Homeland Security Decides If It Just Keeps Interchanging Counterfeiting With Copyright Infringement, Perhaps No One Will Notice

from the keep-it-straight-now dept

We already wrote about the recent Congressional committee hearings on intellectual property enforcement, where IP Czar Victoria Espinel blamed China. However, there were other speakers there as well, and perhaps the most interesting was from John Morton, the assistant secretary of Homeland Security's Immigration & Customs Enforcement (ICE) division -- the group that recently started working for Disney and seized a bunch of domains using questionable legal theories. We're still trying to figure out what the hell immigration and customs enforcement has to do with internet file sharing, and here was a chance to set the record straight.

In his opening remarks to the event, Rep. Howard Berman (who has been called the Representative from Disney, so it fits that he's happy that ICE now works for Disney) highlighted how this operation was "innovative thinking." (pdf):
Most recently, I was interested to read about the initiative undertaken by Immigration and Customs Enforcement, or ICE, to seize the domain names of Web sites that were unlawfully offering first-run movies. That is exactly the kind of innovative thinking the Vice President called for -- and I am curious to hear from Assistant Secretary Morton on how it came about, the obstacles that you faced, and how we can scale Operation "In Our Sites" to enterprises that facilitate the theft of music, books and other products prone to counterfeiting.
Note the sly trick (lie) from Berman here: suggesting that copyright infringement and counterfeiting are the same thing. You'll see this quite frequently these days (hello, ACTA), because it's easier to show actual problems from counterfeiting -- and nearly impossible to show problems from infringement. So by simply pretending they're the same, everyone can pretend that the "harm" from infringement is much worse. Note carefully that whenever anyone talks about the specific "harm," it always relates to counterfeiting. But when they talk about the "problem" they talk about infringement. It's amazing that no one calls them on this stuff.

Morton's talk was basically anchored with this kind of deception. You can read the whole thing here (pdf) or the embedded version below:
Let's dig into some specifics:
Simply put, American business is under assault from those who pirate copyrighted material and produce counterfeit trademarked goods.
And, we're off, with a simple conflation of two totally different things. Counterfeiting and copyright infringement are not the same at all.
Criminals are stealing American ideas and products and selling them over the Internet, in flea markets, in legitimate retail outlets and elsewhere. From counterfeit pharmaceuticals and electronics, to pirated movies, music, and software, these crooks are undermining the U.S. economy and jeopardizing public safety. American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk -- and organized criminal enterprises are profiting from their increasing involvement in IP theft.
Except, of course, you cannot "steal" ideas. And notice how the paragraph moves seamlessly back and forth between counterfeit goods and infringement. If infringement on the internet is the real problem, then why are they talking about "health and safety" which has nothing to do with people watching movies online. Furthermore, the whole "selling them over the Internet" may apply to counterfeit goods, but I thought the whole problem with content online is that people aren't "selling" it but giving it away for free? Why conflate the two unless your sole purpose is to confuse?

Finally, the GAO just dinged the government for buying into bogus industry claims about "lost jobs" and diluted innovation. So why is a government official repeating them?
Intellectual property rights are intended to discourage thieves from selling cheap imitations of products, which are often far less safe or reliable than the original products.
Please, let's be clear: Trademark law is designed to prevent consumer confusion over such imitations. Copyright law is entirely different and is designed to create incentives that "promote the progress of science." But, again, Morton is carefully conflating the two, because it hides the weakness of the idea that Homeland Security has any role in dealing with internet file sharing.
Intellectual property rights also protect the actor, director, writer, musician and artist from having a movie, manuscript, song or design illegally sold by someone who had no part in the artistry of creating it.
While true to some extent, again, "sold" over the internet? Wasn't the whole problem that all this stuff is available for free?
This increase in access to the Internet, while of great benefit for global communication and commerce, represents a very real threat to America's film and music industries. Their products are extremely susceptible to Internet piracy, especially as bandwidth increases. As a result of this growing concern, ICE counterfeiting and piracy investigations are increasingly directed to web-based criminals.
You know, cars represented a very real threat to America's horse and buggy industries. Would customs officials have blocked automobile manufacturing as well? The job of Homeland Security is not to pick which technology wins or to protect the business models of some legacy companies within an industry. And it's not actually a "threat." It's an opportunity for those who know how to embrace it. Remember, the movie industry continues to do quite well -- and it was the one who claimed that the DVD business would kill it. If this were a few decades back, would ICE be blocking all DVD imports because it represented a "a very real threat to America's film industry"? After all, that's exactly what the industry claimed, just as they are doing now. Why does Morton and ICE simply believe it this time when the industry has been wrong every single time about technology threats?
ICE has a legacy of engagement in IP theft enforcement -- stretching from our past years as U.S. Customs Service investigators to our present role as Homeland Security investigators. ICE is a leading agency in the investigation of criminal intellectual property violations involving the illegal production, smuggling, and distribution of counterfeit and pirated products, as well as money laundering violations.
Sure, the role is supposed to be about blocking counterfeit goods at the border. That's got nothing to do with file sharing online, so why dump it in there?
Representatives from the Motion Picture Association of America (MPAA) and RIAA assisted participating customs authorities with focused training, targeting and analysis...
Once again, we see biased industry players "training" government officials. Given the "training" we've seen both the MPAA and RIAA create for schools, why does it seem likely that they leave out certain important things (fair use, anyone?)?
ICE is an active member of the U.S. delegation negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The goal of ACTA is to work with other countries interested in promoting strong enforcement of IPR. ACTA aims to strengthen legal frameworks to bridge existing gaps between laws and dedicated enforcement....
Someone's off message. Remember, ACTA isn't supposed to be about changing legal frameworks or laws.
Last month, the IPR Center launched Operation In Our Sites, a new initiative aimed at Internet counterfeiting and piracy.
Please. Be honest: it was aimed at piracy. It had nothing whatsoever to do with counterfeiting.
On June 30, more than 75 ICE agents participated in this enforcement action, which resulted in the seizure of assets from 15 bank, PayPal, investment, and advertising accounts.
And, um, also raising all sorts of legal questions about Homeland Security's right to just seize domains. On top of that, as many are starting to point out, just because you seize the domain name, it doesn't mean you take down the actual site. And, all this will really do is drive file sharers further underground.
Interestingly, as the new owners of the domain name, ICE has been able to determine the number of visitors these sites have received since seizures. Within two days of ICE's enforcement action against these pirating web sites, over 1.7 million visitors saw the banner. This number is more than the daily total of "hits" the sites were receiving when they offered pirated movies and music. In other words, the government's warning banners have "gone viral," and Internet users are actually seeking the web site out to view the banners themselves. The resulting public education about pirating is a significant result of this enforcement operation.
You might want to ask those visitors what they learned. Because many learned that Homeland Security is focused on stopping file sharing, rather than important things like stopping terrorism. People who are visiting those sites aren't suddenly saying "hey, wow, now I know it's illegal and I'll stop."
The IPR Center recognizes that law enforcement cannot fight IP theft alone and we look to partner with private industry in our efforts. In a market economy, no one has a greater incentive for protecting intellectual property rights than private industry. Companies want to protect their investments in research, development, manufacturing, sales, marketing and product distribution.
No. They want to protect their profits. They want to protect the monopoly rents guaranteed by the government. It's really quite scary how Homeland Security admits that it's protecting the business models of certain industries over those of other industries. This is not the role Homeland Security is supposed to be playing.

I have no problem with Homeland Security stopping legitimately harmful or faked products at the border. That makes perfect sense. But no one has explained what any of that has to do with seizing domains from file sharing sites. Conflating trademark infringement and copyright infringement, and acting as if they're the same thing, while highlighting the harm of fake drugs and then lumping in downloaded music and movies is extremely disingenuous. It's too bad our tax dollars are being used to prop up companies who refuse to adapt, and the lengths to which government employees will go to, in an effort to rationalize such blatant extension of their mandate in order to help out key companies.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    out_of_the_blue, Jul 22nd, 2010 @ 2:53pm

    "using questionable legal theories"...

    Actually, they're just pointing guns and not taking any questions.

    "Homeland Security" is a blatantly Orwellian term. Who ever heard the US called "homeland" prior to 2001?

    Its purpose, merging corporations with police state, is entirely clear.

     

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  2.  
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    Nastybutler77 (profile), Jul 22nd, 2010 @ 2:59pm

    Re: "using questionable legal theories"...

    "Homeland Security" is a blatantly Orwellian term. Who ever heard the US called "homeland" prior to 2001?

    Wow. I actually agree with you for a change.

     

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  3.  
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    :Lobo Santo (profile), Jul 22nd, 2010 @ 3:00pm

    Re: "using questionable legal theories"...

    "Its purpose, merging corporations with police state, is entirely clear."
    Sshhh!! People aren't supposed to know that!

    **NOTHING TO SEE HERE FOLKS, MOVE ALONG**
    Scurry about in busy little circles like you're supposed to be doing, kindly pay no attention to the men behind the curtain. Thank you, have a nice day.

