Jim Harper's Favorite Techdirt Posts Of The Week

from the i-have-opinions dept

Howdy!

For those of you who don't know me, I'm director of information policy studies at the Cato Institute in Washington, D.C. I work mostly on privacy (including such things as anonymity and the Fourth Amendment), and also on telecom, intellectual property, government transparency (lots of that lately), and protecting the country from counter terrorism.

I'm a native of California and a lawyer. I always take it as a compliment when people who talk to me figure out the first one and have no idea about the second. On my Twitter feed, I sometimes share glimpses of the pageant that unfolds weekend nights, late, on D.C.'s buses.

I have opinions. I want less coercion in our society.

We're all agreed on opposing private violence such as rape and murder, but a lot of people indulge public violence too easily. Some people are OK with state violence visited on innocent foreign people because it might make us safer here. It won't, but no matter because the violence is remote in distance (I guess that's their thinking).

Some people are OK with economic regulation, taxation, and redistribution of wealth for a similar reason: The state violence behind it is conceptually remote. I want less of that, too—a truly peaceful society built on cooperation.

I was listening to "Screaming at a Wall" by Minor Threat when I wrote those last bits. Perhaps that's a metaphor for what I do much of the time. It's very hard to reach people with a possible insight at a moment when they're receptive to it.

What You're Dealing With When You Go to Congress

Hands down, my favorite post of the week goes after Rep. Louie Gohmert (R-TX) for his technical ignorance. I like Louie Gohmert. I think he's funny. He's a real character. And, I mean, his name sounds like "Gomer."

But I sure wouldn't want him governing me.

The colloquy featured in the post is very similar to one I had with a senator after I testified in the Senate Commerce Committee a few years ago. 'How are my searches giving my email over to the spammers?' That kinda stuff. Oh lord.

It was a Republican doing the asking that time, too. But congressional ignorance is a bipartisan problem—sometimes on matters even more basic.

I think a lot of people believe so strongly in democracy that they apply their ideal vision of Congress when they think about what Congress and the government might do. The reality is very different.

It's not that all members of Congress are gomers. They and their staffs are very smart, very dedicated people. But they haven't got the knowledge to organize a society as large, diverse, and open as ours.

Mike says at the end that we need better politicians. There are better, but the system that runs society better than we could ourselves? It does not exist.

Don't Trust the Cloud

I hang my head in shame for all the people who have jumped on the "cloud" bandwagon, and the post expressing skepticism about Google's new "Keep" service in light of Google Reader's demise expresses an important dimension of #cloudfail.

It's absolutely true that "cloud" makes sense given the current state of technology. You don't want to run your apps and your storage on your home server, because most of you don't have one. (I don't.) And you don't want to keep up its upkeep.

But what price do you pay for throwing everything up onto that "cloud" thingy? Greater risk of third-party access and your privacy's undoing, for one thing. Cloud services also can fail. "Cloud" is a marketing term that confuses people about the fact that there are network operators and software and database managers who have duties and responsibilities to their customers.</rant>

There will come a time—give me a long enough time horizon and you know I'm right—when software will be so stable, hardware so cheap, and connectivity so replete that throwing sensitive data and documents onto someone else's servers will seem like an embarrassing mistake.

That's not the point of the post, but it allows me to stretch for that point. I'm old enough to have played games on a mainframe through a teletype machine. I made copies of letters with carbon paper! We looked up information in books! And liked it!

The technology will change the economics, and I think "cloud" will go.

A solid institution like Google yanking Reader is just one, non-devastating dimension of #cloudfail, but other undesirable things can happen with cloud services.

The Business Model Problem

Nobody beats Masnick for illustrating that there are business models that can compete with "free." He apparently has a rival in Glyn Moody, though, who wrote this week about the wave of newspapers in London reducing their prices to zero.

That is classic Techdirt. And it makes Techdirt...how shall we put it...non-beloved by the copyright-reliant folks out there.

You'll be interested to know (or maybe not) that libertarians are divided on intellectual property laws. Some regard them as a gross imposition on the natural right to say and read and write and use whatever knowledge you want to. Others regard ideas and expressions as the rightful property of their creators, rightfully defended from expropriation by government in its proper role as a preventer of rights-violations. I did my best not to tip my hand at a Cato book forum on the topic this week. Haha!

Libertarians are even divided on whether you should call it "intellectual property" or not. I think it's fine to call it that.

I make a curious distinction—too rare in discussions of these topics—between intellectual property, the myriad things produced by cognition and volition, and intellectual property law, which is the assortment of statutes that extend greater control over intellectual property to certain of its beneficiaries. We should have a name for these things: inventions, expressions, and other ideal objects. "Intellectual" modifies "property" much the way "real" does when the object you're talking about is a chunk of earth.

