It is dismaying to me that you won't give an inch in this debate, Karl. While AJ and I both recognize that the public benefit embodied in copyright law, you, despite all of the evidence presented in this forum, refuse to recognize the simple fact that the ethical rights of authors was and is an important consideration in copyright policy and constitutional understanding.
All of my discussions with Karl suffer from this same problem. It's like debating a brick wall. If you prove his point wrong, rather than concede it he'll go off on a bunch of tangents. The threads turn into these crazy long posts where there's dozens of points being made with none of them being conceded or settled. As you point out his errors, the responses get longer and more tangential. It's frustrating, but I've learned to not let it get to me.
Nobody who studies copyright law believes that "rewarding the labor of authors" is copyright's purpose. Not the Nimmers, not Patry, not Volokh, not Lessig - nobody.
Here's Nimmer:
Yet, one may well inquire as to whether the monopoly inherent in copyright requires any greater justification in terms of public welfare than does the monopoly that is an essential concomitant of any form of private property. This, of course, poses the philosophical issue as to whether copyright should be regarded as properly based upon the “natural right” concept fundamental (at least in origin) to the theory of private property. The fruits of an author’s labor seem to be no less deserving of the privileges and status of “property” than are the more tangible creative efforts of other laborers. True, the concept of property as related to copyright may not lay claim to the immemorial usage applicable to realty and tangible personality so that in the well worn legal phrase, the memory of man does “runneth to the contrary.” Nevertheless there is nothing to indicate that the Framers in recognizing copyright intended any higher standard of creation in terms of serving the public interest than that required for other forms of personal property. We may assume that the men who wrote the Constitution regarded the system of private property per se as in the public interest. In according a property status to copyright, they merely extended a recognition of this public interest into a new sector.
Therefore, the phrase “To promote the progress. of science. and useful arts …” must be read as largely in the nature of a preamble, indicating the purpose of the power but not in limitation. of its exercise.
1-1 Nimmer on Copyright § 1.03 (emphasis added).
So he's saying that all private property serves the public good. And since copyright is private property, it serves the public good as well. But there's nothing special about it. Notice too that he thinks the preambular "to promote the progress" is not a limitation on the Copyright Clause power. This comports with what Lessig conceded in oral arguments during Eldred. In other words, your argument that unless the right serves the public good (and Mike's argument that it must maximize the public good) doesn't hold up. Nor does the argument that each work, taken individually, must "promote the progress." Nimmer explains further:
Under the currently prevailing view, set forth in Mitchell Bros. Film Group v. Cinema Adult Theater the introductory phrase of the Copyright Clause does not require that each of the “writings” protected by copyright in fact promote science or useful arts, but only Congress shall be promoting these ends by its copyright legislation. Thus,
although Congress could require that each copyrighted work be shown to protect the useful arts (as it has with patents), it need not do so … Congress could reasonably conclude that the best way to promote creativity is not to impose any governmental restrictions on the subject matter of copyrightable works. By making this choice Congress removes the chilling effect of governmental judgments on potential authors and avoids the strong possibility that governmental officials (including judges) will err in separating the useful from the non-useful … . We conclude that the protection of all writings, without regard to their content, is a constitutionally permissible means of promoting science and the useful arts.
Id.
I like how that quote brings in the concept of chilling effects, an oft-trumpeted phrase on Techdirt. If Congress actually required each work to promote the progress, that would cause a chilling effect on authors who would worry about passing governmental scrutiny as a hurdle for copyrightability.
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.
That's patently false and easily disproved. There's plenty of evidence that the framers held Lockean views specifically about copyright.
For example, a committee under the Articles of Confederation in 1783 concluded 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." 24 Journal of the Continental Congress 211.
And the Massachusetts copyright law in 1783 provided "Whereas the Improvement of Knowledge, the Progress of Civilization, the public Weal of the 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 principal Encouragement such Persons can have to make great and beneficial Exertions of this 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 Labour of his Mind." Bruce W. Bugbee, Genesis of American Patent and Copyright Law (1967), p. 114.