     

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  4.  
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    Anonymous Coward, Jul 22nd, 2010 @ 3:36pm

    very long post, but you seem to have talked around a lot of things, rather than taking about things, such as

    Note the sly trick (lie) from Berman here: suggesting that copyright infringement and counterfeiting are the same thing I don't read that as suggesting anything, they seem to be talking about both things in one paragraph, not trying to say they are synonymous

    Simply put, American business is under assault from those who pirate copyrighted material and produce counterfeit trademarked goods. And, we're off, with a simple conflation of two totally different things. Counterfeiting and copyright infringement are not the same at all. I added the bold, maybe then you will see the word, and understand it means additional in some way, not equal the use of "steal ideas", if you take the extreme, narrow minded definition/usage of the word, maybe, but in most use of the word we accuse them of stealing our ideas, when we create X product and release it, and a knock off china company reproduces it and sell it at 75% less "health and safety", is a correct statement, did you read it? or just gloss over it and pick out a word or phrase to get upset about, companies sell knockoffs, imitation drugs online, so yes, Americans "health and safety" are at risk from buying these drugs, do you really think that random email or slick looking web site in Manila really has real viagra for less then 1$ a pill????? Do you think that crib that's 300$ at wal-mart, kid-r-us whatever, is really 75$ on this new website, you found while googling????. Whether the pirated material is free or some guy is selling hacked copies, isn't the issue, the point that its available for download, from someone they didn't authorize and hence get no money from, is the issue Trademark law is designed to prevent consumer confusion over such imitations. With todays litigation about usage of of trademarked words, its being pushed to ridiculous levels ( monster cable, monster energy drink, beer in vermont called monster, Olympic vacuum being sued by the olympics because of Olympic in its name etc... )the waters are getting murky and clouded very quickly the bias training, I am on both sides, don't like who is doing the training, but do you think counterfeiters and pirates are going to teach ICE what to look for? how to spot illegal shipments, counterfeit cd/dvd/software etc...??? people have been seizing domain names for awhile now for a myriad of reasons, why does it matter if its ICE doing it?? The whole of homeland security isn't involved in this, a small group, several agents, you know there are groups in the police dept, that investigate cold case's, 10, 20, 30 years or better, wouldn't it be better if those guys investigated current crime? we might solve more murders faster? so does that mean the police only care about old crime?? What other industries has Homeland security said they will not protect?? I have not seen this list, if an auto dealer started selling cars dirt cheap and they were called "Forb" or "Cheby" and they were exact copies of fords and chevys, you know, knockoffs, I bet homeland security would be involved People know what they are doing is illegal, they simply don't care

    I have no problem with Homeland Security stopping legitimately harmful or faked products at the border. That makes perfect sense. yup, it does But no one has explained what any of that has to do with seizing domains from file sharing sites. if you see illegal drugs from your house, don't we take your home?? or your car, depends where you sold from?? Bill Cosby created Fat Albert, a guy made the website PhatAlbert and sold cloths and items etc... Bill sued and won his domain, not just an injunction to make him stop selling, his domain was taken and given to bill Conflating trademark infringement and copyright infringement, and acting as if they're the same thing, while highlighting the harm of fake drugs and then lumping in downloaded music and movies is extremely disingenuous. No, it isn't, your creating the combination of them, no where did they say those two are the same, they talking about them both in the same paragraph It's too bad our tax dollars are being used to prop up companies who refuse to adapt, and the lengths to which government employees will go to, in an effort to rationalize such blatant extension of their mandate in order to help out key companies. then you must have been an outstanding vocal opponent against any government bail outs of any company who refused to adapt to the new market, technology and economy, so the banks/wall street/auto manufactures/housing, that employ millions, should have been allowed to collapse, right????

     

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

  5.  
    identicon
    Anonymous Coward, Jul 22nd, 2010 @ 3:39pm

    very long post, but you seem to have talked around a lot of things, rather than taking about things, such as

    Note the sly trick (lie) from Berman here: suggesting that copyright infringement and counterfeiting are the same thing

    I don't read that as suggesting anything, they seem to be talking about both things in one paragraph, not trying to say they are synonymous

    Simply put, American business is under assault from those who pirate copyrighted material and produce counterfeit trademarked goods.

    And, we're off, with a simple conflation of two totally different things. Counterfeiting and copyright infringement are not the same at all.

    I added the bold, maybe then you will see the word, and understand it means additional in some way, not equal

    the use of "steal ideas", if you take the extreme, narrow minded definition/usage of the word, maybe, but in most use of the word we accuse them of stealing our ideas, when we create X product and release it, and a knock off china company reproduces it and sell it at 75% less

    "health and safety", is a correct statement, did you read it? or just gloss over it and pick out a word or phrase to get upset about, companies sell knockoffs, imitation drugs online, so yes, Americans "health and safety" are at risk from buying these drugs, do you really think that random email or slick looking web site in Manila really has real viagra for less then 1$ a pill????? Do you think that crib that's 300$ at wal-mart, kid-r-us whatever, is really 75$ on this new website, you found while googling????.

    Whether the pirated material is free or some guy is selling hacked copies, isn't the issue, the point that its available for download, from someone they didn't authorize and hence get no money from, is the issue

    Trademark law is designed to prevent consumer confusion over such imitations.

    With todays litigation about usage of of trademarked words, its being pushed to ridiculous levels ( monster cable, monster energy drink, beer in vermont called monster, Olympic vacuum being sued by the olympics because of Olympic in its name etc... )the waters are getting murky and clouded very quickly

    the bias training, I am on both sides, don't like who is doing the training, but do you think counterfeiters and pirates are going to teach ICE what to look for? how to spot illegal shipments, counterfeit cd/dvd/software etc...???

    people have been seizing domain names for awhile now for a myriad of reasons, why does it matter if its ICE doing it??

    The whole of homeland security isn't involved in this, a small group, several agents, you know there are groups in the police dept, that investigate cold case's, 10, 20, 30 years or better, wouldn't it be better if those guys investigated current crime? we might solve more murders faster? so does that mean the police only care about old crime??

    What other industries has Homeland security said they will not protect?? I have not seen this list, if an auto dealer started selling cars dirt cheap and they were called "Forb" or "Cheby" and they were exact copies of fords and chevys, you know, knockoffs, I bet homeland security would be involved

    People know what they are doing is illegal, they simply don't care

    I have no problem with Homeland Security stopping legitimately harmful or faked products at the border. That makes perfect sense. yup, it does

    But no one has explained what any of that has to do with seizing domains from file sharing sites. if you see illegal drugs from your house, don't we take your home?? or your car, depends where you sold from?? Bill Cosby created Fat Albert, a guy made the website PhatAlbert and sold cloths and items etc... Bill sued and won his domain, not just an injunction to make him stop selling, his domain was taken and given to bill

    Conflating trademark infringement and copyright infringement, and acting as if they're the same thing, while highlighting the harm of fake drugs and then lumping in downloaded music and movies is extremely disingenuous.

    No, it isn't, your creating the combination of them, no where did they say those two are the same, they talking about them both in the same paragraph

    It's too bad our tax dollars are being used to prop up companies who refuse to adapt, and the lengths to which government employees will go to, in an effort to rationalize such blatant extension of their mandate in order to help out key companies.

    then you must have been an outstanding vocal opponent against any government bail outs of any company who refused to adapt to the new market, technology and economy, so the banks/wall street/auto manufactures/housing, that employ millions, should have been allowed to collapse, right????

     

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

  6.  
    icon
    :Lobo Santo (profile), Jul 22nd, 2010 @ 3:39pm

    Re: yeek

    I would read this, but can't stand the whole "wall of text" thing.

    Besides, I doubt anybody who lacks the very basic skill of appealing to one's audience has any reasoned arguments worth reading.

     

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

  7.  
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    MrWilson, Jul 22nd, 2010 @ 3:42pm

    Beware of Counterfeit Binaural Tones!

    Soon terrorists are going to counterfeit our binaural tones and the kids will listen to the music they listen to these days and they'll all overdose on mp3s and get brainwashed and then the communist will have won! Dollhouse wasn't science fiction. Won't someone think of the children?

    I can't wait for a press photo of a swat team wearing Mickey Mouse ears kicking down the door of some 13 year old girl illegally downloading Ke$ha songs.

     

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

  8.  
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    Crosbie Fitch (profile), Jul 22nd, 2010 @ 3:50pm

    Category errors

    Mike, it's good that you're pointing out the categorical difference between passing off/counterfeiting/plagiarism/fraud and infringing a reproduction monopoly.

    However, perhaps you could also pay just as much attention to supporting your continued recitation of the myth that copyright was designed to promote progress.

    Copyright law is entirely different and is designed to create incentives that "promote the progress of science."


    That's certainly a very popular notion, but why don't you double-check that Queen Anne's statute of 1709 really was designed to promote progress? That this is its stated purpose (encouragement of learning) doesn't actually constitute evidence that this is what it was designed to do, and why it was enacted.

    Pretext is not purpose.

     

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

  9.  
    identicon
    Anonymous Coward, Jul 22nd, 2010 @ 3:56pm

    For those who cant be bothered to read, but yet feel able to dismiss the post out of hand, doing so means you have no argument, other than to insult the person

    Note the sly trick (lie) from Berman here: suggesting that copyright infringement and counterfeiting are the same thing

    I don't read that as suggesting anything, they seem to be talking about both things in one paragraph, not trying to say they are synonymous

    Simply put, American business is under assault from those who pirate copyrighted material AND produce counterfeit trademarked goods.

