The ownership of the rights is completely unaffected by the unconsented publication. There is no need to retrieve anything because nothing ever left. Sorry I haven't responded to your other points, but my time is limited and it seems pretty clear that you haven't studied this much.
Honest curiousity, did the right of first publication exist at the time that that legislation was penned?
The right of first publication existed long before the Pennsylvania statute was enacted. For example, the highest appellate court in New York declared it to be well-settled in 1872.
The rights of authors in respect to their unpublished works, have been so frequently and elaborately considered and carefully adjudicated by the courts of this country and of England, and are now so well understood and established that there is but little to do in passing upon the merits presented by the record before us, save to apply the rules clearly deducible from adjudged cases of conceded authority. The author of a literary work or composition has, by law, a right to the first publication of it. He has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. This exclusive right is confined to the first publication. When once published it is dedicated to the public, and the author has not, at common-law, any exclusive right to multiply copies of it or to control the subsequent issues of copies by others. The right of an author or proprietor of a literary work to multiply copies of it to the exclusion of others is the creature of statute. This is the right secured by the “copyright” laws of the different governments.
Palmer v. De Witt, 47 N.Y. 532, 536 (1872).
I think he's describing the scenario where someone publishes someone else's work before they have the chance to, and thereby obtain the federal copyright protections that should have been afforded to the original creator that it is considered theft. Specifically the theft of the federal copyright protections themselves.
Someone who published a previously-unpublished work without the consent of the owner would not get the copyright. Under the 1909 Act, only the author/proprietor/executor/administrator/assign "shall have copyright." See Sections 8-9: http://copyright.gov/history/1909act.pdf
I cite to authority because what it means to be IP or P is not something we just make up for ourselves.
What subtleties am I too stupid to understand? I'd love to hear about them, in detail. It should be easy, given your superior grasp of these subtleties.
Yes, but you see, because the action was not infringement under the 1909 Act, the theft was precisely that, theft of the associated rights by publishing material you did not create. The first to publish became the copyright holder under the old system.
It wasn't infringement because Congress had chosen to begin federal protection at publication. Are you arguing that when it's the right of first publication, it's theft, but when it's some other right, it's not? The right of first publication is as intangible as the other intangible rights. Why could its violation be theft, but violation of the other rights could not?
I think your argument about it not being infringement when it was enacted makes little sense. The same actions could be either infringement or theft, depending on whether the work was published.
I cited 18 USC 1832, which is entitled "Theft of trade secrets." Misappropriation of trade secrets is a tort, not a crime. I'm talking about the crime of theft of trade secrets. The point I made is that it's intangible property that can be stolen. There is such thing as theft of trade secrets, even though they are intangible. You haven't refuted that. The same applies to the aggravated identity theft statute I cited.
I think the point you're missing is that these three statutes are evidence that the term "theft" is in fact applied to intangibles. There are many other examples. Intangibles can be the subject of theft because, when it comes to intangible property, "theft" has a broad meaning. It means doing something inconsistent with the owner's intangible rights, and this applies whether the thing stolen is tangible or intangible.
There is a deprivation of rights under the Pennsylvania statute for unpublished works just as there is under the Copyright Act for published works. Whether it's a crime, such as theft, or a tort, such as infringement, is simply a matter of degree. The underlying rationale is the same. The wrong is the deprivation of the intangible rights. and deprivation in this context means doing something inconsistent with those rights.
Sigh. A long time ago when I suspected you were just trolling, I should have paid more attention to that suspicion. Your intentionally cyclical arguments are transparent and boring. Have a nice night.
I thought we were finally getting somewhere. Can you just tell me the punchline? What is the point you're trying to make with all of this? Cut past all of the insults and dodging and just make your point.
I don't have any specific citation to offer you discussing such basic stuff. I'm not proposing some bizarre economic theory -- I'm using the basic definitions of these terms that are used literally everywhere. I'm right trying to find a single economic article or discussion about property that doesn't include the definition "final purchase of a good or service" and I can't find one.
