Politech mailing list archives
FC: Many, many replies to Jim Maule's defense of Prestwood, RIAA
From: Declan McCullagh <declan () well com>
Date: Thu, 11 Sep 2003 23:26:06 -0400
[Wow. This struck a nerve. Because of the sheer volume, it's been a difficult set of replies to manage. First, I've had about 100 of them, totaling over half a megabyte, and taking me about 40 minutes to edit. Second, Eudora decided to eat the formatting, so the punctuation is pretty chomped. Third, Eudora decided not to let me send out the final text, so I'm using trusty ol' mutt instead. Previous Politech message is here: http://www.politechbot.com/p-05056.html --Declan] --- Date Tue, 9 Sep 2003 014645 -0600 From "Patrick J. Kobly" <patrick () kobly com> To Declan McCullagh <declan () well com> Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits On Tue, Sep 09, 2003 at 120234PM -0400, Declan McCullagh wrote
Date Tue, 09 Sep 2003 113631 -0400 From "James Maule" <maule () law villanova edu> To <declan () well com> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users
<SNIP>
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free? Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal.
The property right is _not_ created by your physical efforts or your creativity. The property right here is created by the scarcity of the land upon which you built your barn-like structure and the scarcity of the building supplies that you used to build this structure. Moreover, it is justified by the fact that when someone else uses the barn-like structure, you are deprived of uses that you could make of it. If you could not prevent people from entering the barn, this would prevent you from removing the model railroad, and keeping chickens in the barn, for example. You are dishonestly conflating two different rights here - the real property ownership interest in the barn, and the intellectual "property" interest in the model railroad. What area of law do you concentrate on? It appears clear that it is neither real property nor intellectual property... <SNIP>
So the underlying premise of the entire argument of the "we share other people's property' crowd makes no sense unless it is viewed as a "I want it, you have it, I'll find a way to take it." Hmmm.... sounds like several national leaders of the 30s in Europe and the Pacific Rim......
Or one nation in North America throughout the latter half of the 20th
century... Either way, it's irrelevant. Copyright and "intellectual
property" were created in the United States to promote the arts and
sciences by offering a limited time of statutorily provided monopoly
protection to the creators of a work.
This is the bargain that was made by creators with society. The
progress of the arts and sciences requires that works be publicly
accessible and expandable. Many creators desire protection so they
can be paid for their works. So a bargain developed. Creators agreed
to allow their works to lapse into PD at some time in the future, in
exchange for protection of a monopoly on those works during that
limited time period. If they don't like the time limit, they
can choose not to release their works. Instead, we are faced by
creators and their middlemen continually arguing for retroactive
extensions of this term so that the consideration offered by the
creators (works lapsing into the PD) is never actually granted to
society. Society has held its end of the bargain (statutory
protection granting an exclusive right of duplication, distribution
and modification) for an awful long time. The creators have defaulted.
PK
--
Bow down before the one you serve
You're going to get what you deserve
-NIN
---
To declan () well com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
From "Larry Burton" <larry () dallasbay net>
Reply-To larry () dallasbay net
Organization Dallas Bay Networks
From "James Maule" <maule () law villanova edu>
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
No, but after paying your $10 to visit I become inspired and wish build something just like it should I be prevented? The differences between real and intellectual property are so vast the it prevents analogies between the two. --- From "Brandon Galbraith" <brandon () corruptedtruth com> To <declan () well com> Cc <maule () law villanova edu> Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Date Tue, 9 Sep 2003 114419 -0500 Declan, Intellectual copyright has a time-limitation, so that after the owner of the intellectual property has had time to make a profit on his work, the work is then released into the public domain, for the public good. Isn't this the same as eminent domain over private property?
