And such a review is probably not actionable under either an unjust enrichment or unfair competition claim.
But by your standards, there's no reason it shouldn't be.
You were saying that infringement can make the victim better off. I was explaining that, even if that could be proved, there would still be liability for the infringement.
And, again, "liability for the infringement" is not the same as "unjust enrichment." If the rights holder is better off, then there is no "unjust enrichment," even though there is liability for infringement.
It has never been the case that copyright is ONLY about the public good. Never. I debate you all the time, at length.
Yeah, and you've always been wrong.
Sweat of the brow, without creativity, is not protected. Copyright = sweat of the brow + creativity.
What is protected by copyright is creativity. "Sweat of the brow" has nothing to do with it. Copyright protects a doodle I did on a napkin exactly as much as a $200 million movie.
Mazer v. Stein
...agrees with me, not you. It is the "encouragement" (not "protection") "of individual effort by personal gain", as a method "to advance public welfare."
Congress agrees: "the limited monopoly [...] should be granted to authors or to inventors in order to give the public appropriate access to their work product."
You are conflating copyright's purpose with its method. Yet again.
What does the Constitution say to do? Give authors exclusive rights.
The Constitution doesn't "say to do" this. It gives Congress the option of granting authors exclusive rights, if it "promotes the progress of Science."
Yes, authors' rights and the public good are complimentary.
Not exactly. If the copyright statutes are written properly, then authors' rights and the public good are complimentary. The copyright statutes we have now are not written properly, and as a result, authors' rights damage the public good.
Trashing your competition could unjustly enrich you, I suppose, but that would probably fall under unfair competition if it were actionable at all.
I hope you realise that everyone who ever wrote a negative review of anything probably wants to beat you up for this. Just sayin'.
If I break into your house and clean your messy kitchen, I'm still a trespasser.
I know you want to believe copyright infringement is the same thing as trespassing, but it just ain't so.
Also, if you broke into my house and cleaned my kitchen, then nobody would consider that "unjust enrichment." Tresspassing laws have absolutely nothing to do with unjust enrichment.
That's not the entire purpose of copyright.
It absolutely is, and you know it. Stop being a lying, hypocricical scumbag who's afraid to debate m... oh, sorry, for a moment there I reverted to your normal mode of discourse.
It's unjust to allow an infringer to keep the profits of their infringement because they expended no time, effort, or money creating the work that they are profiting from.
This is a "sweat of the brow" argument, which we both know does not apply to copyright. If this is your definition of "unjust enrichment," then you're just proving my point that copyright infringement is not unjust enrichment.
Copyright is not just about enriching the public. It's also about authors' rights.
Absolutely false, which you know.
giving authors exclusive rights in turn benefits the public
...full stop. And how do those rights benefit the public? They "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." (Twentieth Century Music Corp. v. Aiken.)
So, exactly what I said.
This has been a part of copyright law, and the law in general, for centuries.
No, it has not. For one thing, copyright law did not exist for "centuries" before the 1909 Act. The first fedeeral copyright law was in 1790 (the purpose of which was "encouragement of learning" - not a word was spoken about "authors' rights"), which was not "centuries" before the 1909 Act. The first general copyright law, enacted by the Connecticut General Assembly, was in 1783. Before that, copyright did not exist at all in the United States. Not a whit, none of it. The Statute of Anne didn't apply in the Colonies, and publishers everywhere put out anything they liked, without ever once being convicted of "unjust enrichment" off of the works of other publishers.
For another thing, copyright did not base its statutes on "unjust enrichment" laws. Those had been around in England since the early 1600's - more than a century before copyright existed in any part of the world - but did not really take hold in the U.S. until the 1930'S, with the American Law Institute's Restatement of Restitution in 1937.
So, no. Different histories, different objectives, and entirely different timelines. None of this "has been a part of copyright law" at all, much less "for centuries."
It's when one party is enriched to the unjust detriment of another.
This is an incredibly broad definition. It would mean that trashing your competition in an advertisement would be "unjust enrichment."
The fact is, copyright law presupposes, without evidence, that the mere use of someone else's work is "unjust," and that it "enriches" the infringers "to the detriment" of the copyright holders.
That's often not true at all. The infringement may "enrich" the infringer in some way. But if the copyright holder is better off because of it, how is that "to the detriment" of the copyright holder? Why, in this case, should it be considered "unjust?"
For that matter, copyright's entire purpose is to "enrich" the general public - not commercially, but through increased access to artworks. Thus, if the public is getting enriched in this way, it's not "unjust" at all, it's copyright serving its intended purpose. How does that square with the current view of "piracy," which is the non-commercial access to works by the general public?
The answer is: it doesn't - and copyright is no longer about "unjust enrichment."
And it never was, really. The copyright monopoly was not granted to prevent "unjust enrichment," but to provide an incentive to create. The only thing that was ever "unjust" about infringement, even commercial infringement, was that it might be detrimental to the public's supply of artworks.
Yes, Karl, the materials are free. But not the movie. That's locked up with copyright.
I'm betting that they hold the copyright on the free educational materials, too. And that's kind of my point. I't just as nonsensical to say "Thanks, copyright" for selling the movie, as it is to say "Thanks, copyright" for the educational materials being free. Both are possible without copyright protections. Copyright does not equal "selling a good."
Yes, Shine Global gives away profits. What about the rest of the people involved?
Non-profits don't "give away" profits. They still use money. It's simply that they're not driven by the profit motive. Their incentive is something other than simply to make money. Just as it appears it was with the production of this documentary.
And I've known tons of people who work for non-profits. They all get paid.
Yes, they could sell it while allowing others to sell it or give it away for free. This they are not doing. They are selling it and excluding others from doing so, i.e., they are exercising their copyright rights.
The fact that they are doing it, does not make it their primary (or even secondary) incentive to create the movie. Moreover, the usual justification for that monopoly don't apply: a monopoly on post-publication copies could not fund the creation of the film. If it could, they wouldn't have needed to go to Kickstarter in the first place.
It is quite obviously an example (of many) where reliance on a post-publication monopoly as their primary business model would have totally failed. There is no reason to view this as a "copyright success story." It's a story on the how ineffectual copyright is.
Yeah, except here's the actual text of that package:
Finally, we are also writing free, downloadable companion curricula for teachers and creating an arts workshop template for community organizations that will incorporate the arts into core subjects and explore the themes and issues of the film to make it more attractive to the educational market.
So, yeah, they are "giving stuff away for free," not "locking it up with copyright."
Not to mention that the whole thing was produced by Shine Global, "a 501(c)3 non-profit film production company." So, obviously, making a profit is not the primary incentive.
