Reasons Why Copyright On Art And Music Could Be Deemed Unconstitutional

from the arguments-in-the-extreme dept

I've often discussed the original constitutional reasoning behind patents and copyright law, specifically the phrase we all know in Article 1, Section 8:
The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
From this, I still believe it's quite clear that if copyright or patents are used in a way that does not "promote the progress" of those things, then it is unconstitutional to use copyright or patent law in that way. Not everyone agrees with me, of course. However, I've mostly focused on the "promote the progress" side of things, but haven't delved as much into the details of "science and useful Arts." I have read up extensively on what the founders meant by that, which can be simplified as "science" meaning scientific publishing/books and "useful Arts" meaning inventions. There's also a fair bit of evidence that the real focus of the founders was on patents, rather than copyright. It wasn't that they weren't concerned at all about copyright (they were), but that the bigger issue was patents, and copyright was a sort of "throw in" at the behest of some vocal authors, along with some remembrance of states' fights over local copyright policies. But, on the whole, it was patents that were considered of much more importance to progress than copyrights.

And, not only were copyrights initially for a "limited time" (14-years) but the first federal copyright law in the US limited copyright to books, maps and charts. Tom Bell points out that, based on this, and some other aspects of the early intentions of the founders, you can make an argument that copyright law, as per the constitution, was never intended for things like art and music. After all, what does art or music have to do with "science"? And if it really was intended to cover art and music, then why didn't the founders have it cover music that was being composed at the time? Perhaps it was because they realized that music and paintings had nothing to do with science, and the Constitutional clause is only limited to promoting the progress of science and the useful arts (and, again, in the parlance of the day, "useful arts" was inventions). As Bell states:
Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution's bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution's plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however--"the Progress of Science and useful Arts"--and a great many works now covered by copyright cannot plausibly claim to do both.
Bell is interpreting the Constitutional clause in an even stricter manner -- suggesting that any work covered by patents or copyright needs to promote both progress in science and in the useful arts, which is an even higher bar, though I'm not sure I'm convinced it was meant to be both. Also, many would retort that the Constitution grants the Congress the ability to determine if such monopolies promote the progress of science and the useful arts -- and as long as Congress says they do, then we should consider that they do (no matter how wrong they might be). For a variety of reasons, that line of thinking is problematic, but it is the line that the Supreme Court has taken with copyright before (such as in the Eldred case). I'm not necessarily convinced of Bell's thinking here, but it's certainly a point worth pondering (and discussing).


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    Ryan, Jul 31st, 2009 @ 12:20pm

    This post makes the faulty assumption that the majority of citizens today still give a shit about Consitutional limits or the rule of law. They don't.

    It's akin to the frog-in-boiling-water argument; if people from 100 years ago were to see the power of the government today, they would probably think that we had long ago pissed on the original document and lit it on fire. There were many infractions back then, yes, but more as a result of vastly inferior information dispersal. Today, people see everything that is going on, and they root for it.

    Everybody rightfully criticized Bush for ignoring the law, and then they supported Obama who is probably two or three times as bad. He seems to have little regard for contractual obligations, personal ownership of money and property, or individual free will, preferring instead to delegate all of these to the federal government for reallocation or regulation as he sees fit. And what's funny is that nobody even thinks it odd that the President is running everything; originally, he was barely mentioned in everyday discussion and did little to no micromanaging of our lives. Not only does this situation make a travesty of individual rights, it is harmful to the country in the long run--government intereference ala copyright is but one bad situation of many.

    I think I just wrote this to vent dejectedly against the populist rhetoric the country has devolved into as we all look to the government to do it for us instead of actually doing something cool for ourselves. Fuck it, I can just have a beer or twelve in five hours...

     

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      Dark Helmet (profile), Jul 31st, 2009 @ 1:21pm

      Re:

      "Fuck it, I can just have a beer or twelve in five hours [with the President that I dislike so much, so long as I either am a black guy mistaken for a criminal or the jackass cop arresting him]...

      There, fixed that for you...

       

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        Bubba Gump (profile), Jul 31st, 2009 @ 1:40pm

        Re: Re:

        '"Fuck it, I can just have a beer or twelve in five hours [with the President that I dislike so much for good reason, so long as I either am a black guy mistaken for a criminal or the jackass cop arresting him]...

        There, fixed that for you...'

        DITTO

         

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    Hephaestus (profile), Jul 31st, 2009 @ 12:29pm

    Constitution ....