From eminentdomainlaw.net
"Eminent domain" (also called "condemnation") is the power of government agencies to acquire property for "public use" so long as the government pays "just compensation." Recognized public uses for which the power of eminent domain may be used include, among other things, schools, parks, roads, highways, subways, fire and police stations, public buildings, and the elimination of blight through redevelopment. A key attribute of eminent domain is that the government can exercise its power of eminent domain even if the owner does not wish to sell his or her property." So if the town where Jim's barn resides in decides that the public good outweighs his right to charge $10 a person to get in, and they take it, how is that different that copyrights expiring? -brandon From "B. Boom" <bb () ii nl> To <declan () well com> X-Mailer PocoMail 2.64 (1120) - Licensed Version Date Tue, 9 Sep 2003 185106 +0200 In-Reply-To <6.0.0.22.2.20030909114510.01f48af0 () mail well com> James Maule wrote
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
So you are also of the opinion that no-one should be allowed to build a replica of your railroad? And what if you close yours down? Nobody is asking the record companies to deal out free records, just the right to reproduce them after a while. More so, when they are out of print and not being reprinted. .B Boom From ???@??? Tue Sep 09 125828 2003 Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits From Steve Stearns <sterno () bigbrother net> To declan () well com On Tue, 2003-09-09 at 1102, Declan McCullagh wrote Quoting from James Maule's response
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
It would be nice if he did but there's no expectation. When you are talking about physical property, all the contributors to that physical property have been compensated. If somebody builds a barn, and a model railroad, they have to pay for the property, lumber, trains, and then they add value by their own contribution of labor. Thus, when it is all built, that person is sole owner of the creation. With intellectual property, the building blocks of the works are never paid for directly. If I was to go into the barn and film it, the owner of the barn isn't paid for the images I take (except my $10 admission fee that everybody else paid too). So I'm getting free material to work with. Fair use and the limited terms of copyright insure a property right where there otherwise would not be one in exchange for a compensation structure that insures society as whole gets something back for what is taken for free. ---Steve Date Tue, 09 Sep 2003 130341 -0400 From "James Maule" <maule () law villanova edu> To <brandon () corruptedtruth com>, <declan () well com> Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits It is different in several respects. First, I am paid for the future profits I would have earned if the condemnation did not take place. The P2P folks don't want to pay anything. Second, there are due process opportunities to contest the taking and to dispute the amount of the damages. The P2P folks simply do the taking without notice, hearings, or any other procedural safeguard. Third, the condemnation of my building is an act of duly elected government officials, and in many instances, while the condemnation proceedings are underway, voters have ousted from office the officials trying to take the property. The P2P folks are "take the law into their own hands" types ... analogous to someone simply moving me out of the model railroad barn by use of tanks or some form of terrorism. I'm not arguing against the expiration of copyright (which is very different from the in perpetuity nature of other property ownership). Patents also expire. So do franchies and licenses (though those are privately created, and need not expire if the contract makes them perpetual). What I'm arguing is that so long as the copyright exists, the copywritten material is the property of the copyright owner. There's a lot of material "out there" on which there is no copyright (through expiration or because it is not of copywritable nature), or which the copyright owner has put into the public domain (explicitly or by ignoring all infringments). The RIAA liitigation doesn't involve those items; it involves items which are privately owned and which are easy to steal because the technology doesn't have the equivalent of the locks, alarm systems, pit bulls, electric fences, and mine fields that can be placed around the model railroad barn. Date Tue, 09 Sep 2003 180542 +0100 From ken <bbrow07 () students bbk ac uk>
Date Tue, 09 Sep 2003 113631 -0400 From "James Maule" <maule () law villanova edu> To <declan () well com> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users
[...]
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
Not at all. What they are saying is that you should not be allowed
indefinitely to prevent someone else making a similar model railway.
</x-flowed>
Date Tue, 09 Sep 2003 101256 -0700
From Andrew Huntwork <ash () huntwork net>
User-Agent Mozilla/5.0 (X11; U; Linux i686; en-US; rv1.4) Gecko/20030624
X-Accept-Language en-us, en
MIME-Version 1.0
To declan () well com
<x-flowed>
So the intellectual property regime of this country for its entire
history is troubling to a law professor? perhaps he should find another
line of work. Remember what Thomas Jefferson said
"If nature has made any one thing less susceptible than all others
of exclusive property, it is the action of the thinking power called an
idea, which an individual may exclusively possess as long as he keeps it
to himself, but the moment it is divulged, it forces itself into the
possession of everyone, and the receiver cannot dispossess himself of
it. Its peculiar character, too, is that no one possesses the less,
because every other possesses the whole of it.
