Why Copyright Shouldn't Be Considered Property... And Why A Return To 1790 Copyright May Be Desirable

from the bold-moves dept

We recently mentioned that Jerry Brito of the Mercatus Center at George Mason University was publishing a book about the "free market case for copyright reform," called Copyright Unbalanced: From Incentive to Excess. It's now available at Amazon. They also have a free chapter available on the site. Brito was kind enough to send me an advance copy of the short book, and it's a worthwhile read.

Not surprisingly, it fits in quite well with our ongoing discussion of the recent RSC paper by Derek Khanna, and more specifically our recent discussions on why it makes little sense to assume that copyright is property in economic terms. As we've noted, it has some property-like attributes and many non-property-like attributes. Ignoring the non-property-like attributes, even though they have vast economic implications, is a huge mistake, and basically means ignoring fundamental economics.

Those posts have led to some interesting (and some less interesting) discussions in the comments. And, in a bit of perfect timing, Brito's latest edition of his "Surprisingly Free" podcast is with law professor Tom Bell and makes one of the absolute best arguments I've heard -- from the legal perspective -- for why it's an absolute mistake to claim that copyright is property, contrary to the claim of some of the amateur lawyers in our comments. Seriously, just listen to the podcast, but I'll highlight a few snippets.
Copyright is not quite like other types of property. It has some similarities, to be sure, but at its root it is fundamentally different than tangible property like fields and houses and cars and computers. And that's because it is non-rivalrous in consumption. Copyright is a special kind of economic good and special kinds of rules should therefore apply to it. Among those rules, you should have those that take into account that you can have too much copyright....
That, of course, is really no different than what we've said for a while. It has property-like attributes, but many non-property like attributes as well. Brito then makes the argument that copyright is a form of property, and then Bell highlights a few more differences about where copyright originates legally speaking, and also highlights some similarities.
I don't want to get into a semantic discussion, but I am not completely comfortable with calling copyright property. Simply saying property. I don't even like the phrase intellectual property. I prefer intellectual privilege. I think copyright is a privilege, because it's created by statute, it doesn't exist in a state of nature, it's not recognized by common law. It's purely the creature of statute and you can't say that about the sorts of property rights we enjoy in our persons and in our farms and our cars and computers. Those rights, the rights in those forms of tangible property... you can't deny they're protected at the common law. And many people, me among them, would say that they're protected in a state of nature....

Important ramifications follow from what you call copyright. Me? I like to say it's a privilege that has certain property-like aspects and indeed the best things about copyright -- and there's a lot to like about copyright -- are those features that most resemble property. It's alienable, you can transfer it to other people, you can go to the copyright office and check to see who owns the copyright. There is something like trespass afforded to people who suffer wrongful use of their property. Wonderful things. That's the best thing about copyright.
Brito points out, in response, that there are other "intangible" forms of property, naming taxi medallions and tradeable emissions permits. Bell points out that those often are not considered property.
I was just talking to someone who works out here in Southern California in the local regional air quality control board, and we got into this conversation, and he said "we don't call them property, we don't even call them privileges, we call them permits" I said "well you can buy and sell permits" and he said "there are some things that are like property, but we don't call them property, because we don't want the state thinking, for example, we can't change the rules without suffering a takings claim." And that's true of copyright as well. Look, if Congress decides tomorrow, that we're going to just stop copyright -- they won't, but they might say, per some of the suggestions, of our reformers in our book -- we're going to tinker around the edges, and maybe, just once, around the edges, trim back the restrictions. If they did that, would they face a takings claim? No, no! It's just not part of common law...
This is interesting, because I had actually believed that copyright likely would be covered by a "takings" claim (i.e., a prohibition under the 5th Amendment on "taking" away some property). But as Bell notes, since copyright is not subject to common law, it seems wrong -- and to him, preposterous -- that it would be subject to a takings claim. Of course, just watch: I bet if copyright is trimmed back, the entertainment industry will bring a case under this very theory.

Bell then goes on to point out why, if such a "takings" claim was allowed, there would be a pretty big Constitutional problem very quickly. And it stems from the "limited times" clause under copyright. You'd have a bit of a conflict there, wouldn't you?
Let's recognize, that if you take that approach to copyright, you pretty quickly run into a tough paradox. And it's that the Constitution, says that "only for limited times" shall lawmakers protect these works of authors. So if you're a fan of real property, intangible property, as I am, you don't want to hear about lawmakers saying "we're putting a fuse on your property rights in your house or your car or your computer. We're going to let you have property rights for, oh, maybe 20 years and then 'poof' it's gone, anybody can take it." No, we would take exception if the federal government said that policy with regard to our 401ks or our houses or cars, and for good reason. Yet that's the policy we have copyrights, and it's by design. It's in the Constitution. It's as if the Constitution had a clause that said 'oh also, property rights in your farms and factories and houses -- yeah, we're going to end all those after 34 years.' That's not how they treat tangible property. We're glad of that. And yet that is how we treat copyright and I think we should be glad of that.
From there, Bell goes on to talk about the recommendations he makes in the book for how copyright should be reformed -- and he definitely goes pretty far out there with them:
  1. Reinstate the Founders’ Copyright Act,
  2. Withdraw the U.S. from the Berne Convention,
  3. Develop misuse doctrine into an escape from copyright,
  4. Focus copyright policy on consumers’ costs, not producers’ profits, and
  5. Reconceive “IP” as “Intellectual Privilege.”
The discussion on those is very interesting, both in the book and in the podcast. I won't spoil it all for you yet, but I will say that, yes, he's talking about going back to what copyright law was in 1790 -- meaning that it only lasts for two 14 year terms, and that it should cover only "maps, charts and books" since that's what the founders intended. Also, infringement only happened if you copied the entire thing. Copying a section was fine. Interestingly, Bell's next book (also published by Mercatus) will apparently be published under those exact terms. As for why other things shouldn't be covered, well, he notes that the founders didn't appear to think such expressive works like music, painting and sculpture required copyright, and it's not clear why that should have changed.