    "by securing for limited Times to Authors"
    doesnt say anything about handing the rights to your children or a corporation

    Reference
    Copy right clause US constitution Wikipedia
    Preamble to the constitution Wikipedia

     

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    Pablum People, Jul 31st, 2009 @ 12:30pm

    The modern American cares only about their personal pleasure and their dream of getting rich. This is a society with the emotional mentality of a 12 year old, and it is getting worse each day. As a result 90% of the people do not give a shit about the Constitution or civil rights or any sense of shared community. It's over. The new USA is a cesspool of greed and corruption. Enjoy it.

     

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      Bubba Gump (profile), Jul 31st, 2009 @ 1:37pm

      Re:

      "The modern American cares only about their personal pleasure and their dream of getting rich. This is a society with the emotional mentality of a 12 year old, and it is getting worse each day. As a result 90% of the people do not give a shit about the Constitution or civil rights or any sense of shared community. It's over. The new USA is a cesspool of greed and corruption. Enjoy it."

      Life, liberty, and the Pursuit of Happiness. Perhaps you recall that? What the heck is wrong with trying to have a little pleasure and make some money? Or are you trying to say that the entire population consists of drug lords, actors, and sports stars (who, by the way, work their BUTTS off)?

      I invite you to read Ayn Rand and think about what the country could be like if everyone worked hard for their OWN benefit and also believed in a little personal responsibility.

       

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    Osno (profile), Jul 31st, 2009 @ 12:32pm

    I still have to find a proper answer to "how does copyright promote anything?". Study after study after study states that copyright doesn't help promoting but hinders progress. I think if your founding fathers new that "Right to Writings and Discoveries" didn't actual promote the progress of science and useful arts, they would never have written that. I wonder why the means is more important than the end in this case. That is, the end was always to promote. If the assumption that the means result in the ends is faulty, can the whole thing be revisited and declared null?

     

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      YouAreWrong, Jul 31st, 2009 @ 1:05pm

      Re:

      studies are full of bullshit on both sides. ask yourself why people all over the world can name US artists, but you can't name a single artist from one of the countries with little or no IP protection. at the same time, it's hilarious when the RIAA claims that a single website is causing them more damages than the GDP of the US.

      if you ask me, the best way to administer copyright is to require maintenance fees. you get an automatic initial term of 10 years, and you or your heirs or assignees would be allowed to renew every 10 years for an ever increasing price for a total of 100 years protection (first term is free, second is $2k, third $3k, and fourth $4k, and so on). that way, the public would be able to quickly know whether something still had a valid copyright on it. you could look back 10 years for any filings on it, rather than the current system which has absolutely no recordation whatsoever. at the same time, copyright would only perpetuate if something was still commercially exploitable. this would also prevent labels and studios from permanently locking up content by sticking it in a dusty vault, prohibiting artists from even performing their own material when the label doesn't want to exploit the music.

       

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        Osno (profile), Jul 31st, 2009 @ 1:23pm

        Re: Re:

        Correlation and causality. Also, I think we both can name plenty of authors from before the copyright days, all european. And I think that you probably can't name any author from countries with extensive copyright law (like Albania, Argentina, Bulgaria, Colombia which has a copyright even longer than the US, Cote d'Ivoire, Mexico right beside your border, etc.)

         

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        Otm Shank (profile), Jul 31st, 2009 @ 1:29pm

        Re: Re:

        Incrementing by $1,000 wouldn't even keep pace with inflation.

         

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        NoYouAreWrong, Jul 31st, 2009 @ 1:29pm

        "Limited times" and "promote the Progress"

        What part of these simple words, and therefor a simple concept didn't you get? It took a long paragraph for you to just ape the current situation. 100 years protection isn't limited protection, it is forever as far as the lifespan of the participants are. Both this and the federal control of the postal service are terribly misunderstood, and ignored already by those who are the very ones that Jefferson feared when this was put in the basic fabric of what this country was founded on.

        He realized that free interchange of information and later free sharing of ideas was a very powerful idea and would lead to prosperity for the country far beyond other countries. But when one locks up the ideas, and charge for the interchange of information one also shapes and hinders said activities, and harms both.

        Let me explain that to Jefferson, the postal service was the internet of the day, where both information and political speech was conducted, and that was why he preempted those who would monetize this by making it a monopoly with very specific limits. Too bad that was not worded to guarantee some sort of protection for the later methods, such as telegraph, telephone, and now net for the same.

         

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    YouAreWrong, Jul 31st, 2009 @ 12:53pm

    sui generis protection

    numerous scholars on both sides have argued/admitted that sui generis protection on any idea (nevermind one that is copyrightable) is supported at least by the commerce clause. at that point, it's just a matter of picking the duration and scope of protection.

    and you know this because you mastered in intellectual property in law school at ... oh wait...