But like I said, I'm not interested in playing your childish game anyway. I've re-posed the question to you in clear and basic terms, free of any words with ambiguous definitions. It's self-contained. You should be capable of understanding it without needing citations or additional sources. Responding to it? That I'm not so sure.
OK, so I think I've got the gist. You are upset that the phrase "intellectual property," as it is used in property law, i.e., the rights a person has in a given thing, does not match the concept of property as you are familiar with in economics. Is that right? The phrase "intellectual property" makes perfect sense in property law. I've explained why many times. If the phrase makes sense in property law, where it is being used, why does it have to conform to some other understanding that is not property law? It's not like people don't understand that many people can use the resource at once. That's fundamental to IP. Everyone knows that. How does calling it "intellectual property" in the property law sense upset the thing you're focusing on?
Let's try something different. Let's toss out all this terminology, all the semantics, and see if you can actually honestly address an idea without needing to go dig through your law dictionaries:
Neither "a recording of a song" nor "a range of radio spectrum" can be touched. And yet there is a clear distinction between the two: no matter how many people make use of a recording of a song, it does not become less useful or less available to other people; but when one party makes use of a range of radio spectrum, it ceases to be useful to anyone else (and, were everyone to attempt to use it at once, would cease to be useful at all).
Do you deny that this distinction exists and is relevant?
I think I see the problem. I'm talking about intangibles in the context of property law. Intangible property cannot be possessed. It cannot be consumed. It is nonrivalrous. It is purely a product of the mind. You, however, simply are not talking about the phrase "intellectual property" while referring to the law of property. You don't care if it's purely a product of the mind. You don't care about property law. That's fine, but the phrase comes from property law. IP is a legal concept.
That said, can you explain how the thing you're talking about is relevant? Of course there is the difference between a recording of a song and the radio spectrum, for the reason you suggested. So what? What does your economic reasoning lead you to conclude?
Do you actually have no brain of your own, and are unable to process information that doesn't have a lengthy citation attached? Or are you just so unwilling to admit that you can't refute any of these statements that you are trying to turn this into a game of duelling-appeals-to-authority instead?
You spoke of "clear economic principles" and "some economists," so you have appealed to authority. When your bluff is called, and your authority questioned, you've got nothing. You can't produce any authority.
Some economists define consumption as the final purchase of a good or service. Others define it as all economic activity outside of production. Third-graders and you define it as eating an apple.
It has not gone unnoticed that you continue claim to have sources, yet you have not actually produced any. Who is an economist that defines "consumption as the final purchase of a good"? Does that economist say that intangibles can be consumed? What do other economists say? How many say that intangibles cannot be consumed? Which is the majority view? How do you know this? So many questions. I'm sure you have a fancy Ivy League degree, but it's strange how you just make conclusory claims.
Where does what say? What god are you appealing to? This is not complicated. An intangible is anything which is not physical in nature and cannot be touched. A rivalrous good is anything where consumption by one consumer precludes simultaneous consumption by other consumers. An excludable good is one where it's possible to prevent non-paying consumers from consuming it.
Radio spectrum is intangible, rivalrous and non-excludable by nature, made excludable by law. Domain names are intangible, rivalrous and excludable by a combination of their technological and administrative nature. Your muddled, out-of-context citations fall flat in the face of simple logic.
Sigh. How does one consume a radio spectrum? How does one consume a domain name? They are intangible. They cannot be consumed. Can you really cite nothing?
What kind of "evidence" would you be looking for? Rivalrousness and tangibility are self-evidently not the same thing.
I'm not saying they are the same concept. I'm saying that all intangibles are nonrivalrous. You've declared this to be wrong, claiming to rely on "clear economic principles." If you've studied these principles, and if they are so clear, then let's see there. Where does it say that intangibles can be rivalrous? if such evidence exists, then perhaps we can reconcile the disparate sources. Maybe there's more than one definition of rivalrousness. I don't know. But let's see these "clear economic principles" you are relying on.
