Your history of posts tell the story, and since you agree with Mike, just why do you keep challenging him on stuff you agree with?
I usually don't agree with Mike. I do challenge him frequently on the substance of his posts. But, sadly, Mike can't/won't defend what he writes, and he won't ever take an explicit position on IP. Hence my username. I'm "unimpressed and unconvinced" with Mike quite often.
It's pretty hard to take you seriously with such a sensationalist mantel though. Do you want to be an effective commenter, or do you just want to shout at the hills all day? Do you want to actually change peoples' minds and improve things or do you just want to hear yourself talk?
I expect my comments to be judged substantively and on the merits. I'm sure some people can't get past the avatar. I'm probably not interested in what those people have to say anyway.
People may reconsider taking such pictures if they think there is a possibility that they will be made public. People are more likely to create such pornographic works if they can be assured that it can NOT be placed on revenge porn sites, or otherwise publicly reproduced.
I was reading Mike's question as being about how does it incentivize the copyright owner to create a work that already exists--and that obviously makes no sense. Your read is probably better, and I agree that by letting people know they can control the uses of their photographs, this would incentivize them to take photographs. But that whole line of thinking turns on the notion that copyright is *only* about incentives to produce. I don't think that's true, hence automatic copyright that subsists whether the author is incentivized by the rights or not.
You have to actually own the copyright to exercise it. If you don't, then it isn't a copyright issue.
But then, your paymasters would not pay you if you didn't toe the copyright maximalists line of perverted interpretation. Go get your check.
I don't have "paymasters" who pay me to post on TD. Give me a break. I was referring to Mike's question about revenge porn. If the person sending the takedown notice owns the copyright, then that's an owner exercising their exclusive rights in a proper way, IMO. If they don't own the rights, then it's abuse and I agree with Mike.
But can anyone explain what using copyright to takedown revenge porn has to do with promoting the creation of new works?
The takedown notices are sent *after* the work has been created, so obviously it's not about incentivizing the creation of a new work. Your question makes no sense. It's like asking why anyone would sue for infringement of a work that's already in existence. Copyright isn't only about incentivizing new works, full stop. It's also about the control a copyright owner has in a work once it's been created. One would think you'd understand this simple point.
But it's quite clear that copyright in these cases is being used for things that have nothing to actually do with copyright. If we want our public policy to work properly, part of that has to involve making sure that we don't twist and turn laws to cover things they should not.
If the copyright owner has exclusive rights to distribution and reproduction, then enforcing those rights has everything "to actually do with copyright." If someone claims rights they don't have, then I agree with you. But you could say that about anyone claiming any right they don't actually have.
But what's really happening here is that people are recognizing a tool that has been effectively blessed as a "legal" way to get around the First Amendment and use the law to censor content they wish to suppress. People can argue over whether or not it's appropriate to suppress that material, but everyone should at least be willing to admit that copyright should be the wrong tool for this sort of thing no matter what.
So you think everyone should agree with you? I don't. If the content being suppressed is copyrighted, and the use in question is not protected by the First Amendment, then I see nothing wrong with using copyright to control the unwanted and infringing use of the content in question. Those exclusive rights do just that--they give the copyright owner the right to exclude others from making use the work.
It's also possible that all patents are bad. Since patents (and IP in general) are a government granted privilege and they are known to cause economic harm (monopolies are known to cause economic harm) then the burden is not on Mike or patent critics or others to provide patent supporters with support for patents or any particular kind of patents or with examples or criteria of what constitutes a good patent. It's for patent supporters to provide evidence and examples and criteria of what constitutes a good patent. The patent supporters are trying to shift the burden here. They want critics and others to support their position. This is silly.
I think the burden is on the skeptics who want to change the status quo. If patent rights are so onerous and terrible, why has the U.S. thrived for more than two centuries under them?
An authors copyright, extending beyond the decision to publish, is an invention in the Stature of Anne, where it was a transferable, time limited right given to an author, with the clock starting when it was decided to publish.
With this history there is no grounds for the Lords to hold that perpetual copyright was an authors right. The publishers had a legally granted perpetual right, which was legally abolished, but the author never had any such rights.