     

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      Matt (profile), Jul 31st, 2009 @ 1:00pm

      Re: sui generis protection

      The article is about the writing of an intellectual property law professor. Why not join the conversation and further explain why the commerce clause supersedes this.

       

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        YouAreWrong, Jul 31st, 2009 @ 1:25pm

        Re: Re: sui generis protection

        This professor's argument does not even mention the commerce clause or the concept of sui generis protection. You guys are saying the IP clause doesn't authorize power for copyright law. Fine, even if we accept that, it DOESN'T mean that IP clause PROHIBITS the commerce clause from creating sui generis protection. In fact, we use the commerce clause for a number of types of IP including trademarks, ship hull designs, plant/design patents, and mask works.

        And I don't mean to make it personal, but he's a professor at a 4th tier law school. If you want to talk about authoritative IP scholars, you're better off with profs like Patrick Duffy, Roger Schechter, Wendy Seltzer, or Susan Crawford; judges would include Ginsburg, Posner, Easterbrook, Patel, Dyke, and Moore.

         

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          Mike Masnick (profile), Jul 31st, 2009 @ 1:34pm

          Re: Re: Re: sui generis protection

          This professor's argument does not even mention the commerce clause or the concept of sui generis protection. You guys are saying the IP clause doesn't authorize power for copyright law. Fine, even if we accept that, it DOESN'T mean that IP clause PROHIBITS the commerce clause from creating sui generis protection. In fact, we use the commerce clause for a number of types of IP including trademarks, ship hull designs, plant/design patents, and mask works.

          Yes, but you attacked *me* for his comments, and insisted that I wouldn't have made the argument if I had gone to law school.

          In other words, you are wrong (check your name, buddy).

          And I don't mean to make it personal

          But you will...

          he's a professor at a 4th tier law school. If you want to talk about authoritative IP scholars, you're better off with profs like Patrick Duffy, Roger Schechter, Wendy Seltzer, or Susan Crawford; judges would include Ginsburg, Posner, Easterbrook, Patel, Dyke, and Moore.

          And who are you again?

           

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            Anonymous Coward, Jul 31st, 2009 @ 2:48pm

            Re: Re: Re: Re: sui generis protection

            "Yes, but you attacked *me* for his comments,"

            Mike, perhaps this is yet another hint that you need to work on your writing style, to more clearly separate out other people words from your words. It seems that a number of people (what you would call morons in a hurry) can't tell the difference.

             

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              Travis (profile), Jul 31st, 2009 @ 2:51pm

              Re: Re: Re: Re: Re: sui generis protection

              If the indented/italicized text wasn't clear enough...then I would think the preceeding statement "As Bell states:" would be a dead giveaway.

               

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            Anonymous Coward, Jul 31st, 2009 @ 10:52pm

            Re: Re: Re: Re: sui generis protection

            Are you fucking serious? Every single article you write blasts copyright, and because you're merely a "messenger" ... on every single one of these grossly (and often irrational) anti-copyright articles, you're in the clear? You don't get off that easy. When the "messenger" voluntarily highlights the same message over and over again from multiple sources, the "messenger" is endorsing that position.

            And I never claimed to be authoritative. I merely pointed out that others, who are seen as much more authoritative, have stronger, and well accepted positions.

             

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      Mike Masnick (profile), Jul 31st, 2009 @ 1:26pm

      Re: sui generis protection

      In your zest to attack me you seem to have missed out on the fact that:

      (1) I was not the one suggesting this
      (2) It was being suggested by a law professor
      (3) I don't even agree that it makes sense -- I was just laying out Tom's argument

      And yet you attack me personally, not Tom, and claim that I only wrote this post because I did not go to law school.

      Funny.

      Please. If you want to attack me, at least focus on directing your attack at the right person. Otherwise you just look like a fool. No wonder you refuse to say who you are. Too embarrassed about how your comments will reflect on you personally.

       

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        Anonymous Coward, Jul 31st, 2009 @ 3:19pm

        Re: Re: sui generis protection

        I must agree that you are merely a messenger, and not an advocate of what you note in your article.

        I must also note that one person's response to the article by reference to law school tiers is wide of the mark. It is not where on sits that is important, but rather what they have to add to the conversation regarding patent and copyright law.

        That said, I must however note some concern that copyrights are being equated with promoting both science AND the useful arts. I know of no other person who openly associates copyrights with the useful arts. In fact, when the original patent and copyright acts were enacted in 1790 the former referenced useful arts and the latter science. Where this conjunctive association is viewed as emanating eludes me completely.

         

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          Anonymous Coward, Jul 31st, 2009 @ 3:22pm

          Re: Re: Re: sui generis protection

          BTW, the last para. was directed to the advocate and not to the messenger.

