Is Balance The Right Standard For Judging Copyright Law?

from the balancing-what? dept

For many years, I've pointed out that I tend to disagree with many folks -- who I otherwise agree with -- in copyright debates, who argue that we should be looking for the "right balance" of copyright holder rights vs. user rights. I've long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized. As such, there shouldn't be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

Still -- especially among so called "copyfighters" -- the concept of "balance" is quite commonly used. However, it appears that at least some others are also concerned about this use of "balance." Copycense alerts us to a paper that was published recently by Abraham Drassinower, of the University of Toronto Law School, which also argues that balance is the wrong way to view copyright policy. Unfortunately, the paper is not the most... lucid thing out there. It's quite academic and, tragically, does not do a particularly good job clearly and concisely making its point. It's not what I would call an easy read. Instead, it rambles at times, and uses overly complex (and at times circular) language, rather than just coming out and stating a clear and concise thesis. This is unfortunate, because if you can get through the language used in the paper, it does make some very valuable points.

The argument is, effectively, that "balance" as a concept in copyright law really only makes sense if you believe that copyright law is designed to reward a content creator for their labor -- in legal terms, the "sweat of the brow" argument. However, courts in both the US and Canada have rejected a "sweat of the brow" standard for copyright law, as being separate from the purpose of copyright law. If you believe that "sweat of the brow" is appropriate, then you are starting from a position that a content creator naturally deserves rewards from all benefits that result from his or her work. And, thus, the "balance" is in slowly removing some of those rewards and giving them to the public, until things are seen as "fair" for both sides.
The sweat of the brow standard affirms a view of copyright law on the basis of what we might call a misappropriation paradigm--that is, a paradigm that grants copyright in the products of a person's mental effort so as to preclude others from reaping where they have not sown. The mischief copyright law aims at in this paradigm is the misappropriation of value through copying. Copying a phone directory gives rise to copyright liability because such copying amounts to an unauthorized transfer of value from the author to the copyist, the plaintiff to the defendant. It is to correct this "grievous injustice"--to use the words of a classic House of Lords judgment in this tradition--that copyright law operates. Its target is the injustice of misappropriation.
But, without a "sweat of the brow" standard, then the whole concept of balance makes a lot less sense. Instead, Drassinower notes that copyright is actually based on a "skill and judgment or creativity" standard, which focuses just on the creative elements of the work, rather than the effort put into the work. In other words, the standard we have set for copyright focuses on the value of creativity rather than the value of effort. Drassinower argues that balance, as a concept, does not, and cannot take that difference into account.

Again, while I agree that balance is the wrong way to look at things, I was quite disappointed by the way Drassinower sets out to make this case. It's interesting, but not presented in a compelling way. There are times when it makes good points (though, again, using overly dense language in most cases), but never seems to fully come out and just state the clear conclusion of focusing too much on balance: that it falsely implies that when one loses the other wins. That it falsely implies that this is a zero sum game. At times, he gets close, as in the following passage:
[Once] the metaphor of balance is assumed as the integrating mechanism holding authors and users together, integration properly so-called can never occur. And that is because once value-balancing is the ordering mechanism, then the relation between authors and users is but a perennial struggle for value, such that claims of authors are but minimizations of the value-entitlements of users, and similarly, the claims of users are but minimizations of the value-entitlements of authors. The upshot is that successful haggling about price masquerades as the foundation of a truly public domain. The failure to elucidate authorship as anything other than value-origination generates an impoverished vision of the public domain as nothing other than a lower or lowered price.
But he fails to take that final step of pointing out that it's not a zero sum game, and the goal of copyright should be maximizing the creation of content overall, such that everyone is better off. Still, if you can get through the rather dense language, the paper does raise some good points, even if I felt it misses the true problems over "balance" in the copyright debate.


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    Geof (profile), Oct 9th, 2009 @ 10:48pm

    A different balance

    I agree with you that copyright is not and should not be a balance between creators and users. Effective copyright should benefit everyone.

    However, I have a problem with your claim that "the standard on which copyright law should be judged is one where the creation of content is maximized." This implies that the object of copyright is the quantity of works.

    First, not all works are of equal value. Some are not beneficial at all. We have quite a bit of evidence, for example, that television has had deleterious social effects. See Robert Putnam's Bowling Alone, or a study Andrew Leonard cited today on How the World Works correlating TV viewing with levels of personal debt in the U.S. There are plenty of other examples, from hate speech to annoying advertising, of creativity that is less valuable than average.

    Before anyone fetches their pitchforks and accuses me of proposing to censor speech or the like, I am saying nothing of the sort. In order to achieve its goals, copyright already imposes limits on speech. The law already makes judgments about which expressions are more desirable (or original). Set the wrong goals, and you will limit - censor - valuable speech. We already see this happening.

    Second, the value of creative works is realized in use. It makes more sense to aim to maximize the benefit of works than their creation.

    Third, much of the value of creativity does not reside in works at all. Creative activity is itself valuable, even when little or nothing of significance is produced. We believe that it is essential for our kids to engage in creative activity even when their art is not objectively very good. The same is true for adults. The process of creating is a form of thinking, of reflection, of education, of understanding ourselves and the world. It is often a shared activity or performance that builds relationships with others.

    Copyright should maximize the benefits of creativity. Not the production of content alone. I won't claim this is easy to determine. But measuring quantity is not a better approach just because counting is easy. In practice, we are not really looking for some sort of maximum value. We are trying to make better choices with the law, and avoid worse choices. Most of the time, the choice that would maximize the benefits of creativity is pretty clear. (The cynic in me responds: and most of the time we make the opposite choice.)

     

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      Tor (profile), Oct 9th, 2009 @ 11:47pm

      Re: A different balance

      Some very good points you make there. Especially the third one is often forgotten. When you say "use" in your second point I have to assume that you by that also include activities and relations similar to those mentioned in your final point.

      And in some cases the distinction between creation and use is not that clear at all, so the main point here is to look at culture as something much broader than packaged products.

      Btw. When Mike talk about maximization he never really said clearly what should be maximized, so I think it's safe to assume that it was more than just quantity and that he shares this view that not all works are equally valuable.