Intellectual property laws have a very different reason for being than property laws pertaining to physical goods. That's what matters most.

Another "That's So Techdirt!"

Mike came up with the "Streisand effect" and don't you forget it.

So I had to love the triple-Streisand featured this week. What a bunch of maroons there are out there who think they can bully legitimate commentary and other good stuff off the Web.

Don't like that I said that?! Just let me know, and I'll take it down... :-/

Honorable Mention

Thanks, Techdirt, to the shout you gave to our Wikipedia and legislative data workshop late last week.

We've been working on modeling, advocating for, and now producing better government data, starting with legislation.

In short order, we're going to start systematically reporting on notable bills in Congress on Wikipedia, building the public's capacity and demand for information about what goes on in Washington, D.C.

Our data is perfectly amenable to many uses. Let me know if you want to build something with it.


Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Mar 23rd, 2013 @ 12:15pm

    Bad week for Pirate Mike, Minions, Little Pirates,

    and fanboy-trolls with court cases and empirical evidence sinking their notions.

    Here's my summary view of the most important items of the week:

    ) IsoHunt STILL guilty! Court finds that connection between infringed content and IsoHunt income from advertising is direct enough when along with clear knowledge of content available and using it as draw for the site.

    ) Meltwater loses against AP: scraping headlines is NOT "fair use": it gains most of the value of a work without returning any benefit to the creator.

    ) Even Mike Masnick accepts the general validity of a study on Megaupload that shows the shutting down of that one file host increased legal sales from 6-10%. Masnick spent a paragraph trying to undermine its authors with ad hominem, tried to undermine methodology but couldn't, so goes on to muse that the obvious conclusion simply can't be true. But the nails have now been drawn from a key pirate plank and it's been tipped overboard, never to be seen again.

    ) In a transparent attempt to minimize the Megaupload concession item Masnick juxtaposed it with an inconclusive one on mere music, followed by another in which he pretends to objectivity, and begins to align his notions with the reality of law and facts as tested by courts. Now he's claiming to have been right all along and industries are at long last coming round to his way of thinking.

     

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

  2.  
    icon
    James Burkhardt (profile), Mar 23rd, 2013 @ 12:45pm

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    Could you link to that Megaupload article? Because I cant find it. It is especially egregious considering you just scraped Techdirt's headlines. You just violated their copyright according to the Meltwater ruling you just applauded.

    Also Meltwater is a ruling inconsistent with other American court cases, disregarding volumes of case law regarding what constitutes transformative use. Combined with the court conflagorating different conceptual businesses (both News Reporting/News Aggregation and licensing snippets/Full articles), appeals are wide open.

     

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

  3.  
    identicon
    Digitari, Mar 23rd, 2013 @ 1:05pm

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    legal sales of WHAT exactly OOTB, you didn't say so it could be anything. legal sales of candy bars??

     

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

  4.  
    icon
    saulgoode (profile), Mar 23rd, 2013 @ 1:29pm

    Imaginary property

    "Intellectual" modifies "property" much the way "real" does when the object you're talking about is a chunk of earth.

    The converse of "real" is "imaginary", to my mind a more apt modifier.

     

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

  5.  
    icon
    Jay (profile), Mar 23rd, 2013 @ 1:53pm

    " It's not that all members of Congress are gomers. They and their staffs are very smart, very dedicated people. But they haven't got the knowledge to organize a society as large, diverse, and open as ours.Mike says at the end that we need better politicians. There are better, but the system that runs society better than we could ourselves? It does not exist."

    So how exactly do we get smarter politicians if the people aren't represented by them in the first place?

    We have gerrymandered districts, bribery of politicians, a perpetual crunch of money raising, and few times for pols to listen to constituents. I can't feel that it's horribly naive to ignore how people need to be active in politics and have avoice that is not present in our current system.

     

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

  6.  
    identicon
    FighttheChristianTaliban, Mar 23rd, 2013 @ 2:20pm

    Jim

    Jim do you slap ReaganVooD­ooTrickleD­ownGoldenS­howerPizzO­nYou economics 101 Conservative redistribution of the wealth of the 99% to the 1% and Nationalist Reagan Socialism, promoting a fascist aristocracy and disposable human beings as much as you slap those wanting fairness for the 99%?

     

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

  7.  
    identicon
    Eponymous Coward, Mar 23rd, 2013 @ 3:13pm

    "Others regard ideas and expressions as the rightful property of their creators, rightfully defended from expropriation by government in its proper role as a preventer of rights-violations."

    Maybe it's time we update the child's taunt: 'Monkey see, monkey do...'
    ...but human see, human do, "hey! you stole my IP" human sue!