So, correct me if I'm wrong, but your point is that you don't deny that the Lords in Donaldson held that there was perpetual common law copyright, but you just think they were wrong with that holding. If that's right, then you agree with me that Mike's position to the contrary about the holding of Donaldson is wrong.
I disagree. He's anti bad IP law. And things that harm the economy, either through stifling innovation (via overly broad patents) or for harming srtists' long-term creatvity (those artists who rely on decades-old IP in order to live off of residuals).
I think he plays word games by saying that he's anti-bad IP, but then he won't say whether he thinks there's any such thing as good IP. If he doesn't think any IP is good IP, then being anti-bad IP is the same thing as being anti-IP. I'm curious if Mike supports *any* exclusive rights for authors or inventors, and if so, why. It seems clear to me that he goes out of his way to avoid being nailed down to a particular view. I assume it's because he wants to be able to deny being anti-IP when challenged.
I've detailed my positions many times here. What, might I ask, are yours?
That's an open-ended question, but generally I subscribe to a natural rights foundation for IP rights. I think authors and inventors have a moral claim, under natural law, to the fruits of their physical and mental labors. I think utilitarianism is useful for delineating those rights, but I don't think it provides an adequate justificatory foundation. I'm happy to go into more detail if you tell me what sort of answer you're looking for.
Go and read your history of copyright. Under the original censorship rights held by the Stationers company, a publisher held the the license to publish a work in perpetuity. After that right had been abolished, the Stationers made several attempts to get a replacement copyright for themselves as publishers which failed, and they only succeeded when they came up with the idea of copyright, beyond first publication, for authors. That is prior to the Statute of Anne, Authors had the right of first publication, and also of attribution. The right of first publication only became of value to them after the Invention of the printing press, as those printers needed manuscripts to keep the presses going.
I'm not sure how that applies to what we're talking about, which is whether the Lords in Donaldson held that there was perpetual copyright under the common law. In the post linked to above, Mike repeated the claim that Donaldson rejected the existence of perpetual common law copyright. I'm arguing that he's wrong.
I confess that I'm having a hard time parsing the original. The interpretation you chose might be correct, and mine might be incorrect, but I can't say for sure. This sucks.
Yeah, the seriatim opinions of the Lords in Donaldson are difficult to parse. It's one of those cases that I read once, and I have little desire to read it again. Wheaton is in the same boat for me. Donaldson followed Millar in holding that there is a common law right of first publication and a common law copyright after publication. Where they differ, though, is over whether the Statute of Anne abrogated the post-publication common law copyright. Millar said the common law copyright continues after the statutory term ends, and Donaldson said it doesn't.
So, for example, if X had an unpublished manuscript that he loaned to his friend Y, Y could not then publish the manuscript because of X's common law right of first publication. That's true under Millar and Donaldson. Say instead that X published the manuscript and registered the copyright under the formalities of the Statute of Anne. Once that limited term expired, under Millar, X still had his common law copyright which was perpetual. However, under Donaldson, X had no copyright protection, statutory or common law, after the limited statutory term expired.
Ronan Deazley is the expert to read if you're interested in this stuff. While what I recited above is the common understanding of Millar and Donaldson, Deazley sheds some doubt on that understanding by looking at other cases, like Jefferys v. Boosey. It's been a couple years since I've looked at his stuff, though, so I don't remember the details of Deazley's arguments.
Your 'Just one simple question' is nothing of the sort, because if, in a fit of forgetfulness Mike did happen to answer your questions, you'd just ignore the answers and rephrase your question, trying to get him to answer them 'correctly' according to you.
I'm well aware of the excuses Mike pulls out for why he can't simply tell us whether he thinks there should be any copyrights or patents and what those rights should look like. I'm glad you're not pretending, as others have, that he's already made his position clear. I'd then have to ask you the same thing I ask those people, and that's what his answers are. Don't you think it's a bit weird that he's so opinionated about IP, yet he refuses to just give us a definitive account of what his position on IP actually is? I do. And I think it's because he simply doesn't want to admit explicitly that he's anti-IP. But I disagree that I'm looking for the "correct" answer. I'm just looking for his true answer. I just want him to state concretely what his views on IP are. And the amazing thing is how incredibly mad he gets when someone asks. Ask him yourself. He won't answer.
