The Myth Of Original Creators

from the creativity-is-built-upon-others-ideas dept

We recently wrote about how many different sources Shakespeare used in writing King Lear, some of which he apparently copied verbatim. However, it seems quite likely that what Shakespeare did with those words created something wholly unique and valuable (at least, it's withstood the tests of time). Yet, this idea that taking the works of others and doing something with them to make them new and wonderful seems to be an anathema to the "true believers" in copyright, who insist that creativity is about being wholly original, and almost never about building on the works of those who came before. Yet, there's almost no evidence to support this. Nearly any creative work can be shown to be built upon the works of those who came before (hell, even our own copyright law is copied from others').

Law professor Peter Friedman recently had a few interesting blog posts that helped highlight this. First, he noted that the very notion of an author as the originator of a new work is a relatively recent phenomenon, and part of the Romantic Movement. However, prior to that, the view was much more akin to what we're actually seeing today with online tools of creation: "creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing."

He then goes on to discuss the blues musician Robert Johnson -- considered by many to be the "quintessential" Blues musician. However, a recent study into Johnson's work suggest that his fame and renown is basically an accident of history. Some British musicians heard Johnson's music, and since they'd never heard it before, they credited him for it, even though he was mainly copying (and building on) the work of others:
Conceptions of Robert Johnson's work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson's work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson's music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music.
Friedman also points back to another recent post where he discusses the nature of content creation, based on a blog post by Rene Kita. In it, she points out that remixing and creating through collaboration and building on the works of others has always been the norm. It's what we do naturally. It's only in the last century or so, when we reached a means of recording, manufacturing and selling music -- which was limited to just those with the machinery and capital to do it, that copyright was suddenly brought out to "protect" such things.

But, today, with the rise of the internet, and the ability for anyone to perform those roles, we run smack dab into conflicting interests. People still want to create the way they always have, but the industry of the last century, that has relied on copyright law to make its product seem different and "original" freaks out about this ongoing content creation:
Culture is a conversation. Every act of culture is a reply to something, a restatement, correction, modification, reworking. Lawyers are constantly debating how much modfication is required to make a work legal. Thus, you may 'create' a new instance of The Blues(TM Martin Scorsese), by shuffling the notes and words around by a set amount. Shuffle too little and you're in trouble with the law. Shuffle too much and the purists start screaming rape. Still, artists are trained to recognize what is a new song and what a version and their publishing companies have experts to deal with these matters. And there we enter the crux of the matter:

Copyright law is corporate law. Or it used to be.

Previously, it took heavy investment to publish art, music, writing, so it was always done by companies and professionals. Today, squirting anything into a blog is an act of publishing. The legalese you signed by clicking when you started your blog forbids any use of copyrighted material that you don't own. Suddenly, instead of plain ordinary citizens entitled to sing "Poops, I did it again" or tape Brad Pitt's face in a toilet bowl onto a postcard to a friend, we are all professional artists required to Create Art from Scratch. Because we are no longer just having a conversation, in which we quote from everything we have seen and heard without any thought of Creation and Originality. Your piddling little blog is a Publishing Enterprise held to the same legal standards as Time Warner Inc, except that you do not have the funds to pay for any borrowings.

You have been muzzled.

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry - unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.
It's nice to see more and more people recognizing and speaking out about these things. The idea that there is a single "author" or "creator" who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it's inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.


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    ChurchHatesTucker (profile), Jul 2nd, 2009 @ 6:09pm

    Yes indeedy

    There was a story I heard a bit ago of some blues singer chiding another singer for stealing her songs (I think it was the sixties or so) and he asked her how much she compensated the prison workgangs who originated them. She left him alone after that.

    That's all I can remember about that exchange. Sound familiar to anyone?

     

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    Anonymous Coward, Jul 2nd, 2009 @ 6:13pm

    Remarkable: mankind is affected by the things that have happened before.

    Next you are going to say nothing is copyrightable because in the end, sound is natural and language has been around for a long time. ;)

     

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    Sorix (profile), Jul 2nd, 2009 @ 6:42pm

    wow

    i have to agree with the coward on this one. i don't want to but what they are saying is true

     

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    Bill W, Jul 2nd, 2009 @ 6:58pm

    Compilation?

    I am struck, reading this, that this very post is but a compilation of and builds upon the references that you cite.

    Such is creativity.

     

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    Luke S. (profile), Jul 2nd, 2009 @ 7:04pm

    Nothing can be built without foundations. Sound leads to rhythm, rhythm leads to tribal chants, to primitive music, to songs to classical music and so on...

    Nothing is truly original since the creation.

     

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    Mirai Warren, Jul 2nd, 2009 @ 7:20pm

    What I got from this article is that record companies, copyright extremists, and self-important artists simply contextually unaware or too economically interested to admit relaxed or abolished copyright.

     

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    Anonymous Coward, Jul 2nd, 2009 @ 7:57pm

    Equality

    Your piddling little blog is a Publishing Enterprise held to the same legal standards as Time Warner Inc, except that you do not have the funds to pay for any borrowings.

    You have been muzzled.


    "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread."
    -- Anatole France

     

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    Liz, Jul 2nd, 2009 @ 8:08pm

    Archetypes

    According to the Greek philosophers, all art is copying from the world, and the only "original" ideas belong to God.

     

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    Reed (profile), Jul 3rd, 2009 @ 12:15am

    Copyright is just plain copywrong

    Great examples of how creative works of our culture have always been based upon prior works.

    If you look at the oral tradition, a tradition that kept our culture going for thousands of years, you see the very foundations of our social interactions and social awareness. Nobody owns the works of our culture.

    Take even a modern high budget movie. So Sony says they "own" it, but without the context of our culture and all the people that worked together to make it happen and then all the people that watched it and appreciated it it would be meaningless.

    I wish people would appreciate how creativity happens and embrace the reality that copyrights and IP law in general are about opression. It is not nor has it ever been about protecting the people that actually create.

    I for one do not want to give up the creative freedom that made us who we are.

     

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    Anonymous Coward, Jul 3rd, 2009 @ 12:34am

    Have an original thought. Right now. Go ahead, I dare you.

     

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    Doctor Strange, Jul 3rd, 2009 @ 1:19am

    Ahh, the planet Masnickia. The world where nobody is ever legally hassled unnecessarily. Where the law has no gray areas whatsoever, and no ambiguity. Where "I know it when I see it" is among the most obscene phrases in spoken language. Where disputes are handled with algorithmic precision, all outcomes consistent with each other and with a reasonable and mathematically provable standard.

    (A straw man, you say? No more than a world in which even the slightest inspiration is cause for copyright alarm.)

    Amazingly, despite all the inherent fuzziness and ambiguity of the issue, most people can distinguish between something "original," something inspired by other things, and a blatant ripoff. Unfortunately, they likely cannot provide the exact algorithm by which they make this distinction, but they make it nonetheless.

    The idea that there is a single "author" or "creator" who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it's inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.

    The implications, through ambiguity, of this statement bother me tremendously. When you say "builds upon" what do you mean? Are you talking about the ten money-grabbing people who will sue J.K. Rowling because they wrote stories about wizards or boys or boy wizards 30 years ago, or are you talking about people that think that you should pay J. K. Rowling if you want to make a film adaptation of Harry Potter and the Chamber of Secrets?

    If you're talking about the former, then you're arguing against a minuscule minority barely worth consideration. If you're talking about the latter, then I'm not sure it is they who are being ridiculous.

    The constant railing against the (supposed) status quo and the ridiculousness of copyright law with nearly no information about how you would actually go about fixing the problem is getting tiring.

    What do you want? What changes in the law would satisfy you? What rights should creators have, if any?

    You need to define your position in positive, not negative terms. If you ask me to describe an elephant, it's accurate but not particularly helpful for me to tell you "It is not a liquid and it is not furry." Likewise, it's unhelpful to define a position on copyright solely in terms of what you don't like about the current system.

     

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      Anonymous Coward, Jul 3rd, 2009 @ 5:48am

      Re:

      What Mike wants...if I might be so bold as to speak for him...is for you and me and all of us who read this blog to think about the issues he blogs on and come up with our own potential solutions.

      The very gray-areas, the ambiguities of which you write are exactly the places where this discussion needs to occur.

      In that way, the laws that we all abide by would more likely reflect all of our understandings and concerns. And, perhaps, the gray-areas would be lessened, making it easier to be creative and not run afoul of the law.

      Now, as for the idea that creation runs the continuum from complete originality to complete derivation...well, duh...

      I struggle with the idea that you can (or that we should) arbitrarily pick a point along that continuum where we legally protect one from the other.

