DOWLING v. UNITED STATES, 473 U.S. 207 (1985)
473 U.S. 207
DOWLING v. UNITED STATES
It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.' [17 U.S.C.] 501(a)." Sony Corp., supra, at 433. There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by 2314. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful [473 U.S. 207, 218] appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.
RIAA and others like to call copyright infringement "theft" however the Supreme Court on more than one occasion has said it is not theft. It is no more theft than another company competing against another. You could say two companies selling the same product is stealing from the other but that is the nature of competition. The only difference is what the government considers authorized and unauthorized competition.
It is interesting how some argue that we have copyrights because artists DESERVE to be paid for their work. That is nonsense. Is copyright some kind of entitlement program for artists?
No one in a business venture deserves anything. They must work to build a market for their creations. A market has two components supply and demand. Demand also has two components and that is how many people want the product and at what price they are willing to pay. For example if there is a high demand for your product but your price is very high then even though there is a high demand the actual market will be very low because only a few will be willing to pay that price.
The Internet has created a dilemma in normal market forces of supply and demand. Normally in a real market when something is scarce it adds value to it especially when there is a large demand however the internet has made supply equal to demand, there will always be a download for every person that wants it. There is no scarcity which is always going to lower prices and will even tend to zero if that is where the market sets it.
Copyrighters decry piracy but piracy is in fact a market unto itself. This market is actually separate from the copyrighter's market. Copyrighters claim they are losing billions to unauthorized copying but are they really? I would suggest no, because their market and the pirate market, for the most part, are separate and have very little overlap. People who buy or take bootlegs will not buy the legitimate item even if the bootleg was not available. On the flip side those that are willing to pay the asking price for the product are not the ones buying bootlegs. So even if the movie or music or software or what ever industry was to completely stomp out all illegal forms of distribution they will not see a significant increase in their revenues because the market for the bootleg items was never theirs and never will be.
I used to have a lot of respect for Rupert Murdock but not any more. He is an IP Maximilist that tried to force the IPM agenda through his publications. It did not work and now the Times of London has lost almost all its readers, influence, and relevance. Even the dead tree addition has suffered. Murdock does not do well with the Internet because he hates the very idea of it.
Don't put the artists into this. It is not the artists that are suing, except some our suing their labels. It is the organizations like the RIAA who couldn't create anything out of a paper bag that are doing the suing.
Creators of works and copyright holders are increasingly becoming two different things. No one faults creators of works for being protective of their creations but when the copyright holder and the creator are separated it completely defeats the purpose of copyrights being an incentive to create. It may be time to make copyrights no longer a commodity that can be sold and assigned but a right like freedom of speech which only applies to the originator.
They are appointed by the President and confirmed by the Senate. Judge Beryl Howell was appointed by Obama and only confirmed in December. A Federal Judge is a lifetime position and they can only be removed by impeachment.
I have created a Facebook group calling for the investigation and possible impeachment of Judge Howell for her blatant conflict of interest. The fact that no other judge has sided with her position shows how out of step her ruling was and the fact she is so conflicted with her past of working for both the RIAA and a copyright trolling law firm proves she is unfit for the bench.
Even though counterfeit products are bad and it shouldn't be done and those doing the counterfeiting should be prosecuted the actual costs associated with counterfeiting products is grossly overstated.
Producers assume that whenever a counterfeit product is made and sole that it accounts for money out of their pockets. In a very small percentage this might be true however very few people who buy counterfeited products did so in lue of buying the genuine article. Most people who buy genuine products will not buy counterfeit items and the inverse most people who buy counterfeit do not by the real product even if there was no counterfeit so the actual cost of counterfeiting is actually very low.
The real costs of counterfeiting is actually the crime that generally goes along with it which is born by society, not the copyright holder.
Copyright holders are by far the most protected class in the nation. Cross them and you will receive penalties so onerous and is reminiscent of indentured servitude.
Copyright laws are unconstitutional in so many levels and neither party nor judges are willing to face that. $140,000 for posting an image on a blog is a crime against humanity. Copyrights are being allowed to trump our most cherished rights such as freedom of speech. Our Constitution gives very little weight to copyrights and mainly because of the social benefit but laws have made copyrights king and it is destroying those rights we hold dear.
IP Maximalism is a threat to our liberty, a threat to our freedom, and a threat to all Constitutional principle. Those who espouse it do not believe in freedom and are un-American authoritarians.