Many other state copyright laws at the time were couched in similar terms.
Here's a letter from Joel Barrow to Congress in 1783: "There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public. From these considerations it is, that most of the civilized nati- ons have removed the natural obstructions which lie in the way of literary emulation, & given the consequent encouragement to every species of laudable ambition." http://copy.law.cam.ac.uk/cam/tools/request/showRepresentation.php?id=representation_us_1783b&pa genumber=1_2&imagesize=small#TranscriptionDisplay
The point is that the ethical good that is being done, is not because the rights themselves are moral, but because the rights may promote an ethical end.
I disagree. I think copyrights are moral because people should have the right to the fruit of their labor (Lockean view) and because society is better off for it (utilitarian view). I don't think it has to be an either-or. I don't read the Copyright Clause as taking strictly the utilitarian view since it does call for authors to have a right to the fruits of their labor. As the AC pointed out, the Founders recognized the Lockean view as well. The fact is though you can't say there is only one view that is correct. Individual Founders had their own views--there is no one correct view. The fact is that copyright gives authors a property right to the fruit of their labor.
Put in the context of the rest of the text, Mazer v. Stein does not seem to be saying what you claim it is: that one purpose of copyright is to reward the "sweat of the brow" of authors. That argument is explicitly denied in Feist v. Rural, among many other cases. In fact, see the very first U.S. copyright case, Wheaton v. Peters: "The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published."
Feist merely says that the sine qua non of copyright is originality. It doesn't matter how much one toils away creating a new work. If there's no originality, it doesn't get copyright. This is not a refutation of the Lockean notion. It's just an additional requirement for copyrightability.
Wheaton was merely distinguishing common law copyright in an unpublished work from statutory copyright in a published work. That's not a refutation of the Lockean notion. Authors still get the exclusive right to their works.
This is a gross misstatement. "It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius" (United States v. Paramount Pictures). "By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas" (Harper & Row v. Nation Enterprises). "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The Constitution of the U. S. has limited [monopolies] to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use" (James Madison). Congress thought the CTEA would "provide copyright owners generally with the incentive to restore older works and further disseminate them to the public." And so forth.
Yes, public access is to be balanced with private protection. That's the theory. Everything you've quoted there confirms what I said. The hope is that the author will publish and sell the work at a price that rewards the author appropriately and that is affordable to the public. But the fact remains that the author can charge so much that few can afford it, or they can choose to not sell it at all. Access is part of the equation, but it's only one part.
The language of the statutes certainly implies that publication is the goal. The very definition of "fixed" is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The (very recently enacted) criminal laws against "leaking" works, specifically cover "the distribution of a work being prepared for commercial distribution."
Yes, greater public access is one part of the equation, but it's not the only part. Protecting the work and giving the authors the right to exclude, i.e., the right to prevent access, is part of it too. The classical theory is that public access is to be balanced with private protection, as I said.
And if copyright really was about anything other than "access and dissemination," we would not have such things as statutory royalty rates.
Statutory rates are an example of where Congress sought to promote access. That doesn't mean that copyright is only about access.
And you are so set on denying that copyright is all about benefitting the public, that you deny that copyright even can be about anything other than "violating artists' rights." You deny that any other viewpoint even could be ethical.
It's just a fact that copyright is about rewarding authors and rewarding the public. It's about both. It's about balance. The two are complementary, as the Supreme Court said in Eldred. I don't deny that copyright is in part about benefiting the public. But it benefits the public by giving authors the right to exclude the public for a limited time. You have to look at the whole picture. Pirates skip over the part where authors have the exclusive rights. That's not the bargain envisaged by the Constitution.
The article was discussing the possible trademark issues. I identified a trademark issue that hadn't been mentioned. Do you not know what "relevant" means? I added what I thought was something of value to the conversation. There are many others who post idiotic nonsense that adds nothing. Do you bother them like a little prick?
I forgot to add this to the mix: the Visual Artists Rights Act, which recognizes moral rights for artists. Very European. http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act That's proof that copyright is about more than just the public good. It's also about rewarding and protecting artists. It always has been.