Plus - and this has been pointed out to you many times already - they would be able to market, and sell, the film to the educational market even if copyright didn't exist. Just as they would be able to sell downloads if copyright didn't exist.
As you look at the details, it becomes more and more obvious that this is anything but a "copyright success story."
They aren't giving away copies for free, so your point about stuff that's out of copyright misses the mark.
When Dover sells an edition of Shakespeare's works, they aren't "giving away copies for free" either. And, historically, many works were sold without copyright protections at all (especially prior to 1976, when registration was mandatory).
In fact, if no copyright on this film existed, the filmmakers would have exactly the same right to sell copies that they do right now.
Furthermore, the goal of copyright is not to provide a business model for copyright holders. It's to provide an incentive to create new works, and make them more widely available to the public.
You know what utterly failed to do that in this case? The "copyright business model" you're espousing. If the initial funding came from a post-publication monopoly on selling copies for their business model, the film would never have been produced.
Re: Re: Re: Has anyone else looked at the Dead Kennedys website?
also mike, tell us why you are defending the exploitation of musicians for corporate profiteering?
He will, as soon as you tell us when you stopped beating your wife.
if there's no money in ad sponsored piracy, that's really funny, because you know... google is tracking 200,000 domains that don't pay artists.
Google is tracking far more than 200,000 domains that don't pay artists. For example, State Farm probably doesn't pay a dime in royalties to ASCAP. How dare they!!!
...Unless you mean they're somehow "tracking" 200,000 "pirate sites." In which case, I call bullshit.
saying that YouTube created revenue streams that didn't exist could also be said of Compact Discs, Itunes, and anything else.
Not really, because YouTube's ContentID is a completely different revenue stream than the ones you mentioned, which rely on selling copies of the music.
But even if you disagree, then so what? Are you also saying that the Compact Disc, iTunes, and "anything else" forced 12,000 musicians out of work, like East Bay Ray did? ...Wait, you probably are.
the problem is, youtube didn't create those revenue streams for artists until they got busted ripping artists off
YouTube never "got busted ripping artists off." To be sure, ContentID eased tensions between Google and rightsholders, and that's partially why they spent millions and millions of dollars developing it, even though no law says they had to. (Not a dime of those development costs was paid for by rightsholders, the fucking freetards.) But saying they only did it because they "got busted" is pure hogwash.
Uh, what? DoubleClick isn't freeware, Karl, lol. Google uses DoubleClick as a laundering tool; to provide a layer between itself and DoubleClick's myriad nefarious uses, which are legion:
More fuel on the fire for the argument that Google is very evil indeed, despite their Goebbels-esque preemptive propaganda campaign.
Okay, so let me get this straight.
Google sells a service. Once they sell that service, they don'ts know how people use that service, have no ability to control it, don't even know how others are using it, and don't profit from its use.
A vanishingly small amount of those third-party entities use their service to sell ads to "pirate sites" (or other illicit sites). None of which pays Google one dime.
Of that vanishingly small amount of third-party clients, a small minority of those third-party sales are to to "pirate sites;" the rest of the ads appear on perfectly legal sites.
Plus, those "pirate sites" are, themselves, only third-party providers of services to users, all of whom have DMCA contacts, and show no indications that they haven't followed the law. In other words, they are not engaging in "piracy," but providing the infrastructure that makes all file sharing ("piracy" or not) possible.
Still, none of the income from those sites makes its way to Google.
Yet, according to you, DoubleClick is somehow "notorious," DoubleClick is "a laundering tool," and everything that Google says is a "Goebbels-esque preemptive propaganda campaign."
Yeah, OK, then. You might want to upgrade your tinfoil hat. You can get a good price on one, if you look around on Goog... whoops, never mind.
Pure traffic is a huge component of how Google determines what to charge for advertising.
Advertising what, exactly? When people search for something like "dark knight torrent," there are no AdWords at all, and the original poster was talking about AdWords.
Moreover, Google doesn't charge by page views, but by "impressions" - that is, clickthroughs.
How many of them have DoubleClick, Karl? Hmm?
How much money does Google make off of DoubleClick when they do? Zero.
DoubleClick is a platform, used by more than just Google. When it's not used by Google, Google retains zero of the income generated from it. In their own words:
In addition to sites that participate in our network, millions of advertisers and publishers use our DoubleClick technology to manage their digital advertising, not just on our network but across the whole web. Advertisers and publishers ultimately decide how to use this technology and we cannot "see" where all these ads appear (nor do we have a revenue share).
They released that statement because of the utterly incompetent research of "Annenberg Innovation Lab," a.k.a. Jonathan Talpin - one of the many, many reasons you should not listen to anything Talpin says.
Perhaps this is just my ignorance of property law. I am mainly familiar with two cases where the phrase "equitable title" is used: real estate, and trusts. In neither case is the holder of an "equitable title" the equivalent of a beneficial owner.
In real estate, the "equitable title" is held by someone who is in the process of buying a house, but the deal hasn't gone through yet. They move into the house, holding an equitable title because they have a possessory interest in the house. The legal title is retained by the original owner until the deal is finalized, at which point the new owners have are the sole owners.
This obviously doesn't apply to most copyright cases. For example, musicians usually sign a "deal memo" specifying that they will sign with a record label - and no other record label - but no rights are transferred. During this period, what sort of "title" to the copyright does the record label have? None whatsoever. They are not a "beneficial owner" of the copyright, and have no standing to sue anyone else for copyright infringement.
After the deal goes through, the label is the legal owner of the copyright, including all "possessory" interests; that is, the right "to do or authorize" the rights that have been assigned. And even though the band is the beneficial owner, they have no "possessory" interests in the copyright whatsoever, and the legal owners can bring a copyright lawsuit against the band if they attempt to do or authorize any of the 106 rights themselves.
The other example is a trust. Suppose property owner Mabel wants to give a nest egg to little Billy, so she has Uncle Earl hold her property in a trust until Billy grows up. Mabel would be a settlor; Uncle Earl would be the trustee, who holds the legal title to the property; and little Billy would be a beneficiary, holding the equitable title.
Such a situation is just not possible with copyright law. Mabel may assign her copyright to Uncle Earl, who would be the legal title owner; but Mabel would still be the beneficial owner. Separately, through some form of contract, she could sign over her royalties to little Billy. But Billy would have absolutely no ownership interest in the copyright itself - indeed, Mabel would have no right to grant any interest to him. He would not be a beneficial owner, would not hold any kind of "equitable title," and could not sue anyone else for copyright infringement. After 35 years, the copyright would revert to Mabel (assuming she's still alive); Mabel can not specify that they "revert" to Billy.
