Copyright: The New Mercantilism

from the it's-a-protectionist-monopoly-law dept

We've argued for a while that copyright is frequently used as a new form of mercantilism, the mostly discredited economic theory that basically said that the government should be heavily involved in "protecting" local industries with monopolies and tariffs. Adam Smith's seminal works, which more or less created the field of economics were really, in part, a critique of mercantilism, and how it could cause more economic harm than good. When you take a wider view of copyright law and policy (especially in international trade), it's not difficult to conclude that it's very similar to classic 17th century mercantilism.

So it's interesting to see Tulane professor Glynn Lunney publish a paper arguing exactly this: that copyright has become a mercantilist tool, and that's a problem.
Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Rather than argue for broader copyright in terms of more or better original works, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Consumer copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. In this article, I review these arguments and show that they are empty. While the Internet and digital technology has made widespread consumer copying a reality, broader copyright can be justified only if this copying has interfered with the creation and dissemination of new original works. But it has not. Using a hand-coded data set examining the number of new artists and cover songs in the top fifty of the Billboard Hot 100 chart in the first week of each month for the years 1990-2010, I show that while music industry revenue has fallen sharply since Napster opened its virtual doors, output in the music industry, both in terms of quantity and quality, has increased just as sharply. Part of the explanation for this seemingly paradoxical result, is that the digital revolution, while it has made consumer copying trivially easily, has also reduced costs, risks, and barriers to entry in the music industry. Yet, this cannot be a complete explanation.

To account for the rest, I offer a theoretical model and a simple explanation for why the incentives for music creation have remained sufficient in the face of widespread consumer copying: Consumers don't just love music generally; they love their particular favorite artists and their specific favorite songs. While consumers would like to get music for free, they know that they have to support their favorite artists in order to get and to continue getting the music they want. As a result, self-interest tends to ensure that consumers do not free ride too much. While the resulting market is unlikely to be perfect, legislation from Congress is not likely to improve the situation. Just as product markets fail in predictable circumstances, so too do political markets. When, as in the debate over broader copyright, proposed legislation benefits a concentrated interest group, such as copyright owners, at the expense of a dispersed interest group, such as copyright consumers, Congress is systematically likely to get the answer of how much copyright is optimal wrong, and badly wrong at that. In short, we have far more to fear from government intervention in the markets for original works than we do from leaving these markets alone.
I met Lunney a few months ago, and saw him present some of this research at a conference, and he makes a really compelling case (I had a minor disagreement with him over some of his data, but the overall work is really, really solid). The full paper is totally worth reading. As I read through it, I kept thinking I wanted to quote basically everything, so instead I'll just repeat: go read the full paper. I will include this bit from near the end, however:
While I recognize the political difficulty, and perhaps futility, of proposing a constitutional amendment limiting Congress's power in this area, I think it is time, and past time, to put such options on the table. It has been over two hundred years since our Constitution was written, and we have a much better sense today for where representative democracy works and where it fails. Because copyright benefits a concentrated and well-organized interest group at the expense of a dispersed group, establishing an optimal copyright regime is simply not something Congress has done or will do well. We should therefore limit Congress's power to act on this issue. At the simplest, such a constitutional amendment might follow Jefferson's suggestion and substitute "for no more than fourteen years" for the phrase "for limited times" in Article I, section 8, clause 8. Taking it a step further, an amendment might specify or limit the nature of the "exclusive rights" that Congress may grant. I fully recognize that such an approach would enshrine a set of rights that, even if optimal today, may not prove optimal for all time. Such an approach would almost certainly impose a set of legal rights that will not fit perfectly the needs of the future, as technology and markets change. Nevertheless, I believe that such an approach remains preferable to our current approach. Any welfare losses that may result from constitutionalizing today's optimal set of rights and imposing those rights onto the future would be less than the welfare losses that will result, and have resulted, from leaving the issue to Congress. Given how overbroad copyright has become, even an amendment barring Congress (and the states as well) from granting exclusive rights to authors for their writings altogether would be better than where we find ourselves today.
Once again, go read the whole thing... and remember the key points he raises the next time you see copyright maximalists bring up how many "jobs are at stake." That's a bogus claim, as Lunney notes elsewhere in the paper:
for the copyright industries to receive more revenue, consumers must pay more for works of authorship. Broader copyright, after all, does not generate revenue from thin air. It has to come from somewhere. If consumers have to pay more for works of authorship, they will have less to spend on everything else. Thus, more revenue for the copyright industries necessarily means less revenue for other sectors of the economy. If more revenue for copyrighted works means more jobs for the copyright industries, presumably less revenue everywhere else means fewer jobs elsewhere in the economy
Copyright is about Congress picking winners and losers in a true mercantilist manner -- and Congress has proven especially bad at doing that well -- in part because they only seem to listen to the claims of the industry which benefits from such policies.


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Oct 26th, 2012 @ 8:03pm

    Any candidate not aggressively campaigning against our too restrictive IP system should be subject to political suicide. If you're not publicly against IP you don't get any votes.

     

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  2.  
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    MrWilson, Oct 26th, 2012 @ 8:12pm

    "If consumers have to pay more for works of authorship, they will have less to spend on everything else."

    Exactly. The content companies are basically saying, "if you give us more money, there will be larger table scraps for the actual artists to get paid." They argue for their own benefit to the detriment of the rest of society despite acting like they're the most essential industry.

    Culture is important, but it's not as low on Maslow's Hierarchy of Needs as food, shelter, and clothing. If you have to choose between paying for food or paying for entertainment, and you can get the entertainment for free, which would you choose? The content companies are essentially saying, "people are selfish and greedy. They choose to eat rather than pay for more movies and music."

     

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    Anonymous Coward, Oct 26th, 2012 @ 8:25pm

    Have an insightful vote AC#1. However it goes a good bit further than that. Both political parties have been bought out by big money. Why do you think that no big bankers/CEOs/board members have went to jail from Wall Street and Big Banks? In essence our government is corrupt to the core.

    The whole system needs rebuilt from the ground up but as long as politics is a money magnet it will always need overseers to protect the public and expose wrongdoing. The media, another puppet to big money has failed to do so.

    In the end as a result of that, we are entering the next gilded age. Good for the 1% and no one else. What we have now is the next thing to the Great Depression with near the same figures in unemployment, rampant foreclosures, and protection schemes as they continue.

     

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  4.  
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    Anonymous Coward, Oct 26th, 2012 @ 8:59pm

    Re:

    It's the way of the world. Money talks and the citizenry walks.

     

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    Anonymous Coward, Oct 26th, 2012 @ 9:07pm

    think you mean conclude not include, in the first paragraph

     

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    rosspruden (profile), Oct 26th, 2012 @ 10:41pm

    Nice

    I like how The Broken Window Fallacy was mentioned in the last of Lunney's quotes... but not by name. :)

     

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  7.  
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    jupiterkansas (profile), Oct 26th, 2012 @ 11:33pm

    Re:

    Culture is so important that the government buys wholesale cultural works and gives it to the people for free through the public library, so that everyone, rich and poor, can share the culture and knowledge.

    Culture is important not because it might make a profit or provide a job, but simply for the ideas it contains.

     

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  8.  
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    jupiterkansas (profile), Oct 26th, 2012 @ 11:36pm

    Re:

    The system has always been corrupt. The United States was designed to be corrupt, since they knew corruption would happen regardless. They knew everyone was going to try to make the system work for them.

     

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  9.  
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    Crosbie Fitch (profile), Oct 27th, 2012 @ 12:55am

    Congress has no power to grant copyright anyway

    "limit the nature of the "exclusive rights" that Congress may grant"

    The Constitution never empowered Congress to grant copyright or patent in the first place. People just think it did - because Congress did grant those privileges and it's unthinkable not to believe that the Constitution empowered Congress to do so.

    See http://culturalliberty.org/blog/index.php?id=289

    So, making an amendment that Congress should only have power to secure the exclusive rights that authors and inventors possess by nature (vs by legislation - privileges subsequently granted that resemble such rights), is redundant because that's all the Constitution stipulated in the first place.

     

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    Mike Masnick (profile), Oct 27th, 2012 @ 1:28am

    Re: Congress has no power to grant copyright anyway

    Crosbie, you bring this up over and over again, and I know you believe it, but for what you say to be true, it would mean that the people who passed the very first US copyright law -- which were basically the same people who wrote the Constitution, didn't believe you. So you're arguing that you understand what the framers wrote more than the framers.

