Karl 's Techdirt Comments
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On the post: Is There Any Merit To Neil Young's Plan To Improve The Quality Of Digital Music?
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On the post: MPAA Just Won't Quit: Jumps Into Legal Dispute To Argue Links & Embeds Are Infringing
Karl ( profile ), 12 Apr, 2012 @ 10:18pmRe:
You upload the video to them
And thus become liable for direct infringement.
Nobody is arguing that someone who themselves uploads content to a third-party host, then links to it, is committing copyright infringement.
But the infringement is not in "linking," it's in uploading the video with the intent to distribute it.
If you did not upload anything, but simply linked to it, then you are not infringing:
Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently.
- Ticketmaster v. Tickets.com -
On the post: MPAA Just Won't Quit: Jumps Into Legal Dispute To Argue Links & Embeds Are Infringing
Karl ( profile ), 12 Apr, 2012 @ 09:50pmRe: Pitiful? No, it's a nuanced point.
You keep repeating that links are just speech.
Just for the sake of argument, let's say they're not speech.
You know what else they're not?
Copyright infringement. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 12 Apr, 2012 @ 12:07amRe:
It appears we are speaking at cross purposes. I will give you the benefit of the doubt, and assume that this is because I didn't make myself clear (rather than the easier explanation that you are just an anti-Techdirt reactionary).
There are undoubtably certain situations in which the "takings clause" would apply to copyright. Say, for example, that in 2003, the state of New York decided it was "unfair" that the royalties to Beatles songs went to the Michael Jackson estate, and not to Paul McCartney. That state then declared that any royalties that accrued in their state were the property of Sir Paul.
Would that implicate the takings clause? Almost certainly, it would. I say "almost," because there would be so much wrong with that New York law, that the clerk typing a transcript of the case would collapse from carpal tunnel syndrome before the Fifth Amendment was even mentioned.
So, yes, if the Government acted contrary to the statutory laws passed by Congress in removing a copyright from its owner, without compensation, it would certainly not pass Fifth Amendment muster.
Of course, that's not even close to anything I was talking about.
Here is exactly what I asked:
If Congress decided to do away with copyright altogether, and not compensate copyright holders in any way, would it violate the Fifth Amendment?
Notice that the word "retroactive" is nowhere to be found. And without the retroactive aspect of Congress doing away with copyright, the answer to that question is an unequivocal "no."
The 1909 Act did away with copyright proetection for fine arts under the 1870 Act. The 1976 Act enacted "reversion rights" for artists, which previously did not exist, and "took" the copyrights away from what was previously the rightful owners of those copyrights. It officially codified the "fair use" doctrine, under which copyright holders lost all "property" rights for uses that were determined to be fair use. Sony v. Universal expanded the uses that were considered fair use. And, of course, when Congress enacted its first copyright clause, under the condition that one seeking such protection follow certain statutory proceedings, nobody who held a copyright when that statute was enacted enjoyed any sort of copyright protection unless they complied with federal statutory preceedings, regardless of whether they followed state statutes.
Not one of these developments even suggested a "taking clause" claim, much less was decided to conflict with it. It is not even remotely controversial to claim that the Fifth Amendment is irrelevant, if Congress decides to define the scope of the limited monopoly known as copyright, without retroactively changing that scope.
And, as I said before, this is not an academic question. The RIAA has already challenged "reversion rights" under the takings clause, though it was in regards to "Gap Grants" (it's from that analysis that I quoted Marybeth Peters.) As 2013 approaches, I fully expect some RIAA lawyer to claim that "reversion rights" are invalid under the takings clause, even though they only apply to copyrights granted after the statute was enacted. I fully expect this particular argument to fail.
Now, despite me not mentioning it, you have been focusing on one question: what if Congress did away with (some or all) rights in copyright, and applied them to still-active copyrights? That is, what if Congress changed the scope of copyrights retroactively?
Though it bears absolutely no relevance to the point I was making, it is certainly an interesting question. I say "interesting," because the clerk typing a transcript of all relevant cases would have time to step outside the courtroom for a smoke break.
Simply put, no court has ever held that retroactive changes to copyright law passed by Congress involve the takings clause. The court in Roth v. Pritikin raised the possibility that it might be the case, but that was dicta, and they expressly said that they would not decide on that possibility.