           

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    Anonymous Coward, Jul 31st, 2009 @ 1:23pm

    Copyright only helps the publisher. Period.

     

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    NullOp, Jul 31st, 2009 @ 1:25pm

    Patents & Copyrights

    Patents and copyrights should run 5 years, no more. That is roughly equivalent to 25 1776 years. If the public can not be robbed, gouged and bled-dry in 5 years then too bad!

     

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    Logo, Jul 31st, 2009 @ 1:31pm

    "ask yourself why people all over the world can name US artists, but you can't name a single artist from one of the countries with little or no IP protection."

    Correlation does not imply causation and all that. You deride 'studies' for their inaccuracy then make a whopping claim with no supporting evidence. Good day to you sir.

     

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    Anonymous Coward, Jul 31st, 2009 @ 1:39pm

    classic fallacy

    "From this, I still believe it's quite clear that if copyright or patents are used in a way that does not "promote the progress" of those things"

    if P then Q
    q then P = NOT VALID

     

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      Paul (profile), Jul 31st, 2009 @ 2:46pm

      Re: classic fallacy

      What is P and what is Q?

      Is P the power to enact patent and copyright law?
      Is Q the actual patent and copyright law?

      If so, where did anyone imply that the fact that congress has enacted patent and copyright law that that gives them the right to do so?

      I am confused.

       

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    Anonymous Coward, Jul 31st, 2009 @ 1:44pm

    I don't get it, Bubba, are you saying that greed and corruption is cool? You guys should learn to care for your neighbors... and I know I'm generalizing, but it's kind of easy to generalize an American. That's what most of your culture is about, not caring for the ones who're different.

     

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    Anonymous Coward, Jul 31st, 2009 @ 1:56pm

    Except for the fact that it is in the constitution thus making it constitutional. Hmmmm.....

     

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    Anonymous Coward, Jul 31st, 2009 @ 1:59pm

    Yawn.

    This is a fairly dull argument, mostly because it is meaningless.

    "by securing for limited Times"

    Tell me how long limited is. Right now, but law, I think it is 70 years, no?

    You can argue up and down and all over, but the constitution uses a vague term that allows the congress, house, and president the leeway to pass laws that define those limits.

    It's a non-starter, something that reads like an idea someone came up with between bong hits.

     

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      Paul (profile), Jul 31st, 2009 @ 3:35pm

      Re:

      "Works created in or after 1978 are extended copyright protection for a term defined in 17 U.S.C. ยง 302. With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter."
      http://en.wikipedia.org/wiki/United_States_copyright_law#Duration_of_copyright

       

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    Marcia Neil, Jul 31st, 2009 @ 4:16pm

    unique thoughts and experience

    Contrary to colonist experience and thoughts -- i.e. constant pooling to survive in a strange land -- unique and original individual thought and experience is possible here in the Americas (without the Queen or especially without Catherine the Great). Any individual who is truly composing their own experiences as literary expression has the right to control distribution with regard to health and morale issues. 'Hand over your copyrights or be bashed over the head...or worse' is both a health AND a morales issue. Sonny and Cher placed on stage to perform music they inspired (and more!) are both health and moral issues.

     

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      Dark Helmet (profile), Jul 31st, 2009 @ 7:08pm

      Re: unique thoughts and experience

      Sweetheart, I have read your comment AND your recent blog posts several times in trying to comprehend just what the hell you are talking about, and other than the obviousness with which you try to use impressive words and floral language in order to obfuscate the fact that you have not a whole lot to say (see, I can do it too!), what you said here is so egregiously false that I'm not sure what was the impetus for your making it.

      "Contrary to colonist experience and thoughts -- i.e. constant pooling to survive in a strange land -- unique and original individual thought and experience is possible here in the Americas (without the Queen or especially without Catherine the Great)."

      What the hell. Seriously. I don't mean that as a question. I want you to picture me with my head back, perplexed look on my face, arms askew in failure to comprehend why you would choose this combination of words to describe (I'm guessing, because with your confusing language, who really knows) American thought. Are you actually British, or do you just want to sound like a bad stereotype so that ignorant people (American and otherwise) will think that you are.

      Colonist experience? Are you crazy? Lady, you're talking about a country that has such an over-inflated opinion of its own culture it's ridiculous. Colonial thinking? We're the most individualistic nation on the planet. We're also arguably one of the most segregated. Pooling together. Have you ever BEEN to New York City? Chicago? L.A.? We don't band together. We tell everyone to fuck the fuck off.

      And a small inclusion: I'm not sure what the point of including a Russian matriarch in your comment was, but trust me: epic failure.

