Digital Liberty

Julian Sanchez responds to a poorly reasoned National Review piece with a smart defense of the recent Morpheus/Grokster ruling.

Comments

[Stretch Cannonbury]

Literally everybody arguing over this - the referenced authors, the poster, these commentators - are missing the point.

Contract law is what we're really talking about here, NOT copyright law.

Say I record a song. I own the recording. I can play it over and over, I can stick it under my pillow, or I can bury it in the backyard.

OR, I can sell it to you. On one condition - you don't copy it.

At this point, either you agree or not. If not, you never get your hand on it.

If you do agree, then WE HAVE A CONTRACT, boys and girls. And you know what? That means you are morally and legally obligated to abide by it.

Period.

It was your choice whether to enter into the agreement.

The fact that so many supposed libertarians fail to understand this elementary concept is further proof, to me, that the movement is essentially useless and brainless.

For the pro-file-sharing argument to succeed, here's what you'd have to do:

BAN CONTRACTS. Say I want to sell a copy of MY recording to you. Say you want to buy it, and you agree to my conditions.

WELL, YA CAN'T. Because people like the mental gnomes running Reason (some of the time) have made it impossible for 2 adults to enter into a mutually beneficial contract.

This is the libertarianism of fools.

[Jesse Walker]

It isn't that simple, Stretch. When you buy software, you usually agree to a contract. With music you usually don't, unless you want to argue that the contract is implied. The CD on my desk right now, for example, does not include any contractual language on its sleeve; what it says is "Unauthorized duplication is a violation of applicable laws."

The music companies could rectify that, of course. But even then, there's no reason to suppose, in a libertarian context, that the contract would be binding on anyone other than the party who bought the music, limiting the sort of enforcement you're apparently proposing to the first uploader and no one else. This is why many libertarians who generally support "contractual copyrights" have backed away from it in these circumstances. They just don't think the contract is enforceable.

There's some more basic issues as well, including the very definition of "copying," which isn't entirely obvious in an online context. But in a way, they're all beside the point. The court ruling in question didn't have to do with whether or not it's OK to make unauthorized copies of recordings. It had to do with whether it makes sense to hold the makers of a technology responsible when someone else makes illicit use of that technology. The court said no, and I think it was right to do so.

[Jesse Walker]

Also: If the music companies did decide to turn music sales into contracts, a la the software industry, they'd still face statutory limits on what contractual restrictions they could impose. The right to make copies for personal use, for example, is guaranteed by federal law. You can oppose such statutes, but as long as they're in place they strongly suggest that you're wrong to say "Contract law is what we're really talking about here, NOT copyright law."

[Warren]

Stretch,
Try throwing that "useless and brainless" insult at the guy in the mirror. A contract is not valid if it violates itself. When you are sold a recording, it is sold with an intended use, there can be no clause in the purchase that prohibits you from making a copy because the intended use of the product allows you to make backup copies or copies to other medium for your own enjoyment. Legal precedent also allows you to make copies to give to your friends. Only when you profit from your activities are you in violation of copyright. Contract law has had no place in the discussion because of the intended use doctrine. The recording industry is now arguing that intended use should not extend to file sharing with umpteen thousand other people whom the purchaser does not know. There is merit in this argument but it requires new precedent and is still a matter of copyright protection not contract enforcement.

[Stretch Cannonbury]

I agree with you with regard to this ruling, and I should have said so in my post. What I don't agree with is the libertarian file-sharing fetish. If a recording is intellectual property bound through contract to not be copied, then traffick in illegial copies is like traffic in any other illegal product. No?

I'm not a lawyer, so I can't argue with you about what specific laws ought to cover this activity, but it's pretty clear to me that the law in general should consider this activity just as illegal as if I photocopied a hundred copies of the latest Stephen King novel and sold them for 3 bucks each on a street corner somewhere.

I don't see how you can escape the conclusion that this is essentially a contract issue and that the popular libertarian position is anti-contract and therefore anti-property rights.

Quite a trick for libertarians to pull off, if you ask me. Why aren't you guys out front saying, hey, you shouldn't steal stuff? Is that so difficult?

[Stretch Cannonbury]

Correction - change "copied" to "copied and distributed".

Can I copy and distribute novels to my friends as long as I don't charge them anything?

Can I copy my DVD library and give that away?

What defines "friend"? What if I'm sort of a citizen-of-the-world type chap and I decide that everybody in the state of Ohio should own a copy of every Radiohead CD ever made (as, incidentally, I do)? Can I just start ripping away and leaving piles by the newspaper boxes?

The legal ins and outs are interesting and worthwhile to discuss.