So, perhaps the courts do use the phrase "equitable title." I'll take your word for it. If so, it is unlike the equitable titles in property law. Because the "ownership" of a copyright is strictly defined by statute - unlike property ownership or contract law - it is much more limited in scope and application.
Moreover, there's nothing that says Congress must implement copyright as a "property" right. They could choose to implement them as non-property exclusive rights - as they did for 106(a) rights. Or, they could redefine those rights such that the legal title can't be transferred at all, and the only licences that could be granted are non-exclusive licenses. (Something I would be in favor of, personally.) Or any number of other things.
Nobody's "property rights" would be infringed upon, because it is Congress - and Congress alone - that has the right to determine the scope of those rights. If they decide copyrights aren't "property," then they're not property.
Beneficial owners hold equitable title. It literally says that in the passage I quoted.
I meant that the judge in the passage you quoted used somewhat misleading language. A beneficial owner does not have an "equitable title." A beneficial owner has assigned "all rights, title, and interest" in a copyright, to someone else, in exchange for some ongoing form of payment (usually royalties). That was the very phrase used in the case you cited. The beneficial owner doesn't own the "title" to anything, having assigned it to the legal owner. In fact, the other cases that were cited don't use the phrase "equitable title" at all.
See also House Report no. 94–1476, discussing the enactment of the 1976 law: "A 'beneficial owner' for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."
Also, most courts don't think of beneficial ownership as a "trust," and the legal owner as a "trustee," because they're really not. (There can be no third-party beneficiaries, for example.) That's why the Brod court had to go to state law.
It is true that state courts have adopted numerous conventions from other statutes having to do with property law. They've had to "shoehorn" copyright into property statutes, and often use existing property case law as a guide. That's what the judge in Brod did. But even though Congress purposefully designed copyright to have property-like attributes under the statute, it's often an inexact fit. Because copyright is not property, no matter how much the statutes try to make it so.
You're completely ignoring this and just claiming what you hope to be the law without any support at all.
Okay:
Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee. Clause 9 of the 1975 Eden/Paddington agreement contemplates such an arrangement. We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf. While F.R. Civ. P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, the Copyright Law is quite specific in stating that only the "owner of an exclusive right under a copyright" may bring suit.
- Eden Toys v. Florelee
Note the distinction between plaintiffs allowed under FRCP 17(a), and copyright law. FRCP 17(a)(1) says:
(1) An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:
(A) an executor;
(B) an administrator;
(C) a guardian;
(D) a bailee;
(E) a trustee of an express trust;
(F) a party with whom or in whose name a contract has been made for another's benefit; and
(G) a party authorized by statute.
Copyright law, however, totally prohibits lawsuits "in the name of the real party in interest." "The Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf" (ABKCO v. Harrisongs). Unless the people designated in FRCP 17(1)(a) are a real party in interest - that is, either the legal owner (the one who holds the exclusive right) or the beneficial owner (the author who exchanged ongoing royalties for the exclusive right), they may not bring suit. Silvers merely follows this line of reasoning.
This makes copyright unlike "other" property claimants, like executors, administrators, guardians, bailees, trustees, or contract parties. Clear now?
When we resolve this single issue, without going off on tangents, I will gladly address whatever else you want.
Somehow, I doubt that. You'll just quote more cases that shoehorn monopoly rights into existing private property case law, and think you've won.
Legal title to copyright can be held by one, while equitable title is held by another.
I was not referring to the "equitable title" bit (which is a bit misleading, because under Federal copyright law, beneficial owners don't hold the "title" at all; only the legal owners do).
I said a possessory interest, which is different. To clarify: that "possessory interest" would be the right "to do" any of the acts under 106, and "to authorize" anyone else to do those acts.
And, as I made clear, you don't hold the title to a copyright unless you have been transferred one or more of those rights. That was the whole point of Silvers. And that is different from other forms of property (like real estate), where you can hold only the legal title, while someone else (e.g. the lessee) holds the possessory interests.
Also, pay close attention to the case you quoted. Because it had nothing to do with Federal copyright law. It had to do with New York state trust law. It was only applicable because it was one of the areas where Federal copyright law does not trump state law - areas which include "breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation."
It is not preempted by Federal copyright law because it is not an "equivalent" right; and it is not "equivalent" precisely because the state law "changes the nature of the action so that it is qualitatively different from a copyright infringement claim."
And, speaking of tangents that go nowhere, you've still failed to address my main point:
The belief that copyright is property does not admit any consideration of "balance." It only admits the belief that you own something completely, and others are trying to steal it. [...]
[W]hen talking about things like fair use, reversion rights, term expiration lengths, and so forth, [the idea that copyright is "personal property] is terrible. These things are not "regulations of," or "intrusions upon," property rights. They are conditions of granting an exclusive monopoly. [...]
There is exactly one yardstick with which to measure copyright: the degree to which it benefits the general public. Protecting authors' "property rights" does not even enter into the equation.
The point I was responding to was this: "Personal property rights don't have an expiration date." I pointed out that many property rights expire, so your point was incorrect.
Except that the property rights that lessees have don't "expire." They revert to the lessor. This is nothing like works going into the public domain.
For example, some states don't allow leases on land to be longer than 99 years.
That would be an intrusion of the government into private property rights. That may be justified - I don't doubt that it is - but again, it's nothing at all like copyright expiration, which is a precondition of the copyright monopoly existing at all.
A copyright assignment is a transfer of legal title. It is exactly like a transfer of legal title because it is in fact a transfer of legal title.
You can hold the legal title to a piece of property without having any posessory interests in that property. That's simply not true with copyright. So, no, not exactly the same.
Above you claimed: "You can't be a "beneficial owner" of personal property, post-sale." I pointed out that that is completely wrong.
Being a beneficial owner of a copyright is not the same as holding an equitable title in a piece of property.
You're now trying to make some vague argument how it's not the same as other personal property.
I'm making the claim that copyright is not personal property. It is treated like personal property in some ways under statute, but it is not personal property in any other way. Thinking of copyright as personal property - "other" personal property or not - is a fundamental mistake.
Each type of property comes with its own rationales. The rationales for the property rights over land are different than the rationales for property rights over cars.
Fundamentally, no, they are not. I admit, there are overlapping theories of property, but they apply to both cars and land, and do not apply to copyright. We have personal property because it is rivalrous. By taking it from one person, you prevent that person from using it (the moral argument); personal property is the most efficient way of allocating scarce resources (the economic argument); property arises because every individual has the right to the products of their own labor (the Lockean argument). But whatever the argument, we do not own personal property for the sole purpose of greater public use of that particular piece of property.