    You would think if there was even a smidgen of validity to this argument, that perhaps (just perhaps) it would have shown up back in the 1790s when Congress was passing copyright law.

    You have lots of good and interesting arguments concerning copyright, but your ridiculous infatuation with the claim that the Constitution did not grant Congress the power to create copyright law just makes it difficult to take you seriously.

     

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    The eejit (profile), Oct 27th, 2012 @ 2:34am

    Re: Re:

    Not quite - The William Blake quote applies here:

    The best-laid plans of mice and men go oft awry.

     

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    Crosbie Fitch (profile), Oct 27th, 2012 @ 3:13am

    Re: Re: Congress has no power to grant copyright anyway

    Mike, for me, the US Constitution and the 18th century privilege of copyright that preceded and followed it is not a matter of belief - though it may be so for most.

    The person (James Madison viz Congress) who passed the first US Copyright law (a slightly altered copy of Queen Anne's 1709 statute) in 1790 was just ONE of the Framers of the US Constitution 1787.

    It is not in dispute that Madison wanted the old world monopolies of copyright and patent brought into the US. The issue is that the clause he inserted into the Constitution didn't empower Congress to grant those privileges. It might have enabled him to later point to that clause as implicitly sanctioning their granting, but that's not the same thing.

    Remember that Madison granted copyright & patent as a fait accompli 3 years after the Constitution had been drafted. Did every single one of the other Framers appreciate that via the clause that only empowered the securing of rights (unalienable rights, endowed to us by our creator - "That to secure these rights, Governments are instituted among Men") the monopolies of copyright & patent would be granted by Congress three years later?

    It is not necessary to pretend to understand the Constitution more than the Framers. One needs only to understand it as they did, in the language of the day - in which 'right' was not corrupted in meaning by a privilege granted three years later that in the 20th century came to be understood by the layman as equivalent to a natural right, and the right that the clause empowered Congress to secure. See http://culturalliberty.org/blog/index.php?id=289

    Because of this corruption in the meaning of 'right', we now have to qualify natural rights with 'natural' to distinguish them from privileges (legislatively created 'rights' - see Paine).

    Does the following ring true?

    We hold these truths to be self-evident, that all men are recognised to be equal, that they are endowed by their government with certain transferable rights, that among these are copyright, patent and the pursuit of infringers. — That to enforce these rights, law firms are instituted among Men, deriving their just powers from the consent of the government's corporate sponsors


    Mike, I am not interested in eliminating from my arguments anything that jeopardises being taken seriously. I am not a politician. I am interested in understanding the nature of rights, and whether copyright is ethical, and compatible with humanity, and if not, how artists and inventors can ethically and practically do business with those who want them to continue doing what they do.

    You can read the Constitution as empowering Congress to grant copyright if you want to believe it does, but it doesn't actually do so, and if you can conceive of the possibility that it might not be a ridiculous infatuation to argue against that belief (like this chappie here: http://www.techdirt.com/articles/20120521/03345318988/youre-only-making-things-worse-yourself-us-too -media-industries-part-ii.shtml#c239 not anonymous to you) then you might respect the argument rather than simply poo poo it as infra dig.

    You are not exactly a stranger to the situation of being ridiculed for a lack of faith in the holy goodness of copyright and patent. Pointing out that the Constitution didn't empower Congress to grant copyright (as it empowered Congress to grant Letters of Marque) is sacrilege only to devout copyright worshippers and Madisonians, not to the Constitution and natural rights libertarianism.

     

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    Anonymous Coward, Oct 27th, 2012 @ 3:23am

    Re: Re: Congress has no power to grant copyright anyway

    Crosbie, you bring this up over and over again, and I know you believe it, but for what you say to be true, it would mean that the people who passed the very first US copyright law -- which were basically the same people who wrote the Constitution, didn't believe you.
    Of the 90 or so* delegates of the 1st United States Congress, only 16 were also amongst the 55 delegates of the Constitutional Convention. Though I remain as yet unconvinced by Mr Fitch's interpretation of Article 1 of the Constitution, it would seem frivolous to dismiss his theory based on an assumption that the Constitution and the Copyright Act were written by "basically the same people".


    * 90 is a somewhat approximate number, I actually counted over 120 different delegates over the course of the Congress but tried to consider only those who (I presumed) held office when the Copyright Act was being debated.

     

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    The Real Michael, Oct 27th, 2012 @ 5:08am

    Re:

    "Exactly. The content companies are basically saying, 'if you give us more money, there will be larger table scraps for the actual artists to get paid.' They argue for their own benefit to the detriment of the rest of society despite acting like they're the most essential industry."

    Just by sheer coincidence, this is the same argument made for why we should give more money to the wealthy: they can (presumably) make jobs and "spread the wealth," if only they had *more* money. 'Trickle-down economics' was an absolute failure, twice, so there's no reason to believe that it's going to work when applied to content industries which live and die on consumer demand.

    The corps paint copyright as the penultimate job-creating mechanism (and benevolent protector of American industries) in order to score brownie points in Washington, so they can further their monopolistic tendencies and keep finding new ways to take control of the internet.

     

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    peopleagainstheft (profile), Oct 27th, 2012 @ 5:36am

    Geez . .. by that logic, Mike everything should be free so there is more money for everything else. Mercantilism is the OPPOSITE of copyright, sir. The point is that private property creates the underlying rights needed for investment and competition - and then the marketplace does its ruthless work. creators (not the creative industries . . . think movie makers, writers, journalists, etc etc) invest their time, and in some cases their lives, to making things without any knowledge of how they will be received . . . and then normal people decide if they are good or not or whether they are worth the money. It's telling that the solution proferred to life without copyrighted is a compulsory license or government funding and THAT is mercantilism. I want to know how this professor - who apparently never read an economics 100 text - decides that music now is better, or ignores film, television, newsgathering, and all the other arts that depend on both (a) functioning free markets and (b) the natural right of a human being, even an artist, to decide how his or her work should be exploited by the world.

    On the question of "theft" - you misunderstand the concept. Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing. So, too, illegal copying interferes with a persons exclusive right and is entitled to be called theft.

     

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  16.  
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    The Real Michael, Oct 27th, 2012 @ 6:02am

    Re:

    If the copyright maximalists had it their way, nobody would be allowed to copy anything, not even for personal use.

    Let's be frank here. This discussion isn't about making content available to everyone for free, this is about industries using any and all means necessary to lock up content for eternity and rip control of the internet and technology out of the users' hands. If you can dictate how other technology should function and force those industries to police themselves (seriously hampering their own resources in the process) just to suit your self-serving interests, how is that right? Should we no also station police officers on every street corner and waste taxpayer's money in order to "protect against theft"?

     

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    average_joe (profile), Oct 27th, 2012 @ 6:31am

    Re: Nice

    There's a few paragraphs about the fallacy by name in the article. I'm not sure I buy the argument. So copyright is bad because the money we spend on copyrighted works could have been spent elsewhere? So what? Couldn't you say that about anything? If you spend more money on X, you will spend less on Y. Duh. We spend money on copyrighted works because it benefits us, just like we spend money on tons of other things that benefit us. The argument seems really silly to me. Again, so what if the money we spend on one product means we aren't spending it on another?

     

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  18.  
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    abc gum, Oct 27th, 2012 @ 6:35am

    Re:

    "The whole system needs rebuilt from the ground up"

    Flawed logic.
    One does not renovate a home with a bulldozer. A sawzall might be more useful.

     

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    peopleagainstheft (profile), Oct 27th, 2012 @ 6:42am

    Real Michael - actually, um, we do put policemen on the street to protect your house, your car. We have courts to protect your private property and your bank account and your right to get paid on payday. It's called the rule of law and it's why the United States is not, say, Somalia. It also works because most people are respectful of others rights, so you don't have to have a policemen in everyone's house. Why do you rail against copyright maximalists - maybe some exist but I haven't seen any. Let's see what you have to say about "copyright middle of the roaders" who just think copyright of reasonable extent ought to be respected?