       

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        Doctor Strange, Oct 10th, 2009 @ 1:04am

        Re: Re: A different balance

        Btw. When Mike talk about maximization he never really said clearly what should be maximized, so I think it's safe to assume that it was more than just quantity

        Betcha you're wrong. One of the running tropes here seems to be that "more" is always better: more always adds, never subtracts.

        I think there are some underlying assumptions that "more quantity" implies "more quality:" that value is subjective and therefore there's really no such thing as a value-less work to everyone, and that the law of large numbers means that it's basically inevitable that in the "more" there will be at least some high-value work.

        While these sorts of assumptions feel good and seem intuitive when stated, I think it's worth examining them and not just taking them at face value. Things are probably not as simple as they imply, and we should try to understand things like the paradox of choice better.

         

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          Mike Masnick (profile), Oct 12th, 2009 @ 1:22am

          Re: Re: Re: A different balance

          Betcha you're wrong. One of the running tropes here seems to be that "more" is always better: more always adds, never subtracts.

          No, he was right. I was not particularly clear in making the argument -- my fault -- but my use of "more" was meant to be shorthand for a situation in which "more" total benefit was created, which accounts for quality. But I said it in a confusing way.

           

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      Anonymous Coward, Oct 10th, 2009 @ 7:43am

      Re: A different balance

      indeed, television has had such deleterious effects on society that it has caused folks like you to forget the difference between causality and correlation!

       

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      Mike Linksvayer, Oct 10th, 2009 @ 2:40pm

      Re: A different balance

      Fourth, creating content has direct and opportunity costs. A regime which the creation of content is maximized may be one in which resources are dedicated to content creation that ought to have gone to accounting, or plumbing, or ballet instruction, or hospice care...

       

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    Doctor Strange, Oct 9th, 2009 @ 10:54pm

    The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized.

    Since everyone here is such a big fan of the founding fathers:

    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.

    Here, there is nothing about the creation of content. The purpose of copyright, according to this, is "To promote the Progress of Science and useful Arts." Therefore, the standard is not creation of content, it's progress. If you decide to measure the Progress of Science and Useful Arts as creation of content without regard for its value or quality, that's your personal judgment.

    Furthermore, nothing there says anything about maximizing the creation of content.

    Second, there is one specific mechanism there laid out as a strategy for promoting progress. One. It doesn't say "To Promote the Progress of Science and useful Arts by any means that does so, such as securing for limited times..."

    The problem with defining copyright based on a strict constitutional interpretation is that it forces you to pick parts that you want to keep and parts you want to throw away. So assuming the purpose of copyright ("to promote the Progress...") is treated as inviolate, why are you allowed to throw away the single prescribed mechanism for doing so - even if it doesn't work? If that mechanism doesn't do what the framers thought it did, then why should we accept their defined scope and purpose of copyright at face value?

    Ultimately, what you're left with is just a particular position on the issue of copyright - that you think the best way to "promote the Progress..." is to maximize the creation of content, and we should therefore tailor law to do so because you believe that creates the maximum net social benefit. Therefore, any issues of "balance" are really not relevant.

    Applying the idea that we should craft laws to maximize perceived net social benefit in this way seems a little dangerous to me. Why stop there, and not extend the idea to extensive use of eminent domain and wealth redistribution? I make a decent living, but don't "live large." I have a one-bedroom apartment and sock some money away every week in savings, but if I were really honest with myself, I have more than I need. Shouldn't the government be able to at least make me board and support at least one out-of-work, down-on-his-luck citizen? I have a futon that just lies empty at night, and it doesn't cost any more to keep my place heated comfortably for two than one.

     

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      Mike Masnick (profile), Oct 9th, 2009 @ 11:12pm

      Re:

      Applying the idea that we should craft laws to maximize perceived net social benefit in this way seems a little dangerous to me.

      Ok. So you are against copyright entirely then?

      Funny, considering your usual comments seem to support it strongly.

       

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        Doctor Strange, Oct 9th, 2009 @ 11:38pm

        Re: Re:

        Ok. So you are against copyright entirely then?

        Er, no?

        Actually, I think "balance" should be a critical part of the debate. The system we have, for better or worse, is perfused with issues of tension and balance between inequalities. There are other fundamental systems we could use, but, as the producers of the Ellen show might say, "that's not how we roll."

        You can make glib statements like "maximizing the creation of content overall, such that everyone is better off" but there are important implicit qualifiers in there. If less copyright really made everyone better off, would there be such a huge lobby for stronger copyright? Are they just unenlightened and acting against their own self-interest? I doubt it.

        What I think you mean here, and correct me if I'm wrong, is that you believe that, on average, everyone will be better off. Right now, some people are very well off, and others less so. Perhaps it's even a sort of power-law distribution: a small minority are very well off indeed, and a large majority, relatively speaking, not so much. By substantially reworking copyright in the ways you tend to propose, that minority will be severely disadvantaged. Everyone - in an individual sense, as in "each and every one" - will not be better off.

        Let's say by disadvantaging that minority pretty substantially, we can actually increase the area under the curve a little bit. That is, as you suggest, it's not a zero-sum game (this doesn't mean that the sum is unbounded, of course). Is that justification for doing so? I personally don't think so. The thought terrifies me a little. I think this is where the issue of balance comes completely to the forefront.

        Society is full of situations where the advantage curve is a J-curve like this, and it's not clear that there's a zero-sum game. Why, then, should we only use the strategy of redistributing advantage on the issue of copyright? Why shouldn't they make me keep a homeless guy on my couch?

         

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          Tor (profile), Oct 10th, 2009 @ 12:01am

          Re: Re: Re:

          It seems to me that you are missing the point. If you ignore silly labour theory justifications of copyright, then special interests are not even part of the equation. If you optimize that equation some people could very well loose money on that, but it's not about balance since their interests are not part of the consideration.
          (when you are talking about who's at a disadvantage I assume that you are talking about income secured through copyright and not about access to culture or progress etc.)

          "If less copyright really made everyone better off, would there be such a huge lobby for stronger copyright? Are they just unenlightened and acting against their own self-interest?"

          I think there are two important points to be made here:
          1. Special interest groups have always lobbied for laws that will benefit them. That says very little about the interest of the public.
          2. Copyright protects both the latest blockbuster movie and some private person's diary or photo album. It's not certain that we need to protect the privacy of people and commercial products using the same means. When you look at the support for the laws I think it's helpful to view these two areas separately.

