How Copyright Takes Away Rights From Consumers

from the understanding-the-overall-purpose-of-copyright dept

It's amusing to see defenders of current copyright law often making final declarations about how copyright is a "right" for artists, and thus protecting those rights absolutely makes sense. What they never seem to talk about is how, at the same time, copyright quite frequently is removing rights from the public. Julian Sanchez points us to a fascinating new paper from law professor John Tehranian, which tries to bring user rights back into the discussion of copyright. Here's the abstract:
This Article challenges copyright's prevailing narrative on personhood, which has typically focused on the identity interests that authors enjoy in their creative output. Instead, the analysis explores the personhood interests that consumers possess in copyrighted works. Drawing on a wide range of examples -- from flag burning as copyright infringement, the Kookaburra controversy and the crowd-sourced origins of the Serenity Prayer to the reported innumeracy of the enigmatic Piraha Amazonians, the apocryphal source of ancient Alexandria's Royal Library and the unusually fragile nature of digital media -- the Article advances a Hegelian refutation to intellectual property maximalism and a theory of copyright that recognizes the crucial link between identity politics and the legal regime governing the monopolization and control of cultural symbols and creative works.
The paper is a bit long, but it's a good read, as it effectively highlights how copyright really quite frequently takes away the rights that people would have in analogous situations. For those who insist that copyright is just like "real property" this particular paragraph (after a whole section describing how, in popular culture, we often define and identify ourselves by modifying the physical things we own) suggests one of the many ways in which "intellectual property" isn't like "real property" at all:
Intellectual property laws directly mediate the vindication of formative and expressive identity interests. The modern copyright and trademark regimes do not allow individuals to manipulate and utilize intellectual property in the same way that they can customize and contextualize their experience with physical property. Simply put, most customizations or contextualizations of intellectual property are considered potential violations of a copyright owner's exclusive rights under the Copyright Act or a trademark owner's rights under the Lanham Act. So, for example, by performing the equivalent of ripping holes in one's jeans (e.g., remixing a song or altering a brand name), a consumer of intellectual property runs afoul of a copyright holder's exclusive right to create derivative works or a trademark holder's right to prevent dilution. One can contextualize and communicate one's relationship with one's jeans by wearing them in public, but the equivalent act of publicly utilizing a copyrighted work would impinge on an author's exclusive right to control public displays and performances. In twenty-first century America, our relationship with intellectual property is an essential part of defining ourselves. And in an increasingly digital and virtual world, the semiotic value of intellectual property is just as significant as physical property, if not more so.

Our identity interests therefore can become intermingled with and wrapped up in a form of property to which we technically, and legally, possess no ownership rights.
The article also explains how the famed Library in Alexandria, which -- to this day -- is held up as an example of a wonderful scenario of aggregating and sharing the world's knowledge, was effectively built via "piracy." Everyone visiting Alexandria was required to deposit any reading materials they had with the Library, where it would be copied and stored.
It was this act of infringement -- the wholesale reproduction of a work without permission of the author or publisher, sanctioned (and even dictated) by law--that allowed the creation of one of the great Meccas of education in the ancient world. The private use of these unauthorized copies fostered learning and the dissemination of knowledge so critical to both personal development and artistic and scientific progress. Indeed, without the extensive collection of learning housed at the Library, the scholarship that emerged from the institution would not have been possible.
There's also a great section on the massive expansion of secondary liability, which does not appear to be supported by federal copyright law, and which is quite frequently used as a back door to remove or limit user rights. While there may not be all that much "new" here for regular readers, the whole paper is definitely a worthwhile read.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Mr Big Content, Dec 14th, 2010 @ 2:57am

    The Alexandrians Were Immoral Pagans

    No wonder they had no qualms about resorting to thieving piracy. That’s why the Great Library had to be burned down—and that brazen Hypatia terminated—before the modern enlightened Christian era could begin. Do you really want to go back to those Godforsaken ages? Only an atheist would think that was a good idea.

     

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  2.  
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    Atheist, Dec 14th, 2010 @ 3:14am

    Re: The Alexandrians Were Immoral Pagans

    it's a good idea!

     

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  3.  
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    abc gum, Dec 14th, 2010 @ 4:48am

    How is flag burning a copyright issue?
    I had not heard of this before, seems strange.

     

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  4.  
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    Anonymous Coward, Dec 14th, 2010 @ 4:59am

    Re: The Alexandrians Were Immoral Pagans

    "enlightened Christian era"

    Thanks guy, I haven't laughed that hard in a long time...