     

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

  8.  
    icon
    jameshogg (profile), Mar 23rd, 2013 @ 3:27pm

    Verbs, not nouns.

    (I seem to have typed a ton of stuff... again. I apologise if my points are too long here).

    I am glad that you mentioned that Libertarians are divided on intellectual property issues. Libertarians are rarely divided at all, which is all the more so why it ought to be pointed out to the most zealous Copyright maximalists - even the political branch that is most committed to property rights and consistent principles of small government cannot make up its mind about IP.

    The best way to think about IP is this: it is what is called in Linguistics a "nominalisation" - meaning the description of an action as if it were a tangible thing. Or in other words, turning a verb into a noun. We do it all the time as Psychologically easy representations: things like "love", "anger", "happiness", "success" do not actually exist as things you can put in a wheelbarrow. They are actions, not tangible objects. Yet, we talk about them as if they are things we can touch with our hands. "My love for you", "anger can be power", "happiness is all you need", "my success is paramount", etc. It is natural for humans to do this, but realists would say that you cannot tangibly hold these things because they are actions and not objects.

    From this it is all too easy to see why humans would apply the same thinking to intellectual creations. Even although a market lies with creativity, we prefer to transform that market into one of creatIONS as a response to the supposed idea of the "free-rider" problem: instantly copying something for yourself with little-to-no cost which took the original creator much labour and cost. But this free-rider problem would only really exist if ticket-based admission was for some reason forbidden to take place for, say, album development while being allowed for rock gigs. There is no reason why an artist cannot set up a ticket-admission-system to collect funds for his creative labour for a book, big-budget movie, TV series, software development, etc in the same way that musical teams, theatre performance teams or pantomime teams have done so for centuries.

    Tickets, as you know, eliminate the free-rider problem because they are refundable upon a performance not going ahead, meaning that everyone keeps their share. And there will no doubt be ways of insuring these refunds in the same way that those publishers who rely on IP today are confident in investing in the labour knowing that they will have to take the fall if the projects flop halfway. There is also the possibility of insurance markets in these areas. "Good credit ratings" may indeed apply to those who can be trusted to deliver creative projects without fail. These are noteworthy parallels indeed.

    This is how you talk about creativity as a verb, not a noun. Those who use ticket-based incentives to put on performances, whether it is Muse playing in massive stadiums or sport's teams doing likewise, are revolving around intellectual SERVICING, the verbal alternative to the tangible intellectual property, and with none of the human rights compromises.

    I have yet to hear why Copyright believers do not think the ticket system can apply to high-labour projects. Often, they try to put forward the argument of "retroactive incentives" - the right to gather funds for your work long after the work is done, which is an IP-based argument. To someone like me who sees things through a lens of intellectual servicing instead, the retroactive funds simply do not make sense.

    If you sell a house for a good amount of money only to find that the person you sold it to has discovered a priceless artifact buried in the garden that is worth millions, you would not then be able to demand that the deal be reversed so that you can get your "fair share" of the value of this artifact. The deal was already done. And in the same way, it is hard to see why IP should forever be maximalised on the basis that an IP "could potentially make millions 20 or 30 years from now, even although the labour only costs hundreds right now." Nobody would ever be able to trade like this with physical property rights or service-trading rights. The buyer of that house simply would not buy if the discovery of such an artifact would mean he'd lose out on the house and artifact completely.

    Intellectual servicing also means that markets are not destroyed as they would have been under IP. IP makes deviant markets bound by the "permission" of the original artists, therefore making the deviant's rights to his fruits of labour open to oppression. However with intellectual servicing, this line of thinking would not exist as both the original AND the deviant's fruits of labour would be protected. The fashion industry is a prime example of this, where both original and deviant services are respected and encouraged. And as a result, cultural evolution of markets thrive to much economic benefit. IP laws introduced in this area of fashion business would, as has been pointed out many times, destroy the existence of these thriving markets in a Communist-like manner.

    If IP, particularly Copyright, is going to make the claim that this destruction is worth it because the free-rider problem is "unsolvable otherwise", it better be able to back up that claim. But it cannot. Copyright still cannot prevent people from free-riding, such as the person who watches preowned DVDs only to resell them for the price he bought it for, and listens to simply borrowed music, without giving the artists a penny (the only thing being deprived here is the ability of the two traders to watch the movie simultaneously, which let's be honest is very little to consider economically - and even THEN, two people can easily watch the same single DVD on a TV at once and follow every Copyright law in the book). Also, in a world where you can pirate any multimedia for free, people nonetheless still pay afterwards, which indicates a moral force that can exist without the need for Copyright's existence.