But what really concerns me is that supposed libertarians are evidently hell-bent on finding any excuse or pseudo-excuse possible to justify distributing privately-made intellectual property without limit. The ONE thing you libertarians are supposed to respect is private property. I guess not.

[julian]

(1) Err, yeah, libertarians are all for private property. That's what a big part of the old debate is about: whether intellectual "property" is really a valid form of property. Just saying the words doesn't make it so. (Or if it did, governments could instantly win over libertarians by talking about their "regulatory property.")

(2) The debate about copyright-by-contract was hot about 30 years ago, and the contracts-side lost decisively. The problem is that trade in a contactually protected file doesn't make the "product" illegal, as you put it. It just means that the first person to put it online has violated the contract. As soon as anyone who hasn't signed on gets his hands on the thing, there's no further legal recourse, beyond maybe suing one person for negligence in letting it get out. And it's not clear how this would work with unencrypted radio broadcasts. I need not sign any contract to pick up a radio signal, after all.

[Anonymous]

1. Earth to Julian, whether libertarians debate whether intellectual property is really property doesn't change the fact that it IS property and has been considered property for centuries.

2. Ok, fine, let's get legalistic. Would you be opposed to a law specifically stating that distributing electronic copies of copyrighted material without license is illegal?

[Jim N]

Strech, first of all, many libertarians do not think that intellectual property is actually property at all. You are limiting your argument to actual copies of the original (which is what this case is about, but you brought up intellectual property). What if I go to a concert and hear a song, then record my own version and sell it. Where is the contract? Or what about songs on the radio?

The consitution authorizes the creation of copyrights on the grounds that it promotes creativity. If the fed gov't designed copyright laws toward that end, I really wouldn't have a problem. The reality though is that the media companies have lobbied for ridiculously long copyright terms that serve mainly to allow them to retain a monopoly for decades. For this reason, I am a big fan of file sharing, although I don't personally do it.

[Jesse Walker]

Actually, Anon., any lawyer -- even on Earth -- will tell you that intellectual property and physical property are two very different things. And any historian will explain that the rhetorical conflation of the two is much younger than "centuries."

[Warren]

Anon,
Your insistence that intellectual property IS property doesn't make it so. The claim that it has been considered property for centuries is simply false. There is a vast distinction in the law regarding intellectual property and other types of property. There has to be; if I steal your car I deprive you of its use. You have been robbed of something you once possessed and no longer do. Your wealth has been diminished directly. If I steal your song you may never even be aware of it. I certainly haven't deprived you of the use or enjoyment of your property. I have only diminished your wealth to the extent that you have lost a privileged status issued by the state. That property rights are fundamental to a free people is, I would suggest, self-evident. That intellectual property rights are, is far from so. Consider the fashion industry, which thrives despite the lack of intellectual property. You are free to copy anyone's designs, as long as you put your name on it. There are other examples.

[Warren]

Jesse,
I wish you'd stop making the same point as I am while I'm still spell checking ;^P

[Stretch Cannonbury]

Intellectual property law goes back hundreds of years.

And I never said physical and intellectual property were indistinguishable; what I said was that intellectual property was and is considered a form of property. You can't get around that or deny it.

Little thought experiment. Let's say all non-contract law is undone or otherwise OBE. We're still left with contract law. I'll sell you the right to do certain things with my recording of my song. You agree to the terms and agree not to do other things, as designated by me. Remember, you agreed to it. Among them - distributing electronic copies for profit or for free.

Your argument, really, is nothing more than this: Fine. That's a contract - find the guy who put your song on the internet and sue him.

Which is a complete dodge. You're not even arguing the merits of the agreement here. All you're saying is, "Nyah nyah nyah, good luck catching me. You can't enforce it." You don't even dispute that, ideally, the contract could and should be enforced. You're just saying, it's really hard.

That's not an argument, my friends.

[Anonymous]

"That's not an argument, my friends."

The most accurate summating sentence I've read in a while... :>

[Russ]

Anybody remember the old stupid waste of money and time record companies spent on the cassette-and-crossbones "Home Taping is killing Music" campaign?

I've been down this road before; same shit, different technology.

The fact is, the record companies constantly make the customer compromise unnecessarily. My case in point is the last Wilco album. The record company rejected it, so the band put it out on the internet. I downloaded it and burned it to a CD. When the "legit" CD came out, I bought it (it's their biggest seller). When the vinyl LP's of it came out, I bought that and gave the CD away. Why couldn't the record company just put the frickin' LP's out in the first place without jerking me around?