           

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          Anonymous Coward, Oct 11th, 2009 @ 12:09pm

          Re: Re: Re:

          "Let's say by disadvantaging that minority pretty substantially, we can actually increase the area under the curve a little bit. That is, as you suggest, it's not a zero-sum game (this doesn't mean that the sum is unbounded, of course). Is that justification for doing so? I personally don't think so. The thought terrifies me a little. I think this is where the issue of balance comes completely to the forefront.

          Society is full of situations where the advantage curve is a J-curve like this, and it's not clear that there's a zero-sum game. Why, then, should we only use the strategy of redistributing advantage on the issue of copyright? Why shouldn't they make me keep a homeless guy on my couch?"

          Well, let's start by eliminating the straw man. Making you keep a homeless guy on your couch has unacceptable side effects: It affects your privacy and security, etc.

          Which is why nobody is suggesting that you have to do that; choosing between "homeless guy freezing to death" and "you have to let him sleep on your couch" is a false dichotomy. Instead we can say that you have to pay taxes and the tax money goes in part to build homeless shelters.

          At this point you can still make the sort of Libertarian objection which it seems you wanted to make in the first place, which is that the choice between "force you to pay taxes to build homeless shelters" and "homeless guy freezing to death" is also a false dichotomy. Perhaps instead, if we let people keep their own money, they would choose to donate more to charity and end up still helping the homeless, but in a way that is better or more efficient than involving a taxation bureaucracy.

          Yet this is engaging in the very "growing the pie" / "not a zero sum game" calculations that you object to. If the common good is best achieved through taxation and social programs then we choose that. If you can show that it is better to reduce taxes and allow private ingenuity to solve the problems instead then we can choose that. But if your argument is really that we should let the homeless guy freeze because you want to pay slightly lower taxes, well, nobody agrees with you.

           

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    Tor (profile), Oct 10th, 2009 @ 12:09am

    Other kinds of balances

    Mike,
    I agree with you, although that "maximization of content" part could probably be a bit clearer. However, there is another kind of balance that need to be reached. We have the rights to due process, right to privacy, reasonable damages etc. The enforcement of copyright (at least the laws that the industry lobbies for) often tends to more or less violate some of these fundamental principles.

    Of course law enforcement will always need to violate for example the right to privacy when there is reasonably strong suspicion of crime, but there need to be a sense of proportions. So I think the balance is relevant both in deciding how far copyright enforcement laws should be allowed to go, and in the execution of the law enforcement.

     

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    Anonymous Coward, Oct 10th, 2009 @ 1:21am

    Copyright law, as it is written, obviously no longer works in the digital age. It needs to be rewritten with voices from all sides being considered. When this day comes, I think one of the most important things that needs to be written into the law is that copyrights are non-transferable. This is what artists need to fight for so they are no longer in the position of being short changed by third parties for their work, or having their fans sued in their name by someone else who only gives a damn about lining their own pockets. They need to shift their train of thought from "I want a bigger slice of the profits" to "The copyright is mine and can only be mine." And like every copyright extension has been it should be retroactive:)

    Every copyright extension that does not benefit the creators is garbage legislation, though it's garbage legislation anyway because it strays further from the original intent and robs us of our culture and also the public domain. I think copyright should be limited to 15 years with at most one buy-able 10 year extension, but only if the particular piece of work is properly registered and still maintains a profit margin of X% after the initial term runs out. If it can't maintain X% after the initial 15 years... the term runs out. Plain and simple. Public domain it is. No free rides for life for one piece of work. Encouraging creativity involves keeping creators working.

    At the end of the day, what we see now is bad legislation propping up failed industries that refuse to adapt to their customer's needs, technology, and the future. They tie up our courts, attempt to criminalize ordinary people who have no ill intent, stifle technology and innovation, serve no good to anyone but themselves, and should be forced to be accountable for their own inefficiencies.

     

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      John Fenderson (profile), Oct 12th, 2009 @ 8:26am

      Re:

      "Every copyright extension that does not benefit the creators is garbage legislation"

      Actually, I would prefer to say that "every copyright extension that does not benefit the public is garbage legislation." Copyright is not intended to benefit the creators, but rather the public. Any benefit to the creators is a side-effect of benefiting the public. Or should be, at least as I read the copyright clause.

      But if we are to talk in terms of "balance," and I agree with Mike that it's a bogus way to frame things, then I would prefer the balance be struck as follows: the more draconian and all-encompassing copyright restrictions are, the shorter the term of copyright should be.

       

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    Hank, Oct 10th, 2009 @ 3:55am

    paid twice for doing something once

    If you dig one ditch, you are paid for digging 1 ditch, not 2 ditches or 1 million ditches. Now let's say you instead write an analysis of the ditch digging business and a guide on how to break into that marketplace. and sell it online for $4,500. Now your business model is to email each customer the same digital PDF of your guide and collect $4,500 each time (assuming they find the info that valuable). Which business model has the ability to reward you most for the least amount of work? Which model is most attractive? It is this path to unnatural rewards relative to the amount of work that drives people in favor of stronger IP laws. People see the loophole and realize it's a potential jackpot. It's also why thousands of writers and producers flock to Hollywood every year, and computer programmers are dying to write fart programs for phones--they want essentially the same thing, to be paid twice for doing something once. Who could blame them? IP laws set up a false marketplace that is protected form natural market forces, and everyone wants in, and is desperate to protect the system.

     

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    Steve R. (profile), Oct 10th, 2009 @ 4:46am

    The Shifitng Balance

    Balance implies analyzing something from a "fixed" reference point. The concern with analyzing "balance" in copyright is that it is evolving, we do not have a level playing field upon which to make a decision based on "balance". (Of course one can say that if we take a snap-shot of the current situation that that is a "fixed" reference point.)

    So basically, when a new technology comes along, such as the ability to record MP3 music onto a variety of platforms the copyright holders assert that any copying must be authorized by licensing. Whereas the file owner would assert that they have an entitlement to use the content as they wish. I, of course would advocate that "balancing" would deprive the file owner of rights that they are entitled too.