      I also don't think that these issues were necessarily important or considered during the original development of copyright laws in this country.

       

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      BobinBaltimore (profile), Jul 3rd, 2009 @ 6:31am

      Re:

      Amen. This is the same concern I have articulated (not as well as you) about the free "business models" (which aren't business models) that Mike espouses. The details of what should be are scant, fragmentary, sometimes based on micro-niche examples and often stated in the negative. Over philosophized pronouncements that ignore ambiguity and ignore the practical realities that most cultural members can intuit are not very useful to create actual solutions which can be applied in this plane of existence, on this planet.

       

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        Reed (profile), Jul 3rd, 2009 @ 11:51am

        Re: Re: Mommy wow, I am a big boy now!

        "Over philosophized pronouncements that ignore ambiguity and ignore the practical realities that most cultural members can intuit"

        Most people 300 years ago could "intuit" that slavery was the best way to increase production.

        Trying to push what Mike is saying into some philosophical existentialism is like trying to say that abolitionists were just high minded jerks who couldn't see the truth that slaves made money.

        When you get ready to pull your head out of your ass and take a look around at "reality" we will be waiting to resume this conversation....

         

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          BobinBaltimore (profile), Jul 3rd, 2009 @ 6:58pm

          Re: Re: Re: Mommy wow, I am a big boy now!

          I love self-appointed representatives of the "we." You must be very important. Not worth my time.

           

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      M13 (profile), Jul 3rd, 2009 @ 6:47am

      Re:

      "despite all the inherent fuzziness and ambiguity of the issue, most people can distinguish between something "original," something inspired by other things, and a blatant ripoff."

      Amen.

      Creating a thing that most people would consider original AND that is actually worth reading, watching, listening to etc is not easy to do. If one wants to float the proposition that there are no original ideas, and that artists work with pre-existing ideas, fine. But taking from prior art...the thing that others made is entirely different. People want to steal the valuable thing that they did not create because they are not wealthy enough (in skill or money) to afford their own.

       

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        Reed (profile), Jul 3rd, 2009 @ 11:24am

        Re: Re: Original my ...

        Amen!? I think you guys missed the whole point here.

        There are NO ORIGINAL WORKS PERIOD. One only has to do a quick survey of writing, songs, and art to see the same patterns repeating again and again.

        If someone can think of your same idea/concept/art/invention without seeing your work directly then that is a good bet there is nothing original about it. This is true for just about everything that is created nowadays and I challenge you to prove it otherwise.

        Everything that is created is not made in a vacuum. Try seeing what a boy raised by wolves creates.... A masterpiece of art? A great song? A new invention?

        It is our culture that creates and corporations that claim ownership of that creation. They are stealing what is not theirs and attempting to control the very fabric of our culture.

        This may not necessarily be a bad thing if corporations didn't put the almighty dollar above everything, even the above the worth of the people that make it possible for them to exist.

        There is only one way to describe an entity that puts more value on money than human being's health and happiness.

        Sociopathic

        The truth is that the money grubbers of this world are using IP law to their own benefit at the detrement of our whole society.

        I challenge you to show me truly original works, works created in a vacuum without society to build upon... You can't cause your full of it!

         

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          Anonymous Coward, Jul 3rd, 2009 @ 3:47pm

          Re: Re: Re: Original my ...

          There are NO ORIGINAL WORKS PERIOD. One only has to do a quick survey of writing, songs, and art to see the same patterns repeating again and again.

          That's a truly extreme position. To imply that nothing is original that is influenced in the barest hint of a way by anything that came before it would be a truly exceptional definition of originality.

          On a related note, a story:

          I was once TAing a graduate-level course and grading final term papers. In some of the papers, I would notice something funny - a shift in language, for example. I'd head over to Google and do a quick search for a four or five word string from a suspicious passage, in quotes, to ensure the words appeared in that order. Google searches billions and billions of pages of text, and you know how many came up? The mode was one, the average was certainly less than 5. Of course, what had happened was that these students had plagiarized content, and I ended up failing them.

          But the thing that struck me was that looking for just a four or five-word string, and in billions of documents, just one or two matches. Originality in at least one sense, it seems, is not so rare. Try it for yourself. Search for the string "a four or five-word string" and see how many hits you get. I get one, out of the billions of documents on the Internet.

          I challenge you to show me truly original works, works created in a vacuum without society to build upon... You can't cause your [sic] full of it!

          I can't, not because I'm "full of it," but because you have defined originality so narrowly as to make the set of original works zero. In doing so, you have advanced no helpful argument.

           

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            Reed (profile), Jul 4th, 2009 @ 12:41pm

            Re: Re: Re: Re: Original my ...

            "I can't, not because I'm "full of it," but because you have defined originality so narrowly as to make the set of original works zero. In doing so, you have advanced no helpful argument."

            There are no original works made by individuals in a vacuum is my point. This does go against the way you define "original" because it does not really exist in my mind.

            Your a teacher eh? Well then you are on the front lines of this insanity that has become the equivalent of cultural Nazism. When we continue to push students to "create" everything originally it becomes very plain with technology that very few things that are written have not been written many thousands of times before.

            With a population of 6 billion + people on this planet how long can we truly fool ourselves into believing we really came up with something that someone else hasn't thought of or created already?

            It is obvious to me at least that we need to re-think the argument around IP. It is flawed, so very flawed....

             

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              Anonymous Coward, Jul 4th, 2009 @ 3:22pm

              Re: Re: Re: Re: Re: Original my ...

              There are no original works made by individuals in a vacuum is my point. This does go against the way you define "original" because it does not really exist in my mind.

              This is a really amazingly extreme viewpoint to me, and it's honestly difficult for me to put myself in this mindset. Of course, you haven't provided a whole mindset, really, just a point: that you believe there is no such thing as an original creative work. Fine, but what, then, should be the implications of this? I take it that this inevitably leads you to intellectual property abolitionism, where you believe that everything created should therefore be in the public domain as soon as it's expressed.

              The reason I find this a hard viewpoint to understand is because I am acutely aware of the tremendous work involved in the creative process. In what other field of endeavor would people work so hard only to have their work declared the property of the commons as soon as it was made?

              Your a teacher eh?

              I have been. I have been a lot of things, many of them related to intellectual property in some way or other. I have written academic papers and given them away. I wrote a book and gave it away, and I wrote another book and sell it through a traditional publisher. I helped to prosecute a patent through trial, and I have written and published research that was cited as the sole reason a different group did not get a patent. I have sold software, and written and released software as open-source.

              When I spend three years of my life writing a book that takes thousands and thousands of pieces of data, and ideas from dozens of researchers all over the world, and summarizes, organizes, and comments on all of this in a way I and my co-authors invented and that is not shared by any other author in the field with whom I am acquainted, with appropriate citations and credit for everything, I have difficulty coming to the conclusion that I have done nothing original.

              Well then you are on the front lines of this insanity that has become the equivalent of cultural Nazism. When we continue to push students to "create" everything originally it becomes very plain with technology that very few things that are written have not been written many thousands of times before.

              This particular assignment would cause you quite a bit of consternation, then. It was a survey paper, which means that you go out and find a bunch of other people's papers in an area, read them, and then summarize them and comment on them in a way that the organization of ideas and your own comparison and contrasting is what makes the paper unique, rather than any particular new data or research.

              In this class, most of the students were able to develop their own unique expressions and organizations of this research. When they covered the same topic, did some come to similar conclusions or use similar organizations? Of course they did. But they were also all different: they summarized or simplified the ideas differently. They looked more closely at different aspects of the ideas. They organized the ideas along different dimensions.

              A few others decided to simply copy and paste long swaths of text from the papers they read, write a few connecting sentences, and slap a cover on it. One student decided to do so, but then reword each sentence, one at a time, from the original work.

              For you, it seems, any distinctions among these are meaningless, because every creative work falls in a single equivalence class: remixes of existing ideas. For you, there is no appreciation of the subtle originality and unique perspective that even a student just collecting the ideas of others can manage.

              Despite the "cultural Nazi-ism," all these works - these students' survey papers, my books, and so on - were able to be created. Others will be able to take my work and apply it in their own original ways, just like the students that will cite my papers in their surveys, the patent examiner who read my paper and used it to evaluate the novelty of another group's ideas, or the teacher who uses my book and puts his or her own unique spin on it in teaching a class. All this is legal and encouraged by the current system that you call Nazi-ism.

              I'm sorry if, by selling the products of my own independent work rather than giving them all away, I'm stealing your culture.

