Well, the current copyright system we have now itself inhibits this behavior really. Try releasing a new work directly to the public domain these days. It's a symptom of a broken system when you have to rely on copyright laws to protect your work from copyright laws.
I disagree. It couldn't be easier. Write a book, mark it as public domain, and put it on the internet. You can seed it in tons of places, making it super easy for everyone around the world who wants a copy to have it within seconds. Copyright doesn't stop anyone from doing that. Nothing is stopping free from legitimately competing with copyright.
Not at all. If people in NZ broke the law, they should be held accountable. There's going to be an investigation. That's a good thing. When it's the very people who are charged with upholding the law that are accused of breaking it, that makes it all the more deplorable and important to punish. I hope heads roll if they did in fact break the law.
But I think the same about Dotcom. Good thing he's being held accountable as well. I very much look forward to his prosecution.
If the deterrence effect of laws was important then ignorance of the law would be regarded as a defence. It isn't.
Think about it...
That makes no sense. You can't claim ignorance as a defense because then ignorance of the law would be rewarded and everyone would have the incentive to know as little as possible about their rights and duties. To avoid that perverse situation, ignorance of the law is not encouraged.
That's got nothing to do with the idea that knowing you're going to be punished if you break the law encourages people not to break the law. Disallowing ignorance as a defense encourages people to know the law, and punishing people for breaking the law encourages people to not do so.
I don't think you can accurately compare the two since the markets work differently. Just like I don't think you can accurately compare software patents to pharmaceutical patents. Let's see free books compete with copyrighted books. That would be the test. Nobody's stopping anyone from writing a book and giving it away for free. The internet's there to provide worldwide distribution at a very low cost. Seems like all the pieces are in place for free to shine. What's holding it back?
Once again, like pretty much all of these "mishaps," this seems to suggest a rather cavalier attitude towards actually following proper procedures under the law to go after Dotcom and Megaupload. Throughout this whole process, it really does appear that law enforcement, under pressure from Hollywood, believed that Dotcom was such a criminal mastermind that they could skirt the law in all sorts of ways to try to shut him down. And each time these mishaps come to light, it just raises more and more questions about whether or not law enforcement really had any legitimate evidence or reasons to do what they did.
How do you get the FUD about them perhaps not having "any legitimate evidence" from this story? I thought you were of the opinion that Dotcom et al. were likely guilty. Funny how all your articles defend him and shine the spotlight on any little speck you can spin into a huge story that disparages the prosecution. It's almost like you're a pirate-apologist or something. Nah. Couldn't be.
My point is that if you want to show the superiority of the noncopyright model, then compete with the copyright model fairly. You're saying, "See, copyright can compete with free!" But the competition you point to is pirates competing with authors using the authors' own works. That doesn't prove anything. The issue isn't whether authors can compete with themselves. The status quo is copyright. If you want to prove your side, then prove that free can compete with copyright. I haven't seen the pirates do this yet. Let's see some actual competition before we decide the pirates have won.
An ebook is laughably trivial to pirate: the DRM is pathetic and they are so small (compared to movies and games) that you don't need a big fat connection to pirate them.
It's trivially easy to kill someone, yet the laws against murder serve as a deterrent. It's trivially easy to speed, yet laws against speeding serve as a deterrent. Just because it's trivially easy to infringe eBooks, that doesn't prove that copyright laws have nothing to do with the viability and success of the eBook market. It could be that because of the marketable right made possible by copyright, an author was able to get an advance that enabled him to have the time to write the book in the first place (my brother just got an advance and is writing a book that he otherwise would not have been able to write, so I know this happens).
And while many Techdirt readers are no doubt big time pirates who would have no trouble downloading infringing eBooks, that doesn't mean that there's not others who don't know how to do it and who have no intention of finding out (because, unlike many of Mike's faithful, they realize that piracy is wrong). So it's not like there's perfect competition across the board, and it's hardly fair to call someone giving your product away for free and against your wishes as a "competitor." They compete, but not fairly. Why don't you pirates compete on equal terms? Put up your books that don't rely on copyright against those that do. That would show something. But pretending like pirates are legitimate competition is sad.
I tell you what. Before you guys signal the end of copyright (and I know how important it is for you all to do this), why don't you wait until the point arises where works that were never copyrighted are freely exchanged while the authors who write them are adequately compensated? As it is, you're pointing to a system that is obviously based on copyright and trying to pretend like copyright isn't necessary. Prove it. If you create this alternative market that is so much better, the authors will come running in droves. But for now, just admit that you're on the fringe and you haven't proved yourself yet. Just admit that your view of competition involves competing against an author with his own work. Where's the legitimate competition? Where's the actual proof? You don't have it yet, and I suspect you never will.
That's total bullshit. If he thinks going against the wishes of creators is "not OK," then he thinks that going against the wishes of creators is immoral. This means that, in general, piracy is immoral - because if it was not against the wishes of the artist, then it would not be piracy in the first place.
I think that's what he wants people to deduce, but I think he's directly avoiding answering because he doesn't think it's immoral at all.
Since copyright is intended as an economic right (as detailed and cited in Patry's post), the arguments over copyright need to focus on the economic issues. And a properly calibrated system is one where there's the greatest overall economic good and everyone has the greatest opportunity to benefit. At that point, where's the morality question at all? The answer is that there isn't one. Claiming morality in an economics discussion on copyright is a crutch used by those who can't support their position. There is no moral issue at all.