     

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      Steve R. (profile), Oct 10th, 2009 @ 6:12am

      Re: The Shifitng Balance

      I had to leave before I was able to complete reviewing my points. Basically, how do you evaluate "balance" if the "opposition" is never satisfied? The length, breadth, and scope of copyright has been expanding. And the pro-copyright continues the fiction that every stronger laws are needed to protect their interests, while neglecting to point out that they are figuratively "stealing" from you.

      If the other party to an agreement is always questioning the validity of the agreement, what is the point of achieving "balance"? You will always be negotiating from a new "center" that is favorable to the "other side" and from an increasingly weak position since you blinked first.

       

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    Anonymous Coward, Oct 10th, 2009 @ 7:06am

    Mike, I have to say that if nothing else, you are one persistent man. When you can't find a legal argument, or moral stand to take, you come up with posts like this.

    Sadly, this post really shows where you stand, you have revealed your true leanings: You are a socialist.

    http://irish-ayes.blogspot.com/2008/01/two-cows-political-systems-explained.html

    "S OCIALISM: You have two cows. State takes one and give it to someone else."

    Balancing copyright is a meaningless argument because the forces at work are not even on each side. Only one side creates, only one side consumes. They are not equal players to start with, so any balance is going to cause harm to the stronger side (the producer). Remember, if ther content isn't produced to start with, there is no consumption.

    Socialism is the type of answers usually brought up by intellectuals with no actual world experience. Utopian answers that satisfy their inner hippie, but don't really address the true natural of the situation.

    Congrats, you have sunk to a new low.

     

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      Anonymous Coward, Oct 10th, 2009 @ 8:38am

      Re:

      If copyright was destroyed, what would happen? Content creation would still happen, it would just happen by amateurs who do it for love, not money.

      What you're describing is Fascism, where corporations govern and try and squeeze every last cent out of the population, the same population that _allows_ them to operate. They need us, we don't need them. Oh, so a new Britney Spears album doesn't come out. I think I'll survive. But her label won't.

      Remember, all these laws are about good that can be copied. No one is advocating this for loafs of bread or lumber. Your position is like telling me joke, and then telling me I can't retell it. Of course our natural reaction is going to be: "f**k you".

       

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      Anonymous Coward, Oct 10th, 2009 @ 10:35am

      Re:

      I like your analogy comparing Cows to Socialism. Now, let's compare Cows to the Patent System.

      "You have two cows. State takes one and give it to someone else.

      Damn straight! Give the cows away. The last three you had died of old age, and none could be slaughtered due to neglect and disease. In their lifetime, they only produced a total of 3 gallons of milk, which was promptly sold for $2.00 a gallon.

      Not only that, your cows are not contained and walk onto other farmers land where they shit and eat my crops.

      I wholeheartedly support giving your cow away maybe to Farmer McGregor's up the street who runs the Dairy Farm.


      Comparatively speaking, this can be similar to filing patents (Owning Cows as Property), doing nothing with them (No products brought to market- milk or meat), stifling innovation and others work(Pooping and eating other farmers crops), filing lawsuits in other jurisdictions, where consumers and taxpayers ultimately get stuck with the bill.

      Find someone to give BOTH cows to someone who will do something with them, because the current owner doesn't take the time or know how to raise 'em!

       

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      Tor (profile), Oct 10th, 2009 @ 11:47am

      Re:

      It's meaningless to discuss disagreement of your conclusions when you seem to disagree on the premises. It seems to me that you don't view copyright as a utilitarian way of promoting progress, such as it is described in the US constitution.

      If you view copyright as an individual right based on labour theory arguments, then please explain how a time limitation does not amount to state confiscation of private property (and please also give an account of the principles that dicitate that the terms for patents and copyrighted works respectively should be so different).
      If you do view copyright as a way of maximizing the benefits to society, then how can it be socialism to restrict state intervation on the free market?

       

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      Anonymous Coward, Oct 11th, 2009 @ 3:39pm

      Re:

      You must be a wingnut

       

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      Mike Masnick (profile), Oct 12th, 2009 @ 1:26am

      Re:

      You are a socialist.

      Really? How did you come up with that?

      "S OCIALISM: You have two cows. State takes one and give it to someone else."

      Wow. So you base your definitions on economic theory based on a silly joke?

      That's sooooo convincing.

      Balancing copyright is a meaningless argument because the forces at work are not even on each side.

      So we agree that balancing copyright is meaningless. So what are you upset with me about?

      Socialism is the type of answers usually brought up by intellectuals with no actual world experience. Utopian answers that satisfy their inner hippie, but don't really address the true natural of the situation.

      I'm not sure what you're saying here. Are you accusing me of having no real world experience? Or of being a hippy? Or what? If it's either of those, you are kinda clueless. You might want to try again.

      Congrats, you have sunk to a new low.

      Clearly. Just wish I could understand from your comment where that low exists.

       

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        Anonymous Coward, Oct 12th, 2009 @ 5:10am

        Re: Re:

        Wow. So you base your definitions on economic theory based on a silly joke?

        No, I used the silly joke as a simple way to draw a parallel to your thinking.

        I'm not sure what you're saying here. Are you accusing me of having no real world experience? Or of being a hippy? Or what? If it's either of those, you are kinda clueless. You might want to try again.

        Please apply basic reading skills Mike: "Socialism is the type of answers usually brought up by...". Usually, it is the answer of the inexperienced or the altruistic, not someone of your experience. Yet, here we are, looking at "balance" as a concept, which is a truly socialistic way to look at copyright.

        As a side note, you are once again coming off as arrogant. That is never a good thing.

         

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          Trails, Oct 12th, 2009 @ 5:30am

          Re: Re: Re: A page from the book of Beck, but you can't even get that right

          You seem to be on a mission here to label make a socialist. Clearly, you believe this to be a bad thing. Not sure why, the US could stand from a more socialist lean.

          However, I don't think you've read Mike's post, since, aside from your FOXNEWS-esque "socialism" drop, you and Mike seem to agree that balance won't work.

          Try READING the post perhaps?

           

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            Anonymous Coward, Oct 12th, 2009 @ 6:02am

            Re: Re: Re: Re: A page from the book of Beck, but you can't even get that right

            Read the post, and I read Mike's comments, and I have read pretty much all of Mike's posts on the subject in the last few years.