               

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                Reed (profile), Jul 5th, 2009 @ 6:05pm

                Re: Re: Re: Re: Re: Re: Original my ...

                "I'm sorry if, by selling the products of my own independent work rather than giving them all away, I'm stealing your culture."

                You are obviously an intelligent person but you do not understand the context of my debate around IP.

                The problem with reform is the concept of IP is flawed to begin with. IP law and theory goes against the way we have been communicating and expressing ideas/works for our entire human history.

                You say there is no such thing as cultural Nazism, but their are clearly many example of IP being used as a tool to suppress freedom of expression. Clearly many examples of Patent abuse. Obvious misuse of the copyright system to bully companies into consolidation or sell-out.

                The most important part of this is that there are no studies to prove the effectiveness of IP law. There is no meat to the idea that IP does anything beneficial for society at large. What is really needed here is some serious research level studies on this topic.

                You argument is very quaint, but it is on a micro level where IP theory and law has little impact unless you consider how information is controlled at a University level. The "Ivory Towers" of information control and how that hinders advancement is yet another debate about IP theory and law.

                The concept that we need to protect people's ideas and works is really ridiculous in my mind. The idea that you need to protect your works is also ridiculous. You create, you get paid, end of story. Why do we need to extend special protections? Without solid reasoning there is none.

                Your ascertain that you are stealing my culture is FALSE. Your pro-IP position in effect is enslaving our culture so that corporations can make a buck. This connects into corporations and the fact that they have legal personhood and how it effects the balance of power in our society.

                In the end I fear you think you have created your books, papers, etc. all by yourself. In reality know that every part of your existence is because of countless people before you. Your thoughts are OWED to the human race just as your ancestors offered their thoughts up to you.

                IP theory and its implementations seek to control these thoughts, to created walls between information, to thrust the individual above the context that has allowed him/her to exist. It is an extensive of selfishness and a new modern form of slavery.

                 

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                  Doctor Strange, Jul 6th, 2009 @ 12:12am

                  Re: Re: Re: Re: Re: Re: Re: Original my ...

                  You are obviously an intelligent person but you do not understand the context of my debate around IP.

                  I appreciate it and I do understand the context, I just think it's anathema.

                  You say there is no such thing as cultural Nazism, but their are clearly many example of IP being used as a tool to suppress freedom of expression. Clearly many examples of Patent abuse. Obvious misuse of the copyright system to bully companies into consolidation or sell-out.

                  In a nation with three hundred fifty million people and a western world with billions more, I can find numerous examples of any law being abused. Can you demonstrate at all that these particular abuses are out of line with those that would be predicted by just the law of large numbers? That these laws are being abused more than any other?

                  You argument is very quaint, but it is on a micro level where IP theory and law has little impact unless you consider how information is controlled at a University level. The "Ivory Towers" of information control and how that hinders advancement is yet another debate about IP theory and law.

                  I think you're seeing a conspiracy where there isn't one. You act as if professors (which are some of the free-est agents of any employed profession) and universities are in some sort of grand collusion to control information, when mostly they're just self-interested actors trying to get ahead. Have you ever worked and interacted with academics? I have, for more than a decade. The idea that professors would be able to get along within their own departments well enough to form "ivory towers of information control" is laughable, and the idea that they would ever give the administration enough time or credence to do it on a university-wide scale is even more unlikely.

                  The concept that we need to protect people's ideas and works is really ridiculous in my mind. The idea that you need to protect your works is also ridiculous. You create, you get paid, end of story. Why do we need to extend special protections? Without solid reasoning there is none.

                  For some things I created, I got paid. For some of them, I got paid far less than market rates, partially because I retained the rights. I spent three years of my life writing a book for which I was paid not a single cent during the writing. And why should anyone pay me for something of dubious value? The best way to find out how much something is worth is certainly to try to market it and see if people want it. Are you paid on a salary? How do you trace every dollar you're paid to the dollars you create for your employer? If you can't, why should they be paying you?

                  If someone could reasonably assess the value of my work just from reading it and pay me a lump sum for it, I'm sure they would. Sometimes they do, but with creative things it's very hard to judge value in advance, in part precisely because they are original.

                  Your ascertain that you are stealing my culture is FALSE.

                  I cannot parse this sentence.

                  Your pro-IP position in effect is enslaving our culture so that corporations can make a buck. This connects into corporations and the fact that they have legal personhood and how it effects the balance of power in our society.

                  Ah, this old trope. As if corporations were some golem wholly independent of the people that constitute them. People ally themselves in and with corporations, of their own free will, for their own reasons. I'm sorry if you don't like this, but it's really a consequence of free association.

                  In the end I fear you think you have created your books, papers, etc. all by yourself. In reality know that every part of your existence is because of countless people before you. Your thoughts are OWED to the human race just as your ancestors offered their thoughts up to you.

                  First off, I among anyone acknowledges the intellectual heritage of my own work I spend a lot of time in EndNote citing it. However, I did create them all by myself. I was sitting in my house, at my computer, typing the thoughts all by myself. Nobody else was there. I was doing the work. I no more owe my work to the human race than anyone working in tangible goods, for the same reasons.

                  IP theory and its implementations seek to control these thoughts, to created walls between information, to thrust the individual above the context that has allowed him/her to exist. It is an extensive of selfishness and a new modern form of slavery.

                  Yes, because God forbid individuals try to rise above the collective for their own gain. I'm not sure if you've noticed, but the United States is not really a collectivist society. And I should hope that your criticism goes beyond just intellectual property to all property, so at least your arguments will be consistent. I suppose your worldview is Marxist or Communist, then? I have no problem with this, but I'm not sure why you weren't just up front with this in the first place.

                   

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                    Reed (profile), Jul 6th, 2009 @ 9:07am

                    Re: Re: Re: Re: Re: Re: Re: Re: Original my ...

                    "United States is not really a collectivist society."

                    Go Home Doctor Strange opinions and get a clue, we would not exist without cooperation. Collectivist Society? Next thing you will be accusing me of communism lol

                    "As if corporations were some golem wholly independent of the people that constitute them."

                    Corporation have taken a life of their own on. It is NOT a matter of free association rather over a hundred years of corporate law that has brought them to this point. I don't think you have even considered this.

                    "I cannot parse this sentence."

                    No surprise there, you would have actually read the previous post I was responding to.

                    "Have you ever worked and interacted with academics?"

                    I graduated with high honors from UW. I have debated how academia controls information and how that can hinder development of concepts and theories. You have never even thought along these lines. Information control to you is a conspiracy, you have no background in communications or social policy.

                    I see by the end of your post you did call me a communist? Wow, you have fallen into one of the most inbred rhetoric of all, congrats. No surprise here :)

                     

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    Anonymous Coward, Jul 3rd, 2009 @ 6:40am

    > When you say "builds upon" what do you mean? Are you talking about the ten money-grabbing people who will sue J.K. Rowling because they wrote stories about wizards or boys or boy wizards 30 years ago ...

    I think Mike's point is Rowling did write about this topic and is indepted to the people who did it first culturally(bearing in mind that those ten people were probably not the first), but not financially. Those people should not be able to sue Rowling because it should not be a considered wrong to create a derivative work.

    > ...or are you talking about people that think that you should pay J. K. Rowling if you want to make a film adaptation of Harry Potter and the Chamber of Secrets?

    The distinction is largely meaningless. The film makers should not have to pay Rowling either. She makes money from her effort in creating a series of novels, and they make money from a series of films. People should be paid for the effort of content creation, not for the content itself.

     

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    herodotus (profile), Jul 3rd, 2009 @ 7:14am

    "Amazingly, despite all the inherent fuzziness and ambiguity of the issue, most people can distinguish between something "original," something inspired by other things, and a blatant ripoff. Unfortunately, they likely cannot provide the exact algorithm by which they make this distinction, but they make it nonetheless."

    I'm sorry, but I am not convinced of this at all. Much less am I convinced that this ability to distinguish between such things will survive a legal battle with any kind of intellectual integrity.

    And the Shakespeare example that no one ever takes up is quite accurate and damning. Shakespeare did 'infringe' of the works of Holinshed and others. If Sony had owned Holinshed's work, and Tudor England had had our copyright laws, Shakespeare would have been sued for copyright infringement.