"He who receives an idea from me, receives instruction himself
without lessening mine; as he who lights his taper at mine, receives
light without darkening me. That ideas should freely spread from one to
another over the globe, for 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 at any point,
and like the air in which we breath, move, and have our physical being,
incapable of confinement or exclusive appropriation.
"Inventions then cannot, in nature, be a subject of property.
While Mr. Maule may build a barn-like structure using his own hands
only, it is the rarest of intellectual works that is entirely new and
does not build on the ideas of others. Does every intellectual work
steal from the creators of the ideas on which it is based? I cannot
imagine such a definition of intellectual property being helpful to anyone.
Date Tue, 09 Sep 2003 141939 -0300
From jtaylor <jtaylor () hfx andara com>
Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
To declan () well com
----- Original Message -----
From "Declan McCullagh" <declan () well com>
To <politech () politechbot com>
Sent September 09, 2003 102 PM
Subject FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Previous Politech message "Reply to Hugh Prestwood and RIAA suing individual P2P users" http//www.politechbot.com/p-05050.html --- Date Tue, 09 Sep 2003 113631 -0400 From "James Maule" <maule () law villanova edu> To <declan () well com> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P
users
I don't get the gist of Jason's complaint. Actually, I do.... and it is troubling.
[ a lengthy expansion of his difficulty deleted... ]
You mis-understand.
There is, in terms of copyright and patent, a difference between physical
things, and ideas and their expression(s). Property rights vested in each
are treated differently. You are taking an example from one arena and
applying it to the other - a common mistake, but unfortunately one made, it
would seem, on purpose and frequently so by those who would gain from an
expansion of their temporary rights.
We assume that your error is genuine and free from such taint...
Date Tue, 9 Sep 2003 172337 +0000 (UTC)
From "Robert J. Chassell" <bob () rattlesnake com>
To Declan McCullagh <declan () well com>
CC bob () rattlesnake com
.... If I build a barn-like structure with my own hands, and then build
a huge model railroad display inside, and then invite the public to
visit for $10 a visit per person, why should I, after some short period
of time, let people in for free?
Let's ask another question If your neighbor, using his hands, not
yours, builds a barn-like structure and model railroad display inside,
should he be forbidden to invite the public to visit?
That is what the question is about can one person use police to
prevent others from using their `means of production' to make
competitive works?
Remember, the question is not really about a `rivalrous' property,
such as a barn and land. (`Rivalrous' is a term used by economists;
it means that your use and mine `rivals' each other; we both cannot
use a barn for different purposes at the same time.)
The question is about how to promote `non-rivalrous' works, the kind
you *cannot* drop on your toe how to promote the design of model
train layouts, not how to build specific model trains. (The use of
frameworks developed for thinking about `rivalrous' property to think
about `non-rivalrous' works is metaphorical, although often not
recognized as such.)
The U.S. Constitution said that to promote `non-rivalrous' works,
... promote the progress of science and the useful arts ...
government enforced regulation could be used, but only `for limited
times'. (U.S. Constitution, Article I, Section 8)
--
Robert J. Chassell Rattlesnake Enterprises
http//www.rattlesnake.com GnuPG Key ID 004B4AC8
http//www.teak.cc bob () rattlesnake com
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 182442 +0100
X-MS-Has-Attach
Declan,
I worry greatly about a professor of law who doesn't understand the
concept of and differences in "intellectual property" versus physical
property. I'm likewise concerned about a tax lawyer creating simplified
analogies about Constitutional issues.
Copyright, by definition, exists to promote the various arts and reward
the creators a *limited* monopoly on use.
The U.S. Constitution, Section 1, Article 8, Clause 8 reads "[The
Congress shall have Power] 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".
Disney has made an awful lot of money on items which are in the public
domain, such as Hans Christian Andersen's and Kipling's, and a quick
search will turn up their follies with the Milne estate over their
failure to pay royalties for Pooh. Yet, they want no one to be able to
use that which should also be available to the public in exchange for
the long monopoly which they held. The protections of trademark law
prevent others using Mickey for their own logo.
The original copyright duration was 28 years and could be extended once
for another 28 years. This let most works into the public domain within
a useful period. The excesses of changing that extension first to 47
years and then the period to "life plus 70" has effectively nullified
the public's interest. However, the Constitution clearly states that the
exclusive right is granted only for a limited time "to promote the
progress of science and useful arts".