Unless you explain exactly what difference you're referring to and give it specific context, you're just spouting high-level stuff that doesn't say much.
I thought I made the reason very clear: "The belief that copyright is property does not admit any consideration of 'balance.' It only admits the belief that you own something completely, and others are trying to steal it."
You see this very explicitly in the Chris Dodd video. You see it all the time when copyright holders call infringement "theft." You see it in arguments for extending copyright to "forever minus a day." Or arguments against libraries loaning digital books. Or appeals to the WTO not to consider exceptions for people who make works available to the blind or disabled. Or in a hundred other places. Including your posts.
There is exactly one yardstick with which to measure copyright: the degree to which it benefits the general public. Protecting authors' "property rights" does not even enter into the equation. All that is important is whether copyright laws improve the welfare of "the world," as you put it.
I believe they do (to some degree - not the laws we have now). That's why I'm not an abolitionist. But if it turns out that the world is better served by the abolition of copyright laws, then I accept that they must be abolished. Anything else would be unadulturated greed.
p.s.: Talking to you is as terrible an experience as listening to your music is:
Darn. I guess I should try harder to make my music unlistenable.
If one cherry-picks statutes from property laws, one can find situations that are something like copyright statutes. But they are not the same as copyright statutes.
Copyright expiration may be something like the expiration of a lease, but it is not exactly the expiration of a lease. Assignment of copyright may be something like the transfer of a legal title, but it is not exactly the transfer of a legal title. Legal and beneficial ownership of a copyright may be something like the legal and equitable title to personal property, but it is not exactly the legal and equitable title in personal property. Infringement may be something like theft, but it is not exactly theft. And so on.
This because there is a fundamental difference between the rationales behind copyright and private property rights.
And not just from a legal perspective, but from an ethical, economic, or practical perspective. The differences between the two are vast, and usually incompatible.
Confusing the two is a big mistake. Especially if, like James or Chris Dodd or myself, you're not talking solely about current legal statutes, but about what those statutes should be.
Sorry, Karl, but as per usual every single thing you're saying is completely wrong. You, as always, are completely and totally fucking clueless.
We'll see, and thanks for the insult.
Sure they do. Lease an apartment for one year, and after that year is up the property rights expire.
But after that year is up, it's not the case that there are no more property rights in that apartment. Those property rights don't "expire," they revert to the original property owner. And universal expiration is not a condition of those property rights' existence.
That's not the case when copyrighted works fall into the public domain. At that point, the copyrights themselves completely vanish. And the eventual move to the public domain is a condition of those rights existing in the first place.
Of course they do. Necessity is a defense to a trespassing claim.
Not exactly. If you make a private necessity defense, you still have to pay any incurred damages to the property owner. Necessity does not mean that you utterly lose your property rights. That's not true with fair use, which is completely exempt from copyright. If a use is fair, it's not copyright "property" at all. Copyright holders have no rights in fair uses whatsoever.
All sorts of industries have special exemptions and exceptions.
These are government regulations of private property (and depending upon what they are, must pass Constitutional muster). The rights of libraries and universities to use copyrighted works, are not uses of private property. The copyright holder never had any "property right" in those uses in the first place.
Of course there are. You can sell your house subject to a reversionary right.
Which is done by deed, or contract. It is not a legal requirement for all house sales. Unlike copyright's reversion rights.
Copyright forms a part of the owner's estate, and it's heritable, alienable, etc.
It's certainly able to be inherited after the author's death. But it is not really property that can be taken in divorce cases. For example, the spouse will probably not have ownership interest in derivative works created by the author after the divorce. But, this depends upon state laws.
Huh? You can grant to another either a divided or an undivided interest in your personal property.
Such a grant would not be considered a total transfer of ownership. It may create some property interests (such as by lease), but it's not a transfer of ownership.
On the other hand, with copyright, you can assign someone else the exclusive right to distribution, but not to performance - and if you do, then you, yourself, can't distribute or perform the works (nor "sell" those rights to anyone else). And the "owner" of the performance rights would have no interest whatsoever in the distribution rights.
And, again, this type of copyright "ownership" was expressly prohibited by Federal copyright law prior to 1976 - unlike the personal property rights you mention.
Copyright can form the res of a trust, with legal title in one and equitable title in another.
Nope. Silvers v. Sony makes this explicit. Unless the "owner" of the "legal title" has been transferred the exclusive right "to do or to authorize" any of the rights in 17 USC 106, they are not any kind of copyright holder at all. They may represent the copyright holders, but they are not themselves copyright holders.
This is exactly the sort of thing I'm talking about. Thinking about copyright in terms of "property" is simply a bad fit. Copyright has been given certain property-like attributes by statute, because those attributes are the most effective for creating a marketable right.
But when talking about things like fair use, reversion rights, term expiration lengths, and so forth, it is terrible. These things are not "regulations of," or "intrusions upon," property rights. They are conditions of granting an exclusive monopoly.
I'm all for legal action against those who flagrantly flout the property rights of creators.
In general, I think we're on the same page about copyright, as I'm not an abolitionist either.
But I think it's important to debunk this point. Copyright is not a "property right." It does not exist for the same reasons as property rights (at least in the U.S.). And, under the law, it is fundamentally different from either real property or personal property.
Personal property rights don't have an expiration date. There are no "fair uses" of others' personal property. Libraries and universities aren't exempt from personal property laws. There are no reversion rights in personal property. You can't be a "beneficial owner" of personal property, post-sale. Copyrights are not considered personal property in divorce cases. And so on.
Hell, even the method of transferring copyright is nothing like transferring personal property. With copyright, each of the individual rights held by copyright can be transferred separately. That isn't the case with personal property: if you own a piece of property, then you own all the property rights. (A system, incidentally, that copyright followed up until 1976 - there could only be one copyright holder, who was called the "proprietor" of the copyright.) You can't merely hold a "title" to any of the rights; if you don't hold the actual ability to exploit or authorize the right itself, you own nothing. And so on.
Thinking of copyrights as "property" is not only wrong, it's destructive. As I'm sure you've seen on this site, there are constant wars going on to remove legal rights to use copyrighted works. Not just through term length extensions, but through attacks on fair use, removal of exemptions for libraries and universities, attempts to circumvent reversion rights (that's what the whole "work for hire" debate is about), and much more.
The one thread underlying all these attacks, is the view of copyrights as personal property, a view held (or at least espoused) most vigorously by copyright holders. To them, these exemptions are not viewed as what they are: conditions placed upon a government-granted monopoly. They are viewed as attacks on their own personal property.
The belief that copyright is property does not admit any consideration of "balance." It only admits the belief that you own something completely, and others are trying to steal it.