Certainly, retroactive extensions to copyright law have not been held to conflict with the takings clause, as I'm sure you know.
Additionally, such changes have happened before, at least as far as I can tell. I alreay mentioned the undoing of copyright protection for "models or designs intended to be perfected as works of the fine arts," cited in Mazer v. Stein. The 1909 Copyright Act did away with the protections afforded these works in the 1870 Act (though they were reinstated a couple decades later).
You asked: "when they changed the law, did they actually take away rights retroactively that had been granted? If not, no takings." Well, I have just read the 1909 Act in its entirety, and I see no sort of "grandfather clause" for these types of works. So, it appears that, yes, Congress did actually take away rights retroactively that had been granted. Former copyright "owners" of those works suddenly found themselves without any sort of "property" whatsoever. All without implicating the Fifth Amendment.
Still, that Act was not challenged in court, so there is no definitive case on the matter. That is why the aforementioned Register of Copyrights, Marybeth Peters, says flat out that "the Office does not know of any cases in which courts deemed Congress' copyright revisions to be takings."
And, once again, this is not a theoretical concern. Many, many people (both in the government and the publishing industry) want "orphan works" legislation to pass. If Congress was not allowed to pass retroactive changes to copyright under the Fifth Amendment, orphan works legislation would be unconstitutional on its face. (The law would necessarily rob the existing copyright holder of their "property rights," and since the holder by definition cannot be found, he or she certainly cannot be compensated.)
I seriously doubt that a single member of the Supreme Court would hold that to be true.
Would you? I asked before, but you never answered.
What I can't stand is the, "I know what I'm talking about and you don't" attitude that infiltrates all of your legal pronouncements.
You and me both, buddy.
You're just some anonymous coward who's afraid to put a name to their posts. I have absolutely no evidence whatsoever that you're any more versed in the law than your average citizen (including me).
I never claimed I was a constitutional lawyer or anything. I never claimed to be any sort of lawyer at all. But even I can see that you are the one with an "I know what I'm talking about and you don't" attitude that "infiltrates all of your legal pronouncements."
If an idiot like me can see it, I'm guessing that everyone reading these comments can see it, too. That's quite an attitude, considering that you're no more reputable as a legal expert than your average /b/tard. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 11 Apr, 2012 @ 01:28amRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Again, you fail to understand that the Second Circuit's statement of the law
Again, you fail to understand that the Second Circuit's dictum was not a statement of law, but was made ex nihilo.
Something both myself and the (former) Register of Copyrights understand. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 11 Apr, 2012 @ 12:42amRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Just because they didn't apply that law to the case doesn't mean they weren't stating the actual law.
There is not a single law in the statutes that says intellectual property is subject to "regulatory taking" laws.
So, no, they weren't stating the actual law. They were opining that it might be the case, but they didn't actually decide it. Nor is there a single court case that actually decided that it was - as opposed to Zoltek, which explicitly decided that it was not.
Did you read the footnote cited in Pruneyard? It explains the broad meaning of the word "property."
I read all of the footnotes cited in Pruneyard. Then I hunted down the actual cases (where I could, without acces to Lexis-Nexus). The footnotes explained the broad definition of rights attached to real estate regarding the takings clause.
Not one case was about any other form of property. Not one case mentioned either patents or copyrights.
The Zoltek case you quoted only refers to the fact that infringement is not a taking. Duh. We're not talking about infringement, we're talking about an actual taking
If copyright and patents were property, the way that you and Pruneyard define it, then infringement absolutely would be subject to the takings clause. In fact that's what the Pruneyard footnotes were saying: that any infringements of real property rights, whether "taking the property right away from its holder" or not, were subject to the Takings Clause.
Here's my suggestion: learn what it means for something to be property, and then apply that to intellectual property rights.
Here's my suggestion: learn that patents and copyrights are legally different from other forms of property.
This is the relevant part of Zoltek:
As the Supreme Court has clearly recognized when considering Fifth Amendment taking allegations, "property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Here, the patent rights are a creature of federal law.
Zoltek held that when the property rights are solely creatures of federal law, there is no Fifth Amendment claim.