There is no progress when none can use the works. Current Copyright
violates the spirit of Article 8, and, I expect, the letter of the law,
as well.
Sincerely,
M W Grossmann
(please block address)
To declan () well com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
References <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
From Michael Poole <mdpoole () troilus org>
Date Tue, 09 Sep 2003 132623 -0400
It seriously concerns me that, of all people, a professor of law would
so flagrantly muddle intellectual property law with physical property
law. A simple extension of his argument would argue that anyone
running a railroad today should pay license fees to the descendants of
steam engine inventors for things that were invented 200 years ago
(and which have long since passed into engineering basics). On the
other hand, if someone stole my car for a short joyride, I would very
much like to claim $150,000 in damages!
Michael Poole
Message-ID <Pine.BSI.4.56.0309091250280.26120 () tom iecc com>
From "John R Levine" <johnl () iecc com>
To "Declan McCullagh" <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free? Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission?
I have to say that I'm troubled to read a message from a professor of law who seems unaware of the legal and historical basis of copyright law, or at least is unwilling to acknowledge that basis. Despite the (depressingly successful, evidently) attempts of the Disney, the RIAA, et al. to persuade us otherwise, copyright is not the same as real property. If you build a barn and a railroad, your setup is a unique object, anyone who wanted to build another barn like it would have to put about as much effort into their copy as you did into your original, and anyone who wants to see your barn has to physically visit it. Books and songs are different, in that copying an original is physically very easy, much easier than creating the original. For that reason, the Constitution has specific language creating copyrights, as a specific offer to authors they get a artificial legal ban against other people making those easy copies for a while, in return for the material eventually being available to the public. Authors don't have to take this deal. If you write a book, you can print up copies and lease them out for $10/week, using contract law to forbid copying, and you and your heirs can do that forever. The fact that nearly all authors take advantage of copyright instead tells us that the copyright deal is a good one for authors. It permits much wider distribution while still getting payment to the author -- readers don't have to physically visit your barn and negotiate with you to read your book. Unlike ownership of real property, there's no ancient historical tradition of ownership of copyright. Revolutionary France had no copyright at all, and modern copyright dates only from the Statute of Anne in 1714. In U.S. history, copyright has until recent years lasted roughly for the lifespan of the author, originally 28 years, lengthened to 56 years in the late 1800s. The recent ballooning of the copyright term has only happened since corporations, which are potentially eternal, have started to own copyrights and have lobbied in disingenuous ways to extend protection on a tiny set of still-valuable works from the 1920s that they own. The social goal of copyright is stated in the Constitution to be to encourage authors, but very long copyright terms are an extremely inefficient way to accomplish that. Even if I were to write a copyrighted work that stayed in print for 70 or 90 years, which is pretty unlikely (how many books written before 1933 have you bought lately compared to books written within the past decade?), the vast majority of income from most books comes in the first few decades, particularly when you take into account that a dollar in 2073 is worth about three cents today. In the meantime, the public is denied the access that the copyright deal offered them for works published in the 1920s, 30s, and 40s. None of this should come as a surprise to anyone reading this, and certainly not to anyone familar with U.S. law. So can we stop the self-righteous complaints that copyright isn't perpetual, please? Regards, John Levine, johnl () iecc com, Primary Perpetrator of "The Internet for Dummies", Information Superhighwayman wanna-be, http//iecc.com/johnl, Sewer Commissioner "I dropped the toothpaste", said Tom, crestfallenly. Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Date Tue, 9 Sep 2003 132753 -0400 To declan () well com The framers of the U. S. Constitution, understanding the importance of promoting creativity in the arts and science to a free people, vested Congress with the power to enact copyright and patent laws. U.S. Const., art I, section 8, clause 8 provides "To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries." The entertainment industry has continued to push for legislation that extends the "limited time" for exclusive copyright use, most recently with the "Sonny Bono Copyright Term Extension Act," signed into law in 1998. The Act's constitutionality was challenged and rejected by a majority of the U.S. Supreme Court in an opinion dated January 15, 2003. (537 U.S. __ 2003). That's what Jason was talking about James. Shame on you for speaking out without reviewing your con law notes. Declan, if you post this, please remove my name and email address since I am writing in my individual capacity (while using my employer's facilities). From "Budd, Tracy" To "'declan () well com'" <declan () well com> Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Date Tue, 9 Sep 2003 134042 -0400 <Please remove my email address from this> This analogy makes no sense at all.