            If Mike truly didn't agree with the balance arguments, he would be as rude and arrogant about it as he is when he writes comments. He is not. He instead sums up with:

            the paper does raise some good points, even if I felt it misses the true problems over "balance" in the copyright debate.

            It's the staight up admission that balance is part of the copyright debate, just that this paper missing the "true problems".

            When you debate the balance between ownership and public rights in something like copyright, you are giving credence to the idea that private ownership (of inventions, art, etc) is somehow wrong. The only places that concept flies is in socialist countries. The rest of us don't have to debate the idea, because we inherently know the benefits of rewarding someone for doing a good job.

            Otherwise, it would be like an Olympic marathon, where after the event is over, we ignore the winner and give everyone, including the audience, a small gold medal just for being in the room. Do you think anyone would aspire to win the next Olympic marathon?

            Reward the winners, and everyone will want to be a winner. Reward average or non-participants, and everyone will reach that level.

             

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              Trails, Oct 12th, 2009 @ 6:15am

              Re: Re: Re: Re: Re: A page from the book of Beck, but you can't even get that right

              I'm not sure you know what "summed up" means. In fact I'm positive you don't (or you're being deliberately dense).

              Mike's argument is clearly articulated:
              I've long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized.

              Further, overly simplistic and inaccurate analogies aside, you're missing a key point; invention never happens in a vacuum. Music builds on other music, software builds on other software, etc...

              This is part of the "other end", though again the "balance" argument fails simply because it is ill defined. Mike is right; articulate goals, create an optimal system based on those goals.

               

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                Anonymous Coward, Oct 12th, 2009 @ 8:33am

                Re: Re: Re: Re: Re: Re: A page from the book of Beck, but you can't even get that right

                Mike's argument is clearly articulated:
                I've long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized.


                Yes, and if you read the rest of Mike's comments over the years, you know that he thinks of patents and copyright as obstructions to creation. Thus, his dismissal of this "balance" article is only because the balance might take away from his socialist opinions on the subject. If you create it, you don't own it or control it. Everyone can do what they like, from making copies to reusing the material in something else to cloning and selling it without restriction.

                Is content and idea socialism is the answer, we need to get a better question.

                 

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                  Mike Masnick (profile), Oct 12th, 2009 @ 10:24am

                  Re: Re: Re: Re: Re: Re: Re: A page from the book of Beck, but you can't even get that right

                  Thus, his dismissal of this "balance" article is only because the balance might take away from his socialist opinions on the subject.

                  Again, I'm curious what's socialist about suggesting the free market can take care of things instead of a gov't run monopoly?

                  If you create it, you don't own it or control it.

                  Wait, are you suggesting that capitalism is "if you create it, you own it" as society? If so, time to hit the books, because you don't know a thing about capitalism.

                  Everyone can do what they like, from making copies to reusing the material in something else to cloning and selling it without restriction.


                  Heh. You seem to not understand a few concepts about capitalism, socialism or basic property rights. You might want to try reading up a bit.

                  I have tremendous respect for property rights -- but not for artificial monopolies that restrict real property rights.

                   

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          Mike Masnick (profile), Oct 12th, 2009 @ 10:20am

          Re: Re: Re:

          No, I used the silly joke as a simple way to draw a parallel to your thinking.

          Except it's nowhere near a parallel of what I'm thinking. Did you even read what I wrote?

          Please apply basic reading skills Mike: "Socialism is the type of answers usually brought up by...". Usually, it is the answer of the inexperienced or the altruistic, not someone of your experience. Yet, here we are, looking at "balance" as a concept, which is a truly socialistic way to look at copyright.

          Which part of the fact that I don't agree with "balance" as a concept in copyright did you miss?

          As a side note, you are once again coming off as arrogant. That is never a good thing.

          Sure it is. It's a perfectly acceptable thing when responding to someone who apparently can't read. If you don't want me to come off as arrogant, don't post idiotic things. It's pretty simple.

           

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            John Fenderson (profile), Oct 12th, 2009 @ 11:02am

            Re: Re: Re: Re:

            Meh.

            Mr. Coward is a troll and deserves to be ignored. The tip-off is using "socialist" as an epithet (meaning obviously intended as an insult, but just as obviously being misapplied even if it weren't meant as an insult.) The old tip-off used to be calling someone a "communist," but too many people got wise to that.

             

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            Anonymous Coward, Oct 12th, 2009 @ 1:31pm

            Re: Re: Re: Re:

            You don't agree with the balance put forth only because it is too supportive of artists, not comsumers.

            Thus, the socialist agenda.

             

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    dnball (profile), Oct 10th, 2009 @ 9:25am

    First Principles

    You can "balance" any two things. If we're going to discuss balance in copyright law it's necessary to first agree on what's being balanced. Specifically and clearly -- what's on each side of the fulcrum?

     

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      Richard (profile), Oct 10th, 2009 @ 11:34am

      Re: First Principles

      what's being balanced.

      Cost of enforcement vs cost of misappropriation.

      The problem is that at present both are growing extremely rapidly!

       

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    bigpicture, Oct 10th, 2009 @ 2:10pm

    Copyright law?

    Why should copyright law not mimic the real world. In the business world everything has a "life expectancy" and that is getting shorter and shorter as time progresses. Even in my own lifetime I can remember a whole lot of commercial products that are no longer around. Does anyone use "slide-rules" or "typewriters" any more? Do businesses use dedicated "word-processors" or "carbon copy" paper any more?

    The only thing that they need to do with copyright law is to force these same real world "useful life" restrictions on copyright as exists in the rest of the business world. The original "copyright" owner gets 15-20 years MAX, then it is in Public Domain. And any side deals where "copyright" is part of some business arrangement can only be 5 years MAX. This would force them all to rethink their business strategies where in the real world "time is of the essence". NO OTHER BUSINESS CAN MONOPOLIZE BY LAW LIKE THIS, AND ESPECIALLY MONOPOLIZE IN PERPETUITY. In fact in other industries there are laws to prevent MONOPOLY.