     

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      BobinBaltimore (profile), Jul 3rd, 2009 @ 7:34am

      Re:

      A "legal battle with any kind of intellectual integrity." No idea what this means, but it sounds like a scenario, where "intellectual integrity" really means something like "with an outcome I agree with." The fact is there are regular and sometimes epic legal battles to distinguish these things exactly, and have been for many generations. Are they overwrought, expensive and sometimes engaged in slicing shades of gray, and occasionally unfair? Yes. But slicing shades of gray is one of the primary uses and purposes of the modern legal system the world over, whether it's an IP question, the question of intent as it relates to crimes, etc., etc. Does "legal integrity" equate to "intellectual integrity?" Perhaps not in all cases, but it's legal integrity that actually matters on an applied basis. I'm all for reforming the legal system to be more equitable, modern and realistic (which I guess, collectively, would swerve toward improved "intellectual integrity"), but the law and the legal system are what we have to work with and through. Everything else is pretty much a hypothetical battle of religion, philosophy and theory, otherwise termed a TechDirt pseduo-reality.

       

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    herodotus (profile), Jul 3rd, 2009 @ 9:40am

    "A "legal battle with any kind of intellectual integrity." No idea what this means, but it sounds like a scenario, where "intellectual integrity" really means something like "with an outcome I agree with." The fact is there are regular and sometimes epic legal battles to distinguish these things exactly, and have been for many generations. Are they overwrought, expensive and sometimes engaged in slicing shades of gray, and occasionally unfair? Yes. But slicing shades of gray is one of the primary uses and purposes of the modern legal system the world over, whether it's an IP question, the question of intent as it relates to crimes, etc., etc. Does "legal integrity" equate to "intellectual integrity?" Perhaps not in all cases, but it's legal integrity that actually matters on an applied basis. I'm all for reforming the legal system to be more equitable, modern and realistic (which I guess, collectively, would swerve toward improved "intellectual integrity"), but the law and the legal system are what we have to work with and through. Everything else is pretty much a hypothetical battle of religion, philosophy and theory, otherwise termed a TechDirt pseduo-reality."

    I like how you spend so many words disagreeing with your own interpretation of two words in my post.

    'Intellectual integrity' means not knowingly equivocating to get you way. Pretty cut and dried, really. Outcomes have nothing to do with it.

    No one wants to discuss the Holinshed example? No?? Why not?

     

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      Anonymous Coward, Jul 3rd, 2009 @ 10:15am

      Re:

      No one wants to discuss the Holinshed example? No?? Why not?

      1) Because you are using it to imply that we would not have had the works of Shakespeare if he could not have reworked the plot from an existing book?

      2) Because had copyright law existed as it does now, Shakespeare was not prohibited from writing an extension or an adaptation as you imply. He was prohibited from doing so without permission.

      3) Because even if he had not been able to get permission, the subject matter both wrote on was a myth that (even under current copyright law) would have been in the public domain, and all Shakespeare would have had to have done would be to avoid adapting the unique expression of the myth provided by Holinshed (which was minimal)?

      4) Because even if that were not enough, your argument implies that Shakespeare could not have created great original work without relying on the Holinshed sources had he been prohibited from doing so, which seems pretty unlikely?

      5) Because apparently Holinshed presented his stories as factual information (i.e., real history), which would have actually limited his ability to bring a successful copyright claim even under current law (see the recent legal wranglings between the authors of Holy Blood, Holy Grail and Dan Brown)?

      Alternate histories can be provocative and fun to read. For example, what if time-traveling racists had gone back to the Civil War South and supplied General Lee with AK-47s? Thankfully you don't have to answer this for yourself, you can read Harry Turtledove's excellent The Guns of the South. Perhaps you should write a novel about a time-traveling intellectual property attorney who goes back to the year 1600 and convinces Queen Elizabeth I to instate modern copyright law in England. Then you can use historical characters to play out the hypothetical wacky hijinks and all the hypothetical ramifications that would ensue. I'm sure it'll be a best-seller.

       

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    Hoby (profile), Jul 3rd, 2009 @ 10:21am

    awww yeah!

    Hell yeah.. it's like I've said for a while: creativity + sharing = culture.

    Remove one of the two and you ain't got diddly.

     

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    Stephan Wehner, Jul 3rd, 2009 @ 12:58pm

    Still original works

    Sorry, I think it is obvious: there are still lots and lots of truly original works, both in written form and otherwise.

    For example, if you look at Pamela Jones' writing at

    http://groklaw.net

    She produces lots of truly original and actually valuable writing. Simply by describing and analyzing events.

    Sure, lots of creative works are based on other works.

    Once you experience really bad art, however you realize there is more to it.

    Stephan

     

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    Karl Fogel (profile), Jul 3rd, 2009 @ 1:28pm

    Darn straight originality is constructed.

    ...what we've been saying for a long time now at QuestionCopyright.org.

     

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    Jonathan A. Marshall, Jul 3rd, 2009 @ 2:00pm

    Remixing code via LimeBits

    A white paper on remixing code was recently released by open-source code-sharing community LimeBits.com.

     

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    Anonymous Coward, Jul 3rd, 2009 @ 2:04pm

    Ugh the caveman owns the rights to everything. Bow down to Ugh!

     

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    Michel Ditlove, Jul 3rd, 2009 @ 2:34pm

    copyright

    Only the lazy, the untalented, those with no original ideas are so intent on stealing other people's ideas and are so anti copyright.

    Rant on and go ahead and steal, you're just perpetuating mediocrity.

    Ex: Get Smart came and went, Bond is still around.

    Do some homework and look at history, the originals last, the copies don't.

    So enjoy being mediocre.

     

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      ChurchHatesTucker (profile), Jul 3rd, 2009 @ 5:57pm

      Re: copyright

      "Ex: Get Smart came and went, Bond is still around."

      They both had movies recently.

      "Do some homework and look at history, the originals last, the copies don't."

      If that's true, what's the problem?

       

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      Alan, Jul 3rd, 2009 @ 6:08pm

      Get Smart

      "Get Smart" was not a Bond copy. "Get Smart" was a Bond satire. And it is a classic in its own right, more beloved by many (including myself) than the Bond films it riffed on.

      In fact, there have been many imitations of both Bond and Smart. Most are forgettable, though a few have been done well and have added new dimensions to our common cultural heritage. The fact that they built on previous works weighs on the side that claims that all works build on previous works.

      I'm not saying that creators of new works should have no copyright protections for their works, but those protections should have reasonable limitations, including a relatively short term - 10 years would probably be more than sufficient. The current copyright regime is an abomination.

       

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    Anonymous Coward, Jul 3rd, 2009 @ 6:33pm

    "Only the lazy, the untalented, those with no original ideas are so intent on stealing other people's ideas and are so anti copyright."

    And only mentally lazy people without insight make such sweeping generalizations.

    "Rant on and go ahead and steal, you're just perpetuating mediocrity."

    Here's the deal, some people who are against what copyright law has become are against it because it just seems foolish. Some of us might even have lost money because of copyright infringement.

    I, for instance, am principally a content provider, not a user. My company makes loops and multisampled instruments that are 100% newly created. My various bands also write and perform original music the old fashioned way. We record ourselves in our own studios. We never use anyone's copyrighted material for anything, because we don't need to.

    Now I am quite certain that my copyrighted works have been infringed, and that my samples made available through warez communities without so much as an attribution. My samples are cheap as hell, making this doubly annoying.

    But I am still against what copyright law has become in this post-DMCA world. It benefits lawyers most of all. It does nothing to encourage any kind of originality or creativity, because only the largest media companies can afford the legal expenses involved, and large media companies are risk-averse enterprises that will always favor that which is safe over that which is unusual.

    Check out the industry listings over at Taxi.com and see hundreds and hundreds of want ads that read like this:
    Wanted: songs that sound like top 40 country music celebrity X, celebrity Y, celebrity Z, celebrity Q or celebrity B.
    Wanted: songs that sound like top 40 rock music celebrity X, celebrity Y, celebrity Z, celebrity Q or celebrity B.
    Wanted: songs that sound like top 40 hip-hop celebrity X, celebrity Y, celebrity Z, celebrity Q or celebrity B.
    Wanted: songs that sound like top 40 pop music celebrity X, celebrity Y, celebrity Z, celebrity Q or celebrity B.
    Wanted: pieces in the style well known cheesy movie music celebrity X, celebrity Y, celebrity Z, celebrity Q or celebrity B.


    Originality has nothing to do with it.



    "Do some homework and look at history, the originals last, the copies don't."

    Actually, if you read enough history, you realize that what survives and what doesn't is a matter of caprice. I strongly suggest you look up Daniel Boorstin's 'Wrestler with the Angel' on this matter.

    "So enjoy being mediocre."

    See, now that's just rude.