     

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    abc gum, Oct 27th, 2012 @ 6:45am

    Re: Re: Nice

    "the money we spend on copyrighted works could have been spent elsewhere"

    Apparently less is being spent on copyright material and this what the copyright cartel is whining about. Those damn filthy independent content creators are causing all sorts of heart ache for the well established fat cat guardians of wealth generation. The nerve of these upstarts!!! They will be crushed!!

     

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  21.  
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    Anonymous Coward, Oct 27th, 2012 @ 6:49am

    Re: Re: Re:

    Blake?
    I don't think so!

    Robert Burns.
    "The best-laid schemes o' mice an 'men
    Gang aft agley"

    Whereas Blake (at least Roj Blake) said
    "You don't matter enough to kill, Travis."

    And a different Burns said
    "Excellent"

     

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    The Real Michael, Oct 27th, 2012 @ 6:49am

    Re: Re: Nice

    Copyright in and of itself isn't bad. Indeed, copyright was originally supposed to be about advancing the arts and sciences. But it's become a beating stick. It has mutated above and beyond its original intended purpose into an unfair means to monopilze content, to punish the people and attempt to control other industries, namely technology, all for the benefit of a select few wealthy people.

     

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    The Real Michael, Oct 27th, 2012 @ 6:54am

    Re:

    "Real Michael - actually, um, we do put policemen on the street to protect your house, your car. We have courts to protect your private property and your bank account and your right to get paid on payday. It's called the rule of law and it's why the United States is not, say, Somalia. It also works because most people are respectful of others rights, so you don't have to have a policemen in everyone's house. Why do you rail against copyright maximalists - maybe some exist but I haven't seen any. Let's see what you have to say about 'copyright middle of the roaders' who just think copyright of reasonable extent ought to be respected?"

    I actually should have reworded my final sentence: Should we not also station police officers on every street corner to keep watch in case someone decideds to copy (just for the sake of argument) your product? That's what you're implying should happen everywhere on the internet. The problem with this is obvious: if the RIAA and MPAA can regulate the internet, that's essentially the same as conceding control over it -- which is their intended goal in the first place.

     

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    abc gum, Oct 27th, 2012 @ 7:01am

    Re:

    The police are not there to serve and protect. This is a fallacy which has become more apparent daily.

    The police are there to enforce the law, and that means whatever the "lawmakers" decide it means. Furthermore, this enforcement tends to be selective and biased.

    Respect is a funny thing. Some think it should be paid while others think it is earned.

    Turd polishing is a fine art isn't it?

     

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    Anonymous Coward, Oct 27th, 2012 @ 7:03am

    Re:

    "On the question of "theft" - you misunderstand the concept. Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing."

    Hahahahahahahahaa.

    I can see you contacting the police to claim that someone has stolen your exclusive right to use and sell your car.

    They'd start of by asking when and where it was taken, then asking for the licence plates, make and colour of the car.

    And then arresting you for wasting police time, when you eventually inform them that the car itself hadn't been taken and was still in your possession and being used when you damn well liked.

    Of course theft relates to the actual physical thing, anything else is metaphysical bullshit.

     

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    peopleagainstheft (profile), Oct 27th, 2012 @ 7:06am

    That's a giant leap, Michael. The MPAA and RIAA (and the directors guild, the songwriters association, the AFL-CIO, etc) start from wanting an internet where obvious and eggregious theft is not allowed. I don't know if they want to control the internet - but no one would ever let them - but how do you defend, say, kim dot com or the pirate bay in kim's case trying to download all of YouTube so he can sell ads, telling people that he is taking stuff down when he isn't? The pirate bay just ignores (or thumbs its private parts) at takedowns. So we just need a way to get rid of dirtbags while protecting reasonable privacy - just like we do offline where a court can order a wiretap on the mafia but can't do it without reasonable cause? As you say, the problem is not copyright, it's finding its reasonable limits so it's not abused, but still works.

     

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  27.  
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    The Real Michael, Oct 27th, 2012 @ 7:17am

    Re:

    "That's a giant leap, Michael. The MPAA and RIAA (and the directors guild, the songwriters association, the AFL-CIO, etc) start from wanting an internet where obvious and eggregious theft is not allowed."

    No, they don't. They want an internet under their thumb, where their product line is front and center and everyone else is either marginalized or conveniently eliminated from the marketplace.

    "I don't know if they want to control the internet - but no one would ever let them..."

    The ISPs in collusion with them contradict that assumption.

    "...but how do you defend, say, kim dot com or the pirate bay in kim's case trying to download all of YouTube so he can sell ads, telling people that he is taking stuff down when he isn't? The pirate bay just ignores (or thumbs its private parts) at takedowns. So we just need a way to get rid of dirtbags while protecting reasonable privacy - just like we do offline where a court can order a wiretap on the mafia but can't do it without reasonable cause? As you say, the problem is not copyright, it's finding its reasonable limits so it's not abused, but still works."

    It depends, really. The problem with taking down something like The Pirate Bay is that a dozen more will come along to take its place. As for Megaupload, I can't speak for everyone on the planet but, hey, I used it as a convenient storage device to send my (self-created) music to people. Should we make online storage illegal on the whim of the movie/music industries? I don't believe so. If they did, they'd have to make a rather good excuse seeing as people upload those industries' content to YouTube all the time and it's still up and running.

     

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  28.  
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    David Muir (profile), Oct 27th, 2012 @ 7:21am

    Re:

    I'll repeat a point that I've made before: "You can't go ahead and lump copyright infringement in with theft because someone acquired something that they are not legally entitled to have. That logic makes driving with an expired license the same as grand theft auto, because you are enjoying the use of a vehicle that you are not legally entitled to use."

    As much of a pain as the law is sometimes, distinctions and choice of words remain important.

     

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    abc gum, Oct 27th, 2012 @ 7:37am

    Re:

    "Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing."

    This implies that the act of extending copyright to include the secondary market is theft.

     

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    Samuel Abram (profile), Oct 27th, 2012 @ 7:56am

    Thank you.

    Thank you for saying what needed to be said. It's Congress dependency on their funders that gives us such sh*tty copyright law (and all other laws, for that matter).

    We can't proceed to fix copyright law without changing how our campaigns are funded.

     

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    peopleagainstheft (profile), Oct 27th, 2012 @ 8:08am

    David - they are and that's why your example doesn't make any sense. If you copy something that you don't have the right to copy, you are interfering with the exclusive right of someone else - just as if you wrongfully entered your neighbor's house and watched television for a week, or borrowed their car. All of them are "trespass" or "theft" under the law - interference with property.

    abc - actually copyright protects limited rights, such as the right to make a copy or first distribution. It generally doesn't make the act of distributing a copy illegal if no copies are made and therefore there is no theft. However, "file sharing" is often about making lots of copies and so isn't secondary distribution. People do talk about "digital first sale" - where the original disappears when the copy is sold, and there are a lot of people who like the idea. If the technology could be made to work so that only the original is shared (or online, a new copy is made and the old one deleted) - it might well be consistent with the rights conferred by copyright. By the way, all property has limits. You can't build a munitions plan in your house, for example, and in some neighborhoods, you even have to build something the neighbors think attractive. That's not unique to copyright.

     

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  32.  
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    Anonymous Coward, Oct 27th, 2012 @ 8:15am

    Re:

    Rajat Gupta, formerly one of the most respected CEOs in the US and a board member of financial giants like Goldman Sachs...

    Peregrine Financial Group's former Chief Executive Russell Wasendorf Sr.

     

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  33.  
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    abc gum, Oct 27th, 2012 @ 8:24am

    Re: I'll just leave this here

    Supreme Court to hear arguments in case of student who resold books
    http://www.cnn.com/2012/10/26/justice/court-student-copyright/index.html?hpt=hp_t3

    fta:
    " The high court will consider the limits of two key interpretations of copyright law -- the "first sale doctrine" and its complex relationship to foreign distribution rights."

    "The first-sale doctrine generally gives copyright holders the ability to profit only from the original sale."

    "Storefront and at-home secondary retailers, libraries, artistic venues, even the local garage sale could be implicated."

     

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    Richard (profile), Oct 27th, 2012 @ 9:03am

    Re:

    Geez . .. by that logic, Mike everything should be free so there is more money for everything else.

    Not everything - just everything than can be produced for free. In other words everything should be sold for a price close to the marginal cost of production. This is just economics 101 - mot even controversial outside the heady world of the copyright cult.

    All you are doing is willfully misunderstanding the point.

