An underpinning of copyright law is the incentive to create and disseminated original works of authorship so that the ideas and information they express can be assimilated by others.

…And so that that body of work will eventually pass into the public domain, so that everyone can use the works without restriction.

This underpins another point, which I don’t think has been made in this thread. The only reason copyright is granted is so that society in general can use that “property.”

It is a funny kind of property, where “stealing” it is the only reason it exists in the first place.

Hell, I’ve been doing a lot of this recently. I have a new smartphone, and I like to read books on it while I’m on the subway. I don’t want to pay for these books, so I’ve been reaping the benefits of Project Gutenberg. I’ve burned through books by Jules Verne, H.G. Wells, and Arthur Conan Doyle.

I took something, without permission of the authors (or their families), and nobody got compensated for their labor. Am I then a “thief?” Is my phone full of “stolen property?”

one cannot “steal” that which is owned by no one, i.e., copyright no longer pertains to the work.

That is completely false. A work in the public domain is not “owned by no one,” it is owned by everyone.

Without copyright, any person who owns a copy of the work would have a natural property right to do whatever they pleased with that work. That includes making copies of it, using it to create derivative works, and performing or displaying it publicly, whether for profit or not. Without copyright, everyone has the rights that are granted in 17 USC 106.

Copyright is a “negative right,” a right of exclusion: it does not convey any additional property rights upon the copyright holder, only the ability to take away some of the natural property rights of everyone else.

Thus copyright itself is, in a very literal sense, theft. It is taking away property from the people it belongs to – everyone. It may be that society in general benefits by allowing this form of theft, which is the only reason this theft is legal; but theft it is.

That is the reason people are so upset with Disney. Disney has no problem using “property” that is “owned” by everyone – including the commenters. And none of the commenters here begrudge Disney for doing so; they have as much of a right to do it as anyone else.

But Disney does not want other people to have the same rights that it did, so it lobbied for laws that would allow its own theft from the public to continue. Notably, if the current copyright laws were in place when Disney started, the majority of Disney’s source material would not be in the public domain.

It is Disney’s hypocrisy, selfishness, and thievery that people are upset with. Nobody cares that they used works without permission or compensation, because that is copyright’s ultimate goal; they only care that Disney won’t allow anyone else the same courtesy.

I’ve talked with a few people who think it is

I just thought of the perfect example, that I’m betting has been claimed in this very thread (though I haven’t looked through it all).

You hear people, all the time, describe copyright as “the right to copy.” That’s not what copyright is.

Copyright is “the right in the copy.” It is the legal right for copyright holders to dictate what can be done with copies that are not in their possession.

Without copyright, everyone would have “the right to copy.” Publishers could sell books, labels could sell music, etc., and none of what they were doing would be against the law. On the other hand, nobody would have “the right in the copy.” It’s a crucial difference.

if as you say works in the public domain are “owned” in common by everyone, then taking away such common ownership and vesting it in a single owner almost certainly is a Fifth Amendment matter

If you believe the 17 USC 106 rights are “property” that is “owned” by the authors, then you must also conclude they are “property” that has been “taken” from the commons.

They are not actually property rights – as I said above, copyright is actually a statutory monopoly that is treated as if it was a property right. But since nearly everyone talks about copyright in terms of property rights, then we should talk about the loss to the commons as the loss of property rights, too.

In any case, the Fifth Amendment only refers to private property being taken for public use. I already said the “property rights” in public domain works are not private, since they are not exclusive. Furthermore, copyright turns what was “common property” into “private property.” Even though this is done to theoretically benefit the public, I don’t think anyone would believe that qualifies as taking “for public use.”

On the other hand, if Congress decided to do away with copyright altogether, that wouldn’t violate the Fifth Amendment either.

Glad to hear your wife is OK. (I’ll refrain from the obvious jokes about your wife and a ‘3″ black snake.’)

Some would say that the rights are property that were taken away from the owners by force of law…

That is in fact what I am arguing (if you assume the 106 rights are actually “property”).

Unless those “some” believe that the public domain is “theft” from the authors. In that case, they would be wrong.

Without “force of law,” there would be no copyright in the first place. The very first Supreme Court copyright case said flat-out that there is no “common law” copyright. The House of Lords said the same thing sixty years earlier (Donaldson v. Beckett). And these were the only two countries on the planet with copyright laws at the time.

It is against how people naturally act: people want to re-tell stories, share music with their friends, invite people over for movie night, etc. What is legally “copyright infringement” is nothing more than an extension of that.

They’d also be going against several major religions, who have flat-out said that creating abundance from scarcity (e.g. the Biblical allegory of the loaves and fishes) is morally good; and, conversely, that creating scarcity from abundance is morally evil. Copyright infringement does the former; copyright, itself, does the latter.

So, those who think the public domain is “theft” of the natural property of copyright holders, are going against centuries of legal statutes, human nature, and universal moral codes.

Not that it will stop them from saying that, of course.

While “music” and “movies” seem to be the primary subject matter discussed here, there is a very wide body of other, unrelated works where the “incentives” do, in fact, “incentivize”.

That is a very difficult thing to quantify. Certainly, there are many successful industries whose products are covered by copyright. But is that success due to copyright?

As a counter-example, let’s consider the fashion industry. There is no question that the American fashion industry is a world leader. Yet, fashion is not covered by copyright. It is perfectly legal to copy someone’s design and create a knock-off, identical in every way to the original (though trademark law means you can’t claim it is the original).

This wasn’t always the case. Back in the 1930’s, a strict “no-copy” rule was enforced by the Fashion Originators’ Guild. They said copying was unethical and immoral, and called it “style piracy.” If a retailer sold a knock-off, they were issued a “red card,” and they were boycotted by everyone in the Guild.

The only problem with the guild was that it was an illegal monopoly. At least it was according to the FTC, and the Supreme Court agreed in Fashion Originators’ Guild v. FTC.

Did the Guild’s collapse harm the industry? Quite the opposite. The fact that there are “Red Carpet copycats” actually creates a demand for new designs, resulting in far greater sales of apparel. There’s even a name for it: the “piracy paradox.”

Johanna Blakely did an excellent presentation about this at TED, which you can watch on YouTube if you like.

So, here we have one industry that would be harmed by copyright laws. There are many other successful industries that don’t have copyright protection: the food industry, the automobile industry, furniture design, etc.

The question becomes: If these industries can be so successful and innovative without copyright protection, why do the others need it?

On a final note, while we obviously do not agree on many points (though we do agree on many others), it is a distinct pleasure to engage in exchanges with one who has so obviously taken the time to give this subject much thought and who provides substantive, versus reactionary, comments.

Not a problem. I’m an underground musician, and these sorts of topics (especially regarding music) interest me immensely. That, and I need a way to avoid my Physics homework…

Incidentally, if a few of the commenters here seem a bit reactionary, that’s because the usual “pro-copyright” folks here do nothing but call everyone “pirates,” call Masnick a “scumbag,” and believe Techdirt is a subsidiary of Google.