from the debate-club dept
Though yesterday we took a detour from our regular weekend schedule, today we've got the top comments as usual—starting with a comment on our post about Stewart Baker using the Boston Marathon bombing to defend CISPA. RW raised a point that has been on my mind, and apparently on lots of our readers' minds as well, winning most insightful comment of the week:
And what about all the (self-created)terrorist plots the FBI keeps breaking up. A real one comes along and they miss it completely.
(Perhaps it's even worse than missing it "completely": according to the suspect's mother, he was under surveillance already.)
In second place, we've got a big long comment from our post about YouTube's victory over Viacom. It includes two levels of blockquotes, and a bit of context: one of our regular critics was harping on his tired old line about Mike not answering questions, which involved quoting a previous comment from Mike (the first, double-nested chunk below) and then responding (the second, single-nested chunk below), which is then quoted by our winning commenter (cpt kangarooski) while responding to the critic. Got that? Here it is:
Well, I can't speak for Mike, but I think you've seriously misinterpreted what he said. As I read it, Mike is saying that the current copyright laws are not fulfilling their purpose, or at least are not doing a good job of it, and should be replaced by some other laws which would do a better job. But he's not sure what those laws should be, specifically, and sees a need to conduct legal and economic experiments with the aim of finding laws that work better than what's on the books now.I think that the current system is broken and does not promote the progress, as it should do. I think that I don't know what the *proper* solution is, and I don't think anyone does, because we simply don't have enough data or experience to know. We know what doesn't work, but we don't know what might work better. That's why I've always encouraged more exploration and the ability to experiment.Hmm, well, we seem to be staggering along in the real world, meaning people getting income for their work and some protection from piratage, even without the clear and precise perfect solution that academic Mike is holding out for. -- At best, Mike sez he "dunno", a characteristic answer.
At worst, what Mike means by "more exploration and the ability to experiment", can ONLY be in the way of more and more piracy, as it's certain he's not for more legal protections.
Unless you think that our current copyright laws are absolutely perfect in every way, and that not one word, nor letter, nor even punctuation mark should be changed, you'd have to agree that it would be good to have better laws. And the scientific method works pretty well for finding things out and could be applied here. (Indeed, it is often said that the unusual US political and legal systems, with fifty partially autonomous states and a limited federal government allows each state to function as a laboratory, doing roughly its own thing, while both happily copying good ideas from other states, and allowing other states to copy from it, that our more perfect union might ever improve.)
Some rational analysis of copyright has been done, such as the well known paper by Rufus Pollock. Maybe he did a good job and maybe not (the math is over my head), but it can't hurt to have more research done, and then to try things and see how they work. If we make a mistake, we can always go back.
And while again, I can only speak for myself, I'd happily endorse a copyright regime in which protections were greater than what we have now, if it were shown to be more in the public interest. My gut feeling is that less copyright (although not no copyright), in both duration and scope, would be better, but I'd rather have serious analyses to lead the way than rely on instinct. If you've got something, by all means share it. But if you think the law is not totally perfect now, I urge you to stand with Mike (at least, as I understand him) and support experimentation, whichever way it may take us. To do otherwise is to be afraid that the truth may not correspond with your bias, and that's a shitty way to behave.Mike refuses to acknowledge the moral basis of copyright.There is no moral basis of copyright. Copyright is utilitarian. It exists because it's useful, and should be tailored to maximize its usefulness. People don't own things in any meaningful way (i.e. where the thing is being contested) unless they can overpower their opponents or can convince their opponents to cede their claim. Merely creating something is no grounds for owning it. (Although I suppose if you we're a gifted orator you could use that as an argument to convince your opponents to cede their claim, but that still wouldn't make it true.)
For editor's choice, we'll start with another excellent response that demolishes some old but oft-repeated arguments, this time from Karl and appearing all the way back on last week's favorites post. On the question of copyright's origins and purposes, Karl brings the citations:
a key sentence stating that copyright is based on common law, not on statutory (state-granted) monopoly.
That's not what the sentence said, because if it did say that, it would be wrong. The very first Supreme Court copyright case said - explicitly - that copyright is not based on common law. (Quote is below).