     

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    Gene Cavanaugh, Oct 10th, 2009 @ 2:42pm

    Balance in copyright

    I agree with Michael's argument, but at the same time, I would like to point out that, historically, we have either lost or experienced delays of useful works due to the lack of copyright protection.
    Darwin, Copernicus, etc., etc. delayed publication for years due, in part, to a lack of protection (yes, there were other reasons, which are often given as the "only" reasons by guileless historians).
    Newton delayed publication of what became "Kepler's theorem" for years, partly because he could not protect it (yes, it is often stated "he must not have seen the significance", etc.).
    So, we need some form of copyright; however, all we have now is copyright abuse, and "balance" is one of the arguments used to justify that abuse.

     

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    Michael, Oct 10th, 2009 @ 3:17pm

    Copyright law

    The first purpose of Copyright Law is to promote the Arts. (Amazinly just about everyone agrees on this.)

    The second purpose is make sure that the correct person gets the credit for creating the art.

    This does not mean that he gets rich, it only means that his name, and not someone elses, goes on the work.

    It seems that the Record companies have made Congress believe that the only purpose of Copyright Law is to make the Record Companies lots of money.

    I can not find anything about protecting the Record Companies profits in the COnstitution.

     

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      Anonymous Coward, Oct 10th, 2009 @ 4:11pm

      Re: Copyright law

      This does not mean that he gets rich, it only means that his name, and not someone elses, goes on the work.

      Wrong.

      Copyright isn't a question of putting your name on something, like getting a mention in some sort of scientific paper. Rather, it is a claim of ownership and control for a period set forth by congress. There is nothing in the copyright law that says "and you can't charge for it".

      Since you got that simple part wrong, the rest of your argument sounds like most of what Mike posts.

       

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        Anonymous Coward, Oct 10th, 2009 @ 5:54pm

        Re: Re: Copyright law

        There is nothing in the copyright law that says "and you can't charge for it".

        What are royalties for, and who owns the Copyright? Who is suing for a 4% royalty?

        Or is it a $1M lawsuit based on the infringement of Mechanical Reproduction Rights? There's a difference. Basically, a $1M lawsuit isn't based on royalties, but it's based on something else, the label doesn't want to give up.

        Usually these conversations go like this:

        "Um, we can't make copies fast enough for others to buy, or, rather, we can't figure out a way to buy your music, and, we, can't put your music on your website, and we don't want to take "Donations" because it has a negative (legal) connotation. Donations is a tough word to use, with multiple legal meanings, some may think your music is free, and we want you to be paid for your work. So we're going to sue these guys for $10M dollars, and I just need you to sign here..."

         

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        bigpicture, Oct 10th, 2009 @ 7:19pm

        Re: Re: Copyright law - Assumptions

        Apparently you don't know much about copyright law OR BUSINESS either. Michael is not Wrong this is all copyright guarantees, THAT NO-ONE ELSE CAN LEGALLY USE YOUR WORKS WITHOUT YOUR PERMISSION. AND THAT IS ALL!!! It does not guarantee any MONEY. If your work is a piece of crap it won't sell in the marketplace, same as any other crap product. Copyright is all about enabling creators of "easily copyable" products some protection in the marketplace. Otherwise they would be at extreme risk of not being able to earn a living in these particular occupations at all. Now all of the corrupt and greedy Recording Companies and their lawyers of the same ilk have made it into something different. Before the time of easy reproduction there was no need for copyright, a singer had to sing their song every time, or a scribe had to write each copy of the book.

         

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          Anonymous Coward, Oct 10th, 2009 @ 8:48pm

          Re: Re: Re: Copyright law - Assumptions

          "THAT NO-ONE ELSE CAN LEGALLY USE YOUR WORKS WITHOUT YOUR PERMISSION. AND THAT IS ALL!!! It does not guarantee any MONEY."

          That's the point - nobody else can legally use your works.

          If they want to use your works, you can ask for compensation. It might be your name in lights. It might be a stack of cash. You might just say "no".

          There is no "balance" here. You made it, you own the exclusive rights for a given period of time, and everything after that is pretty much contract law.

          So having a weepy discussion about "balance" is just a nice socialist ploy, a transparent attempt to add emotion to a simple piece of law. It usually happens when Mike realizes that pretty much all the other avenues are solidly blocked off.

           

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            bigpicture, Oct 11th, 2009 @ 6:30am

            Re: Re: Re: Re: Copyright law - Assumptions

            I have seen this copyright crap discussed thousands of times and all of the polarized different opinions about plagiarism and pirating etc. etc. One issue that I have never seen discussed is the technology that makes these business models possible. Is it invisible or what?

            If it were not for the invention of recording technology there would be no artists or recording companies making money from music recordings. They would have to perform every time, or work like everyone else. Same for actors, it would be on the stage every time just like it was over 100 years ago. Before the printing presses how many millions of books did authors sell?

            The original concept of copyrights was about who could own and operate a press. (control of the copying technology) Then when that became impractical some rights were transfered to authors. But in general until fairly recently all copying technology was somewhat controlled. Now it is in the hands of the masses, so the control of who can make a copy of just about anything is lost.

            What about the inventors of these technologies, why are they not protected by some sort of "copylaw" where they can levy a fee each time their technology is used to make a commercial copy for sale. The technology was invented for the masses after all and not the sole domain of the ones who still want to control it and use it for their own purposes.

             

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    not applicable, Oct 10th, 2009 @ 4:07pm

    Re: About Balance

    As spoken:

    "In mechanics, physics, and the field of engineering, a "lever" as you call it, is often used to move (or ideally equalize) two unequal pieces apart from each other.

    While it seems they blindly request balance, which is interesting nonetheless, today's application to the current state of IP law can be seen as equidistant for well, both parties.

    However, in my studies, a lever is an interesting thing. Did you know it was invented by a French Man? I recently had (one of the best physicists) come and show to me how a lever works, and it worked was quite marvelously. Perhaps this fixed point you speak of, this, this proverbial fulcrum which you so desire may move, and may change the world somehow, and from this, their desire for the fulcrum may move in favor of those who want and desire a change is nonetheless interesting to me. The law doesn't move, it isn't a fulcrum. It's that simple. Get over it.