     

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  35.  
    identicon
    Anonymous Coward, Oct 27th, 2012 @ 9:31am

    Re:

    The real threat to the traditional content Industries, and in particular those whose content is audio/video is that the Internet allows the content creators to do without their services. Piracy is a convenient excuse to gain control over the Internet, especially when it enable them to get in place sloppy mechanisms which can accidentally take-down competitors products. The attempts to eliminate all fair use helps in this, as it often easy to find short quotes from other works.
    Copyright has become a vehicle for protecting the traditional copyright Industries, and in particular the RIAA and MPAA members.

     

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  36.  
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    out_of_the_blue, Oct 27th, 2012 @ 9:37am

    Mercantilism is nothing like copyright.

    From http://en.wikipedia.org/wiki/Mercantilism

    ====== snip [emphasis added]

    Mercantilism is the economic doctrine that government control of foreign trade is of paramount importance for ensuring the military security of the state.

    * Building a network of overseas colonies; * Forbidding colonies to trade with other nations; * Monopolizing markets with staple ports; * Banning the export of gold and silver, even for payments; * Forbidding trade to be carried in foreign ships; * Export subsidies; * Promoting manufacturing with research or direct subsidies; * Limiting wages; * Maximizing the use of domestic resources; * Restricting domestic consumption with non-tariff barriers to trade.

    ====== end snip

    Looks like the usual plutocratic militarism to me, and surely the first point is enough to include the Vikings, or Roman Empire -- in short, "mercantilism" is EMPIRE.

    And along with that soon there's this HOWLING double-think oxymoron, that ONLY an "economist" could come up with:

    "The British Empire embraced free-trade and used its power as the financial centre of the world to promote the same."

    The British Empire was AN EMPIRE, damn it! Nothing FREE about it. They enslaved most of India and China, plus many other peoples around the world, and from them STOLE whatever they wanted, mostly raw materials for manufacturing by British serfs in Dickensian conditions.

    Just cut through the myriad details and distinctions that "economists" make to hide the overarching similarity of ALL "economic systems": THE RICH RULE SLAVES BY FORCE AND ARE ALWAYS EVIL. Now and then The Rich must be taken down because their tendency is always to go crazy and destroy civilization.



    What's my point? -- Mike's snowing you with "expertise" that doesn't matter. Copyright HAS become a tool of The Rich. Problem as always is THE RICH, not their tools at any given time. They'd as happily brain you with a stone axe as hale you into court with a statute.

     

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  37.  
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    Karl (profile), Oct 27th, 2012 @ 10:19am

    Re: Re: Re: Congress has no power to grant copyright anyway

    Crosby, your views are provably false. You may personally think the Constitution did not allow Congress to create post-publication monopoly rights, but that was clearly the intent of the Founders and the Copyright Clause.

    The Founders who wrote the Clause discussed it in terms of a monopoly. From what survives from the newspapers of the period, everyone in the Colonies also viewed it as a monopoly. I wrote a couple of posts about it; here's one that quotes the Founders, and here's one that quotes others from the contemporary public discussion around the Clause.

    It's also unfortunate (for your argument) that you quote Paine, because Paine believed that copyright was a natural property right, not just a monopoly: "It may, with propriety, be remarked, that in all countries where literature is protected (and it cannot flourish where it is not), the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them at birth." He was in the minority among the Founders, and had nothing at all to do with the Copyright Clause, but it's what he believed.

    If you're curious, here's a link to my take on the "ethics" of copyright. It goes into why I agree with the majority of the Founders, and that copyright should not be considered some sort of Lockean property right.

     

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  38.  
    identicon
    abc gum, Oct 27th, 2012 @ 10:56am

    Re: Mercantilism is nothing like copyright.

    "What's my point?"

    ... no point found - Meh.

     

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  39.  
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    silverscarcat (profile), Oct 27th, 2012 @ 11:17am

    Re:

    "Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing."

    ... Whut?

    The dictionary meaning of theft is this...

    "the act of stealing; the wrongful taking and carrying away of the personal goods or property of another; larceny."

    Notice how it says "wrongful taking and carrying away" and "personal goods or property".

    If I infringe on copyright, I'm not carrying stuff away.

    Theft of my car means someone took my car without my permission.

    "So, too, illegal copying interferes with a persons exclusive right and is entitled to be called theft."

    Sorry, but if I copy their song illegally, I didn't beat them up so they'd forget the song, deprive everyone else of the chance to hear it, and keep it for myself.

     

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  40.  
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    silverscarcat (profile), Oct 27th, 2012 @ 11:20am

    Re: Re: Mercantilism is nothing like copyright.

    "... no point found - Meh."

    Does ootb *EVER* have a point?

     

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  41.  
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    Richard (profile), Oct 27th, 2012 @ 11:34am

    Re:

    from wanting an internet where obvious and eggregious theft is not allowed.

    That doesn't require any action or change in policy at all. The things that are illegal (and btw it is simply incorrect to call infringement theft) are not allowed - that is the definition odf the word.

    What they want is an internet where infringement is not possible which is quite a different thing.

    The problem is that making infringement impossible would have the side effect of making a lot of other perfectly legal activities impossible too.

    The worst of it is that one suspects that those legal activities are the real target here. Infringement is merely an excuse.

     

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  42.  
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    The Real Michael, Oct 27th, 2012 @ 11:36am

    Re: Mercantilism is nothing like copyright.

    If it were just common folk using copyright, it wouldn't have turned into the monopolistic monster that it's become under the wealthy corporates. That's because people in general wouldn't willfully allow just a few individuals' greed to gain such traction.

    But then the wealthy have always been about acquiring more, more, more. They have a one-track mind.

     

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  43.  
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    Richard (profile), Oct 27th, 2012 @ 11:38am

    Re:

    If you copy something that you don't have the right to copy, you are interfering with the exclusive right of someone else - just as if you wrongfully entered your neighbor's house and watched television for a week, or borrowed their car. All of them are "trespass" or "theft" under the law - interference with property.

    How can you be interfereing with someone's rights by performing an act that they may not even be aware of?

    Your use of the word "interfere" here is simply wrong - and the rest of your analogy collapses because of that error.

     

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  44.  
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    Dionaea (profile), Oct 27th, 2012 @ 11:54am

    Re: Re:

    True, the comparison is stupid. It should be "just as if you wrongfully copied your neighbor's house and watched the copied television for a week, or used the car you copied from them" Then how on earth do I interfere with their property?

     

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  45.  
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    Karl (profile), Oct 27th, 2012 @ 12:05pm

    Re:

    Mercantilism is the OPPOSITE of copyright, sir.

    No, it is not. Copyright is a monopoly right arising from statute. It is a government-created barrier to free trade, which is exactly what mercantilism is.

    The point is that private property creates the underlying rights needed for investment and competition - and then the marketplace does its ruthless work.

    That is not why private property exists - not economically, not politically. Property exists because it is the most efficient way to allocate scarce resources; private property exists as a necessity to utilize that property. (You can't eat an apple without that apple being private property.)

    But this is not what copyright is. It does not allow you to utilize the works you author; you would have that right without copyright. The only thing copyright does is take away the ability of everyone else to utilize the works you author. It is not done for the allocation of scarce resources, because expressing an idea is not a scarce resource.

    If there was a free market, i.e. one with perfect competition, the government would have no regulations preventing the trade of the works you author. You would still have the right to put the works you author into the market, but competitors would also have the right to put the works you author into the market. The market would then decide which version of the works you author is the more valuable, and supply and demand would do "its ruthless work."

    Copyright is a government imposition on the free market. It grants copyright holders the right to have a monopoly on their works. It is no more part of a "free market" than any other form of price control.

    It's telling that the solution proferred to life without copyrighted is a compulsory license or government funding and THAT is mercantilism.

    No, it's not mercantilism, because there is no monopoly, and no barrier to free trade. You obviously don't know what "mercantilism" means. Hint: it is not the same as "government funding."

    the natural right of a human being, even an artist, to decide how his or her work should be exploited by the world.

    That is not a "natural right." It has never been considered a natural right, even in those countries where "droit d'auteur" ("moral rights") are endorsed. In the U.S., your "natural right" to the works you author end at publication. In the countries where "moral rights" are accepted, those "moral rights" are distinct from "economic exploitation" rights. They only include such things as attribution and right of first publication - things which have absolutely nothing to do with piracy, commercial or otherwise.