I think you're putting too much emphasis on one interpretation of the "to promote the progress" preamble. First of all, there's several interpretations of what that even means (I'm aware of four meanings, and I'm sure there are more). Second of all, the Copyright Clause isn't the only possible source for Congressional power. I think many copyright-related laws, like VARA, could be justified as an exercise of the Commerce Clause power. In that case, there is no need to consider the promotion of the progress, whatever that even means. Third, I think you need to realize that "to promote the progress" refers to the net effect. You can't do what Mike does and look at one small sliver and then proclaim that the progress isn't being promoted. Mike plays that game all the time, and it just makes no sense. And lastly, I don't even begin to understand how you think copyright "is far more damaging then beneficial." Copyright is doing its job, which is to incentivize the creation of new works. The ones doing the damage are the pirates, since they are making the creation of new works less profitable. They're only shooting themselves in the foot and making things worse for everyone. Their greedy need to have everything they want whenever they want it is at the expense of the public good. They're screwing up the balance. You want more and better works? Enforce copyright better.
In contrast, the only time anything even remotely resembling moral language is used, is when we are talking about the public. We "advance public welfare," "create and disseminate ideas," or serve "the public benefit by resulting in the proliferation of knowledge." This is the purpose of copyright; providing an economic incentive is the method by which that purpose is accomplished. "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors" (Fox Film Corp. v. Doyal).
Copyright rewards authors, which in turn, rewards the public. The two cannot be separated since the theory is that one leads to the other. Reward to the author is an integral part of the bargain. The Court here takes a more Lockean view:
The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.
Mazer v. Stein, 347 U.S. 201, 219 (1954) (emphasis added).
"Deserve rewards." You seem so set on denying that copyright is at all about rewarding authors, but the fact is it's about rewarding authors which in turns rewards the public. The two are complementary, as the Court made clear in the Eldred footnote quoted by the AC:
Rewarding authors for their creative labor and “promot[ing] ... Progress” are thus complementary; as James Madison observed, in copyright “[t]he public good fully coincides ... with the claims of individuals.” The Federalist No. 43, p. 272 (C. Rossiter ed.1961). Justice BREYER's assertion that “copyright statutes must serve public, not private, ends,” post, at 803, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.
Eldred v. Ashcroft, 537 U.S. 186, 212, n.18 (2003).
Copyright serves both public and private good, as the two are intertwined. Take away the private benefit, and the public benefit disappears. Take away that "evil," and the public suffers. It's not simply the means, it's an integral part of the larger system.
The immediate effect of our copyright law is to secure a fair return for an ‘author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
To "secure a fair return" for the author's labor is very Lockean concept.
And make no mistake about it, that method was not considered an ethical imperative. "The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly" (H.R. Rep. No. 60-2222). "But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good" (James Madison).
Just because it's an "evil" doesn't mean it's moral to violate the right once granted. "It's evil" is not a defense to copyright infringement, legally or morally. And that "evil" is what ultimately benefits everyone.
That is the great contradiction in copyright law: we grant a temporary monopoly on expression, in order to accomplish more widespread dissemination of that expression.
We grant the temporary rights because it fosters the creation of more and better works. Access and dissemination are not the only issues in play. A person can get a copyright and then decide to lock up the work, never disseminating it to anyone. If it was only about access, then giving people the right to deny access is a silly way to accomplish that end.
My comment was relevant and respectful, and I believe I added something to the conversation. You've been concerned only with being hypercritical of me, and you are complaining that I didn't address "what the article was actually about as a whole." I understand that you think I was being pedantic and that I should have addressed the entire article. I disagree. I think you're being a bully and an asshole. I'm sure you disagree. I can (and do) take criticism all day long on TD. Sometimes the criticism is good, and sometimes it's someone being an asshole. With you, it's the latter. You think I'm a pedant, and I think you're a jerk. Seems like we're well past the point of diminishing returns with this.
Let's not forget that the public is immensely benefited before the work falls into the public domain as well by having access to the work once it is released by the author. The economic incentive motivates authors to release their work to the public quickly so that they might profit from it.