    I can speak of many things we own as property under IP law, yet we conscientiously decide to not exhort our property rights upon. I don't think they're giving us the benefit of the doubt. But if they believe they can move that fulcrum, go for it, and I'll hire them and make it worth their time to shut up.

    I doubt that will happen."

     

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      Talmyr (profile), Oct 12th, 2009 @ 12:38am

      Re: Re: About Balance

      Archimedes was French? Wow. I didn't know the French existed in ancient Greece.

      Not that Archimedes 'invented' the lever, he just 'copyrighted' the 'idea' and 'method' of a lever that had been in use for millenia. Now his heirs want to exercise their termination rights under 'forever-less-a-day' copyright durations. :)

       

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    Lisa, Oct 10th, 2009 @ 9:50pm

    heh

    "So having a weepy discussion about 'balance' is just a nice socialist ploy"

    You know someone has a weak argument when they go 'omg socialist ploy!!!!!111!!!!'

     

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      Anonymous Coward, Oct 11th, 2009 @ 8:20am

      Re: heh

      Sorry Lisa, but it isn't a ploy - it's the reality. When Mike runs out of valid arguments, or valid ways to look at things, he tends to go all emo.

      "balance" is just an emotional plea, nothing based on fact or content, just some sort of copyright version of "please be kind, rewind". The reality is this post reveals so much, a truly socialist attitude that everyone should belong to everyone all the time, and that inventors, artists, and creators should work not for their own benefit and enrichment, but as some sort of slave to society. That Lisa is socialism, pure and simple.

      Mike's entire post ready all weepy and emo, no facts, just emotion.

       

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        Tor (profile), Oct 11th, 2009 @ 9:03am

        Re: Re: heh

        You seem to believe that copyright is a natural right, but there are of course many liberal-minded people who think otherwise. Copyright is in my view a utilitarian method of maximizing the public good by imposing some limitations on personal freedom. Labour theory was meant to describe scarce resources and it seems to me that if it were to be applied to immaterial matters that it should cover facts too. I mean, a scientist or a journalist can work very hard to unveil facts that can prove tremendously useful to other people. It's inconsistent to not provide a way to reward them for their work.

        Personally I don't have a problem with this utilitarian system as long as there can be shown to exist real benefits and no restriction of an individual's rights is too severe. Today we have people whose works are protected until their 150 years old. We have politicians who, for reasons of law enforcement efficiency, are contemplating dealing out punishments in advance and having trials afterwards if deemed necessary. Clearly this is not the optimal system.

         

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    Anonymous Coward, Oct 11th, 2009 @ 8:38am

    "...the goal of copyright should be maximizing the creation of content overall..."

    Why not say what you really think and continue the sentence by stating "and all the evidence demonstrates that the goal is accomplished by the elimination of copyright"?

     

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    Lisa, Oct 11th, 2009 @ 10:27am

    @33. Another way of looking at it would be to say ownership rights are transferred for a individual copy whenever you convey it onto someone else.

     

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    Lisa (profile), Oct 11th, 2009 @ 10:57am

    re: re: heh

    "a truly socialist attitude that everyone should belong to everyone all the time"

    Then mike mistakenly believes that a world without copyright means 'everyone owns a work'. IP is a phony property right to begin with.


    "and that inventors, artists, and creators should work not for their own benefit and enrichment, but as some sort of slave to society."

    Nowhere is this implied. No setting up strawmen please.

     

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      Anonymous Coward, Oct 11th, 2009 @ 3:26pm

      Re: re: re: heh

      Lisa, all property rights are "phony" under that concept, which is what makes it entirely socialist of an idea.

      Property? Real Estate? Your Car? Your lunch? It's all an artificial construct, under that standard. The reality is that in our civilization, we have accepted the idea of property right for everything from dirt to machines to pieces of paper we can trade for other things (we call it money). Copyright is no more and no less of a phony property right than anything else.


      There is no strawmen, except the ones created by Mike and to a lesser degree yourself.

       

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        Lisa (profile), Oct 11th, 2009 @ 4:05pm

        Re: Re: re: re: heh

        'Lisa, all property rights are "phony" under that concept, which is what makes it entirely socialist of an idea.'

        My standard is one of 'physical equivalent control'

        IP is false because ideas can't be controlled in the way traditional physical property can.
        for instance, there is always the possibility that two people can have the same idea independent from each other.(actually, this has already happened many times in the past)

        You can own a copy of a work but not idea behind it because only the former is bound by the same circumstances that Real Estate, cars or food are.

         

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          Anonymous Coward, Oct 11th, 2009 @ 4:38pm

          Re: Re: Re: re: re: heh

          Physical things are property (rather than owned by society) because we say so. Being a physical item doesn't change it. Again, pure socialism says that everyone work is owned by the whole, nobody owns anything. The concepts of ownership are, in the end, just mental constructs.

          Oh Noes! ownership is only an idea, and ideas aren't real! On Noes! I guess that means that your physical item ownership doesn't exist, because the idea of ownership can't exist.

          By the way, how many angels fit on the head of a pin? You seem pretty good at the theoretical stuff, so please... ;)

           

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            Lisa (profile), Oct 11th, 2009 @ 5:10pm

            Re: Re: Re: Re: re: re: heh

            "Again, pure socialism says that everyone work is owned by the whole, nobody owns anything."

            Then I'm not a socialist. I believe You do have the right to receive payment for say, coding work under an employer and control (ownership) over any copies in your possession. My stance is that you must transfer ownership for any copies of the work you convey onto the recipient.


            "Oh Noes! ownership is only an idea, and ideas aren't real! On Noes! I guess that means that your physical item ownership doesn't exist, because the idea of ownership can't exist."

            Ideas are real things, just not ownable things. Morals and property may just be invented concepts, but they are ones which must be defined for society to function.

             

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        JEDIDIAH, Oct 12th, 2009 @ 1:16pm

        Re: Re: re: re: heh

        My ability to sit on my front porch with a shotgun makes my right to own real estate a little less "purely theoretical" than my ability to own some poem I jotted own and left next to a photocopier. Creative works have no physical reality. They are a work of fiction. They are a hallucination.

        OTOH, there are limits imposed by physics when it comes to being in a particular space (you or the property).