      "Any individual who is truly composing their own experiences as literary expression has the right to control distribution with regard to health and morale issues."

      Uh....no. Not even close to reality. You're not an artist, plain and simple. Let me tell you...as a PUBLISHED AUTHOR (not successful yet, mind you, so not tooting my own horn here)...you're just flat out wrong. Art...real art...yearns to be seen/read/heard/experienced. That's why we artists create it. Yes, we want to be able to make a living at it, those of us that seek to KEEP CREATING more art. For the writer, read any book on writing fiction and they'll all say the same thing (I can cite quotes if you really want me too): we write because we can't NOT write. I don't really know what health or morale (did you mean morality?) have to do with anything. I don't care. I just want to write about the topics and the characters I love.

      "Hand over your copyrights or be bashed over the head"

      Wow, I straight forward sentence. Too bad it should read, "Stop allowing your agents/labels/managers/publishers abuse copyright and make money more directly THIS way".

      "Sonny and Cher placed on stage to perform music they inspired (and more!) are both health and moral issues"

      Ok, you're done. Forever. Sonny and Cher PLACED on stage? Who were they placed there by, you idiot, your corporate GODS? What in the world do they have to do with health? Or morality for that instance. Please...and while I have strong opinions, I usually don't go this far, but I'm begging you here...please, no kids. All abortions for you. And that's from someone who was raised (but trust me, doesn't practice) Catholic.

      Idiots...

       

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    John Biddle, Jul 31st, 2009 @ 5:54pm

    Your reading too much into the text of Article 1, Section 8

    I disagree with the argument that copyright should only apply to things that "promote the progress".

    "Promoting the progress" is one reason to grant "exclusive Rights", not the only reason.

    The second amendment reads:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    By your reasoning, the people cannot use Arms for any purpose other than Militia duty.

    If they intended to limit the scope of "exclusive Right" , they would have said so.

     

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      Mike Masnick (profile), Jul 31st, 2009 @ 6:29pm

      Re: Your reading too much into the text of Article 1, Section 8

      By your reasoning, the people cannot use Arms for any purpose other than Militia duty.

      Actually, no. There's a pretty clear distinction between the beginning to both of those:

      The copyright clause quite clearly says it's "TO" promote the progress.

      The bear arms clause doesn't say that's why it's there, it just uses the militia as an example (and, I should note, there are some who believe that the second amendment should only refer to militias).

       

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    Anonymous Coward, Jul 31st, 2009 @ 6:00pm

    "Copyright only helps the publisher. Period."

    And with that simple idiotic statement rises a great chorus of laughter from thousands of royalty check-cashing novelists, actors, filmmakers, and musicians from around the world.

    But don't linger on past successes, what's your next joke?

     

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      Anonymous Coward, Jul 31st, 2009 @ 6:28pm

      Re:

      Except that you do miss the fact that in many cases, said royalties aren't nearly as sizable as they would be without vampiric organizations like the RIAA, MPAA, and big name publishers sucking most of it way.

       

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    Anonymous Coward, Jul 31st, 2009 @ 7:01pm

    And then there are some of us who believe the population of the United States constitutes one very large, albeit unregulated, militia.

     

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    Anonymous Coward, Jul 31st, 2009 @ 7:24pm

    An army of trained civilians, which may be an official reserve army, called upon in time of need; the national police force of a country; the entire able-bodied population of a state; or a private force, not under government control. (My bold)
    - Wiktionary

    Owning arms privately IS militia duty. Most people think that the forces organized by the government are the militia, this isn't the case. The word 'Regulated' refers to regular or standard equipment (A more archaic form) not the more modern implication of hierarchical control. Just thought this was relevant since the blog post discusses meanings of words in the Constitution...

     

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    Anonymous Coward, Jul 31st, 2009 @ 8:07pm

    "Yes, we want to be able to make a living at it, those of us that seek to KEEP CREATING more art."

    No. Not always. This being the real world, at some point the reality of not making a living will come crashing in to to join the relative clamor of angry spouses, hungry kids and debt collection agencies and a revaluation of priorities will have to take place which could easily result in no longer having the time to keep creating thereby reducing output (at the very least) and more than likely, quality.

     

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      Dark Helmet (profile), Jul 31st, 2009 @ 8:36pm

      Re:

      "No."

      Yes.

      "Not always."

      Yes always and forever.

      "This being the real world, at some point the reality of not making a living will come crashing in to to join the relative clamor of angry spouses, hungry kids and debt collection agencies and a revaluation of priorities will have to take place which could easily result in no longer having the time to keep creating thereby reducing output (at the very least) and more than likely, quality."