I know I'm an anomoly. Most people treat music as a disposable item, they get into a song for a few months, then they're done with it. That's why people like downloading files, it's cheap, it's no clutter, they can delete it when they're done with it, they don't care if the sound isn't perfect as long as it plays. People like me who download are the record company's best customer and they want to jerk me around, damn right I'll bypass them any chance I can.

[B]

Julian writes:
"Fortunately for artists, a central tenet of
economics is just demonstrably wrong"

Ex-squeeze me?! When did this happen?

[Anonymous]

When did artistic output become just another product? Does anyone really believe that artists will not do their thing if there is no guarrantee of money? The only "product" here is the margin for the middle-men.

[Stretch Cannonbury]

First, once again we see so-called libertarians using the Marxist "labor theory of value" to determine what something's worth. So, really, you should be posting comments on the World Workers Party board with the other marxists.

Second, you just don't get the thought process. My point is, let's PRETEND there are NO laws specifically written regarding copyright, ok?

In this fantasy world, some artists will produce and distribute recordings of their works for free, with no restrictions. In fact, this may work out very well for them. Who knows. That's not the point.

Some other artists, however, will have their agents produce recordings. If you want to buy them, you agree to their terms not to distribute them on the internet. This is called a "contract". This is exactly how software works - by opening the package and installing the software, you agree to the terms. If you don't agree, then you can't buy the software (or album).

Which part of this don't you understand?

[Stretch Cannonbury]

One other point. Copyright (and patent) was invented to give people an incentive to invest (mentally, financially) in the development of new products, ideas, works of art, works of literature, etc. Yes, it is distinct and separate from contract law, which is the DEFAULT position in the absence of copyright law - a point I have been trying to make for 2 days now.

And, yes, companies (like Disney) have been trying to extend their copyrights forever, a complete violation of the spirit of that law. (But, hey, Republicans are in control, so what do you expect?)

Copyright, patent - these things are hallmarks of developed economies and open societies. That so many libertarians are so eager to toss them out the window in the name of free Brittany Spears songs just shows how shallow this movement can be at times.

[Freeforall]

Patent is also going the same way as copyright - an imagined value realised by lawyers and the like. Most patents are of little use in protecting the real producers. What value would a patent on the internal combustion engine have today? The only value would be the money that the lawyers could screw out of people.

As for protecting Brittany Spears?! Brittany can earn a thoroughly worthwhile living performing her music. What is under dispute is the right of her record label to make gross profits out of selling recorded versions of it. Why this is worth defending is beyond me.

Name an artist who was driven to performing, singing, dancing, writing, painting etc. by the prospect of money? (and I mean an "artist").

Do we have Van Gogh because of copyright law? Was Beethoven encouraged by the prospect of selling sheet music? Are we still able to read Robert Frost thanks to copyright law?

Property has it's place in the world, but as a tool for supporting artistic output, it is entirely irrelevant.

[Stretch Cannonbury]

I disagree, and since the laws of every successful nation on the face of the earth also agree, please forgive me if I'm not convinced by this nonsense.

I'm going to repeat myself one more time. You may move your lips as you read this if you like. It may take 10 or 12 repetitions, but eventually it will sink in, I promise:

EVEN IF WE SCRAP ALL THE COPYRIGHT LAWS, YOU STILL HAVE TO CONTEND WITH CONTRACT LAW.

Yes, contracts don't bind 3rd parties. But just because you can't get caught breaking your contracts doesn't mean it's not legally and morally wrong.

Only in the la-la land of libertarian whackjobs is this thought incomprehensible or controversial.

[Stretch Cannonbury]

"Name an artist who was driven to performing, singing, dancing, writing, painting etc. by the prospect of money? (and I mean an "artist")."

What is this, a juvenile attempt at a false dichotomy? Ya ever hear of fuckin Jackson Pollack? Matisse? Picasso? It appears you know nothing at all about art history, even modern art history.

All those mansions on the French Riviera that artists have bought themselves over the decades - where exactly do you suppose they got that money?

[Freeforall]

My question is not "did they get rich from their art?" (nothing wrong in that). My question is: was the existence of copyright and patent law a contributing factor in their creative process?

My view (and that's all it is) is - no. (By the way, Picasso made very little money in his early - and most creative - days.)

Many music artists have commented that they make only a small part of their income from recording - most of its comes from the live tours.

The greatest majority of artists do not look to make huge pots of money - they usually want their materials and a living. If you remove copyright law, then you will find no or little difference to the waythis works out for them.

The only people who lose are a bunch of corporations and their legal teams.

[Stretch Cannonbury]

This flies in the fact of overwhelming evidence - artists are not super-humans. They are motivated in the same ways as everybody else. Some mechanics would do free auto repair if there was no way for them to profit from it. So what?