     

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  5.  
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    Anonymous Coward, Dec 14th, 2010 @ 5:30am

    Who benefits from new art? Those who can sell it, of course.

    copyright is a "right" for artists, and thus protecting those rights absolutely makes sense.

    Copyright is not a "right" for artists. It's a "right" for distribution. Artists will continue to create, build and make new art based on old art. When a new artist expands on existing art, what isn't in place is the distribution ability for the new art.

    I've found that one real axiom exists within the creative community- real artists copy great artists steal. With the help of the lawyer, what they create is stolen from the public domain by placing a little © after it. Indeed, some artists were originally brought into thinking this is okay, and expect to live off of the tollbooth that is royalties through perpetuity. These "artists" are eventually found out, for the fraud they are- (being business people and not artists) and the culture they created becomes eradicated, purged and expunged over time.

    So to say it's a "right" of the artists seems a little self serving when you look at distribution and royalty side of the equation.

     

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  6.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 6:39am

    Re: The Alexandrians Were Immoral Pagans

    I'm sorry, were you insiuating that the gathering and sharing of the world's knowledge was a bad thing? Because it was somehow godless?

     

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  7.  
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    Anonymous Coward, Dec 14th, 2010 @ 6:44am

    Re: Re: The Alexandrians Were Immoral Pagans

    Mr. Big Content enjoys exercises in absurdity. ;)

     

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  8.  
    identicon
    Anonymous, Dec 14th, 2010 @ 7:08am

    Saying intellectual property isn't real property is the same as saying a person's thoughts aren't their own, that they're everyone's.

    Talk about privacy issues...

    Good luck with that.

     

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  9.  
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    Anonymous Coward, Dec 14th, 2010 @ 7:10am

    The article also explains how the famed Library in Alexandria, which -- to this day -- is held up as an example of a wonderful scenario of aggregating and sharing the world's knowledge, was effectively built via "piracy."

    Libraries are nothing but a way to rip off authors and publishers.

     

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  10.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 7:18am

    Re: The Alexandrians Were Immoral Pagans

    Holy CRAP, are you that thick?!? I am a Christian,and I think that the alexandrines, while pagan, were genius in their own right. They collected THOUSANDS OF BOOKS only to have it all destroyed by Catholic extremists. Oh, and this "enlightened Christian era" you speak of? IT DOES NOT EXIST. The world is exactly the same, morally, as it was when Jesus was first born, and the rise of the Catholics and the crusades did NOTHING to help that. Adeiu, adieu.

     

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  11.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 7:21am

    Re: The Alexandrians Were Immoral Pagans

    before the modern enlightened Christian era could begin.

    Oh, there you go...now atheism sounds like a real good idea. Where do I sign up to be an immoral pagan?

     

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  12.  
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    Anonymous Coward, Dec 14th, 2010 @ 7:24am

    The copyright office needs a digital library of protected works to compare new copyrights to. The patent office needs the same. But of course our government will never be able to pull it off. They are notorious for losing documents. Many county and city governments have lost Marriage licenses and Birth Certificates. What a shock to send the money in to get your Birth Certificate only to get a letter back (minus the money) saying you are not in their records. Now we find out 1/3 of all private planes are not even registered. That call sign painted on the plane doesn't mean a thing.

     

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  13.  
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    Anonymous, Dec 14th, 2010 @ 7:26am

    Re: Who benefits from new art? Those who can sell it, of course.

    More of the general hate towards artists and creators that seems so common on tech sites.

    It's like some twisted version of Revenge of the Nerds.

     

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  14.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 7:38am

    Re: Re: The Alexandrians Were Immoral Pagans

    They collected THOUSANDS OF BOOKS only to have it all destroyed by Catholic extremists.

    Actually, Julius Caesar burned down the library and he was an immoral pagan. The Catholics burned down a daughter library of the Great Library of Alexandria in 391, but there is questions as to who really destroyed the books. The current list of suspects includes the Catholics and the Muslims.

    The funny thing is that despite the destruction of the Libraries, first by Julius Caesar, then by the Catholics, and then by the Muslims (though there is question as to whether the Muslims actually destroyed anything,) many of the books themselves weren't burned, and part of the reason why we keep finding books from the Library of Alexandria is that the library itself was destroyed but the books ended being scattered by the destroyers.