Of course, he never explains why it's moral to violate someone's economic right, and I suspect nothing scares him more than having that discussion. As far as I can tell, Mike is trying to spin this into being ONLY about economics. It's easier to pimp the pro-piracy agenda when you take the morality issue out of the picture. It took me TWO YEARS to even get him to identify why he thinks "piracy is not OK." I wonder how many years it's going to take to get him to address directly the morality issue. He's got you fooled if you think that he thinks it's immoral. "There is no moral issue at all." That says it all.
And, of course, he has always said that piracy is unlawful. That, right there, is enough to know that he does not endorse or excuse piracy, and does not believe it is ethical.
Admitting the fact that is illegal does not mean that he thinks it to be immoral. I can admit that laws against discrimination on the basis of race exist, yet I could be the biggest racist on the planet. (I'm not; I hate racism. It's just an example.)
It's too bad he won't discuss these issues. Wonder what he's so scared of?
I care because I don't like manipulative bullies who think getting their way is more important than getting to the truth. The fact that Mike refuses to ever discuss his personal beliefs directly tells me pretty much all I need to know about his mettle. When questioned, he inevitable either ignores or lashes out. He'll never just have a simple conversation about the very topics he so obviously cares about very deeply. It bothers me because that tells me that he's being dishonest. He cares more about spreading anti-IP FUD and rhetoric than he does in discussing anything in a productive way. It's demagoguery at its worst. All cult leaders hate to be questioned about their beliefs, and no one hates to be questioned about anything more than Mike.
Mike can dish it out but he sure can't take it. He's built a career out of tearing others apart, but then he can't even answer simple questions about himself. Seems kind of sad to me.
Let me ask you this: Do you think Mike thinks that simple piracy is immoral? The most he'll say is that piracy is not OK because it goes against the wishes of creators. But that doesn't equate to thinking it's immoral. What do you think his position is?
We were talking about ethics. So let's get back to that.
I think you're using ethics and morals interchangeably. That's fine with me. I know there is a difference, but I don't think it matters (and I'm too lazy/don't care enough to pull out my old philosophy text).
So, once again, I ask you: How could it possibly be ethical for me to download a copy of "Night of the Living Dead?" After all, I am "stealing" Romero's property. The fact that I am doing it without breaking the law tells us nothing about the ethics of the act - only that the law is unjust. How is it that you can believe it's evil to infringe on the author's property rights in one instance, but absolutely ethical to to infringe on the author's property rights in another? You have never given me an answer to this. And, frankly, I don't think you even can.
My views are fairly simple. I don't take a consequentialist view, e.g., I don't look at whether a particular action, like infringement, will advance or impede the progress. I'm not sure how anyone could ever even test that empirically, or even what exactly promoting the progress means. There's several theories, and I don't think one is more correct than any others. I don't believe in broad fair/personal use rights, and I don't favor narrow fair/personal use rights. I'm somewhere in the middle. I think the theory of balancing access and incentives is nice, but I don't think that's how it works in the real world nor do I think it ever really could. Just as it's hard to prove damages from infringement, it's hard to prove that any rule optimizes private incentives and public benefits. I think all sides of the debate make good points, and I think all sides can poke holes in the other sides' arguments. I think the rhetoric and the practice rarely coincide, no matter which side of the debate you look at.
So what do I believe?
At bottom I'm a Lockean. I think it makes sense to give people a property right in their creations, both physical and intellectual. This isn't the only view I subscribe to, but it's the one I most identify with. This view is called the natural rights view, but I don't subscribe to the view that this is how God intended it to be or anything like that. I just think it's fair. Someone expends labor, they own the results of that labor. It's a very nonconsequentialist view. It doesn't turn on whether society is made better or whether the public domain is enriched or anything like that. You build it, you own it. I don't expect anyone to justify their ownership of tangible property just like I don't expect them to justify their ownership of intangible property.
But that's not the only view I hold. I also recognize that free speech is a fundamental value, and copyright in some ways inhibits free speech. I don't think the inhibition is great--I believe the idea/expression dichotomy and fair use are wonderful safety valves--but I do recognize the tension between the two. This view is consequentialist in that recognizes the public good that comes from free speech, and it's nonconsequentialist because it recognizes the right to speak free from government restraint. There is a freedom to use the works of others, but that freedom must be reconciled with Lockean principles of private property rights. Whether or not the definitional balancing that exists between copyright and free speech adequately balances the two is an interesting question. I don't think there's a right answer per se, but I think the balancing that does exist is pretty good at doing it's job. As long as ideas don't get locked up and as long as you can copy verbatim within reason, I don't see a lot of tension here. I think the consequentialist whine too much on that score, and they try and mask their disagreement about policy choices with constitutionally-based arguments.
There's a personality argument for copyright that I think is interesting. I haven't read much about it or thought much about it. It's the idea that the work is a part of the author. It's an extension of their personality. That may be true, but I'm not sure what that means in practical terms.