Absolutely. The author gets the marketable right with the hope that they'll actually use it, i.e., that they'll give the public access to the work by placing it on the market. But as you pointed out (and as I think Karl and Mike are missing), if the purpose of copyright was only to give the greatest number of people access to the work, then giving authors the right to exclude the public would not be the means for accomplishing that end. Instead, the theory is that there's a balance between the amount of protection given and the amount of access the public gets. You don't want to give too much protection, or else there's not enough access, and you don't want to give too much access, because then there's not enough protection. The balance lies somewhere in the middle. That's the classical theory anyway.
These are the comments. I made a comment. I quote caselaw that was relevant to my comment. I didn't know I had some obligation to you to comment on "what the article was actually about as a whole." I thought I could comment on the part that interested me.
There is something wrong with you for being such a control freak that you felt the need (and continue to feel the need) to convince me that I should have commented in the way you think I should have commented.
Authors do not have the Constitutional right to copyright. The right to make copyright laws is granted to Congress, not to artists.
He didn't say authors have the constitutional right to copyright. He said that society, through the legislative process, have given authors the legal right to copyright. He said that that is the message embodied in the Constitution, which is true. I don't understand why you're trying to correct him when he said nothing untrue.
And it is granted for one purpose: to "promote the progress of Science" (in the case of copyright). Both Congress and the Supreme Court have made it very clear that the beneficiaries of copyright law are the public.
And what means does the Constitution say to use realize that purpose? It says to give authors exclusive rights. Yes, the beneficiaries are ultimately the public, but during the limited times copyrights are in force, the authors are the beneficiaries. You have to look at the bigger picture, the means and the ends. You're so focused on the ends--the public benefit--that you're ignoring the means, which aren't necessarily beneficial to the public.
In other words: in theory, the "ethical good" that comes from copyright is increased public access to artistic works. It is the only ethical value that copyright promotes.
The classical theory is that a balance is struck between benefiting the authors via economic rewards and benefiting the public with access. You're leaving off half by focusing only on access. Benefiting authors via the exclusive, economic rights is part of it too.
The ethical motivations for copyright have absolutely nothing to do with the "property rights" of authors. In fact, such "property rights" are theoretically viewed as a social evil, only tolerable if they result in a benefit to the public that outweighs this evil.
That's just fundamentally wrong, as the AC has demonstrated via majority Supreme Court language. Benefiting authors is part of the bargain. You can't separate it out. It's part and parcel of the utilitarian model of copyright.
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
Sony v. Universal, 464 U.S. 417, 429 (1984).
Authors benefit first, and then when the work falls into the public domain, the public gets its end of the bargain. The ultimate aim of copyright is to benefit the public, but it reaches this aim by benefiting authors first.
It is very hard to see how "piracy," at least of the non-commercial variety, conflicts with this ethical goal. After all, non-commercial piracy is nothing other than increased public access to artworks. You know how I downloaded "Night of the Living Dead" for free? That, and that alone, is the "social good" that copyright exists to promote.
Piracy upsets the balance by not honoring the exclusive rights that are given to authors. That's not the bargain that copyright promises. The public gets it benefit later, but at first it's about the benefit to the author. Pirates take that benefit away. The balance is about more than access, it's about access balanced with the protection of authors' rights.
This is why copyright is granted to Congress, and not to authors directly, under the Constitution. As representatives of the general public, Congress is supposed to make sure that the monopoly rights that the public grants to copyright holders, work first and foremost to the public's benefit.
Authors benefit first, which is why the marketable right to exclude is given to authors. The public benefits later, after the copyright has expired. This is the basic, utilitarian theory of copyright. You're focused on the ends, but neglecting the means. It makes no sense to say that the public is supposed to benefit first. The system wouldn't give the right to exclude to authors if it was meant to first benefit the public.
At least in theory. In practice, multinational commercial rights holders have completely taken over copyright. The idea that copyright benefits the public first and foremost has been buried under a mountain of lobbying money and propaganda.