        Also, real estate has a long history that copyright does not. It did not merely "spring forth from the ether" overnight. There are American precedents in property and contract law that predate Jamestown.

         

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          Lisa (profile), Oct 12th, 2009 @ 3:26pm

          Re: Creative works have no physical reality.

          The physical reality lies in the media a work is stored on.

          It is through this that you may own individual copies of a work, in the same way a bowl can be owned.(not because you created the bowl, but because you own the glass/plastic that the bowl is made of)

           

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            Anonymous Coward, Oct 12th, 2009 @ 4:25pm

            Re: Re: Creative works have no physical reality.

            SO I don't own a computer, I just own a nice collection of highly processed sand and rocks?

            The harder you try to spin it, the worse it gets.

             

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              Lisa (profile), Oct 12th, 2009 @ 9:23pm

              Re: Re: Re: Creative works have no physical reality.

              No, you own the computer because you own the sand and rocks.

              Nice try troll.

               

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                Lisa (profile), Oct 12th, 2009 @ 10:19pm

                Or put in better terms

                Say I own a large ship made of steel. I could easily have it melted down into a bunch of chairs, therefor what I own is ultimately the steel.

                So I own the ship because the steel IS the ship.

                 

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    ..., Oct 11th, 2009 @ 3:48pm

    ZOMG - socialism !

    This is very similar to Godwins law

     

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    Ronald Bushnell, Oct 11th, 2009 @ 6:55pm

    Copyright

    In order to see the imbalance of copyright law, one only needs to look towards the corporations that are in the process of patenting the genomes of the food supply, not for the good of mankind, but for the gain of profit through the destruction of sustainable agriculture; or to the pharmaceutical companies that reap billions from drugs with questionable benefit, and inhibiting life saving cost effective alternatives, and the progression of a world society. It is clear that rather than spurring innovation, patent law stagnates a represses the advancement of the human spirit and should be considered as dangerous. Patet law should allow for gain for the enventer initialy, not in perpituity at the loss of benifit to mankind.

     

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      Lisa (profile), Oct 11th, 2009 @ 8:28pm

      Re: Copyright

      The real problem with patents is all the people applying just so they can sue later. Patent trolls are by far the worst threat to innovation.

       

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    Anonymous Coward, Oct 12th, 2009 @ 2:54am

    Let's say by disadvantaging that minority pretty substantially, we can actually increase the area under the curve a little bit. That is, as you suggest, it's not a zero-sum game (this doesn't mean that the sum is unbounded, of course). Is that justification for doing so? I personally don't think so. The thought terrifies me a little.

    Well said.

     

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    Mockingbird (profile), Oct 12th, 2009 @ 5:41am

    James Madison called patents and copyrights "sacrifices of the many to the few." Levi Lincoln, U.S. Attorney General under President Thomas Jefferson, called patents "monopolies in derogation of public right"--a description that I would apply to copyrights also.

    This language means that the public initially has rights in works of the human mind which it temporarily "sacrifices" or "derogates" to the rightsholder for purposes of public policy ("to promote the progress of science.") At the point of legislative drafting, the question then becomes, how much of the public's rights will be derogated or sacrificed to achieve the policy's goals. The language of balance, or trade-off, is a reasonable choice of language to describe this sort of political calculus. The language of balance, or trade-off, or "spoils fight" becomes even more appropriate when interested parties become involved.

    Hence I will continue to use the terms "balance" or "trade-off" when appropriate in describing the legislative drafting process, however little others may care for such language.

     

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    Anonymous Coward, Oct 12th, 2009 @ 1:59pm

    Further, overly simplistic and inaccurate analogies aside, you're missing a key point; invention never happens in a vacuum. Music builds on other music, software builds on other software, etc...

    NOTHING is made in a vacuum, immaterial or otherwise. So how, exactly, is that a "key point" in regard to this discussion?

    Again, I'm curious what's socialist about suggesting the free market can take care of things instead of a gov't run monopoly?

    Define "take care of". If by that you mean, "pander to counterfeiters, parasites, coat tail riders and the general undeserving" than yes, I completely agree, the free market in regard to many artistic works would indeed "take care of things" remarkably well.

    The tip-off is using "socialist" as an epithet

    I am not the other coward and I don't agree that TechDirt's Patron Saint of Chinese Rolex's™ is a socialist but I would like to chime in to say there is nothing inherently wrong with using "socialist" as an epithet nor does crying wolf, however many times, negate the existence of real wolves. The fact is, this whole web 2.0 "art should be free" movement has much in common with socialism whether you'd care to admit it or not.

     

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    Anonymous Coward, Oct 13th, 2009 @ 2:24am

    I don't think only rich people like Lisa should have large ships made out of steel. In a truly competitive market, I would be allowed to take Lisa's ship and melt a piece of it into a chair for myself. She could even sell T-shirts or lunch dates while people came to take pieces of her ship and melt (remix!) them into other products.

    Or perhaps we could take her "large steel ship" and make a bunch of jerry-rigged rafts out of it. Obviously more ships is better than one ship! Nevermind the fact that you can't steer the little ones, the build quality is dreadful, and the majority of them have already sank...there's MORE of them! That's all that matters! More = Success!

    Atoms want to be free, Lisa. I am entitled to take any collection of atoms (such as a large steel ship) you falsely and immorally believe yourself to own. REAL sharing is caring. Don't be greedy now. Tell me where you've docked you boat.

     

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

    •  
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      Lisa (profile), Oct 13th, 2009 @ 11:38am

      Re:

      "I don't think only rich people like Lisa should have large ships made out of steel. In a truly competitive market, I would be allowed to take Lisa's ship and melt a piece of it into a chair for myself."

      The comparison isn't valid, the ownership of creative works can only lay in individual copies on and not the idea itself. It would be more correct to say you saw my ship, and bought yourself some steel so you could create your own.

      "Atoms want to be free"

      Unlike ideas, atoms are controllable, so they can be property. I already said that copies resulting from an idea can be owned, so they wouldn't be free in the way you're describing.(for example, if you have the only copies of a work you may completely control what is done with them)



      "Lisa. I am entitled to take any collection of atoms (such as a large steel ship)"

      Again, not comparable since atom are both ownable and scarce. Ideas are not controllable in a way suitable for ownership.

       

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


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