      Oh you pathetic wannabe important person. Friend...no. Not even close. Again not close. If that day should come, if they day arrives when all of life's trappings keep me from doing that which I yearn to do...then I have done something WRONG. The idea that one can not sustain a life as an artist without copyright is a lie. If it weren't a lie, then the timeless classics of artists, novelists, and musicians that existed BEFORE copyright would never have existed. But hey, great try...for a non-artist. Businessman, go away. Get a cigar. Suck that black smoke deep and blow it out your ass, per George Carlin.

      It's amazing how much people in suits have to say about art.

      Idiots. All around me.

      Tell you what, who want's to read a story? Mike, I'm willing to put a novel I'm trying to get published out free of charge. Set a way up for me to release it to the techdirt community, and I'll do it. Consider me dumb and in need of help.

       

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        identicon
        Anonymous Coward, Aug 1st, 2009 @ 12:25am

        Re: Re:

        Wow DH. That was torrentfreak worthy. You have "out-fourteened" the fourteen year olds. Congratulations. I think the only thing you neglected to do was call me a "faget"[sic]

        Anyway, it's common sense that a person who can devote themselves to their art full time will generally create a larger, higher quality body of work than someone who can only practice their art in the hours beyond their regular day job. For many, copyright is what grants them the ability to create full time. If you have a rich benefactor or a trust fund to rely on, good for you, but a lot of other artists don't.

        As for the "timeless classics". No one I know wants to go back to patronage.

        In regard to the blind insults, calling me a "suit" and a "wannabe important person" need I remind you who just just dropped the "I'M A PUBLISHED AUTHOR!" card without any citation?

        And it's funny you mention George Carlin, a man who made a shitload of money via book, rerun and DVD royalties. Not too sure what your strategy with that was...

        Good luck with the novel though. Maybe Mike will help you design a T-Shirt for it. Be sure to let everyone know when you sell enough to quit your day job.

         

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        DMNTD, Aug 1st, 2009 @ 7:44am

        Re: Re: agreed..

        You can always see the extremists so clearly...they start with something or at least say something that says "Oh my..georgie!! get over here!...type something that says I'm an artist and I only do it for money! or "Have you noticed how it's always the people in well paid technology jobs that think people in music or art shouldn't get paid?" or "Good luck with the novel though. Maybe Mike will help you design a T-Shirt for it. Be sure to let everyone know when you sell enough to quit your day job." SO obvious.

        If "art" is ALL you can do, your USELESS. NEXT! nice one DH

         

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        Josh - To common a name. This is me. (profile), Aug 3rd, 2009 @ 11:28am

        Re: Re:

        Dark,

        I love the way your write in your comments. If this happens I will be one of the first to check it out. I would even be willing to pay a modest sum ($5-$15 depending on the size of the book) for such a book, based on how you write your comments. Keep the comments coming.

        I read TechDirt first for the insights of the community (i.e. the writers) and disagree with some of what is said, but agree with more of it. I read it second to find your comments and get a bit of a laugh for my day. Most of the time it is perfectly placed in my day and brings much needed relief.

        Thanks again. And I hope Mike takes you up on this offer.

         

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        Mike Masnick (profile), Aug 3rd, 2009 @ 2:23pm

        Re: Re:

        Tell you what, who want's to read a story? Mike, I'm willing to put a novel I'm trying to get published out free of charge. Set a way up for me to release it to the techdirt community, and I'll do it. Consider me dumb and in need of help.

        Hit up the contact form. We'll see what we can do.

         

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    Yawn, Aug 1st, 2009 @ 3:05am

    Have you noticed how it's always the people in well paid technology jobs that think people in music or art shouldn't get paid?

     

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      Mike Masnick (profile), Aug 2nd, 2009 @ 4:35pm

      Re:

      Have you noticed how it's always the people in well paid technology jobs that think people in music or art shouldn't get paid?

      I'm curious. Can you point to a SINGLE EXAMPLE of anyone here saying that people in music or art shouldn't get paid? Nearly every day we're pointing out examples of artists and musicians working out NEW BUSINESS MODELS that help them get PAID MORE than they did under old business models.

       

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        Anonymous Coward, Aug 2nd, 2009 @ 4:58pm

        Re: Re:

        You keep saying that, yet you expect them to get paid not for creating and recording music, but for selling lots of t-shirts and playing miniputt.

         

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          Mike Masnick (profile), Aug 2nd, 2009 @ 5:59pm

          Re: Re: Re:

          You keep saying that, yet you expect them to get paid not for creating and recording music, but for selling lots of t-shirts and playing miniputt.

          I have explained this to you before, multiple times, and I will try again.

