Lydia Pallas Loren is yet another misguided soul who has swallowed the inference that the monopoly legislated in 1790 is the exclusive right Congress was empowered to secure by the Constitution drafted in 1787.
The Framers had qualms about granting copyright certainly, but this grant was wholly independent of the progress clause.
The Statute of Anne also had nothing to do with encouraging learning except as a pretext.
The endlessly re-iterated argument that copyright was enacted to promote progress or benefit the public misses the fundamental issue. It is not the motive behind copyright people should be concerned about (the regulation and enrichment of the press), but the ethics of granting the privilege at all - and consequently the ethics of leaving the privilege on the statute books.
Suing kids for sharing music is unethical whether it's less than 14 years after publication or 140.
Lydia Pallas Loren, you're just consolidating the canon, and doing humanity a disservice.
We commenters have been sweating like dogs providing complementary content to your articles for years and our pay packets are still empty. We're going to give up commenting soon unless we get some significant dosh coming our way - pronto!
We're not going to comment for free like those poor Wikipedia saps that left empty handed.
So, $10 per comment? That's reasonable eh?
And what about our copyright?! We have a legal right to compensation!
I remain interested in counter-argument - yours and anyone else's.
I'm looking for someone to defeat my argument with counter-argument, not simply to gainsay it with "That's just your interpretation". If that is the standard to be set, then there can be no argument - it's all simply a matter of anyone's interpretation. Unfortunately, it would be very dangerous to allow the government to 'interpret' the Constitution as if it were an ambiguous document (especially where those ambiguities only arise due to changes in language, e.g. right qua privilege).
Saying you think I'm employing a fallacy doesn't actually make it so.
Because you have located an exceptional case in which the Constitution empowers Congress to grant privileges for use against the enemy in time of war I'm respectfully qualifying my general statement that the Constitution cannot empower the granting of privileges.
nasch, my beliefs are irrelevant (and unsurprisingly you are unable to accurately state them).
What matters is not belief, but whether the Constitution empowered Congress to grant monopolies in literary works.
I've provided my argument that it didn't, and yet those insisting the contrary adopt argumentum ad populum as counter.
Are you now attempting to invalidate my argument unless I provide a 'higher authority' to re-iterate it?
We need to weigh the argument, not belief, nor who can cite the most concurring authorities.
Are you really going to allow your devout belief (that copyright is Constitutional) to dismiss any arguments to the contrary, on the basis those arguments lack authoritative corroboration?
Frankly, I don't see how any law (except through abuse) can enable anyone to prevent spectators using the photographs they've taken as they see fit - let alone actually prevent them taking them in the first place.
A grounds may eject anyone (if not unfairly discriminatory), but that doesn't grant them power over what anyone may do whilst present (least of all power to seize their cameras or delete photos).
No doubt the newspapers will scour Flickr and use those photos (having contrived that non-'journalist' spectators do the necessary).
I guess there's some recent amendment to copyright that stipulates that the owner of a venue of a sporting event is granted an exclusive right to publish/broadcast coverage of that event - no doubt including the power to seize spectators' recording equipment and any unauthorised footage.
When such unethical 'rights' are granted like candy one cannot be surprised at how increasingly corrupt things have become.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
An amendment is still Constitution, it can't recognise or specify law (though it is at least now temporally possible). However, the amendment could specify power necessary to make intervening law (utilising the wisdom of hindsight).
Thus one could specify an amendment subsequent to copyright's legislation that empowered Congress to grant monopolies in literary works.
The amusing thing is that such an amendment was proposed, but Madison declined it - because it would obviously have not only made it clear that the original Constitution did not empower Congress to grant them, but it would have made copyright far more vulnerable to a later amendment of repeal. And copyright was far too valuable to be exposed to such risks. Best just to hope that no-one noticed the emperor was naked, that if enough people exclaimed that "Of course Congress is empowered to grant monopolies!" that no-one would double-check that it actually was.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
It's good that you acknowledge that a constitution can only recognise natural rights.