    And, we're off, with a simple conflation of two totally different things. Counterfeiting and copyright infringement are not the same at all.

    I added the bold, maybe then you will see the word, and understand it means additional in some way, not equal

    the use of "steal ideas", if you take the extreme, narrow minded definition/usage of the word, maybe, but in most use of the word we accuse them of stealing our ideas, when we create X product and release it, and a knock off china company reproduces it and sell it at 75% less

    "health and safety", is a correct statement, did you read it? or just gloss over it and pick out a word or phrase to get upset about, companies sell knockoffs, imitation drugs online, so yes, Americans "health and safety" are at risk from buying these drugs

    Do you really think that random email or slick looking web site in Manila really has real viagra for less then 1$ a pill????? Do you think that crib that's 300$ at wal-mart, kid-r-us whatever, is really 75$ on this new website, you found while googling????.

    Whether the pirated material is free or some guy is selling hacked copies, isn't the issue, the point that its available for download, from someone they didn't authorize and hence get no money from, is the issue

    Trademark law is designed to prevent consumer confusion over such imitations.

    With todays litigation about usage of of trademarked words, its being pushed to ridiculous levels ( monster cable, monster energy drink, beer in vermont called monster, Olympic vacuum being sued by the olympics because of Olympic in its name etc... )the waters are getting murky and clouded very quickly

    the bias training, I am on both sides, don't like who is doing the training, but do you think counterfeiters and pirates are going to teach ICE what to look for? how to spot illegal shipments, counterfeit cd/dvd/software etc...???

    people have been seizing domain names for awhile now for a myriad of reasons, why does it matter if its ICE doing it??

    The whole of homeland security isn't involved in this, a small group, several agents, you know there are groups in the police dept, that investigate cold case's, 10, 20, 30 years or better, wouldn't it be better if those guys investigated current crime? we might solve more murders faster? so does that mean the police only care about old crime??

    What other industries has Homeland security said they will not protect?? I have not seen this list, if an auto dealer started selling cars dirt cheap and they were called "Forb" or "Cheby" and they were exact copies of fords and chevys, you know, knockoffs, I bet homeland security would be involved

    People know what they are doing is illegal, they simply don't care

    I have no problem with Homeland Security stopping legitimately harmful or faked products at the border. That makes perfect sense.
    yup, it does

    But no one has explained what any of that has to do with seizing domains from file sharing sites.

    if you sell illegal drugs from your house, don't we take your home?? or your car, depends where you sold from?? Bill Cosby created Fat Albert, a guy made the website PhatAlbert and sold cloths and items etc... Bill sued and won his domain, not just an injunction to make him stop selling, his domain was taken and given to bill

    Conflating trademark infringement and copyright infringement, and acting as if they're the same thing, while highlighting the harm of fake drugs and then lumping in downloaded music and movies is extremely disingenuous.
    No, it isn't, your creating the combination of them, no where did they say those two are the same, they talking about them both in the same paragraph

    It's too bad our tax dollars are being used to prop up companies who refuse to adapt, and the lengths to which government employees will go to, in an effort to rationalize such blatant extension of their mandate in order to help out key companies.
    then you must have been an outstanding vocal opponent against any government bail outs of any company who refused to adapt to the new market, technology and economy, so the banks/wall street/auto manufactures/housing, that employ millions, should have been allowed to collapse, right????

     

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

  10.  
    identicon
    MrWilson, Jul 22nd, 2010 @ 4:10pm

    Re:

    Ironically of course, you are conflating copyright violation and counterfeiting as much as the speech did. You're saying that the speech doesn't outright say that they are the same thing, but the speech treats them like the same thing and pretends that they should be dealt with in the same manner as if they were.

    They are not the same thing and they don't have the same consequences for businesses or consumers and they should not be dealt with in the same manner by the same agency (outside of its actual purview).

    Counterfeit medication can kill the person taking it.

    Watching "pirated" movies will not kill you.

    If you were a judge, would you give the same punishment to a convicted drug dealer who knowingly sold fake medication that was laced with a lethal substance and ended up killing users that you gave to a guy uploading movies to the Piratey Bay?

    One scenario results in people dying and the other results in people getting stuff for free. Are those comparable scenarios in your opinion? If no, then the two issues are significantly different and should not be dealt with the same way.

    Just because "people" have been seizing domain names for a while means that it's okay for a government agency to do so without needing a clear legal justification for doing so?

    What if a government agency decided you were a terrorist and sent you to another country to be tortured without having a clear legal justification for doing so? Would you change your mind about agencies needing to follow due process?

     

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  11.  
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    Modplan (profile), Jul 22nd, 2010 @ 4:13pm

    The forums for one the site that was taken down are up (not at the same domain as before), but note they were the site that also had been raided (at home and the servers abroad). Apparently they're part of a separate investigation, and you can read their side of the story here:

    http://www.ninjavideoforum.net/viewtopic.php?id=35777

    We always were, every step of the way. No one did this to get rich. We supported independent artists, released podcasts, fostered growth and debate. We were on our way to opening the Ninja Design Firm, wanted to set up an Independent Film Festival, a Spotlight Artist Music Concert... We had and still have so many wonderful plans. So many ideas to change this world. At least part of it. Ninja was the beginning of something that meant more than money. It was a small corner in a much larger debate. Now Ninja is the debate. And we are Ninja personified. We’re not bankrolled by a major corporation. We’re not funded by taxpayers. We’re individuals who banded together through the internet, just like you did. We played in the grey space of the internet, and they’re going to try to use our case to shade that area black.

     

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

  12.  
    identicon
    MrWilson, Jul 22nd, 2010 @ 4:21pm

    Re: Category errors

    You say that the stated purpose of the Statute of Anne was just pretext, but you don't actually provide any evidence as to why it should be considered pretext. I can say the actual purpose of the DMCA was to force people to buy car insurance, but without evidence, my claim is meaningless.

    But that's irrelevant anyway since the Statute of Anne is not US copyright law. Though it did influence Article I, Section 8, Clause 8 of the Constitution, i.e. the Copyright Clause:

    "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."

    Would like you to provide evidence that the stated purpose of the Copyright Clause was also pretext?

     

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

  13.  
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    Mike Masnick (profile), Jul 22nd, 2010 @ 4:31pm

    Re: Category errors

    That's certainly a very popular notion, but why don't you double-check that Queen Anne's statute of 1709 really was designed to promote progress?

    We're talking about US copyright law here. And yes, despite your repeated claims, it was created to promote the progress. Your interpretation is one that I still don't understand and have never seen substantiated anywhere.

     

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  14.  
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    Mike Masnick (profile), Jul 22nd, 2010 @ 4:38pm

    Re:

    I don't read that as suggesting anything, they seem to be talking about both things in one paragraph, not trying to say they are synonymous

    I disagree. At no point do they *ever* carefully separate out the type of harm caused by one or the other. They treat them as one and the same.

    "health and safety", is a correct statement, did you read it? or just gloss over it and pick out a word or phrase to get upset about, companies sell knockoffs, imitation drugs online, so yes, Americans "health and safety" are at risk from buying these drugs

    I agreed that health and safety was accurate for drugs. My point is that it is not even close to accurate for file sharing movies. You're making the same mistake. You're focusing on the fake drugs. I'm *all for* them stopping the import of fake drugs. No problem. I just don't think they should lump file sharing in with fake drugs and imply that they're all equal threats to health and safety.

    the bias training, I am on both sides, don't like who is doing the training, but do you think counterfeiters and pirates are going to teach ICE what to look for? how to spot illegal shipments, counterfeit cd/dvd/software etc...???

    My problem is that these companies are training them to stop anything they don't like -- even if there are questions as to whether or not they're illegal.

    people have been seizing domain names for awhile now for a myriad of reasons, why does it matter if its ICE doing it??

    Care to cite some evidence?

    The whole of homeland security isn't involved in this, a small group, several agents, you know there are groups in the police dept, that investigate cold case's, 10, 20, 30 years or better, wouldn't it be better if those guys investigated current crime? we might solve more murders faster? so does that mean the police only care about old crime??

    No, but it does take resources away from more important things. Movie piracy is way outside the purview of border control.

    if you sell illegal drugs from your house, don't we take your home?? or your car, depends where you sold from?? Bill Cosby created Fat Albert, a guy made the website PhatAlbert and sold cloths and items etc... Bill sued and won his domain, not just an injunction to make him stop selling, his domain was taken and given to bill

    Yes, after a trial. Where was this trial?

    You know that whole innocent until proven guilty thing? Doesn't that matter?

    No, it isn't, your creating the combination of them, no where did they say those two are the same, they talking about them both in the same paragraph

    But not separating out the two at all when talking about the "harm". That's the point.

    then you must have been an outstanding vocal opponent against any government bail outs of any company who refused to adapt to the new market, technology and economy, so the banks/wall street/auto manufactures/housing, that employ millions, should have been allowed to collapse, right????

    Um. Yeah, for the most part.