    These two facts put the bold claims of Copyright to doubt. To say that Copyright can "control morality" in the way it wishes is a claim that is parallel to the Conservative impulse of creating "deterrence" to control morality, which has long been frowned upon - why should we revolve society around a train of thought that bases its moral decisions on the grounds that "it is the law"? If you met someone who said that "the only reason that I don't kill anybody is because there is a law against it", would you treat such a person with respect? Or what about "the only reason I don't kill anybody is because God tells me not to"? This is why all of your alarm bells must ring whenever somebody claims to you "the only reason you fund artists whenever you experience their creativity is because there is a law that says you must - without this law, you would be a dickhead who couldn't possibly know right from wrong".

    The enforcement of Copyright is in this day and age is now probably more futile than the war on drugs, which is saying something (and probably more futile than the war on prostitution for god's sake... and that is pretty fucking futile... pardon the pun). Yet, all the evidence shows that creativity is booming much greater than ever before. Whenever file-sharers are told that every file-shared is somehow "one sale lost" for the artist, they quite rightfully laugh as they pay their debts accordingly.

    This is because, as I keep pointing out, we have a tendency to fund the SERVICE of creativity, and not to bother wasting so much time about whether the copies of the intellectual property should each be funded. Occam's Razor is on my side here, and I can claim it confidently.

     

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

  9.  
    identicon
    Anonymous Coward, Mar 23rd, 2013 @ 3:57pm

    Re: "Others regard ideas and expressions as the rightful property of their creators, rightfully defended from expropriation by government in its proper role as a preventer of rights-violations."

    Human see, human do, human sue.

     

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

  10.  
    identicon
    Anonymous Coward, Mar 23rd, 2013 @ 3:59pm

    Re: Re: "Others regard ideas and expressions as the rightful property of their creators, rightfully defended from expropriation by government in its proper role as a preventer of rights-violations."

    Actually, since patents are vague and ambiguous and no one really reads or writes them for non litigious reasons (or to avoid being sued), it's more like,

    human do, human sue

     

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

  11.  
    icon
    special-interesting (profile), Mar 23rd, 2013 @ 5:04pm

    Jim; Only a small detail but an feel an important one. The rest was good and interesting.

    Your comment ”,whether you should call it "intellectual property" or not. I think it's fine to call it that.”

    Because its normal human nature to be swayed by phraseology maybe its not a good thing that the word “property” be used. Such a possessive word implies ownership of ideas and concepts or even facts and that would be bad in any reasonable light.

    An example of how carried away such a misnomer can get is the word “copyright”. The word “right” has been construed to mean ownership and personal property and even, just because the word is spelled the same, related to constitutional rights. Its just wrong to let it go without mention. In fact copyright is only a temporary monopoly granted by congress to hopefully inspire new original-works and has nothing to do with “right(s)”

    The word “copy” in the digital age would make everyone a criminal if taken for granted that its a bad thing. Its beyond imagination that copying anything would be bad.

    The whole battle for culture and ability to share new ideas through new formats of recorded songs, newspaper articles, TV shows, etc. is waged with such poor choice of words. It's even called propaganda by some. As such have been using the term copy-wrong lately.

    My best attempt at a more proper phraseology of the term “Intellectual Property” would be to use instead “Intellectual claim” suggesting a temporary hold over the original-works creators legal domain of protection allowed under law. The word “claim” denotes temporary rental or plot not owned but used/mined for a time.

    The same thing for, the often misused, word “copyright” would be rephrased to “copyclaim”. Or better yet original-works claim. Oh well. I tried.

    Reactionary:

    jameshogg. Wow you said so much and so much better than I could ever.

    The house/treasure-find relation to property rights makes current treatment of copyright law seem ridiculous.

    Who would ever purchase a book/song/video if you could never be permitted to learn/sing/act (from) it? And not just understand/sing/act it better but brilliantly better (or worse, don't make me sing it) to make profits for yourself. With public performance laws prohibiting such this is not speculation.

    I like the term “intellectual servicing”

     

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

  12.  
    identicon
    Anonymous Coward, Mar 23rd, 2013 @ 5:13pm

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    Which is what, not the majority of articles? Isn't this the part where you scream "anomaly"?

    Why don't you collate the posts into your own website, where you can get your own private little cocksucker fanclub?

     

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

  13.  
    identicon
    Anonymous Coward, Mar 23rd, 2013 @ 5:33pm

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    You mean that deeply flawed megauplaod study that fails to account for the fact that sales reached similar highs BEFORE the closure of megaupload, not to mention other market forces?

     

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

  14.  
    identicon
    Anonymous Coward, Mar 23rd, 2013 @ 5:50pm

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    Why did you remove your Techdirt hate sig out_of_the_blew_Martha_Stewart_for_the_children?