I do like the utilitarian argument, which is a more consequentialist view. It's hard not to like the idea that copyright promotes the public good. I don't think there's any need to maximize the public good, nor do I think that's even possible. There's not one meaning of public good. To the extent the theory calls for a balancing of private and public rights, I think the goal is laudable on its face. But I don't really know what that means or how you'd prove it empirically. The premise seems to be that there's a balancing point that maximizes the two, but I think in practice it's probably more of a continuum. It's hard to make black-and-white rules to govern a continuous situation.
As to the morality of infringement, I have the very simple view that the property right and the morality of infringing that right are coextensive. It's moral for the owner of the right to "Night of the Living Dead" to have copyright rights in his work, for all the reasons I think copyright makes sense. But once he loses that right, the right is gone and it's not immoral for you to download the movie. I don't know why they lost the copyright in the work, but I don't think it really matters. Do they have the right or not? If no, then download away. If yes, then don't. The morality and the right go hand-in-hand. As strongly as I believe in the existence of property rights, I believe equally as strongly in their absence. If you own a lake and disallow me to swim in it, then that ends the matter. It's wrong for me to trespass. But if you sell that lake to another who opens it up to the public, swim away. And if the government takes that lake citing eminent domain (and paying just compensation) to open it up to the public, then I'll swim away there as well.
When it comes to property rights, which is all that copyright is, the morality turns on the existence of the right. If you have the right, I shouldn't violate it. If you don't, there's no moral issue. This is no accident. The rights that do exist got there because of the inherent morality that subsists. I can't imagine how a property rights system could evolve over millenia unless it tracked society's view of what's right and wrong. There are examples of where it's OK to violate someone's property rights, like I can break into your cabin to seek shelter from a bear that's chasing me, but the common law developed rules to deal with such circumstances--for example, the defense of necessity. But in the run of the mill scenario, it's just wrong to violate someone's property rights. It doesn't matter whether the violation causes damage necessarily. A technical trespass is still a trespass.
But you, obviously, do not believe that. You believe it is so unethical, that people should have their property taken away, be sued into bankruptcy, have their businesses destroyed, and possibly taken at gunpoint and thrown in jail. You believe that it is so unethical, that prosecuting it deserves more exemptions from due process and prior restraint than other forms of unlawful speech. You believe it is so unethical, that it should be punished even if authors benefit from it.
I believe that if someone violates the property rights of others, then they should be held accountable. This idea is thousands of years old. The extent of the harmed caused goes to the issue of damages, but the infringement per se should give rise to liability.
And you believe that piracy is so unethical, it entitles you to act like an asshole to everyone who disagrees with you. You have - consistently - mucked up numerous threads on this site with personal insults, called the Techdirt authors "slimebags" and "liars" and "cowards," because their personal ethical views don't view piracy as unethical enough for you.
I think Mike Masnick is a morally-bankrupt coward who couldn't be honest about copyright if his life depended on it. The fact that he refuses to ever engage any detractor on the merits without resorting to name-calling and condescension says it all. I think he's fundamentally a bad person. Not because he holds different values than me, but because of the intellectual dishonesty that he displays day after day. All he cares about is shitting on IP law. He does not seek the truth--and I think the truth is all that actually matters.
Wouldn't it be nice if Mike manned-up and addressed his detractors' arguments on the merits? It'll never happen, but it would be nice. Wonder why he's so insecure?
Well, keep in mind that this was the idea I was rebutting: "To our Founders, men had a just and equitable right to their property; intellectual property was no different."
Yes, to which you replied:
You are correct when you say that the Founders held a Lockean view of property in general. You are absolutely wrong when you say they held this view about copyright.
So your claim is explicitly that the Founders did not hold a Lockean, natural rights view of copyright.
It is absolutely true that many Colonial governments held a "natural rights" view of copyright.
I don't think that's actually true. I don't think the natural rights view took hold until the period of the Founding, i.e. after the colonial period and the Declaration of Independence. States didn't pass individual copyright laws until then.
In any case, talking about Colonial law is not the same as talking about the Founding Fathers.
True. That's irrelevant.
To do that, we have to look to the Founders that were involved in the Copyright Clause.
The claim isn't that only the Founders who were involved in the drafting of the Copyright Clause. The claim is the Founders, which includes more than your cherry-picked set of three.
And the evidence that the Founders held a Lockean, natural rights view of copyright is overwhelming and undeniable. Pulling out the letters as you do from TJ and JM after fact is obvious cherry-picking, but you're missing all of the other evidence that leaves no doubt that Founders held a Lockean, natural rights view of copyright. Let's look at the bigger picture.
The first general copyright statute to be enacted in the American states. Copyright Statutes that created general copyright regimes on the state level were passed in twelve out of thirteen of the states between 1783 and 1786. The states' copyright enactments were the result of local lobbying by various authors and their political allies, and of a resolution by the Continental Congress recommending such state legislation. They mark a rising interest in the United States in copyright protection and an ideological reorientation toward authors' rights and interests. The commentary describes the lobbying process on the state and national level, the emergence of an articulated ideology of authors' copyright based on natural rights and utilitarian justifications, and the main institutional features of copyright under the state statutes.
The state statutes were a result of a growing awareness of the need to "encourage" local authors and learning, intense lobbying on the state and national level, and the existence of an established institutional model in the form of the British Statute of Anne. The statutes were promoted and justified on the basis of three characteristic arguments: the natural rights of authors, the social benefit of promoting learning, and the national interest of the young republic in establishing its literary and cultural status among the leading civilized nations. As opposed to the sporadic colonial "encouragements" of printing projects, authors rather than printers or publishers now became the figures dominating copyright thought.