There's also the "misuse" doctrine aspect, which is fascinating, in that he thinks it could act as a form of "training wheels" for a world without so much reliance on copyright:
How can misuse doctrine open an escape from copyright? The doctrine bars claims of copyright infringement that arise under conditions of misuse. It does not, however, bar claims premised on violations of common-law rights, such as trade secrets or the contractual terms of a license. In effect, misuse doctrine corrects the overweening power that results from combining copyright privileges with common-law rights, by negating only the former. Suppose for instance that a copyright holder wrongly tried to squelch rights protected by the First Amendment and the fair use doctrine by including in its license a clause forbidding public criticism of the work. A court might remedy that misuse by denying the considerable enforcement powers afforded by the Copyright Act even while leaving the underlying contract in force. In practical terms, the dispute would become a matter of state contract law rather than federal legislation. Repeated applications of the same doctrine in other cases would eventually encourage the development of business models premised solely on contract law, tort law, trade secret law, and other common-law devices. Misuse thus opens an escape from a world where copyright comprehensively regulates access to expressive works to one where only common-law rules apply
I'm not sure I fully agree with that -- and I can actually see how contract law could create a worse scenario (in which things like fair use, first sale, etc. would not be allowed). But it is a thought-provoking discussion.

One other point that was quite interesting. Bell argues that when you claim that copyright is "property" you actually harm real property rights, because things like fair use, first sale and other such "exceptions" suggest that it's equally fine to create similar exceptions to real property, and that's a road that we shouldn't want to travel down.

If you'd actually like to see that discussion live and want to see some sparks fly, the Cato Institute is hosting a discussion of the book with Brito and Bell, and moderated by Jim Harper... but also with the RIAA's Mitch Glazier to (I am guessing) argue strongly against all of this. I imagine that ought to be entertaining, and it appears they'll be streaming the whole thing live online, Thursday at noon ET, 9am PT. Should be a fun time.


Reader Comments (rss)

(Flattened / Threaded)

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    Anonymous Coward, Dec 5th, 2012 @ 9:45am

    not going to happen, sorry

     

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    S. T. Stone, Dec 5th, 2012 @ 9:45am

    I don't even like the phrase intellectual property. I prefer intellectual privilege.

    Dear Techdirt: can you make this an actual thing you do on your site?

     

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      Anonymous Coward, Dec 5th, 2012 @ 9:57am

      Re:

      I favour "intellectual protectionism", myself.

       

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      Kenneth Michaels, Dec 5th, 2012 @ 10:19am

      Intellectual Property

      In law school, I was taught that there are two types of property: real and personal. End of story.

      The is no "intellectual property" per se, there is only copyright, patents, trademarks, trade secrets, etc. The term "intellectual property" was only used as a convenience to group these intangible things, and the word "property" was used because of some vague similarities to real or personal property. The word "intellectual" was used to take the grouping of these things out of and away from the full meaning of "property." The term "intellectual property" was never intended to suggest that copyright, patents, trademarks, etc., are a type of property along with real and personal property.

      There is no issue of whether copyright is "property" or not. Copyright is copyright. Patents are patents. Trademarks are trademarks. Owners of these intangibles are granted a "bundle of rights" that are simply not "property." I suggest moving away from the term "intellectual property" entirely and using the proper term under the circumstances: copyright, patent, trademark, trade secret, etc. There is no need for the term "intellectual property."

      The term "intellectual property" is being used by some to convince others that copyright, etc., is "property." It is a clever use of language, a wrong use of language, and it should be avoided.

       

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        Anonymous Coward, Dec 5th, 2012 @ 10:56am

        Re: Intellectual Property

        "In law school, I was taught that there are two types of property: real and personal. End of story."

        Oh god, you've done it now. AJ who is STILL in law school is going to flip his lid over this comment and go off on you too til you are forced to respond just to get him to quit derailing threads.

         

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          average_joe (profile), Dec 5th, 2012 @ 11:35am

          Re: Re: Intellectual Property

          "In law school, I was taught that there are two types of property: real and personal. End of story."

          Oh god, you've done it now. AJ who is STILL in law school is going to flip his lid over this comment and go off on you too til you are forced to respond just to get him to quit derailing threads.


          Cute. I learned it two different ways.

          In the common law, there are two kinds of property: real and personal. Copyright falls under the rubric of personal property (specifically intangible personal property).

          In the civil law, there are three kinds of property: common, public, and private. Copyright falls under the rubric of private property (specifically incorporeal movable private property).

           

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            silverscarcat (profile), Dec 5th, 2012 @ 4:58pm

            Re: Re: Re: Intellectual Property

            Wow, I'm impressed.

            No, seriously, I am.

            You managed to give a concise point and rebuttal, no attacks to anyone in the response and kept on track.

            That was very good, a_j. If you kept up like that then people will respect you some more.

             

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            JEDIDIAH, Dec 5th, 2012 @ 7:54pm

            Re: Re: Re: Intellectual Property

            > Copyright falls under the rubric of private property

            That's certainly what you want the world to believe. Except it's not really the case. The whole "expiration" aspect of copyrights and patents bode ill for everyone's genuine property rights if this conflation continues to it's logical end.

            Personal property rights don't expire.

             

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              average_joe (profile), Dec 6th, 2012 @ 5:17am

              Re: Re: Re: Re: Intellectual Property

              Personal property rights don't expire.

              Of course they do. Lease an apartment for a year. You have property rights in that apartment (right of use, possession, etc.). Those rights expire when the lease expires. Property just means your rights in a thing.

               

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  • This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Dec 5th, 2012 @ 9:47am

    Copyright is a grant of limited property rights for limited time.

    Copyright simply recognizes the rights of whoever created a work. That's recognition, not the creation of any rights. Copiers have no natural nor commercial rights.

    Mike's position on copyright is to effectively abolish it: he advocates that Megaupload should be able to host files of someone else's data and provide that data to people who haven't paid any of the production nor even bandwidth costs! He wants Megaupload getting both advertising and direct payments for premium speeds. That's grifting.