Copyright has never been about benefiting the public first. Again, if the public were meant to benefit first, you wouldn't set out to accomplish that by giving authors the right to exclude the public. That makes zero sense, and it's just not the theory.
There is no question in my mind that copyright laws, as they currently stand, impede the widespread distribution of artworks to the public, and impede the growth of the public domain. This makes our current laws unethical.
The right to exclude includes the right to prevent access. This is by design. The public benefit is realized later, after the copyright has expired. Read the Sony quote again.
Good stuff! Yes, going to a court and getting the court to take action makes it state action, so the First Amendment is in play. A private takedown notice (issued under the Section 512) is not state action, but going to court and getting an injunction (issued under Section 502) is.
But don't assume that just because the injunction affects protected speech there has been an actual violation of the First Amendment. The injunction is state action so there could be a violation, but there isn't necessarily one.
The defendant argued that the district court violated his First Amendment rights by enjoining him linking. The Second Circuit found that the injunction (and the DMCA for that matter) didn't violate the First Amendment.
LOL! Have you ever added even one thing of value to any discussion on Techdirt ever? I haven't seen it. You're in the running for Most Worthless Poster. Congrats!
Look. I made a viable point, and then I cited to relevant caselaw that has this very plaintiff winning on a dilution claim. It wasn't pedantic. It was adding something constructive to the conversation. Why are you being such a fucking douche about it? Not happy with your life?
Filing a false, bad faith takedown notice is a wrong, but it's not a violation of someone's First Amendment rights since the government is not involved (and First Amendment violations require state action). It's still wrong, legally and morally. Sorry if that wasn't clear. Mossoff argued that no one's First Amendment rights are being violated, and that's true. That doesn't mean they aren't the victims of misrepresentations or that they aren't having their speech negatively impacted.
Aren't you just an angry little asshole? Mike said the issue was trademark, but without confusion, there really wasn't an issue. I was merely pointing out that the issue could be trademark yet without confusion. And then you got all angry and pissy and acted like a cunt. Congrats! You win today's Angry Cunt award.
They have a mark on the tree silhouette, I believe. Someone could take a picture of the tree and use it in a way that dilutes the mark. Or they could use it in a way that causes confusion as to source.
So the issue is (mostly) a trademark one -- but that shouldn't bar people from taking photos (or even selling the photos). While selling photos does meet the "use in commerce" bar of trademark, Pebble Beach would have to make the (somewhat extraordinary) claim that anyone selling such a photo was creating consumer confusion. That's an uphill battle, to say the least. At best, they might have a claim in a case where the image was used specifically as a brand logo or to advertise something else. But just selling a photograph of the tree seems unlikely to cause any confusion whatsoever.
There wouldn't need to be any confusion if the issue were dilution. See, e.g., Pebble Beach v. Tour 18, 936 F.Supp. 1299, 1350-54 (S.D. Tex. 1996) (finding service mark and trade dress dilution).
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Copyright pretty much doesn't expire anymore and when Micky get close again I have no doubt that Disney will attempt to extend it further.
The public gets benefits too while the work is under copyright, at least to the extent the owner chooses to market it.
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All of my discussions with Karl suffer from this same problem. It's like debating a brick wall. If you prove his point wrong, rather than concede it he'll go off on a bunch of tangents. The threads turn into these crazy long posts where there's dozens of points being made with none of them being conceded or settled. As you point out his errors, the responses get longer and more tangential. It's frustrating, but I've learned to not let it get to me.
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Here's Nimmer:1-1 Nimmer on Copyright § 1.03 (emphasis added).
So he's saying that all private property serves the public good. And since copyright is private property, it serves the public good as well. But there's nothing special about it. Notice too that he thinks the preambular "to promote the progress" is not a limitation on the Copyright Clause power. This comports with what Lessig conceded in oral arguments during Eldred. In other words, your argument that unless the right serves the public good (and Mike's argument that it must maximize the public good) doesn't hold up. Nor does the argument that each work, taken individually, must "promote the progress." Nimmer explains further:Id.