     

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  15.  
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    Crosbie Fitch (profile), Jul 22nd, 2010 @ 4:47pm

    Re: Re: Category errors

    Are you suggesting that anyone who makes a claim need not provide any support for it, whereas those who question its lack of support must find evidence to disprove the claim?

    I'm just suggesting that it might be worth Mike's while to double-check the basis for an unsupported claim he regularly repeats. I'd be interested to read his article in support.

    For more background see:
    http://www.digitalproductions.co.uk/index.php?id=145

     

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  16.  
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    Eugene (profile), Jul 22nd, 2010 @ 5:10pm

    Re:

    I refuse to believe that single huge paragraph has only one main idea.

     

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  17.  
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    Crosbie Fitch (profile), Jul 22nd, 2010 @ 5:16pm

    Re: Re: Category errors

    I am talking about US copyright too.

    Do you think the US copyright of 1790 was designed from scratch? It was simply an import of copyright from England, a descendant of the 1710 Statute of Anne. There is nothing significant that could lead one to conclude a difference in design.

    Where people get this idea of 'progress' from is the 1787 US Constitution which is about securing authors' exclusive right to their writings and nothing to do with granting a monopoly in literary works (copyright).

    Of course, those who passed copyright in 1790 have to pretend that it's constitutional, but even if you kid yourself it is, that still doesn't make copyright designed by the Constitution if it's simply imported legislation. On that matter, you should at least wonder why, if the design of copyright and patent was instructed by the Constitution, they both ended up so very different from each other (and surprisingly indistinguishable from the legislation of the respective privileges in the old world). Indeed, why have patent, if copyright could just as easily 'protect' against copying designs as well as literary works?

    So in answering the question of what copyright and patent were designed to do, you have to refer to England because that's where they were designed. And I put it to you that if you look into their origins in a little more detail, you should realise they weren't designed to promote the progress.

     

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  18.  
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    Anonymous Coward, Jul 22nd, 2010 @ 5:36pm

    i hope ice keeps cracking down. good job boys. take these idiots to jail.

     

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  19.  
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    Crosbie Fitch (profile), Jul 22nd, 2010 @ 5:39pm

    Re: Re: Category errors

     

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  20.  
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    BearGriz72 (profile), Jul 22nd, 2010 @ 5:49pm

    Re:

    ***SPLAT*** ... Ouch

    Crap, I just ran into a wall of text.
    Who put that there?

     

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  21.  
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    BearGriz72 (profile), Jul 22nd, 2010 @ 6:02pm

    Re: Re: Re: Category errors

    "Where people get this idea of 'progress' from is the 1787 US Constitution which is about securing authors' exclusive right to their writings and nothing to do with granting a monopoly in literary works (copyright)."

    WTF is the Difference???

    "Authors' exclusive right to their writings" IS... Copyright
    "a monopoly in literary works" IS... Copyright

    As far as Patents ...
    ... Oh hell I don't feel like rehashing the whole disclosure vs. secrecy argument again

     

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  22.  
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    MrWilson, Jul 22nd, 2010 @ 6:41pm

    Re: Re: Re: Category errors

    So if the Copyright Act of 1790 didn't have a constitutional basis, why wasn't it thrown out? Why hasn't every Supreme Court since not declared it unconstitutional?

    The Constitution afforded Congress the right to secure the (legal) rights of authors and inventors in the Copyright Clause, which stated that it was intended to promote progress. In turn, Congress made the Copyright Act of 1790 with the powers given to it by the Constitution, which stated the "To promote the Progress of Science and useful Arts" concept in different words, borrowed from the Statute of Anne - "An Act for the encouragement of learning". The text of the Copyright Act of 1790 even uses the term "exclusive right" that you try to purport is different than copyright. It also uses the synonymous term "sole right."

    Where are the letters from the founding fathers stating that the Copyright Act of 1790 went against their original intentions for the Copyright Clause? Where are the newspaper articles and historical documents from the era that state the same? Where is actual evidence of your claims that the two are not the same other than your own blog articles? In those articles you insinuate that copyright was invented only for the state to have leverage over the press, but you fail to cite any source for this speculation.

    Mike can cite the language of the Copyright Clause and the Copyright Act of 1790 as his evidence. What can you cite? And dodging the question by saying that he needs to prove his point is not the same as proving your point. You may be entirely right, and you maybe entirely wrong, but unless you have evidence more than mere speculation, your claims can be entirely dismissed.

     

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  23.  
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    Anonymous Coward, Jul 22nd, 2010 @ 6:59pm

    Re: Re: Re: Category errors

    If I as an author have a "natural right" to my work product while it remains in my sole possession as an unpublished work, then by what theory is my "natural right" extinguished once my work is shared with others?

     

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  24.  
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    btrussell (profile), Jul 22nd, 2010 @ 7:18pm

    Re:

    "...so the banks/wall street/auto manufactures/housing, that employ millions, should have been allowed to collapse, right????"

    Yes.

    If there is a demand for something, some one will produce it to supply the demand.

     

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  25.  
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    Karl (profile), Jul 22nd, 2010 @ 7:20pm

    Nitpicks

    Some nitpicks that you didn't bring up:

    Intellectual property rights also protect the actor, director, writer, musician and artist

    If you're talking about movies, then actors, directors, writers, musicians and artists aren't protected at all by "intellectual property" rights.

    All of these people are "work for hire," which means the studio owns all the rights to their works. None of them hold any stake in the copyright whatsoever. They get paid the same no matter how many tickets or DVD's are sold, so combatting infringement (either piracy or counterfeiting) would not benefit them in any way.

    all this will really do is drive file sharers further underground.

    Not "underground," just to methods that are harder to monitor and control. For instance, "file lockers" like Rapidshare, which predate torrents by many years. (Seriously, how is that the new face of file sharing? It's been around for a decade.)

    I have no problem with Homeland Security stopping legitimately harmful or faked products at the border.

    I do. Homeland Security was supposed to be about stopping terrorist threats to our country. Now Homeland Security is taking on a mission that has nothing to do with keeping us safe.

    I have no problem with Customs impounding counterfeit goods, however. That's part of their job (along with not allowing musicians into Canada without a $300 performance license, or stopping people from buying generic drugs, or detaining people for a couple of hours if they have the wrong kind of porn).

     

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  26.  
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    Anonymous Coward, Jul 22nd, 2010 @ 7:24pm

    Re:

    Line breaks. If you want to be understood, use them!

     

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  27.  
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    Karl (profile), Jul 22nd, 2010 @ 7:27pm

    Re: Re:

    Counterfeit medication can kill the person taking it.

    Consider that "counterfeit" in this context just means "generic," and you'll see why this whole issue is a bunch of bull crap. It's all about pharmaceutical companies trying to keep a hold on their outrageous profits, at the expense of poor nations worldwide.

    Why do you think India is against ACTA?

     

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  28.  
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    Anonymous Coward, Jul 22nd, 2010 @ 7:31pm

    Re: Re:

    I would've loved to see someone ask the Homeland Security gent if his training included how to spot freely shared copyrighted materials or anything constituting fair use.

     

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  29.  
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    Karl (profile), Jul 22nd, 2010 @ 7:40pm

    Re: Re: Re: Re: Category errors

    by what theory is my "natural right" extinguished once my work is shared with others?

    Because once you share it, the work belongs to everyone with whom it's shared, and they have as much of a "natural right" to it as you do.

    "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."
    - Thomas Jefferson to Isaac McPherson

     

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  30.  
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    Matthew Stinar (profile), Jul 22nd, 2010 @ 7:47pm

    Re: Category errors

    Okay, but double check your US Constitution as well. Congress only has the right to implement limited monopolies that promote "the useful arts and sciences." Any other monopoly is unconstitutional. Maybe he's giving our current copyrights too much credit. Those who side with your view that copyright is unconstitutional may appreciate http://questioncopyright.org/ .

     

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    Anonymous Coward, Jul 22nd, 2010 @ 8:20pm

    Re: Re: Re: Re: Category errors

    I can cite the "royal patronage" that regulated those affairs before 1710 and the monopoly of the church on religion which lead to the revolt of the commons.

     

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    Jay (profile), Jul 22nd, 2010 @ 8:50pm

    Re: Re: Re:

    Canada should be. The ACTA makes it so that the cheaper medicine of Canada can't really be shipped down into the US.

    But then again, there's always James Moore.

    That's a double facepalm in itself.

     

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  33.  
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    JEDIDIAH, Jul 22nd, 2010 @ 9:56pm

    Re: Re: Re: Re: Category errors

    > Where are the letters from the founding fathers stating
    > that the Copyright Act of 1790 went against their
    > original intentions for the Copyright Clause?

    Too bad we don't have that version of the law now. Although I am sure that someone can call you out on your intentional muddling and point out where the writers of the founders are clearly at odds with modern copyright.

    Even the original constitutional language is at odds with the current law.

     

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    MrWilson, Jul 22nd, 2010 @ 10:18pm

    Re: Re: Re: Re: Re: Category errors

    I agree that the original constitutional language and even the Copyright Act of 1790 are at odds with modern copyright.

    Clearly the Supreme Court is misinterpreting the concept of "for limited times" if they think that Congress has the right to extend copyright ad infinitum. A copyright on a work created today doesn't expire until anyone currently alive is either dead or too old to enjoy the work in the public domain. That's absurd and provides no incentive to respect copyrights.