That's right, "his property."
Good Lord. I already made it clear that copyright and patent are treated as if they were personal property, by statute. But this is solely because Congress chose (but was not required) to implement the "exclusive rights" as property rights. If Congress did not choose to implement those "exclusive rights" this way, but in some other way - or not at all - then there would be no property rights.
And there is absolutely zero indication that the Supreme Court would find it unconstitutional if they did:
Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.
- Graham V. John Deere
As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product.
- Sony v. Universal
Further evidence of my assertation is the fact that it already happened. Mazer v. Stein tells the story:
The Act of 1870 defined copyrightable subject matter as:
- Mazer v. Stein
"... any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statute, statuary, and of models or designs intended to be perfected as works of the fine arts." (Emphasis supplied [in original].)
In 1909, Congress again enlarged the scope of the copyright statute. The new Act provided in ? 4:
"That the works for which copyright may be secured under this Act shall include all the writings of an author."
Significant for our purposes was the deletion of the fine arts clause of the 1870 Act.
Yet, despite the fact that copyright protection for "fine arts" statues was eliminated from copyright protection, nobody even suggested that it violated the takings clause.
By the way - leaving aside the takings clause for a moment, the same case that you cited, Fox v. Doyal, makes it absolutely clear that your interpretation of copyright is wrong:
The Constitution empowers the Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The production to which the protection of copyright may be accorded is the property of the author and not of the United States. But the copyright is the creature of the Federal Statute passed in the exercise of the power vested in the Congress. As this Court has repeatedly said, the Congress did not sanction an existing right but created a new one. [...] The 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.
The fact that "Congress did not sanction an existing right but created a new one" is the primary reason Zoltek ruled that patents are not subject to the takings clause.
This is not an academic argument, either.
The RIAA has already attempted to attack the "termination rights" provisions in the 1976 Copyright Act under the takings clause; expect more of that to come.
And the subject has been raised in regards to orphan works legislation. This kind of legislation has stalled, but since it's supported by so many people (even the American Association of Publishers and Maria Pallante herself), it seems like some version will become law sooner or later.
Here's a question for you. Do you honestly believe that the Supreme Court will find orphan works legislation to be categorically invalid under the Takings Clause? I don't. -
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Karl ( profile ), 10 Apr, 2012 @ 01:34amRe: Re: Re: Re: Re:
I'm not disputing that the primary purpose is to benefit the nation, and neither is the Register. What she said was that the benefit to the author happens first.
If you are the same person I originally responded to, then you absolutely were disputing that the primary purpose is to benefit the nation: "Sorry, but the words don't say that - the 'for the nation' is something added by people like yourself."
And it is pure post hoc rationalization to claim that she was saying copyright benefits authors first in time. There is absolutely no way you could interpret it that way:
It is my strong view that exceptions and limitations are just that -- they are important but they must be applied narrowly so as not to harm the proprietary rights of the songwriter, book author, or artist. Copyright is for the author first and the nation second.
She is quite clearly saying that copyright is for the author foremost and the nation second. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 09 Apr, 2012 @ 10:22pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Roth v. Pritikin
If you don't believe my analysis of the case, let's ask someone else:
RIAA cites two takings cases, Roth v. Pritikin, 710 F.2d 934 (2d Cir. 1983) and Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-1016 (1984), regarding copyright and trade secrets, respectively, but neither expressly holds that copyright revisions are takings. [...] In dismissing Roth's interpretation of section 301, the court proffered, in passing, that "a subsequently enacted statute which purported to divest Pritikin and McGrady of their interest in the copyright by invalidating the 1977 agreement could be viewed as an unconstitutional taking."
The court did not address the issue on the merits, however...
Just who is that dastardly copy-hater and freetard?
Marybeth Peters, United States Register of Copyrights, 1994-2011. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 09 Apr, 2012 @ 09:59pmRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"An interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution." Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983).
You left a couple sentences out there, buddy.