On the post: Kickstarter-Funded Movie Wins Oscar For Best Documentary
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
But by your standards, there's no reason it shouldn't be.
You were saying that infringement can make the victim better off. I was explaining that, even if that could be proved, there would still be liability for the infringement.
And, again, "liability for the infringement" is not the same as "unjust enrichment." If the rights holder is better off, then there is no "unjust enrichment," even though there is liability for infringement.
It has never been the case that copyright is ONLY about the public good. Never. I debate you all the time, at length.
Yeah, and you've always been wrong.
Sweat of the brow, without creativity, is not protected. Copyright = sweat of the brow + creativity.
What is protected by copyright is creativity. "Sweat of the brow" has nothing to do with it. Copyright protects a doodle I did on a napkin exactly as much as a $200 million movie.
Mazer v. Stein
...agrees with me, not you. It is the "encouragement" (not "protection") "of individual effort by personal gain", as a method "to advance public welfare."
Congress agrees: "the limited monopoly [...] should be granted to authors or to inventors in order to give the public appropriate access to their work product."
You are conflating copyright's purpose with its method. Yet again.
What does the Constitution say to do? Give authors exclusive rights.
The Constitution doesn't "say to do" this. It gives Congress the option of granting authors exclusive rights, if it "promotes the progress of Science."
Yes, authors' rights and the public good are complimentary.
Not exactly. If the copyright statutes are written properly, then authors' rights and the public good are complimentary. The copyright statutes we have now are not written properly, and as a result, authors' rights damage the public good.
Thus, you have ignorant author Terry Deary claiming that "libraries are cutting [authors'] throats and slashing their purses", or the UK Publisher's Association saying that the British Library supports "tawdry theft." Sounds like they've been listening to you.
On the post: Kickstarter-Funded Movie Wins Oscar For Best Documentary
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I hope you realise that everyone who ever wrote a negative review of anything probably wants to beat you up for this. Just sayin'.
If I break into your house and clean your messy kitchen, I'm still a trespasser.
I know you want to believe copyright infringement is the same thing as trespassing, but it just ain't so.
Also, if you broke into my house and cleaned my kitchen, then nobody would consider that "unjust enrichment." Tresspassing laws have absolutely nothing to do with unjust enrichment.
That's not the entire purpose of copyright.
It absolutely is, and you know it. Stop being a lying, hypocricical scumbag who's afraid to debate m... oh, sorry, for a moment there I reverted to your normal mode of discourse.
It's unjust to allow an infringer to keep the profits of their infringement because they expended no time, effort, or money creating the work that they are profiting from.
This is a "sweat of the brow" argument, which we both know does not apply to copyright. If this is your definition of "unjust enrichment," then you're just proving my point that copyright infringement is not unjust enrichment.
Copyright is not just about enriching the public. It's also about authors' rights.
Absolutely false, which you know.
giving authors exclusive rights in turn benefits the public
...full stop. And how do those rights benefit the public? They "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." (Twentieth Century Music Corp. v. Aiken.)
So, exactly what I said.
This has been a part of copyright law, and the law in general, for centuries.
No, it has not. For one thing, copyright law did not exist for "centuries" before the 1909 Act. The first fedeeral copyright law was in 1790 (the purpose of which was "encouragement of learning" - not a word was spoken about "authors' rights"), which was not "centuries" before the 1909 Act. The first general copyright law, enacted by the Connecticut General Assembly, was in 1783. Before that, copyright did not exist at all in the United States. Not a whit, none of it. The Statute of Anne didn't apply in the Colonies, and publishers everywhere put out anything they liked, without ever once being convicted of "unjust enrichment" off of the works of other publishers.
For another thing, copyright did not base its statutes on "unjust enrichment" laws. Those had been around in England since the early 1600's - more than a century before copyright existed in any part of the world - but did not really take hold in the U.S. until the 1930'S, with the American Law Institute's Restatement of Restitution in 1937.
So, no. Different histories, different objectives, and entirely different timelines. None of this "has been a part of copyright law" at all, much less "for centuries."
On the post: Kickstarter-Funded Movie Wins Oscar For Best Documentary
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This is an incredibly broad definition. It would mean that trashing your competition in an advertisement would be "unjust enrichment."
The fact is, copyright law presupposes, without evidence, that the mere use of someone else's work is "unjust," and that it "enriches" the infringers "to the detriment" of the copyright holders.
That's often not true at all. The infringement may "enrich" the infringer in some way. But if the copyright holder is better off because of it, how is that "to the detriment" of the copyright holder? Why, in this case, should it be considered "unjust?"
For that matter, copyright's entire purpose is to "enrich" the general public - not commercially, but through increased access to artworks. Thus, if the public is getting enriched in this way, it's not "unjust" at all, it's copyright serving its intended purpose. How does that square with the current view of "piracy," which is the non-commercial access to works by the general public?
The answer is: it doesn't - and copyright is no longer about "unjust enrichment."
And it never was, really. The copyright monopoly was not granted to prevent "unjust enrichment," but to provide an incentive to create. The only thing that was ever "unjust" about infringement, even commercial infringement, was that it might be detrimental to the public's supply of artworks.
On the post: Kickstarter-Funded Movie Wins Oscar For Best Documentary
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I'm betting that they hold the copyright on the free educational materials, too. And that's kind of my point. I't just as nonsensical to say "Thanks, copyright" for selling the movie, as it is to say "Thanks, copyright" for the educational materials being free. Both are possible without copyright protections. Copyright does not equal "selling a good."
Yes, Shine Global gives away profits. What about the rest of the people involved?
Non-profits don't "give away" profits. They still use money. It's simply that they're not driven by the profit motive. Their incentive is something other than simply to make money. Just as it appears it was with the production of this documentary.
And I've known tons of people who work for non-profits. They all get paid.
Yes, they could sell it while allowing others to sell it or give it away for free. This they are not doing. They are selling it and excluding others from doing so, i.e., they are exercising their copyright rights.
The fact that they are doing it, does not make it their primary (or even secondary) incentive to create the movie. Moreover, the usual justification for that monopoly don't apply: a monopoly on post-publication copies could not fund the creation of the film. If it could, they wouldn't have needed to go to Kickstarter in the first place.
It is quite obviously an example (of many) where reliance on a post-publication monopoly as their primary business model would have totally failed. There is no reason to view this as a "copyright success story." It's a story on the how ineffectual copyright is.
On the post: Kickstarter-Funded Movie Wins Oscar For Best Documentary
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Yeah, except here's the actual text of that package:
So, yeah, they are "giving stuff away for free," not "locking it up with copyright."