    Clear fact is that Megaupload did NOT put any money or effort into the creation, and that Big Media or whoever did. Once you accept those facts -- not that you pirates do, you just go off on wild tangents and ad hom -- then Mike's position on Megaupload falls apart. Therefore his position on ALL of the topic is mistaken: you can't have such a blatant rip-off of the producers in favor of second-hand grifting and still be in favor of copyright as is claimed.

     

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      Leigh Beadon (profile), Dec 5th, 2012 @ 9:51am

      Re: Copyright is a grant of limited property rights for limited time.

      Copyright is a grant of limited property rights for limited time. Copyright simply recognizes the rights of whoever created a work. That's recognition, not the creation of any rights.

      Um, so which is it? A grant, a recognition, or a creation? How can it be a "grant of rights" and a "recognition of rights" at the same time?

      And if it is, as you claim, a recognition -- please explain what that means. I assume you mean it is a recognition of natural rights, but I have no idea what natural rights you are referring to.

       

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        S. T. Stone, Dec 5th, 2012 @ 9:53am

        Re: Re: Copyright is a grant of limited property rights for limited time.

        Shhh, you don't want to confuse the poor fellow with logic. He might have an anuerysm, and Techdirt can't afford to lose its best troll.

         

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          Forest_GS (profile), Dec 5th, 2012 @ 10:35am

          Re: Re: Re: Copyright is a grant of limited property rights for limited time.

          Yeah, I'm starting to see some positive results to having at least one opinion on topics that is the opposite of the article.

          The people that reply to those trolls will have more appropriate responses towards the real threats in the long run.

           

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            Lowestofthekeys (profile), Dec 5th, 2012 @ 10:44am

            Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

            I just had a Keanu Reeves conspiracy moment:

            "What if OOTB is a bot invented to provide a polar opposite view to Techdirt debates"

             

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              S. T. Stone, Dec 5th, 2012 @ 10:54am

              Re: Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

              …whoa.

               

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              in_to_the_blue, Dec 5th, 2012 @ 3:59pm

              Re: Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

              shoot, then i'd be their equivalent, except, well, the opposite viewpoint, but equally bonkers

               

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                in_to_the_blue, Dec 5th, 2012 @ 4:00pm

                Re: Re: Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

                so who's the middle/fence-sitter bot?

                 

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                  in_to_the_blue, Dec 5th, 2012 @ 4:01pm

                  Re: Re: Re: Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

                  (i guess their name would be just blue)

                   

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            fogbugzd (profile), Dec 5th, 2012 @ 2:13pm

            Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

            I believe critics are necessary for any intellectual community to thrive in the long term. Ootb occasionally does raise a valid point. I probably shouldn't mention it because he might leave if he realized that he is actually helping TD get better and stronger.

             

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              MrWilson, Dec 5th, 2012 @ 9:26pm

              Re: Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

              Don't worry. I've pointed it out to OOTB several times that the absurdity and inanity of his arguments makes Mike seem even more rational than he already does. It doesn't seem to have put a dent in his willingness to troll the comment threads.

              The troll, amongst all dog's internet creatures, is a resilient beast.

               

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        Shadow Dragon (profile), Dec 5th, 2012 @ 10:33am

        Re: Re: Copyright is a grant of limited property rights for limited time.

        Remember,OOTB shows signs of histrionic disorder.

         

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      Anonymous Coward, Dec 5th, 2012 @ 9:59am

      Re: Copyright is a grant of limited property rights for limited time.

      he advocates that Megaupload should be able to host files of someone else's data and provide that data to people who haven't paid any of the production nor even bandwidth costs!

      Oh, you mean like Google Drive, Dropbox, Cloudee, AWS ... the list goes on and on. Your blaming Megaupload for the actions of its users. No different than blaming the telco. for phoned in bomb threats.

       

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        Philip (profile), Dec 5th, 2012 @ 10:00am

        Re: Re: Copyright is a grant of limited property rights for limited time.

        * "Keep me sign in" likes to forget ... And it's "You're blaming..." Oops.

         

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      The Infamous Joe (profile), Dec 5th, 2012 @ 10:08am

      Re: Copyright is a grant of limited property rights for limited time.

      What does this have to do with MegaUpload at all?

      As has been said over and over again, copyright does not give the creator any rights. None. Not one. All copyright does is take away the rights from other people.

       

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        Anonymous Coward, Dec 5th, 2012 @ 12:43pm

        Re: Re: Copyright is a grant of limited property rights for limited time.

        So it's not so much property as it is a form of property seizure from the public at large.

         

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          MrWilson, Dec 5th, 2012 @ 9:27pm

          Re: Re: Re: Copyright is a grant of limited property rights for limited time.

          This is the greatest irony about copyright. Those who scream the loudest about "theft" are the actual thieves.

           

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      Anonymous Coward, Dec 5th, 2012 @ 10:14am

      Re: Copyright is a grant of limited property rights for limited time.

      1) Mike does not support abolishing copyrights, you know this, but keep repeating the same crap
      2) "not that you pirates do you just go off on wild tangents and ad hom" - like you're doing right now and in just about every post from you?

       

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        Shadow Dragon (profile), Dec 5th, 2012 @ 10:35am

        Re: Re: Copyright is a grant of limited property rights for limited time.

        I think OOTB is attention starved.

         

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          Mr. Applegate, Dec 5th, 2012 @ 11:49am

          Re: Re: Re: Copyright is a grant of limited property rights for limited time.

          "I think OOTB is attention starved."

          Well I say lets help carry that forward. No replies EVER to OOTB. Maybe he will wither and die from a lack of attention.

          It's not like he EVER has a valid point. Hell, it is normally obvious he doesn't even bother to read the posts (half the time I don't' think he reads the headline either).

           

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            in_to_the_blue, Dec 5th, 2012 @ 4:02pm

            Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

            i think they'll keep responding even if you ignore them, it's their paycheck after all

             

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              Mr. Applegate, Dec 5th, 2012 @ 6:41pm

              Re: Re: Re: Re: Re: Copyright is a grant of limited property rights for limited time.