And you're still - still - ignoring my main point, which is that you'd still have contract law to contend with. Can contracts be broken? Yes. Does that make it ok? No. Is it legal to traffic in illegal copies of artistic product? Yes. Does that make it morally ok? No.

[Stretch Cannonbury]

I've put you in the file "too stupid to argue with".

Contracts ARE NOT LAWS. They're agreements - promises - made voluntarily between two people. What, you have a problem with this? Do you truly not understand what an "agreement" is? Do you truly not understand that a contract is a written agreement? For the love of GOD, agreements are what makes all social arrangements possible!

Ok, I debate libertarians. I do not debate anarchist wingnuts. See ya.

[Stretch Cannonbury]

No, the Happy Birthday thing was COPYRIGHT, not CONTRACT.

[Freeforall]

Sure it is illegal to copy items that are otherwise protected by law. Maybe it is breaking a contract.

My contention is that this is a waste of time, trouble and money to everyone except a small minority of corporations.

Why are we helping them out in this!

[JDM]

"What value would a patent on the internal combustion engine have today?"

What does this have to do with anything? What value would a patent on a cure for cancer have? I'll answer for you - hundreds of billions of dollars (ignoring the federal meddling with health care.) That's why people are willing to spend hundreds of billions of dollars on finding one.

How much is a copyright on the CD of the winner of American Idol worth? Tens of millions of dollars. That's why they paid to put on the competition, which millions of people enjoy, and will find a singer who's CD millions of people will enjoy.

I find it strange to watch libertarians claim they know better how to distribute music than the record companies. If there is a more efficient way to do it, it will be more profitable, and someone will make it happen. How is it possible, that if you take away market incentives, that the field will become more productive? "Because I really like free music" doesn't qualify as an answer.

[Freeforall]

I am quite amenable to not reproducing CDs and other products. But what sense is there in preventing us from singing "Happy Birthday"? What product have I consumed? Where is the value?

[Freeforall]

My point is very simple: is artistic output governed by market incentives?

[Stretch Cannonbury]

JDM -

This comment may be a bit unfair to some of the more intellectual libertarians that visit this site. But the GREAT majority seem primarily motivated by exactly what you said - the desire to get free music. They really like free tunes. They think Kazaa is really cool. Ergo, they want to wipe out one of the pillars of western civilization - patent and copyright - because they live in a fantasy world where selfless, noble artists dick around with tubes of oil paint all day solely for the joy of artistic expression.

Do financial incentives inspire artists to produce more? I can't imagine any serious person even asking such a question.

[Stretch Cannonbury]

Freeforall - If you're worried that singing "Happy Birthday" isn't really consumption, then you don't understand that copyright has literally nothing at all to do with consumption. No wonder you don't like it; you don't even know what it means.

[Spinoza]

"This is why many libertarians who generally support 'contractual copyrights' have backed away from it in these circumstances. They just don't think the contract is enforceable."

Jesse, I thought that genuine libertarians are internally driven. Just because there's no cop around, does violating a contract make it right? Violating a contract is a transgression, isn't it? Doesn't matter whether it is enforced or not.

[Croesus]

Stretch,

Actually, copyright and patent law were originally created to reward interests that were loyal or otherwise important to the crown. 🙂 If you look at how copyright law has developed in the US, you'll see that's still the case today.

Freeforall,

There are those who argue that copyrgith and patent protection are not really neccessary - and that they are really forms of rent seeking at best. Of course there are those who disagree and claim that such laws are necessary to protect the investments of folks who bring all sorts of good things to the economy. Right now, copyright law is likely geared more toward the former notion, and patent law to the latter. Utility patents last twenty years. That in my mind seems to be a reasonable time to re-coup an investment and then some. But a copyrighted work gets you life plus seventy years, or 95 years for a work made by a corporate author, of protection. First of all, most works that are produced don't even need this protection, because they have little or no commercial value (in other words, there will be little incentive for someone to copy your work for profit or otherwise). And those that do have commercial value quickly lose it over a short period of time (before the 1976 Act, the 1909 Act allowed a renewable 28 year of protection (28 years plus 28 years) those who have delved into the issue of renewal have found that works which were originally copyrighted - back then notice was required to receive protection - only a small percentage were actually renewed. Based on this information I think its easy to assume that its rare for a work to be even able to take advantage of this protection in the first place. So it has to be asked, who wants this long period of protection? Its a very small portion of the copyright owners who have been able to lobby Congress to grant their works this sort of protection. Now, whether you agree with this or not or feel that they need this protection depends on what you feel would be reasonable compensation for their efforts, as well as what you think of the public's need to have access to these works as part of the public domain.