Not to mention that the whole thing was produced by Shine Global, "a 501(c)3 non-profit film production company." So, obviously, making a profit is not the primary incentive.
Plus - and this has been pointed out to you many times already - they would be able to market, and sell, the film to the educational market even if copyright didn't exist. Just as they would be able to sell downloads if copyright didn't exist.
As you look at the details, it becomes more and more obvious that this is anything but a "copyright success story."
On the post: Kickstarter-Funded Movie Wins Oscar For Best Documentary
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When Dover sells an edition of Shakespeare's works, they aren't "giving away copies for free" either. And, historically, many works were sold without copyright protections at all (especially prior to 1976, when registration was mandatory).
For example, these guys aren't "giving away copies for free" either:
https://itunes.apple.com/us/movie/night-of-the-living-dead-1968/id295364111
In fact, if no copyright on this film existed, the filmmakers would have exactly the same right to sell copies that they do right now.
Furthermore, the goal of copyright is not to provide a business model for copyright holders. It's to provide an incentive to create new works, and make them more widely available to the public.
You know what utterly failed to do that in this case? The "copyright business model" you're espousing. If the initial funding came from a post-publication monopoly on selling copies for their business model, the film would never have been produced.
So, your entire point misses the mark.
On the post: Dead Kennedys Guitarist Joins Crusade Against Ad Networks & YouTube Despite Understanding Neither
Re: Re: Re: Has anyone else looked at the Dead Kennedys website?
He will, as soon as you tell us when you stopped beating your wife.
if there's no money in ad sponsored piracy, that's really funny, because you know... google is tracking 200,000 domains that don't pay artists.
Google is tracking far more than 200,000 domains that don't pay artists. For example, State Farm probably doesn't pay a dime in royalties to ASCAP. How dare they!!!
...Unless you mean they're somehow "tracking" 200,000 "pirate sites." In which case, I call bullshit.
saying that YouTube created revenue streams that didn't exist could also be said of Compact Discs, Itunes, and anything else.
Not really, because YouTube's ContentID is a completely different revenue stream than the ones you mentioned, which rely on selling copies of the music.
But even if you disagree, then so what? Are you also saying that the Compact Disc, iTunes, and "anything else" forced 12,000 musicians out of work, like East Bay Ray did? ...Wait, you probably are.
the problem is, youtube didn't create those revenue streams for artists until they got busted ripping artists off
YouTube never "got busted ripping artists off." To be sure, ContentID eased tensions between Google and rightsholders, and that's partially why they spent millions and millions of dollars developing it, even though no law says they had to. (Not a dime of those development costs was paid for by rightsholders, the fucking freetards.) But saying they only did it because they "got busted" is pure hogwash.
On the post: Dead Kennedys Guitarist Joins Crusade Against Ad Networks & YouTube Despite Understanding Neither
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http://en.wikipedia.org/wiki/DoubleClick
More fuel on the fire for the argument that Google is very evil indeed, despite their Goebbels-esque preemptive propaganda campaign.
Okay, so let me get this straight.
Google sells a service. Once they sell that service, they don'ts know how people use that service, have no ability to control it, don't even know how others are using it, and don't profit from its use.
A vanishingly small amount of those third-party entities use their service to sell ads to "pirate sites" (or other illicit sites). None of which pays Google one dime.
Of that vanishingly small amount of third-party clients, a small minority of those third-party sales are to to "pirate sites;" the rest of the ads appear on perfectly legal sites.
Plus, those "pirate sites" are, themselves, only third-party providers of services to users, all of whom have DMCA contacts, and show no indications that they haven't followed the law. In other words, they are not engaging in "piracy," but providing the infrastructure that makes all file sharing ("piracy" or not) possible.
Still, none of the income from those sites makes its way to Google.
Yet, according to you, DoubleClick is somehow "notorious," DoubleClick is "a laundering tool," and everything that Google says is a "Goebbels-esque preemptive propaganda campaign."
Yeah, OK, then. You might want to upgrade your tinfoil hat. You can get a good price on one, if you look around on Goog... whoops, never mind.
On the post: Dead Kennedys Guitarist Joins Crusade Against Ad Networks & YouTube Despite Understanding Neither
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Advertising what, exactly? When people search for something like "dark knight torrent," there are no AdWords at all, and the original poster was talking about AdWords.
Moreover, Google doesn't charge by page views, but by "impressions" - that is, clickthroughs.
How many of them have DoubleClick, Karl? Hmm?
How much money does Google make off of DoubleClick when they do? Zero.
DoubleClick is a platform, used by more than just Google. When it's not used by Google, Google retains zero of the income generated from it. In their own words:
They released that statement because of the utterly incompetent research of "Annenberg Innovation Lab," a.k.a. Jonathan Talpin - one of the many, many reasons you should not listen to anything Talpin says.
On the post: Dead Kennedys Guitarist Joins Crusade Against Ad Networks & YouTube Despite Understanding Neither
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This would only be true if the pirate sites themselves bought keywords for those search terms. They do not.
AND they make money off the ads on the pirate sites.
None of the "pirate site" have AdSense on them.
On the post: Derek Khanna's Favorite Techdirt Posts Of The Week
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If the government put the exact same system in place on, say, the whitehouse.gov website, would that would be censorship?
No.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike
In real estate, the "equitable title" is held by someone who is in the process of buying a house, but the deal hasn't gone through yet. They move into the house, holding an equitable title because they have a possessory interest in the house. The legal title is retained by the original owner until the deal is finalized, at which point the new owners have are the sole owners.
This obviously doesn't apply to most copyright cases. For example, musicians usually sign a "deal memo" specifying that they will sign with a record label - and no other record label - but no rights are transferred. During this period, what sort of "title" to the copyright does the record label have? None whatsoever. They are not a "beneficial owner" of the copyright, and have no standing to sue anyone else for copyright infringement.
After the deal goes through, the label is the legal owner of the copyright, including all "possessory" interests; that is, the right "to do or authorize" the rights that have been assigned. And even though the band is the beneficial owner, they have no "possessory" interests in the copyright whatsoever, and the legal owners can bring a copyright lawsuit against the band if they attempt to do or authorize any of the 106 rights themselves.
The other example is a trust. Suppose property owner Mabel wants to give a nest egg to little Billy, so she has Uncle Earl hold her property in a trust until Billy grows up. Mabel would be a settlor; Uncle Earl would be the trustee, who holds the legal title to the property; and little Billy would be a beneficiary, holding the equitable title.
