I'm sure Mike Masnick phoned Bob Dylan and asked him why he agreed to (or even requested) this release of *his* music. That *he* has the copyright on.
It would shock me if Dylan was even informed before the record was released.
That's because he almost certainly does not hold the copyright on these recordings. Under nearly every label contract (and especially those from the 60's), recording artists were required to assign the copyright to the label.
He may still hold the copyright on the songs themselves - assuming they're not covers, which many of Dylan's songs were at the time. But even if he does, the label (nor anyone else) is not required to get permission or consult him before releasing the disc. All you have to do is pay the statutory royalty rates, and Bob's your uncle. (See what I did there?)
Oh, and there's no question that the limited release will simply encourage piracy. If you believe those that hold this opinion are simply "piracy apologists," then I guess CNN Money are "piracy apologists" too:
By releasing just 100 copies of a CD containing unreleased early material recorded by Bob Dylan, Sony Music is practically inviting pirates to download the album.
- Sony Music's Bob Dylan copyright disaster
Unfortunately, a calculated attempt to 'stir things up' saw the ship run full-bore onto the nearest Filipino beach, launching itself over a scrub-covered mound and unceremoniously drop its entire load directly between the two peaks that book-ended Manila. Obviously it was a huge mess and those at the receiving end were none too pleased.
In the interests of fairness, I have to point one thing out.
The Golan decision did not deal at all with works that entered the public domain. They dealt with works that were never under copyright in the first place.
This is how they got around the "limited times" argument: it didn't violate the "limited times" part, because there were no "times" in the first place.
The Court probably had no choice but to rule in this manner. If putting already-published works under copyright was unconstitutional, then a whole slew of copyright laws would have been unconstitutional.
That doesn't mean that the ruling isn't a bad one. The fact that the laws were retroactive is especially troubling. Generally speaking, ex post facto laws are unconstitutional under Article 1, Section 9. I have no idea how the Golan court got around that.
Nonetheless, the Golan decision did not write Congress a blank check to take whatever it wanted out of the public domain. It is certainly a step in that direction, but that ruling has yet to be made.
The lending to you is what makes me the contributory infringer. I have done no action other than lend it to you.
If you have intentionally facilitated the copying and distribution of the CD, then you have done much more than lend it to me.
What makes your scenario infringing is the unlawful copying and/or distribution by the person you lent your CD to. What makes you liable is intentionally facilitating that infringement. That your action is "lending" is not the issue. So long as your lending doesn't intentionally facilitate unauthorized copying or distribution, it is beyond the reach of copyright law altogether.
Simply put, you do not need authorization to lend your CD to anyone. And copyright holders do not have the power to authorize lending, separately from the power to authorize copying or distribution to the public. They no more have the power to "authorize" private lending, than they have the power to "authorize" loaning your truck to a friend. Any copyright holders who claim that they do are committing copyfraud.
the lender could be liable as a contributory infringer for doing nothing more than lending the disc
No, they couldn't. They would have to have knowledge of the infringement, and take some sorts of affirmative steps to contribute to it. Merely lending the disc would not be enough, even if the person you loan it to ends up infringing with it.
In any case, the act of lending wouldn't itself be the problem; it would be the act of intentionally materially contributing to direct infringement that gives rise to liability. Lending a CD is no different from any other act in this regard.
It's like loaning someone your truck: you can face secondary liability if you know that they're going to use your truck to haul bootleg DVD's (or whatever). That doesn't mean that copyright holders have the right to prevent everyone from loaning their truck to a friend.
Some lending clearly would be infringing, such as if I lent you the disc with the intent for you to copy it and post in the internet for all to download.
Um, no, that's not infringing either. If you copy the CD, then you are infringing on the exclusive right to copy; if you post it on the Internet, then you are infringing on the exclusive right to distribute. My loaning it to you does not constitute infringement, even if you do those things with the copy I loaned you, because there is no exclusive right to loan.
In extreme circumstances, I might be guilty of contributing to infringement, but lending itself is not an infringement of copyright. It simply does not infringe upon any of the rights enumerated in 17 USC 106, and until one of those rights is infringed upon, no infringement has occurred at all. (At least not under U.S. law.)
In essence, you are committing copyfraud yourself: claiming restrictive rights that copyright simply doesn't grant.
There's a subtle difference between these two contentions. And while I agree with one, I disagree with the other. [...]
