No, Copyright Is Not Like A Contract
from the goes-way-beyond-that dept
One argument that we’ve seen in favor of copyright law is that it’s no different than a contract: that is, if you agree to purchase something under copyright, it’s no different than accepting the terms of a contract. And, as they say, if you “don’t like the contract, don’t do the deal.” Thus, “if you don’t like the copyright, don’t buy the product.” However, as Rick Falkvinge points out, copyright has some significant differences that actually serve to make it antithetical to the right to contract, in that it goes way beyond just the contracting parties to absolutely everyone.
Let’s look at what happens when Alice sells a DVD to Bob (possibly through an intermediary that, for all intents and purposes, mediates the contract), and the sale includes a written condition to not share the bitpattern on the DVD with anyone else, which Bob even reads, understands, contemplates, and signs.
In this case, Bob would be bound by contract to not share that bitpattern. So far, so good. But let’s assume he does anyway. He shares the bitpattern with Carol, who manufactures a copy of the DVD using her own parts and labor.
In this, Bob would be in breach of contract with Alice. But what about Carol’s copy? Carol has signed no contract with Alice whatsoever, and contracts aren’t contagious in the sense that they follow the original object, concept, idea, or pattern; they require voluntary acceptance from an individual, which Carol has not given. Carol has signed no contract, neither with Bob nor with Alice.
Thus, Carol would not be bound by the original contract in the slightest on a functioning free market, regardless of Bob’s breach, and she would be free to share the bitpattern of her own copy of the DVD as much as she pleased with David, Erik, Fiona, and Gia, who could all manufacture their own copies from the bitpattern that Carol shared, without any breach of contract having taken place.
But, of course, that’s not what happens. Copyright isn’t like a contract because all sorts of people who never agreed to any such contract are automatically and unavoidably bound by its terms. In fact, as Falkvinge points out, at this point, it has become the exact opposite of the freedom to contract, because it bars Carol from her own freedom to contract:
The copyright monopoly limits Carol’s rights to sign contracts in her turn regarding her property that she manufactured with her own parts and labor – the DVD with the bitpattern: it limits her ability to sign contracts with David, Erik, Fiona, and Gia regarding this piece of property, should she desire to do so. For example, with the copyright monopoly in place, she cannot even legally execute one of the simplest forms of transaction – a transfer of property. She can’t make additional copies of her own property and sell them, or even give them away without any terms whatsoever.
Whether or not you think such restrictions are reasonable, it seems clearly incorrect to argue that copyright is merely a form of the right to contract.
Comments on “No, Copyright Is Not Like A Contract”
That’s a hell of a conflict. Because of how easy it is to copy that copyright exists in the first place. One problem is that everybody is “bound” to that “contract” automatically and regardless of if they agree or not with the terms. Sure you can always go without but what if everything ever produced is obliged to be distributed under that contract that automagically binds every single one to it? And what to do if the terms of the contract were unfairly imposed and you don’t agree with them?
Of course none of this is actually an issue once you realize this is neither property nor a service that’s “consumed” once used. And it’s even clearer once you consider this to be part of cultural expression.
You can try and make analogies with cars and rape but it’ll never work because it’s a completely different thing. What we should be discussing is not how to lock creative works but rather how to monetize over them even though copying them is worth virtually nothing.
Re: Re:
I think this is exactly like raping cars.
as opposed to discussing how to monetize, I’d like to see a proposal of what would be reasonable copyright, what it should be properly titled, and a discussion of various scenarios under the proposed system.
is reasonable copyright no copyright at all?
so if I write a book and start to sell it, and then a giant publisher copies it and sells a bunch all over the place, can they take credit? can they remove my name from the work?
I would understand if maybe I set a ‘beginning and end’ to the work, and everything in between, if it were copied, would have to be copied in kind, so I would at least get credit..
I would also (kinda) understand if they wanted to produce leather bound editions that I wasn’t planning to produce myself… but.. what am I entitled to, once my ‘idea’ (book, song etc) is now out in the world?
what moral argument can I make that restricts the propagation of ideas, even if it’s just singing “happy birthday to you”?
so, yeah, I would like to see a proposed system, and as these blog posts come up, a discussion of how the same situation would work under that proposed system.
otherwise it’s just raping a car.
Re: Re: Re:
Car to explain how raping a car is analogous to copyrights?
Copyrights have nothing to do with the credit for your work. It’s purely the right to create copies and came during the time of the printing press, where people could cheaply produce copies of sheet music or books and sell them.
The idea was that the creator should get a cut for every copy sold. Then, after a reasonable time frame, that CONTENT would be in the public domain and people could BUILD upon the works and society could progress.
A REASONABLE copyright, as you requested, depends on the industry, but should block against a) commercial copying (ie: make copy and charge people to buy it) without paying copyright owner while still under copyright and not in the public domain. B) Copyright should expire, the exclusive right to create copies is now over, anyone can do it and monetize OR NOT and not pay the owner. C) The copyright owner still gets credit for their work, however they can no longer enforce who creates copies but other CAN BUILD UPON their work. D) If the copyright owner wants to leave money for his/her estate, create more material (under the same temporary monopolistic control over the right to copy – but not necessarily monetize – no such requirement) as that is what they were intended to do!
You are granted a temporary monopolistic control over the right to copy and build upon the works you created, once that expires, it’s open to anyone in the public to do that – you should not sell it and have such copyright transfer restart the counter! That hinders progress.
Again, temporary, so you have some income while you create NEW works and CONTRIBUTE to society not just lock the shit up so no one else can benefit and build upon it!
If you can’t create anything or monetize enough during your time-allotted, that is NOT the fault of the government. Nor is it the right of the government to step in to protect you because you failed to monetize sufficiently.
If someone else, AFTER EXPIRATION OF YOUR RIGHT TO CONTROL COPYING, takes your work in the public domain, does NOT remove it from the public domain, doesn’t even modify or build upon your work, but IS able to sell it and profit, that’s too fucking bad! You should hire that person to help you with your next release.