[Freeforall]

Fortunately very few (if any) artists are motivated as you suggest.

Record companies are doing what comes naturally - defending their business. But, just like other businesses whose day has come and gone - there is no duty on us to help them in this.

They have managed to tangle the issue up with copyright and contract and so on, but the truth is that their business model is failing for simple and obvious reasons.

As for American Idol - this is not art, it is entertainment. This will go on regardless of whether it is copyrighted.

[Stretch Cannonbury]

That's an important debate to have. This is one of those messy areas where there's no clear point at which you can say, "That's too long." But I think common sense says 95 years is too long. I agree.

I was debating the value of copyright in general, not how long it should be valid for. At some point all copyrights and patents simply must expire, and this is where Republicans in Congress are letting Disney destroy copyright in this country because they don't want Mickey Mouse getting into the public domain.

[Croesus]

Freeforall,

Well, if the music business comes to depend solely on the copyright law to make money, well, they likely are in deep fucking shit. The music companies have got to find a way to make online music buying desirable in some other way than bringing file sharers to court. Perhaps the government could aid in this in some way - perhaps they could enact a law which has a compulsory license clause which (a) provides for reasonable remuneration for the license to use the song (just like sheetmusic is today) and (b) mandates that all music companies share their libraries of recorded material with companies that providing a downloading service.

[Stretch]

Congress...mandates...compulsory...pretty harsh language for a libertarian site.

How about contracts?

[Freeforall]

If the music companies accept that they cannot depend 100% on copyright protection of the music itself, then they will free themselves to find other ways of delivering value to consumers.

Otherwise, is there anyone who will mourn their passing?

As well, is anyone here prepared to defend Disney hoovering up intellectual property as it does?

[Croesus]

Stretch,

You are making the assumption that I am a libertarian. 🙂 As I've stated before, a contract will not help you beyond the parties who have entered that contract. In the case of Morpehus, the party who shares can get nailed, but the party who receives, and then shares, cannot. The only way to stop this process would be to make the consequences of the breach so onerous as to strike the fear of the Lord into the potential breacher. Contract law as it now works is not really designed to work as a device to punish in this fashion. Furthermore, there are all sorts of transactional costs that would be associated with protection based primarily on contract, including (if you were to make this punitive) the right say a jury trial mandated by the 7th Amendment in federal courts, and by most state constitutions in the state courts.

[Russ]

"Copyright (and patent) was invented to give people an incentive to invest (mentally, financially) in the development of new products, ideas, works of art, works of literature, etc. "

I agree with this, but it does not guarantee anyone the protection of a certain business model.

I would agree that downloading copyrighted material without consent is a violation of the copyright law, but this is a double-edged sword. It is quite evident that downloading is a viable way for some artists to successfully distribute their work. But would this method be proven had it not been for the illegal distribution of other work in the first place?

The whole point of record companies is not to profit from copyright, it is to add value. The main way they add value is by distributing copies, but they purposely narrowed their own distribution methods and clearly missed out on newer means. Their whole market was driven by the fact that making copies was expensive if not done on a volume basis. If I want one LP copy of music or one printed copy of a comic book, it is rather expensive for me to press up a copy myself, even if I secure the OK of the artist. Same was true of CD's, but not anymore.

I have no problem with artists protecting and profiting from their copyrights, and I can even see some logic in copyrights into perpetuity. But rather than suing the pants off everyone else who cheated and found a better way, record companies should admit they screwed up, adapt to the marketplace, and get themselves in touch with their customers. They didn't wait for someone else to invent the CD and distribute pirated copies, they did this on their own (and then cheated the artists by not paying them) and made money. File transfer has been around a long time, as well as compression technology. In fact, it was the record companies that turned music into digital files in the first place (a CD is a set of digital files).

File transfer is what many customers want, many are willing to pay for it, and the record companies will have to adapt or the artists will eventually abandon them. It's unfortunate that it took pirates to show them a business model that works, but record companies spent several years trying to sucker consumers into a subscription model that they clearly didn't want. This is no surprise as this is the same racket that eliminated reaonably priced singles from the market and then wondered why overall sales went down. This is the same racket that gave no care to quality control in LP pressings in the early 80's. This is the same racket that keeps reducing the number of tracks on a CD because they don't want to pay additional mechanical royalties. This is the same racket that, with the invention of the 78, violated copyrights themselves with the justification that is was a recording and not a copy of the sheet music! (And it's interesting that European companies generally produced counterparts with more tracks and higher quality control.)

