do not trust the the legal system to give them justice are unlikely to use that system to pursue it. Likewise, those who perceive that it can be an instrument of injustice will only be emboldened to use it for exactly that purpose.
I'd like to be sure of that, but I foresee a lot of finger pointing, with corporate executives claiming they were acting on advice from the lawyers and lawyers claiming they were just arguing legal theories dreamed up by the executives. Proving fraud will be difficult unless someone comes up with documentation proving knowledge that the copyright assignments were invalid.
This is where Righthaven's legal relationship to the actual copyright holders becomes much more important. If (when) Righthaven is dissolved as a corporation, what liability will the actual copyright holders, or even Righthaven's owners, have for paying any outstanding damage awards?
The entire purpose of Righthaven has been to act as a buffer for these sorts of liabilities. Even though this is clearly fraudulent, since they are essentially acting as a contractor on behalf of the real copyright holders, that fraud is a separate issue. If Righthaven goes out of business it would seem to require lawsuits against the owners of the copyrights involved and Righthaven's owners to prevent those debts from being wiped out with the company.
You would be hard pressed to find a more accurate indicator of an argument without merit than the words "common sense." The application of common sense requires that the issue is simple and the facts well known and understood. Common sense arguments on complex issues are always based on either substituting emotion for fact or cherry picking the facts to match your point. And while cherries make a fine pie, they are poor rhetorical tools.
Cherry picking can be used to "prove" any side in any debate using common sense. For example, since reliance on copyright has made many musicians rich, common sense tells us copyright is important for artists. On the other, better than 99% of musicians don't write or record, so common sense also tells us copyright holds very little importance to artists. In reality, neither is a valid argument because both lack the breadth of information required to understand such a complex issue.
On the post: Rich Fiscus' Favorite Techdirt Posts Of The Week
Re: Inalienable versus legislatively created rights
In the case of copyright it is an intentional misrepresentation to attach morality to stifling competition. It was about competing ideas in the beginning and became about competition for commerce later on.
Even though I disagree with his legal rationale, I completely agree with Crosbie Fitch about the illegitimacy of copyright. If there is some need for the government to support artists (there isn't BTW), we should do so by subsidizing them, not penalizing their competition. Even if what we were really doing now actually had the result of rewarding artists, the means would still be dishonest, unethical, and generally harmful to a free society.
On the post: Rich Fiscus' Favorite Techdirt Posts Of The Week
Re: Good post, but ...
On the post: Rich Fiscus' Favorite Techdirt Posts Of The Week
Re: Re: Re: Re:
Copyright is not conceived or written in the US Constitution, nor even referred to.
You can find these answers at http://culturalliberty.org/blog/index.php?id=276
The problem with the page you link to is that it makes assumptions which are not supported by history. It is accurate to say the authors of the Constitution were informed by, and largely agreed with, Paine's writings and philosophy. It is a logical fallacy to suggest that means their opinions were identical to his, or that all we need do to correctly interpret the Constitution is use the filter of Paine's writings. If you want to know how Jefferson and Madison felt about copyright, you need only consider their own words.
Jefferson's writings on the subject clearly show that he saw through the rationalization of copyright and understood its real impact on society. However, he also acknowledged that it was society's choice to make. Jefferson also believed that it was possible for patents to be good for the country. Madison apparently believed in both copyright and patents without Jefferson's reservations.
Arguing that the Copyright Clause is not really about copyrights because Thomas Paine didn't believe in them is revisionist history on the same level as claiming copyright is intended as a protection for artists.
Furthermore, even if Jefferson, Madison, and others felt the way you suggest, their opinions also do not give us a complete perspective on the meaning of the Constitution. The Constitution carries the weight of ratification by numerous people. It is their common understanding which must be considered when we try to decipher the meaning of the text, not just that of particular people who were directly involved in writing it. As Madison's comments show us, the usefulness, and even necessity, of copyrights and patents was accepted by people of the time (or at least members of the merchant class). Short of specific evidence that the majority of people who signed the Constitution believed otherwise, the Copyright Clause clearly empowers Congress to grant copyrights and patents.