              That may be true, but I bet their paycheck shrinks and disappears if it generates no responses and is always buried.

               

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        Anonymous Coward, Dec 5th, 2012 @ 3:48pm

        Re: Re: Copyright is a grant of limited property rights for limited time.

        1) Mike does not support abolishing copyrights, you know this, but keep repeating the same crap

        Agreed. As someone who was very pro-copyright when I came here a decade ago, Mike has always been very much an advocate of reforming the system properly, and the information he's provided over the years is one among many sources that has caused me to alter my opinions about copyright.

        He simply confuses Mike's position with the opinions of some of is readers, myself among them, who have become extremely and increasingly staunch anti-copyright supporters. What these kinds of people simply fail to realize is that our increasing zealotry against copyright has nothing to do with Mike himself, but the fact they are so completely uncompromising in their own black-and-white, all-or-nothing zealotry that they are unwilling compromise, negotiate, or to listen to anything that contradicts their already preconceived opinions.

        Eventually these people are going to have to come to the table with people like Mike, or else eventually there will be enough resistance they will end up coming to the table with people like me. And trust me, if it comes to that, when you demand that it's all or nothing when you have the upper hand, when you lose the upper hand, people like me aren't going to sit down to negotiate, we're just going to give you nothing.

         

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      Anonymous Coward, Dec 5th, 2012 @ 11:11am

      Re: Copyright is a grant of limited property rights for limited time.

      [Mike} advocates that Megaupload should be able to host files of someone else's data and provide that data to people who haven't paid any of the production no even bandwidth costs!

      Megaupload is like a mall and the uploaders are like individual stores. That makes downloaders like shoppers.

      Is the mall responsible for a store selling a stolen, copyrighted, or trademarked item? Or do you rather blame the store for putting illegal merchandise on it's shelf and the shopper who knowingly bought it?

       

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        Anonymous Coward, Dec 5th, 2012 @ 3:41pm

        Re: Re: Copyright is a grant of limited property rights for limited time.

        Err, that should be "selling an INFRINGING item". Most stores sell copyrighted/trademarked products legally so your comment doesn't make sense.

         

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      Anonymous Coward, Dec 5th, 2012 @ 11:15am

      Re: Copyright is a grant of limited property rights for limited time.

      "Copyright simply recognizes the rights of whoever created a work."

      Wrong. I'll just leave it at that. Copyright GRANTS the right to exclude to whoever creates a work. It DOES NOT recognize any other rights, nor do anything else you've claimed it does (from guaranteeing profits to whatever other gibberish you have stated... I honestly tune you out sometimes).

      "Mike's position on copyright is to effectively abolish it"

      Except it isn't. Mike's position, which he's stated himself and is free to state again over and over (but which you'll never grasp), is for copyright REFORM. REFORM! Which is not the same as abolishing it entirely.

      "he advocates that Megaupload should be able to host files of someone else's data and provide that data to people who haven't paid any of the production nor even bandwidth costs!"

      Except he doesn't advocate that at all. He advocates that file storage providers (ranging from Google to Megaupload) should be able to provide the service of allowing people to store files in relative peace, provided they comply with DMCA procedure (should it apply to them). Nothing more, nothing less.

      Also, people do pay for the cost of said storage services, as well as related bandwidth cost which is covered by the fees generated from people paying for said services (often in cases even where they can use said services for free).

      What's even more interesting is suddenly you mentioning associated bandwidth cost. A fact you often overlook when busy labeling them (storage providers) grifters who profit off the works of others with no fees associated with the services they provide, namely bandwidth and servers.

      "He wants Megaupload getting both advertising and direct payments for premium speeds."

      Uh, no. He doesn't. And premium speeds are relative/subjective. What is considered premium to you may not be premium to me. And I can say as someone who routinely used Megaupload FREELY that their free speeds were often on par or surpassing the speeds of other paid for services. I routinely downloaded ROMs at 300+ kb/s.

      "That's grifting."

      Monetizing content or services through the use of freemium models (advertising) or paid services (traditional revenue streams) is grifting? Wtf are you on? It can't be any traditional drug or alcohol because I've tried them all and none have ever made me lose any sense of reality or actual facts like whatever your on appears to. Also, where may I procure this insanely magnificent drug/alcohol/whatever it is?

      "Clear fact is that Megaupload did NOT put any money or effort into the creation, and that Big Media or whoever did."

      No one has said otherwise. Of course, Megaupload CANNOT be held responsible for what it's users may or may not upload. Nor should it, considering DMCA law did not apply to it. A fact that despite being reality, they ignored and followed anyway.

      Also, nice to see your hypocrisy in full blown mode. One article your foaming at the mouth and going off on tangents about BIG EVERYTHING and ranting and raving about how it's all horrible. The next you're actively supporting Big Media and defending them against the world and "grifters".

      Do us all a favor. Instead of commenting the way you do just write the following and hit submit from now on, "Everything that guy [points at article above] just said is bullshit. Thank you." - Vinny Gambini (as played by Joe Pesci) from the "My Cousin Vinny"

      Like that we'll get a laugh and all be spared your nonsense/rants.

      "Once you accept those facts -- not that you pirates do, you just go off on wild tangents and ad hom -- then Mike's position on Megaupload falls apart."

      "you just go off on wild tangents and ad hom" WOW. That you can write that without dropping dead from the irony and hypocrisy of such a statement is testament from how out of touch with reality you are. Which is a fucking lot.

      I also really fail to see how what any of you just said in that sentence has to do with the article at hand. Or even Megaupload in general.

      "Therefore his position on ALL of the topic is mistaken: you can't have such a blatant rip-off of the producers in favor of second-hand grifting and still be in favor of copyright as is claimed."

      Mhm. And what are your feelings about, you know, the ACTUAL FUCKING ARTICLE ABOVE? Or would you like to save your stupidity for the appropriate article? Because you know, this one has NOTHING to do with Megaupload. NOTHING AT ALL.

      Ugh. Lion Day seriously cannot come fast enough.