Again, the point is that the Stationers' copyright begins in the 16th century, and traces its history through Star Chamber decrees, and through the Licensing Act of 1662, as a right of publishers.
Keep in mind the A.C.'s original topic of discussion: that copyright is a natural right of authors.
Yes, the Stationers' Monopoly and the Star Chamber decrees certainly did influence modern copyright, and the Statute of Anne in particular. But this had absolutely nothing to do with "natural rights." It certainly had nothing to do with the rights of authors, and it's also inaccurate to say that it had anything to do with "a right of publishers."
The only "rights" the Stationers' Monopoly was securing, was the right of the Crown to censor speech. This is overtly stated in the Royal Charter of the Company of Stationers itself, right in the first sentence:
Know ye that we, considering and manifestly perceiving that certain seditious and heretical books rhymes and treatises are daily published and printed by divers scandalous malicious scismatical and heretical persons, not only moving our subjects and lieges to sedition and disobedience against us, our crown and dignity, but also to renew and move very great and detestable heresies against the faith and sound catholic doctrine of Holy Mother Church, and wishing to provide a suitable remedy in this behalf [...]
I sincerely doubt that the original A.C., or yourself, think that the ability of the government to censor "certain seditious and heretical books" is anything approaching a natural right.
If you do consider copyright to be an offshoot of the Stationers' Monopoly, then you must admit that copyright is an infringement on natural rights. The right to free expression is universally considered to be a natural right, and there's no question that the Stationers' Monopoly was a mechanism by which free expression was quashed.
Likewise, if you look at a history of the printing press in the Colonies, you'll find that more often than not, individual Colonies had overt licensing schemes in order to censor and control the press. (In New York: "And for as much a great inconvenience may arise by the liberty of printing within our province of New York, you are to provide by all necessary orders that noe person keep any press for printing, nor that any book, pamphlet or other matters whatsoever bee printed without your special leave & license first obtained.") Such licensing schemes originated in England, and they were one of the reasons that the Founders felt the need to pass the First Amendment.
It was under this type of scheme that John Usher gained the first individual "copyright" in 1672. In the explanatory preamble, not a single word was spoken about authors' or publishers' rights. Instead, the monopoly was granted as a subsidy for publishing copies of the state laws:
Mr. Joh Vshur hawing binn at the sole chardge of the impression of the booke of lawes, & presented the Gunor, magistrate, secretary, as also euery deputy, the clark of he deputjes on, & Capt Dauis one, the Court jedgeth it meete to order, that for at least this seven yeares, vnlesse he shall haue sold them all before that tjme, there shallbe no other or further impression made by any person thereof in this jurisdiction, vnder the poenalty this Court shall see cause to lay on any that shall adventure in that kind, besides making ffull sattisfaction to the sajd Mr. Jn. Vsher or his assignes for his charge & damage therein. [Old-timey spelling unchanged.]
Most of the other ad-hoc "copyrights" were granted for exactly the same reasons: Bladen's Privilege, the North Carolina Printing Privilege to Commissioners, and the New York Law Printing Privileges were all set up explicitly as a government subsidy to specific printers in exchange for publishing the state's laws. (The New York privileges, in fact, did not grant the "exclusive right" to publish, but instead subsidized specific printers directly.)
Copyright is, and always was, a government-granted monopoly privilege, enacted primarily for utilitarian reasons. It is not now, and never was, any kind of "natural right" of authors.
so your saying that copyright is a NATURAL RIGHT, and throughout history Government have recognised that FACT.
Uh, no, that's the opposite of what I said.
Copyright is not a natural right. If it were, it would exist in the absence of legal statutes. It does not, and never did.
Copyright has always existed
No, it has not. The "exclusive rights" of authors did not exist before 1710 in England, did not exist before 1783 in the U.S., and did not exist until much later in Europe. It is not, and never was, a natural right.
You have a RIGHT TO LIFE, do you think that is a natural right or a Government mandated right?
That would be an example of a natural right. Human beings were alive long before governments existed.
If a government denies the right of human beings to be alive - that is, if it determines it can take lives at will - then the government is acting against the natural rights of mankind. The same can't be said about copyright. A government might never grant a post-publication monopoly on creation and distribution, and nobody's natural rights would be infringed upon.
Copyright existed a LONG TIME BEFORE you Government existed !!!!!..
Um, what?
Copyright did not exist until after the Statute of Anne was passed in 1710. Governments existed long, long before that. As did authorship and publishing.