Let's fill in that quote a little more:
Although the language of the Act, its legislative history and rules of statutory interpretation are sufficient answers to Roth's claim, we note, en passant, adoption of her interpretation of ? 301 would, in addition, raise a serious issue concerning the Act's constitutionality. See 1 Nimmer on Copyright, supra, at ? 1.11. An interest in a copyright is a property right protected by the due process and just compensation clauses of the Constitution. See Loretto v. Teleprompter Manhattan CATV Corp., ___ U.S. ___, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 82 n. 6, 100 S.Ct. 2035, 2041 n. 6, 64 L.Ed.2d 741 (1980). The agreement between Roth and the appellees, pursuant to which Roth surrendered any rights she might otherwise have obtained in the copyright, was valid when it was entered into, and a subsequently enacted statute which purported to divest Pritikin and McGrady of their interest in the copyright by invalidating the 1977 agreement could be viewed as an unconstitutional taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); see also Michelman, Property, Utility, And Fairness: Comments On The Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165 (1967). Resolution of this issue is not required for our holding, and will have to wait for an appropriate case.
So, no, they didn't outright say that copyright automatically is property protected by the Fifth Amendment. They raised the issue that it probably was, but didn't decide the issue.
It doesn't help your case (or their opinion) that not a single one of the cases they cited dealt with any form of intellectual property... or any form of property that wasn't "real property" (real estate).
That case was decided in 1986. So, what actually happened when "an appropriate case" came along?
We turn to the trial court's takings analysis. The Court of Federal Claims held that Zoltek could bring its action against the government under the Tucker Act, by alleging that the infringement was a taking of private property for public use under the Fifth Amendment. See Zoltek, 58 Fed.Cl. at 707. We reverse. [...]
- Zoltek v. United States (2006)
As the Supreme Court has clearly recognized when considering Fifth Amendment taking allegations, "property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Here, the patent rights are a creature of federal law. [...] Had Congress intended to clarify the dimensions of the patent rights as property interests under the Fifth Amendment, there would have been no need for the new and limited sovereign immunity waiver. [...]
If, as the dissent argues is suggested by Crozier, a patent is a type of property that comes within the ambit of Fifth Amendment Takings Clause protection, why should we not likewise permit claims for patent infringement to arise under the Tucker Act?
The answer is simple. Unlike regulatory takings and the inverse condemnation of real property, the "taking" of a license to use a patent creates a cause of action under ?1498. The dissent fails to appreciate that this destroys whatever force its argument by analogy may otherwise have had. Indeed, if we were to interpret ?1491 as the dissent would have us, it would render superfluous ?1498 ? the remedy that Congress fashioned specifically to compensate patentees for the use of their patents by the federal government. [...]
We reverse the trial court's ruling that Zoltek can allege patent infringement as a Fifth Amendment taking under the Tucker Act.
Now, that lawsuit is still ongoing; but even in the latest court case (March 14th of this year), where it was found that the government could be liable under ?1498(a), the court reiterated that "The trial court?s determinations on that issue [that Zoltek did have a Fifth Amendment claim] are vacated."
The government came to a similar conclusion in 1998:
Because a patent owner's property rights under the applicable statutory scheme to not include the right to exclude the governmnet from using his or her patented invention, when the government uses a patented invention, it does not "take" any property interest that belongs to the patent owner. Stated in another way, the government does not have to resort to exercising its sovereign power of eminent domain to utilize a patent owner's patented invention because the statutory framework that defines a patent owner's property rights gives the government the authority to use all patented inventions. Thus, the government cannot "take" what it already possesses.
- De Graffenried v. United States
Now, I'd also like to point out that these are cases where the government has used specific patents held by specific individuals - and even in these cases, the government isn't infringing on the "takings clause." Copyright and patent holders may sue the government, of course, but they must rely on specific statutes enacted by Congress that allow them to do so.
I have never heard of a single case where anyone brought a Fifth Amendment charge against a generally-applicable statute enacted by Congress under its Title 1, Section 8 powers. Indeed, it would not make any sense: that would mean the government would have to cut rights holders a check every time they expanded fair use, created exemptions for libraries, enacted statutory royalties, created more exemptions to DMCA anti-circumvention laws, etc. -
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Karl ( profile ), 08 Apr, 2012 @ 11:12pmRe:
But sequentially speaking, the benefit accrues first to the author who gets property rights in the work. Later on, once the copyright expires or is abandoned, the nation then benefits.