Life is not fair and no one owes you a living!
Re: Re: Re:
That’s a problem because the issue the copyright wackos always present is precisely how can you monetize content without copyright protections. Starting from the premise that you need a copyright system in place for things to work is simply not going to lead anywhere.
You are not entitled to anything. However there are means to monetize on what you produce without selling it directly and it has been done before. As you pointed out maybe we should discuss copyright as a system to prevent explicit misappropriation of content (ie: prevent others from using your creation as if it was their own – and pay attention here, derived works do NOT fit in this issue). Maybe you can add a prevention of commercial exploitation as long as there are clear boundaries and it does not hinder remixing and reusing of your work.
Summarizing: we need a sane discussion. And how to monetize without relying on copyright may be a good start.
Re: Re: Re:
Ignoring for a moment your non sequiturs…
I do propose that no copyright is reasonable copyright. Even in the situation you describe, punishing the big bad publisher for exploiting your work involves registering the copyright (time-consuming, and required to seek damages for infringement) and then going to court, an expense that poor starving artists can’t afford.
What I do believe you are entitled to, as an author/artist/visionary/whatever, is protection against plagiarism. You have created works, and others should not take credit for them. I don’t think it’s productive to create burdensome legal machinery to accomplish this, though, and part of that is because we have the Internet now, and the Internet and its users are very good at ferreting out plagiarism. In the case of the big bad publisher who strips your name from the book, it strikes me as quite likely that you will be able to establish your publication as the original, and that potential customers might develop unsavoury opinions of the publisher as a result.
Even in the wild west of the pre-copyright United States, after all, the publishers who printed unlicensed Dickens books left his name in them; and Techdirt has explored previously the benefits he enjoyed as a result.
(as an aside, you may wish to see this article for an explanation of why patent law also fails to help poor, lone inventors.)
Re: Re: Re:
The car is a lie!
I think it is pretty clear that the principal system wanted here is close to the Khanna and PP vision on the field. You can read how it works on Falkvinges homepage.
The primary change would be a shortened period of the missery of copyright. A lot of the rest will be anybodys guess as to how the change will effect society and in turn effect copyright indirectly. Your guess is as good as mine.
People who want a total abolishment are extreme and even though this blog has several pretty extreme supporters I would think that most are for some kind of “copyright”, though almost all want it reduced.
Contract – Both parties must negotiate and agree to the terms.
Copyright – Terms are forced on the purchasing party with no negotiation.
Thus, copyright is not a contract.
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not a contract, just an “offer you can’t refuse”…
Re: Re:
Are you implying that Vito Corleone wasn’t a great negotiator, but a copyright shark?
And now you know why terms of service agreements of whatever type are being used so often. By doing so, companies can claim that the copyright agreement is a contract with anyone who uses the product, therefore anyone who copies it is in violation of those terms of service. Of course, those are all laughable to anyone with a functioning brain, but plenty of judges have shown that a functioning brain is not a pre-requisite to adjudicate.
Copyright was essentially a contract, but between the producer and the government, whereby the producer agrees to produce something of value, and the government agrees to allow a period of time by which no one else may produce the product in question, which is enforcable by law. Of course, that’s been tampered with so many times that the underlying contract is worth as much as toilet paper, perhaps less.
What happens when bob sells used dvd?
How is it same / diff?
Re: What happens when bob sells used dvd?
That’s protected by the First Sale Doctrine, 17 USC ? 109:
“[T]he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”
Of course, the ability to sell or otherwise dispose of a particular copy/phonorecord doesn’t equal the ability to make copies and distribute them. So Bob can sell his DVD to Carol, who can sell to Dave, who can sell to Eve, and it’s all protected by copyright–but if Eve sells not the DVD but a copy of the content to Fred, that’s not protected.
The issue here is that Fred is bound by the same rules of behavior as Bob, even though Alice and Fred never even met, let alone negotiated a contract.
Re: Re: What happens when bob sells used dvd?
Contract doesn’t work with first sale doctrine either since Carol, Dave, Eve are not parties to the contract in the same way the copied dvd causes issues.
Settled Law
There’s a flip side to this, too. In Jacobsen v. Katzer in 2008, the Federal Circuit Court of Appeals ruled that violation of a license such as the Artistic License (or, by extension, the GPL or a Creative Commons license) was not merely a violation of contract, with redress in state court with money only, but a violation of a copyright condition, with redress in federal court and an injunction.
It was a pretty big win for open source licensing.
Re: Settled Law
If you obey the terms of the open license (AL, GPL, CC), you are entitled to the using and copying that you do.
If you don’t obey the terms, you EITHER have agreed to them as one agrees to a contract, but disobeyed them, or you have never agreed to them.
In the second case, you clearly are in violation of copyright, with all Federal remedies. But I don’t see the (civil) breach of contract at the state level.
In the first case, an argument can be made that you are only under contract law at the state level.
The two cases are hard to distinguish since there is no moment of formal agreement to the open license. The agreement would start at the moment you read the words of the license and start using or copying — a bit like taking off the shrink-wrap, or clicking TOS: it is deemed to have happened if the notice was displayed conspicuously.
The difference is analogous to stealing cement from the lot, versus ordering cement and not paying the bill. The second is usually not a criminal case unless there were special circumstances such as fraud.
It’s also analogous to breaking in to a computer system versus agreeing to TOS and then violating them. We wouldn’t want the second of these to be crminalized or identified with the first.
So there’s a good argument for treating all violations of open license under contract law only, unless the person claims he’s not in a contract, in which case it could become a Federal violation.
Copyrestriction, not copyright
This is just another example of what a misnomer the word “copyright” is. It has absolutely nothing to do with rights, and everything to do with restrictions.