A constitution cannot create privileges because it is concerned with conveying limited power from the people to a government. Such a conveyance of power is not also a legislature constraining the people. The government is empowered to act as that constraint, to protect the people (their rights) and make such laws as necessary.
A constitution cannot empower the granting of privileges without creating instruments of injustice, hence why if it did they could be used only during exceptional circumstances, such as during wartime and against the enemy.
The US Constitution did not empower Congress to grant monopolies. I have already demonstrated that the Framers were well aware of how to empower the granting of monopolies as this was later proposed as an amendment - which wouldn't have been proposed if the power to grant monopolies had already been specified.
The Constitution only empowered Congress to secure the EXISTING natural, exclusive right that individuals have to their intellectual works. This is why it wasn't defined - it is the pre-existing, self-evident natural right to be secured. If Congress was to be empowered to grant a privilege it would have been defined. Moreover the clause would have empowered Congress to GRANT the carefully defined privilege.
How can you still continue to infer that the progress clause empowers Congress to grant monopolies? Because 'everyone believes it'? That's not a very good argument. That's what they said about the Sun orbiting the Earth.
The Constitution does empower Congress to grant certain privileges as instruments against the enemy during wartime.
That is a little unwieldy to add as an exception to my general point, which as yet, still stands.
It should be unsurprising that if privileges are granted as military sanctions during wartime, that they are properly regarded as instruments of injustice in peacetime.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
Anonymous Coward, here are a couple of tricky questions for you:
1) How can the Constitution empower the securing of legally granted rights created by legislation that precedes it? (What constitution constrained THAT law?)
2) How can the Constitution empower the securing of legally granted rights that it isn't yet aware of? (ones it hasn't even specified)
It simply stands to reason that a Constitution can only recognise natural rights.
Close, but it is in the context of war, and appropriation of the enemy's property is a military sanction.
See Paine for context, e.g. "nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war".
The Constitution limits the power Congress has, so you need to find where the Constitution specifically empowers Congress to grant privileges.
'make all Laws which shall be necessary' does not mean that Congress can assume power to enact any law (or grant of privilege) simply because it appears conducive or expedient in executing powers permitted by the Constitution. It must actually be necessary.
I've already demonstrated that a monopoly is not necessary to secure an individual's exclusive right.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
Yes the granting of monopolies was familiar (as great nuisances), however, the nature of information and the cases in which intellectual work could be recognised as property were not at all familiar. Even in England there was debate as to whether copyright was a natural right.
Mankind has been familiar with material objects as property since the stone age. In this information age, we are still getting to grips with intellectual work.
The Internet is helping to demonstrate that a reproduction monopoly is not only unnatural, it's also ineffective and unethical - interfering with the individual's liberty to do what they will with the intellectual works in their mental and physical possession.
Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
It cannot refer to ethereal or abstract 'writings' or patterns as they are not subject to any individual's natural right (much as people would like to believe otherwise). You cannot claim ownership of Pi for example.
The treatment of material objects as an individual's property is highly familiar. However, with the advent of reproduction technology (printing and mass production) the Framers rightly recognised the individual's natural right to the intellectual as well as the material aspect of their possessions.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: (Calling a horse a horse, and extortion extortion)
The legal distinction that some might make is that one is a threat of violence by an individual, and the other is a threat of violence by the state.
In other words, one is illegal extortion and the other is legal extortion.
So, we're back where we started: people engaging in natural and ethical acts of cultural intercourse (singing a song they've learnt from the radio) being threatened with severe penalty (even incarceration) unless they pay protection money.
You can call it the charitable collection of the poor, starving artist's dues. Others can call it extortion (or private tax collection).
I often link to previous discussion. However, I too like to see discussion develop and that means providing the necessary context and risking repetition - especially to people unfamiliar with the subject and points of contention.
If you have made up your mind, no worries. You as anyone are at liberty to ignore my argument.
These comments are a two way street - you get back in proportion to what you put in.
If you want to start discussion in a direction that interests you, go for it.