     

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

  15.  
    identicon
    Anonymous Coward, Mar 23rd, 2013 @ 6:19pm

    Re: Re: Bad week for Pirate Mike, Minions, Little Pirates,

    That's a good point actually: the evidence shows time and again that greater anti piracy efforts do NOT increases sales, but one flawed study saying they do and out_of_the_blue takes it as gospel while dismissing multiple cases of embracing sharing and new business models leading to success as "anomalies"

    Careful OOTB, your bias is showing

     

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

  16.  
    identicon
    Anonymous Coward, Mar 24th, 2013 @ 3:55am

    Re: Verbs, not nouns.

    Very well said.

     

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

  17.  
    identicon
    Eponymous Coward, Mar 24th, 2013 @ 3:55am

    We can get all Seussical up in here:

    Human see, human do, human sue, human see other human sue so they do to.

     

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

  18.  
    identicon
    Anonymous Coward, Mar 24th, 2013 @ 4:28am

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    Even Mike Masnick accepts the general validity of a study on Megaupload that shows the shutting down of that one file host increased legal sales from 6-10%.

    This is true.. if you don't believe him, (or masnick) read it for yourself..

    Masnick Quote:
    While I've seen some criticism online of these findings, I actually think the basic research and methodology is fairly solid. Those who have jumped up and said "correlation is not causation" are ignoring the various methods that the researchers used to isolate the shutdown.

    Love this comment mike:
    First off, we've seen very similar data when it came to decreases in file sharing after enforcement increases -- but the impact has always been shown to be temporary, until people settle in on a new method for infringement.

    Sure it has an effect, until they find another way to infringe !!!!!!

    Is this Masnick stating to the world that "yes, infringement leads to an impact on legal sales".

    Part of the reason for the growth of infringement on Megaupload in the first place was the dearth of compelling, simple, non-annoying, authorized services. The industry has, finally, been trying to increase those, and so it could be that people who couldn't find any legit services before looked around again after the shutdown and found newer, better services.

    oh but it's ok, because the illegal file providers do so much of a better job, so it's ok.

    so if something is legal, but annoying, masnick tells you that is a valid reason to do something illegally!


    Either way, this report is a useful contribution in understanding the impact.


    at we can agree on that mike, so according to Masnick yes, infringement has an impact on legal services, but it's because legal services are just 'not as good' as the free illegal ones, and it's only temporary until the infringers find some other place to conduct their crimes, and Masnick agrees with the findings AND Conclusions of the study.

    and so it could be that people who couldn't find any legit services before looked around again after the shutdown and found newer, better services.

    except this study, which you agree with that is helpful in 'understanding the impact', that compares LEGIT and ILLEGIT services might of been biased because the people may not have been able to find legit services.

    IT's IS a COMPARISON of people who DID FIND LEGIT services, so it COULD NOT because "and so it could be that people who couldn't find any legit services before looked around again after the shutdown and found newer, better services."

    http://www.techdirt.com/articles/20130321/03312722404/tale-two-studies-file-sharing-hu rts-sales.shtml

    what were you trying to do here Masnick ?? prove to everyone what you say and have been saying for years is bullshit ? you appear to be unable, and unwilling to shoot this report down, but only give 'excuses' for the infringers.

    At least you had the balls to admit the truth for a change, and your inability to poke holes in the report is refreshing.

    I do notice that masnick did try to spin it his way, but ended up essentially backing the report and supporting it's findings, even trying to give real world explanations of those facts and findings you could not dispute.

    I guess your belief that there is no impact is purely based on some form of 'faith', that faith does not seem to be shaken, but somewhere deep inside you are the alarm bells starting to ring ?

     

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

  19.  
    identicon
    Anonymous Coward, Mar 24th, 2013 @ 6:24am

    Re: Re: Bad week for Pirate Mike, Minions, Little Pirates,

    Been talking to your solar panels again, darryl?

     

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

  20.  
    identicon
    Jim Harper, Mar 24th, 2013 @ 7:34am

    Re:

    I don't prioritize getting better politicians, but on reducing the authority of politicians. As I said, I don't believe there exists a system that organizes society better for us than we would for ourselves.

    The transparency work I noted at the end of my ditty is directly aimed at giving people a voice. The major hindrance to full and capable participation in politics today is the dearth of information about what's going on, I think, and the solution is more and better information.

    This contrasts nicely with the indirect attempts at giving people voice, which you might be alluding to. They generally involve restricting the voices of those that "reformers" and the government have deemed inappropriate to have participating fully in politics.

    If you don't like the way politics are going, I think the remedy to be applied is more speech, not enforced silence, as Justice Brandeis said.

     

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

  21.  
    identicon
    G Lewis, Mar 24th, 2013 @ 7:42am

    "State Violence"???