    Theft of a car has to do with taking your exclusive right to use and sell your car . . . not the physical thing.

    Theft of a car has to do with removing my use of the car altogether. It is only "exclusive" because a car is a scarce resource (a rivalrous good), and cannot be utilized by more than one person at a time. Stealing my car is not illegal because you get a free car; it's illegal because I don't have it any more.

    It is theft because it removes my possession of the car, not because it's "taking my exclusive right to use and sell my car." As someone else pointed out, that would mean that the government is committing "auto theft" when my driver's license expires, because it is "taking my exclusive right to use" that car.

    That's absurd, of course. Just as absurd as claiming copyright infringement is theft.

     

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  46.  
    identicon
    Dave Xanatos, Oct 27th, 2012 @ 12:07pm

    Re: Re:

    One does not renovate a home with a bulldozer

    When all the timbers are rotted and filled with termites, the wiring is old and dangerous, the plumbing is clogged and leaking at all points, the foundation is substandard with decaying concrete, and most of the roof is missing, then yes, you renovate with a bulldozer.

    Unfortunately, copyright and patents are in worse shape than the house I described. And the content slum lords would like to continue to force us to live in it.

     

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  47.  
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    Dionaea (profile), Oct 27th, 2012 @ 12:21pm

    Re: Mercantilism is nothing like copyright.

    I've spent the past 30 minutes trying to decide where to even begin shooting holes into your argumentation. And have subsequently concluded that it's probably going to waste a lot of my precious time with little to no avail. Your comment about the British Empire says enough, they most definitely could have promoted free trade between the ENTIRETY of the empire and the rest of the countries in the world (yes, there's more to the world than just the British Empire) even if those were colonialistic empires too.

    If you're just here to spout a "rich EVIL, copyright GOOD" message, you should find yourself a different audience.

     

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  48.  
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    The eejit (profile), Oct 27th, 2012 @ 12:25pm

    Re: Re: Re: Re:

    Bollocks. My bad.

     

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  49.  
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    The eejit (profile), Oct 27th, 2012 @ 12:29pm

    Re:

    Mercantilism. Look it up. I'll wait.

    ...Back yet? Good.

    Imaginary Property laws are the very definition of mercantilist behaviours.

     

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  50.  
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    Aaron Wolf (profile), Oct 27th, 2012 @ 1:03pm

    Re: "rights"

    If you are able to stop me from copying something, that is not the exercise of a "right" that is POWER. Rights are freedom to do things or to avoid being subjected to things. When my actions have no direct impact on you, any influence you have has nothing to do with your rights.

    Right = freedom
    Power = control

    Copyright is INDEED a right! The right to copy. Our copyright law isn't about protecting rights, it's about restricting them. It is about taking away this right from most people for the purpose of incentivizing creation of works.

     

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  51.  
    identicon
    Anonymous Coward, Oct 27th, 2012 @ 1:16pm

    Re: Congress has no power to grant copyright anyway

    Looks like they let Crosbie out of the rubber room again...

     

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  52.  
    identicon
    Beech, Oct 27th, 2012 @ 1:23pm

    Re: Re: Nice

    No, the fallacy is that the IP Industries are saying "We need more copyright because we make so many jobs and so much money!" The entertainment industry is trying to argue that they need to make more money to provide more jobs. The fallacy is that if those industries weren't given more money, said money could be spent creating jobs elsewhere.

     

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  53.  
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    Richard (profile), Oct 27th, 2012 @ 1:52pm

    Re: Re: Re: Nice

    The fallacy is that if those industries weren't given more money, said money could be spent creating more jobs elsewhere.

    FTFY

     

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  54.  
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    Crosbie Fitch (profile), Oct 27th, 2012 @ 2:31pm

    Re: Re: Re: Re: Congress has no power to grant copyright anyway

    >Crosby, your views are provably false.

    Excellent Carl. I have been looking forward to a proof that my argument is false for quite some time.

    >You may personally think the Constitution did not allow
    >Congress to create post-publication monopoly rights, but
    >that was clearly the intent of the Founders and the
    >Copyright Clause.

    I expect President Obama agrees with you that it is the intent of the Framers of the Constitution that should take priority over what the Constitution actually says (and means according to the language of the Framers).

    NB The Framers didn't call it the 'the copyright clause', nor did they write anything about creating rights, but I will think on your suggestion that one can prove the Constitution empowered Congress to create rights such as copyright by inferring this as the Framers' intent.

    >The Founders who wrote the Clause discussed it in terms
    >of a monopoly.

    No, I think you'll find the Framers didn't.

    Madison and Jefferson discussed copyright and patent as monopolies, which of course they are.

    There was very, very little discussion of the progress clause (at least, that was recorded).

    Madison didn't do much more discussion of the clause than this:
    http://www.constitution.org/fed/federa43.htm

    "The utility of this power will scarcely be questioned."

    In other words "Nothing to see here, please move along. Only fools will question this power.".

    "The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law."

    Those less charitable would describe this as a lie.

    If Madison implies knowledge of judgements in Britain, then no doubt Madison’s work in the Virginia state legislature (1776–79) informed him of Donaldson v Beckett (1774), the ruling in the House of Lords that denied the existence of a perpetual common law copyright and held that copyright was a creation of statute and could be limited in its duration.

    "The right to useful inventions seems with equal reason to belong to the inventors."

    Well, yes, but given the other reason is false then so is this.

    "The public good fully coincides in both cases with the claims of individuals."

    "Both privileges benefit the public, because I say so". Great argument. It should be telling that Madison feels the need to say that monopolies benefit the public. Laws that secure natural rights don't need such reassurance.

    "The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress."

    Monopolies don't work if they're only recognised in some states. And some states are so keen to enjoy monopolies, they've already legislated them.

    Anyway, despite mentioning copyright, and alluding to patent, Madison doesn't actually discuss the clause in terms of a monopoly. He doesn't even say that the clause empowers Congress to grant these privileges (it doesn't). But then he wouldn't say that would he? As he erroneously declared, copyright is a right of common law - to be secured, not a privilege to be granted. Therefore, if you want to go by Madison's intent (which is not necessarily the same thing as the reading of this clause by other Framers), Congress only has power to secure common law rights.

    > From what survives from the newspapers of the period,
    >everyone in the Colonies also viewed it as a monopoly.

    Yes, quite a lot of people recognised copyright as a reproduction monopoly. However, we're talking about the Constitutional clause, not the monopoly of copyright granted much later.

    >It's also unfortunate (for your argument) that you quote
    >Paine, because Paine believed that copyright was a natural
    >property right, not just a monopoly:

    I quote Paine because he was a contemporary of the Framers and understood natural rights, and had some very incisive things to say about them, e.g. the privileges that annulled them.

    Beliefs and intents are easy to allege, but perhaps you can quote Paine stating that Queen Anne's statute of 1709 was the recognition of a natural right, not the granting of a monopoly that abridged the people's liberty, annulling their right to copy, to leave it, by exclusion, in the hands of a few.

    "It may, with propriety, be remarked, that in all countries where literature is protected (and it cannot flourish where it is not), the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them at birth."


    I agree with Paine that one should recognise an author's intellectual work as their natural property, and that law should recognise this. It's the privilege abridging the liberty of those to whom the author gives their property that is unethical.

    >He was in the minority among the Founders, and had nothing
    >at all to do with the Copyright Clause, but it's what he believed.

    Try "The Philosophy of Paine" by Thomas A. Edison, June 7, 1925

    Tom Paine has almost no influence on present-day thinking in the United States because he is unknown to the average citizen. Perhaps I might say right here that this is a national loss and a deplorable lack of understanding concerning the man who first proposed and first wrote those impressive words, ‘the United States of America.’ But it is hardly strange. Paine’s teachings have been debarred from schools everywhere and his views of life misrepresented until his memory is hidden in shadows, or he is looked upon as of unsound mind.

    We never had a sounder intelligence in this Republic. He was the equal of Washington in making American liberty possible. Where Washington performed Paine devised and wrote. The deeds of one in the Weld were matched by the deeds of the other with his pen. Washington himself appreciated Paine at his true worth. Franklin knew him for a great patriot and clear thinker. He was a friend and confidant of Jefferson, and the two must often have debated the academic and practical phases of liberty.