Re: Re: Re: Re: Re: Re: This is legalized extortion
That clause only provides Congress with the power to secure that NATURAL right of the individual (to exclude others from their physical possessions, but being stated nowhere else, this clause expressly includes any intellectual works/writings/designs/discoveries as may be fixed in a physical medium).
People can naturally prevent burglars obtaining access to their intellectual works, but they can't naturally grant themselves a reproduction monopoly (to deny others the liberty to copy or make use of their purchases, or use designs/discoveries of their own, no matter how similar to those of others).
Congress is empowered only to secure the individual's exclusive right, not to grant them any monopoly.
Moreover, the Constitution cannot implicitly sanction the derogation of liberty since its raison d'etre is about its preservation.
There was much discussion and hand-wringing after the drafting and ratification of the Constitution concerning the granting of monopolies, and ultimately these monopolies were granted, but they weren't sanctioned by the Constitution. That they were granted doesn't mean they were sanctioned.
It is only today that people make out in a colossal leap of inference that the progress clause empowered Congress to grant monopolies. And that's largely to do with copyright lawyers' nasty habit of describing copyright as an exclusive right - in order that people infer that the Constitution referred to the privilege (that hadn't even been granted) rather than the natural right (that is self-evident).
Privileges, not yet existing, may be subsequently granted. Natural rights, already existing, are secured.
Congress did not enact law to secure an individual's exclusive right or today you'd be able to ring the police and complain that your writing had been copied by a burglar and reproduced/performed without your permission. They'd then take remedial steps.
Instead, Congress enacted law that granted the privilege of a reproduction monopoly attaching to original literary works (for the ulterior benefit of state & press). However, as a transferable privilege it must be prosecuted at the expense of the current holder. Moreover, being a privilege, it annuls the right to copy in the majority in order to leave the right by exclusion in the hands of a few (copyright holder, assigns, licensees). Copyright thus derogates the right to copy from the individual's right to liberty.
You won't have heard this opinion before, because until now anyone who's ever had it has never been permitted to air it - and hardly anyone has any interest in sharing it. You do not bite the hand that feeds you (however much of a case you have against it). As the privileged press loses control as gatekeeper, so the views it does not welcome see the light of day. Moreover, as copyright is betrayed as an ineffective anachronism and instrument of injustice the more people are willing to entertain arguments that challenge its allegedly ethical foundations.
On the post: The Cycle Of Copyright: Originally A Tool For Censorship, Attempted As A Tool For Incentives... Back To A Tool For Censorship
Another confusion of copyright with progress
The Framers had qualms about granting copyright certainly, but this grant was wholly independent of the progress clause.
The Statute of Anne also had nothing to do with encouraging learning except as a pretext.
The endlessly re-iterated argument that copyright was enacted to promote progress or benefit the public misses the fundamental issue. It is not the motive behind copyright people should be concerned about (the regulation and enrichment of the press), but the ethics of granting the privilege at all - and consequently the ethics of leaving the privilege on the statute books.
Suing kids for sharing music is unethical whether it's less than 14 years after publication or 140.
Lydia Pallas Loren, you're just consolidating the canon, and doing humanity a disservice.
On the post: Newsweek Insists People Don't Do Stuff For Free... And Then Shows Why People Do Stuff For Free
Where's our money!
We commenters have been sweating like dogs providing complementary content to your articles for years and our pay packets are still empty. We're going to give up commenting soon unless we get some significant dosh coming our way - pronto!
We're not going to comment for free like those poor Wikipedia saps that left empty handed.
So, $10 per comment? That's reasonable eh?
And what about our copyright?! We have a legal right to compensation!
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re:
I remain interested in counter-argument - yours and anyone else's.
I'm looking for someone to defeat my argument with counter-argument, not simply to gainsay it with "That's just your interpretation". If that is the standard to be set, then there can be no argument - it's all simply a matter of anyone's interpretation. Unfortunately, it would be very dangerous to allow the government to 'interpret' the Constitution as if it were an ambiguous document (especially where those ambiguities only arise due to changes in language, e.g. right qua privilege).