We Need Strong Copyright Laws Now More Than Ever
Forbes
We Need Strong Copyright Laws Now More Than Ever
http://www.forbes.com/sites/forbesleadershipforum/2013/02/04/we-need-strong-copyright-laws-now-more-than-ever/
Re: We Need Strong Copyright Laws Now More Than Ever
Meh. That article is an off-topic load of rubbish.
Re: It's Time for a Fresh Look at Copyright Laws
http://www.forbes.com/sites/garyshapiro/2013/01/30/its-time-for-a-fresh-look-at-copyright-laws/
Neato, I can do that too!
Re: Re: Forbes sitting on the fence
Clearly Forbes is sitting on the fence and is avoiding giving a definitive, subjective opinion without all the details so we can all move forward regarding protecting artist rights.
Why won’t Forbes simply provide their opinion? Why sit on the fence? We can’t move forward if people are fence-sitting, how will there be any room for people to cross over the fence with all those bodies in the way?
Re: We Need Strong Copyright Laws Now More Than Ever
More like we need more copyright exceptions and fair use than ever before.
Re: We Need Strong Copyright Laws Now More Than Ever
I’m sure you posted that link to highlight Shapiro’s response in the comments that illustrates that Israelite was just cherrypicking statements and arguing against straw men.
Not to mention Israelite’s only support for his argument is the statement that copyright industries are growing, which contradicts his own call for stronger copyright laws sincw they’re already doing well.
Re: Re: We Need Strong Copyright Laws Now More Than Ever
The Shapiro article had some content. From the Israelite article I can only remember the phrase: “Unfortunately, Shapiro isn’t one of them.” Can’t remember what he isn’t though.
Also, breach of contract is still strictly a civil matter – which non-commercial copyright infringement was too until the law twisting started happening to make it a criminal matter as well.
Agreed
Yes it seems clear that copyright is not like a license.
Another red herring often brought up by some is the notion of “a balance between competing rights of a variety of stakeholders”. Baloney! there is no balance involved. It is temporarily (*cough*) restricting the rights of the public, to give authors, etc, a chance to make some extra money.
Copyright isn’t like a contract because all sorts of people who never agreed to any such contract are automatically and unavoidably bound by its terms.
That’s right, Mike. The reason is simple: Copyright rights are property rights, not contractual rights. Contractual rights are only good as between the contracting parties, while property rights like copyright are good against the world.
It should be noted that copyright rights, like any other type of property rights, can be the object of a contract. For example, a license agreement involves a transfer of property rights as part of the larger contract. But copyright rights can also be transferred outside of contract law. A license (as opposed to a license agreement) is in fact a unilateral use privilege that sounds in property and not contract.
If you understood (or admitted) that copyright is property, you would understand how obvious it is to say that it’s not a contract.
Re: Re:
“Copyright rights are property rights, not contractual rights.”
So why does copyright go against the property rights of the consumer?
Re: Re: Re:
So why does copyright go against the property rights of the consumer?
It doesn’t. Let’s say a consumer buys a DVD. That consumer owns the physical disc, but they don’t own the underlying copyrights. It’s not that those rights were taken away from the consumer. The consumer never had those rights to begin with. The fact is that other people have property rights that the consumer has a duty not to violate. The consumer couldn’t throw the DVD through the window of my house, as that would violate my property rights. Nor can the consumer copy the DVD as that would violate the property rights of the party that owns the reproduction right. You don’t consider the fact that the consumer can’t break my window with the DVD to be a violation of the consumer’s property rights. Nor should you consider the fact that the consumer can’t make a copy of the DVD to be a violation of their property rights either. In both cases, the consumer has to respect the property rights of others.
Re: Re: Re: Re:
They own that copy of whatever it is and should be free to enjoy it as they see fit, including ripping it and keeping the digital copy for backup and sharing it with your mates (ie physically passing around the disc).
Re: Re: Re:2 Re:
They own that copy of whatever it is and should be free to enjoy it as they see fit, including ripping it and keeping the digital copy for backup and sharing it with your mates (ie physically passing around the disc).
But you can’t exercise rights you don’t have, nor can you violate the property rights of others. See my example about throwing the disc through my window. Just because it’s your disc doesn’t mean you can use it to violate my property rights.
Re: Re: Re:3 Re:
What property rights were broken when a disc is copied?
The physical CD is still owned. I have a second copy and my own CD which is now my tangible property.
Re: Re: Re:4 Re:
What property rights were broken when a disc is copied?
Really?!?!? The copyright, specifically the reproduction right. http://www.law.cornell.edu/uscode/text/17/106
The physical CD is still owned. I have a second copy and my own CD which is now my tangible property.
Sure, you would own both physical discs, although your ownership of the second disc could be forfeited if things were litigated since your infringement has tainted it.
Re: Re: Re:5 Re:
Is the actual content fixed (i.e. can it be attributed to a single person or group exclusively?)
Is the actual content keyed to a unique identifier?
IF the answer to either of these is “No”, then it is not property. It is a conceit designed to obfuscate the issue.
Re: Re: Re:5 Re:
In your retarded view when the media gets reproduced as sound and/or picture your exclusive reproduction rights have been violated. Durhee what?
Do the world a favor and exclude yourself from reproduction rights.
Re: Re: Re:3 Bogus artistic megalomania
The only “property right” you have is making copies of the work.
If you try to prevent me from doing anything short of distributing copies of your work, then you are trampling on MY property rights. You are interfering with MY rights to use MY personal property in any way I see fit.
I paid for it. It’s mine. No “licensing” or “contract” is required. My copy is MY personal property.
Your notion of artistic megalomania is simply nonsense.
Your non-right doesn’t have precedence over my actual natural right.
Re: Re: Re:4 Bogus artistic megalomania
If you try to prevent me from doing anything short of distributing copies of your work, then you are trampling on MY property rights. You are interfering with MY rights to use MY personal property in any way I see fit.