I like how that quote brings in the concept of chilling effects, an oft-trumpeted phrase on Techdirt. If Congress actually required each work to promote the progress, that would cause a chilling effect on authors who would worry about passing governmental scrutiny as a hurdle for copyrightability.
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That's patently false and easily disproved. There's plenty of evidence that the framers held Lockean views specifically about copyright.
For example, a committee under the Articles of Confederation in 1783 concluded 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." 24 Journal of the Continental Congress 211.
And the Massachusetts copyright law in 1783 provided "Whereas the Improvement of Knowledge, the Progress of Civilization, the public Weal of the 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 principal Encouragement such Persons can have to make great and beneficial Exertions of this 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 Labour of his Mind." Bruce W. Bugbee, Genesis of American Patent and Copyright Law (1967), p. 114.
Many other state copyright laws at the time were couched in similar terms.
Here's a letter from Joel Barrow to Congress in 1783: "There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public. From these considerations it is, that most of the civilized nati- ons have removed the natural obstructions which lie in the way of literary emulation, & given the consequent encouragement to every species of laudable ambition." http://copy.law.cam.ac.uk/cam/tools/request/showRepresentation.php?id=representation_us_1783b&pa genumber=1_2&imagesize=small#TranscriptionDisplay
There's plenty more where that came from.
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I disagree. I think copyrights are moral because people should have the right to the fruit of their labor (Lockean view) and because society is better off for it (utilitarian view). I don't think it has to be an either-or. I don't read the Copyright Clause as taking strictly the utilitarian view since it does call for authors to have a right to the fruits of their labor. As the AC pointed out, the Founders recognized the Lockean view as well. The fact is though you can't say there is only one view that is correct. Individual Founders had their own views--there is no one correct view. The fact is that copyright gives authors a property right to the fruit of their labor.
Put in the context of the rest of the text, Mazer v. Stein does not seem to be saying what you claim it is: that one purpose of copyright is to reward the "sweat of the brow" of authors. That argument is explicitly denied in Feist v. Rural, among many other cases. In fact, see the very first U.S. copyright case, Wheaton v. Peters: "The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published."
Feist merely says that the sine qua non of copyright is originality. It doesn't matter how much one toils away creating a new work. If there's no originality, it doesn't get copyright. This is not a refutation of the Lockean notion. It's just an additional requirement for copyrightability.
Wheaton was merely distinguishing common law copyright in an unpublished work from statutory copyright in a published work. That's not a refutation of the Lockean notion. Authors still get the exclusive right to their works.
This is a gross misstatement. "It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius" (United States v. Paramount Pictures). "By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas" (Harper & Row v. Nation Enterprises). "Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts" (Twentieth Century Music v. Aiken). "The Constitution of the U. S. has limited [monopolies] to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use" (James Madison). Congress thought the CTEA would "provide copyright owners generally with the incentive to restore older works and further disseminate them to the public." And so forth.
Yes, public access is to be balanced with private protection. That's the theory. Everything you've quoted there confirms what I said. The hope is that the author will publish and sell the work at a price that rewards the author appropriately and that is affordable to the public. But the fact remains that the author can charge so much that few can afford it, or they can choose to not sell it at all. Access is part of the equation, but it's only one part.
The language of the statutes certainly implies that publication is the goal. The very definition of "fixed" is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The (very recently enacted) criminal laws against "leaking" works, specifically cover "the distribution of a work being prepared for commercial distribution."
Yes, greater public access is one part of the equation, but it's not the only part. Protecting the work and giving the authors the right to exclude, i.e., the right to prevent access, is part of it too. The classical theory is that public access is to be balanced with private protection, as I said.
And if copyright really was about anything other than "access and dissemination," we would not have such things as statutory royalty rates.
Statutory rates are an example of where Congress sought to promote access. That doesn't mean that copyright is only about access.
And you are so set on denying that copyright is all about benefitting the public, that you deny that copyright even can be about anything other than "violating artists' rights." You deny that any other viewpoint even could be ethical.