Like I said, it's painfully obvious to everyone but you. Your citations are silly. Nobody cares about the stuff you show off with in law class. We are talking about clear economic principles, and I don't think anyone is particularly interested in the occasional legal text that makes the same basic conflation you are making.
Notice that you've convinced absolutely nobody that your obsession with tangibility is in any way relevant. You're going to have to do a way better job than you've been doing -- or, smarter still since that goal is impossible, give it up and talk about what we're actually talking about.
Until then, you're just wailing about nonsense.
If these are "clear economic principles," then evidence thereto should be a simple matter for you to produce.
I'm happy to chat with you, but if you're going to continually insult me, I don't see the point.
A domain name is intangible, rivalrous property.
I disagree. As an intangible, a domain name is nonexcludable and nonrivalrous. See, e.g., Michael A. Carrier, Cabining Intellectual Property Through A Property Paradigm, 54 Duke L.J. 1, 32 (2004) ("As a public good, information is nonexclusive and nonrivalrous."); J. Janewa OseiTutu, A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law, 15 Marq. Intell. Prop. L. Rev. 147, 174 (2011) ("As intangible goods, intellectual creations are non-rivalrous and non-excludable."). Domain names, like copyrights and patents, give the owner the right to exclude. But that doesn't make them rivalrous.
No, just no, it refers to actually depriving someone of their stuff as an act of theft. Infringement is another matter entirely. Words means things.
Here's the statute for those following along: "A person is guilty of theft if he publicly presents for profit, without the consent of the author thereof, any unpublished dramatic play or musical composition." Source: http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.039.031.000..HTM
I'm not following you. It defines as "theft" the unconsented, public presentation of an unpublished work. This statue was passed before the 1976 Act. It limits the subject matter to unpublished works because published works were, at the time, protected solely by the 1909 Act. Unpublished works, by contrast, were not protected by the 1909 Act, and states could, as Pennsylvania did here, protect such works. Pennsylvania did in fact protect these works with this theft statue.
If the works had been published, and, assuming formalities, protected by the 1909 Act, then unconsented, public presentations would have been infringements under the 1909 Act. The same actions by the defendant would have amounted to infringement. But if they were unpublished, and thus unprotected by the 1909 Act, it wasn't infringement, but rather it was theft. The same acts by the defendant would amount to either infringement or theft, depending on whether the work was published or not. It's not the defendant's acts that change. It's the statutory definition.
More like selective blindness, he did not read a comment debunking his argument, how convenient.
I'm here asking for a link and already discussing his point on the merits. Are you seriously implying that I'm dodging the argument? Give me a break. Let's talk about the merits. I don't like talking about talking about it.
Wait. Are you saying that a single state law passed long ago that stipulated an isolated definition that nobody else has ever agreed with proves a fact? Can I cite the Indiana state law that declared that Pi = 3 as proof all the mathematicians in the world are wrong?
Well, nobody here has been able to even admit that, yes, Pennsylvania explicitly defines a certain type of infringement to be theft. It is a descriptive fact, yet no one can even say it. Baby steps. We can talk about what it means in the bigger picture, but it would be nice to acknowledge that I'm right about this particular statute.
Let's look at your claim "that nobody else has ever agreed with" it. How did you determine this? And how do you reconcile that position with the undeniable fact that there are many theft statutes involving intangibles?
On the post: Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All
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On the post: Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All
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The right of first publication existed long before the Pennsylvania statute was enacted. For example, the highest appellate court in New York declared it to be well-settled in 1872.Palmer v. De Witt, 47 N.Y. 532, 536 (1872).
I think he's describing the scenario where someone publishes someone else's work before they have the chance to, and thereby obtain the federal copyright protections that should have been afforded to the original creator that it is considered theft. Specifically the theft of the federal copyright protections themselves.