That’s exactly the issue. I understand that you feel like you should be able to do whatever you want with the things that you own. But the fact is that in the real world other people’s property rights create duties in us and limit the things that we are allowed to do. Crazy, I know. For example, I own my car. Does that mean I can drive it across your lawn and through your garden? Of course not. My rights to do what I want with my property are limited by your rights in your lawn and garden. Your property rights are limiting mine. Just the same with copyright. Someone else’s copyright rights limit what I can do with my property just like your property rights limit what I can do with my car. So yes, your rights are limited. As are ALL of your property rights. Crazy! Now one’s denying that copyright, like every single other type of property right, limits what you can do with your property. The issue is where we’re going to draw the line. I take it you’re not a fan of copyright? What’s so bad about giving exclusive rights to people who create valuable works of art?
Re: Re: Re:5 Bogus artistic megalomania
“Does that mean I can drive it across your lawn and through your garden? Of course not.”
I agree. I take my car and drive it through your lawn. I am using my physical property on your physical property.
What about when I rip a CD? It’s my CD. I own it. I’m ripping it using my equipment. Or I’m downloading a file through the internet from someone else’s computer. In no way am I using property belonging to you.
The problem with your property analogy is that you notice and perceive the harm caused when I interfere with your physical property, hence my car on your lawn. Not so with digital media. You can never know or perceive it when I rip a CD of your music. It is impossible for you to know (unless you install spyware on my computer). Sure, you may see my IP address in a torrent swarm, and assuming it is actually me, that still doesn’t mean I have affected you in any way shape or form. If I’m torrenting your album, assuming your own computer doesn’t have a torrent program on it, I am not communicating with your computer in any way. The files on your computer aren’t being touched. I’m getting the files from someone else, or myself if I’m CD ripping. At no point are any of your property rights harmed.
Do not whine about the exclusive distribution clause of copyright. For you to whine about that means you are harming my property. For me to honour exclusive distribution, I have to be restricted in what I can do with my equipment, which is too high a price for me to pay, especially since I get nothing in return.
Re: Re: Re:6 Bogus artistic megalomania
Technically, the buffers in your CD player (or RAM in your PC) constitute a copy. It’s not like there were buffers in your phonograph or cassette deck.
The concept of copy-restriction in the digital world needs a better understanding by all players. I recall there was a push by some in the entertainment industry/politicians based on the fact that the CD players actually copy the digital content in order to transfer it to the listener (viewer if DVD).
And Ford does not come after you for driving your car across your neighbour’s lawn and claim it was a violation of their rights in how you used the vehicle.
Re: Re: Re:6 Bogus artistic megalomania
The problem with your property analogy is that you notice and perceive the harm caused when I interfere with your physical property, hence my car on your lawn.
Change the facts. Instead of plowing through your lawn and garden, I mow your grass, trim your hedges, and weed your petunias. I’ve made your property better, yet I’ve still violated your property rights. We vindicate the violation of a property right even if no harm is done.
Re: Re: Re:3 Re:
I’d talk about how you can actually violate property rights and that people do it all the time with immunity using both affirmative defences, and qualified immunities.
Also Copyright isn’t exactly property. Copyright is instead a legal fiction that is similar to property.
The problem is there is no analogous physical (tangible) situation that copyright can be compared to. Unless you get into the realms of history with serfs with there limited usage of crown lands etc.
I think (as a Judge stated in the UK just recently) that copyright or the breaching/violation of copyright is probably more analogous to trespass than anything else. Be that trespass of property in the minimum or trespass of person in the extreme.
Though in another framework copyrights is a form of contract between the State and creators whereas the consideration is that the work can be used exclusively by the owner subject to specific terms for a limited time until it is then passed onto the State for the purpose of enhancing the State. [btw for people who don’t understand the State is not just Government, it is an all encompassing structure that is the people as well.. and this also paradoxically includes the creators]
Re: Re:
Maybe you should admit that it takes serious semantic gymnastics to claim that copyright is property.
Re: Re: Re:
But it doesn’t. Notice how Mike says that it’s not contract but then he doesn’t say it what it actually is. The fact is that copyright is a type of property, and it has been so for centuries. This explains why it’s good against the world. All property rights are good against the world
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Copyright is a law, not a property. Copyright law governs the rights to copy, but it in of itself is not a property nor a right. It enforces the right, provided it benefits people as it was intended, ie: the public domain.
That was LONG shot down with the extensions, such as the Sonny Bono Act in 1978, LONG before the Internet existed!
Re: Re: Re:2 Re:
Copyright is a law, not a property. Copyright law governs the rights to copy, but it in of itself is not a property nor a right. It enforces the right, provided it benefits people as it was intended, ie: the public domain.
Copyright law gives property rights to authors. It’s really simple. I know it melts the brain of most here to even consider the possibility that copyright is property, but the fact is that its been acknowledged to be property for centuries. For example, read the famous Donaldson v. Beckett case from 1774: http://www.copyrighthistory.com/donaldson.html The House of Lords call copyright “property” dozens of times. That should tell you something.
It’s precisely because it’s a property right that it’s good against the world, i.e., that people who aren’t parties to some contract still have a duty to not violate it. It explains the silly hypothetical that Mike and Rick are getting excited about.
Re: Re: Re:3 Re:
Are you sure you are not confusing what they are referring to as “property” ? Property is not a right. The right governs what can be done to such property.
Thoughts, as anyone can have them and multiple sources can arrive at the same thoughts, or ideas, should not be subject to copyright. That’s a slippery slope and damages cultural development.
IP should go back to just trade secrets. It does NOT promote societal development like first intended.
It’s been exploited because the original laws assumed some sort of common sense and fairness to all, not monetize and lock it up perpetually because of the quest for maximum profits.
Re: Re: Re:4 Re:
Are you sure you are not confusing what they are referring to as “property” ? Property is not a right. The right governs what can be done to such property.
In the law, “property” refers to the rights in a thing. The thing itself is usually never referred to as property. So when a lawyer is talking about property, he’s talking about the rights in a thing, such as the right to use, enjoy, possess, alienate, etc.