Record companies forgot that their business is selling a service and not products. The product is the artist's work, the copy and marketing of the work are services. If they obsolete themselves, they can't hide behind copyright laws to prevent their demise.

[Freeforall]

Another interesting consquence of all this will be how copyright and patent laws are applied across international boundaries.

A while ago, RSA owned the rights to certain encryption algorithms and got the US government to help enforce them as part of a dubious claim for national security protection. The result of suppressing the use and development of this technology in the US was to help others (primarily Europeans) to develop competitive schemes and to hinder US exporters.

In other words, it inhibited only those that could be clubbed over the head by local lawyers.

The US did try to get the patent protection enforced in Europe but made no headway. What if these file swapping services simply go off-shore in a big way (hasn't Kazaa already done this)?

Likely and rather absurd result will a technology flourishing outside of the supposed leader in free enterprise.

Is this a good use of the term "irony"?

[Frenk]

Stretch: modern American ideas about intellectual property are just that--modern and American. I challenge you to cite an example of such ideas from "hundreds of years ago."

I would also like you to explain what contract I enter into when I buy a CD. I never sign anything, nor even click a "Yes, I agree" box. There is NO CONTRACT.

Personally, I think that as long as one does not profit from selling reproductions of CDs etc., there is no moral problem. Hell, you can distribute MY writings all you want, just don't change my name.

Intellectual property supporters will disagree, but the majority of people agree that reproduction without profit is not immoral. And, like sodomy laws, eventually the government will wake up to the fact that most everybody is ignoring the law. It's just a fact that, beyond the basics, morality is just what the majority does.

And RADIOHEAD? Ewww.

[JDM]

"modern American ideas about intellectual property are just that--modern and American. I challenge you to cite an example of such ideas from "hundreds of years ago."

Perhaps this has had something to do with the astounding technological progress modern America has made. The market incentive for new ideas is greater, leading to greater emphasis on producing new ideas.

All the talk about eliminating intellectual property to facilitate music downloading, is a good example of how much people are capable of talking themselves into. The hardcore libertarians are so anti-government that they refuse to recognize any good a government can do, and the rest of you are just rationalizing your behavior.

[Croesus]

As there appears to be some misperceptions concerning the history of copyright laws, here's a brief history of the copyright, for those who would like to know.

The origin of copyright law in Anglo-American jurisprudence grew out of the original grants of monopoly that were granted to merhcants guilds (same is true for patents, BTW). The first "copyright" was granted by royal decree in 1556, not long after the introduction of - you guessed it - the printing press. For political reasons, the Crown consolidated the new printing business in the hands of the "Stationers' Company." It gave to the printers of this compnay (NOT TO THE AUTHORS!) the exclusive right to control the printing and sale of books, forever. As one can imagine, this right was conferred opn loyal publishers who would not print books that were considered politically or religiously objectionable!

After this excluisive right ended in 1694 (as I recall, they may have backed the wrong horse in the Glorious Revolution), and facing heady competition, they promptly sought assitance form the Parliament to help them. It finally came in 1710 with the Statute of Anne. This vested AUTHORS of books a monpoly over their works - no doubt to the surprise of the publishers. This statutory right (unlike the earlier grants given to publishers) was limited to only 14 YEARS, renewable for an additional 14 by the author alone (not relatives, etc.). The Statute of Anne also gave the power to the government to regulate prices for copyrighted boosk upon application by disgruntled consumers (this is like the compulsory license law of today).

You can read about the continental approach to copyrights in Stephen Breyer's (now Justice Breyer) law review article "The Uneasy Case for Copyright," 84 Harv. Law Review 281 (1970), where he qoutes a 16th century French lawyer who argued that "as the heavens and th earth belong to God, because they are a work of his word ... so the author of a book is its complete master, and as such can dispose of it as he chooses." This is in line with the continental approach of viewing copyrights as moral or personal rights (thus, the French laws which disallow things like colorizing a B&W film without the author's permission).

In the US, most of the states copyright laws modelled on the Statute of Anne - some going even further in their "pro-consumer" approach by allowing the government to regulate both the price charged and the number of works produced. Problems with reconciling these laws was part of the reason why the Constitution granted the Federal Government the power to create copyrights (and patents for that matter). This power was excercised in 1790, with a statute that looked very much like the Statute of Anne like it, it granted protection for 14 years (which was renewable for another 14), and like it, it was limited to books. However, a series of amendments and court decisions expanded its reach, adding prints, musical compositions, photographs, etc. The most significant overhaul of the Copyright Act came in 1909 - which expanded protection for literary works to include "all writings" (thus letters could be copyrighted for example), and expanding the duration of copyright to 28 years (renewable for another 28). The 1976 Act brought the protection we see today - works which are "fixed in a tangible medium," and the 1988 amendments to it got rid of the old formal notice requirements for good. Also the 1976 Act pre-empted state law where the federal law held sway (thus works fixed in a tangible medium are now only protected by the US government). 1980 amendments allowed expressly incoporated computer programs under the Copyright Act, and well know about the Sony Bonno exnteion of protection under the 1976 Act from life plus fifty (75 years for corporate authors) to life plus 70 and 95 years for corporate authors.