    So economic regulation, taxation, and redistribution of wealth constitute "state violence"? What a fucking genius! Go back to playing in your libertarian sandbox.

     

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

  22.  
    identicon
    Jim Harper, Mar 24th, 2013 @ 7:43am

    Re: Jim

    Your word cloud has a pretty high concentration of ideologically fraught terms, FCT. If you actually have a question, perhaps you could rephrase it into language that is more relaxed and precise.

     

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

  23.  
    identicon
    Anonymous Coward, Mar 24th, 2013 @ 7:52am

    Re: We can get all Seussical up in here:

    Human see, human do, that's copyright infringement.

     

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

  24.  
    identicon
    Jim Harper, Mar 24th, 2013 @ 8:06am

    Re: Imaginary property

    "Real estate" came about as a term when the property status of personal estate - movable things - was in doubt. The things you carried, not attached to your land, were readily confiscated by authorities because it was "imaginary" property.

    People's power over their lives advanced, I think, when legal recognition was given to personal estate.

    It would be a further advance for the law to recognize people's intellectual estate.

    Take a look at Justice Butler's dissent in Olmstead, the 1928 case in which the Supreme Court (wrongly) said wiretapping didn't require a warrant under the Fourth Amendment. "The communications belong to the parties between whom they pass," he said. Imagine how secure we would be in our online lives if, under the appropriate conditions, we were owners of our communications and the content they convey.

    To me, patent and copyright are a narrow subset of the vast expanse of material out there that is intellectual property. They get all the attention and bring derision on the concept of intellectual property because federal statutory protections for this sliver of intellectual property are so distended.

     

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

  25.  
    identicon
    Jim Harper, Mar 24th, 2013 @ 8:35am

    Re: Verbs, not nouns.

    Thanks for sharing these thoughts. I like that you've identified how language works in this area. Language and meaning are intertwined, no doubt.

    I took a suggestion from what you wrote that a thing we describe with a nominalization might be less real than other things. I don't see why that should be the case.

    It's related in ways I'm not sure about that most intellectual property gets statutory protection after it is reduced to a tangible form. The federal copyright statute literally requires an expression to be fixed in a tangible medium of expression. Try filing for a patent without doing the same.

    I see you using language in a way that I commented on in my post. You call intellectual property law by the name of its subject, intellectual property, or "IP". This perpetuates a common conceptual confusion in this area. And why do you capitalize "copyright"?

    It might be rude, but I'll share the thought that immediately crossed my mind when you said Occam's Razor is on your side: "Can an exegesis this long actually be the most parsimonious?" Yes, Occam's Razor is about logic not language, but I'd recommend following your instinct and editing down to one or two precise points, at least in a blog comment.

     

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

  26.  
    identicon
    Jim Harper, Mar 24th, 2013 @ 8:44am

    Re: "State Violence"???

    I'm picking up a hint of sarcasm where you call me a "genius," but thank you for your comment all the same.

    Try declining to pay taxes. After a decent passage of time and the extension of welcome legal niceties, you will be taken to jail. Should you resist, you will be subjected to state violence up to and including your killing. It is conceptually remote, as I said, but it's not all that remote.

    If you follow events in the drug war - one of the more severe economic regulations barring buying and selling of certain items - you might see enough state violence to make this sandbox a little more attractive.

    Thanks for the opportunity to share more thoughts with you, G.

     

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

  27.  
    icon
    Jeffrey Nonken (profile), Mar 24th, 2013 @ 8:46am

    Re: "State Violence"???

    If you refuse to follow their rules, burly men and women in hats and suits and carrying weapons will chase you down, wrestle you into a car, drag you off and lock you into a cage. The more you resist, the more force they will use, up to and including death.

    Which part of that is not violence?

    The point isn't that economic regulation etc. are violence in and of themselves, because if you follow the rules you'll (usually) be left alone. The point is not whether the use of violence is justified. The point is that the violence is there, ready to be used any time the state thinks you're being naughty. It is not overt, it is an underlying threat, but it's very real.

    BTW, I like your argument. It's very... um... cogent. I especially like the part where you use Libertarian as a swear word. Libertarian? Gods, no! I'm a serf, myself.

     

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

  28.  
    icon
    Jim Harper (profile), Mar 24th, 2013 @ 8:47am

    Re:

    I talked a bit more about terminology in a reply to an earlier comment. Take a look. Thanks.

     

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

  29.  
    icon
    Jim Harper (profile), Mar 24th, 2013 @ 9:00am

    Re: Re: "State Violence"???

    I should have taken care to note that violence and threats of violence are interchangeable in my opposition to violence. I think it is wrong for a person to hold a knife as if it he'd plunge it in your chest if you refuse his request for money. And I think it is wrong for the state to threaten to imprison you if you refuse its request for money, and do worse if you try to resist the imprisonment.