          No. I am not expecting them to get paid for selling t-shirts or playing miniputt. The whole point is that those things are basically worthless without the music. But with the music they become a lot more valuable. The ability to sell those things and make a profit is BECAUSE of the music. So they are getting paid for the music. It's just that they're not selling the music.

          How much can we bet that you'll misunderstand this again next week?

           

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            Anonymous Coward, Aug 2nd, 2009 @ 7:06pm

            Re: Re: Re: Re:

            I don't misunderstand it, I just think it is remarkably laughable. I get a kick out of reading your posts when you say this, because it's just weird logic.

            Why not just pay them for doing what we want, making music? Why must they make a secondary action (that isn't what they do best) to make a living? Is not song writer enough?

            Opportunity costs, would you prefer a great songwriter and musicial to spent their time writing and recording new music, or would you prefer them to be a semi-professional miniputt player and t-shirt sales person?

             

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              Mike Masnick (profile), Aug 2nd, 2009 @ 10:23pm

              Re: Re: Re: Re: Re:

              Why not just pay them for doing what we want, making music?

              Hey, if the economics supported it, that would be great. But no one's ever paid them for making music.

              In the past they paid them for selling CD or for performing. So what's so different now?

              Why must they make a secondary action (that isn't what they do best) to make a living? Is not song writer enough?

              Because the market won't support just paying people for making music and it never has. Sure, I agree it would be great if it could, but you seem to want to be in a world that doesn't exist.

              Some of us like living in reality.


              Opportunity costs, would you prefer a great songwriter and musicial to spent their time writing and recording new music, or would you prefer them to be a semi-professional miniputt player and t-shirt sales person?


              Or would you prefer someone hawking plastic discs? Same thing, different decade.

              Only difference? When you get beyond plastic discs to music on the internet, the artists have a lot more power, in that they're no longer locked into just a few gatekeepers as they were in the past.

               

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    Steve, Aug 1st, 2009 @ 2:52pm

    Copyright arguments of this nature are usually made by by people who a: Have no discernible talent and b: Really need a bullshit rationalization for their piracy. In my country we call them dicks.

     

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    Anonymous Coward, Aug 2nd, 2009 @ 11:01pm

    "Or would you prefer someone hawking plastic discs? Same thing, different decade."

    It's not the same thing at all, especially when it's a retort to the other anon's sentiment that these ancillary services will decrease the artist's time to make more art. Having to fly around the country to play mini-golf with silver-spoon fans is not the time-expenditure equivalent of the label selling CDs, or tapes, or anything else that the distributors previously handled. And since the distributors will never be able to play mini-golf with the fans in the artist's place, it will never be as time efficient as selling copies.

     

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      Mike Masnick (profile), Aug 3rd, 2009 @ 1:00am

      Re:

      It's not the same thing at all, especially when it's a retort to the other anon's sentiment that these ancillary services will decrease the artist's time to make more art. Having to fly around the country to play mini-golf

      First off, for the miniputt (and it's one person doing it, hardly a trend or anything we think others will do as well) you had to fly to Josh. So... uh... nice one, but no.

      with silver-spoon fans is not the time-expenditure equivalent of the label selling CDs, or tapes, or anything else that the distributors previously handled. And since the distributors will never be able to play mini-golf with the fans in the artist's place, it will never be as time efficient as selling copies.

      You know what's even more efficient than selling copies? Giving away music for free.

      Never bet against efficiency.

      But, more to the point, you are totally missing the point. You always had to do promotional stuff. It's just different promotional stuff. Because Josh Freese agreed to play minigolf with ONE FAN who paid $20k, it doesn't mean that playing minigolf is the solution -- nor did anyone claim it was. But i'll tell you one thing, I be that hour of minigolf was a lot more rewarding and paid a lot better than back when he had to hawk CDs to make money.

       

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        Anonymous Coward, Aug 3rd, 2009 @ 3:54am

        Re: Re:

        "But, more to the point, you are totally missing the point. You always had to do promotional stuff. "

        No, this isn't "promotional stuff", this is how he is making a living in your world. Making music, spending months writing, rehearsing, recording, producing, and finally releasing a product is a zero dollar game. The MUSIC is the promotion for the miniputt.

        So being a musician is pointless, except in how it allows you to sell miniputt (or dinner dates, trips to Malibu grand prix, whatever, right Mike?). It's the income, so it isn't the promotion, it's the way of life.

        Amanda Palmer makes little playing music, but makes half her yearly income selling crap online on a Friday night, and you don't see anything wrong with it?

         

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          nelsoncruz (profile), Aug 3rd, 2009 @ 3:22pm

          Re: Re: Re:

          Sorry to "intrude" on this discussion, but...