       

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      Anonymous Coward, Dec 5th, 2012 @ 11:47am

      Re: Copyright is a grant of limited property rights for limited time.

      Clear fact is that Megaupload did NOT put any money or effort into the creation

      So every other business in distribution should be eliminates as well?

       

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      Anonymous Coward, Dec 5th, 2012 @ 4:26pm

      Re: Copyright is a grant of limited property rights for limited time.

      Guy Fawkes' Night has gone for this year. Might want to hold on to your strawman until next November.

       

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    Tor (profile), Dec 5th, 2012 @ 10:05am

    non-rivalrous in consumption

    "but at its root it is fundamentally different than tangible property like fields and houses and cars and computers"

    I'm not sure I completely agree with that. Some tangible property can also to a large degree be non-rivalrous in "consumption". Take for example open fields and forests in not very densily populated areas. Letting people roam freely on other people's property in such cases give very few problems and lots of advantages. In these cases one could say that too strict privaty property laws unnecessarily restrict people's freedom of movement.

    Of course one could argue that wild-life lovers who wish to walk in forests and on fields owned by others could just negotiate with the land-owner, but the transaction costs would often be prohibitive.

    The problem with copyright is often that people don't bother to think about the real transaction costs and all lost opportunities.

    "Of course, just watch: I bet if copyright is trimmed back, the entertainment industry will bring a case under this very theory."

    Probably. Btw. Australian tobacco companies argued that forbidding trademarked logos on the product packages amounted to something akin to such a taking, didn't they?

     

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      sheenyglass (profile), Dec 5th, 2012 @ 11:24am

      Re: non-rivalrous in consumption

      "Take for example open fields and forests in not very densily populated areas. Letting people roam freely on other people's property in such cases give very few problems and lots of advantages"


      I'm not sure freely allowing wanderers is non-rivalrous in the same way copyright is. Allowing that kind of use is incompatible with other types of uses, such as farming, whether or not there is actually an attempt to use the land in that manner. By contrast, there is no way to infringe a copyright in a way that reduces or excludes the use of the copyrighted material by others.

       

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        Tor (profile), Dec 5th, 2012 @ 1:02pm

        Re: Re: non-rivalrous in consumption

        To the extent that the tragedy of the commons can be avoided I think they are in many ways comparable, although as you say not exactly the same thing. I just wished to make the point that just as we need to think about the objectives of copyright we sometimes also need to think about the objectives of property.

         

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    Anonymous Coward, Dec 5th, 2012 @ 10:10am

    Franchises Generally vs Monopoly Franchises

    there are other "intangible" forms of property, naming taxi medallions and tradeable emissions permits.


    Bell is not alone in comparing copyright and taxi medallions. One of the commenters here at Techdirt has recently been making the same equation.

    But the equation between state-granted franchises and state-granted monopoly franchises is not exact. Rather, a monopoly franchise is but one species in the family of state-granted franchises.

    To illustrate how wide the concept of franchise runs, consider another species of franchise: the electoral franchise, aka, the right or privilege of the vote. While the limited, statutory monopoly of copyright comfortably fits within the same overarching family as the electoral franchise, still, it is manifest that these two species of franchise have quite different characters.

    Now, whether taxi medallions are more closely related to one species of franchise or another calls for a closer examination of the laws in a particular locality granting the taxi franchise.

     

    In the end, this quibble is not too important. That's why I haven't submitted this comment previously. But the distinctions are worth keeping in mind—and preserving.

     

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    Rekrul, Dec 5th, 2012 @ 10:11am

    From there, Bell goes on to talk about the recommendations he makes in the book for how copyright should be reformed -- and he definitely goes pretty far out there with them:

    Copyright will never be reformed as long as the Entertainment industry is pulling the government's strings.

     

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    Anonymous Coward, Dec 5th, 2012 @ 10:13am

    Is copying going to become harder? Will it be more expensive to make copies? Will it take machines the size of an entire house? Will fewer people have access to copying machines?

    No? Oh, they'll just make some more laws, or start really enforcing the laws to prevent people from making copies?

    Good luck with that.

     

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    TroutFishingUSA, Dec 5th, 2012 @ 10:21am

    Astounding. Bloggers and commenters at these tech blogs bitch constantly about how the US government is bought by corporations (specifically, Hollywood), YET everyone gobbles up this claptrap put out by a "think tank" that is funded by the fucking Koch family.

    Seriously. Can you all not connect the dots? Primrose path: you're on it. Most of you are becoming very much like the Tea Party; i.e. another horse-blindered bunch of yammering idiots who follow Republican marching orders and vote against their own interests.

    Can all you Libertarians and de-regulators just find another country? I hear Rwanda is nice this time of year, and very lax in their regulations.

     

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      Rikuo (profile), Dec 5th, 2012 @ 10:39am

      Re:

      I already am in another country, fuck you very much. Want to try again?

       

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      Lowestofthekeys (profile), Dec 5th, 2012 @ 10:48am

      Re:

      Primerose path? What does this article have to do with living the life of luxury?

       

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      btr1701 (profile), Dec 5th, 2012 @ 11:17am

      Re:

      > who follow Republican marching orders
      > and vote against their own interests.

      Please explain how voting to reform copyright would be voting against my own interests.

      Voting against *your* interests is not the same as voting against my own interests.

       

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      Gwiz (profile), Dec 5th, 2012 @ 11:45am

      Re:

      YET everyone gobbles up this claptrap put out by a "think tank" that is funded by the fucking Koch family.

      I don't care who funded it.

      What I care about is what the report actually says. The RSC report looks at copyright with some common sense and is a wonderful starting point when discussing copyright reform.

      However, what I do find amusing is the efforts to discredit the report by some. That only reaffirms the validity of the report in my mind, really. People discussing copyright with logic, reason and facts instead of emotions and falsehoods seems to scare you. Why is that?

       

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      silverscarcat (profile), Dec 5th, 2012 @ 11:49am

      Re:

      I would rather be Libertarian than Authoritarian.