It's just a fact that copyright is about rewarding authors and rewarding the public. It's about both. It's about balance. The two are complementary, as the Supreme Court said in Eldred. I don't deny that copyright is in part about benefiting the public. But it benefits the public by giving authors the right to exclude the public for a limited time. You have to look at the whole picture. Pirates skip over the part where authors have the exclusive rights. That's not the bargain envisaged by the Constitution.
On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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I think you're putting too much emphasis on one interpretation of the "to promote the progress" preamble. First of all, there's several interpretations of what that even means (I'm aware of four meanings, and I'm sure there are more). Second of all, the Copyright Clause isn't the only possible source for Congressional power. I think many copyright-related laws, like VARA, could be justified as an exercise of the Commerce Clause power. In that case, there is no need to consider the promotion of the progress, whatever that even means. Third, I think you need to realize that "to promote the progress" refers to the net effect. You can't do what Mike does and look at one small sliver and then proclaim that the progress isn't being promoted. Mike plays that game all the time, and it just makes no sense. And lastly, I don't even begin to understand how you think copyright "is far more damaging then beneficial." Copyright is doing its job, which is to incentivize the creation of new works. The ones doing the damage are the pirates, since they are making the creation of new works less profitable. They're only shooting themselves in the foot and making things worse for everyone. Their greedy need to have everything they want whenever they want it is at the expense of the public good. They're screwing up the balance. You want more and better works? Enforce copyright better.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Copyright rewards authors, which in turn, rewards the public. The two cannot be separated since the theory is that one leads to the other. Reward to the author is an integral part of the bargain. The Court here takes a more Lockean view:Mazer v. Stein, 347 U.S. 201, 219 (1954) (emphasis added).
"Deserve rewards." You seem so set on denying that copyright is at all about rewarding authors, but the fact is it's about rewarding authors which in turns rewards the public. The two are complementary, as the Court made clear in the Eldred footnote quoted by the AC:Eldred v. Ashcroft, 537 U.S. 186, 212, n.18 (2003).
Copyright serves both public and private good, as the two are intertwined. Take away the private benefit, and the public benefit disappears. Take away that "evil," and the public suffers. It's not simply the means, it's an integral part of the larger system.Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
To "secure a fair return" for the author's labor is very Lockean concept.
And make no mistake about it, that method was not considered an ethical imperative. "The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly" (H.R. Rep. No. 60-2222). "But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good" (James Madison).
Just because it's an "evil" doesn't mean it's moral to violate the right once granted. "It's evil" is not a defense to copyright infringement, legally or morally. And that "evil" is what ultimately benefits everyone.
That is the great contradiction in copyright law: we grant a temporary monopoly on expression, in order to accomplish more widespread dissemination of that expression.
We grant the temporary rights because it fosters the creation of more and better works. Access and dissemination are not the only issues in play. A person can get a copyright and then decide to lock up the work, never disseminating it to anyone. If it was only about access, then giving people the right to deny access is a silly way to accomplish that end.
On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Absolutely. The author gets the marketable right with the hope that they'll actually use it, i.e., that they'll give the public access to the work by placing it on the market. But as you pointed out (and as I think Karl and Mike are missing), if the purpose of copyright was only to give the greatest number of people access to the work, then giving authors the right to exclude the public would not be the means for accomplishing that end. Instead, the theory is that there's a balance between the amount of protection given and the amount of access the public gets. You don't want to give too much protection, or else there's not enough access, and you don't want to give too much access, because then there's not enough protection. The balance lies somewhere in the middle. That's the classical theory anyway.
On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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There is something wrong with you for being such a control freak that you felt the need (and continue to feel the need) to convince me that I should have commented in the way you think I should have commented.
Here's my comment to you now: Go fuck yourself.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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He didn't say authors have the constitutional right to copyright. He said that society, through the legislative process, have given authors the legal right to copyright. He said that that is the message embodied in the Constitution, which is true. I don't understand why you're trying to correct him when he said nothing untrue.
And it is granted for one purpose: to "promote the progress of Science" (in the case of copyright). Both Congress and the Supreme Court have made it very clear that the beneficiaries of copyright law are the public.