Such a situation is just not possible with copyright law. Mabel may assign her copyright to Uncle Earl, who would be the legal title owner; but Mabel would still be the beneficial owner. Separately, through some form of contract, she could sign over her royalties to little Billy. But Billy would have absolutely no ownership interest in the copyright itself - indeed, Mabel would have no right to grant any interest to him. He would not be a beneficial owner, would not hold any kind of "equitable title," and could not sue anyone else for copyright infringement. After 35 years, the copyright would revert to Mabel (assuming she's still alive); Mabel can not specify that they "revert" to Billy.
So, perhaps the courts do use the phrase "equitable title." I'll take your word for it. If so, it is unlike the equitable titles in property law. Because the "ownership" of a copyright is strictly defined by statute - unlike property ownership or contract law - it is much more limited in scope and application.
Moreover, there's nothing that says Congress must implement copyright as a "property" right. They could choose to implement them as non-property exclusive rights - as they did for 106(a) rights. Or, they could redefine those rights such that the legal title can't be transferred at all, and the only licences that could be granted are non-exclusive licenses. (Something I would be in favor of, personally.) Or any number of other things.
Nobody's "property rights" would be infringed upon, because it is Congress - and Congress alone - that has the right to determine the scope of those rights. If they decide copyrights aren't "property," then they're not property.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike
I meant that the judge in the passage you quoted used somewhat misleading language. A beneficial owner does not have an "equitable title." A beneficial owner has assigned "all rights, title, and interest" in a copyright, to someone else, in exchange for some ongoing form of payment (usually royalties). That was the very phrase used in the case you cited. The beneficial owner doesn't own the "title" to anything, having assigned it to the legal owner. In fact, the other cases that were cited don't use the phrase "equitable title" at all.
See also House Report no. 94–1476, discussing the enactment of the 1976 law: "A 'beneficial owner' for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."
Also, most courts don't think of beneficial ownership as a "trust," and the legal owner as a "trustee," because they're really not. (There can be no third-party beneficiaries, for example.) That's why the Brod court had to go to state law.
It is true that state courts have adopted numerous conventions from other statutes having to do with property law. They've had to "shoehorn" copyright into property statutes, and often use existing property case law as a guide. That's what the judge in Brod did. But even though Congress purposefully designed copyright to have property-like attributes under the statute, it's often an inexact fit. Because copyright is not property, no matter how much the statutes try to make it so.
You're completely ignoring this and just claiming what you hope to be the law without any support at all.
Okay:
- Eden Toys v. Florelee
Note the distinction between plaintiffs allowed under FRCP 17(a), and copyright law. FRCP 17(a)(1) says:
Copyright law, however, totally prohibits lawsuits "in the name of the real party in interest." "The Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf" (ABKCO v. Harrisongs). Unless the people designated in FRCP 17(1)(a) are a real party in interest - that is, either the legal owner (the one who holds the exclusive right) or the beneficial owner (the author who exchanged ongoing royalties for the exclusive right), they may not bring suit. Silvers merely follows this line of reasoning.
This makes copyright unlike "other" property claimants, like executors, administrators, guardians, bailees, trustees, or contract parties. Clear now?
When we resolve this single issue, without going off on tangents, I will gladly address whatever else you want.
Somehow, I doubt that. You'll just quote more cases that shoehorn monopoly rights into existing private property case law, and think you've won.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike
I was not referring to the "equitable title" bit (which is a bit misleading, because under Federal copyright law, beneficial owners don't hold the "title" at all; only the legal owners do).
I said a possessory interest, which is different. To clarify: that "possessory interest" would be the right "to do" any of the acts under 106, and "to authorize" anyone else to do those acts.
And, as I made clear, you don't hold the title to a copyright unless you have been transferred one or more of those rights. That was the whole point of Silvers. And that is different from other forms of property (like real estate), where you can hold only the legal title, while someone else (e.g. the lessee) holds the possessory interests.
Also, pay close attention to the case you quoted. Because it had nothing to do with Federal copyright law. It had to do with New York state trust law. It was only applicable because it was one of the areas where Federal copyright law does not trump state law - areas which include "breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation."
It is not preempted by Federal copyright law because it is not an "equivalent" right; and it is not "equivalent" precisely because the state law "changes the nature of the action so that it is qualitatively different from a copyright infringement claim."
And, speaking of tangents that go nowhere, you've still failed to address my main point:
The belief that copyright is property does not admit any consideration of "balance." It only admits the belief that you own something completely, and others are trying to steal it. [...]
[W]hen talking about things like fair use, reversion rights, term expiration lengths, and so forth, [the idea that copyright is "personal property] is terrible. These things are not "regulations of," or "intrusions upon," property rights. They are conditions of granting an exclusive monopoly. [...]
There is exactly one yardstick with which to measure copyright: the degree to which it benefits the general public. Protecting authors' "property rights" does not even enter into the equation.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Re: Re: Radical Mike
Except that the property rights that lessees have don't "expire." They revert to the lessor. This is nothing like works going into the public domain.
For example, some states don't allow leases on land to be longer than 99 years.
That would be an intrusion of the government into private property rights. That may be justified - I don't doubt that it is - but again, it's nothing at all like copyright expiration, which is a precondition of the copyright monopoly existing at all.
A copyright assignment is a transfer of legal title. It is exactly like a transfer of legal title because it is in fact a transfer of legal title.
You can hold the legal title to a piece of property without having any posessory interests in that property. That's simply not true with copyright. So, no, not exactly the same.
Above you claimed: "You can't be a "beneficial owner" of personal property, post-sale." I pointed out that that is completely wrong.
Being a beneficial owner of a copyright is not the same as holding an equitable title in a piece of property.
You're now trying to make some vague argument how it's not the same as other personal property.
I'm making the claim that copyright is not personal property. It is treated like personal property in some ways under statute, but it is not personal property in any other way. Thinking of copyright as personal property - "other" personal property or not - is a fundamental mistake.
Each type of property comes with its own rationales. The rationales for the property rights over land are different than the rationales for property rights over cars.
Fundamentally, no, they are not. I admit, there are overlapping theories of property, but they apply to both cars and land, and do not apply to copyright. We have personal property because it is rivalrous. By taking it from one person, you prevent that person from using it (the moral argument); personal property is the most efficient way of allocating scarce resources (the economic argument); property arises because every individual has the right to the products of their own labor (the Lockean argument). But whatever the argument, we do not own personal property for the sole purpose of greater public use of that particular piece of property.
Unless you explain exactly what difference you're referring to and give it specific context, you're just spouting high-level stuff that doesn't say much.
I thought I made the reason very clear: "The belief that copyright is property does not admit any consideration of 'balance.' It only admits the belief that you own something completely, and others are trying to steal it."