If you're talking about the U.S. specifically, copyright generally did not exist in the colonies (the Statute of Anne didn't apply to colonial law). The first general copyright statute to be enacted by any State was the one in Connecticut, enacted in 1783. Many states did not enact copyright statutes until after the signing of the Constitution.
So, no, copyright did not exist a long time before our government existed. And if you're talking about a post-publication monopoly on printing specific works, then the Supreme Court repeatedly and explicitly said that there is no common-law copyright, and it is not a natural right. It is a "creature of statute," and can be granted or taken away at will by Congress.
So, yes, copyright does require a government to exist. Without government statutes, neither publishers nor authors would have (or ever had) the "exclusive right" to publish and distribute specific works.
It's amazing. One post on a topic (the first) and nearly ever sentence is incorrect.
the laws of economics seem to apply to everything but copyrighted content.
Techdirt has always said that the laws of economics apply to everying, especially copyrighted content. Copyright is a government-granted monopoly on what is naturally a public good, which means it is not free market capitalism. See: Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?
If the war on piracy means inflicting a less enjoyable experience pirating (scarcity of illegal content due to enforcement, dealing with sketchy sites, popups, malware, etc.), there will be more sales
There has never been any evidence that this is true. It may result in less piracy, but less piracy does not equal more sales.
many of the people that pirate are doing it because of sheer greed
Except for the fact that every independent study has shown that pirates legally purchase more content than non-pirates. The people pirating "because of sheer greed" are in fact the content industries' best customers. See e.g. Dear RIAA: Pirates Buy More. Full Stop. Deal With It.
Also: How do you describe consumers acting in their own rational self-interest "sheer greed," yet claim that we don't think economics applies to copyrighted content? The fact that both consumers and producers act in their own economic self-interest, is the founding principle of free-market capitalism. It's not "greed," it's the "invisible hand." It's no more immoral than media companies charging for culture in the first place.
The ugly reality for the zealots here is that enforcement does result in more sales.
There is not a single shred of evidence that says this is true. Especially if that "enforcement" results in a worse experience for legitimate customers. DRM and such may stop a small amount of piracy, but it is much more likely to alienate paying customers, resulting in fewer sales. If the DRM is particularly intrusive, it will actually drive people to pirated versions, which don't have DRM. (I remember exactly this from 2002 or so, when Waves had DRM that could blue-screen your computer. Recording studios had a mantra of "buy the software, use the crack;" how do you think that affected people who weren't professional recording studios, and had less of a risk with using pirated software?)
More enforcement doesn't work. And that's just stuff like DRM. If the costs of "enforcement" are intrusions into our civil liberties, then fuck your sales. Human rights, civil liberties, and an open Internet are more important than higher sales ever could be. If securing them means an increase in piracy, then tough shit for you.
Yep. Palmer v. De Witt was talking about the "first publication" right - that is, a property right in unpublished manuscripts. Of course those are private property, because they have not yet been divulged to the rest of mankind through publication; they are still the author's private possession.
Even Wheaton v. Peters acknowledges that this is a common-law right - immediately before they say that a post-publication monopoly is not:
That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.
The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published.
Just because something is recognized in common law does not mean it is a natural right.
The court in Wheaton was talking about "common law" as a synonym of "natural law." Later courts, however, seem to equate "common law" with "case law."
In any case, copyright is neither. The fact that Holmes v. Hurst talks about the Star Chamber and the Stationers' Monopoly should make this clear. Neither of these were "copyright" in the modern sense of the term - neither claimed (nor even suggested) that authors had either a natural or common-law right to a post-publication monopoly.
The Court did not say that there was no state common law copyright--which there in fact was and in fact still is in some states.
Uh, no, they did say this, explicitly:
In the argument it was insisted, that no presumption could be drawn against the existence of the common law as to copyrights in Pennsylvania from the fact of its never having been asserted until the commencement of this suit.
If the common law, in all its provisions, has not been introduced into Pennsylvania, to what extent has it been adopted? Must not this Court have some evidence on this subject? If no right such as is set up by the complainants has heretofore been asserted, no custom or usage established, no judicial decision been given, can the conclusion be justified that by the common law of Pennsylvania, an author has a perpetual property in the copyright of his works?
These considerations might well lead the Court to doubt the existence of this law in Pennsylvania, but there are others of a more conclusive character.