Re: Re: Re:5 Re:
So the land titles transfer, when I bought my house, was not transferring the physical property, the house, from the previous owner, but the rights to access/build/destroy/pay taxes/live-in/enjoy the house?
Is that what you are saying?
Re: Re: Re:6 Re:
Not at all. I’m saying that when a lawyer or a court refers to property, they are usually referring to the rights in a thing and not the thing itself. If a tornado destroys your house such that not even a single board or shingle remains, your rights in that house are not lost as well. It’s those rights that you would be enforcing when you made a claim with your homeowner’s insurance.
Re: Re: Re:7 Re:
God that gets dull. You conflate ideas and spout the same total rubbish over and over again as if that makes it true. You endlessly pick at irrelevant and pedantic semantic differences of a single word and either run away from the point any time someone comes near one or find a reason to spout the same rubbish yet another time ad-nauseam. All the while screaming how Mike knows nothing because he won’t debate you when even a 4-year-old can see that you’re not interested in debate, right or wrong or even working and not working. You’re just intersted in getting what you want, “winning” (whatever that looks like to you), and avoiding the chance of having to pay attention to anyone’s opinions or prejudices but your own unyielding ones.
My undying wish is that Techdirt will add the ability to collapse threads so I can easily skip anything with your irrelevant spam in it. My hope is that Dante was right about what comes next for you.
/rant
Re: Re: Re:8 Re:
We all agree that copyrights are not contractual rights. But if they’re not contractual rights, then what kind of rights are they? The answer is that they are defined to be and are treated as property rights.
Re: Re: Re:9 Re:
No, that’s your answer not the answer.
You regularly prove yourself uninterested in anything that might disturb your unyielding assersion that this is “correct”, but that doesn’t mean there are not many other answers at least 1/2 of which are likely rather more “correct” than yours whether you ignore them or not.
However, on the off-chance that a chink of the outside world might occasionally intrude on the perfect world in your head, I will say the answer is not binary no matter how much you try to conflate the 2 things.
Re: Re: Re:10 Re:
No, that’s your answer not the answer.
You regularly prove yourself uninterested in anything that might disturb your unyielding assersion that this is “correct”, but that doesn’t mean there are not many other answers at least 1/2 of which are likely rather more “correct” than yours whether you ignore them or not.
However, on the off-chance that a chink of the outside world might occasionally intrude on the perfect world in your head, I will say the answer is not binary no matter how much you try to conflate the 2 things.
LOL! Priceless.
Re: Re: Re:11 Re:
Hardly… this is copyright we’re talking about. I’m reliably told the price is $150,000 per quote.
Re: Re: Re:10 Re:
This guy makes salient points and all you people do is insult him and censor his posts.
You people are truly the worst of the worst.
Re: Re: Re:11 Re:
Not everyone is doing that, only one or two are attacking back.
The ‘reporting’ is a bit disturbing because there’s no need to report, nothing was inflammatory.
Re: Re: Re:11 Re:
Rarely. And even on the rare occasions that that is true his technique is identical:
1/ Spam the same opinion over every post that even vaguely relates to his talking points. (usually this will be a pedantic and often irrelevant semantic or legal point, though it’s true sometimes it has relevance but after a while it becomes hard to maintain the will to tell)
2/ Ignore and/or insult anyone that attempts a debate of the “facts” he has stated, usually the salient points of rebuttal being to restate in a subtly different way exactly the same thing he said before whether relevant to what the person said or not.
3/ Include as often as possible personal insults to Mike Masnick, who presumably kicked his puppy at some point in the past, and challenge him to “debate” his chosen talking points.
4/ If Mike Masnick is daft enough to engage, respond with “but you didn’t answer why won’t you admit I’m right” and variations there-on to everything he says.
Observation of a repeated occurence is not insult and trying to discourage spam is not censorship, especially when the “censorship” is removable with a single click of the mouse.
Re: Re: Re:9 Re:
Again, there is no tangible exclusivity native to the content, thus it cannot be property in a traditional sense.
And before you say “the law makes it so”, I refer you to the word native above; that is, inherent in the content.
Re: Re: Re:9 Re:
So, if it is property, how much property tax should Copyright holders pay?
What is the depreciation on said property?
Re: Re: Re:3 Re:
Thinking of ‘intellectual property’ as physical property does better explain the intent behind the current tangled mess of laws we have today.
But ideas, knowledge, and information are not physical objects. You can’t really ‘own’ an idea. The closest you can come is to have an idea and not tell anyone. But what happens if someone else half-way around the world has the same idea as yours and tells everyone they know? They didn’t copy your idea, because you told no one. They didn’t ‘steal’ your idea either, coming up with it completely on their own. Do you still ‘own’ your idea? Do they ‘own’ theirs?
The same applies to knowledge and information as well. If I know what a page in a book says, what keeps me from sharing that knowledge/information with others? In the past, there were technical barriers to sharing information. With the advent of the internet however, nearly all remaining technical barriers are gone. No longer is there a barrier between content creators and their audience. That is the beauty of the internet, but it’s also the bane of legacy industries with obsolete business models that relied on the technical or artificial restriction of information.
The only barrier left to freely communicating knowledge and information is the artificial restrictions of ‘intellectual property’ laws themselves. Ironically though, these laws are limited to being regional, which causes all sorts of issues when applied to the non-geographically-restricted internet. The resulting tangled mess really does nothing but slow cultural progress. Money transferring as a result almost never makes it back to the original content creator, instead being gobbled up by lawyers, legislators, lobbyists, and legacy distribution industries. There are plenty of examples of content industries thriving without being propped up by artificial legislative restrictions. Competition is fierce in those industries as they are constently evolving, but is that not the whole free market concept?
Re: Re: Re:4 Re:
Thinking of ‘intellectual property’ as physical property does better explain the intent behind the current tangled mess of laws we have today.
Copyright is not physical, tangible property. Copyright, like all other types of intellectual property, is intangible property.