It is also possible that offering patents on software is a really bad idea. There is plenty of evidence in support of this.
No doubt. I think there's good arguments for and against software patents. I'm wondering if Mike thinks there should be any software patents, or for that matter, any patents at all.
"The decision held that authors, according to common law, had the exclusive right to the first publication for perpetuity, but the right was annulled once the work was published." From this site: http://www.copyrighthistory.com/donaldson.html
In other words, artists can choose, at their own discretion, to publish or to not publish, but once they do publish, they have no right, or at least no common-law right, to prevent others from republishing.
Yes, once a work was published, the right of first publication vanished. But that's a separate issue than whether there was perpetual common law copyright (before it was abrogated by the Statute of Anne), and that's what I was referring to. See, for example:
The judges determined that the common law recognized a right of first publication (see Donaldson v. Beckett, 4 Burr at 2417 [vote was 8–3]; cf. Patterson, Copyright in Historical Perspective, at 175 [vote was 10–1] ) and that the common-law copyright protection extended beyond first publication into perpetuity (see Donaldson v. Beckett, 4 Burr at 2417 [vote was 7–4] ).
Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 549 (2005).
There is some debate though about what the actual holding was since they didn't report opinions like we do now. That's why different scholars come up with different vote tallies.
So you think that all patents should just be granted and we should just bow down and grant every single request made by the copyright industry?
If anyone is damaging innovation and industry, it is people like you. That is; people who only see black and white with no other option and who somehow thinks that "our way or the highway" is a service.
I suggest that Mike is anti-IP, and you assume that I think all patents and all requests by the copyright industry should be granted? It seems you're the one who sees things in black in white.
You would think that if Techdirt were anti-IP they would stop bringing up actual working, viable alternatives and reasons to keep IP.
What I see in Techdirt, is someone who just wants a lot less 'stick' and more 'carrot' for the ones that matter in IP: the consumers.
Where has Techdirt discussed these "reasons to keep IP"?
So you remind us how five years ago you were whining about "crazy" and "ridiculous" patents and "awful" copyrights that "kill" innovation, yet you wonder how anyone can dare think that you're anti-IP? LOL! I guess if you never explicitly say "I'm anti-IP," no one will ever figure it out, right?
And I love the link the article that "explains" why copyright is not property. Therein, you repeat the claim that "in Donaldson v. Beckett, . . . the English Lords rejected just as forcefully the claim that authors had perpetual copyright under the common law of England."
If you actually look at that opinion, you'll see that one of the questions posed was this: "Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?" And you'll also see that a majority of the Lords answered in the affirmative. Woops!
I recommend you read the interview with Mark Lemley that I linked to, but the idea is simply that 101 is too coarse of a filter to weed out bad patents since you likely end up invalidating perfectly valid patents as well. Mike's position seems to be that "software patent = bad," but I think that's a pretty facile view. Not all "software patents" are abstract ideas where the patentee says "do it on a computer." Lots of perfectly valid innovations use software, and it's common knowledge that many things done in software can be done in hardware. There certainly are "bad" patents that involve software, but the idea is that other doctrines such as obviousness or indefiniteness might be better tools for invalidating them.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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Seems legit. Oh, wait...
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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Your history of posts tell the story, and since you agree with Mike, just why do you keep challenging him on stuff you agree with?
I usually don't agree with Mike. I do challenge him frequently on the substance of his posts. But, sadly, Mike can't/won't defend what he writes, and he won't ever take an explicit position on IP. Hence my username. I'm "unimpressed and unconvinced" with Mike quite often.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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I expect my comments to be judged substantively and on the merits. I'm sure some people can't get past the avatar. I'm probably not interested in what those people have to say anyway.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
Re: It may actually make sense
I was reading Mike's question as being about how does it incentivize the copyright owner to create a work that already exists--and that obviously makes no sense. Your read is probably better, and I agree that by letting people know they can control the uses of their photographs, this would incentivize them to take photographs. But that whole line of thinking turns on the notion that copyright is *only* about incentives to produce. I don't think that's true, hence automatic copyright that subsists whether the author is incentivized by the rights or not.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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I'm an individual who posts what he honestly believes. But thanks for the non-substantive non-reply.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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What burden of proof? It's a takedown notice, not a lawsuit. I don't see how it's unconstitutional. Could you explain?