    But the issue wasn't about modern copyright, so I'm not muddling the issue by bringing up the original intent of the founding fathers. Crosbie was arguing that the copyright created in the Copyright Act of 1790 is not the same as the "exclusive rights" mentioned in the so-called Copyright Clause of the Constitution and by this argued difference, he is saying that copyright was not intended to promote progress.

     

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    Mike Masnick (profile), Jul 22nd, 2010 @ 11:54pm

    Re: Re: Re:

    http://techcrunch.com/2010/01/07/apple-domain-names/

    Not the gov't seizing w/o due process. That was a UDRP procedure.

    http://en.wikipedia.org/wiki/People_for_the_ Ethical_Treatment_of_Animals_v._Doughney

    Again, not the gov't seizing w/o due process. That was a trial.

    I'm asking why the gov't gets to seize domains without a trail and without due process.

     

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  36.  
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    Mike Masnick (profile), Jul 22nd, 2010 @ 11:56pm

    Re: Re: Re: Category errors

    Where people get this idea of 'progress' from is the 1787 US Constitution which is about securing authors' exclusive right to their writings and nothing to do with granting a monopoly in literary works (copyright).

    Sorry Crosbie. If you look at the discussions by the founding fathers about that clause in the Constitution, it was very much about monopoly rights.

    I'm not sure where you get this argument that it's not. This has been pointed out to you in the past, and you still have shown no evidence to the contrary.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 1:33am

    Re: Re: Re: Re: Category errors

    You certainly are making plenty of references to the "Copyright Clause".

    That clause is only termed as such by those would would insinuate it provides constitutional sanction for copyright. 'Copyright' is not mentioned in the US Constitution at all.

    You also need to be clear in your allegations as to where you say the Founders were discussing the Constitution and where you say they were discussing the justification for legislating the monopolies of copyright and/or patent. These are quite distinct matters.

    That copyright provides some succour for an author's exclusive right does not mean that 'copyright=exclusive right'. Copyright is certainly called an 'exclusive right' today, but then that's because 'right' has been corrupted/contracted from 'legally granted right' as opposed to the natural right the Constitution could only refer to.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 1:38am

    Re: Re: Re: Re: Category errors

    Natural rights are not extinguished.

    It is simply self-evident that when you voluntarily part with something in order to give it to another you don't consequently obtain power over the recipient in terms of controlling whether or not they may further communicate it or manufacture copies thereof.

    You have a natural right to exclude others from your writings whilst they are in your private possession. You cannot exclude others from the writings you give to others (it is a contradiction).

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 1:57am

    Re: Re: Re: Re: Category errors

    I have looked at the discussions.

    Because history appears to collapse from our perspective two or three centuries later it is very easy to submit to the extreme pressure to perceive and conflate discussion concerning the monopolies (of copyright and patent) with discussion of the progress clause.

    I'm really just wondering why YOU don't take an interest in supporting the 'copyright was designed to promote the progress' canard. Of course, that is the popularly indoctrinated understanding, and why you don't get challenged on it, but that doesn't actually make it true. If you're so keen to challenge copyright's effects and utility, I'm just curious why you aren't also keen to challenge the myth that it was designed to promote the progress.

    I've already demonstrated that it can't have been designed to 'promote the progress' since copyright's design preceded the Constitution by 77 years. And even if you believe it was designed by the Constitution you have to wonder why there were two distinct privileges subsequently granted instead of just one that would seem to be sufficient. Why is one based on provenance, and the other based on similarity? A bit strange that one clause (allegedly a design spec) can design distinctly different privileges.

     

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  40.  
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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 2:03am

    Re: Re: Category errors

    The Constitution empowered Congress - and that power comes from the people to protect their rights - not to grant privileges that derogate from them.

    Moreover, the Constitution only empowered congress to secure the individual's exclusive right. It said nothing about granting monopolies. The Framers weren't exactly unfamiliar with the term, so one can only marvel at people's willingness to believe that securing a natural right means having the power to grant monopolies. That is the predictable insinuation of those who covet monopolies - and far too many are happy to believe it as gospel.

     

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  41.  
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    Mike Masnick (profile), Jul 23rd, 2010 @ 2:27am

    Re: Re: Re: Re: Re: Category errors

    Because history appears to collapse from our perspective two or three centuries later it is very easy to submit to the extreme pressure to perceive and conflate discussion concerning the monopolies (of copyright and patent) with discussion of the progress clause.

    Do you have *any* evidence that they were not one and the same? I mean *any* evidence at all? Because the conversations between Madison and Jefferson were clearly about the progress clause.

    I'm really just wondering why YOU don't take an interest in supporting the 'copyright was designed to promote the progress' canard.

    Because you're wrong. I've seen NO evidence to support what you claim.

    Of course, that is the popularly indoctrinated understanding, and why you don't get challenged on it, but that doesn't actually make it true. If you're so keen to challenge copyright's effects and utility, I'm just curious why you aren't also keen to challenge the myth that it was designed to promote the progress.

    Because it's not a myth.

    I've already demonstrated that it can't have been designed to 'promote the progress' since copyright's design preceded the Constitution by 77 years.

    No. You have no demonstrated that at all, frankly. You made a bunch of claims which make no sense. I've had this discussion with you in the past, but I have to admit that I cannot understand what you are saying. I've yet to find anyone on any side of this issue he can even figure out what it is you're saying. So it's difficult to take you seriously on this.

    The Statute of Anne predated the Constitution, sure, but that does not change the purpose of US copyright law. That they used the Statute of Anne as a model is meaningless. The US founders decided to offer up monopolies for the purpose of promoting the progress -- and then used the Statute of Anne as a model. Whether or not the Statute of Anne was to promote progress is meaningless to the US context.

    And even if you believe it was designed by the Constitution you have to wonder why there were two distinct privileges subsequently granted instead of just one that would seem to be sufficient.

    Not at all. The Constitution lays out two separate areas: science and useful arts. Science meant learning -- which is where copyright came in, and useful arts meant inventions, which is where patents came in. It was well recognized at the time that it made sense to treat each differently as they had different characteristics.

    Why is one based on provenance, and the other based on similarity?

    For a variety of reasons, actually.

    A bit strange that one clause (allegedly a design spec) can design distinctly different privileges.

    Not at all since it specifically designates two separate functions.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 2:34am

    Re: Re: Re: Re: Category errors

    An author's exclusive right to their writings is their natural right to exclude others from them. This is a right imbued in the author by nature (not granted by statute), and is self-evident in that any author has the mortal power in their body to physically exclude others from those writings in their physical possession or in their physically secured property. It is this natural right that Congress is empowered to secure.

    Copyright is a reproduction monopoly granted by statute. People are not naturally able to prevent pirates making illicit copies of published works. Congress is not empowered by the Constitution to grant such monopolies. But it did anyway. And given only a tiny few had printers in their garages, who cared?

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 3:32am

    Re: Re: Re: Re: Re: Re: Category errors

    Mike, you're evidently still a passionate believer in the notion that the 'progress clause' gave rise to copyright, rather than that the later import of copyright (no doubt strenuously lobbied for) simply insinuated its sanction to that clause.

    "By a declaration of rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the habeas corpus, no standing armies. These are fetters against doing evil which no honest government should decline." --Thomas Jefferson to Alexander Donald, 1788. ME 6:425


    So, a year after the Constitution when drafting the Bill of Rights, why would Jefferson be against monopolies if Congress had only just be empowered to grant them?

    Congress had NOT been empowered to grant monopolies.

    ONE YEAR LATER (when who knows what Machiavellian machinations were afoot), Jefferson feels inspired to propose some further amendments, including rather perversely:

    "Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding -- years, but for no longer term, and no other purpose." -- Thomas Jefferson to James Madison, 1789. ME 7:450, Papers 15:367


    Rather strange don't you think, for Jefferson to propose monopolies? Anyway, the reason this article never made it into the Bill of Rights was because it would have undermined Madison's intention to enact England's copyright and patent by revealing that such monopolies weren't previously sanctioned by the Constitution (indeed would have raised the question as to whether they could even be granted in the Bill of Rights).

    Instead of explicitly granting monopolies via the Bill of Rights, Madison knew that it would be far better if they were simply legislated as a fait accompli, and Constitutional sanction left as implicit (insinuated by the progress clause).

    And another year later, the rest, as they say, is history.

    On reflection 25 years later Jefferson concludes:

    "Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices." -- Thomas Jefferson, Letter to Isaac McPherson, Monticello, August 13, 1813


    That emboldened bit explains that patent was a legal right given or granted by statute (and imported from England - not designed to fulfil the 'progress clause'). It was NOT the inventor's natural exclusive right that the Constitution empowered Congress to secure.

    The Constitution cannot empower Congress to secure a right that hasn't even been granted yet. That's why Jefferson proposed the amendment that granted them in the Bill of Rights - which couldn't be admitted by Madison because he knew that Congress had no Constitutional power to grant monopolies.

    It was all one big corrupt fudge on Madison's part - to grant England's lucrative monopolies to the US and hope no-one noticed they were unconstitutional.