Hope that's helpful.

[Stretch Cannonbury]

Yes, it is helpful. Like I said, centuries.

Let me stipulate (a) that record companies are, almost without exception, bloodsuckers who lie, cheat, and steal from artists AND consumers without shame. On that, we can agree.

Frenk - You're not reading very closely. Ecoutez bien! What I said was, ASSUME we toss out all the legislation and regulation relating to copying somebody else's creative output and giving it away for free to strangers without even one neuron pondering for one second the moral implications of such a decision (since that seems to be the "libertarian" default position - I'd call it anarchical).

Assume that. It's all out the window. YOU'D STILL BE LEFT WITH CONTRACTS TO DEAL WITH, because that's all that the artists or their agents would have to resort to. At that point, you either agree to their terms or not.

If you agree to their terms, then you agree with me that legally and morally you may not distribute their creative output, and you morally (if not legally) may not traffic in that creative output even if you weren't the one to put it out there.

Your only argument is this: Well, try to catch me, fuckos.

That's not an argument and that's not a moral position - that's greed in search of justification.

Now, y'all tell me this isn't how the law works today. Fine - you probably know better than I do. But if you get your way and all laws relating to copyright and intellectual property - two laws that have constituted a pillar of western development - are tossed out the window because you want to DOWNLOAD SOME TUNES WITHOUT PAYING FOR THEM, you STILL have contract law to deal with, and there's no getting out of it. So you'll never win unless you decide to break your agreements, which is an act of some intellectual contortion for supposed libertarians to deal with.

[Croesus]

Stretch,

Intellectual Property is made up of four sub-classes. Specifically, Trade Secrets, Patents, Trademarks and Copyrights.

As far as contract law is concerned, you can't bind third parties to a contract if they haven't signed it. Now, you could nail that third party in tort for unfair competition (you need to see the Restatement on Unfair Competition aboutn this) or some other type of fraudulent behavior, but contract law isn't going to be very helpful to you beyond the parties who signed the contract. Let me give you an example. Say I sign a contract w/ X music compnay, to sell 500,000 copies of a CD. Now, what if I secretly burn that and sell it on my own label? Right, I have violated said contract, and I have to pay damages for such (generally one pays only actual damages in a action for contract violation; punitive damages are not commonly awarded). However, for Y citizen on the street, who bought this knock-off CD, they cannot be held liable for the breach. Now, if they knew or should have known about said breach, you might be able to nail them under some tort theory, but contract law is not going to help you a nary bit.

[Stretch Cannonbury]

Ok, you seem to have utterly failed to understand anything I have said. And as I'm not capable of being any clearer than I was, I can just ask you to reread what I wrote.

[Croesus]

Stretch,

Why don't you give me an example then?

[Anonymous]

"If you agree to their terms, then you agree with me that legally and morally you may not distribute their creative output, ***and you morally (if not legally) may not traffic in that creative output even if you weren't the one to put it out there.***"

Emphasis added.

[Anonymous]

All this dickering about which law applies to what seems beside the point. As the historian amongst us pointed out - copyright was introduced to implement censorship, not foster creativity etc. It has turned into a license to "print" money, since copyright holders continue to profit from something long after it has been "created", and bears no relation to the cost of production (CD's for a $1.50 anyone?).

What we have now is an attempt by existing copyright holders to extend their assigned right of gouging consumers.

The rest of this discussion is just blather.

[Frenk]

Stretch: Where is the contract? What contract? There is no contract! NO CONTRACT. I signed nothing, I agreed to nothing.

Croesus' input is very valuable, and I thank him (as should Stretch, who obviously could provide no basis for his own remarks). I was too hasty in my writing, and stand corrected. I should have said, "such ideas are modern and European," but I didn't. Mea culpa. However, there is no commerce involved in what we discuss. No money made; nothing sold. There is no commerce, ergo copyright--rights to control commerce--does not really apply.

Copyright is, as it should be, distinct and different from "intellectual property" as we have it now in the US. We have moved away from a very limited right of a creator to "control" (i.e., sell) his works for a limited period of time. We have moved away from control of commerce to total control.