       

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        Jay (profile), Dec 5th, 2012 @ 7:55pm

        Re: Re:

        Libertarians are mainly conservatives that advocate a gunboat diplomacy society. They're still authoritarian, the subject just changes to make them "socially liberal".

         

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      Anonymous Coward, Dec 5th, 2012 @ 1:47pm

      Re:

      Yeah, as a minarchist (go look it up, I'll wait), Someone wants to talk to you in the "you're full of shit" ward in the Psych unit.

       

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      Anonymous Coward, Dec 5th, 2012 @ 6:44pm

      Re:

      horse-blindered bunch of yammering idiots
      We're just trying to make you feel at home

       

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        Anonymous Coward, Dec 5th, 2012 @ 7:46pm

        Re: Re:

        Heh. Knew if I read the replies I'd find what I was already thinking.

        Listen, Trout, advocating that people that oppose your views isn't the way to go in this country. Don't like what we've got to say? Debate. 'Get off my lawn!' is not a valid rebuttal.

         

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    fb39ca4, Dec 5th, 2012 @ 10:42am

    Takings Claims

    The pubic should file a takings claim against those who lobbied to retroactively extend copyright on content that would otherwise today be in the public domain.

     

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      Digitari, Dec 5th, 2012 @ 11:37am

      Re: Takings Claims

      this ^ a thousand times this and it should be a class action lawsuit the People of America VS Hollywood et al

       

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        The Infamous Joe (profile), Dec 5th, 2012 @ 11:50am

        Re: Re: Takings Claims

        You forget that "the public" agreed to those incredibly one-sided and poorly thought out law changes. Specifically, "the public's" representatives were there, and agreed to it all.

        If you're mad at anyone, I'd suggest starting with the people who agreed to a bad deal on your behalf.

         

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          John Fenderson (profile), Dec 5th, 2012 @ 12:27pm

          Re: Re: Re: Takings Claims

          People are, but we should also be made at those who corrupt and take advantage of corrupt government: the major corporations.

           

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            John Fenderson (profile), Dec 5th, 2012 @ 12:28pm

            Re: Re: Re: Re: Takings Claims

            "mad at", not "made at".

             

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            The Infamous Joe (profile), Dec 5th, 2012 @ 12:39pm

            Re: Re: Re: Re: Takings Claims

            Don't get me wrong, people should be mad at them, too, but when it comes down to with who to be mad at, I assign more blame to the people who put the country up for sale to the highest bigger, than the people who placed bids.

             

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              Not an Electronic Rodent (profile), Dec 5th, 2012 @ 3:29pm

              Re: Re: Re: Re: Re: Takings Claims

              I assign more blame to the people who put the country up for sale to the highest bigger,
              I get it... people are morons. A person can be smart, but as a group by and large morons. But blaming "people" is a cop-out - you can't assign all the blame the "people" when their "choice" boils down to "someone bought by the oil industry, hollywood and pharmaceutical companies" or "someone bought by just pharmaceutical companies and hollywood". When the game is rigged it's hard to make a change that counts.

               

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                The Infamous Joe (profile), Dec 5th, 2012 @ 4:50pm

                Re: Re: Re: Re: Re: Re: Takings Claims

                I guess I wasn't blunt enough.

                Blame the politicians.

                 

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                  Not an Electronic Rodent (profile), Dec 6th, 2012 @ 3:08am

                  Re: Re: Re: Re: Re: Re: Re: Takings Claims

                  Blame the politicians.
                  Oh it's definitely their fault all right, but to some extent they are also products of a system that not only allows, but also actively encourages, what amounts to corruption and bribary. Even an honest politician (assuming that's not an oxymoron) has trouble not being overly influenced by corporate special interest simply because of what it takes to be elected.

                   

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    Anonymous Coward, Dec 5th, 2012 @ 12:09pm

    1790 Copyright

    1790 Copyright suited the conditions of the time, and only applied to American authors. This did not prevent British authors getting paid by their American publishers, as this was worthwhile to obtain a copy of the manuscript before the British books wre published.
    The important pony is that in this peroad producing bulk copies was an expensive, and time consuming operation. The copyright act mainly formalized existing arrangements that existed between commercial operators and Authors.
    In the modern world, digital copying is an easy and almost cost free operation, and the only way of enforcing copyrights regardless of terms is to give the publishers control over all devices capable of copying. This in effect establishes a universal spying and information control mechanism, which would also establish the tools that a totalitarian regime could use to control a population.
    Rather than a discussion about copyright terms, it is more important that copyright is abolished, other than the right of attribution.
    The potential of the Internet lies in its use for the rapid copying and dissemination of materials, while the sharing and building on other peoples work is the basis of culture. While eliminating copyright will change the ways that artists and performers make a living, it will not prevent people from making a living by their art, although this may change the people who can do this.
    Currently copyright is giving corporate interests the excuse of piracy to try and get draconian laws passed to control copying, and governments are listening, especially as this more or less aligns with their security services desire to for universal monitoring to defeat the terrorist threat.
    Copyright enforcement is probably the biggest threat to society, as it is building and making available a universal spying and censorship system, to which security services and law enforcement are then granted access as a means of fighting crime, with terrorist prevention or protect the children available if necessary to justify this access.
    If copyright is abolished, artists and performers will still be able to make money, and culture will also return to its roots in the sharing, mixing and building on the works of others.

     

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    saulgoode (profile), Dec 5th, 2012 @ 12:12pm

    Additional proposals for copyright reform ...

    That all works benefiting from the copyright privilege should be proactively registered with the Copyright Office and that a digitized copy be submitted for archiving.

    The first proposal would eliminate confusion over the copyright status of works (i.e., copyright abandonment). There could be a grace period of a year or so wherein copyright is presumed but after that, any non-registered works should be in the public commons.

    Another caveat could be that copies of some qualified works (e.g., software source code) would be retained by the government in non-public archives; however, it should be ensured that, once the copyright term has expired, the public domain actually receives the copyrighted work it was promised.

    With advancements in technology over the last few decades, implementation of these proposals is almost trivial and could probably be accomplished for less than the cost of a bridge on an interstate or of a fighter jet.