The question respecting the literary property of authors was not made a subject of judicial investigation in England until 1760, and no decision was given until the case of Miller v. Taylor was decided in 1769. Long before this time, the Colony of Pennsylvania was settled. What part of the common law did Penn and his associates bring with them from England?
The literary property of authors as now asserted was then unknown in that country. Laws had been passed regulating the publication of new works under license. And the King, as the head of the church and the state, claimed the exclusive right of publishing the acts of Parliament, the book of common prayer, and a few other books.
No such right at the common law had been recognized in England when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity, and a little more than a century ago it was decided by the highest judicial court in England that the right of authors could not be asserted at common law, but under the statute. The statute of 8 Anne was passed in 1710.
Can it be contended, that this common law right, so involved in doubt as to divide the most learned jurists of England at a period in her history as much distinguished by learning and talents as any other, was brought into the wilds of Pennsylvania by its first adventurers. Was it suited to their condition?
In other words, if there are State copyrights, they are not common-law copyrights either, but determined entirely by state statutes. State copyright laws are equally as much "a creature of statute" as Federal copyright law.
Re: Re: Is a false DMCA take down a 4th amendment suppression?
Um, you might want to change what amendment you're talking about.
To be fair, the 4th Amendment often comes up in prior restraint cases where First Amendment-related seizures are concerned.
But, yeah, that wouldn't apply to bogus takedown notices.
And, yes, before you issue a takedown notice, you're supposed to take fair use into account. But all that's required is a pre-takedown good-faith belief that it's not fair use, and you're off the hook. It doesn't actually have to fail a fair use analysis (or even be what a reasonable person would believe fails a fair use analysis).
It's one of the many ways the deck is stacked in copyright holders' favor when it comes to the DMCA.
What do you not understand about the standard "dedicated to infringing activity"?
From the "Manager's Amendment" of SOPA, a website is "dedicated to infringing activity" if it has U.S. users, and:
(i) the site is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator primarily for use in, offering goods or services in violation of [U.S. copyright or trademark laws]; or
(ii) the operator of the site operates the site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code, as shown by clear expression or other affirmative steps taken to foster such violation.
The words are particularly weaselly: "primarily," "limited purpose." There's no hard-and-fast rule. If the site offers 60% infringing content, 39% copyrighted-but-not-infringing content, and 1% public domain content, is it "dedicated to infringing activity?" It certainly could be.
Also note the words "marketed" and "promoted." Any site that said "Download free movies!" in its marketing campaign could meet this standard, whether or not any infringement actually occurred at all.
There was no explicit "judicial threshold." The law was completely vague. It would have been horrible had it passed.
a hearing provides the opportunity for the site owner to challenge whether their business meets that standard.
All of the actions taken by SOPA and PIPA required notice only. No hearing would have been required.
That includes actions regarding domain name registrars, search engines, and payment processors. You would have been "disappeared" from all of these, prior to any kind of adversarial process.
And those registrars, search engines, and payment processors would also have been targeted by judicial action - something you conveniently ignore.
So, let's stop spewing the SOPA/PIPA apologia. They were both abominable bills, and it's good for everyone that they died a horrible, screaming death.
Sorry; the quote about taking part in cultural life was from the general comments. The actual U.N. resolution (which is part of the same section as the one dealing with authors' rights) makes things even more clear:
Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
We also should not overlook Article 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The human rights of creators to profit from their creations is enshrined in a number of United Nations declarations of human rights.
The "right to profit from their creations" is not the same as the "right to copyright."
Creators don't have any "human rights" above and beyond what other workers have. Creators' human rights are served equally as well with, say, work-for-hire arrangements - the same kind that every other worker on the planet has.
Also, some of the "human rights" that are "enshrined in a number of United Nations declarations" (the so-called "moral rights") are rights that are not recognized by the U.S., among others.
The general comments from the U.N., specifically regarding these rights, says this outright:
Whereas the human right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living, intellectual property regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.
It is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c). [...]
Under the existing international treaty protection regimes, legal entities are included among the holders of intellectual property rights. However, as noted above, their entitlements, because of their different nature, are not protected at the level of human rights.
So, when someone downloads a Hollywood movie without paying for it, they're not violating anyone's human rights.
You're also leaving out the other portions of that section on human rights. All humans, everywhere, have the right: "To take part in cultural life; [and] To enjoy the benefits of scientific progress and its applications."