But ideas, knowledge, and information are not physical objects. You can’t really ‘own’ an idea.
Sure you can. That’s what a patent is.
Re: Re: Re:5 Re:
“Sure you can. That’s what a patent is.”
That’s not what it WAS! Again, original intent of the patent was for a temporary monopoly on who could use your IMPLEMENTATION of said idea.
After a reasonable expiry date, anyone could build upon said work WITHOUT OWING YOU EVEN A DIME!
And that molestation is only recent, thanks to the concept of Intellectual Property having the same rights as physical property – only people completely ignorant to thinking with logic and seeing the slippery slope such concepts would bring us (aka politicians) would accept such nonsense.
Re: Re: Re:5 Re:
No, a patent is a legislative attempt to artificially create a concept of physical ownership over an intangible concept or idea.
Re: Re: Re:6 Re:
No, a patent is a legislative attempt to artificially create a concept of physical ownership over an intangible concept or idea.
Yep. The rights are created by statute. But that doesn’t make them artificial. They are 100% real. They are a person’s property just the same as any other proprietary rights. You guys love to through out that “artificial” line, but you never explain why it matters that they arise under statute. You have lots of rights that come from statutes, and they are all very real.
Re: Re: Re:7 Re:
Why it is artificial was covered in my original post (second paragraph).
Re: Re: Re:7 Re:
Simple rule. If I can see it and/or touch it, it’s real property. Otherwise it’s artificial.
Re: Re: Re:3 Re:
Copyright law gives property rights to authors. It’s really simple. I know it melts the brain of most here to even consider the possibility that copyright is property, but the fact is that its been acknowledged to be property for centuries.
Copyright law creates psuedo-property-like rights to authors. These rights are an artificial construct of law, and not a natural property right, and in the creation of these rights, other rights are taken away from everyone else.
Most here understand this perfectly well. We understand why some people want to be able to exercise artificial control over knowledge/ideas/culture/content. But just because people want this artificially created right does not mean that the right is a good thing, nor that it is required.
Many here are fine to agree that some types of copyrights may be a net benefit to society, if given the evidence that supports that idea. Others of us feel that any restriction on the free flow of knowledge/ideas/culture/content is a detriment that may even outweigh the benefits.
Removing these artificial economic rights would not be completely unprecedented. There was a situation, in this country, where the rights of one set of people conflicted with the rights of others. In the end, the human rights won out over the economic rights, and those economic rights were taken away. Have I given enough clues to the situation I speak of?
Re: Re: Re:4 Re:
Copyright law creates psuedo-property-like rights to authors. These rights are an artificial construct of law, and not a natural property right, and in the creation of these rights, other rights are taken away from everyone else.
I get that you can frame it that way as a rhetorical device, but I don’t get why it matters. You can describe all of your rights that arise under a statute as being an “artificial construct of law,” but those rights are very real and very enforceable. They carry the complete force of law behind them just like all of your other rights. Trying to paint them as fake is… well, fake. They are very, very real. Exactly as real as all of your other rights.
Most here understand this perfectly well. We understand why some people want to be able to exercise artificial control over knowledge/ideas/culture/content. But just because people want this artificially created right does not mean that the right is a good thing, nor that it is required.
I agree. Just because we do something one way doesn’t mean that we’re doing it the best way. It also doesn’t mean that we’re not either. Calling it “artificial” doesn’t tell us anything. If you think you have a better way of doing things, tell us that. That would be more useful than just complaining about the status quo generally.
Many here are fine to agree that some types of copyrights may be a net benefit to society, if given the evidence that supports that idea. Others of us feel that any restriction on the free flow of knowledge/ideas/culture/content is a detriment that may even outweigh the benefits.
Sounds good. Now how do we decide what evidence is important? And how do we account for the benefit that the restriction on the free flow on information (through the incentive of exclusionary, marketable rights) brings with it? Don’t forget that we put up these artificial barriers to the free flow of information for a reason. It’s not all bad. The reason we do it is because it is perceived to be net positive.
Removing these artificial economic rights would not be completely unprecedented. There was a situation, in this country, where the rights of one set of people conflicted with the rights of others. In the end, the human rights won out over the economic rights, and those economic rights were taken away. Have I given enough clues to the situation I speak of?
If “free” is better, “free” should prove it. Nothing is stopping “free” from proving it except for “free.”
Re: Re: Re:5 Re:
I get that you can frame it that way as a rhetorical device, but I don’t get why it matters.
If you don’t understand why rhetoric matters, why do you keep throwing the “intellectual property” term around? It was created for exactly that reason.
If you think you have a better way of doing things, tell us that. That would be more useful than just complaining about the status quo generally.
Did that last week.
Now how do we decide what evidence is important?
All evidence is important – that’s how science works. That’s why it is extremely important that the evidence be gathered in reliable ways and with clear methodology, and that it is open to criticism. There may be some evidence that is more significant, but all of it is important.
And how do we account for the benefit that the restriction on the free flow on information (through the incentive of exclusionary, marketable rights) brings with it?
As Mike has repeatedly stated, he wishes to see experiments performed that can test those assumptions. There are various ways this could be accomplished – large copyright-centric businesses could experiment with more permissive uses of their content – whole countries could dramatically revise their copyright laws to experiment with more permissive sharing of ideas and content.
Nothing is stopping “free” from proving it except for “free.”
We all know that isn’t true when “free” is under constant attack from “restricted” (and I’ll admit, vice versa, its just “restricted” has the weight of law and the full powers of government behind it at present, as we saw tragically demonstrated with Aaron Swartz).
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“Mike says the sky is blue, but if you pay close attention like I have he doesn’t say it’s not green! The sky has always been green; why won’t you debate me, Mike?!”
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This is not only untrue, it is specifically called out by the founders as untrue in their published debates about whether or not to include a copyright allowance in the Constitution.
Right to contract?
What is this right to contract thing? Or rather what do people mean by the phrase when they use it?