     

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

  30.  
    identicon
    Anonymous Coward, Mar 24th, 2013 @ 11:54am

    Re: Re: Bad week for Pirate Mike, Minions, Little Pirates,

    I don't suppose you'd care to cite one case from the volumes you claim exist ?

     

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

  31.  
    icon
    special-interesting (profile), Mar 24th, 2013 @ 1:25pm

    Re: Re:

    Tim Lee's (a good read) article “,I hope you’ll join me in eschewing the term “intellectual property.”” said he did not like the term. I had interpreted your article to say “I think it's fine to call it that.” Maybe its taken out of context or what?

    In context with one of your posts may I propose the term “Intellectual Realm” to describe the vast field of both known and unexplored thinking and thought? The word “property” is still way to personally possessive for abstract things like facts/supporting-data/idea/concept/etc. and the immediate derivatives like books/journalistic-articles/science-papers/media/etc. Nobody (basic human nature) wants to let go of “property” so it may be best not to label it that from the start.

    The mention of the origins of “Personal Estate” as different from “Real Estate” was enlightening and agree that the concept of personal ownership of what you carry with you was a good development.

    The wiretapping case is similar to government policy that what is done electronically (analog or digital) is not covered under basic rights in the Constitution. Its possible that this was used as precedence for e-mail surveillance. (conjuncture; don't know.) I think its a judicial and congressional mistake to consider it as such.

    More discussion of phraseology. Its more detailed than most would go but right on topic. A further exploration of an obscure concept. I suppose my aim is to develop some smooth pleasantly phrased term that helps greatly expand public domain allowing us feel good about it. (ievil laugh) Have used a lot of metaphors but they save pages of detail and hope they fit/work. Chipping away at the terms “copyright” and “intellectual property” is just a step in the right direction.

    Much can be said about what we perceive of some unknown abstract concept we don't understand and the words published by either supporters or detractors. Both sides will typically use words and phrases that encompass both positive connotations and self justifications.

    A popularized supporting (pro) sound bite (describing manipulated topic) is conceptually soothing, suggesting none of the thorny issues surrounding it, and slips down easily through the critical intellectual (for conceptually hard subjects is zero) digestive process. A detracting (con) name might want to stick in the craw of the mind and cause intellectual indigestion (hopefully, if phrased as planed) leading to regurgitating the idea entirely.

    All that just to slip a cog of perception into ones core thinking process(s). Beneficially or maliciously is the real question.

    In the end its the winners who decide the final terminology carving the Etymologic (study of words) furrows that guide any uneducated (about such a subject of which “copyright” and “intellectual property” are just examples) into predictable lines of thinking about that same concept. Granted some of historical phrasing is chance (where did the term “copyright” emerge from?) but even then the phrasing still affects cultural growth. (culture is how we act on our beliefs/perceptions)

    In the battle to understand political and special interest machinations about Politically Correct (PC) phrasing one must know that smart people (smarter than I) have experience in such matters and tripping over such clever terminology is normal. Its normal fact that bureaucratic damage control comes up with hilarious (in perspective) PC terms and phraseology all the time. (I remember some official using the word “energetic decomposition” instead of explosive or bomb when his staff felt it would be embarrassing if the public realized such.)

     

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

  32.  
    identicon
    Beech, Mar 24th, 2013 @ 3:42pm

    Re: Bad week for Pirate Mike, Minions, Little Pirates,

    Ladies and Gentlemen, I give you, the confirmation bias in a nutshell. If those last 2 paragraphs don't show it as clearly as anything, I don't know what does.

    Study I like: TRUE AND VALID! THOSE WHO IMPLY OTHERWISE ARE ONLY USING AD HOM!

    Study I don't like: LIES! DAMNED LIES! INCONCLUSIVE! "ONLY" ABOUT MUSIC! RAWR!

     

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

  33.  
    identicon
    Anonymous Coward, Mar 24th, 2013 @ 4:46pm

    Re: Re: Bad week for Pirate Mike, Minions, Little Pirates,

    While I've seen some criticism online of these findings, I actually think the basic research and methodology is fairly solid. Those who have jumped up and said "correlation is not causation" are ignoring the various methods that the researchers used to isolate the shutdown.

    I think Mike has looked at the methods used and missed the big problem with the study. Comparing markets over the same time period is not a valid way to isolate the effects, if any, of an event. All the markets saw the same event.
    The most obvious analysis to show that the event, the shut-down of Megaupload, had an effect is to compare the data they used with previous years data to show a change ion markets between the years.
    All a single years data can show is that the different markets behaved differently, which is not unusual. The differences do seem to correlate with Megaupload use in the markets, but with only one years data, this is a weak conclusion. Further the availability of legal services could explain this correlation.
    An event cannot be simply associated with a small change in a graph that is for a single time period. Further I doubt that seasonal effect can be isolated by comparing different markets over the same timespan.
    I think the analysis is covering a major flaw in the data used by detailed analysis.