    I consider Paine our greatest political thinker. As we have not advanced, and perhaps never shall advance, beyond the Declaration and Constitution, so Paine has had no successors who extended his principles. Although the present generation knows little of Paine’s writings, and although he has almost no influence upon contemporary thought, Americans of the future will justly appraise his work. I am certain of it. Truth is governed by natural laws and cannot be denied. Paine spoke truth with a peculiarly clear and forceful ring. Therefore time must balance the scales. The Declaration and the Constitution expressed in form Paine’s theory of political rights. He worked in Philadelphia at the time that the first document was written, and occupied a position of intimate contact with the nation’s leaders when they framed the Constitution.

    Certainly we may believe that Washington had a considerable voice in the Constitution. We know that Jefferson had much to do with the document. Franklin also had a hand and probably was responsible in even larger measure for the Declaration. But all of these men had communed with Paine. Their views were intimately understood and closely correlated. There is no doubt whatever that the two great documents of American liberty reflect the philosophy of Paine.

     

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  55.  
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    Not an Electronic Rodent (profile), Oct 27th, 2012 @ 2:47pm

    Re: Re: Re:

    Ty Pennington's out of a job now isn't he? Sounds like an opportunity for a new show:
    Extreme Makeover: IP Edition

    "Gooooood morning Congress family!"

     

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  56.  
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    Not an Electronic Rodent (profile), Oct 27th, 2012 @ 3:34pm

    Re: Re: Nice

    Again, so what if the money we spend on one product means we aren't spending it on another?
    Well, that's one argument I suppose, but to my mind a rather simplistic one. For a start, who's to say that the $20 (artificially propped-up) price for a CD wouldn't have been better for the economy if spent on a pair of shoes? More to the point though, is Bastiat's argument "What if the glazier is paying the boy to break the window?"
    This is exactly the situation that exists now with copyright - the glazier (copyright industries) paying the boy (governemnt) to break the window (free-market price of a copyrighted work).

    Quite apart from the moral dubiousness of that, effectively the goverment is saying the copyright industries are more important than other industries as well as more important than the unknown new industries that would most likely grow to consume some portion of the freed-up spendable money if copyright industries attained a natural equilibrium in a free market.

     

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  57.  
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    Karl (profile), Oct 27th, 2012 @ 4:56pm

    Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway

    I expect President Obama agrees with you that it is the intent of the Framers of the Constitution that should take priority over what the Constitution actually says (and means according to the language of the Framers).

    NB The Framers didn't call it the 'the copyright clause', nor did they write anything about creating rights, but I will think on your suggestion that one can prove the Constitution empowered Congress to create rights such as copyright by inferring this as the Framers' intent.


    No idea what Obama has to do with this, but whatever.

    The "copyright clause" does not mention copyright, this much is true. However, an early proposal for Clause 8 did explicitly mention copyrights: "To secure to literary authors their copy rights for a limited time." Another explicitly mentioned patents.

    Moreover, if the Clause was not meant to give Congress the right to grant post-publication monopolies, then how could it even possibly be read? "Congress shall have the Power, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their unpublished writings and discoveries?" That doesn't even make sense; it would mean that the right to unpublished works (which even the Supreme Court said was a natural right) could only be secured by Congress for "limited times," and that after that, everyone in the U.S. would have access to your unpublished works. Nobody believes this, with good reason.

    >The Founders who wrote the Clause discussed it in terms
    >of a monopoly.

    No, I think you'll find the Framers didn't.


    The Framers certainly did, and I linked to quotes from them that showed they did.

    Madison didn't do much more discussion of the clause than this:
    http://www.constitution.org/fed/federa43.htm


    Yes, he certainly did write more than that. In the comment I linked to, I quoted Jefferson and Madison specifically talking about copyright. Here's the exchange:
    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.
    - Thomas Jefferson to James Madison, July 31, 1788

    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? Is there not also infinitely less danger of this abuse in our Governments, than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many and not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.
    - James Madison to Thomas Jefferson, October 17, 1788


    Yes, quite a lot of people recognised copyright as a reproduction monopoly. However, we're talking about the Constitutional clause, not the monopoly of copyright granted much later.

    All of the sources I quoted were from when the Continental Convention was still in session, or during the ratification debates. None were from after the Copyright Act of 1790 was enacted.

    I agree with Paine that one should recognise an author's intellectual work as their natural property, and that law should recognise this. It's the privilege abridging the liberty of those to whom the author gives their property that is unethical.

    Hmm. You might be right about this, actually. Here's the letter from Paine to the Abbe Raynal in full. This is what Paine believed the "legal property" of authors to be:
    A man's opinions, whether written or in thought, are his own until he pleases to publish them himself; and it is adding cruelty to injustice to make him the author of what future reflection or better information might occasion him to suppress or amend. There are declarations and sentiments in the Abbe's piece, which, for my own part, I did not expect to find, and such as himself, on a revisal, might have seen occasion to change, but the anticipated piracy effectually prevented him the opportunity, and precipitated him into difficulties, which, had it not been for such ungenerous fraud, might not have happened.

    So, it appears Paine's "legal property" was the right of first publication, and something closer to the "droit d'auteur" in European law (i.e. the right to be free of inaccuracy). And not any sort of post-publication monopoly right.

    Still, as I said, his particular viewpoint had nothing to do with the "copyright clause." He wasn't at the Convention, did not have a hand in writing it, and never commented on it.

    This is not to say that Paine's viewpoints were not important - they certainly were. Just not in regards to Article 1, Section 8, Clause 8.

     

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  58.  
    identicon
    Anonymous Coward, Oct 27th, 2012 @ 10:17pm

    Re:

    If you're really against theft you would be opposed to IP laws. IP laws steal my rights in favor of corporate interests, they're a way of telling me what I can't do with my own property in the sole interests of others, and that's theft. I've been denied my natural right to do what I please for the sole of someone else, I'm being denied something, and that's the definition of theft.

    Sorry, if you support IP you are the one supporting theft. I'm against theft which is why I'm mostly against.

     

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  59.  
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    Anonymous Coward, Oct 27th, 2012 @ 10:17pm

    Re: Re:

    mostly against IP *

     

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  60.  
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    Anonymous Coward, Oct 27th, 2012 @ 10:18pm

    Re: Re:

    for the sole benefit of someone else *

     

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  61.  
    identicon
    Anonymous Coward, Oct 27th, 2012 @ 10:18pm

    Re: Re:

    (I'm being denied something that naturally belongs to me)

     

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  62.  
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    Crosbie Fitch (profile), Oct 28th, 2012 @ 3:04am

    Re: Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway

    > No idea what Obama has to do with this, but whatever.

    My point is that if you start claiming that the Framers' intent supersedes the Constitution you can get away with murder. 'Intent' is highly malleable, to say the least. Have you heard of the 'disposition matrix'?

    > Moreover, if the Clause was not meant to give Congress the
    > right to grant post-publication monopolies, then how could it
    > even possibly be read?

    As Madison said, copyright has been adjudged to be a right of common law, i.e. and so to be SECURED because we are recognised to already have it. The clause only allows Congress to SECURE the right authors already have, i.e. their natural right to exclude others from their writings.

    For limited times is not at all at odds with the limited time of the author's natural lifespan.

    NB Corporations are not natural beings and so have no natural rights to be secured, whether you would class them as authors or not.

    > after that, everyone in the U.S. would have
    > access to your unpublished works.

    An author cannot naturally exclude others from their writings beyond the grave. To believe they could would require them to be imbued with supernatural powers.

    No doubt the inheritors of the author's estate would appoint an executor to share out any writings found, perhaps influenced by an author's previously declared preferences.


    > The Framers certainly did, and I linked to quotes from them
    > that showed they did.

    They weren't discussing the Constitutional clause. They were angsting over the utility of monopolies.

    > Yes, he certainly did write more than that.

    Yes, plenty, but not about the clause.

    Remember, we're talking about the clause, not monopolies.

    Jefferson was suggesting to Madison that he insert something into the Bill of Rights saying that monopolies may be granted to authors and inventors. Madison did not do so.

    That is wholly different from the progress clause.


    > All of the sources I quoted were from when the Continental
    > Convention was still in session, or during the ratification
    > debates. None were from after the Copyright Act of 1790 was enacted.