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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You have to actually own the copyright to exercise it. If you don't, then it isn't a copyright issue.
But then, your paymasters would not pay you if you didn't toe the copyright maximalists line of perverted interpretation. Go get your check.
I don't have "paymasters" who pay me to post on TD. Give me a break. I was referring to Mike's question about revenge porn. If the person sending the takedown notice owns the copyright, then that's an owner exercising their exclusive rights in a proper way, IMO. If they don't own the rights, then it's abuse and I agree with Mike.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
The takedown notices are sent *after* the work has been created, so obviously it's not about incentivizing the creation of a new work. Your question makes no sense. It's like asking why anyone would sue for infringement of a work that's already in existence. Copyright isn't only about incentivizing new works, full stop. It's also about the control a copyright owner has in a work once it's been created. One would think you'd understand this simple point.
But it's quite clear that copyright in these cases is being used for things that have nothing to actually do with copyright. If we want our public policy to work properly, part of that has to involve making sure that we don't twist and turn laws to cover things they should not.
If the copyright owner has exclusive rights to distribution and reproduction, then enforcing those rights has everything "to actually do with copyright." If someone claims rights they don't have, then I agree with you. But you could say that about anyone claiming any right they don't actually have.
But what's really happening here is that people are recognizing a tool that has been effectively blessed as a "legal" way to get around the First Amendment and use the law to censor content they wish to suppress. People can argue over whether or not it's appropriate to suppress that material, but everyone should at least be willing to admit that copyright should be the wrong tool for this sort of thing no matter what.
So you think everyone should agree with you? I don't. If the content being suppressed is copyrighted, and the use in question is not protected by the First Amendment, then I see nothing wrong with using copyright to control the unwanted and infringing use of the content in question. Those exclusive rights do just that--they give the copyright owner the right to exclude others from making use the work.
On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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I think the burden is on the skeptics who want to change the status quo. If patent rights are so onerous and terrible, why has the U.S. thrived for more than two centuries under them?
On the post: This Week In Techdirt History
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With this history there is no grounds for the Lords to hold that perpetual copyright was an authors right. The publishers had a legally granted perpetual right, which was legally abolished, but the author never had any such rights.
So, correct me if I'm wrong, but your point is that you don't deny that the Lords in Donaldson held that there was perpetual common law copyright, but you just think they were wrong with that holding. If that's right, then you agree with me that Mike's position to the contrary about the holding of Donaldson is wrong.
On the post: This Week In Techdirt History
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I think he plays word games by saying that he's anti-bad IP, but then he won't say whether he thinks there's any such thing as good IP. If he doesn't think any IP is good IP, then being anti-bad IP is the same thing as being anti-IP. I'm curious if Mike supports *any* exclusive rights for authors or inventors, and if so, why. It seems clear to me that he goes out of his way to avoid being nailed down to a particular view. I assume it's because he wants to be able to deny being anti-IP when challenged.
I've detailed my positions many times here. What, might I ask, are yours?
That's an open-ended question, but generally I subscribe to a natural rights foundation for IP rights. I think authors and inventors have a moral claim, under natural law, to the fruits of their physical and mental labors. I think utilitarianism is useful for delineating those rights, but I don't think it provides an adequate justificatory foundation. I'm happy to go into more detail if you tell me what sort of answer you're looking for.
On the post: This Week In Techdirt History
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That is prior to the Statute of Anne, Authors had the right of first publication, and also of attribution. The right of first publication only became of value to them after the Invention of the printing press, as those printers needed manuscripts to keep the presses going.
I'm not sure how that applies to what we're talking about, which is whether the Lords in Donaldson held that there was perpetual copyright under the common law. In the post linked to above, Mike repeated the claim that Donaldson rejected the existence of perpetual common law copyright. I'm arguing that he's wrong.