This is not really true. I replied to this viewpoint in the original thread, but you apparently did not read it (or chose to ignore it).
Fair use; the idea/expression dichotomy; statutory royalty rates; the specific exemptions granted to libraries and educators; the exemptions granted to those who prepare alternative works for the disabled; even (to a degree) first sale rights - all were put in place specifically because copyright is supposed to benefit the public first and foremost, even when those works are still under copyright.
If you had said that copyright "ownership" accrues to creators first (sequentially), and the public second, you would be correct (insofar as the statutes are concerned). But neither you nor me were talking about public "ownership," but public benefit. And neither, despite the best efforts of her spin doctors, was Maria Pallante.
I did also talk about the natural rights of the authors vs. the public, but that has nothing to do with "sequential ownership" under the law. It has to do with the theory of copyright that has been accepted from the Founders to the present day. That accepted theory is clear: artists don't have any sort of "natural right" to copyright (nor even a "common law" right). Copyright is granted to artists by the public, through their public servants in Congress. Without that grant, copyright would not exist in any form whatsoever (unlike most personal property rights).
As an example, I pointed out that if Congress did away with copyright altogether, they absolutely would not violate the Fifth Amendment's "takings clause." That was pretty much decided by Wheaton v. Peters: "Congress, then, by this act, instead of sanctioning an existing right, as contended, created it."
Congress could do away with copyright altogether, and there would be absolutely no conflict with the Fifth Amendment's "taking" clause. There would no longer be any kind of personal property to "take." The Constitution does not give any sort of property right to authors, but gives to Congress the right to create a monopoly, at its discretion (and in whatever statutory format it wants, "property" or not), solely for the purpose of promoting the public good.
For example, all your whining about how locking up works with copyright doesn't help educational efforts.
Considering that Congress singled out educational efforts to be exempt from certain copyright restrictions, I'd say it's a concern that both him and Congress have in common. -
On the post: Megaupload Points Out That The Feds Want To Destroy Relevant Evidence In Its Case
Karl ( profile ), 08 Apr, 2012 @ 07:53amRe: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
They don't have to prove that all of the material is infringing, only that there was infringing material, that access was being sold, and so on.
They have to prove more than just that infringing material existed, and that access to it was being sold. Lots of companies have allow you to pay more for higher speeds, lack of ads, etc, and I'm sure there is infringing material on all of them. That doesn't make them "criminal enterprises."
The government has to show, beyond a reasonable doubt, that the direct infringement (by the users) was criminal infringement; and that the arrested Megaupload employees were conspiring with those users in that criminal infringement.
The point is that the infringement is the basic crime, but the big part of it is how the money was moved from the corrupt enterprise to third party companies to "clean" it.
You're presupposing there was a "corrupt enterprise" in the first place.
That was my point. If the criminal copyright infringement charges cannot be proven, then the charges related to money laundering completely vanish.
Honestly, the racketeering and money laundering charges are the most ridiculous, in my opinion. They stem from nothing more than their rewards program, and the fact that Megaupload paid for hosting. That this would be seen as "money laundering" is ludicrous. -
On the post: Megaupload Points Out That The Feds Want To Destroy Relevant Evidence In Its Case
Karl ( profile ), 07 Apr, 2012 @ 09:03pmRe: Re: Re:
The idea is to seize what appears to be the ill gotten gains, and require that the defendant prove that they are in fact not ill gotten gains.
Which they can't do, if the government allows data to be destroyed.
I'm betting that Megaupload is going to argue that a significant amount of their income was not the direct proceeds of criminal copyright infringement. Especially in light of the money laundering charges.
To do that, they need to present evidence that is on the servers... evidence that the government won't allow them to access, and is recommending be destroyed. -
On the post: Megaupload Points Out That The Feds Want To Destroy Relevant Evidence In Its Case
Karl ( profile ), 07 Apr, 2012 @ 08:46pmRe: Re: Re: Re: Re: Re: Re: Re: Re:
Further, you have to remember: The case really hinged only very slightly on the infringement side, and more to do with the sales of access to it, and the commissions paid to third party companies (also owned by Kim) which constitutes the significant money laundering activities.
If the material isn't infringing, then there is nothing unlawful with providing "sales of access to it."