Someone who published a previously-unpublished work without the consent of the owner would not get the copyright. Under the 1909 Act, only the author/proprietor/executor/administrator/assign "shall have copyright." See Sections 8-9: http://copyright.gov/history/1909act.pdf
On the post: How To Use 'Intellectual Property' Properly
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https://books.google.com/ngrams/graph?content=literary+property&year_start=1750&year_end =2000&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Cliterary%20property%3B%2Cc0
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What subtleties am I too stupid to understand? I'd love to hear about them, in detail. It should be easy, given your superior grasp of these subtleties.
On the post: Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All
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It wasn't infringement because Congress had chosen to begin federal protection at publication. Are you arguing that when it's the right of first publication, it's theft, but when it's some other right, it's not? The right of first publication is as intangible as the other intangible rights. Why could its violation be theft, but violation of the other rights could not?
On the post: Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All
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I think your argument about it not being infringement when it was enacted makes little sense. The same actions could be either infringement or theft, depending on whether the work was published.
I cited 18 USC 1832, which is entitled "Theft of trade secrets." Misappropriation of trade secrets is a tort, not a crime. I'm talking about the crime of theft of trade secrets. The point I made is that it's intangible property that can be stolen. There is such thing as theft of trade secrets, even though they are intangible. You haven't refuted that. The same applies to the aggravated identity theft statute I cited.
I think the point you're missing is that these three statutes are evidence that the term "theft" is in fact applied to intangibles. There are many other examples. Intangibles can be the subject of theft because, when it comes to intangible property, "theft" has a broad meaning. It means doing something inconsistent with the owner's intangible rights, and this applies whether the thing stolen is tangible or intangible.
There is a deprivation of rights under the Pennsylvania statute for unpublished works just as there is under the Copyright Act for published works. Whether it's a crime, such as theft, or a tort, such as infringement, is simply a matter of degree. The underlying rationale is the same. The wrong is the deprivation of the intangible rights. and deprivation in this context means doing something inconsistent with those rights.
On the post: How To Use 'Intellectual Property' Properly
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I thought we were finally getting somewhere. Can you just tell me the punchline? What is the point you're trying to make with all of this? Cut past all of the insults and dodging and just make your point.
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But like I said, I'm not interested in playing your childish game anyway. I've re-posed the question to you in clear and basic terms, free of any words with ambiguous definitions. It's self-contained. You should be capable of understanding it without needing citations or additional sources. Responding to it? That I'm not so sure.
OK, so I think I've got the gist. You are upset that the phrase "intellectual property," as it is used in property law, i.e., the rights a person has in a given thing, does not match the concept of property as you are familiar with in economics. Is that right? The phrase "intellectual property" makes perfect sense in property law. I've explained why many times. If the phrase makes sense in property law, where it is being used, why does it have to conform to some other understanding that is not property law? It's not like people don't understand that many people can use the resource at once. That's fundamental to IP. Everyone knows that. How does calling it "intellectual property" in the property law sense upset the thing you're focusing on?
On the post: How To Use 'Intellectual Property' Properly
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Neither "a recording of a song" nor "a range of radio spectrum" can be touched. And yet there is a clear distinction between the two: no matter how many people make use of a recording of a song, it does not become less useful or less available to other people; but when one party makes use of a range of radio spectrum, it ceases to be useful to anyone else (and, were everyone to attempt to use it at once, would cease to be useful at all).
Do you deny that this distinction exists and is relevant?
I think I see the problem. I'm talking about intangibles in the context of property law. Intangible property cannot be possessed. It cannot be consumed. It is nonrivalrous. It is purely a product of the mind. You, however, simply are not talking about the phrase "intellectual property" while referring to the law of property. You don't care if it's purely a product of the mind. You don't care about property law. That's fine, but the phrase comes from property law. IP is a legal concept.
That said, can you explain how the thing you're talking about is relevant? Of course there is the difference between a recording of a song and the radio spectrum, for the reason you suggested. So what? What does your economic reasoning lead you to conclude?
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You spoke of "clear economic principles" and "some economists," so you have appealed to authority. When your bluff is called, and your authority questioned, you've got nothing. You can't produce any authority.