    Discussion between Madison & Jefferson concerning monopolies is a separate issue from discussions among the Framers concerning the intent/meaning/purpose/utility of the progress clause in the Constitution.

    I have always agreed that Madison was keen to see copyright & patent legislated by Congress. This does not mean all the other Framers were, and nor does it mean that the progress clause would be understood by those Framers as doing any more than securing a right authors were endowed with by nature.

    Bear in mind that if Madison had written the clause as "To grant to authors and inventors monopolies over the reproduction, communication and use of their work" then it would have been immediately struck out by other Framers.


    > Still, as I said, his particular viewpoint had nothing to do
    > with the "copyright clause." He wasn't at the Convention, did
    > not have a hand in writing it, and never commented on it.
    >
    > This is not to say that Paine's viewpoints were not important
    > - they certainly were. Just not in regards to Article 1,
    > Section 8, Clause 8.

    I quote Edison to emphasise that it is by no means unfortunate to quote Paine with respect to understanding the meaning of the US Constitution - including the meaning of the progress clause.

    The Declaration and the Constitution expressed in form Paine’s theory of political rights. He worked in Philadelphia at the time that the first document was written, and occupied a position of intimate contact with the nation’s leaders when they framed the Constitution.

    Certainly we may believe that Washington had a considerable voice in the Constitution. We know that Jefferson had much to do with the document. Franklin also had a hand and probably was responsible in even larger measure for the Declaration. But all of these men had communed with Paine. Their views were intimately understood and closely correlated. There is no doubt whatever that the two great documents of American liberty reflect the philosophy of Paine.

     

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  63.  
    identicon
    The Real Michael, Oct 28th, 2012 @ 5:35am

    Re: Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway

    "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.
    - Thomas Jefferson to James Madison, July 31, 1788"

    So Thomas Jefferson is basically confirming what we already knew: that copyright grants authors a limited monopoly, and expressed his doubts as to whether such government-granted protectionism would be beneficial. Ironic that we're funding the copyright enforcement, indirectly through taxation, which seeks to harm us by either litigation or corporate censorship. So much for "promoting the progress of science and useful arts."

     

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  64.  
    identicon
    Christopher, Oct 28th, 2012 @ 6:01am

    14 years in my opinion is still too long considering the ease of creation of derivative works today.

    5-7 years (with a stipulation that the thing in question has to be sold in all current major methods of distribution including the internet) would be better.

     

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

  65.  
    identicon
    abc gum, Oct 28th, 2012 @ 11:40am

    Re: Re: Re:

    You have described the condition of much infrastructure due to lack of maintenance, however that is hardly an accurate assessment of our government - which what the post was addressing.

     

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  66.  
    icon
    Karl (profile), Oct 28th, 2012 @ 11:56am

    Re: Re: Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway

    My point is that if you start claiming that the Framers' intent supersedes the Constitution you can get away with murder.

    I'm saying that if there is any doubt about what the Constitution says, you look to the intent of the people who wrote it. Courts do this all the time, by looking at the Congressional record if, say, a word in the statutes has more than one meaning, and a case depends on which meaning you choose.

    It's pretty clear in this case that Clause 8 was written specifically to address post-publishing monopoly rights.

    As Madison said, copyright has been adjudged to be a right of common law

    Madison was likely talking about Millar v. Taylor, the English case that thought the Statute of Anne had removed artists' common-law copyrights. It was overturned in Donaldson v. Beckett. Why Madison said this is a subject of some controversy:
    In light of the decision in Donaldson v. Beckett, Madison’s statement that copyright had been adjudged to be a common-law right is problematic. It has been suggested that Madison was relying on the first American edition of Blackstone’s Commentaries, which reported the decision in Millar v. Taylor, but not its subsequent overruling in Donaldson. It has also been suggested that Madison was relying on Burrow’s report of the Donaldson case, in which it was reported that the advisory judges were of the opinion that copyright was a common-law right, but one that had been divested by the Statute of Anne. It is also possible that Madison was referring only to the common-law right of first publication; or that he was simply trying to win the support of those who believed that copyright was a natural right. In any case, Madison later took the position that the English common law was deliberately not made applicable in the United States by the new Constitution. This seems to preclude any argument that Madison believed that the Clause was "securing" a pre-existing right.

    - Anti-Monopoly Origins of the Patent & Copyright Clause, Ochoa and Rose (PDF)

    For limited times is not at all at odds with the limited time of the author's natural lifespan.

    Except it doesn't actually say "the author's natural lifespan," nor even suggest it, and none of the discussion around the Clause even mentions it.

    No doubt the inheritors of the author's estate would appoint an executor to share out any writings found, perhaps influenced by an author's previously declared preferences.

    Again, such a thing is not even mentioned by anyone involved with the Clause. Not just from when the Clause was created, but at any time in their entire lives.

    They weren't discussing the Constitutional clause. They were angsting over the utility of monopolies.

    No, they were "angsting" about the utility of one specific kind of monopoly - the post-publication monopoly on works, granted to authors and inventors, to act as an incentive to create useful works.

    Jefferson was suggesting to Madison that he insert something into the Bill of Rights saying that monopolies may be granted to authors and inventors. Madison did not do so.

    That is not at all the case. Jefferson (with George Mason and others) wanted something inserted into the Bill of Rights that said that the federal government could not grant monopolies under any circumstances. Jefferson and Madison were arguing because such an Amendment would conflict with the already-existing "copyright clause."

    Bear in mind that if Madison had written the clause as "To grant to authors and inventors monopolies over the reproduction, communication and use of their work" then it would have been immediately struck out by other Framers.

    Except that such language (or similar) was in the earlier drafts of the Clause, so the Framers certainly knew what was being discussed, and they didn't strike it out.

    You're also ignoring the Continental Congress Resolution of 1783, authored by Hugh Williamson, Ralph Izard, and James Madison. Its preamble repeated almost verbatim the justifications of Joel Barlow, and most certainly was talking about a post-publication monopoly:
    Resolved, that it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administrators and assigns, the copyright of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors, or publishers, their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper.

    This recommendation was not "immediately struck out." In fact, it was a driving force behind the copyright laws in serveral states.

    The Declaration and the Constitution expressed in form Paine’s theory of political rights.

    This is unquestionably true. But that's not just what they did. And I think it's what is causing some of the confusion.

    Remember, at the time, the rights granted to the Government in the Constitution were considered the only powers the Government would ever have. The Framers had a much narrower view of the Constitution and the federal government than we do in the modern day. They believed that if the government wasn't explicitly granted a power through the Constitution, then that power was disallowed. (See e.g. the debates about the First Amendment, specifically the arguments of those who thought it unnecessary.)

    Protecting the natural rights of its citizenry is certainly an important part of the Constitution - in fact, that is paramount. But there are plenty of Clauses that were inserted, not for "natural rights" reasons, but for purely utilitarian reasons. The "copyright clause" should be read as one of those.

    Nobody in their right mind thinks that the Constitution was protecting "natural rights" in e.g. Clause 7, "To establish Post Offices and post Roads;" or the latter part of Clause 5, to "fix the Standard of Weights and Measures." The "copyright clause" should be read the same way: as a purely utilitarian power of a functional government - not as the protection of any sort of "natural right."

     

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  67.  
    icon
    Andrew F (profile), Oct 28th, 2012 @ 12:11pm

    Const. Amendments

    The funny thing about a Constitutional Amendment is that you have to persuade something like 2/3 of Congress and 3/4 of the states to go along with it. And if you had that much of Congress behind you, copyright laws probably wouldn't be so ridiculous to begin with.

     

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

  68.  
    icon
    jameshogg (profile), Oct 28th, 2012 @ 4:03pm

    Copyright law is the true pirate of this world.

    You would think physical property rights were self-evident: if everything was free, then nobody would win (however, that doesn't mean that each human being on the planet is not entitled to a fair share of resources on the planet: this is the origin of the left-right wing economic clash). So it is only fair that if I buy paper and ink, that paper and ink belongs to me.

    However, intellectual property doesn't work like this: it hijacks physical property rights and transcends them. It means that if you were to write a book, a fraction of the ink and paper in my possession somehow "belongs" to you. And the ink and paper of everyone else in the country for that regard. Intellectual property can only make sense if there were some way to represent it without using physical property, if it in itself was a "thing", but it's not. You need physical property in order to represent intellectual property. Even if I read aloud a book I still have to use sound waves and air, and even if I did not write a word of the book and had the entire intellectual property in my mind, I still need the neurons in my brain to think about it, meaning that there is no way around the hijacking of physical property.