The recording and movie industries have a long history of trying to quash every technological advancement that comes along. Ever since radio started playing music the music industry has resented it even though radio is their best promotional tool out there. When the VCR came out the movie industry tried to sue it out of existence, same for DVRs, MP3 players. Seems like the only thing they really like are cds and have clinged on to this outdated technology 20 years too long.
Copyright does not mean you get to dictate the techology that is available to be copied and there are well established court precedences that have ruled that simply having a devise that CAN facilitate illegal activities is not a reason to ban them.
One of the most egregious examples of cultural theft is Disney and their banning of the Movie "Song of the South" The Uncle Remus stories was a compilation of black folk lore during the slave days. This part of black history has nearly been completely wiped out due to political correctness.
The first African American to ever win an oscar was the portrayal of Uncle Remus in Song of the South. That has now been expunged from history so now only older people who remember watching the movie have any idea what these stories are all about.
What is interesting is that many copyright holders either look at this the wrong way. Are listening to their zero sum accountants, or are just plain control freaks and feel it is more important to have tight controls than to make money.
Accountants tend to add theoretical numbers when they estimate the amount of money "lost" due to "pirates" There is a huge assumption that if said movie was not available for download that each and every one of them would have paid instead when in reality the vast majority simply would have not bothered to see let along PAY for the movie thus the movie studio cannot claim these theoretical lost revenues.
This is a problem for the studios and other copyright holders because they claim they are losing money when in reality they are counting phantom revenues that they NEVER would have earned in the first place with or without the "piracy".
Also without the "piracy" a movie may never become popular in the first place without the word of mouth generated by people downloading the movie and talking about it and thus driving up legitimate sales.
If copyrighters were successful in their efforts to quash all "pirating" of their material, which they cannot, but for the sake of argument lets say they did. They would not find the corresponding revenue increase that the zero sum accountants had promised and to make things worse their movies or other works would have a far smaller audience and thus not make as much money as it would with the "pirating". But hey what's money when you have control?
Disney has used their copyright for outright racist reasons. They have stolen and vaulted black culture and heritage. They own the copyright to the movie Song of the South that is a celebration of African-American folklore but for racist reasons they are using their copyright to erase it from American culture.
The Constitution is being violated. The constitution mandates a copyright only for a limited time. Our current laws have made it virtually perpetual. Our current copyright laws our blatantly unConstitutional and its time for them to be challenged on this basis.
The irony is that the over reaching of IP Maximilits are going to be the catalyst for copyright reform. Whenever a pendulum swings too far one way it eventually swings back even farther in the other direction. Copyright authoritarianism will result in less copyright protect and they will only have themselves to blame.
No they should not infact documentaries along with criticism MUST be protected and cannot be expected to get permission from the copyright holder because the copyright holder CANNOT have a veto in their own criticism or a documentary that may either put them in a bad light or if the nature of the documentary is against their own personal views.
Copyright holders have no special right to restrict freedom of speech in any matter. CONGRESS SHALL MAKE NO LAW RESTRICTING FREEDOM OF SPEECH. Copyright holders are not some special class of people that are above Congress and the Constitution.
There is no bill of rights for copyright holders. There is no special provision in the Constitution for them except to specifically mandate a time limit and its stated purpose is to promote free expression, not stifle it. Copyrights are very low on the rights food chain and are really in the category of revocable privilege than an inalienable rights.
Newspapers are particularly low on even the copyright food chain. For one thing a news article is a perishable item. It looses its value the instant it is published. Many aspects of a news story cannot even be copyrighted since they are factual in nature. A fact that has weighed heavily in Right haven cases lately.
It is absolutely apparent that IP Maximilists are freedom and Constitutional rights minimalists. They have a very authoritarian and absolutist world view. They are possibly the most dangerous threat to our freedoms that exist today. Either their view is defeated or we are all be subject to the copyright masters.
The safest speed is whatever other cars are going. If everyone is driving 85mph then that is the safest speed to travel. When everyone else is drive 70 and some bozo is driving 55 it is that person that is putting everyone in danger including themselves not the ones driving 70. Police should focus on those that are driving against the prevailing speed and those driving reckless not just fixate on the posted limit.
Speed limits should be set based on the road itself, statistical analysis of driving patterns, whether, and traffic density. There should be no blanket speed limits and they should actually be changed based on the conditions of the time. It is time to do away with posted speed limits and have general speed guidelines. Technology is at a point now where people can get real time data of the speed limit based on their GPS position.
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