When what you "want" is culture, then you absolutely do have a human right "to get whatever you want, whenever you want it." And it says so right in the U.N. human rights resolution.
Techdirt already examined this issue in depth. I suggest you actually read the article, and the U.N. human rights declarations themselves. Both make it clear that you're wrong.
I suspect that millions of the take downs are for *links* to websites that have infringing content as opposed to infringing content hosting by Google itself.
No need for suspicion. The page from Google's Policy by the Numbers blog (quoted in the original Techdirt post) says specifically that these are regarding "search results that link to allegedly infringing material."
Aside from those you mentioned, there's also Songbird. Besides being a media library, it has a pretty good smartphone app (for both Android and iOS) and a web app.
Another one that looks pretty decent (that I haven't used) is aTunes.
Instead of quoting the Founding Fathers, who no doubt called it a "monopoly," why don't you pull out those fancy economics books that you think are so keen and read for us the modern definition of the word "monopoly."
My econ textbook doesn't discuss copyright at all, but it certainly discusses other forms of IP, especially patents:
Barriers to Entry: For any amount of monopoly power to continue to exist in the long run, the market must be closed to entry in some way. Either legal means or certain aspects of the industry’s technical or cost structure may prevent entry. [...]
Legal or Governmental Restrictions: Governments and legislatures can also erect barriers to entry. These include licenses, franchises, patents, tariffs, and specific regulations that tend to limit entry. [...]
Patents: A patent is issued to an inventor to provide protection from having the invention copied or stolen for a period of 20 years. Suppose that engineers working for Ford Motor Company discover a way to build an engine that requires half the parts of a regular engine and weighs only half as much. If Ford is successful in obtaining a patent on this discovery, it can (in principle) prevent others from copying it. The patent holder has a monopoly. [...]
It is possible that certain barriers to entry have prevented more competition in oligopolistic industries. They include legal barriers, such as patents, and control and ownership of critical supplies. Indeed, we can find periods in the past when firms were able not only to erect a barrier to entry but also to keep it in place year after year. In principle, the chemical, electronics, and aluminum industries have been at one time or another either monopolistic or oligopolistic because of the ownership of patents and the control of strategic inputs by specific firms.
- Economics Today, by Roger Leroy Miller
Economically speaking, a patent (though treated as property by legal statute) is fundamentally no different from other government-erected barriers to market entry, such as tariffs, licenses, or government-granted franchises.
On the post: Sony Issues The 'Bob Dylan Copyright Collection Volume' Solely To Extend Copyright On Dylan's Work
Re: Re: Re:
I'm sure Mike Masnick phoned Bob Dylan and asked him why he agreed to (or even requested) this release of *his* music. That *he* has the copyright on.
It would shock me if Dylan was even informed before the record was released.
That's because he almost certainly does not hold the copyright on these recordings. Under nearly every label contract (and especially those from the 60's), recording artists were required to assign the copyright to the label.
He may still hold the copyright on the songs themselves - assuming they're not covers, which many of Dylan's songs were at the time. But even if he does, the label (nor anyone else) is not required to get permission or consult him before releasing the disc. All you have to do is pay the statutory royalty rates, and Bob's your uncle. (See what I did there?)
Oh, and there's no question that the limited release will simply encourage piracy. If you believe those that hold this opinion are simply "piracy apologists," then I guess CNN Money are "piracy apologists" too:
By releasing just 100 copies of a CD containing unreleased early material recorded by Bob Dylan, Sony Music is practically inviting pirates to download the album.
- Sony Music's Bob Dylan copyright disaster
But I guess they're in good company - that of Bob Dylan himself.
On the post: Techdirt 2012: The Numbers.
Re: Re: Re: Re:
This sounds exactly like my last date.
On the post: How The Supreme Court Helped Stomp Out The Public Domain
"Entering" public domain
The Golan decision did not deal at all with works that entered the public domain. They dealt with works that were never under copyright in the first place.
This is how they got around the "limited times" argument: it didn't violate the "limited times" part, because there were no "times" in the first place.
The Court probably had no choice but to rule in this manner. If putting already-published works under copyright was unconstitutional, then a whole slew of copyright laws would have been unconstitutional.
That doesn't mean that the ruling isn't a bad one. The fact that the laws were retroactive is especially troubling. Generally speaking, ex post facto laws are unconstitutional under Article 1, Section 9. I have no idea how the Golan court got around that.