    And technically copyright law would mean that you get to possess... a fraction of ALL the material there is in the universe. Even materials that cannot be branded as property, such as air, countryside grass, rain, snow, rocks, weeds and common dirt ("I saw this sign by the side of the road that said 'Dirt for sale.' Wow. What a country we live in, eh? 'DIRT... for sale!' Boy, how'd you like to get inside this guy's mind and look around for a while, huh? 'Oh my God! HONEEEYYY! Honey quit servin' waffles and come here baby! I'm gonna sell DIRT! Look! It's everywhere!' " - Bill Hicks) This is a behaviour in common with copyright lobbyists trying to take public domain works out of the public domain and copyrighting them again.

    This is stupid. Obviously if you want to solve the free-rider problem stemming from the mismatch between the hard work of labour and the ease of copying, or the so-called "tragedy of the commons", you get your consumers to all pay simultaneously: all-or-nothing crowdfunding (and something similar for patents: socialised R and D that would benefit even better on a global scale). After all, all-or-nothing crowdfunding has been around since cinema-goers could claim refunds on their tickets if the movie gets cancelled for some reason. Same with music gigs, theatre gigs, book events, any kind of creative show! So we DO HAVE EVIDENCE that it works, and plenty of it.

     

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  69.  
    icon
    Kevin (profile), Oct 28th, 2012 @ 6:03pm

    They will do whatever it takes

    To say that Congress can't do this or that is fruitless. They will do whatever they want unless someone stops them, and apparently no one is willing.
    Constitutions are only as good as those who are suppose to protect them.
    Both sides of politics apparently have disregard for the constitution if it does not suit them or their financial supporters.
    The problem with the USA constitution is amendments are made by legislators in all states and only they have the power to vote on the issue. Not what one could call democratic.
    In Australia to change the constitution requires a each state to hold a public vote and requires a majority vote in a majority of states. This hands the whole constitution in the hands of the people not the elected legislators, most of which have vested interests.

     

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

  70.  
    icon
    Crosbie Fitch (profile), Oct 29th, 2012 @ 3:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Congress has no power to grant copyright anyway

    > I'm saying that if there is any doubt about what the
    > Constitution says, you look to the intent of the people who wrote it.

    Those who ratified the Constitution did so according to what it said (and meant according to the language of the time).

    Each clause wasn't attributed to specific authors, with the implication that each clause should have been read whilst inferring the intent and ulterior motive of each specific author.

    > It's pretty clear in this case that Clause 8 was written
    > specifically to address post-publishing monopoly rights.

    You mean the privilege of a state granted monopoly I take it?

    Madison may well have written the clause to enable him to later re-enact the Statute of Anne along with patent law, but Madison's intent is not the same as the understanding of those who ratified the Constitution.


    > Madison was likely talking about Millar v. Taylor, the
    > English case that
    > thought the Statute of Anne had removed artists' common-law
    > copyrights. It
    > was overturned in Donaldson v. Beckett. Why Madison said this
    > is a subject of some controversy:

    As you keep telling me, Madison and Jefferson knew that the Statute of Anne and patents were state granted monopolies. Madison wasn't expressing his knowledge, he was merely stating a fact (at odds with his knowledge), that he was highly likely to know had been overturned by a more recent 'solemn judgement'.

    If you know the Statute of Anne is a state granted monopoly, and consequently that there is no such thing as a common law right to prohibit others making fair copies of one's published works (or otherwise communicating/performing them), and yet you state that it "has been solemnly adjudged to be a right of common law" then you are misdirecting your audience (others call it lying).

    > It has also been suggested that Madison was relying on
    > Burrow's report of the Donaldson case, in which it was reported
    > that the advisory judges were of the opinion that copyright was
    > a common-law right, but one that had been divested by the
    > Statute of Anne.

    Madison wrote the clause for an audience some of which he considered would be operating on the assumption that there was a common law right - that Congress should have power to later secure for limited times (by a copy of the Statute of Anne).

    > In any case, Madison later took the position that the English
    > common law was deliberately not made applicable in the United
    > States by the new Constitution.

    This stands to reason in any case. There is no law preceding the Constitution aside from natural law - the rights people are born with.

    > This seems to preclude any argument that Madison believed
    > that the Clause was "securing" a pre-existing right.

    Again, the meaning of the clause is not determined by what Madison believed. Madison knew well that there was no common law right.

    However, a clause that empowered Congress to grant monopolies would have rung alarm bells in readers.

    The clause didn't empower Congress to grant monopolies, but Madison knew it would easily be enough to allow him/Congress to pass the Statute of Anne (and patents similarly) knowing that many others believed this constituted the securing of common law rights - which the clause empowered Congress to do.

    > Except it doesn't actually say "the author's natural lifespan," nor even
    > suggest it, and none of the discussion around the Clause even mentions it.

    You were asking how the clause should be read: "Moreover, if the Clause was not meant to give Congress the right to grant post-publication monopolies, then how could it even possibly be read?"

    I suggested how.

    > That is not at all the case. Jefferson wanted something inserted into
    > the Bill of Rights that said that the federal government could not grant
    > monopolies under any circumstances.

    I like [the declaration of rights] as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me:
    [...]
    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.


    > Except that such language (or similar) was in the earlier drafts of the
    > Clause, so the Framers certainly knew what was being discussed, and they
    > didn't strike it out.

    By 'Framers' here, I assume you mean Madison and his cronies?

    Yes, there were a few variations of the clause proposed, which indicates that the clause eventually selected was carefully chosen to maximise its chances of being ratified ('scarcely questioned').

    > This recommendation was not "immediately struck out." In fact, it was a
    > driving force behind the copyright laws in serveral states.

    That reproduction monopolies were favoured in various states (including Madison's) prior to the Constitution is not in dispute. It is similarly likely they were also sanctioned on the invalid basis of securing a common law right.

    Few people today know that people used to think the Statute of Anne was seen as an abridgement of an author's (presumed) natural right to veto reproductions of their work. See http://culturalliberty.org/blog/index.php?id=49

    > Nobody in their right mind thinks that the Constitution was protecting
    > "natural rights" in e.g. Clause 7, "To establish Post Offices and post
    > Roads;" or the latter part of Clause 5, to "fix the Standard
    > of Weights and
    > Measures." The "copyright clause" should be read the same way: as a purely
    > utilitarian power of a functional government - not as the protection of any
    > sort of "natural right."

    Those utilitarians in support of copyright may like to do as you suggest, however this does not mean that this is how those who ratified the Constitution read the clause.

    It is a rather weak ending for you to conclude that a clause empowering Congress to secure authors' and inventors' rights would be read by them in the same sense as a clause empowering Congress to establish post offices.

    Bear in mind that the grant of a monopoly is a priori an abridgement of liberty, whereas the securing of a natural right is not. Rights are not mere public utilities.

     

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  71.  
    icon
    Niall (profile), Oct 29th, 2012 @ 6:21am

    Re: Re: Re: Re: Re:

    That's ok, you're only English ;)

     

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  72.  
    icon
    Niall (profile), Oct 29th, 2012 @ 6:22am

    Re: Re:

    So no-one ever knocks down old housing to make room for new. Gotcha.

     

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

  73.  
    icon
    Tim Griffiths (profile), Oct 29th, 2012 @ 6:30am

    Re: Re: Nice

    "so what if the money we spend on one product means we aren't spending it on another?"

    Exactly. What makes the copyright industry so special they can argue that the government has to change the law in an attempt to make more people spend more money on their products over other products?

    Their argument boils down to this "People are spending less money on our products so we are losing jobs, we think stronger copyright law will let us make more money so we can create jobs" thing is that this logic extends past the copyright industry and in the economy.

    If it's true that stronger copyright laws would make more people spend money on copyright work that means by their logic that stronger copyright laws would move money away from other industries costing those other industries jobs. What makes the copyright industry special that their ability to create jobs is more important? In your words, so what if people are spending money else where?

    Yet this economic argument is used as a base for expanding laws that are meant to be short term exceptions to public rights. It means that the interests of the small group are being placed above those of the public and the wider economy and no one is providing a reason to why other than "because".

     

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