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re:
Because you have located an exceptional case in which the Constitution empowers Congress to grant privileges for use against the enemy in time of war I'm respectfully qualifying my general statement that the Constitution cannot empower the granting of privileges.
See here:
http://www.techdirt.com/article.php?sid=20100806%2F15462810537&threaded=true#c2296
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re:
What matters is not belief, but whether the Constitution empowered Congress to grant monopolies in literary works.
I've provided my argument that it didn't, and yet those insisting the contrary adopt argumentum ad populum as counter.
Are you now attempting to invalidate my argument unless I provide a 'higher authority' to re-iterate it?
We need to weigh the argument, not belief, nor who can cite the most concurring authorities.
Are you really going to allow your devout belief (that copyright is Constitutional) to dismiss any arguments to the contrary, on the basis those arguments lack authoritative corroboration?
On the post: Newspaper Gets Around Photography Ban At Football Event With Cartoon Illustrations
Re: Re: Are Cartoons Copyleft?
A grounds may eject anyone (if not unfairly discriminatory), but that doesn't grant them power over what anyone may do whilst present (least of all power to seize their cameras or delete photos).
No doubt the newspapers will scour Flickr and use those photos (having contrived that non-'journalist' spectators do the necessary).
I guess there's some recent amendment to copyright that stipulates that the owner of a venue of a sporting event is granted an exclusive right to publish/broadcast coverage of that event - no doubt including the power to seize spectators' recording equipment and any unauthorised footage.
When such unethical 'rights' are granted like candy one cannot be surprised at how increasingly corrupt things have become.
On the post: Newspaper Gets Around Photography Ban At Football Event With Cartoon Illustrations
Are Cartoons Copyleft?
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
Thus one could specify an amendment subsequent to copyright's legislation that empowered Congress to grant monopolies in literary works.
The amusing thing is that such an amendment was proposed, but Madison declined it - because it would obviously have not only made it clear that the original Constitution did not empower Congress to grant them, but it would have made copyright far more vulnerable to a later amendment of repeal. And copyright was far too valuable to be exposed to such risks. Best just to hope that no-one noticed the emperor was naked, that if enough people exclaimed that "Of course Congress is empowered to grant monopolies!" that no-one would double-check that it actually was.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
A constitution cannot create privileges because it is concerned with conveying limited power from the people to a government. Such a conveyance of power is not also a legislature constraining the people. The government is empowered to act as that constraint, to protect the people (their rights) and make such laws as necessary.
A constitution cannot empower the granting of privileges without creating instruments of injustice, hence why if it did they could be used only during exceptional circumstances, such as during wartime and against the enemy.
The US Constitution did not empower Congress to grant monopolies. I have already demonstrated that the Framers were well aware of how to empower the granting of monopolies as this was later proposed as an amendment - which wouldn't have been proposed if the power to grant monopolies had already been specified.
The Constitution only empowered Congress to secure the EXISTING natural, exclusive right that individuals have to their intellectual works. This is why it wasn't defined - it is the pre-existing, self-evident natural right to be secured. If Congress was to be empowered to grant a privilege it would have been defined. Moreover the clause would have empowered Congress to GRANT the carefully defined privilege.
How can you still continue to infer that the progress clause empowers Congress to grant monopolies? Because 'everyone believes it'? That's not a very good argument. That's what they said about the Sun orbiting the Earth.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re:
That is a little unwieldy to add as an exception to my general point, which as yet, still stands.
It should be unsurprising that if privileges are granted as military sanctions during wartime, that they are properly regarded as instruments of injustice in peacetime.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
1) How can the Constitution empower the securing of legally granted rights created by legislation that precedes it? (What constitution constrained THAT law?)
2) How can the Constitution empower the securing of legally granted rights that it isn't yet aware of? (ones it hasn't even specified)
It simply stands to reason that a Constitution can only recognise natural rights.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: (Calling a horse a horse, and extortion extortion)
Finding a case when someone sues for damages does not mean that case is extortion.