Also, they are only accused of money laundering because that money allegedly came from criminal copyright infringement. If the money didn't come directly from infringement - or even if the infringement wasn't criminal - then they cannot be charged with money laundering, either.
So, "the infringement side" is really the only side that matters. If the government can't prove criminal infringement, they have to drop all charges. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 07 Apr, 2012 @ 05:56pmRe: Re: Re: Re: Re: Re: Re:
Copyright is property
Maybe this will make you understand things a bit better.
Under the "takings clause" of the Fifth Amendment, the U.S. government cannot take personal property from its owner without just compensation.
If Congress decided to do away with copyright altogether, and not compensate copyright holders in any way, would it violate the Fifth Amendment?
No, it would not. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 07 Apr, 2012 @ 05:47pmRe: Re: Re: Re: Re: Re: Re:
You haven't, nor can you, dispute two facts:
(1) Copyright is property. It's the exclusive property of the owner or his assignees.
It is treated as if it were personal property, by statute, because that is the most convenient way to treat it. But it is solely a monopoly right. It has always been referred to as such, by the Founding Fathers, Congress, and the Supreme Court.
That is why the Supreme Court held that copyright infringement is not theft: "interference with copyright does not easily equate with theft, conversion, or fraud" (Dowling v. United States).
Copyright has never been treated the same as real property, chattel, or even money. All of these would be property even without laws proclaiming them as such. On the other hand, there isn't even such a thing as a "common law copyright," much less a copyright that exists outside of law.
(2) Copyright benefits its owner first, and then the nation later on when the copyright expires and falls into the public domain.
Fair use; the idea/expression dichotomy; statutory royalty rates; the many copyright exemptions enjoyed by libraries and educational institutions... These were all put in place precisely because copyright is designed to benefit the public first and foremost, even while works are still under copyright.
So, no, they're not "indisputable facts." They're indisputably your opinion. The facts are much more nuanced and complicated than your simplistic opinion. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 07 Apr, 2012 @ 12:13amRe: Re: Re: Re: Re:
The rights granted by Section 106 are property. You don't understand what the word property means, Karl. Yes, the law could be changed so that the property rights were taken.
The rights that are granted in Section 106 are "property" that, by nature, belongs to the commons. If copyright was not "granted" by the government, every single person on earth would have the right to do every single thing that is listed in 17 USC 106. The only "right" that is granted to authors, is the ability to prevent every other person on the planet from exercising those rights.
And those rights are only granted for the sole reason of the public benefit. Naturally, every single ability that is "granted" to authors in 106 (excepting the ability to exclude) is the natural right of every single human being on the planet - including authors. In other words, that "property" is the property of the commons, exclusively, unless the public voluntarily voluntarily gives it up.
Perhaps I should let Thomas Jefferson explain it:
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
So, every single right granted to authors (106 or no) can be rendered null and void by the public simply retracting those rights from copyright holders. This is the only thing that "piracy" is: the public retracting the rights that they own from copyright holders.
Also, copyright "as it currently stands" has not existed for "over two centuries." Copyright law changed dramatically in 1976, which is probably within the lifespan of most people who comment here (I was eight). This is a minor blip on the timeline of copyright.
And copyright law changes have only increased. Before the NET Act of 1997, infringement for non-commercial use was not unlawful in any way. If the RIAA had tried to sue Jammie Thomas at that time, the case would have been thrown out of court. And that was less than twenty years ago.
In fact, copyright as it stands today lasts at least twice as long as copyright has lasted for the last two hundred years; and it is now automatic, unlike the previous two centuries when it was not. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 05 Apr, 2012 @ 08:57pmRe: Re: Re:
All of you copy-haters sure don't respect other people's property rights.
Neither do you, apparently. The rights in 106 naturally are common rights. They belong to us, and we voluntarily grant them to authors (through our representatives in Congress).
So, they're not the authors' "property rights" in the first place. If we as a people decide not to respect them, then it's our prerogative to take them away. It's our "property" and we can do what we want with it. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 05 Apr, 2012 @ 08:45pmRe: Re: Re: Re: Naturally you're misinterpreting this
Every time someone puts a pen to paper, they create something that's born with an implicit copyright.