And what means does the Constitution say to use realize that purpose? It says to give authors exclusive rights. Yes, the beneficiaries are ultimately the public, but during the limited times copyrights are in force, the authors are the beneficiaries. You have to look at the bigger picture, the means and the ends. You're so focused on the ends--the public benefit--that you're ignoring the means, which aren't necessarily beneficial to the public.
In other words: in theory, the "ethical good" that comes from copyright is increased public access to artistic works. It is the only ethical value that copyright promotes.
The classical theory is that a balance is struck between benefiting the authors via economic rewards and benefiting the public with access. You're leaving off half by focusing only on access. Benefiting authors via the exclusive, economic rights is part of it too.
The ethical motivations for copyright have absolutely nothing to do with the "property rights" of authors. In fact, such "property rights" are theoretically viewed as a social evil, only tolerable if they result in a benefit to the public that outweighs this evil.
That's just fundamentally wrong, as the AC has demonstrated via majority Supreme Court language. Benefiting authors is part of the bargain. You can't separate it out. It's part and parcel of the utilitarian model of copyright.Sony v. Universal, 464 U.S. 417, 429 (1984).
Authors benefit first, and then when the work falls into the public domain, the public gets its end of the bargain. The ultimate aim of copyright is to benefit the public, but it reaches this aim by benefiting authors first.
It is very hard to see how "piracy," at least of the non-commercial variety, conflicts with this ethical goal. After all, non-commercial piracy is nothing other than increased public access to artworks. You know how I downloaded "Night of the Living Dead" for free? That, and that alone, is the "social good" that copyright exists to promote.
Piracy upsets the balance by not honoring the exclusive rights that are given to authors. That's not the bargain that copyright promises. The public gets it benefit later, but at first it's about the benefit to the author. Pirates take that benefit away. The balance is about more than access, it's about access balanced with the protection of authors' rights.
This is why copyright is granted to Congress, and not to authors directly, under the Constitution. As representatives of the general public, Congress is supposed to make sure that the monopoly rights that the public grants to copyright holders, work first and foremost to the public's benefit.
Authors benefit first, which is why the marketable right to exclude is given to authors. The public benefits later, after the copyright has expired. This is the basic, utilitarian theory of copyright. You're focused on the ends, but neglecting the means. It makes no sense to say that the public is supposed to benefit first. The system wouldn't give the right to exclude to authors if it was meant to first benefit the public.
At least in theory. In practice, multinational commercial rights holders have completely taken over copyright. The idea that copyright benefits the public first and foremost has been buried under a mountain of lobbying money and propaganda.
Copyright has never been about benefiting the public first. Again, if the public were meant to benefit first, you wouldn't set out to accomplish that by giving authors the right to exclude the public. That makes zero sense, and it's just not the theory.
There is no question in my mind that copyright laws, as they currently stand, impede the widespread distribution of artworks to the public, and impede the growth of the public domain. This makes our current laws unethical.
The right to exclude includes the right to prevent access. This is by design. The public benefit is realized later, after the copyright has expired. Read the Sony quote again.
On the post: Anyone Who Says Copyright Cannot Be Used For Censorship Has No Credibility
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But don't assume that just because the injunction affects protected speech there has been an actual violation of the First Amendment. The injunction is state action so there could be a violation, but there isn't necessarily one.
An example would be the injunction against hyperlinking in the Corley case: http://scholar.google.com/scholar_case?q=273+F.+3d+429&hl=en&as_sdt=2,19&case=5930508913 825375010&scilh=0
The defendant argued that the district court violated his First Amendment rights by enjoining him linking. The Second Circuit found that the injunction (and the DMCA for that matter) didn't violate the First Amendment.
On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: Anyone Who Says Copyright Cannot Be Used For Censorship Has No Credibility
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On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
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On the post: If You Were A Tree... What Kind Of IP Protection Could You Get?
There wouldn't need to be any confusion if the issue were dilution. See, e.g., Pebble Beach v. Tour 18, 936 F.Supp. 1299, 1350-54 (S.D. Tex. 1996) (finding service mark and trade dress dilution).
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