    Copyright and patent should be abolished, and Congress replace them with legislation that properly secures the individual's natural exclusive right to their intellectual work and property as much as their material work and property. If this is secured then the individual reports a violation to the police. They do not transfer a reproduction monopoly to a publisher for them to sue infringers. The difference between having a right secured and paying lawyers to prosecute a privilege should be another clue as to the fundamental difference between rights and privileges.

    Another Founding Father that people should read is Thomas Paine. See Wikipedia on his "Rights of Man":

    Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

    The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.


    Government's sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate — especially the Monarchy, the Nobility, and the Military

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 3:38am

    Re:

    Might I suggest that you use plain text, or use paragraph tags properly? If it helps, you can use most html tags in plain text too, it just takes care of the paragraph formatting for you.

    "I don't read that as suggesting anything, they seem to be talking about both things in one paragraph, not trying to say they are synonymous"

    Then why do they offer an example of copyright infringement but only mention counterfeiting?

    '"health and safety", is a correct statement, did you read it?'

    Yes, it was central to his point, which was that they implied that piracy was a threat to public safety: "From counterfeit pharmaceuticals and electronics, to pirated movies, music, and software, these crooks are undermining the U.S. economy and jeopardizing public safety."

    As you can see, even when read respectively it implies that piracy threatens public safety. No one is contesting that counterfeiting can be a threat to public safety, though that is not always the case either.

    I would continue, but it is hard to follow your writing as you respond to points in the article without referencing them.

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 3:52am

    Re: Re: Re: Re: Re: Category errors

    "as opposed to the natural right the Constitution could only refer to."

    Not being American, I'm not very familiar with the Constitution. Please could you provide a reference for the Constitution only referring to natural rights?

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 4:26am

    Re: Re: Re: Re: Re: Re: Category errors

    The US Constitution could only refer to (natural) rights because it certainly can't refer to privileges (legally granted rights). A constitution cannot refer to future legislation.

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 4:37am

    Re: Re: Re: Re: Re: Re: Re: Category errors

    "So, a year after the Constitution when drafting the Bill of Rights, why would Jefferson be against monopolies if Congress had only just be empowered to grant them?"

    Because Jefferson was not all that sure about the copyright clause in the first place? Mike even wrote about it here.

    "Copyright and patent should be abolished, and Congress replace them with legislation that properly secures the individual's natural exclusive right to their intellectual work and property as much as their material work and property."

    Nothing you have said, or quoted, suggests that intellectual property is a natural right. How do you reach that conclusion?

     

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  48.  
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    vivaelamor (profile), Jul 23rd, 2010 @ 4:55am

    Re: Re: Re: Re: Re: Re: Re: Category errors

    "The US Constitution could only refer to (natural) rights because it certainly can't refer to privileges (legally granted rights). A constitution cannot refer to future legislation."

    I'm sorry, I cannot find any definition of constitution that supports this statement. Please provide a reference.

    What you seem to be doing is trying to conclude, from its inclusion in the constitution, that something is a natural right. This is clearly fallacious as even if the document states that it only refers to natural rights, it may be wrong. Even so, I have yet to see reference to where in the constitution it states that it shall only refer to natural rights.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 5:04am

    Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    Because Jefferson was not all that sure about the copyright clause in the first place? Mike even wrote about it here.


    Mike should check the timeline of those quotes. Jefferson will seem to vacillate like a yoyo if his views of 1813 are presented as if preceding the drafting of the 'progress clause' in 1787.

    People have a natural right to intellectual property, to exclude others from the intellectual works in their private possession, because this is as self-evident as a natural right to exclude others from the material works in their private possession. To get your hands on my writings or discoveries (fixed in a physical medium), just as on my material possessions, you have to burgle my house or pick my notebook from my pocket. I have a natural right to prevent and exclude you, and that right should be secured.

    What I do not have any natural power or right to is to give you my writing and suspend your liberty to copy or further communicate it. It takes the grant of a privilege to do so, an instrument of injustice. The monopoly of copyright suspends the right to copy from the many to give it to the few (the press).

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 5:06am

    Re: Re: Re: Re: Re: Category errors

    "An author's exclusive right to their writings is their natural right to exclude others from them. This is a right imbued in the author by nature (not granted by statute), and is self-evident in that any author has the mortal power in their body to physically exclude others from those writings in their physical possession or in their physically secured property. It is this natural right that Congress is empowered to secure."

    Such a right is already secured by existing property legislation. Why do we need another law to stop people stealing unpublished works, when it is already illegal?

    "Copyright is a reproduction monopoly granted by statute. People are not naturally able to prevent pirates making illicit copies of published works. Congress is not empowered by the Constitution to grant such monopolies. But it did anyway. And given only a tiny few had printers in their garages, who cared?"

    Your argument is beginning to be clear. Basically, you believe copyright is bunk, but that there should be a law to protect unpublished works?

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 5:26am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    "Mike should check the timeline of those quotes. Jefferson will seem to vacillate like a yoyo if his views of 1813 are presented as if preceding the drafting of the 'progress clause' in 1787."

    Perhaps this quote, from Jefferson to Madison in 1788 (during the drafting of the bill of rights), will help persuade you more: "I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want re-touching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modification of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and monopolies, in all cases, than not to do it in any... The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."

    If that doesn't clear it up then I don't know what will.

    "What I do not have any natural power or right to is to give you my writing and suspend your liberty to copy or further communicate it."

    I agree.

    "It takes the grant of a privilege to do so"

    Again, why can't the constitution give congress the power to grant a privilege? I do not understand this. I believe that it shouldn't have, but why can't it?

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 5:29am

    Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    No, rights do not become natural through being referenced in the Constitution. It is that the Constitution cannot refer to privileges (rights granted by future legislation), and therefore can only refer to (natural) rights it recognises (as imbued in man by nature).

    Bear in mind that we've had over two centuries to get used to the linguistic corruption that copyright is an exclusive right (insinuating itself as the natural exclusive right that the Constitution can only refer to).

    Copyright, as Jefferson might put it, is 'a legal right to the exclusive use of an original work', and 'legal right' is short for 'legally granted right' NOT 'constitutionally recognised'. It's easy to see how this gets contracted over the years into 'exclusive right'. And then it's easy to see how people happily allow themselves to be lulled into the belief that copyright is the natural exclusive right recognised by the Constitution in the 'progress clause'. From our perspective copyright already exists when we read the Constitution, but then that's because we and copyright are in the future from the Constitution's perspective, but do try to remember that whilst the past is known to those in the future, the future is not known to those in the past.

    If you still believe that the Constitution can refer to 'rights' legally granted years later, then you've left the realms of logic.

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 5:35am

    Re:

    "For those who cant be bothered to read, but yet feel able to dismiss the post out of hand, doing so means you have no argument, other than to insult the person"

    Actually, it means that we couldn't be bothered to read, so were unable to argue a point. I would suggest the fault there lies with the person trying to get their point across, but failing due to their poor presentation. I sympathise, as I tend to loathe the input capabilities on such things, but would point out the use of the preview button is an especially good idea on a long post. I cringe every time I post with an errant emphasis tag ruining the formatting. One day I hope to find, or write, a decent and foolproof input addon for such things.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 5:43am

    Re: Re: Re: Re: Re: Re: Category errors

    The natural exclusive right is very poorly protected. It is not enough to prevent someone stealing my manuscript as a material object. My natural right to exclude others from making copies of my manuscript must also be secured, i.e. my exclusive right to exclude others from the intellectual work fixed upon it.

    I am not going to be a happy bunny if the judge says "But, you haven't lost anything. You still have your manuscript. The burglar simply made a copy".

    The point is, I naturally prevent the burglar making a copy by putting locks on my doors and sitting up all night laying in wait to accost any intruders. The problem is, sometimes the burglar defeats my physical abilities. That's why I empower a government to secure my right.

    However, if I give five of my friends a sheet of paper with a poem I've written on it, I have no natural ability or right to continuously monitor each one and arrest them the moment they even think of scribing a copy to share with others. That's why copyright is unnatural (and obviously highly prized by publishing corporations).

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 6:04am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    Note that what you quoted concerns Jefferson's recognition that the issue of monopolies should be included in the discussion of a Bill of Rights (and that without agreement they're probably best dispensed with).

    However, that is a separate matter to the drafting of the progress clause.

    The Constitution cannot recognise a privilege (since if it doesn't yet exist it cannot be recognised), and therefore cannot specify that it be secured.

    The Constitution cannot empower Congress to grant privileges (monopolies) because they must necessarily derogate from rights (see Paine).

    I don't doubt that Madison hoped for some way in which the Constitution could empower Congress to grant the privileges of copyright and patent, but it could not be achieved as it was a logical impossibility. If they empowered Congress to grant monopolies they would have invalidated the Constitution. The most that could be done was to specify the securing of the individual's natural right (that already exists). That's why the clause had to be written as it was, and not blatantly "to grant monopolies lasting for limited times".

    Monopolies couldn't be added in the Bill of Rights for a similar reason, but at least if they had been, it would have been easier to rescind later. And Madison probably recognised that too.

    Copyright and patent weren't legislated to promote the progress, but because powerful bodies wanted these very lucrative privileges enacted (as soon as possible and permanently).