Stretch, I certainly never make the argument that "you can't catch me." To me, theft of "intellectual property" can only exist when the user profits from the copying. There exists "fair use." For example: I go to the library; I find a poem that I like by, say, Charles Bukowski. I photocopy it for my own enjoyment. I have not been immoral, NOR ILLEGAL. If I make two photocopies, and give one to a guy on the street because EVERYONE should read Bukowski, well, it's still not immoral, but is it fair use? Some would say that, in principle, it's not. If I give it to a thousand people, I am still not immoral, just generous.

My point: If there is nothing sold, no profit gained, no money exchanged, then there is no theft. If I make pirated CDs and sell them, I have certainly committed theft; if I copy a CD and give it for free to a friend, I have not. If I decide that I am friends with all of the USA, then so be it.

[Anonymous]

Fuckin Jackson Pollack, Matisse, Picasso -- theirs wasn't art. Theirs was the splattering of paint driven by a sick mind.

[Charlise O'Connor]

Yes, fine, Frenk, but the idea of protecting a marketable commodity (be it intellectual or tangible) is because it represents a VALUE, which can be translated into a livelihood. Such a commodity becomes a de facto value when it obeys The Law of Scarcity -- else it wouldn't be a marketable value.

Now, by freely distributing a million copies, you thereby DILUTE the value (its scarcity) and, hence, deprive the inventor or the creator of her livelihood. This is morally, if not legally, THEFT.

[Frenk]

Charles ,
Your point is potentially a valid one. But I would ask: are you sure? Aren't there lots of ways to dilute value? (Value itself is a tricky concept, but any argument about it would take too long.)

Suffice to say: If I am, say, Opera Inc., and I make and give away a program that does the same thing that Netscape does, don't I dilute value? After all, Netscape is going to have a hard time selling their product when everyone is getting something that does the same for free. Value has been diluted. And it's only illegal to do this in certain--very limited--situations, under laws that are rightly criticized by pro-free-market thinkers.

I still don't think that free exchange of material is immoral--as long as there is no profit-taking involved.

But, I hope that Stretch and everyone else who takes the hard line on intellectual property rights remembers to obtain permission from copyright holders whenever they, say, sing "Happy Birthday" at a public gathering. Because otherwise, they risk treading on the copyright holders' property rights.

[Charlise]

Frenk, your points are also valid, academically. A case in point was Microsoft being accused of (supposedly) diluting the value of Netscape's browser, and over which (as you know) there was a rather lengthy lawsuit.

You're also correct when you characterize value as a "tricky concept." Value is, after all a very subjective assessment -- even though governments would like to believe otherwise.

Value is whatever the acquirer deems an object to be worth. Or, as in the case of the Opera browser -- you get exactly what you pay (or don't pay) for.

So if you get muffled yawns, or some other polite reactions, after singing "Happy Birthday", please don't be surprised.

Similarly, if freeloaders (excuse me, downloaders of "free music") soon find themselves standing in line at Best Buy's cash registers with the proper CDs in hand, they should not be surprised either.

TANSTAAFL

[Anonymous]

you are really crazy man but in a way you are about what you are saying

[Ken Wright]

This has been some great reading.

It seems the State (Ohio) is going after the 3rd person.

Long ago, I downloaded (but never installed) a copy of AutoCAD 2000 and 2002. Once I read the license, I said piss on it.

I don't give out software (or MP3's to anyone, INTERNET or otherwise) or "share" files.

For a completely unrelated matter a search warrant was used against me to get all of my computers and software (I was accused of hacking a website that I own.)

After 7 months, I have been charged with Grand Theft (Ohio Revised Code 2913.02 (A)(1)).

Now, this was download from a public site and no fancy labels, ect...

I had these programs burned to a CD (they were in ISO format when downloaded) and I just never tossed em. In my mind, they were just like the numerous AOL Cd's I get in the mail, JUNK.

I don't think this would qualify as a theft offense because I took nothing from the owner (Autodesk.) They lost nothing because I would never have bought them in the first place.

Something is seriously wrong if I end up being convicted of this.

[Speck Will]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://www.QUALITY-PENIS-ENLARGEMENT-PILLS.NET

DATE: 12/10/2003 10:09:45
Perceptions do not limit reality.

[Chimera Beth]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://.nonstopsex.org
DATE: 12/21/2003 12:59:25
Interesting site, is all true ?

[packard aaron]

EMAIL: [e-mail]
IP: 68.173.7.113
URL: http://loose-weight.weight-loss-central.org
DATE: 01/10/2004 12:35:27
The professor makes the syllabus, not you.