Nonetheless, the Golan decision did not write Congress a blank check to take whatever it wanted out of the public domain. It is certainly a step in that direction, but that ruling has yet to be made.
On the post: Copyfraud: Copyright Claims On CDs Say It's Infringement To Loan Your CD To A Friend
Re: Re: Re: Re: Re:
If you have intentionally facilitated the copying and distribution of the CD, then you have done much more than lend it to me.
What makes your scenario infringing is the unlawful copying and/or distribution by the person you lent your CD to. What makes you liable is intentionally facilitating that infringement. That your action is "lending" is not the issue. So long as your lending doesn't intentionally facilitate unauthorized copying or distribution, it is beyond the reach of copyright law altogether.
Simply put, you do not need authorization to lend your CD to anyone. And copyright holders do not have the power to authorize lending, separately from the power to authorize copying or distribution to the public. They no more have the power to "authorize" private lending, than they have the power to "authorize" loaning your truck to a friend. Any copyright holders who claim that they do are committing copyfraud.
On the post: Copyfraud: Copyright Claims On CDs Say It's Infringement To Loan Your CD To A Friend
Re: Re: Re:
No, they couldn't. They would have to have knowledge of the infringement, and take some sorts of affirmative steps to contribute to it. Merely lending the disc would not be enough, even if the person you loan it to ends up infringing with it.
In any case, the act of lending wouldn't itself be the problem; it would be the act of intentionally materially contributing to direct infringement that gives rise to liability. Lending a CD is no different from any other act in this regard.
It's like loaning someone your truck: you can face secondary liability if you know that they're going to use your truck to haul bootleg DVD's (or whatever). That doesn't mean that copyright holders have the right to prevent everyone from loaning their truck to a friend.
On the post: Copyfraud: Copyright Claims On CDs Say It's Infringement To Loan Your CD To A Friend
Re:
Um, no, that's not infringing either. If you copy the CD, then you are infringing on the exclusive right to copy; if you post it on the Internet, then you are infringing on the exclusive right to distribute. My loaning it to you does not constitute infringement, even if you do those things with the copy I loaned you, because there is no exclusive right to loan.
In extreme circumstances, I might be guilty of contributing to infringement, but lending itself is not an infringement of copyright. It simply does not infringe upon any of the rights enumerated in 17 USC 106, and until one of those rights is infringed upon, no infringement has occurred at all. (At least not under U.S. law.)
In essence, you are committing copyfraud yourself: claiming restrictive rights that copyright simply doesn't grant.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: Re: Re: Re: Re:
Again, the point is that the Stationers' copyright begins in the 16th century, and traces its history through Star Chamber decrees, and through the Licensing Act of 1662, as a right of publishers.
Keep in mind the A.C.'s original topic of discussion: that copyright is a natural right of authors.
Yes, the Stationers' Monopoly and the Star Chamber decrees certainly did influence modern copyright, and the Statute of Anne in particular. But this had absolutely nothing to do with "natural rights." It certainly had nothing to do with the rights of authors, and it's also inaccurate to say that it had anything to do with "a right of publishers."
The only "rights" the Stationers' Monopoly was securing, was the right of the Crown to censor speech. This is overtly stated in the Royal Charter of the Company of Stationers itself, right in the first sentence:
I sincerely doubt that the original A.C., or yourself, think that the ability of the government to censor "certain seditious and heretical books" is anything approaching a natural right.
If you do consider copyright to be an offshoot of the Stationers' Monopoly, then you must admit that copyright is an infringement on natural rights. The right to free expression is universally considered to be a natural right, and there's no question that the Stationers' Monopoly was a mechanism by which free expression was quashed.
Likewise, if you look at a history of the printing press in the Colonies, you'll find that more often than not, individual Colonies had overt licensing schemes in order to censor and control the press. (In New York: "And for as much a great inconvenience may arise by the liberty of printing within our province of New York, you are to provide by all necessary orders that noe person keep any press for printing, nor that any book, pamphlet or other matters whatsoever bee printed without your special leave & license first obtained.") Such licensing schemes originated in England, and they were one of the reasons that the Founders felt the need to pass the First Amendment.
It was under this type of scheme that John Usher gained the first individual "copyright" in 1672. In the explanatory preamble, not a single word was spoken about authors' or publishers' rights. Instead, the monopoly was granted as a subsidy for publishing copies of the state laws:
Most of the other ad-hoc "copyrights" were granted for exactly the same reasons: Bladen's Privilege, the North Carolina Printing Privilege to Commissioners, and the New York Law Printing Privileges were all set up explicitly as a government subsidy to specific printers in exchange for publishing the state's laws. (The New York privileges, in fact, did not grant the "exclusive right" to publish, but instead subsidized specific printers directly.)