          "Amanda Palmer makes little playing music, but makes half her yearly income selling crap online on a Friday night, and you don't see anything wrong with it?"

          And 10 years ago, an aspiring musician would spend "months writing, rehearsing, recording" a demo tape, only to be rejected by a label, have his or her dream shattered and go back to waiting tables. OR, he or she was contracted by the label, forced to change the music to make it "commercial", be exploited to no end, and end up making little money from the damn CDs! This was the story for MANY MANY musicians! And you dont see anything wrong with it?

          No business model is perfect, but some will work better than others in the given market conditions and given technology available.

          At least Amanda Palmer doesn't have label execs bossing her around. She does what she wants, AND gets to earn thousands of dollars on a Friday night! And you don't see what is right with that?

           

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    justpassingthrough, Aug 3rd, 2009 @ 5:16pm

    huh.

    Turns out half the people here don't realize that the artists dont even get a quarter of the money that you pay for the CD that you buy. If they stood around hawking the disks and managed to piss off, lets say 200 people into buying the CD, they would make more money than the record company that finances them ALLOWS them to make (from royalties for the music and shirts and such) for 2000 sales of the disc to people going to the store to buy it. And do you honestly believe in your honest opinion that the person who writes and creates the music goes out and makes a damned t-shirt to sell as well, and then markets it? Hell no, it's all the label they work for. If you somehow got screwed into doing it yourself them fine, fantastic for you, but generally the artists dont take any money out of their own pockets (or time for that matter) to make t-shirts and other things besides music and sell them. When you go to a concert do you see the musicians outside in the booth hawking their hoodies and shirts that are relatively exclusive to the tour they are on? Hell no, there are people hired to sit their and hawk it for them.

    So just to recap, artists make the music, labels produce the music and then create the merchandise if the music gets popular enough, and then the label sells it and gives the artists a minimal sum for it, while keeping most of the money for themselves.

    So in the end of all this, anyone who thinks they are fighting for fairness when they say that the artists should be making more money is true, but they shouldnt be making it from the people, they should be making more money from the labels that are financing them.

    Either way copyrights are stupid as shit now, all information on the internet is being transfered for free whether people like it or not, and it's going to continue to happen until the corporations fighting it finally completely collapse under the weight of the task they are currently trying to undertake. do you know how many people torrent music that is copywritten? or movies? It's impossible that they are going to get rid of it without completely reworking the way the internet works, and I for one like it the way it is, where i can share my information without 30 different security agencies screening every last drop of my personal information every time i turn on my web browser. Because that's where this is heading, and i doubt anyone who thinks that artists and big label corporations should be making more money, thinks that those corporations should also know what you bought for lunch last tuesday from mcdonalds. But if you keep fighting for them, and if on some miraculous change of events that leaves the world smoldering in a pile of manure the corporations actually manage to pull of such a feat as to take away the free information exchange that IS the internet, then i fear we will all be in a situation that no one wants to be in. Really ask yourself where you stand, and don't bring irrational beliefs into the mix. Your mystical and magical corporations that you seem to hold in such high regard would suck you dry for everything you own if you told them they could have it, and then they would leave you covered in shit sitting in the street trying desperately to understand what just occured while they went and sold all of your things and put the money into an emergency fund so when they go bankrupt the executives could go move to peurto rico and live hapilly for the next 2000 years off of the money they 'made.'

    but i digress. It would all be for the sake of being "fair" if the corporations did that, wouldn't it? If fledgling artists couldn't use the internet to make money for themselves and to get big, then the corporations would have all the money and control that they had back 30 years ago when the internet didnt exist.

    do you really want to go back in time 30 years just because some fuckass behind a desk in an office building thinks it's not good for some kids to listen to some music? All they do when they try to fix it is make it worse for the people who actually want to buy the music by putting DRM on it, or some form of security.

    anyways, copyrights are out of date and the whole copyright system needs a serious revamping.information exchange at the moment is free regardless of what people may try to do, but the only problem that i do see with this is that fledgling artists who do want to get set up on their feet will find it harder just writing for a living because they won't be able to make the money off of it that they used to be able to 10 years ago when transfering music over the internet didn't seem possible.

    that's my only slight peeve, is that while sharing this information for free is a prospect of actual progress as a society, all information being completely free would stop some artists from doing their music or book-writing because lets face it, humans as a society are incredibly greedy creatures and while some of the writers will continue to write just for the love of writing, many of them rely too much on the money that they receive to be able to continue to write music or books. the big labels will have to begin giving the artists their dues if they want the real progress to start.

     

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    identicon
    romelia, Oct 2nd, 2009 @ 11:44am

    blahh !

    you need to put more information about this

     

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