     

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    Stefan, Jul 4th, 2009 @ 2:43am

    Re:

    I have a horrible sense of deja vu every time I look at Techdirt these days. Mike is at least putting what he writes about here into practice; these endless posts about copyright are clearly based on his own mind-numbingly repetitive earlier works, themselves based on... well, you can see where I'm going with this. Really, we get it; you don't like copyright. Any chance that you can at least build on these ideas, instead of merely banging the same drum over and over again?

     

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      Anonymous Coward, Jul 4th, 2009 @ 6:08am

      Re: Re:

      In many ways, I think that Mike may have hit the wall on much of this stuff. When you are down to arguing first amendment issues, you have pretty much lost every other point in play.

      Posts like this also show that Mike doesn't understand the differences between "influenced by" and "copied from". It's the reason he thinks remix DJs are creating something "influenced from" but not "copying from" the original music.

      Many of the posts here are like his presentation style. He keeps moving quickly so you don't actually have a chance to think about what he is saying,because all of your attention goes to the quickly blinking display. The average post on Techdirt doesn't stay on page 1 for longer than a day (unless it's the weekend, Techdirt is a monday to friday sort of thing), so things barely get going before they get blown off into history.

      In the end, that fast motion has been good for Mike the last little while, because he has been tossing up posts that are so easy to rip apart, I think he has been glad to see some of them disappear. Sadly for him, his "NIN, Radiohead, Corey Smith, Jill Sobule, Josh Freese" crew hasn't exactly been spinning out amazing "FREE!" news, so he hasn't had much to talk about that has wow-whee on it, so he is down to nuts and bolts. That's not his strong area, as nuts and bolts often expose people are the nuts they really are.

       

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    Mockingbird, Jul 4th, 2009 @ 9:31am

    creative copying

     

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    TonsoTunez, Jul 4th, 2009 @ 9:43am

    It's The Expression of an Idea That Counts

    That which is copyrightable is the EXPRESSION of an idea, not the idea itself.

    As with everything in life we build on the what came before us ... and, of course, that's the only way civilization advances.

    Anyone can express an idea any way they want, however, if they use someone copyrighted expression to facilitate their own expression they certainly open themselves to a legal challenge and rightfully so.

    Whatever technology allows people to do is quite irrelevant. No matter how brilliant a collage of other people's expressions may be, it's the use of the underlying expressions - and the public's awareness of those expressions - that make it brilliant.

    Great editors have always been important in the creative process, but they are only as good as the underlying material. DJ Danger Mouse would have been nothing without Jay-Z and and the Beatles. Who would have been interested in The Gray Album if it were a combined of works from the Creative Commons or from the vast reservoir material of unknown independent artists.

    Except in very limited fair use circumstances - from the copyright law perspective not from the Larry Lessig and crew bastardization of the term ... courts will always condemn the confiscation of copyrighted expression and the world's copyright laws will never be amended to allow it.

    Mike, you really need to stop being obsessed with trying to destroy the rights of those who truly advance our civilization - those who deliver the fresh expressions of ideas that provide those who aren't creative enough to operate without those expressions to move their personal agendas forward.

     

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      Mike Masnick (profile), Jul 4th, 2009 @ 10:47am

      Re: It's The Expression of an Idea That Counts

      Mike, you really need to stop being obsessed with trying to destroy the rights of those who truly advance our civilization - those who deliver the fresh expressions of ideas that provide those who aren't creative enough to operate without those expressions to move their personal agendas forward.

      I have no interest in destroying anyone's rights to be creative. Quite the opposite. I am 100% focused on preventing the destruction of rights to create. That's why I write about this stuff.

      What I am against is the effort by some (apparently including yourself) to stomp out others rights to create just to protect your own business model.

      That, to me, is sad and destructive and harmful to culture and society.

       

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        Anonymous Coward, Jul 4th, 2009 @ 1:11pm

        Re: Re: It's The Expression of an Idea That Counts

        Whoa, Mike .... You are 100% focused on the destruction of creators rights because you are demanding that incentives to create be removed from the law.

        You're right, this is about a business model, one that allows musicians and songwriters to use their creative abilities to work their way from nothing to becoming successful contributors to our culture and earn a living doing it without infringing upon other people's rights along the way.

        With the opportunities available on the Internet today, you really need to start focusing on the smallest of business people, the independent artists and writers who can use this medium to build their lives.

        Stop using big business and a world that no longer exists to cover your mission to destroy creator's rights that give them the ability to excel!

        Stop giving consumers excuses for snuffing the careers of young artists before they get off the ground ...

        It might be useful if you tried to understand what you were talking about before remixing the thoughts of other irrational copyleftists into mostly incoherent and mostly factually incorrect diatribes.

         

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          Mike Masnick (profile), Jul 4th, 2009 @ 3:55pm

          Re: Re: Re: It's The Expression of an Idea That Counts

          Whoa, Mike .... You are 100% focused on the destruction of creators rights because you are demanding that incentives to create be removed from the law.

          Not at all. As any basic instruction in economics and unintended consequences will tell you, the unintended consequences of gov't back monopolies will usually harm the overall market. So those "incentives" may benefit a small few who gain monopoly rents, but it harms the rest of the market. So I am not at all in favor of destroying creators rights. I'm in favor of understanding economics.

          With the opportunities available on the Internet today, you really need to start focusing on the smallest of business people, the independent artists and writers who can use this medium to build their lives.

          Heh. I do this all the time. I explain examples of small businesses, indie artists, and folks come by and complain that it only works for them because they're small and unknown and can do this stuff.

          So then I explain how it works for big businesses as well, and I'm told it only works for them because they're big and it never works for small artist.

          So then I explain the economic theory (plus the evidence) for why it works for everyone, and I'm told I'm just explaining theory and not giving any examples.

          So then I give an example of an indie artist doing this and I'm told that it only works for them because they're small and unknown and can do this stuff.

          Lather, rinse, repeat.

          Stop giving consumers excuses for snuffing the careers of young artists before they get off the ground ...

          I've never done that. I've helped many of those artists understand new business models that work, however.

          It might be useful if you tried to understand what you were talking about before remixing the thoughts of other irrational copyleftists into mostly incoherent and mostly factually incorrect diatribes.

          I still don't know what a "copyleftist" is. In the meantime, I would appreciate that you not say that I have said something factually incorrect unless you can point out what is actually factually incorrect about it.

          I've noticed that it's common for people who don't LIKE what I say to insist that it's factually incorrect, but NEVER explain what's factually incorrect about it.

          That's because it's not factually incorrect. It's backed up by a ton of evidence -- both in theory and empirically. Since you have presented no evidence to the contrary, I'm afraid I find your response to not be compelling.

           

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            Anonymous Coward, Jul 4th, 2009 @ 11:11pm

            Re: Re: Re: Re: It's The Expression of an Idea That Counts

            "Not at all. As any basic instruction in economics and unintended consequences will tell you, the unintended consequences of gov't back monopolies will usually harm the overall market."

            If the government was doing this, you would have an argument. But the government doesn't do this. A monopoly would suggest, example, that all phone service can only be had from a single company. Yet, with innovation and inventiveness, we have more phone options today than we have ever had - even though your local phone company was a monopoly.

            Amazing, isn't it?

             

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        Anonymous Coward, Jul 4th, 2009 @ 2:10pm

        Re: Re: It's The Expression of an Idea That Counts

        "I have no interest in destroying anyone's rights to be creative. Quite the opposite. I am 100% focused on preventing the destruction of rights to create. That's why I write about this stuff."

        Again, you fail to understand the basic difference between "influenced by" and "copying from". Creative work actully produces a new product, where copying just takes what is there, perhaps adding some punctuation or an "oh yeah" in the chorus of a song.

        Until you actually figure that out, the rest of the discussion is meaningless. You keep telling us to take econ 101, but it is hard to work your material through when you fail on the basics that come before even considering economics.

         

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          ChurchHatesTucker (profile), Jul 4th, 2009 @ 7:23pm

          Re: Re: Re: It's The Expression of an Idea That Counts

          "Again, you fail to understand the basic difference between "influenced by" and "copying from". Creative work actully produces a new product, where copying just takes what is there, perhaps adding some punctuation or an "oh yeah" in the chorus of a song."

          I've heard that argument before. I suspect you have copied it. It's certainly derivative in any case.

           

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    Anonymous Coward, Jul 4th, 2009 @ 11:29am

    "Nearly any creative work can be shown to be built upon the works of those who came before (hell, even our own copyright law is copied from others')."


    If you really want reform in copyright laws sue the lawmakers for infringement since they copied it from someone else

     

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    Scott Bourne, Jul 4th, 2009 @ 5:16pm

    Copyright

    Classic debate 101 - create a false argument and attack it.