Is it a right to have the government compel people to whatever terms you may have tricked or coerced them in to giving the vague appearance of having agreed to?
Why is it people who argue so vehemently for small government worship this right to contract? An action by the government to enforce a contract is government action.
Re: Right to contract?
It’s like what you said. It allows the strong to compel the weak without resorting to a Mad Max scenario with guns and odd looking fellows on dune buggies.
Although it’s not a total bed of roses in contract law. There are a few meager controls that exist to prevent too much abuse. Although those seem to be under attack lately too.
Copyright is one sort of contract
Copyright is (was originally)a social contract between the collective content creators and the collective public. So in this sense, if you don’t like the contract, don’t write it into law, and/or have your elected officials remove it from law.
Of course, since the elected officials don’t actually belong to the public, the point is moot.
Good Discussion So Far - overall
Congrats! 38 comments and so far, very few attacks!
Re: Good Discussion So Far - overall
I’m left scratching my head as well. Okay, the guy on the other side of the fence is actually talking politely and isn’t loading his points with ad homs. Could it be? Someone who believes in copyright actually willing to discuss them in a sane and rational manner? All right, I think he’s a moron for believing in copyright anyway and his points are nonsensical…but he is still being polite (for the most part).
Re: Re: Good Discussion So Far - overall
I’m left scratching my head as well. Okay, the guy on the other side of the fence is actually talking politely and isn’t loading his points with ad homs. Could it be? Someone who believes in copyright actually willing to discuss them in a sane and rational manner? All right, I think he’s a moron for believing in copyright anyway and his points are nonsensical…but he is still being polite (for the most part).
Care to explain what points are nonsensical? I am trying to make sense, and I’d appreciate the lesson if I’m not.
Re: Re: Re: Good Discussion So Far - overall
There’s a fundamental disconnect between tangible and intangible, and how that relates to property rights in general. There are, of course, edge cases (such as hjedges overgrowing etc.)
Re: Re: Re:2 Good Discussion So Far - overall
I’d say contentious and non-contentious rather, but yes. The major difference of copyright from other rights that work in somewhat similar ways is that you can infringe the “right” without changing anything that the “rightsholder” has, except in an entirely imaginary way (i.e. the potential loss of imaginary money).
Maybe I’m just not thinking broad enough, but I can’t think of another “right” that acts in that way. I’ll admit I’m struggling to think of an analogy or example, but to me an “intangible” right leaves open the possibility of a right being infringed with direct effect on the rightsholder.
Either way “property or not property” is a red herring – copyright is copyright and has similarities to other types of right, but differences also and should be dealt with on its own terms.
Re: Re: Re: Good Discussion So Far - overall
Remove copyright and my rights are restored and you still have your rights.
Re: Re: Re: Good Discussion So Far - overall
I’m just going to throw this out and then I have to go to bed. What I think is nonsensical from your comments is your argument that copyright is a property right. If so, its a massively distorted and invasive right, because in order for you to enjoy exclusive distribution, you have to invade and restrict MY property rights, what I can do with my own equipment. You own the copyright to a movie? Well that means that the DVD I bought and the DVD drive in my computer are now of much less use to me, I can’t fully enjoy them. Even though there is no way for you to perceive what is happening where I to rip the DVD, your copyright limits me. You benefit, and I don’t, in any way.
1) You buy your CD (you agree to whatever contract terms)
2) DMCA happens, contract terms completely change without any sort of agreement from you.
3) The Law changes again, and you are bound to new terms, the terms get worse for you again, and again you have no recourse. These new terms could be anything. No agreement neccessary whatsoever
4) repeat over and over until the “terms” (which, if we are being honest, you never agreed to in the first place) hardly even resemble the ones by which you are bound.
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Don’t forget no grandfathering!
A general copyright response
Hi all, thought I’d provide some counters to the general group think going on here. I think there’s a couple worthwhile points to note for the other side of the IP divide:
1. Copyright is actually remarkably like a shrinkwrap/clickwrap contract, where you are bound the moment something comes into your possession OR you install it. Thus, such contracts essentially do “function against the world,” rather than two negotiating parties. This has actually been an issue of a decent amount of academic thought (and many cases discussing preemption of copyright by contract). I think this post and comments are a little too quick to dismiss the relationship between copyrights and contract.
2. Let me attempt to argue the idea that copyright is a property right.
Let’s begin with the concept of physical property. What exactly is it that makes a physical item become your property? Let’s digress and first note that there have been many cultures that don’t think that physical things even are property.
So try explaining it to these people. What makes something “my property”? Ultimately, you’ll describe it this way: it’s a series of rights the property-owner has to exclude others from using said property in various ways.* What gives you these rights? The law and society. Thus, property as a concept is inherently an artificial construct of law and society.
Further, not all physical property has in it the same property rights. For example, your property rights to something you’re leasing versus something you own outright are different. What you own outright you have FAR MORE rights to — for instance, you can sell it right now without consulting anyone (some exceptions for real estate notwithstanding).
So, now that we know that property rights are nothing but the right to control the use of property, and that these rights exist only in that they are societally/legally enforced. We also know that different kinds of property can have different property rights in them. Now, why can’t this idea apply to ideas as much as physical property?
There are a couple arguments, but I think none of them hold. Some people note that physical property seems more “natural,” and that everyone discovered the concept easily a long time ago. It’s common/natural-law justified, not statute-based. But that seems a weak distinction — why is the fact intellectual property is more recent and statute-based in any way a disqualifier? Statutes are still based on law and society just as much as common law. They seem to just be a more advanced understanding of property.
Another argument is that when intellectual property is taken, it’s actually merely copied, not stolen (unlike physical property). But that doesn’t prove much. As noted before, different kinds of property can have different rights in them. Why can’t intellectual property rights include a prohibition against copying, if society determines said copying harms the property owner? In other words, doesn’t the fact ideas are different than physical things mean they just deserve different property rights?
