So laboring to produce a work, let’s say just a tune, confers NO ownership, eh?

Not inherently, no.

Let’s tweak the hypo a bit, since utilitarianism also undergirds real property law. Suppose you wash ashore on an uninhabited but otherwise pleasant island. If you build a hut to shelter yourself, you could say that you owned it. But since no one else is around, your claim is moot. Property law isn’t necessary unless there is something in dispute.

So, an additional person washes ashore. When you meet him on the shore, seeing him still clutching a piece of flotsam, you can proudly point to the hut and say that you own it. At this point, there are really only two options: First, he could claim it for himself, which results in the two of you fighting for it; whoever wins effectively ends up owning the hut. Second, he doesn’t contest your claim for whatever reason. Maybe he builds his own hut (the ownership of which hinges on which of the same two options you choose with regard to that hut), maybe you share your hut with him, as a hut-owner is entitled to do.

Let us now imagine that a group of two people wash ashore a little while later. If they take option one, and fight for a hut, they’ll win, all else being equal, since they have superior numbers. Your only chance is to find an ally who is willing to fight for your hut. Why would he do so? What’s in it for him? The only real answer is an alliance: you’ll help him defend his hut, if he helps you defend yours.

And that is basically how property law works. The reason why you can’t claim to own the Brooklyn Bridge and start charging people tolls to use it, is because no one will recognize your claim. And if you try to enforce your claim, you will be outnumbered and outgunned. But if you actually did have enough people willing to accept your claim or had enough armed supporters that you could fight off the previous owner and his supporters, you would own it.

Getting back to the song, it works the same way. So long as you don’t reveal it to anyone, you have complete control over it. But that control is fairly useless, since you only get to control yourself, really.

If you share the song with someone, you will lose control over it unless you either defeat the other person (and anyone he’s shared it with, and anyone those propel have shared it with, etc.), or convince him that it is in his own best interests to accede to your wishes. Get enough people together who will mutually agree to this, and you can call it a law. And the law might even say that the prerequisite for a copyright under that law is to merely create a work. But enforcing that law still boils down to either physical combat or willing agreement.

Your soul is dead and you’ve never created if that’s your opinion.

I’d be the first to admit that I have no musical talent, but as it happens I am an artist, and I made a comfortable living for several years as an artist, before I decided to go back to school and change careers.

And it’s not just my opinion. The utilitarian theories of property law and copyright are solidly established. Frankly, this is the sort of ground that you cover on day one of a law school class on either subject, before getting into the more practical material.

I’m pretty sure that NO musician (keeping to just a tune) would agree with you

I couldn’t say; I don’t think I’ve ever discussed the subject with a musician. And while it might very well be an interesting conversation, and I’ll try to remember to bring it up if the opportunity occurs, I don’t see how their opinion would be controlling on the matter. I mean, biologists don’t ask chimps what the chimps think of evolution.

they may not agree with me on some aspects and most wish to freely share the creation, but that THEIR choice, you’ve NO say in it.

I agree that the choice of whether or not to create a work is up to the author, and of whether or not to share that work with another person is also up to the author. But once you get beyond that point, and the author has willingly created a work and has willingly shared it with someone else, it’s as I described above: the author’s rights extend only do far as he can manage on his own, or as far as other people are willing to give him.

If a songwriter wrote a song and the entire rest of the world decided to share it amongst themselves without his permission, the songwriter would simply be up shit creek. He’d have no real recourse at all. Merely creating a work isn’t enough; you have to get other people to respect your claims, and you’re likely to have to get at least some of them to have to do so of their own free will, with their own interests at heart.

I’m certain that making something new and unique with one’s little spark of life gives a moral claim: it’s not only a feeling but an actuality that ONE produced it, NOT society

I never said that society produced anything. You’re still looking at the issue through the lens of “if producer, therefore owner,” which I have explained to be wrong. I have no problem with the idea of an auteur to whom a work owes its existence (though I don’t know that it’s always true, either). I’m just saying that in practical terms, in this world that we live in, might makes law. It’s not pretty, and it’s not nice, but it’s the way of things.

And I’d say your piratey indifference to moral claims is why most musicians seem to have drifted away from Techdirt.

Why do you accuse me of piracy? I have a very different agenda: legalization. (At least so long as all I have to guide me is my gut feeling, as discussed earlier in the thread)

Anyway, I have no idea whether musicians are, or were here. I’m actually a latecomer — I only found out about this place last year. (I’m sure I had heard of it, but I never got around to coming to the site.)

Clearly the current system does bring us wonderful works that are highly valuable.

First off, that’s the wrong metric. Copyright is concerned with the quantity of works produced, not the quality. After all, quality is subjective, and we really don’t want to have a system of government subsidies in the form of temporary, limited monopolies, subject to some bureaucrat’s idea of artistic merit. Part of the genius of copyright is that it leaves so much to the market to decide. It can produce odd results as fashions change (there are a lot of high quality operas, but opera is generally no longer popular enough to support itself financially) but it’s pretty good. But if the quantity of works is emphasized, well, there will be more good works produced just as there are more crappy ones. Sturgeon’s law applies: 90% of everything is crap, so getting more good works means putting up with a proportionate increase in crappy ones.

Second, that’s not even the only metric. Copyright is meant to not only maximize the number of works created and published, which, but for copyright, would not have been created and published; it is also meant to minimize the limits on the freedom of the public with regard to those works, both in duration and in scope. So if, for example, a reform to copyright law such as repealing the CTEA had no change on the number of works created and published, it would be a good law because it would have reduced the duration of copyright. In fact, given the varying rate of public benefit in quantity that comes from trade offs from freedom (going from 0 years of copyright to 1 year has substantial effect; going from 100 years to 101 years has very little), even if a reform had a negative effect on the number of works created and published, it could still be a net gain for the public if the increase in freedom more than made up for it.

So while there are certainly some successes under the current model, unless you think the current copyright law is, in every regard, absolutely perfect, it must be capable of being improved. Reformers such as myself want to improve it because we aren’t satisfied with how well it performs now. We think it can do even better, and we seem to be looking at a bigger picture than you.

Yet Mike ONLY focuses on the negatives. He’ll write article after article about anyone who could possibly be described as filing a bogus DMCA takedown notice, but then he never writes about the millions and millions of notices that are perfectly legitimate and represent a pirate getting nothing more than a slap on the wrist. Where is the balance? What in the world makes you think that Mike’s determination that copyright isn’t working are based on any sort of balanced view?

Well, remember that a take down notice is not a slap on the wrist for a pirate; pirates are not shielded from liability by the DMCA; only service providers are. A copyright holder is entirely free to both serve a take down notice and sue the pirate at issue as per normal. If copyright holders are wimping out on their follow through, they’ve no one to blame but themselves.

And in any case, I honestly don’t care what Mike thinks about copyright. In fact, the only people who seem to are a couple of trolls who complain about it, as if what he thinks is absolutely crucial. Still, though, the comments from earlier in the thread sounded to me like someone who was interested in copyright reform based upon careful study conducted along scientific principles. Maybe I’m just projecting, since that’s what I’m interested in.

tl;dr — What Mike thinks, and how open he is about it, is pretty clearly irrelevant to everyone here who isn’t already trying to use it as a line of attack against him. It isn’t working, but it is annoying to see trolls who are so damn unimaginative that they just keep posting the same post — sometimes, literally the same post — every time. If you can’t go away, at least try something else. Take a little pride in your work, and be creative instead of phoning it in. Damn!