In fact, what the author was saying is that sound recording "pirates" had to be fought without using copyright law at all, but using statutory "unfair competition" laws that were not like copyright laws. It is the exact opposite of what you claimed.
As I've written before and will again, copyright merely recognizes the natural rights of a creator to control copies of a work, and what rights others have in the work are distant secondary.
And every time you've written that, you've been entirely, 100% wrong. Copyright is not a common-law right; it is not a natural right; it is not designed to reward the fruits of authors' labors; the rights of the author are secondary to the rights of the public.
Congress and the Supreme Court have repeatedly made this very, very clear:That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.- Wheaton v. Peters
The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published.[...]
Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it.The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will [be] promoted by securing to authors for limited periods the exclusive rights to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.- House Report on the Copyright Act of 1909The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.- Fox Film Corp. v. DoyalThe copyright law, like the patent statutes, makes reward to the owner a secondary consideration.- U.S. v. ParamountThe primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts."- Feist v. RuralThe limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.- Twentieth Century Music Corp. v. AikenThe monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved.- Sony Corp. v. Universal City Studios
Don't you get tired of saying things that you know are wrong?
(Answer: apparently not.)
Up next, we've got a comment from our post discussing the rules of image manipulation and when a derivative work becomes an original creation. One commenter proposed that the standard should be the original creator's ability to recognize the new work, but an anonymous commenter laid out the many reasons that's a bad idea:
Several problems with that idea.
First is that it turns "the first creator" into the judge, which not only makes the judicial system irrelevant, but also places the adjudication in the hands of someone who, not only has a vested interest in the case, but is also the aggrieved party. That is a huge no-no.
Second, the first creator may not even be the one who holds the copyright on the original creation, if said copyright has been transferred to another party. In the case of music, we have seen numerous examples where the musicians themselves are perfectly fine with their work being manipulated, but their labels, who hold the copyright, are not.
Third, every "first creator" will have a different standard for when they consider a work not manipulated enough. Some will consider any use of their work to be infringing, regardless of how close to the original the new work sounds or looks. In effect, this results in a widely inconsistent standard that is impossible to determine until after the new work has been produced. It's the same problem as fair use: it's only a defense, and doesn't prevent someone from being lawsuit-happy.
Forth, even if it's not recognizable to the first creator (or copyright holder), another party may inform said creator that, in the opinion of that second party, the work is not manipulated enough. This could change the viewpoint of the first creator, especially if they stand to gain financially from following along with the second party.
Fifth, nothing's stopping the first creator from claiming that another work is a manipulation of their work, even if the two only share vague similarities and the second work had nothing to do with the first.
In short, your definition is too vague, undermines the judicial system, and would cause unacceptable chilling effects on artistic expression.
Your post is so cynical....
Here we have a supreme example of overwhelming bipartisanship and all you can do is whine and complain....
For second place, we head to our post about a San Diego cop who's worried about cellphones that are actually guns. An anonymous commenter racked up lots of votes with one of the world's all-time classic movie references:
I know what you’re thinking: "Did he fire six shots, or only five?" Well, to tell you the truth, in all this excitement, I’ve kinda lost track myself. But being this is a .44 Samsung, the most powerful cell phone in the world, and would blow your head clean off, you’ve got to ask yourself one question: "Do I feel lucky?" Well do ya, punk?
For editor's choice on the funny side, we'll start out by heading to this week's cringe-humor post: Bob Goodlatte's awkward serenade from some Virginia songwriters. DOlz found it to be an effective anti-piracy tactic:
I promise never ever to pirate that song or listen to it again for that matter.
(If it weren't for the lyrics, I'd say it's kind of catchy — but the terrible message and the painfully awkward context overrides much chance it has of being enjoyable to anyone other than Bob Goodlatte.)
And finally, this post couldn't go by without mention of Mike Rogers' audacious statement that CISPA opponents are nothing but "14-year-olds in their basements". While most people on the internet were balking at his attitude and trying to correct him, one anonymous commenter realized that it probably wouldn't even matter if he was right, and offered up the best response of them all:
The Question is...
Are you smarter than a 14 year old, Mr. Rogers.
Not when it comes to that internet thing all the kids are talking about.
See you tomorrow, folks!