Copyright is, and always was, a government-granted monopoly privilege, enacted primarily for utilitarian reasons. It is not now, and never was, any kind of "natural right" of authors.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: Re: Re:
Uh, no, that's the opposite of what I said.
Copyright is not a natural right. If it were, it would exist in the absence of legal statutes. It does not, and never did.
Copyright has always existed
No, it has not. The "exclusive rights" of authors did not exist before 1710 in England, did not exist before 1783 in the U.S., and did not exist until much later in Europe. It is not, and never was, a natural right.
You have a RIGHT TO LIFE, do you think that is a natural right or a Government mandated right?
That would be an example of a natural right. Human beings were alive long before governments existed.
If a government denies the right of human beings to be alive - that is, if it determines it can take lives at will - then the government is acting against the natural rights of mankind. The same can't be said about copyright. A government might never grant a post-publication monopoly on creation and distribution, and nobody's natural rights would be infringed upon.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re:
Um, what?
Copyright did not exist until after the Statute of Anne was passed in 1710. Governments existed long, long before that. As did authorship and publishing.
If you're talking about the U.S. specifically, copyright generally did not exist in the colonies (the Statute of Anne didn't apply to colonial law). The first general copyright statute to be enacted by any State was the one in Connecticut, enacted in 1783. Many states did not enact copyright statutes until after the signing of the Constitution.
So, no, copyright did not exist a long time before our government existed. And if you're talking about a post-publication monopoly on printing specific works, then the Supreme Court repeatedly and explicitly said that there is no common-law copyright, and it is not a natural right. It is a "creature of statute," and can be granted or taken away at will by Congress.
So, yes, copyright does require a government to exist. Without government statutes, neither publishers nor authors would have (or ever had) the "exclusive right" to publish and distribute specific works.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: Insane Troll Logic
the laws of economics seem to apply to everything but copyrighted content.
Techdirt has always said that the laws of economics apply to everying, especially copyrighted content. Copyright is a government-granted monopoly on what is naturally a public good, which means it is not free market capitalism. See: Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?
If the war on piracy means inflicting a less enjoyable experience pirating (scarcity of illegal content due to enforcement, dealing with sketchy sites, popups, malware, etc.), there will be more sales
There has never been any evidence that this is true. It may result in less piracy, but less piracy does not equal more sales.
many of the people that pirate are doing it because of sheer greed
Except for the fact that every independent study has shown that pirates legally purchase more content than non-pirates. The people pirating "because of sheer greed" are in fact the content industries' best customers. See e.g. Dear RIAA: Pirates Buy More. Full Stop. Deal With It.
Also: How do you describe consumers acting in their own rational self-interest "sheer greed," yet claim that we don't think economics applies to copyrighted content? The fact that both consumers and producers act in their own economic self-interest, is the founding principle of free-market capitalism. It's not "greed," it's the "invisible hand." It's no more immoral than media companies charging for culture in the first place.
The ugly reality for the zealots here is that enforcement does result in more sales.
There is not a single shred of evidence that says this is true. Especially if that "enforcement" results in a worse experience for legitimate customers. DRM and such may stop a small amount of piracy, but it is much more likely to alienate paying customers, resulting in fewer sales. If the DRM is particularly intrusive, it will actually drive people to pirated versions, which don't have DRM. (I remember exactly this from 2002 or so, when Waves had DRM that could blue-screen your computer. Recording studios had a mantra of "buy the software, use the crack;" how do you think that affected people who weren't professional recording studios, and had less of a risk with using pirated software?)
More enforcement doesn't work. And that's just stuff like DRM. If the costs of "enforcement" are intrusions into our civil liberties, then fuck your sales. Human rights, civil liberties, and an open Internet are more important than higher sales ever could be. If securing them means an increase in piracy, then tough shit for you.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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Yep. Palmer v. De Witt was talking about the "first publication" right - that is, a property right in unpublished manuscripts. Of course those are private property, because they have not yet been divulged to the rest of mankind through publication; they are still the author's private possession.