The letter remained ambiguous, however, in regard to whether Smith was recommending a general copyright regime or simply individual grants: "Every attempt of this nature undoubtedly merits the encouragement of the public; because it is by such attempts that systems of education are gradually perfected in every country, and the elements of knowledge rendered more easy to be acquired. Men of industry or of talents in any way, have a right to the property of their production; and it encourages invention and improvement to secure it to them by certain laws, as has been practiced in European countries with advantage and success. And it is my opinion tat it does no damage to the state, and may be of benefit to it, to vest, by a law, the sole right of publishing and vending such works in the authors of them."
Barlow elaborated three main grounds for the need of copyright protection to authors. First, he appealed to a natural rights argument that presented the author's creative labor as the basis of a property right. "There is certainly no kind of property, in the nature of things," Barlow wrote, "so much his own as the works which a person originates from his own creative imagination," and concluded that "it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works." Second, Barlow offered a utilitarian argument, explaining that "we are not to expect to see any works of considerable magnitude... offered to the Public till such security is given" and referring to two authors who already suppressed their works due to fear of piracy.
Congress presented with the petitions by Barlow and others and with a copy of the recently passed Connecticut statute[ referred the matter to a three-person committee. On April 28, 1783 the committee submitted a favorable report that included a strong endorsement of both the natural-rights and the utilitarian justification of authors' copyright. The committee found that: "nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of the arts and commerce"
The preambles contained various mixes of two justifications for copyright: the natural right of the author in the fruits of his labor, and the encouragement of learning for the benefit of the community. The Massachusetts preamble, though one of the more elaborate ones, is representative: "Whereas the improvement of knowledge, the progress of civilization, the public weal of community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: as the principle encouragement such persons can have to make great and beneficial exertions of their nature must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men there being no property more peculiarly a man's own than that which is produced by the labor of his mind."
First, the states' statutes and the deliberative process surrounding them on both the state and the federal level stimulated the articulation and consolidation of new author-based copyright ideology in the United States. Together with the individual legislative privileges the statutes were the main social site where the new concept of authors' copyright and its two main rationales - natural rights and public utility - appeared for the first time in the United States. This prepared the ground and defined the ideological terms for the federal developments that would soon follow.
So during the Founding, you have the committee of the Continental Congress recommending to the states that they pass copyright statutes for both utilitarian and natural rights reasons. 12 out of 13 states enact copyright laws, 10 of which explicitly state the natural rights purpose of copyright in the statute. So 10 out of 13 states during the Founding had explicit, Lockean, natural rights-based copyright laws on the books.
That to me is undeniable evidence that a majority of the Founders held Lockean, natural rights views of copyright.
These are not the words of people talking about some Lockean view of private property. They are not creating the Copyright Clause due to some utilitarian notion of a "just and equitable right."
Who gets the exclusive rights to their creations? Authors. That's a Lockean, natural rights view. 10 out of 13 states had laws during the Founding that explicitly state the natural rights view. They get together and create a Constitution that includes a natural rights view. The Copyright Clause doesn't contain all the fancy natural rights language that the state statutes did, but it in facts gives the exclusive rights to the authors who create the works. The idea of "securing" exclusive rights to authors in their works is a Lockean, natural rights view.
It's also of note that a few of the Founders (e.g. Ben Franklin) were themselves "pirates" of English books. It would be hard to believe that they held some sort of "natural rights" view of copyright, where authors had "a just and equitable right to their property."
BF could have just hated the British. That doesn't prove that he didn't hold a natural rights view.
Let's just say this. For the most part, the Founders did not consider copyright to be exactly the same as Locke's notion of private property.
Now you're moving the goalposts with the word "exactly." The claim is that they held a Lockean, i.e., natural rights view. In other words, that there is something inherently fair in giving property rights to the author who creates the work. 12/13 states had laws that gave rights to authors. 10/13 states explicitly stated that it was for natural rights reasons. And the Copyright Clause gives authors, nay it "secures" to authors, the exclusive rights to their works. It doesn't give the rights to anyone else. It gives the rights to the same party (the author) in the same way as all the states who had explicit natural rights reasons for enacting copyright laws. It's not tenable to say that everyone just changed their minds about the reason for securing to authors the rights in their creations.
Some of them did. Some of them believed copyright was an author's "property," but of a different sort. Some of them did not think of copyright as any form of property at all. Some believed copyright should exist to guarantee a "just reward" for the fruits of their labors. Some believed that copyright should exist solely to serve the public interest.
Is that a good enough answer?
It's better. Before you claimed categorically that no Founder held a Lockean view of copyright. Now you admit that some did. If we can get you to "almost all did" we'll be there.
I think the part you're missing is that the Copyright Clause reflects both the natural rights view and the utilitarian view. It gives authors exclusive rights (natural rights view) and it promotes the progress (utilitarian view). The two are inextricably intertwined and complementary.
And absolutely none of this has anything to do with whether current copyright law is ethical.
Sure it does. If you recognize that copyright is in part about authors' natural rights, then that makes piracy all the more immoral. Throw in the moral, personality theory as well as the economic, utilitarian theory of copyright and you've got piracy violating people rights on several different levels.