     

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  15.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 7:44am

    Re:

    Saying intellectual property isn't real property is the same as saying a person's thoughts aren't their own, that they're everyone's.

    Dude, grow up.

    Intellectual property isn't real property. It isn't even defined that way in the Law. If it was, then I could break into your mind and steal your intellectual property from you. I cannot, because even if I could tap into your mind and copy it, you'd still have it. In order to be real property, and in order for me to steal it from you, I'd have to deprive you of that property.

    And to dispel your believe that your thoughts are your own, ever heard of hive mind? I can say, with almost 100% certainty, that there isn't a single thought in your head that is entirely original and hasn't been thought by someone else before, and I welcome you to challenge me on that.

     

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  16.  
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    Jason, Dec 14th, 2010 @ 7:57am

    Re: The Alexandrians Were Immoral Pagans

    Sorry, could you say that again? I couldn't hear you because I was choking on your strawman. I think I got a little vomit on him, so sorry.

     

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  17.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 7:58am

    Re: Re: The Alexandrians Were Immoral Pagans

    Ummm.... what was his strawman doing in your mouth?! ;)

     

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  18.  
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    Jason, Dec 14th, 2010 @ 8:11am

    Re: Re: Re: The Alexandrians Were Immoral Pagans

    Must've been when he tried to shove his bigoted caricature of "the Christian bigot" down my throat. The irony of it sort of tickled me. I think that's what induced the vomiting.

     

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  19.  
    identicon
    Jason, Dec 14th, 2010 @ 8:16am

    Re:

    Seems I've heard that before, but that's absurd!Clearly you're the first to ever think it.

     

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  20.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 8:22am

    Re:

    What happens when the internet moves into our heads?

     

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  21.  
    identicon
    Anonymous, Dec 14th, 2010 @ 8:25am

    Re: Re:

    Intellectual property isn't real property. It isn't even defined that way in the Law.

    LOL

     

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  22.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 8:35am

    Re: Re: Re: The Alexandrians Were Immoral Pagans

    Sorry. I'm not well-versed in that era of history. ^^;

     

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  23.  
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    BigKeithO (profile), Dec 14th, 2010 @ 8:42am

    Re: Re: Re:

    Getting your comment smacked down like that is funny is it?

     

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

  24.  
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    harbingerofdoom (profile), Dec 14th, 2010 @ 8:49am

    Re: The Alexandrians Were Immoral Pagans

    impressive
    8.5/10 on the troll-a-meter

     

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  25.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 8:53am

    Re: Who benefits from new art? Those who can sell it, of course.

    > Copyright is not a "right" for artists. It's a "right" for distribution.

    And looking even closer, it is not even a right for that: it is a *removal* of the rights of others.

    A distributor does not really gain new rights to distribute that they did not have before. Instead, it is that *everyone else* *loses* those rights.

     

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  26.  
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    harbingerofdoom (profile), Dec 14th, 2010 @ 9:09am

    Re: Who benefits from new art? Those who can sell it, of course.

    while we probably agree on a lot of points around this stuff, history would beg to differ with you on your point that its a right for distribution. the notion that its about distribution is a bastardization of modern times and, i think, a really weak crutch to lean on in trying to push back overbearing copyright laws and their defenders.

    trying to mix-n-match parts of the equation between distribution copyright and production ad-hoc is a large part of what created the mess we have in the first place and using the same idea to decry it doesnt do a lot to fix that.

     

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  27.  
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    harbingerofdoom (profile), Dec 14th, 2010 @ 9:10am

    Re: Re: Who benefits from new art? Those who can sell it, of course.

    prime example of why we need a 'DeRp!' button.

     

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  28.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 9:22am

    It comes down to the same (tired) argument, that once you buy the rights to listen to a single copy of a CD or song, you should for some reason have gained other rights that are not included in the price.

    Physical things have certain properties. You can often change those properties to personalize those physical things, such as painting them, adding a sticker, or the old "rip a hole in the jeans" thing.

    But physical things have restrictions. You cannot send them in an Email. You cannot replicate them at little cost and give them to millions of people online. You cannot edit them in a word processor or play the parts of them out of order at the click of a button. You cannot combine them with other material you own and put them on an MP3 player.

    Physical things and digital media have different properties at their base. Attempting to apply the rules of one as rules to the other is a non-starter, mostly an attempt to muddy the waters by comparisons that simple minded people will fall for.