You see this very explicitly in the Chris Dodd video. You see it all the time when copyright holders call infringement "theft." You see it in arguments for extending copyright to "forever minus a day." Or arguments against libraries loaning digital books. Or appeals to the WTO not to consider exceptions for people who make works available to the blind or disabled. Or in a hundred other places. Including your posts.
There is exactly one yardstick with which to measure copyright: the degree to which it benefits the general public. Protecting authors' "property rights" does not even enter into the equation. All that is important is whether copyright laws improve the welfare of "the world," as you put it.
I believe they do (to some degree - not the laws we have now). That's why I'm not an abolitionist. But if it turns out that the world is better served by the abolition of copyright laws, then I accept that they must be abolished. Anything else would be unadulturated greed.
p.s.:
Talking to you is as terrible an experience as listening to your music is:
Darn. I guess I should try harder to make my music unlistenable.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Re: Radical Mike
If one cherry-picks statutes from property laws, one can find situations that are something like copyright statutes. But they are not the same as copyright statutes.
Copyright expiration may be something like the expiration of a lease, but it is not exactly the expiration of a lease. Assignment of copyright may be something like the transfer of a legal title, but it is not exactly the transfer of a legal title. Legal and beneficial ownership of a copyright may be something like the legal and equitable title to personal property, but it is not exactly the legal and equitable title in personal property. Infringement may be something like theft, but it is not exactly theft. And so on.
This because there is a fundamental difference between the rationales behind copyright and private property rights.
And not just from a legal perspective, but from an ethical, economic, or practical perspective. The differences between the two are vast, and usually incompatible.
Confusing the two is a big mistake. Especially if, like James or Chris Dodd or myself, you're not talking solely about current legal statutes, but about what those statutes should be.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Re: Re: Radical Mike
We'll see, and thanks for the insult.
Sure they do. Lease an apartment for one year, and after that year is up the property rights expire.
But after that year is up, it's not the case that there are no more property rights in that apartment. Those property rights don't "expire," they revert to the original property owner. And universal expiration is not a condition of those property rights' existence.
That's not the case when copyrighted works fall into the public domain. At that point, the copyrights themselves completely vanish. And the eventual move to the public domain is a condition of those rights existing in the first place.
Of course they do. Necessity is a defense to a trespassing claim.
Not exactly. If you make a private necessity defense, you still have to pay any incurred damages to the property owner. Necessity does not mean that you utterly lose your property rights. That's not true with fair use, which is completely exempt from copyright. If a use is fair, it's not copyright "property" at all. Copyright holders have no rights in fair uses whatsoever.
All sorts of industries have special exemptions and exceptions.
These are government regulations of private property (and depending upon what they are, must pass Constitutional muster). The rights of libraries and universities to use copyrighted works, are not uses of private property. The copyright holder never had any "property right" in those uses in the first place.
Of course there are. You can sell your house subject to a reversionary right.
Which is done by deed, or contract. It is not a legal requirement for all house sales. Unlike copyright's reversion rights.
Copyright forms a part of the owner's estate, and it's heritable, alienable, etc.
It's certainly able to be inherited after the author's death. But it is not really property that can be taken in divorce cases. For example, the spouse will probably not have ownership interest in derivative works created by the author after the divorce. But, this depends upon state laws.
Huh? You can grant to another either a divided or an undivided interest in your personal property.
Such a grant would not be considered a total transfer of ownership. It may create some property interests (such as by lease), but it's not a transfer of ownership.
On the other hand, with copyright, you can assign someone else the exclusive right to distribution, but not to performance - and if you do, then you, yourself, can't distribute or perform the works (nor "sell" those rights to anyone else). And the "owner" of the performance rights would have no interest whatsoever in the distribution rights.
And, again, this type of copyright "ownership" was expressly prohibited by Federal copyright law prior to 1976 - unlike the personal property rights you mention.
Copyright can form the res of a trust, with legal title in one and equitable title in another.
Nope. Silvers v. Sony makes this explicit. Unless the "owner" of the "legal title" has been transferred the exclusive right "to do or to authorize" any of the rights in 17 USC 106, they are not any kind of copyright holder at all. They may represent the copyright holders, but they are not themselves copyright holders.
This is exactly the sort of thing I'm talking about. Thinking about copyright in terms of "property" is simply a bad fit. Copyright has been given certain property-like attributes by statute, because those attributes are the most effective for creating a marketable right.
But when talking about things like fair use, reversion rights, term expiration lengths, and so forth, it is terrible. These things are not "regulations of," or "intrusions upon," property rights. They are conditions of granting an exclusive monopoly.
On the post: Chris Dodd Sounding Like A Broken Recording Industry
Re: Re: Re: Radical Mike
In general, I think we're on the same page about copyright, as I'm not an abolitionist either.
But I think it's important to debunk this point. Copyright is not a "property right." It does not exist for the same reasons as property rights (at least in the U.S.). And, under the law, it is fundamentally different from either real property or personal property.
Personal property rights don't have an expiration date. There are no "fair uses" of others' personal property. Libraries and universities aren't exempt from personal property laws. There are no reversion rights in personal property. You can't be a "beneficial owner" of personal property, post-sale. Copyrights are not considered personal property in divorce cases. And so on.
Hell, even the method of transferring copyright is nothing like transferring personal property. With copyright, each of the individual rights held by copyright can be transferred separately. That isn't the case with personal property: if you own a piece of property, then you own all the property rights. (A system, incidentally, that copyright followed up until 1976 - there could only be one copyright holder, who was called the "proprietor" of the copyright.) You can't merely hold a "title" to any of the rights; if you don't hold the actual ability to exploit or authorize the right itself, you own nothing. And so on.
Thinking of copyrights as "property" is not only wrong, it's destructive. As I'm sure you've seen on this site, there are constant wars going on to remove legal rights to use copyrighted works. Not just through term length extensions, but through attacks on fair use, removal of exemptions for libraries and universities, attempts to circumvent reversion rights (that's what the whole "work for hire" debate is about), and much more.
The one thread underlying all these attacks, is the view of copyrights as personal property, a view held (or at least espoused) most vigorously by copyright holders. To them, these exemptions are not viewed as what they are: conditions placed upon a government-granted monopoly. They are viewed as attacks on their own personal property.
The belief that copyright is property does not admit any consideration of "balance." It only admits the belief that you own something completely, and others are trying to steal it.
On the post: Chubby Checker Sues Two Companies For $500 Million Over Wang-Measuring App Downloaded 84 Times
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On the post: Chubby Checker Sues Two Companies For $500 Million Over Wang-Measuring App Downloaded 84 Times
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I disagree completely. Why, if I had a son, I would never let anyone -
...oh, "circumspection." Never mind.
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