     

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      John Fenderson (profile), Dec 5th, 2012 @ 12:30pm

      Re: Additional proposals for copyright reform ...

      That all works benefiting from the copyright privilege should be proactively registered with the Copyright Office and that a digitized copy be submitted for archiving.


      This. If I could only change one thing about copyright, it would be to reinstate the requirement to actually register copyrights.

      Without a clear way to determine what is or is not protected, copyright is a joke and copyright enforcement efforts will always be overly burdensome on freedom and liberty.

       

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    Not an Electronic Rodent (profile), Dec 5th, 2012 @ 12:15pm

    Wishful thinking?

    you can go to the copyright office and check to see who owns the copyright.
    Oh, if only that were true! A whole decent sized chunk of the many many things wrong with copyright would vanish if only it were possible to say for certain who owns copyright on what and know when no-one owns it.

     

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    Suzanne Lainson (profile), Dec 5th, 2012 @ 12:32pm

    Why would maps continue to have copyright protection?

    In these days of digital maps, I don't see why maps would have protection while other forms of content would not.

    I was curious what Google's policy is for maps and found this:

    Google Maps/Google Earth Terms and Conditions

    Restrictions on Use. Unless you have received prior written authorization from Google (or, as applicable, from the provider of particular Content), you must not:
    (a) copy, translate, modify, or make derivative works of the Content or any part thereof;

     

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    Incongruence?

    "Jerry Brito [...] was publishing a book about the "free market case for copyright reform," called Copyright Unbalanced: From Incentive to Excess. [...] They also have a free chapter available on the site."

    Wait... do you mean that a book about the excesses of copyright is itself copyrighted?

     

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    Suzanne Lainson (profile), Dec 5th, 2012 @ 12:47pm

    Ramifications for 3D printing

    I personally don't think changing copyright laws will have a huge global impact right now because there is more than enough freely available content as it is.

    However, I do anticipate significant impact on global economics once 3D printing becomes widely available and inexpensive. That's where I foresee copyright impacting physical property.

    What I am wondering is if any industries currently involved in physical products (e.g., making them, selling them, transporting them) will look for legal ways to slow down 3D printing. Would maintaining copyright for "charts" be used to prevent makers from sharing files with instructions for printable objects?

     

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      Suzanne Lainson (profile), Dec 5th, 2012 @ 12:52pm

      Re: Ramifications for 3D printing

      Also, could copyright for "charts" be used to prevent copying of various forms of databases?

       

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      Anonymous Coward, Dec 5th, 2012 @ 1:58pm

      Re: Ramifications for 3D printing

      Well gamesworkshop did shut down the warhammer figurines that were up on thingiverse, so I would say yes, they will indeed use the RIAA tactics.

       

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        Suzanne Lainson (profile), Dec 5th, 2012 @ 2:06pm

        Re: Re: Ramifications for 3D printing

        That's why I think we need to be thinking decades ahead when we talk about copyright reform. If there are loopholes that affect 3D printing, it will extend far beyond the Silicon Valley/Hollywood fight.

        Rolling back copyright to what was allowed in 1790 doesn't seem to me to account for changing definitions of "maps, charts and books."

         

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      Anonymous Coward, Dec 5th, 2012 @ 2:01pm

      Re: Ramifications for 3D printing

      And apparently even Lego has been sending a few takedowns as well.

       

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    Suzanne Lainson (profile), Dec 5th, 2012 @ 12:59pm

    And why books?

    If copyright is offered for books but not other forms of prose, wouldn't that just encourage people to bundle what they have as books? Of course, if copyright protection only counts if the entire work is copied, then essentially books aren't protected anyway. You could just copy 99.9% of the book.

    The concept of a book has changed dramatically over recent years so even defining what a book is will be up for debate.

     

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    mokane, Dec 5th, 2012 @ 1:10pm

    And in Civil Law Jurisdictions?

    In civil law jurisdictions there is no common law yet there is copyright nonetheless. These "common law" arguments are thus US and Anglo-Saxon law-centric.
    There is a need for international consensus in this area. That we approach it from our own legal traditions without trying to find a common ground is part of the problem.

     

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      Anonymous Coward, Dec 5th, 2012 @ 1:37pm

      Re: And in Civil Law Jurisdictions?

      There is a need for international consensus in this area.


      No. There isn't.

      The United States has historically adhered to a stronger ideal of the liberty of the press than most other nations. It's unlikely that the United Kingdom would be willing to trade its domestic law for that of the United States, equally the United States has firmly rejected the common law of Great Britain in the matter of a free press.

       

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    Tom Sydnor, Dec 5th, 2012 @ 3:17pm

    no, really, copyrights are a type of property right

    Well, Mike, it's nice to know that there are some things in life that will never change. But just in case anyone is unaware how strained your views on such matters tend to be, this may be helpful:

    http://www.copyrightalliance.org/2012/12/capitalist_copyrights_republican_reply_three_my ths_about_copyright

    And remember, any time you care to defend your views on their actual merits--or even hire someone to do so, you let me know. I will be waiting. --Tom

     

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      CrushU, Dec 5th, 2012 @ 3:33pm

      Re: no, really, copyrights are a type of property right

      I really enjoyed the lively comments section of your website, and think that it really speaks to the quality of your work.

       

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        Anonymous Coward, Dec 5th, 2012 @ 3:55pm

        Re: Re: no, really, copyrights are a type of property right

        Before anybody ask "Where? which comments?"

        The answer is "exactly!".

         

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      John Fenderson (profile), Dec 5th, 2012 @ 3:50pm

      Re: no, really, copyrights are a type of property right

      It would be helpful if instead of dropping a broad claim and a link, you actually wrote a few words to explain your claim and how the document you linked to supports it.

       

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      Anonymous Coward, Dec 5th, 2012 @ 8:08pm

      Re: no, really, copyrights are a type of property right

      Laughably, you want to argue 'This is the law!' and we wish to argue that the law, as written, makes little sense for either the public interest or the economic interests of the creators, themselves. It is the middleman that takes the largest piece of the pie, and this is an issue. Want to debate (not argue) that point? Feel free to explain your position. Until then, attacking the people calling for reform without actually addressing their points is meaningless.