     

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  29.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 10:18am

    WE should call this rape

    it is a rape of our civil rights....call it like it is i say.

     

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  30.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 10:25am

    Re: Re: Re:

    Wait...

    "LOL"

    That's your defense? That's the argument you make for your stance?

    Epic Fail.

     

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  31.  
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    Gabriel Tane (profile), Dec 14th, 2010 @ 10:27am

    Re: Re: Who benefits from new art? Those who can sell it, of course.

    Coming from the guy who defends his position with "LOL". Are you actually going to make some kind of ~snerk~ intelligent argument, or just keep trolling?

     

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  32.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 12:17pm

    Re:

    If you buy something you should be able to do what you want with it so long as you do not use it to exert force over anyone else. Why is that concept so hard for you to understand?

     

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  33.  
    icon
    ltlw0lf (profile), Dec 14th, 2010 @ 12:24pm

    Re: Re: Re: Re: The Alexandrians Were Immoral Pagans

    Sorry. I'm not well-versed in that era of history.

    Wikipedia (despite the academic feelings otherwise) is your friend.

     

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

  34.  
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    ltlw0lf (profile), Dec 14th, 2010 @ 12:49pm

    Re:

    It comes down to the same (tired) argument

    Its only tired if you are a copyright maximalist. For the rest of us, it is a valid and significant argument which has yet to be addressed by the copyright maximalists. For the rest of us, we should be able to use (on a personal level) the media we purchased in any way we can except distribute it to others (thereby breaking the spirit of copyright law.) However, if we buy a CD, and we want to put it on our own iPod, we should be able to do so without violating the spirit of the law. If I put it on your iPod, then the artist should be able to sue me for violating their copyright. But if I buy it as a CD, I should be able to put it on my iPod for my own personal use. The fact that copyright maximalists believe I should pay for each and every copy I have for personal use is taking the law to its literal conclusion (and violates the spirit of the law.)

    But physical things have restrictions.

    Personally, I agree whole-heartedly with this statement. But if that is the case, why are some copyright maximalists using copyright to protect distribution of physical items such as Dinosaur bones or watches?

    With physical items, there is also an associated cost of replication of the physical items, where digital items do not have such a cost. However, I think if you watch this game long enough, eventually copyright maximalists will find a reason for someone to sue over taking a picture of a physical item and sending that through email...I hope I am wrong on this, but given the way things are beginning to spin with copyright maximalists on physical items, it is only a matter of time before we start seeing lawsuits for "copying" a physical item by taking a picture of it and sending it through email.

     

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  35.  
    identicon
    Jason, Dec 14th, 2010 @ 12:59pm

    Re:

    "It comes down to the same (tired) argument, that once you buy the rights to listen to a single copy of a CD or song, you should for some reason have gained other rights that are not included in the price."

    Didn't read the article, did you?

    It's actually a whole other argument that recognizes that we (as a society) gave up the above rights when we instituted copyright, but that choice seems to be having the opposite effect of what was intended - in some cases actually stifling culture rather than promoting it.

    Believe me, we all WISH that your lot would stop treating copyright as though it should work like physical property, but that's a whole other post (well thousands of them probably).

     

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  36.  
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    Your Friendly Neighborhood Librarian, Dec 14th, 2010 @ 3:52pm

    "Everyone visiting Alexandria was required to deposit any reading materials they had with the Library, where it would be copied and stored."

    From what I can recall, often the staff of the Alexandria Library kept the original and gave back the copy. Sneaky buggers, them evil librarians, aren't they?

     

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  37.  
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    Anonymous Coward, Dec 14th, 2010 @ 11:24pm

    You can make as many holes in your Ferrari/CD/DVD as you like. Buying one doesn't give you the right to start mass production by copying the original, though.

    Its simple to understand, when you try to see things the way they are, and not the way you want them to be?

    Hey! Let's copy the whole TechDirt to some other place and start a copyright "maximalist" rant place, jus for fun? :)

    Love that word. Legislative maximalist...as opposed to?..what?..moderate anarchist?

     

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  38.  
    identicon
    Anonymous Coward, Dec 14th, 2010 @ 11:52pm

    Re:

    Its simple to understand, when you try to see things the way they are, and not the way you want them to be?

    This is the problem right here: lawyers and the law look past, present and not future whereas artists look past, present and future. So, of course, there are going to be problems.

    And the opposite of a legislative maximalist is a legislative minimalist.

    Hey, wasn't minimalism an art movement? But minimalism has never been a legislative movement.