I'll note too that I think you're misreading Feist. While it's true that the Court rejected the "sweat of the brow" doctrine, which signifies physical labor, they explicitly state in that very opinion that copyright is about protecting intellectual labor: "The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like." Feist, 499 U.S. at 346, quoting In re Trade-Mark Cases, 100 U.S. 82, 94 (1879).
And note too that the originality prerequisite to copyrightability is a really low bar: "To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious” it might be." Id. at 345.
The Court does not at all reject the Lockean, natural rights view of copyright. Instead, they explicitly cite it as the source of copyright. Several subsequent opinions make the explicit point, as was cited above.
The bottom line is that the Founders held BOTH natural rights notions and utilitarian notions of copyright. The Copyright Clause reflects Both views.
I think scaling copyright back towards the original agreement would develop more respect for copyright and stop the problem at the core.
I think copyright could be scaled back to the original 14 years plus the formalities, and the pirates would continue to just take whatever they want. The "copyright is so screwed up so I don't obey it" excuse is empty, IMO. Greedy is as greedy does.
If I go off on a bunch of tangents, it's only because I'm replying to points that were raised by other people in the debate. But you're right. This has gotten off track. We were not talking about Colonial history, nor about the legislative history of copyright.
We were talking about ethics. So let's get back to that.
Not so fast. I'll gladly address the rest of your points, but I want to see if we can reach a consensus on the issue of whether the framers held Lockean views about copyright. You claimed categorically that they did not. I provided some evidence that they did, including laws and writings from the time of the founding as well as subsequent Supreme Court language acknowledging the Lockean aspects of copyright law. I pointed out that the Constitution itself takes the view that authors should the exclusive rights to the fruits of their labors, and I cited Nimmer to say the opposite of what you claimed he said. I can cite tons and tons more of evidence proving that many held Lockean views of copyright at the founding. I've got law review articles, books, case law, you name it.
I want to know, do you still stand by this unequivocal statement: "You are correct when you say that the Founders held a Lockean view of property in general. You are absolutely wrong when you say they held this view about copyright." You typically make these broad statements as absolute fact, even as to things like this that are so easy to disprove. I'm curious how you can sweep aside all of the evidence to the contrary. I'm curious if you can concede the point.
If I take this argument at face value, my question is this: How to increase enforcement?
Increasing enforcement only seems to create greater public disdain for copyright and causes even more people to ignore it. How do you suggest increasing enforcement in a way that doesn't actually do the reverse?
That's the question many are trying to answer. I think the six strikes thing is a good idea, and I like Lemley's idea of a "speeding ticket" for infringement. People ignore it because it's easy to get away with it and websites like Techdirt tell them it's OK. I think the tide will turn as people start to realize that they will get caught and it does cause harm.
How important is this incentive nowadays? It made more sense when there was a higher barrier in relation to distribution costs. Today an artist can release a work to millions at virtually no cost in a matter of seconds.
That an artist can easily distribute the work isn't the issue. The issue is whether they are making any money while doing so. Since it's so cheap to distribute now, it's that much easier for pirates to distribute the artists' works without giving the artist any of the profits (like from advertising). You haven't identified a reason for less copyright. You've identified the problem of piracy.
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On the post: Publishers Can't Seem To Celebrate The Ebook Boom Without Slipping In Odes To Copyright
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I disagree. It couldn't be easier. Write a book, mark it as public domain, and put it on the internet. You can seed it in tons of places, making it super easy for everyone around the world who wants a copy to have it within seconds. Copyright doesn't stop anyone from doing that. Nothing is stopping free from legitimately competing with copyright.
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But I think the same about Dotcom. Good thing he's being held accountable as well. I very much look forward to his prosecution.
On the post: Publishers Can't Seem To Celebrate The Ebook Boom Without Slipping In Odes To Copyright
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Think about it...
That makes no sense. You can't claim ignorance as a defense because then ignorance of the law would be rewarded and everyone would have the incentive to know as little as possible about their rights and duties. To avoid that perverse situation, ignorance of the law is not encouraged.
That's got nothing to do with the idea that knowing you're going to be punished if you break the law encourages people not to break the law. Disallowing ignorance as a defense encourages people to know the law, and punishing people for breaking the law encourages people to not do so.
On the post: Publishers Can't Seem To Celebrate The Ebook Boom Without Slipping In Odes To Copyright
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On the post: NZ Prime Minister Admits That The Government Illegally Wiretapped Megaupload Employees
How do you get the FUD about them perhaps not having "any legitimate evidence" from this story? I thought you were of the opinion that Dotcom et al. were likely guilty. Funny how all your articles defend him and shine the spotlight on any little speck you can spin into a huge story that disparages the prosecution. It's almost like you're a pirate-apologist or something. Nah. Couldn't be.
On the post: Publishers Can't Seem To Celebrate The Ebook Boom Without Slipping In Odes To Copyright
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On the post: Publishers Can't Seem To Celebrate The Ebook Boom Without Slipping In Odes To Copyright
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An ebook is laughably trivial to pirate: the DRM is pathetic and they are so small (compared to movies and games) that you don't need a big fat connection to pirate them.