And despite your claim to the contrary, US law adopted most of Britain's common law traditions. There were exceptions, primarily where the Constitution disagreed with British tradition, but on the whole, their legal tradition (prior to the revolution) is also ours. This was completely intentional. The Founding Fathers were not trying to break with that tradition, but rather improve on it.
On the post: Rich Fiscus' Favorite Techdirt Posts Of The Week
Re: Re: Re:
I think you're right. In fact I find myself making exactly those types of decisions every day. I don't get paid for the quality of my work. I get paid for its value in attracting website visitors. I have to find an acceptable compromise between what I want to create and how much work I can justify for the money.
I could be in it purely for the art, and not make any (or much) money. I could do it purely for the money and make art I wasn't particularly proud of. I choose to find a happy medium where I can afford to be a professional and still consider myself an artist. My business suffers for my art and my art suffers for my business. It's not a perfect arrangement, but it's the most acceptable compromise I've been able to find.
Going back to George Clinton, he decided not to compromise his art. He spent big on the best musicians, lavish recordings, and over the top stage shows. When he got into a dispute with his label he would just rename the group (The Parliaments, Funkadelic, Parliament) and start over. On one hand, I admire him for that. On the other hand, I have little sympathy for the consequences that came with avoiding the hard decisions most of us have to make.
On the post: Rich Fiscus' Favorite Techdirt Posts Of The Week
Re:
You are mistaken. What Clinton's career shows is that musicians run a business. They are contractors. If you are a contractor, you need to be a business man.
Look, in an ideal world musicians should be able to get on with just making music and not have to care about the money 'cos it'll all be fine. But today, they can't - they have to spend as much time watching their backs and getting the business side right. This is true in a lot of walks of live, and I think that's a shame.
I keep hearing this, but have yet to hear any rationale beyond, "because they're artists." In most cases, the arguments are more like yours, which is to say there isn't one. They shouldn't have to be business men just because. If you have something more enlightening I would love to hear it.
On the post: Senators Ask Ingelligence Boss If He Thinks He Can Track People's Phone Locations
Re: Re:
On the post: Killing The Golden Goose: Is Hollywood To Blame For Netflix's Poorly Thought Out Massive Price Hike?
Re: Re: Re: Re:
The studios have made multiple attempts to sell content online. Hell, Sony has the entire content creation and distribution chain covered from end to end. They produce the content, own the copyrights, have a content network, and produce all the hardware required for accessing it. And yet they can't turn all that into a viable online content business.
If it was all about the content, there would be no market for Netflix streaming to begin with. Since it's the studios, not Netflix, who have failed repeatedly in the market, we don't need to debate whether content is the key. We already know it isn't.
On the post: Lobbyists Ramp Up Pressure To Get PROTECT IP Passed
On the post: Killing The Golden Goose: Is Hollywood To Blame For Netflix's Poorly Thought Out Massive Price Hike?
Re:
Basic, basic, basic economics.
On the post: Killing The Golden Goose: Is Hollywood To Blame For Netflix's Poorly Thought Out Massive Price Hike?
Hollywood executives have made no secret of the fact they believe Netflix and Redbox are harming them financially. Their ultimate goal is to stop being dependent on those 2 companies for their revenue. Besides the release window nonsense everyone is familiar with, there's also something called Ultraviolet, which all the major studios except Disney are involved in. The entire point seems to be to regain control over viewing by partnering* with everyone in between the studio and the viewer.
They have also been quite clear about their belief that the key to success is making others less competitive. They assume it's the content, rather than the service which is the draw. Obviously that's ridiculous. The studios already have all the content and have never been able to create a successful streaming or download business with it, whereas Netflix has a tiny subset of that and has managed to leverage that into piles of money. Nevertheless, killing the golden goose is a perfect description of what passes for a business strategy in the entertainment industry.