     

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

  34.  
    identicon
    trish, Mar 25th, 2013 @ 7:27am

    "Some people are OK with economic regulation, taxation, and redistribution of wealth for a similar reason: The state violence behind it is conceptually remote. I want less of that, too—a truly peaceful society built on cooperation."
    Spoken like a true not-poor person.

     

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

  35.  
    identicon
    Septeus7, Mar 25th, 2013 @ 12:02pm

    "Some people are OK with economic regulation, taxation, and redistribution of wealth for a similar reason: The state violence behind it is conceptually remote. I want less of that, too—a truly peaceful society built on cooperation."

    No we do not accept the concept that state violence is the problem. We "republicans" (in the classical political sense, not the GOP) do accept that framing. It is BS.

    So it is state violence to prevent the voluntary selling of votes?

    Let's legalize bribery! Oh wait...we already have its called lobbying. It the "free market" so carry-on telecoms you champions of the market!

    Why should we let the violence of the state interfere with the length of a labor contact?

    Why should people be able to sell all of their labor for years on end aka indentured service?

    Markets are rules. You cannot have unregulated rules. People are okay with economic regulation because there is no alternative to having them.

    On to "taxation and redistribution of wealth" the favorite buzzwords of economic idiots.

    First, taxation is as voluntary as needing a job in our society. The government doesn't force anyone to take it's "tax credit notes" i.e. the dollars. The government creates dollars and people accept them understanding that if they accrue a public debt they can use their savings of dollars to settle. It's no different than the hundreds of private scripts. You must accept the redemption policies of the issuer. You can't just keep reusing the same script as a liability against the issuer. If you don't like they fact that we have a society where you can accrue public debt rather easily then you can simply leave the country just like if you don't like your job you can find another one.

    Taxation is not redistribution of wealth and even if it where why is redistribution a bad thing? Do we want wealth to be static remaining forever in the hands of those sitting at the top?

    Don't we want constant and dynamic redistribution of wealth based on where or not people are doing useful things? Don't market redistribute wealth via creative destruction?

    Everyone wants redistribution of wealth except plutocrats and their paid for shills and dupes aka libertarians. The only rational question of economics is not whether wealth will be redistributed but rather on what basis it is redistributed. Please, please stop using these vapid bumper sticker rhetoric.

    The problem Techdirt is dealing with intellectual property.

    The question true advocates of liberty aka the "Pirates" are dealing with is an abolitionist movement which is fighting as all abolitionist movements is against established and legitimate property. IP is as legitimate and established as the owning of slaves ever was. The only honest position of the true Libertarian is the abolition of that kind of property.

    Ever political movement in history that worked for the good of mankind worked against the property claims of some propertied class. It can only ever be this way. Property is an invention of scarcity and a violent claim against people needing access to that property.

    As scarcity declines so must property for in abundance what need is there for exclusion?

     

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

  36.  
    icon
    jameshogg (profile), Mar 25th, 2013 @ 4:35pm

    Re: Re: Verbs, not nouns.

    Thanks for the reply.

    My point about nominalisations was just to highlight the human tendency to take such a predictable approach to arts and science markets - it is not really related to the requirements of obtaining copyright and patent protection on works.

    And because this tendency is as predictable as it is, we come up with IP or laws that try to best reflect IP. How we can assume anyone can possibly be in a position to know where the balances lie, I do not know. Personally I think both its laws and philosophy are rooted in the same falsehood - the idea that you can "fence" away your nominalised property, as it might be put by advocates of John Locke, only by restricting copying even within private spheres. But, as I have to say, it is not the only way to fence your fruits. Crowdfunding (aka the pinnacle market of ticket-based admission) is going to demolish copyright with extreme cultural discrediting, and patents are really just an indirect form of taxation to fund scientific research (the profiting potentials of said research, which by definition cannot be known until the research is carried out, may not necessarily match the fruits of labour that was put into carrying out that research, meaning that a free-market perspective falls short here).

    I don't know why I sometimes write a capital C for Copyright - must be force of habit.

    And don't be worried about being rude - how rude you are when expressing your opinions is not a factor in my analysis. In fact, it is welcomed and encouraged where my area of inquiry comes from. And I know I probably could have expressed my points conciser, but I like to write and unashamedly get carried away (and once I've realised I've written a ton awful, I don't have it in me to toss it all out).

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This