    So this is a total straw dog. There's no valid reason to consider whether or not someone is actually the original creator of a work. For the purpose of a Copyright discussion that involved intellectually honest folks (i.e., not the author of this post) the only thing that matters is the first registrant of the expression of a particular idea. PERIOD.

    Everything else is BS. But hey - congrats on finding way number 27,218 to try to justify enjoying, using or profiting from someone else's hard work without paying for it.

     

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      peter (profile), Jul 5th, 2009 @ 3:55pm

      Re: Copyright

      No, Scott, you're actually wrong. Copyright does not depend on registration. You own a copyright in an original work as soon as you've fixed it in tangible form regardless of whether or not you ever register it. And in fact there's considerable dispute and litigation over whether (1) a work is original enough to receive a copyright, and (2) whether a work that appropriates copyrighted work is sufficiently "transofrmative" that it constitutes a non-infringing fair use.

       

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    peter (profile), Jul 4th, 2009 @ 8:54pm

    influenced by/copied

    I wish I were as confident as Coward I could always draw a bright line between "influenced by" and "copied from." You all should read Jonathan Lethem, "The Ecstasy of Influence: A Plagiarism." (http://www.harpers.org/archive/2007/02/0081387) It's brilliant, original, and almost entirely copied from other sources. And, of course, it's about the monumental difficulty, if not futility, of distinguishing between "influenced by" and "copied from."

     

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      Anonymous Coward, Jul 5th, 2009 @ 9:36am

      Re: influenced by/copied

      It's easy.

      "Bond, James Bond" would be a copy.

      "Dieter, Brian Deiter, private detective" would be influenced by.

       

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    TonsoTunez, Jul 5th, 2009 @ 9:16am

    Re: It's The Expression of an Idea That Counts

    "As any basic instruction in economics and unintended consequences will tell you, the unintended consequences of gov't back monopolies will usually harm the overall market...

    Mike, your attempts at economic voodoo have been soundly debunked throughout this thread, so, I don't need to go there - but let's go here ... in your zeal to have the copyright law neutered in such a way as to remove all economic incentives for those who create, why don't we apply a little quid pro quo by making it illegal for anyone who currently uses music to make a profit to do so.

    For example let's make it illegal for Google and its various services, including YouTube, to earn a dime from any service that includes music.

    Let's make it illegal for radio and TV to profit when music is part of an attraction.

    Let's make sure that any restaurant or bar that uses music as part of their ambiance doesn't charge for food.

    As for the members of the Consumers Electronic Association let's be sure they aren't allowed make a profit from any electronic products that deliver music to the pubic. Apple, for example, should give ipods and iphones away at no charge.

    And, shouldn't concert promoters and theater owners be forbidden to present programs that include music?

    And, what about the scavengers feeding off the death of Michael Jackson, why should they be allowed to include any of his music in any of their offerings?

    What about the good ol' ISPs? Should they be allowed to charge for any part of their service that delivers music to their subscribers?

    As for our open source friends, shouldn't they be forbidden from creating any products that facilitates the delivery of music?

    On January 13, 1864, world renowned composer, Stephen Foster, died at age 37 with 38 cents in his pocket. Foster's only real income was the royalty he earned on sheet-music sales. Altogether he made $15,091.08 in royalties during his lifetime (his yearly average was $1,371 for his 11 most productive years). His heirs, Jane and Marion equally, later earned $4,199 in royalties, so that the total known royalties on his songs amounted to $19,290. (http://www.pitt.edu/~amerimus/foster.htm)

    There was no copyright protection in place for Foster at the time ... and the multitudes of technologies we have today that rake in huge sums of money by being conduits for music didn't exist either.

    Your proposals would condemn all creators to an economic life similar to that of Stephen Foster by stripping them of their rights granted by the copyright law. If that were to come to pass, it seems to me it would only be fair to restrict profit making technologies from advancing their businesses on the backs of music and those who create it.

     

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      peter (profile), Jul 5th, 2009 @ 3:44pm

      Re: Re: It's The Expression of an Idea That Counts

      Stephen Foster is another example brought up by a commenter dismissing Mike's point that, upon closer examination (not exhaustive, just a little closer, with a little effort), doesn't support the point it is intended to support. First, there WAS copyright protection in Stephen Foster's day, and, in fact, his wife and daughter received royalty payments Foster had negotiated for many, many years after Foster's death. Foster's problem, the reason he fell into poverty, was that he was a lousy businessman who negotiated terrible deals with his publishers. In other words, his poverty did not result from copyright protection or the lack thereof. Publishers made a lot of money off of Foster's compositions. But Foster died destitute because his publishers exploited him. Shades of the record business these past many decades perhaps?

       

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      Mike Masnick (profile), Jul 5th, 2009 @ 5:07pm

      Re: Re: It's The Expression of an Idea That Counts

      Mike, your attempts at economic voodoo have been soundly debunked throughout this thread, so, I don't need to go there

      I'm sorry... I haven't seen a single economic point debunked, so I'm afraid you can't just brush it off. If you claim it's been debunked, please point out where and how it's been debunked.

      in your zeal to have the copyright law neutered in such a way as to remove all economic incentives for those who create

      With such a statement, you lose all credibility. How can you possibly claim I'm trying to remove all economic incentives from those who create when (a) I spent a ton of my time *working with* content creators helping them improve their business models and (b) many of the posts here show content creators how to earn MORE MONEY doing what they love to do the most.

      I'm at a loss how you can possibly claim I'm trying to remove all economic incentive. I'm trying to do the exact opposite, and judging by my email, an awful lot of musicians appreciate the help.

      why don't we apply a little quid pro quo by making it illegal for anyone who currently uses music to make a profit to do so.

      Why would anyone want to do that at all? I'm doing the exact opposite. I'm trying to show people how to BETTER profit off their works, so that they don't find themselves in trouble as the market shifts.

      *** List of bizarre nonsensical statements about barring profit deleted ***

      What sort of point are you trying to make here? No one has ever said anything about trying to bar anyone from profiting. We're talking about the exact opposite. However, our concern is when someone doesn't try to profit by offering what the market wants, but by trying to hold back what the market wants.

      On January 13, 1864, world renowned composer, Stephen Foster, died at age 37 with 38 cents in his pocket. Foster's only real income was the royalty he earned on sheet-music sales. Altogether he made $15,091.08 in royalties during his lifetime (his yearly average was $1,371 for his 11 most productive years). His heirs, Jane and Marion equally, later earned $4,199 in royalties, so that the total known royalties on his songs amounted to $19,290. (http://www.pitt.edu/~amerimus/foster.htm)

      Peter already discussed how this example doesn't support your point and how you are wrong about Foster and copyright.

      Your proposals would condemn all creators to an economic life similar to that of Stephen Foster by stripping them of their rights granted by the copyright law.

      Please explain, then, why we're seeing more and more artists profiting tremendously without using copyright as the crutch.

      You seem to think the only way to profit is via copyright. That's simply not true. Get past that headscratcher, and open your mind to the wonderful world of possibilities from new business models that are enabled.

       

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    identicon
    Jason, Jul 5th, 2009 @ 10:29am

    Rene Kita seems to be a "he."

     

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    peter (profile), Jul 5th, 2009 @ 12:42pm

    influence by/copied from

    Coward: Interesting that as evidence you have no problem drawing a bright line between something that's been copied by an original and something that's been merely influenced by an original you should suggest "Deiter, Brian Deiter, private detective" would not constitute a copy but only betray influence as proof. In fact, it seems you've proved my point that it's a very difficult line to draw. Wouldn't this case be like your example of influence? Defendants' "Escape" commercial features a young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter. A grotesque villain with metal-encased arms n2 jumps out of the helicopter onto the car's roof, threatening harm. With a flirtatious turn to his companion, the male driver deftly releases the Honda's detachable roof (which Defendants claim is the main feature allegedly highlighted by the commercial), sending the villain into space and effecting the couple's speedy get-away. MGM v. American Honda, 900 F. Supp. 1287 (N.D. Cal. 1995)(http://tiny.cc/A2cMm). The problem is the court found the advertisement to infringe the copyright in the James Bond character and enjoined further showings of it.

     

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      identicon
      Anonymous Coward, Jul 5th, 2009 @ 1:18pm

      Re: influence by/copied from

      Having not seen the commercial, I cannot comment. Like every court case on subjects like this, it is often very subjective based not only on the content, but their timing and other influences. If there happened to be a recently released james bond movie with a couple well dress in a car chased by a hi-tech helicopter with a guy who jumps out and lands on the roof of the car, I could see where there would likely be infringement.