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 6:08am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    "If you still believe that the Constitution can refer to 'rights' legally granted years later, then you've left the realms of logic."

    As an ignorant Brit, I'm forced to concede this argument because I know very little about the Constitution. I would be interested in someone's more informed view on this though, I get a sense of what you mean but it is still not clear to me.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 6:48am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    Here's someone else's view.

    But bear in mind that as with the church's fiercely protected support for geocentricity (denouncing heliocentricity as heresy), the corporately sponsored consensus view IS that the 'copyright & patent clause' came first, and then copyright and patent being so explicitly sanctioned were duly designed and legislated accordingly. It is only thanks to those privileges that we have enjoyed such cultural and technological progress.

    That the Constitution couldn't grant or empower Congress to grant monopolies (and didn't) is heresy and only whispered in dark corners, as is the proposition that laws against the sharing and improvement of culture or technology can only impede progress.

    It's one of those red pill/blue pill paradigm shifting dichotomies.

     

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    Hephaestus (profile), Jul 23rd, 2010 @ 6:54am

    Re: Category errors

    What does the copyright clause of the US constitution have to do with the statute of Anne? They are different laws, in different countries, seperated by over 300 years of time.

    Oh and for your perusal, the copyright Clause of the US constitution ...

    "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."

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 7:21am

    Re: Re: Category errors

    The US Constitution has indeed nothing to do with the Statute of Anne, but they are only separated by 77 years.

    The two things that are very closely related are the US Copyright act of 1790 and the 1710 Statute of Anne.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 7:37am

    Re: Re: Category errors

    "With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne." http://en.wikipedia.org/wiki/Copyright_Act_of_1790

    The Statute of Anne 1710 begins:
    "An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned."

    US Copyright Act of 1790 begins:
    "An Act for the encouragement of learning, by securing the copies of maps, Charts, And books, to the authors and proprietors of such copies, during the times therein mentioned."
    http://www.copyright.gov/history/1790act.pdf

    How unsurprising that the US version insinuates Constitutional sanction by using the term 'securing' in order to imply it secures an author's natural exclusive right to their writing - instead of representing the granting of a legal right to exclude others from making copies (the granting of a reproduction monopoly).

     

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    Hephaestus (profile), Jul 23rd, 2010 @ 8:19am

    Re: Nitpicks

    "Not "underground," just to methods that are harder to monitor and control. For instance, "file lockers" like Rapidshare, which predate torrents by many years. (Seriously, how is that the new face of file sharing? It's been around for a decade.)"

    Over the past year I have watched an evolution occur in software meant to keep what you are doing online ecrypted and anonymous. My favorite is an app in beta that does onion routing, acts as proxy server, does VPN, allows you to choose which apps will run data through it, and has the ability to plug in your own encryption schemes. The whole app is only a couple meg in size, has a virtual DNS (still haven't figured out what this is used for), has a DFS, is extremely fast, and runs under windows and linux. Basically its TOR with an attitude.

    Now to the point. When you can never figure out the end point of a connection because everything is routed at least once and not logged. Having the IP address of the last routing point is not usable in a court of law.

    "I do. Homeland Security was supposed to be about stopping terrorist threats to our country. Now Homeland Security is taking on a mission that has nothing to do with keeping us safe."

    I agree someone should look at ICE's charter to see if they are even allowed to do this. If they are not, go after them in what ever way the law allows. Basically all we need is to fight a delaying action for a period of two years. With the presidents performance to date, his lack of consistancy in the way his czars and inner circle handle thing, and his blatant pissing off of the american public due to debt and uncertainty, he is a one term president. With a republican or Tea party type replacing him this situation will again normalize.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 8:53am

    "Homeland Security was supposed to be about stopping terrorist threats to our country. Now Homeland Security is taking on a mission that has nothing to do with keeping us safe."


    Such is the way of pretext.

    Copyright was enacted to enable the crown via a self-regulating press to suppress sedition ('stopping insurrectionist threats to our country'), but had the pretext of encouraging learning.

    Homeland Security actually has the same mission as copyright and that's why it seeks to institute measures to regain control of communication from an uncontrolled public (pirates, terrorists, paedophiles, homosexuals, muslims, communists, etc.).

    So, really all we're complaining about is the use of pretext. The missions are essentially the same.

    Homeland Security is about wresting control of communications technology from the public.

    Copyright is about wresting control of communications technology from the public.

    Even in proposals for network neutrality regulation it always says 'no discrimination of LEGAL communications'.

    Legal, authorised, licensed, regulated, permitted by the state. This is what it's all about. The state wants the power from control, and the publishing corporations want the wealth from control. That's why they're in it together and always have been.

    But, the Internet in the hands of the people might just be too big for the state and the corporations to master. It's a civil cyberwar and hardly anyone's noticed.

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 9:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    "The Constitution cannot empower Congress to grant privileges (monopolies) because they must necessarily derogate from rights (see Paine)."

    Presumably you are still talking about Thomas Paine. While his writing was certainly influential, he does not appear to have had direct input into the Constitution. Are you presuming that the framers of the Constitution strictly adhered to his ideals as set out in the Rights of Man? If so, would they have not explicitly worded the Constitution to that end? I haven't studied the Constitution in detail, so it may explicitly say this, in which case please point me in the right direction.

     

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    vivaelamor (profile), Jul 23rd, 2010 @ 9:53am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    "Here's someone else's view."

    An interesting read, but not enlightening to me as their view is apparently based on your own. Still, this has given me much to think about.

     

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  65.  
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    vivaelamor (profile), Jul 23rd, 2010 @ 9:58am

    Re: Re: Re: Re: Re: Re: Re: Category errors

    "The point is, I naturally prevent the burglar making a copy by putting locks on my doors and sitting up all night laying in wait to accost any intruders. The problem is, sometimes the burglar defeats my physical abilities. That's why I empower a government to secure my right."

    I'm not sure I want to get into a discussion on this subject at this time, as interesting as it may be. I will say that I recognise the distinction you draw and agree that the law should protect those who do not wish to publish; I just disagree that the current law is insufficient to protect them.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 10:25am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    See http://www.digitalproductions.co.uk/index.php?id=145#c000215

    Paine effectively had direct input into the intellectual rigour and semantic integrity of the Constitution - even if he didn't pen each clause. Otherwise, instead of a constitution it would have simply been a wishy washy political charter full of vacuous guarantees, obligations, aspirations, platitudes and assurances, much like state institutions and corporations now so faux-righteously give to their 'stakeholders' as part of a PR/customer relations exercise.

    Compare with the ECHR (exuding a far more 'designed by committee' aroma than the US Constitution).

     

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    Anonymous Coward, Jul 23rd, 2010 @ 10:30am

    Re: Re: Re: Re: Re: Category errors

    too bad jefferson didn't write the copyright clause and his words, while thoughtful, do not carry the force of law

    in fact, jefferson later embraced the limited monopolies of copyright

    try again

     

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    BearGriz72 (profile), Jul 23rd, 2010 @ 12:35pm

    Re:

    "then you must have been an outstanding vocal opponent against any government bail outs of any company who refused to adapt to the new market, technology and economy, so the banks/wall street/auto manufactures/housing, that employ millions, should have been allowed to collapse, right????"

    YES!!! How many times does it have to be said!!

    Anybody with an ounce of brainpower was against those F&!#@% STUPID Bailouts, they make ZERO economic sense. The whole "Too big to fail" thing has been debunked more times than I can count.

    Yes jobs would be lost, but guess what, as other companies bought up the pieces of the failed companies (Mergers, Sellouts, or Bankruptcy Liquidation - it does not really matter) NEW jobs would have been created to fill the hole. 'Nature abhors a vacuum' and a large company collapsing under its own weight creates a great big vacuum.

    Go take Econ 101 before commenting further please...

     

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    BearGriz72 (profile), Jul 23rd, 2010 @ 1:59pm

    Re:

    "Homeland Security actually has the same mission as copyright"

    What are you smoking???

    "Homeland Security is about wresting control of communications technology from the public."

    Uh... No, its not. From Wikipedia
    Homeland security is officially defined by the National Strategy for Homeland Security as "a concerted national effort to prevent terrorist attacks within the United States, reduce America's vulnerability to terrorism, and minimize the damage and recover from attacks that do occur".[1] Because the U.S. Department of Homeland Security includes the Federal Emergency Management Agency, it also has responsibility for preparedness, response, and recovery to natural disasters.

    "Copyright is about wresting control of communications technology from the public."

    Also NO... From The US Copyright Office
    Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
    * To reproduce the work in copies or phonorecords;
    * To prepare derivative works based upon the work;
    * To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
    * To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
    * To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
    * In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.

    In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the Visual Arts.

    It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of fair use, which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a compulsory license under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.
    And again from Wikipedia
    Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of works that are substantive and fixed in a medium. Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work
    Just because the government abuses these things in ways they were not intended for does not change the intent.

    "Legal, authorised (sic), licensed, regulated, permitted by the state. This is what it's all about. The state wants the power from control, and the publishing corporations want the wealth from control. That's why they're in it together and always have been."

    That does not make it right. Why do you think we want to change it?