Even Wheaton v. Peters acknowledges that this is a common-law right - immediately before they say that a post-publication monopoly is not:
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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The court in Wheaton was talking about "common law" as a synonym of "natural law." Later courts, however, seem to equate "common law" with "case law."
In any case, copyright is neither. The fact that Holmes v. Hurst talks about the Star Chamber and the Stationers' Monopoly should make this clear. Neither of these were "copyright" in the modern sense of the term - neither claimed (nor even suggested) that authors had either a natural or common-law right to a post-publication monopoly.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
Re:
Uh, no, they did say this, explicitly:
In other words, if there are State copyrights, they are not common-law copyrights either, but determined entirely by state statutes. State copyright laws are equally as much "a creature of statute" as Federal copyright law.
On the post: MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy
Re: Re: Is a false DMCA take down a 4th amendment suppression?
To be fair, the 4th Amendment often comes up in prior restraint cases where First Amendment-related seizures are concerned.
But, yeah, that wouldn't apply to bogus takedown notices.
And, yes, before you issue a takedown notice, you're supposed to take fair use into account. But all that's required is a pre-takedown good-faith belief that it's not fair use, and you're off the hook. It doesn't actually have to fail a fair use analysis (or even be what a reasonable person would believe fails a fair use analysis).
It's one of the many ways the deck is stacked in copyright holders' favor when it comes to the DMCA.
On the post: MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy
Re: Re: Re: Re: Re:
From the "Manager's Amendment" of SOPA, a website is "dedicated to infringing activity" if it has U.S. users, and:
The words are particularly weaselly: "primarily," "limited purpose." There's no hard-and-fast rule. If the site offers 60% infringing content, 39% copyrighted-but-not-infringing content, and 1% public domain content, is it "dedicated to infringing activity?" It certainly could be.
Also note the words "marketed" and "promoted." Any site that said "Download free movies!" in its marketing campaign could meet this standard, whether or not any infringement actually occurred at all.
There was no explicit "judicial threshold." The law was completely vague. It would have been horrible had it passed.
a hearing provides the opportunity for the site owner to challenge whether their business meets that standard.
All of the actions taken by SOPA and PIPA required notice only. No hearing would have been required.
That includes actions regarding domain name registrars, search engines, and payment processors. You would have been "disappeared" from all of these, prior to any kind of adversarial process.
And those registrars, search engines, and payment processors would also have been targeted by judicial action - something you conveniently ignore.
So, let's stop spewing the SOPA/PIPA apologia. They were both abominable bills, and it's good for everyone that they died a horrible, screaming death.
On the post: MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy
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We also should not overlook Article 19:
On the post: MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy
Re: Re:
The "right to profit from their creations" is not the same as the "right to copyright."
Creators don't have any "human rights" above and beyond what other workers have. Creators' human rights are served equally as well with, say, work-for-hire arrangements - the same kind that every other worker on the planet has.
Also, some of the "human rights" that are "enshrined in a number of United Nations declarations" (the so-called "moral rights") are rights that are not recognized by the U.S., among others.
The general comments from the U.N., specifically regarding these rights, says this outright:
So, when someone downloads a Hollywood movie without paying for it, they're not violating anyone's human rights.
You're also leaving out the other portions of that section on human rights. All humans, everywhere, have the right: "To take part in cultural life; [and] To enjoy the benefits of scientific progress and its applications."
When what you "want" is culture, then you absolutely do have a human right "to get whatever you want, whenever you want it." And it says so right in the U.N. human rights resolution.
Techdirt already examined this issue in depth. I suggest you actually read the article, and the U.N. human rights declarations themselves. Both make it clear that you're wrong.
On the post: MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy
Re: Links are not infringing
No need for suspicion. The page from Google's Policy by the Numbers blog (quoted in the original Techdirt post) says specifically that these are regarding "search results that link to allegedly infringing material."
On the post: The Complex Joys Of Music In The Age Of Digital Abundance
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Aside from those you mentioned, there's also Songbird. Besides being a media library, it has a pretty good smartphone app (for both Android and iOS) and a web app.
Another one that looks pretty decent (that I haven't used) is aTunes.
On the post: Rep. Marsha Blackburn's Staffer Lashes Out At Derek Khanna And RSC Report
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My econ textbook doesn't discuss copyright at all, but it certainly discusses other forms of IP, especially patents:
Economically speaking, a patent (though treated as property by legal statute) is fundamentally no different from other government-erected barriers to market entry, such as tariffs, licenses, or government-granted franchises.
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