I don't get the gist of Jason's complaint. Actually, I do.... and it is troubling.
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
If you are going to use this analogy, then the people don't want to be let in for free. They would like to be able to take a picture of your setup and build their own at home.
Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal. (Sure, I'll pay taxes to repay society for the burden my property puts on the environment, for police protection, etc..... just as creative artists pay taxes).
Again, using your analogy, someone can legally "copy" your train setup in their own home. What you want to prevent is anyone from ever duplicating or making a derivative of your train setup forever. Now you might say, the model train setup (physical property) is not the same as IP, and I would agree. This and similar equivocating physical with real property is simply propaganda that does not hold up to scrutiny. Regards, -Tracy Date Tue, 9 Sep 2003 124239 -0500 From mdelvecchio () visi com To declan () well com Cc maule () law villanova edu Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Ok maybe im missing some critical peice of information, but... it sounds to me Mr. Maule's argument fails, because he's making an analogy between property law and intellectual property law. that fails because unlike physical property, IP has a built-in TTL (time to live). from the beginning IP has been designed to expire because lawmakers knew and understood that to create wonderful new IP, we need the ability to draw upon previous ideas. and yet, due to the depthless coffers of RIAA/MPIAA/Disney, these limitations are continuously extended. so i think what we are seeing is a natural sort of backlash to these continus extentions of IP. cause and effect... matt -- Matt Del Vecchio From Vicki Richman <vicric () vicric com> To Declan McCullagh <declan () well com> Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 09 Sep 2003 113631 -0400 From "James Maule" <maule () law villanova edu> To <declan () well com> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users
[Likening copyright to ownership and use of real property, Professor Maule writes]
So should my grandchildren get to live off my model railroad creation?
Perhaps the father of modern copyright law, Mark Twain said
in defense of limitation
I like that extension of copyright life to the author's
life and fifty years afterward. I think that would
satisfy any reasonable author, because it would take
care of his children. Let the grandchildren take care of
themselves. That would take care of my daughters, and
after that I am not particular.
http//www.boondocksnet.com/twaintexts/speeches/mts_copyright.html
And that indeed is what happened, although not in a way that
Mark Twain intended. Because she deemed it pornographic,
Twain's daughter Clara Clemens denied scholars copies of
certain of her father's late unpublished work. It was only
in the 1960s, when his work came into the public domain,
that the full body of Twain's writings became known to the
public.
Before the 1960s, some of Twain's work was smuggled out of
Clara's possession and pirated. I still have my bootleg
first edition of "1601," one the bawdiest tales ever
written.
Copyright is a two-edged sword, as Clara Clemens and
Scientology have shown. It can be used to conceal, to
censor, to cut off part of our common culture, as well as to
gain an income.
Solidarity,
--
Vicki Richman
vicric () vicric com
http//vicric.com
Date Tue, 09 Sep 2003 105613 -0700
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
From "E. Miller" <subscriptionbox () squishymedia com>
To <declan () well com>
Cc <maule () law villanova edu>
Howdy,
Just a comment on this comment I thought that this response was extremely
literal. All output of labor = personal property, all personal property =
total control and ownership in perpetuity. What a strange world we'd live
in if that were the case. I hereby claim eternal ownership of the carbon
dioxide I just exhaled. Keep your filthy lungs away from my CO2. Your
houseplants too. Seriously, I mean it.
Well, if we WANT a society in which everything is a commodity, if everything
can be owned and controlled by transient private entities, then we may just
get that. But that's a wildly naïve and absolutist view of our role as
ephemeral participants in collaborative society built on the eternal
exchange and elaboration of ideas, emotions, materiel goods...
Our individual actions influence the shape of society, sometimes for the
worse, but hopefully for the better. The same goes for production; it is
best for society if the actions of individuals contributes to the well-being
of society as a whole. Sometimes that's congruent with self-interest
(entrepreneurialism) and sometime it's not (theft). Sorry, Adam.