    I wonder why?

     

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  39.  
    identicon
    Anonymous Coward, Dec 15th, 2010 @ 8:09am

    Re: Re:

    See, the problem is you are too fast to scream "copy maximalist" without actually considering real world parallels.

    If I own a house, and rent it to someone, I grant them certain rigths (and other rights that exist under law). I did not grant them the right to sell the property to someone else, I didn't grant them the right to re-assign it or sub let it without permission.

    If I own a company that rents cars, I rent you a car. I don't give you ownership of it, I don't grant you the right to use it as a taxi or to sell it for parts. I don't allow you to re-rent it to someone else. Within the restrictions and rights granted under law, the lease agreement holds solid.

    When I sell you a CD with a copy of my music on it, I grant you the rights to enjoy the music, and whatever other rights come under the law. I don't give you the right to redistribute it, or copy it for your friends. Within the limits of the law, that is how music is "sold" - not as the music, but as a certain collection of rights.

    You can obtain other rights if you want, but most people cannot afford to do so.

    I cannot for the life of me imagine why this is such a difficult concept. If you don't like the rights granted, stop buying (and consuming) music. Just saying "you suck, so I am stealing it" only proves how much you really wanted the product. Without piracy, you would either pay for it or not, pretty much end of the story.

    Personally, I agree whole-heartedly with this statement. But if that is the case, why are some copyright maximalists using copyright to protect distribution of physical items such as Dinosaur bones or watches?

    See, here you make a bunch of errors. There is no case regarding copyright of dinosaur bones (but there is a case about the use of custom produced one of a kind molds to make replicas). The watch makers are doing so in order to avoid the problem of their products being purchased from lower cost regions and brought to higher costs regions and resold to undercut them. There are all sorts of issues from guarantee coverage to unpaid duties and import costs for the original company. What cannot be stopped one way (and potential could hurt or destroy the business) can be stopped in other manners. It isn't what copyright was originally intended for, but it is what the law has (always) allowed.

     

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  40.  
    identicon
    Anonymous Coward, Dec 15th, 2010 @ 10:35am

    Re: Re: Re:

    If you don't like the rights granted, stop buying (and consuming) music. Just saying "you suck, so I am stealing it" only proves how much you really wanted the product.

    Music is the transmission of emotion. It's not really a product and until people really start to understand what art is we're just going to keep on going around and around and around.

     

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

  41.  
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    John the Librarian, Dec 15th, 2010 @ 11:05am

    Copyright is more for the distributors than the artists

    I truly believe that our current copyright laws have little regard to the rights of artists and creators either. They exist to protect and perpetuate the investments and revenue streams of corporations that distribute intellectual content (i.e. Disney or just about any record company). Many artists are voluntarily self-marketing their work and utilizing Creative Commons licenses precisely because they don't feel that copyright law serves their interests.

    In the beginning, copyright law was based on a very powerful sense of supporting the common good. It ensured that creators would retain credit for their work and that they would have ample opportunity to gain fair remuneration for it. But eventually - and this was a core principle of the law! - all work would go into the public domain to benefit and serve the common good of all citizens. Artists and creators had a responsibility to support society in this way by allowing their work to make this transition. This core principle didn't begin to change until corporations started to own the rights to intellectual property and began seeking ways to maintain their profits from it for longer and longer periods of time.

     

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

  42.  
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    Anonymous Coward, Dec 16th, 2010 @ 10:29am

    Re: Re: Re: Re: Re: The Alexandrians Were Immoral Pagans

    I'll take that to heart.

     

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

  43.  
    identicon
    Anonymous Coward, Dec 16th, 2010 @ 10:29am

    Re: Re: Re: Re: Re: The Alexandrians Were Immoral Pagans

    I'll take that to heart.

     

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

  44.  
    identicon
    Anonymous Coward, Jan 8th, 2011 @ 12:25am

    Wait till the world finds out there really is a hit making formula. That the reality of music making is much different than the ax holders, and keyboard huggers depicted on album covers. That the multitrack recording is more fraternal twin of the end user with a loop library than a band making music.

     

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

  45.  
    identicon
    iveseenitall, Jan 8th, 2011 @ 12:26am

    Wait till the world finds out there really is a hit making formula. That the reality of music making is much different than the ax holders, and keyboard huggers depicted on album covers. That the multitrack recording is more fraternal twin of the end user with a loop library than a band making music.

     

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


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