The notion that there are damages for infringing a monopoly is as invalid as the monopoly. I've already agreed that copyright is legalised extortion.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re:
See Paine for context, e.g. "nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war".
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re:
'make all Laws which shall be necessary' does not mean that Congress can assume power to enact any law (or grant of privilege) simply because it appears conducive or expedient in executing powers permitted by the Constitution. It must actually be necessary.
I've already demonstrated that a monopoly is not necessary to secure an individual's exclusive right.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
Mankind has been familiar with material objects as property since the stone age. In this information age, we are still getting to grips with intellectual work.
The Internet is helping to demonstrate that a reproduction monopoly is not only unnatural, it's also ineffective and unethical - interfering with the individual's liberty to do what they will with the intellectual works in their mental and physical possession.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re:
Or perhaps there's a privilege granted by Congress that the Constitution has clearly empowered Congress to grant?
Please let me know.
It sounds like it should be an easy question for you to answer.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: This is legalized extortion
The treatment of material objects as an individual's property is highly familiar. However, with the advent of reproduction technology (printing and mass production) the Framers rightly recognised the individual's natural right to the intellectual as well as the material aspect of their possessions.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: (Calling a horse a horse, and extortion extortion)
In other words, one is illegal extortion and the other is legal extortion.
So, we're back where we started: people engaging in natural and ethical acts of cultural intercourse (singing a song they've learnt from the radio) being threatened with severe penalty (even incarceration) unless they pay protection money.
You can call it the charitable collection of the poor, starving artist's dues. Others can call it extortion (or private tax collection).
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: This is legalized extortion
If you have made up your mind, no worries. You as anyone are at liberty to ignore my argument.
These comments are a two way street - you get back in proportion to what you put in.
If you want to start discussion in a direction that interests you, go for it.
On the post: A Day In The Life Of Legalized Extortion: How The BMI Shakedown Works
Re: Re: Re: Re: Re: Re: This is legalized extortion
People can naturally prevent burglars obtaining access to their intellectual works, but they can't naturally grant themselves a reproduction monopoly (to deny others the liberty to copy or make use of their purchases, or use designs/discoveries of their own, no matter how similar to those of others).
Congress is empowered only to secure the individual's exclusive right, not to grant them any monopoly.
Moreover, the Constitution cannot implicitly sanction the derogation of liberty since its raison d'etre is about its preservation.
Also see http://en.wikipedia.org/wiki/Rights_of_Man
There was much discussion and hand-wringing after the drafting and ratification of the Constitution concerning the granting of monopolies, and ultimately these monopolies were granted, but they weren't sanctioned by the Constitution. That they were granted doesn't mean they were sanctioned.
It is only today that people make out in a colossal leap of inference that the progress clause empowered Congress to grant monopolies. And that's largely to do with copyright lawyers' nasty habit of describing copyright as an exclusive right - in order that people infer that the Constitution referred to the privilege (that hadn't even been granted) rather than the natural right (that is self-evident).
Privileges, not yet existing, may be subsequently granted. Natural rights, already existing, are secured.
Congress did not enact law to secure an individual's exclusive right or today you'd be able to ring the police and complain that your writing had been copied by a burglar and reproduced/performed without your permission. They'd then take remedial steps.
Instead, Congress enacted law that granted the privilege of a reproduction monopoly attaching to original literary works (for the ulterior benefit of state & press). However, as a transferable privilege it must be prosecuted at the expense of the current holder. Moreover, being a privilege, it annuls the right to copy in the majority in order to leave the right by exclusion in the hands of a few (copyright holder, assigns, licensees). Copyright thus derogates the right to copy from the individual's right to liberty.
You won't have heard this opinion before, because until now anyone who's ever had it has never been permitted to air it - and hardly anyone has any interest in sharing it. You do not bite the hand that feeds you (however much of a case you have against it). As the privileged press loses control as gatekeeper, so the views it does not welcome see the light of day. Moreover, as copyright is betrayed as an ineffective anachronism and instrument of injustice the more people are willing to entertain arguments that challenge its allegedly ethical foundations.
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