      But since neither you nor I can go back and speficially recreate 1994 to perfection, there is no way to tell.

       

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    peter (profile), Jul 5th, 2009 @ 1:42pm

    influenced by/copied from

    Coward: no, we can't go back to 1994, but a court ruling today on your example ("Deiter, Brian Deiter . . .") would rely on the description in the 1994 case in determining where it should draw the line. So you can't just dodge the question but saying you "cannot comment" because you have not seen the commercial. That's how courts act -- they look to as much as they can from earlier precedent and, if bound by the earlier court, have to draw the line on the same side as the earlier court. Moreover, the example is one off the top of my head example (I believe someone earlier in the thread had described it) that immediately throws your "clear" distinction into doubt. Is Dylan influenced by his sources or does he copy them? You could write a book on that topic. Most importantly, THE LAW DOES NOT FORBID COPYING! It's so, so much more complicated than that, and all your efforts to reduce it to the your own desires won't make it less complicated. But you can just tell me to go and learn something like you do in response to the plain evidence the First Amendment right to free expression does provide the source of the right to fair use, or you can come up with another simple-minded hypothetical that may or may not coincidentally run up against precedent that belies your point. Or you can realize that maybe you have a lot to learn.

     

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      identicon
      Anonymous Coward, Jul 5th, 2009 @ 3:55pm

      Re: influenced by/copied from

      "Coward: no, we can't go back to 1994, but a court ruling today on your example ("Deiter, Brian Deiter . . .") would rely on the description in the 1994 case in determining where it should draw the line. So you can't just dodge the question but saying you "cannot comment" because you have not seen the commercial."

      Not entirely, sorry.

      WIthout the actual content in front of my, I cannot judge. The words "Deiter, Brian Deiter" might not rise up to the same level as the commercial you describe. Are people likely to confuse? You cannot just say "there is one Bond judgement therefore everything else remotely Bond-like is out of bounds". The courts DON'T work like that.

      The clear distinction is still there, you are attempting to cloud the issue by introducting a commercial that might have been 99% bond for all we know. Just saying a name in a certain way isn't enough, and in fact has been done hundreds of times in TV shows, movies, and so on without a single lawsuit. Amazing, is it?

      Perhaps you can come up with a more relevant example? Perhaps a clip of the commercial?

       

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        peter (profile), Jul 5th, 2009 @ 5:09pm

        Re: Re: influenced by/copied from

        Coward - please promise you'll never go to law school. Sorry, but the description of the commercial in the opinion might be all the court ruling on your case is likely to go on.

        And likelihood of confusion is a term of art in trademark litigation. The only way confusion could come up in a copyright infringement context is in determining whether the challenged work has an impact on the market for the copyrighted work. Would you think the described commercial (go look at the opinion if you want the entirety of what the lawyers and court would likely have) damaged any market for the copyright in James Bond?

        Oh, that's right, you cannot judge. Wow. You've judged so much else that you don't know anything about (the legitimacy of stating the plain fact that the right to free expression is behind the right to fair use), and now you won't judge something based on all the facts the professionals regularly have to make their judgments? I applaud your reticence, but why has that trait only now appeared?

         

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    identicon
    TonsoTunez, Jul 5th, 2009 @ 6:19pm

    It's The Expression of an Idea That Counts

    "I spent a ton of my time *working with* content creators helping them improve their business models and (b) many of the posts here show content creators how to earn MORE MONEY doing what they love to do the most."...Mike

    And, that's your problem, Mike, you are narrowly focused on performing artists - and only those who are self contained.

    You chose to ignore the fact that well over 80% of the music that fills our lives is created, produced and made available by people that aren't featured artists and/or don't perform live and/or don't perform at all - as is the case with 60-70% of the songwriters who write songs for artists who can't write.

    Now as for my *** List of bizarre nonsensical statements about barring profit (which you) deleted *** please explain why anyone should be allowed to profit if those who create music are precluded from doing so - and please don't come back at me with the "Four Haircuts can make a decent living playing shit holes for the rest of their lives" routine.

    Being an artist, I can tell you that that crap gets real old real fast... especially when you grow up and real life kicks in.

     

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      Mike Masnick (profile), Jul 5th, 2009 @ 7:27pm

      Re: It's The Expression of an Idea That Counts

      And, that's your problem, Mike, you are narrowly focused on performing artists - and only those who are self contained.

      Since when? This is not true at all!

      You chose to ignore the fact that well over 80% of the music that fills our lives is created, produced and made available by people that aren't featured artists and/or don't perform live and/or don't perform at all - as is the case with 60-70% of the songwriters who write songs for artists who can't write.

      Indeed. Which is why most of the models we discuss don't rely on performance revenue at all.

      You seem to be confusing me with someone else.

      Now as for my *** List of bizarre nonsensical statements about barring profit (which you) deleted *** please explain why anyone should be allowed to profit if those who create music are precluded from doing so - and please don't come back at me with the "Four Haircuts can make a decent living playing shit holes for the rest of their lives" routine.

      I'm honestly perplexed here. Who said anyone was precluded from profiting? Not I. In fact, in THE VERY POST YOU ARE RESPONDING TO, I explained that I'm talking about the exact opposite of that. I'm talking about better ways to profit.

      You've really left me scratching my head here.

      Being an artist, I can tell you that that crap gets real old real fast... especially when you grow up and real life kicks in.

      What gets old? Making up what I said when I said the exact opposite?

       

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    identicon
    yawn, Jul 5th, 2009 @ 9:45pm

    Your saying Shakespear

    This blog stawman's the hell out of copyright /intellectual property issues to the point of looking really silly.

    See, how about I copy this post, throw it up somewhere els without credit, attribution, or any refences to you or techdirt? Of course, I'll add a little somethin-somethin at the beginning & end and re purpose it a little...I could even add a few more links (and a shit load of ads of course)

    I'm 'adding value' and creating something new, right?? What happens If I'm able to successfully promote your ideas and content better than you, without *any* credit to you?

    Is that fair? Are we all 'better off' in that kind of world?

    /FOSS & Creative Commons advocate.

     

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      icon
      Mike Masnick (profile), Jul 6th, 2009 @ 1:12am

      Re: Your saying Shakespear

      This blog stawman's the hell out of copyright /intellectual property issues to the point of looking really silly.

      See, how about I copy this post, throw it up somewhere els without credit, attribution, or any refences to you or techdirt? Of course, I'll add a little somethin-somethin at the beginning & end and re purpose it a little...I could even add a few more links (and a shit load of ads of course)

      I'm 'adding value' and creating something new, right?? What happens If I'm able to successfully promote your ideas and content better than you, without *any* credit to you?

      Is that fair? Are we all 'better off' in that kind of world?


      Yes, we've said that's great if you can do it. Read here:

      http://www.techdirt.com/articles/20090116/0348223430.shtml

      Now what point were you trying to prove?

       

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    identicon
    Yo Kahama, Jul 6th, 2009 @ 3:13am

    Afilliatospohical Bricollaging

    go to vimeo type in the subject of this comment

    shake head and don't repeat unless necessary,

    it was just going to be called Your Welcome 2.Freeflow

    it may still

     

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    identicon
    Slated, Jul 13th, 2009 @ 9:12pm

    The "Right" to Own Knowledge

    @Anonymous Coward - Jul 4th, 2009 @ 3:22pm

    Reed: "There are no original works made by individuals in a vacuum is my point. This does go against the way you define "original" because it does not really exist in my mind."

    Anonymous Coward: "This is a really amazingly extreme viewpoint to me"

    I'm sure.

    Equally, it could be argued that your viewpoint is extreme, since it supports the notion that originality is defined as mere contribution to accreted works, and thus justifies exclusive ownership and control by those new contributors, denying both attribution and right of access (and/or other rights) to earlier contributors.

    Anonymous Coward: "you believe there is no such thing as an original creative work. Fine, but what, then, should be the implications of this? I take it that this inevitably leads you to intellectual property abolitionism, where you believe that everything created should therefore be in the public domain as soon as it's expressed."

    Yes, and the "terrible" outcome of this "travesty" would be ... a return to normality - the previous and long standing condition, where for centuries there was no such thing as Intellectual Property.

    And yet ... life went on. There was trade and commerce and invention. Society evolved, industry progressed, and technology was developed.

    But how could this have been possible, without "Intellectual Property"?

    How indeed.

    Anonymous Coward: "The reason I find this a hard viewpoint to understand is because I am acutely aware of the tremendous work involved in the creative process."