It's trivially easy to kill someone, yet the laws against murder serve as a deterrent. It's trivially easy to speed, yet laws against speeding serve as a deterrent. Just because it's trivially easy to infringe eBooks, that doesn't prove that copyright laws have nothing to do with the viability and success of the eBook market. It could be that because of the marketable right made possible by copyright, an author was able to get an advance that enabled him to have the time to write the book in the first place (my brother just got an advance and is writing a book that he otherwise would not have been able to write, so I know this happens).
And while many Techdirt readers are no doubt big time pirates who would have no trouble downloading infringing eBooks, that doesn't mean that there's not others who don't know how to do it and who have no intention of finding out (because, unlike many of Mike's faithful, they realize that piracy is wrong). So it's not like there's perfect competition across the board, and it's hardly fair to call someone giving your product away for free and against your wishes as a "competitor." They compete, but not fairly. Why don't you pirates compete on equal terms? Put up your books that don't rely on copyright against those that do. That would show something. But pretending like pirates are legitimate competition is sad.
I tell you what. Before you guys signal the end of copyright (and I know how important it is for you all to do this), why don't you wait until the point arises where works that were never copyrighted are freely exchanged while the authors who write them are adequately compensated? As it is, you're pointing to a system that is obviously based on copyright and trying to pretend like copyright isn't necessary. Prove it. If you create this alternative market that is so much better, the authors will come running in droves. But for now, just admit that you're on the fringe and you haven't proved yourself yet. Just admit that your view of competition involves competing against an author with his own work. Where's the legitimate competition? Where's the actual proof? You don't have it yet, and I suspect you never will.
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I think that's what he wants people to deduce, but I think he's directly avoiding answering because he doesn't think it's immoral at all.
Case in point: http://www.techdirt.com/articles/20091014/0147596522.shtml
Mike says:Of course, he never explains why it's moral to violate someone's economic right, and I suspect nothing scares him more than having that discussion. As far as I can tell, Mike is trying to spin this into being ONLY about economics. It's easier to pimp the pro-piracy agenda when you take the morality issue out of the picture. It took me TWO YEARS to even get him to identify why he thinks "piracy is not OK." I wonder how many years it's going to take to get him to address directly the morality issue. He's got you fooled if you think that he thinks it's immoral. "There is no moral issue at all." That says it all.
And, of course, he has always said that piracy is unlawful. That, right there, is enough to know that he does not endorse or excuse piracy, and does not believe it is ethical.
Admitting the fact that is illegal does not mean that he thinks it to be immoral. I can admit that laws against discrimination on the basis of race exist, yet I could be the biggest racist on the planet. (I'm not; I hate racism. It's just an example.)
It's too bad he won't discuss these issues. Wonder what he's so scared of?
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I think you're using ethics and morals interchangeably. That's fine with me. I know there is a difference, but I don't think it matters (and I'm too lazy/don't care enough to pull out my old philosophy text).
So, once again, I ask you: How could it possibly be ethical for me to download a copy of "Night of the Living Dead?" After all, I am "stealing" Romero's property. The fact that I am doing it without breaking the law tells us nothing about the ethics of the act - only that the law is unjust. How is it that you can believe it's evil to infringe on the author's property rights in one instance, but absolutely ethical to to infringe on the author's property rights in another? You have never given me an answer to this. And, frankly, I don't think you even can.
My views are fairly simple. I don't take a consequentialist view, e.g., I don't look at whether a particular action, like infringement, will advance or impede the progress. I'm not sure how anyone could ever even test that empirically, or even what exactly promoting the progress means. There's several theories, and I don't think one is more correct than any others. I don't believe in broad fair/personal use rights, and I don't favor narrow fair/personal use rights. I'm somewhere in the middle. I think the theory of balancing access and incentives is nice, but I don't think that's how it works in the real world nor do I think it ever really could. Just as it's hard to prove damages from infringement, it's hard to prove that any rule optimizes private incentives and public benefits. I think all sides of the debate make good points, and I think all sides can poke holes in the other sides' arguments. I think the rhetoric and the practice rarely coincide, no matter which side of the debate you look at.
So what do I believe?
At bottom I'm a Lockean. I think it makes sense to give people a property right in their creations, both physical and intellectual. This isn't the only view I subscribe to, but it's the one I most identify with. This view is called the natural rights view, but I don't subscribe to the view that this is how God intended it to be or anything like that. I just think it's fair. Someone expends labor, they own the results of that labor. It's a very nonconsequentialist view. It doesn't turn on whether society is made better or whether the public domain is enriched or anything like that. You build it, you own it. I don't expect anyone to justify their ownership of tangible property just like I don't expect them to justify their ownership of intangible property.
But that's not the only view I hold. I also recognize that free speech is a fundamental value, and copyright in some ways inhibits free speech. I don't think the inhibition is great--I believe the idea/expression dichotomy and fair use are wonderful safety valves--but I do recognize the tension between the two. This view is consequentialist in that recognizes the public good that comes from free speech, and it's nonconsequentialist because it recognizes the right to speak free from government restraint. There is a freedom to use the works of others, but that freedom must be reconciled with Lockean principles of private property rights. Whether or not the definitional balancing that exists between copyright and free speech adequately balances the two is an interesting question. I don't think there's a right answer per se, but I think the balancing that does exist is pretty good at doing it's job. As long as ideas don't get locked up and as long as you can copy verbatim within reason, I don't see a lot of tension here. I think the consequentialist whine too much on that score, and they try and mask their disagreement about policy choices with constitutionally-based arguments.