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It has not gone unnoticed that you continue claim to have sources, yet you have not actually produced any. Who is an economist that defines "consumption as the final purchase of a good"? Does that economist say that intangibles can be consumed? What do other economists say? How many say that intangibles cannot be consumed? Which is the majority view? How do you know this? So many questions. I'm sure you have a fancy Ivy League degree, but it's strange how you just make conclusory claims.
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Radio spectrum is intangible, rivalrous and non-excludable by nature, made excludable by law. Domain names are intangible, rivalrous and excludable by a combination of their technological and administrative nature. Your muddled, out-of-context citations fall flat in the face of simple logic.
Sigh. How does one consume a radio spectrum? How does one consume a domain name? They are intangible. They cannot be consumed. Can you really cite nothing?
On the post: How To Use 'Intellectual Property' Properly
I'm not saying they are the same concept. I'm saying that all intangibles are nonrivalrous. You've declared this to be wrong, claiming to rely on "clear economic principles." If you've studied these principles, and if they are so clear, then let's see there. Where does it say that intangibles can be rivalrous? if such evidence exists, then perhaps we can reconcile the disparate sources. Maybe there's more than one definition of rivalrousness. I don't know. But let's see these "clear economic principles" you are relying on.
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Notice that you've convinced absolutely nobody that your obsession with tangibility is in any way relevant. You're going to have to do a way better job than you've been doing -- or, smarter still since that goal is impossible, give it up and talk about what we're actually talking about.
Until then, you're just wailing about nonsense.
If these are "clear economic principles," then evidence thereto should be a simple matter for you to produce.
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I'm happy to chat with you, but if you're going to continually insult me, I don't see the point.
A domain name is intangible, rivalrous property.
I disagree. As an intangible, a domain name is nonexcludable and nonrivalrous. See, e.g., Michael A. Carrier, Cabining Intellectual Property Through A Property Paradigm, 54 Duke L.J. 1, 32 (2004) ("As a public good, information is nonexclusive and nonrivalrous."); J. Janewa OseiTutu, A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law, 15 Marq. Intell. Prop. L. Rev. 147, 174 (2011) ("As intangible goods, intellectual creations are non-rivalrous and non-excludable."). Domain names, like copyrights and patents, give the owner the right to exclude. But that doesn't make them rivalrous.
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Here's the statute for those following along: "A person is guilty of theft if he publicly presents for profit, without the consent of the author thereof, any unpublished dramatic play or musical composition." Source: http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.039.031.000..HTM
I'm not following you. It defines as "theft" the unconsented, public presentation of an unpublished work. This statue was passed before the 1976 Act. It limits the subject matter to unpublished works because published works were, at the time, protected solely by the 1909 Act. Unpublished works, by contrast, were not protected by the 1909 Act, and states could, as Pennsylvania did here, protect such works. Pennsylvania did in fact protect these works with this theft statue.
If the works had been published, and, assuming formalities, protected by the 1909 Act, then unconsented, public presentations would have been infringements under the 1909 Act. The same actions by the defendant would have amounted to infringement. But if they were unpublished, and thus unprotected by the 1909 Act, it wasn't infringement, but rather it was theft. The same acts by the defendant would amount to either infringement or theft, depending on whether the work was published or not. It's not the defendant's acts that change. It's the statutory definition.
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I'm here asking for a link and already discussing his point on the merits. Are you seriously implying that I'm dodging the argument? Give me a break. Let's talk about the merits. I don't like talking about talking about it.
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On the post: Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All
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Well, nobody here has been able to even admit that, yes, Pennsylvania explicitly defines a certain type of infringement to be theft. It is a descriptive fact, yet no one can even say it. Baby steps. We can talk about what it means in the bigger picture, but it would be nice to acknowledge that I'm right about this particular statute.
Let's look at your claim "that nobody else has ever agreed with" it. How did you determine this? And how do you reconcile that position with the undeniable fact that there are many theft statutes involving intangibles?
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