    "Work" does not bear any particular entitlements, other than the entitlement of wages paid for mutually agreed labour rendered. Once that labour has been rendered, and those wages have been paid, the employer's obligations have been fulfilled. You presume entitlement to remuneration in perpetuity, for a single act of labour, because the results of that labour may be utilised long after that labour has been completed. You presume too much.

    Anonymous Coward: "In what other field of endeavor would people work so hard only to have their work declared the property of the commons as soon as it was made?"

    In fact, in every "field of endeavour".

    Are you not paid a salary for the labour you render?

    What more do you expect? And what justification do you offer for those expectations?

    Anonymous Coward: "When I spend three years of my life [snip "hard work"] I have difficulty coming to the conclusion that I have done nothing original."

    Your difficulty in accepting the truth, does not negate that truth.

    Your expectations are simply unreasonable.

    People are not born with some divine knowledge, it must be acquired. The sources from where you acquire that knowledge are part of a chain reaching back to the dawn of man, and can be legitimately claimed as "property" by no one. Your contribution to that chain of knowledge is:

    1. Observation of the world around you
    2. Learning from knowledge passed down to you from others
    3. Deductions and conclusions drawn from 1 and 2 above

    Addressing your rights to ownership, with respect to the above:

    1. You have no inalienable right to claim exclusive ownership of that which you merely observe. If you did, then this would create the paradox of many people all having exclusive rights to the same observations. Additionally, it is profoundly unethical to make such a claim, since mere perception of an entity does not define the observer as its creator, much less its legitimate owner. You might just as easily argue that to observe another person is to own that person, or that to observe the moon through a telescope is to own the moon

    2. You have no inalienable right to claim exclusive ownership to knowledge passed to you from others, since the mere provenance of that knowledge precludes this possibility, and consensus for the transfer of these rights could never be reached, since it would require authorisation from every person on Earth, living or dead, published or unpublished, known or unknown, who may or may not have contributed in some way to this knowledge

    3. Your deductions may be your own, but again, you simply have no way of knowing if your conclusions have ever been reached before, but simply remain unpublished or lost in the annals of time. To claim exclusive ownership of these conclusions is therefore a palpable lie. The best you can irrefutably claim is "I also deduced that". Also, consider the obvious fact that even your deductive skills were merely taught to you by others. As humans, we are undoubtedly all unique, but equally every aspect of our being is influenced by others. We can not, and should not, make claims of "exclusivity" to knowledge, even if we produce this knowledge without any conscious awareness of any previous contribution, since lacking knowledge of provenance does not mean there is none

    And I feel I should expand a little on the subject of publishing or registering knowledge (copyrights and patents). I find this whole process deeply cynical at best - the idea that ownership can be legally assumed merely by the act of "staking a claim", much like a bunch of rabid gold prospectors rushing murderously towards a glint of gold in a rock face. This type of "claim" to ownership is utterly indefensible. It's barbaric, and has no bearing on true ownership. It affords no more inalienable rights than that of a predator hunting its prey.

    Are these the "rights" you seek?

    These are not entirely dissimilar to the rights demanded by slave owners.

    Should we not have abolished slavery?

    In fact, I have often drawn this comparison before, because I see very little distinction between the practise of physical slavery, and the equally reprehensible practise of intellectual slavery. Indeed, the latter may actually be more sinister, since it assumes ownership and control of that which touches all of us, not just an unfortunate few, and is a form of subjugation which travels silently and invisibly throughout all of society, tainting us and compromising our liberties, infecting us with the disease of intellectual monopoly, thus assuming ownership of our minds. More bluntly, Intellectual Property is a cancer.

    Anonymous Coward: "For you, it seems, any distinctions among these are meaningless, because every creative work falls in a single equivalence class: remixes of existing ideas. For you, there is no appreciation of the subtle originality and unique perspective that even a student just collecting the ideas of others can manage.

    You are attempting to inject colour into something that is clearly monochromatic. What part of the concept of "exclusivity" are you having difficulty with?

    Should this "subtle originality and unique perspective" be allowed to subjugate all those who facilitated it?

    Anonymous Coward: "Despite the "cultural Nazi-ism," all these works - these students' survey papers, my books, and so on - were able to be created. Others will be able to take my work and apply it in their own original ways, just like the students that will cite my papers in their surveys, the patent examiner who read my paper and used it to evaluate the novelty of another group's ideas, or the teacher who uses my book and puts his or her own unique spin on it in teaching a class. All this is legal and encouraged by the current system that you call Nazi-ism."

    Correct, and with that you have merely supported the counter-argument to your own position, since you clearly accept the provenance of your knowledge, and admit that the exclusivity afforded to you can only exist by being enforced by law.

    These are laws which I, and many others, consider to be profoundly unethical. Indeed, even these "IP" laws themselves concede to this fact, since they only offer these exclusive "rights" temporarily. If ownership of knowledge were truly defensible, then such rights would be in perpetuity, just like the rights to ownership of real property.

    In fact this "right" to exclusive ownership of knowledge is not a right at all, but is merely a temporary grant of privilege, offered as inducement to selfish; greedy hoarders, in conscious violation of all moral tenets to the contrary, and thus offered only for a limited time. This is the compromise of ethics the lawmakers conceded to, for the sake of accelerating industrial and social development. I contend that such development did not require acceleration, particularly if the result was a fatal compromise to our liberties, at the most basic level of all - revocation of the inalienable right of free access to mankind's cumulative knowledge.

    Anonymous Coward: "I'm sorry if, by selling the products of my own independent work rather than giving them all away, I'm stealing your culture."

    Your work is not "independent". No man, nor his knowledge, exists in isolation.

    And Intellectual Monopoly is not theft, since to proclaim it as such is to concede to the premise that knowledge may be owned in the first place. Intellectual Monopoly is more like kidnapping knowledge then holding it for ransom. This is the nature of academic exclusivity, and those unethical laws which support it.

    I also feel it prudent to point out that dissent against Intellectual Monopoly has nothing to do with money, as you misguidedly assume. I take no issue with you being paid for your work at all, but should payment depend on exclusive rights? If so, then how do you account for the sale of works licensed under the Creative Commons license or GPL, such as these?:

    http://www.law.duke.edu/cspd/comics/buy.html
    http://svnbook.red-bean.com/
    http://catb.o rg/esr/writings/cathedral-bazaar/
    http://twobits.net/
    https://www.redhat.com/apps/download/
    http: //www.novell.com/products/desktop/
    http://www.mysql.com/products/enterprise/server.html
    http://www .qtsoftware.com/products

    Odd that all these commercial "knowledge" products should be sold, and yet not compromise our liberty with exclusive "rights". Apparently, such things are possible. In fact, it has always been thus. As I've already stated, "IP" is a comparatively modern disorder.

    Claiming that commerce and Freedom are mutually exclusive, is sheer hyperbole and propaganda, expounded by those seeking to pervert the meaning of Freedom, to marginalise as cheapskates those who would protect that Freedom from unethical exploitation.

    But nonetheless, on behalf of the rest of mankind, from whom you kidnapped their culture ... apology accepted.

     

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    identicon
    Markus, Jul 24th, 2009 @ 12:48am

    Fallacy

    This argument is fallacious. The author argues as if differences which are difficult to define are therefore irrelevant.
    See "continuum fallacy".

    The fact that all work is influenced by other work is not in question. It's a question of degree. The degree of originality is what matters in copyright.

     

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    identicon
    Slated, Jul 25th, 2009 @ 11:07pm

    Originality is not a question of degrees

    The premise of "IP" is that one should have the right to claim exclusivity to knowledge, because one is the sole creator of that knowledge. It's this assumption which attempts to justify that exclusivity, without which such claims make no sense.

    Insofar as their can be no degrees of exclusivity, equally either knowledge is original (the single point of origin) or it is not.

    But given that /all/ knowledge only exists through accretion, then /none/ of it can be said to be actually original, therefore any claims to exclusivity can never be justified.

    Another consideration is the possibility that an idea may be conceived privately, and not published, for whatever reason. If then, at some later point, someone else also conceives that same idea, but with no concious knowledge of "prior art", and then claims originality, then that claim is false. And the fact is, that no one can /ever/ prove that idea was not previously conceived privately, without some God-like power of investigation to access the memories of the entire human race, both living and dead.

    The inescapable conclusion is: Intellectual Property is a lie. It isn't any kind of inalienable right at all, but is just a privilege temporarily granted to unnaturally and unethically "promote science and the useful arts" ... for pragmatic reasons (incentives).

     

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  •  
    identicon
    iveseenitall, Jan 8th, 2011 @ 1:16am

    To create or defend. That is the question.

     

    reply to this | link to this | view in chronology ]


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