There's a personality argument for copyright that I think is interesting. I haven't read much about it or thought much about it. It's the idea that the work is a part of the author. It's an extension of their personality. That may be true, but I'm not sure what that means in practical terms.
I do like the utilitarian argument, which is a more consequentialist view. It's hard not to like the idea that copyright promotes the public good. I don't think there's any need to maximize the public good, nor do I think that's even possible. There's not one meaning of public good. To the extent the theory calls for a balancing of private and public rights, I think the goal is laudable on its face. But I don't really know what that means or how you'd prove it empirically. The premise seems to be that there's a balancing point that maximizes the two, but I think in practice it's probably more of a continuum. It's hard to make black-and-white rules to govern a continuous situation.
As to the morality of infringement, I have the very simple view that the property right and the morality of infringing that right are coextensive. It's moral for the owner of the right to "Night of the Living Dead" to have copyright rights in his work, for all the reasons I think copyright makes sense. But once he loses that right, the right is gone and it's not immoral for you to download the movie. I don't know why they lost the copyright in the work, but I don't think it really matters. Do they have the right or not? If no, then download away. If yes, then don't. The morality and the right go hand-in-hand. As strongly as I believe in the existence of property rights, I believe equally as strongly in their absence. If you own a lake and disallow me to swim in it, then that ends the matter. It's wrong for me to trespass. But if you sell that lake to another who opens it up to the public, swim away. And if the government takes that lake citing eminent domain (and paying just compensation) to open it up to the public, then I'll swim away there as well.
When it comes to property rights, which is all that copyright is, the morality turns on the existence of the right. If you have the right, I shouldn't violate it. If you don't, there's no moral issue. This is no accident. The rights that do exist got there because of the inherent morality that subsists. I can't imagine how a property rights system could evolve over millenia unless it tracked society's view of what's right and wrong. There are examples of where it's OK to violate someone's property rights, like I can break into your cabin to seek shelter from a bear that's chasing me, but the common law developed rules to deal with such circumstances--for example, the defense of necessity. But in the run of the mill scenario, it's just wrong to violate someone's property rights. It doesn't matter whether the violation causes damage necessarily. A technical trespass is still a trespass.
But you, obviously, do not believe that. You believe it is so unethical, that people should have their property taken away, be sued into bankruptcy, have their businesses destroyed, and possibly taken at gunpoint and thrown in jail. You believe that it is so unethical, that prosecuting it deserves more exemptions from due process and prior restraint than other forms of unlawful speech. You believe it is so unethical, that it should be punished even if authors benefit from it.
I believe that if someone violates the property rights of others, then they should be held accountable. This idea is thousands of years old. The extent of the harmed caused goes to the issue of damages, but the infringement per se should give rise to liability.
And you believe that piracy is so unethical, it entitles you to act like an asshole to everyone who disagrees with you. You have - consistently - mucked up numerous threads on this site with personal insults, called the Techdirt authors "slimebags" and "liars" and "cowards," because their personal ethical views don't view piracy as unethical enough for you.
I think Mike Masnick is a morally-bankrupt coward who couldn't be honest about copyright if his life depended on it. The fact that he refuses to ever engage any detractor on the merits without resorting to name-calling and condescension says it all. I think he's fundamentally a bad person. Not because he holds different values than me, but because of the intellectual dishonesty that he displays day after day. All he cares about is shitting on IP law. He does not seek the truth--and I think the truth is all that actually matters.
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Yes, to which you replied:
You are correct when you say that the Founders held a Lockean view of property in general. You are absolutely wrong when you say they held this view about copyright.
So your claim is explicitly that the Founders did not hold a Lockean, natural rights view of copyright.
It is absolutely true that many Colonial governments held a "natural rights" view of copyright.
I don't think that's actually true. I don't think the natural rights view took hold until the period of the Founding, i.e. after the colonial period and the Declaration of Independence. States didn't pass individual copyright laws until then.
In any case, talking about Colonial law is not the same as talking about the Founding Fathers.
True. That's irrelevant.
To do that, we have to look to the Founders that were involved in the Copyright Clause.
The claim isn't that only the Founders who were involved in the drafting of the Copyright Clause. The claim is the Founders, which includes more than your cherry-picked set of three.
And the evidence that the Founders held a Lockean, natural rights view of copyright is overwhelming and undeniable. Pulling out the letters as you do from TJ and JM after fact is obvious cherry-picking, but you're missing all of the other evidence that leaves no doubt that Founders held a Lockean, natural rights view of copyright. Let's look at the bigger picture.
Here's a good source (well-researched and with citations): http://copy.law.cam.ac.uk/cam/commentary/us_1783a/us_1783a_com_672007191141.html
Here's some sampled text:So during the Founding, you have the committee of the Continental Congress recommending to the states that they pass copyright statutes for both utilitarian and natural rights reasons. 12 out of 13 states enact copyright laws, 10 of which explicitly state the natural rights purpose of copyright in the statute. So 10 out of 13 states during the Founding had explicit, Lockean, natural rights-based copyright laws on the books.
That to me is undeniable evidence that a majority of the Founders held Lockean, natural rights views of copyright.