       

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      The Real Michael, Dec 6th, 2012 @ 6:50am

      Re: no, really, copyrights are a type of property right

      Remind me: who's paying to enforce copyright? Oh, that's right -- the people, not the industries themselves.

      When the content industries aren't busy preaching morals and attempting to dictate what people should/shouldn't be allowed to do with the things they own, they're busy spying, bribing politicians, suing, extorting, exploiting tax loopholes, cheating states and sovereign nations out of taxpayer money, creating kangaroo courtrooms with which they convict people with utter bias and contempt for rights, paying off government agencies to block and shut down websites deemed illegal without any due process (e.g. The Promo Bay), and the list goes on and on.

      This is all thanks to one thing: copyright. Copyright enables a few wealthy individuals to benefit, almost always at someone else's expense, without having to lift a finger. It disincentivizes work and effort because its beneficiaries can simply live off decades-old work while the government, using taxpayer money, enforces their virtual monopoly.

      If that's not the very definition of an entitlement program then I don't know what is.

       

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    Suzanne Lainson (profile), Dec 5th, 2012 @ 4:13pm

    Copyright reform should keep 3D printing in mind

    If there is going to be copyright reform, it should factor in what is likely to come in the near to long-term future. As I have said many times, I look forward to some major economic disruptions that reduce the power of large corporations and industry lobbying groups. But I'm not so sure they will embrace that which might make them economically unnecessary.

    Is the 3D printing industry about to start turning out lawsuits? | Digital Trends

    3D printing's forthcoming legal morass (Wired UK): "You thought Hollywood and record labels were powerful lobbyists, crushing Napster and suing file-sharers? Wait until you see what the manufacturing industry can do. The American Chamber of Commerce is the single largest lobbyist on Capitol Hill, spending $60 million a year."

     

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    Anonymous Coward, Dec 5th, 2012 @ 4:21pm

    One of my favorite silly arguments is "You wouldn't steal someone's car would you?"

    No, no I wouldn't. But let's take that silly premise and apply the "entertainment model" the rest of the way to automobiles.

    Under those terms:
    You can't actually buy your car. You can only lease it, and the automaker can at any time end the lease program and come take the car back without notice or warning.

    If you are allowed to actually purchase a vehicle, if it breaks down you are out of luck. you are simply going to have to buy a new car (this years model, screw that "used car" BS).

    You, and only you, are allowed to drive in your car. If you let someone else borrow it, you have to pay a fee to the dealership. If you let other people ride in your car, you have to pay a fee to the dealership. (the dealership, will of course, pay the automaker a share of these fees, assuming the automaker can be found in a timely manner.)

    If you sell your car, the person who bought your car can only drive it for a limited time, or in limited circumstances (can't go over 30 mph, for example), before they have to pay the dealership a fee to "unlock" all the features of the car. (again, the dealership will pay the automaker a cut of this, in theory).

    The idea sounds retarded, same as the "you wouldn't steal a car argument".

     

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      Anonymous Coward, Dec 5th, 2012 @ 5:18pm

      Re:

      One thing you might want to add would be the maker can remotely break or otherwise render your car unusable, and you don't get a refund.

      You might also want to add the fact that the maker is also allowed to litigate and lobby for more laws to prevent unauthorised or illegal usage of said car, regardless of whether your usage is actually considered unauthorised or illegal, and then proceed to treat you as though all use of said car is intended to be unauthorised or illegal.

       

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    Anonymous Coward, Dec 5th, 2012 @ 4:28pm

    Why is entertainment considered "Progress of Science" anyway?

    In the US, the phrase "intellectual property" is almost exclusively a post-WW2 phenomenon. See William Fisher "The Growth of Intellectual Property" footnote 105.

    A question: if US copyright is for the Progress of Science and the Useful Arts, why is light entertainment included?

    I'd have to jump through some faintly absurd logical hoops to explain how Justin Bieber or Game of Thrones contributes to Science.

    Some forms of entertainment -- playing cards and porn -- were not protected by copyright in the Good Olde Dayze, but novels have been protected from day one.

    Other than some bullshit about widely shared cultural assumptions about the power of literature to shape the human mind, it's hard for me to see why.

    Weirdly, in the current situation, the progress of science is probably best served by open access copyright policies (cf PLoS One, etc.), and the money, influence, and oppressive copyright policy stems from the entertainment industries. (bad dichotomy, buy me a beer.)

     

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      cpt kangarooski, Dec 5th, 2012 @ 7:55pm

      Re: Why is entertainment considered "Progress of Science" anyway?

      Well, remember that English is a very dynamic language. In this case, the meaning of 'science' in the late 18th century, when the clause was written, meant something like 'knowledge' or 'learning.' It didn't really mean science as we now think of it; natural philosophy would've been a better fit for that, I'd think.

      Anyway, literature would fall into the category of science well enough. Certainly the framers didn't see a problem with it.

       

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    Suzanne Lainson (profile), Dec 9th, 2012 @ 3:26pm

    The decline or property ownership

    I've been pondering the politics of this all and I said in a different post that I think the world was more likely to head toward left-leaning, commons politics rather than private property, libertarian thinking.

    And now that I think about this even more, it occurs to me that we've got a lot of people, especially young people (even if they are well-educated), who don't have a lot of property to protect. If they live in the cities, they probably are renting. They probably don't own cars. They may not be involved in the stock market because that system seems to be rigged against the little guy. They probably don't own bonds because the interest rates are so low. If they aren't in support of IP laws, they don't consider that property either.

    For a long time, there was support to get workers into buying cars and homes as soon as they could, which drew them into the property owner class. Now we've got many young adults who can't do that or won't do that because they face years of paying off college loans.

    Entrepreneurship has drawn some young adults into thinking of their companies as property, but it will be interesting to see what the Series A crunch does to a lot of startups. Some are predicting that funds will run out for a lot of young companies come 2013.

     

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