This wasn't true until 1978. That's within most of our lifetimes (I was eight at the time).
So, when most of us were born, nothing we created was "born with an implicit copyright." It wasn't considered any sort of general human right at all. It was only for people who expected to make money off of their works, and who had explicitly ask for that protection (and again if they wanted longer terms).
That was the law in this country for 200 years. Automatic copyright is a blip on the timeline, relatively speaking. -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 05 Apr, 2012 @ 08:30pmRe: dumb cunt
what a dumb cunt
I don't like her either, but let's avoid throwing around the C-word, shall we? -
On the post: How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?
Karl ( profile ), 05 Apr, 2012 @ 09:21amMike's always whining about the part whether the author gets exclusive rights, and he pretends like that's the part where the nation must get the benefit. That's not how it works.
Of course it's how it works.
The benefits to the public (in theory) accrue immediately - even from works that are under copyright protection (not just for works in the public domain).
The public gets immediate access to the works, and immediate and unrestricted use of the ideas in the works. Additionally, they get certain unrestricted uses of those works, which trump all rights of the authors (e.g. fair use, statutory royalty schemes). In theory, this is supposed to offset the detriment to the public of a government-created monopoly on expression.
The only one who is "whining" here are the authors (more accurately, the publishers) who want the public cut out of the deal altogether. That the Register of Copyrights listens to their whining is sad and alarming.
Re: Digital is pure sound
Doug is pretty much right on all counts.
The bitrate of a file determines its signal-to-noise ratio (the dynamic range). A 16-bit file can give you a S/N ratio of about 96dB, while a 24-bit file can give you a S/N ratio of about 144dB. In nature, 120dB is the "threshold of pain," and humans generally can't hear sounds below 20-40dB (depending on frequency), so 16-bit audio is perfectly acceptable.
Humans cannot consciously perceive sound frequencies above 20 KHz (in children - this starts to go down once you reach eight years old), and anything below 20 Hz is felt as a beat rather than a tone. A 44.1 KHz sampling rate can reproduce sounds up to 22.05 KHz, so no problems there.
Some audiophiles say humans can unconsciously perceive sound frequencies above 20 KHz, but I don't think this is backed up by empirical tests.
Now, a lot of this has to do with the actual equipment that is used to translate analog sounds to digital signals. In the early years of digital audio, this equipment was pretty terrible - lots of classical music digitally recorded in the 80's doesn't sound very good. But this was pretty much fixed twenty years ago.
That doesn't mean there isn't room for higher audio quality, but as Doug said, it's relevant in "pre-production" situations, like when a musician is first laying down tracks. It much more relevant when it comes to signal processing and digital synthesis. These are done using floating-point arithmetic, and using a higher number of bits can reduce rounding errors; a higher frequency rate can also reduce certain artifacts in digital synthesis. Of course, it also takes much more storage space and processing power, but that's not really a problem nowadays.
With the explosion in digital technology came a concurrent explosion in "prosumer" recording equipment. And this is where Mike is a little off the mark:
In fact, even most "prosumer" recording equipment has been able to record at much more than "twice that" for at least a decade.
I have a digital card in my computer right now that can record stereo audio at 24-bit/96KHz. I bought it in the early 2000's (possibly even the late 90's, I don't remember). It cost me $150 back then, and the modern version of that card can do 24-bit/128KHz and costs $100.
I also own a digital recording console that I got about ten years ago. It can do 8 tracks of recording at 24-bit. It was made for an ADAT, so it can only record at either 44.1KHz or 48KHz (and due to rounding errors during conversion, recording at 48KHz actually isn't much of an improvement). Even that was too low of an audio quality for digital boards at the time, so they were letting those go for $600.
So, this type of technology has been around for a long time now. In fact, if you wanted to, you could release an audio DVD in 5.1 surround sound in 24-bit/96KHz, and because it's part of the DVD standard, it would be playable on most DVD players on the market. If you're only talking stereo, you can go up to 192KHz.
You know what's really hobbling the high-end market? You guessed it - copy protection.
Because of concerns about piracy, DVD-audio is not allowed to send uncompressed digital audio that is higher than 16-bit/48KHz to any analog device.