The last is over the general economic/philosophical justification for intellectual property versus physical property (as shown by that one guy throwing around “natural law”). But we can also argue over whether there’s any economic/philosophical justification for property rights over physical items, and that doesn’t really alter the fact said physical items are still property. (And there are many philosophical (e.g. Locke) and economic justifications (free-rider) for intellectual property.)
*This also responds to the posters claiming that copyright is just a bunch of restrictions, rather than property. Property is NOTHING BUT a bunch of restrictions on the use of something. There’s also one post discussing “user’s property rights” and how copyright upsets them. But that’s true of all property rights — this computer being my property prevents ends your right of taking it.
—————————
Anyhow, I hope this elucidates a general perspective outside the norm on this post. I’m sympathetic to more limited IP laws, but I don’t think that makes it not property. And I think the contract distinction is too easily dismissed.
Re: A general copyright response
Really the whole argument and in to some extent this article is pretty much completely irrelevant. The reason to debunk arguments made like “copyright is like a contract” or “copyright is like property” is that they are most often used as an excuse to justify even more restrictions.
How about we start the argument “copyright is like copyright” and recognise it for what it is;
Vastly over long in term
vastly over-restrictive of other people’s rights
horribly biased towards those with the most money
horriby biased towards middlemen, especially large middle men, rather than creators or consumers
horribly out of date and utterly un-related to modern society
pointlessly and without any sense of balance to reality overly harse in penalising minor offenses.
apparantly largely inneffective at its stated purpose
very bad for education and culture in its current form
and think about ways that might be fair and reasonable for everyone instead of about an irrelevant argument about what it’s like?
Re: A general copyright response
If I may disagree with you on this, your argument might seem to make sense, however we argue over the use of the term “stolen.”
No one is deprived of the idea simply because someone copied it. If you have a great idea and you tell someone, you’ve just copied it. It’s now your idea and the person you told. That’s the limit of the natural right with respect to ideas.
What matters is the implementation of said idea. What matters more is the concept of “stealing” an idea. You were not deprived of that idea. If you told no one, it doesn’t have any rights at all.
It only has rights once you register your implementation of your idea, that’s how people hear about it, that’s how it earns rights. The physical side is easy to understand, as when someone steals, you are deprived of it.
But you’re trying to argue that the rights are violated when something is copied. In the physical world, your rights are not violated by a copy. You still have it! You can still use it, your rights are still applied.
How is that any different from ideas? You still have your idea, just like the guy who copied your lawnmower, you have yours and he has his, none of your rights have been violated.
If you want to try to extend the concept to exclusivity, then that’s a different page. Exclusivity is meant for implementation of said idea and is not very beneficial to society. If two people think of the same idea, which has happened many times, the “law” grants the rights to however gets there first.
Telsa was the first to transmit signals through the air, not Marconi. Who gets the rights to the idea? Why should their even be rights applied to such ideas?
Ideas is the wrong word, it is implementation of said idea. Ideas are imaginary and can only be copied when openly shared. However, unless the idea is released from the brain, in the form of an implementation, it’s useless to the world and to the creator.
And while you argue that society determines that copying harms the owner, that is highly subjective by the way, it doesn’t cover how society is benefited by the copying.
That’s the whole point we’re arguing. People are overly concerned about the owner and not the progression of society which is the whole freaking point of said IP laws, both copyrights and patents.
How do you further innovation if no one can build upon it?
The idea was originally meant to give exclusive rights (once it was copied from the head to the real world – shared – and registered – assuming they got there first) so the person could decide what to do with it before releasing it for others to build upon.
Generally, people chose to make a living during that exclusivity period, and during which time they would create something new to be registered and released in hopes of earning a living. It doesn’t have to be that way, it could have been given away. Living is not a requirement. Temporary exclusivity is.
The problem that is real and that a majority here have is the extension beyond reason of said rights, combined with the convolution spread about by those choosing to interpret laws beyond original intent.
Back to your physical vs idea, if your idea was something only you could use, it wouldn’t really matter much about the level of rights you had, as the implementation would really only be applicable to you. Same goes with your car or lawnmower, they are applicable to you.
If your implementation of the idea could benefit society as a whole, it should be given to society to build upon at a reasonable point in the future. That’s gone, 70 years after death is NOT reasonable! Patents of 25yrs are dumb, seriously, our progress today does not match exclusivity time periods.
So you can argue all you want about physical rights being artificial, but that does not mean the general feeling here is wrong.
Laws are meant to benefit society, by protection. When laws are contorted by people conflating concepts, intentionally trying to distort reality and enable rights that cannot be naturally applied, the system fails to protect society.
Remember, once you share it, without the laws, it is everyone’s natural right who hears the idea to implement it. That is how society benefits from ideas and progresses. To be fair to creators who bust their butts for said ideas, they are granted temporary rights that are beyond natural rights of society, to provide a benefit, while they create something else!
And by natural right, it’s simply that, something that feels natural to do, like sharing! Some restrictions are implied, but it is only when you are being deprived of something. Because your idea was copied is not much of a deprivation compared to someone stealing your house or car, leaving you without.
No one has the right to a living! No one owes you that.
So ideas do not have the same physical needs and thus if lost or copied (as memory erasure isn’t possible yet they cannot be stolen) you are not in any deprivation of need.
So, why are restrictions on such properties, as you refer to them, so damn high and so detrimental to society?
I’ve never heard the Copyright is like a contract argument before, only the Copyright is a social contract point in that it is agreed that the owner gets a limited monopoly, but after a certian amount of time it becomes public domain, and comments on how the owners have at this point effectively broken the contract.
Can we stop fucking well pressing report on posts that are in NO WAY trollish, harmful, hurtful, or in other ways harassing.
Otherwise it just looks like petulant behaviour because you don’t like what someone has said at one time you know just maliciously press report no matter what they say. Either that or we have a whole heap of trolls and malcontents who have nothing better to do than report posts
/end rant