* In the same sense that a pimp partners with a 14 year old runaway on the street
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Re: Re: Looks like I called this one right
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Re: Re: Looks like I called this one right
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Looks like I called this one right
On the post: Theater Owners Still Oblivious To The Fact That They Can Compete With Home Viewing
Re: infringement
On the post: Theater Owners Still Oblivious To The Fact That They Can Compete With Home Viewing
Re: Re:
On the post: Theater Owners Still Oblivious To The Fact That They Can Compete With Home Viewing
Content does not have any intrinsic value. If the complete works of William Shakespeare had stayed in his mind or been written down but never performed, their value would be exactly nothing. Performances of his plays by actors just sitting around a table reciting lines would be worth slightly more. Take the same works and make them into productions by a company of skilled, classically trained actors and the value skyrockets.
The point is, people don't value content. They value consuming content. A movie, no matter how good, is worth nothing to you if you don't watch it. Likewise, the more satisfying the experience of consuming it is, the more it is worth.
For most movies, nothing a theater could add would enhance my enjoyment enough to justify paying their prices. For a small minority it will. Which category a movie falls into has nothing to do with whether I have other options for consuming it. It has everything to do with whether my enjoyment of the movie will be increased significantly by seeing it in a theater.
The enjoyment factor will also vary from one theater to another. For many years, there was a local theater where you could buy drinks and food and even smoke while you were watching a movie. They were essentially a discount theater, which in their later years meant they were showing movies you could already buy or rent on DVD.
A couple years ago Billy Joes closed their doors, but it had nothing to do with competition from home video. In fact it was entirely due to a state smoking ban. The value of the Billy Joes experience dropped to the point where they could no longer attract enough business.
On the post: Righthaven Loses Again; Has To Pay Legal Fees
Re: Re: Re: Re:
If a lawyer does the same thing, he gets to hide behind his responsibility in the adversarial process. Within certain boundaries, this is a necessary evil. The common understanding of laws is more fluid than medical standards or accounting practices. But at some point there needs to be a line you can't step over. Otherwise the adversarial process ceases to be an instrument of justice and instead becomes a tool for circumventing the law. We have long since passed that point.
Any solution would no doubt be just as complex as the problem. However, when a judge calls your arguments, "flagrantly false-to the point that the claim
is disingenuous, if not outright deceitful," wherever the line is, you have almost certainly crossed it. And it's not just an offense against the defendants. Practices like this are harmful to society as a whole. Beyond the financial cost to the public, which is no small thing considering the number of cases Righthaven has pursued, it taints the entire legal system with the stink of corruption.
A justice system which appears to be corrupt is virtually indistinguishable from one that actually is. People who do not trust the the legal system to give them justice are unlikely to use that system to pursue it. Likewise, those who perceive that it can be an instrument of injustice will only be emboldened to use it for exactly that purpose.
On the post: Righthaven Loses Again; Has To Pay Legal Fees
Re: Re:
On the post: Righthaven Loses Again; Has To Pay Legal Fees
The entire purpose of Righthaven has been to act as a buffer for these sorts of liabilities. Even though this is clearly fraudulent, since they are essentially acting as a contractor on behalf of the real copyright holders, that fraud is a separate issue. If Righthaven goes out of business it would seem to require lawsuits against the owners of the copyrights involved and Righthaven's owners to prevent those debts from being wiped out with the company.
On the post: Smear Campaign Ramps Up Against Those Who Believe Free Speech Is More Important Than Hollywood's Obsolete Business Model
You would be hard pressed to find a more accurate indicator of an argument without merit than the words "common sense." The application of common sense requires that the issue is simple and the facts well known and understood. Common sense arguments on complex issues are always based on either substituting emotion for fact or cherry picking the facts to match your point. And while cherries make a fine pie, they are poor rhetorical tools.
Cherry picking can be used to "prove" any side in any debate using common sense. For example, since reliance on copyright has made many musicians rich, common sense tells us copyright is important for artists. On the other, better than 99% of musicians don't write or record, so common sense also tells us copyright holds very little importance to artists. In reality, neither is a valid argument because both lack the breadth of information required to understand such a complex issue.
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