On the post: This Week In Techdirt History
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Yeah, the seriatim opinions of the Lords in Donaldson are difficult to parse. It's one of those cases that I read once, and I have little desire to read it again. Wheaton is in the same boat for me. Donaldson followed Millar in holding that there is a common law right of first publication and a common law copyright after publication. Where they differ, though, is over whether the Statute of Anne abrogated the post-publication common law copyright. Millar said the common law copyright continues after the statutory term ends, and Donaldson said it doesn't.
So, for example, if X had an unpublished manuscript that he loaned to his friend Y, Y could not then publish the manuscript because of X's common law right of first publication. That's true under Millar and Donaldson. Say instead that X published the manuscript and registered the copyright under the formalities of the Statute of Anne. Once that limited term expired, under Millar, X still had his common law copyright which was perpetual. However, under Donaldson, X had no copyright protection, statutory or common law, after the limited statutory term expired.
Ronan Deazley is the expert to read if you're interested in this stuff. While what I recited above is the common understanding of Millar and Donaldson, Deazley sheds some doubt on that understanding by looking at other cases, like Jefferys v. Boosey. It's been a couple years since I've looked at his stuff, though, so I don't remember the details of Deazley's arguments.
On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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I'm well aware of the excuses Mike pulls out for why he can't simply tell us whether he thinks there should be any copyrights or patents and what those rights should look like. I'm glad you're not pretending, as others have, that he's already made his position clear. I'd then have to ask you the same thing I ask those people, and that's what his answers are. Don't you think it's a bit weird that he's so opinionated about IP, yet he refuses to just give us a definitive account of what his position on IP actually is? I do. And I think it's because he simply doesn't want to admit explicitly that he's anti-IP. But I disagree that I'm looking for the "correct" answer. I'm just looking for his true answer. I just want him to state concretely what his views on IP are. And the amazing thing is how incredibly mad he gets when someone asks. Ask him yourself. He won't answer.
On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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No doubt. I think there's good arguments for and against software patents. I'm wondering if Mike thinks there should be any software patents, or for that matter, any patents at all.
On the post: This Week In Techdirt History
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"The decision held that authors, according to common law, had the exclusive right to the first publication for perpetuity, but the right was annulled once the work was published." From this site:
http://www.copyrighthistory.com/donaldson.html
In other words, artists can choose, at their own discretion, to publish or to not publish, but once they do publish, they have no right, or at least no common-law right, to prevent others from republishing.
Yes, once a work was published, the right of first publication vanished. But that's a separate issue than whether there was perpetual common law copyright (before it was abrogated by the Statute of Anne), and that's what I was referring to. See, for example:Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 549 (2005).
There is some debate though about what the actual holding was since they didn't report opinions like we do now. That's why different scholars come up with different vote tallies.
On the post: This Week In Techdirt History
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If anyone is damaging innovation and industry, it is people like you. That is; people who only see black and white with no other option and who somehow thinks that "our way or the highway" is a service.
I suggest that Mike is anti-IP, and you assume that I think all patents and all requests by the copyright industry should be granted? It seems you're the one who sees things in black in white.
You would think that if Techdirt were anti-IP they would stop bringing up actual working, viable alternatives and reasons to keep IP.
What I see in Techdirt, is someone who just wants a lot less 'stick' and more 'carrot' for the ones that matter in IP: the consumers.
Where has Techdirt discussed these "reasons to keep IP"?
On the post: This Week In Techdirt History
And I love the link the article that "explains" why copyright is not property. Therein, you repeat the claim that "in Donaldson v. Beckett, . . . the English Lords rejected just as forcefully the claim that authors had perpetual copyright under the common law of England."
If you actually look at that opinion, you'll see that one of the questions posed was this: "Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?" And you'll also see that a majority of the Lords answered in the affirmative. Woops!
Journalism!
On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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I recommend you read the interview with Mark Lemley that I linked to, but the idea is simply that 101 is too coarse of a filter to weed out bad patents since you likely end up invalidating perfectly valid patents as well. Mike's position seems to be that "software patent = bad," but I think that's a pretty facile view. Not all "software patents" are abstract ideas where the patentee says "do it on a computer." Lots of perfectly valid innovations use software, and it's common knowledge that many things done in software can be done in hardware. There certainly are "bad" patents that involve software, but the idea is that other doctrines such as obviousness or indefiniteness might be better tools for invalidating them.
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