     

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  70.  
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    MrWilson, Jul 23rd, 2010 @ 2:13pm

    Re: Category errors

    Providing someone's opinion who only references your own articles is likewise not proof. Where are the papers of a constitutional scholar who asserts the same? Where is the law professor who teaches this in his classes?

    But beyond that, where does it say that the Constitution doesn't empower Congress to grant legal rights? The Constitution specifically enumerates the powers of Congress. Congress makes laws. Those laws grant rights, legally granted rights. You can argue philosophically that the Constitution can't refer to legal rights, only natural ones, and that it can't refer to anticipated legislation (despite the fact that it is, and was intended to be, the basis for the legislation that followed it) all you want, but if you can't provide any evidence or historical basis for these assertions, your "logical" conclusions don't seem very logical. It seems like you have an agenda/bias that is causing you to accept illogical conclusions without having a basis of evidence.

    Where is there mention in historical documents and laws of an author's exclusive right beyond the Constitution that doesn't likewise refer to copyright? If the Constitution did actually make reference to some natural right of an author that wasn't a reference to copyright, why isn't it expanded upon elsewhere?

    I can't quite figure out why you're obsessing over this moot point regarding whether or not the Constitution originally referenced the concept of copyright or not. No Supreme Court since then has thrown out copyright as unconstitutional, so copyright is, if not de jure, at least de facto, and with two hundred years of precedent to support it.

     

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    Karl (profile), Jul 23rd, 2010 @ 2:27pm

    Re: Re: Re: Re: Re: Re: Category errors

    too bad jefferson didn't write the copyright clause

    Well, the actual authors of the Copyright Clause were the Committe of Detail. The original language was proposed (separately) by James Madison and Charles Pinckney.

    I couldn't find any copyright quotes by Pinckney. Madison, however, was the author of the copyright law in Virginia, which is very close to the 1709 law (though the terms in Virginia were longer). The Virginia law also required that copyrights be registered in order to hold them.

    But Jefferson was certainly an influential voice in the debate. See e.g. this exchange between Jefferson and Madison:

    Jefferson: "The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."

    Madison: "With regard to monopolies they are justly classified among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it?"

    So, even though Madison was more "pro-copyright" than Jefferson, he still viewed it as a monopoly priviledge, granted solely by the public, and its existence could only be tolerated if the public were allowed to rescind that grant.

    Still, you're right: it's too bad Jefferson wasn't in charge of writing the Copyright Clause. If he was, we most likely would not have a Copyright Clause at all.

     

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    MrWilson, Jul 23rd, 2010 @ 2:32pm

    Re: Re: Re: Re: Re: Re: Re: Category errors

    Copyright protects unpublished works. So the burglar who breaks into your house and copies your unpublished work is guilty of the crime of breaking and entering and guilty of the civil offense of copyright violation.

     

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    Karl (profile), Jul 23rd, 2010 @ 2:47pm

    Re: Re: Nitpicks

    With a republican or Tea party type replacing him this situation will again normalize.

    I don't believe that for one second. If there is one issue where the Republicans and Democrats are equally corrupt, it is this one.

    Also, I voted for Obama, and however bad he's done, it's still 10x better than a Republican would have done. IMHO of course.

    So, I'd rather not throw the baby out with the bathwater.

     

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    Crosbie Fitch (profile), Jul 23rd, 2010 @ 2:48pm

    Re: Re: Category errors

    No, laws do not grant rights (or rather, they can have no Constitutional sanction to do so), laws protect rights.

    The Constitution is of course the basis for the legislation that followed it, and thus the legislation must refer to the Constitution, but it's a logical impossibility for the Constitution to refer to that legislation. Come on, think about it.

    If you research it you will find legal argument concerning whether copyright is a natural right, and the distinction between an author's natural exclusive right and the privilege of copyright.

    I wouldn't say I was obsessing. Just curious as to whether Mike's ever thought to substantiate his oft repeated claim that copyright was designed to promote the progress.

     

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    MrWilson, Jul 23rd, 2010 @ 5:54pm

    Re: Re: Re: Category errors

    I'm still not seeing your logic. Why can't a law grant a right? It seems like you're arguing a semantic issue. You're using the term rights to mean natural rights in some philosophical sense that has no basis in practical law and I'm referring to legal rights, which by definition, are granted by laws. For clarity of communication, I can call it something else to alleviate the semantic issue, but it's still the same thing no matter what you call it. Without copyright law, copyright does not exist. That monopoly we call copyright is granted by law. Here's that semantic beast again: copy*right* is a right granted by law.

    Since the Constitution was written as the basis for other laws, i.e. written with the knowledge that more specific laws would be written that would follow upon its premises, then yes, it could and indeed would have to acknowledge the concept of laws that follow it. The whole purpose of the Constitution is to say what kind of power government has to enact different types of laws.

    So you want me to research to find proof that you're correct? That's the laziest argument I've ever heard. If you have done the research yourself, why can't you provide any citations other than your own opinions? If you have done the research and thereby based your opinions on evidence, where is that evidence?

     

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    vivaelamor (profile), Jul 24th, 2010 @ 4:12am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    "Paine effectively had direct input into the intellectual rigour and semantic integrity of the Constitution - even if he didn't pen each clause."

    Even so, if the document itself doesn't explicitly state what is meant, then his influence is beside the point.

     

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    Crosbie Fitch (profile), Jul 24th, 2010 @ 5:45am

    Re: Re: Re: Re: Category errors

    Mr Wilson, of course the law did grant the privileges of copyright and patent, but it had no constitutional sanction to do so (and could not be given such sanction).

    The law SHOULD NOT grant privileges.

    The law SHOULD protect rights.

    The Constitution provides power from the people to the government (strictly limited) and recognises and enumerates the (natural) rights of the people that the government is empowered to secure. The Constitution CANNOT GRANT rights or privileges, nor can it empower the government to do so.

    By definition the Constitution precedes law. It cannot reference the law that follows it, just as you cannot refer on your resume to employment you haven't done yet, e.g. "In five years time I will have completed a two year stint working for BP until I narrowly escaped a blowout". So the Constitution cannot say "Oh, and in reference to those privileges that you'll be enacting in three years time, well, by all means help those privileged enjoy their privileges to the full because they're bound to greatly benefit the public who so graciously sacrificed their liberty, but you should at least ensure they're not perpetual".

    I guess a lot of people think the Constitution could and did refer to copyright and patent in the progress clause.

    I've given you enough information Mr Wilson. Anything more and I start providing you with a free education.

    1) Read my quote of Edison about Thomas Paine to realise you need to read him in order to grok the Constitution.
    2) Read Thomas Paine (Rights of Man) to understand the purpose, language, natural rights philosophy, and the constraints of what the Constitution could and couldn't do.
    3) The Constitution was sufficiently explicit in 1787. It is the corruptions of our language and conception of rights vs privileges today that allows people to read the progress clause and misunderstand it as sanction to grant copyright and patent.
    4) Understand that although some (such as Madison) wouldn't have hesitated in explicitly granting monopolies in the Constitution, even they recognised that they could not do so.
    5) Understand that even though Jefferson suggested Madison put monopolies in the Bill of Rights (because they couldn't be put in the Constitution!), they couldn't even be put in the Bill of Rights (because they weren't rights).
    6) That copyright and patent were legislated does not mean that they actually had Constitutional sanction. There was considerable interest by those concerned to see the privileges enacted, and this is why they were enacted without complaint (or any pedant pointing out a lack of Constitutional sanction).

     

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

  78.  
    icon
    Crosbie Fitch (profile), Jul 24th, 2010 @ 5:51am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    'what is meant' didn't need to be explained in 1787 - it was clear.

    US English of 1787 and US English of 2010 are two languages separated by a common nation.

     

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

  79.  
    icon
    vivaelamor (profile), Jul 24th, 2010 @ 8:19am

    Re: Re: Re: Re: Re: Category errors

    "By definition the Constitution precedes law."

    Which definition? The United Kingdom has an uncodified constitution, much of which comes from laws.

    "1) Read my quote of Edison about Thomas Paine to realise you need to read him in order to grok the Constitution."

    This still does not seem to make sense, why would the constitution be less clear than his original writings if it was based on them?

    "3) The Constitution was sufficiently explicit in 1787. It is the corruptions of our language and conception of rights vs privileges today that allows people to read the progress clause and misunderstand it as sanction to grant copyright and patent."

    You're going to have to be more specific than that. If you can't show us where the language has been corrupted then this point won't stand.

     

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

  80.  
    icon
    vivaelamor (profile), Jul 24th, 2010 @ 8:21am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Category errors

    "US English of 1787 and US English of 2010 are two languages separated by a common nation."

    Then why do you keep pointing us to Thomas Paine's writings from the same period?

     

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

  81.  
    identicon
    Matthew C. Glasper, Jul 30th, 2010 @ 7:26am

    Nice one keep moving liability insurance california

     

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

  82.  
    identicon
    susan, Sep 5th, 2012 @ 6:04am

    dirty agent

    I know a agent with ICE that has alledgedly committed mortgage fraud, uses his company vehcile and phone for personal use. Gets paid for personal time with no leave or sick days. He also abuses his title. They know about it and wont do anything. What kind of justice is that.

     

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


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