These are not the words of people talking about some Lockean view of private property. They are not creating the Copyright Clause due to some utilitarian notion of a "just and equitable right."
Who gets the exclusive rights to their creations? Authors. That's a Lockean, natural rights view. 10 out of 13 states had laws during the Founding that explicitly state the natural rights view. They get together and create a Constitution that includes a natural rights view. The Copyright Clause doesn't contain all the fancy natural rights language that the state statutes did, but it in facts gives the exclusive rights to the authors who create the works. The idea of "securing" exclusive rights to authors in their works is a Lockean, natural rights view.
It's also of note that a few of the Founders (e.g. Ben Franklin) were themselves "pirates" of English books. It would be hard to believe that they held some sort of "natural rights" view of copyright, where authors had "a just and equitable right to their property."
BF could have just hated the British. That doesn't prove that he didn't hold a natural rights view.
Let's just say this. For the most part, the Founders did not consider copyright to be exactly the same as Locke's notion of private property.
Now you're moving the goalposts with the word "exactly." The claim is that they held a Lockean, i.e., natural rights view. In other words, that there is something inherently fair in giving property rights to the author who creates the work. 12/13 states had laws that gave rights to authors. 10/13 states explicitly stated that it was for natural rights reasons. And the Copyright Clause gives authors, nay it "secures" to authors, the exclusive rights to their works. It doesn't give the rights to anyone else. It gives the rights to the same party (the author) in the same way as all the states who had explicit natural rights reasons for enacting copyright laws. It's not tenable to say that everyone just changed their minds about the reason for securing to authors the rights in their creations.
Some of them did. Some of them believed copyright was an author's "property," but of a different sort. Some of them did not think of copyright as any form of property at all. Some believed copyright should exist to guarantee a "just reward" for the fruits of their labors. Some believed that copyright should exist solely to serve the public interest.
Is that a good enough answer?
It's better. Before you claimed categorically that no Founder held a Lockean view of copyright. Now you admit that some did. If we can get you to "almost all did" we'll be there.
I think the part you're missing is that the Copyright Clause reflects both the natural rights view and the utilitarian view. It gives authors exclusive rights (natural rights view) and it promotes the progress (utilitarian view). The two are inextricably intertwined and complementary.
And absolutely none of this has anything to do with whether current copyright law is ethical.
Sure it does. If you recognize that copyright is in part about authors' natural rights, then that makes piracy all the more immoral. Throw in the moral, personality theory as well as the economic, utilitarian theory of copyright and you've got piracy violating people rights on several different levels.
I'll note too that I think you're misreading Feist. While it's true that the Court rejected the "sweat of the brow" doctrine, which signifies physical labor, they explicitly state in that very opinion that copyright is about protecting intellectual labor: "The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like." Feist, 499 U.S. at 346, quoting In re Trade-Mark Cases, 100 U.S. 82, 94 (1879).
And note too that the originality prerequisite to copyrightability is a really low bar: "To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious” it might be." Id. at 345.
The Court does not at all reject the Lockean, natural rights view of copyright. Instead, they explicitly cite it as the source of copyright. Several subsequent opinions make the explicit point, as was cited above.
The bottom line is that the Founders held BOTH natural rights notions and utilitarian notions of copyright. The Copyright Clause reflects Both views.
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I think copyright could be scaled back to the original 14 years plus the formalities, and the pirates would continue to just take whatever they want. The "copyright is so screwed up so I don't obey it" excuse is empty, IMO. Greedy is as greedy does.
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We were talking about ethics. So let's get back to that.
Not so fast. I'll gladly address the rest of your points, but I want to see if we can reach a consensus on the issue of whether the framers held Lockean views about copyright. You claimed categorically that they did not. I provided some evidence that they did, including laws and writings from the time of the founding as well as subsequent Supreme Court language acknowledging the Lockean aspects of copyright law. I pointed out that the Constitution itself takes the view that authors should the exclusive rights to the fruits of their labors, and I cited Nimmer to say the opposite of what you claimed he said. I can cite tons and tons more of evidence proving that many held Lockean views of copyright at the founding. I've got law review articles, books, case law, you name it.
I want to know, do you still stand by this unequivocal statement: "You are correct when you say that the Founders held a Lockean view of property in general. You are absolutely wrong when you say they held this view about copyright." You typically make these broad statements as absolute fact, even as to things like this that are so easy to disprove. I'm curious how you can sweep aside all of the evidence to the contrary. I'm curious if you can concede the point.
Answer me that, then I'll tackle your questions.
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Increasing enforcement only seems to create greater public disdain for copyright and causes even more people to ignore it. How do you suggest increasing enforcement in a way that doesn't actually do the reverse?
That's the question many are trying to answer. I think the six strikes thing is a good idea, and I like Lemley's idea of a "speeding ticket" for infringement. People ignore it because it's easy to get away with it and websites like Techdirt tell them it's OK. I think the tide will turn as people start to realize that they will get caught and it does cause harm.
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That an artist can easily distribute the work isn't the issue. The issue is whether they are making any money while doing so. Since it's so cheap to distribute now, it's that much easier for pirates to distribute the artists' works without giving the artist any of the profits (like from advertising). You haven't identified a reason for less copyright. You've identified the problem of piracy.
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