So it strikes me as amusing that the poster (from a good law school, at
that) doesn't differentiate between pure self-interest as expressed by the
entrepreneur (selling admission and claiming eternal ownership of profits)
and pure self-interest as expressed by the putative thief ("stealing" by
consuming an experience with zero marginal cost for the producer).
In the US we have somehow developed this odd collective self-delusion that
there isn't a differentiation between self-interest and collective interest.
And that's absurd. 'Cause you know what? You're going to die someday.
We're all going to die someday. And a system that assigns complete control
of physical, social, and cultural contributions to society to entities that
will soon be dead and decomposing...now that's asinine. Like I said, in an
extreme example don't you dare inhale my CO2.
We have to realize that we can't completely own the experiences that
constitute society any more than we can own air. But what the hell do I
know, I'm just a reformed ex-music major and a creative content producer...
Eric
Date Tue, 9 Sep 2003 135902 -0400
To maule () law villanova edu, declan () well com
From Brent Neal
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
[Declan - if you post this to Politech, please obscure my email address]
Jim,
Did you perhaps see "League of Extraordinary Gentlemen" this summer?
Or did you ever see Disney's 20,00 Leagues Under the Sea. What about
Disney's "The Little Mermaid" or "The Hunchback of Notre Dame?" What
about "Tarzan?" Did you buy those DVDs for your kids? Your grandkids?
If you did, then you are in principle as guilty as you claim that the
file sharers are. The only difference is that you've lucked out the
great writers of the 19th and early 20th century did not have the
wonderful "protections" that modern artists do.
The fact is that without reasonable limits on copyright terms, NONE
of those movies would have existed. End of story. The public domain
is a living, vital source of ideas and material for new creative
works. You could easily argue that Disney would not be one of the
world's premier entertainment companies without their repeated use of
the public domain. Now, imagine the world without Disney. While I
cannot deny that the abuse that they've placed on our copyright
system and the violence that they have done to many literary classics
has been egregious, Disney has provided a creative outlet for many
original works as well. To have Mickey Mouse and Donald Duck never
exist at all due to the interests of selfish creators would be far
worse. Yet, our current copyright regime guarantees that the
entertainment companies of the future will never have the same
resources as the early Disney studios did, simply because the
copyright regime does not respect the value of the public domain.
Your example of the barn has two major flaws. First, you assume that
society as a whole benefits if a creator (or his inheritors) can in
perpetuity restrict any usage of his work. It is quite clear given my
previous example that this is not the case. The second flaw seems to
be a popular one these days, which is the assumption that ideas can
be treated like plots of land. This assumption may make the lawyers'
lives easier, since they aren't burdened with the task of
constructing a new framework for intellectual property, but it is
clearly what programmers call a "dirty hack," i.e. something that was
thrown in because it was (marginally) better than nothing at the time.
One thing about dirty hacks is that when the programmer has time, or
when the hack's usefulness has been outlived, is that they either get
replaced by more elegant code. It is clear to me, and to many
others, it seems, that the usefulness of that "plot of land"
assumption is growing long in tooth, and needs to be rethought
carefully, before a tiny handful of large companies wind up owning
the totality of our cultural and creative output.
If only our lawmakers would have as much pride in -their- code, as
programmers have in theirs.
Brent
Date Tue, 09 Sep 2003 142901 -0400
From "James Maule" <maule () law villanova edu>
To <mdelvecchio () visi com>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
I'm not ignoring that distinction, nor did I argue for perpetual
copyright.
I merely argued that the existence of a term doesn't convert the
property into something that is in the public domain at the outset. So
long as something is protected from copyright, permitting P2P folks to
"take over" the reproduction and distribution part of the process is to
permit theft of the profits that can be generated from someone's
efforts.
So even if there were a "take all" estate tax that took my model train
barn when I died (and it didn't go to my descendants), that wouldn't
justify someone sneaking in without paying the entrance fee.
<mdelvecchio () visi com> 9/9/03 14239 PM >>>
Ok maybe im missing some critical peice of information, but...
it sounds to me Mr. Maule's argument fails, because he's making an
analogy
between property law and intellectual property law. that fails because
unlike
physical property, IP has a built-in TTL (time to live).
from the beginning IP has been designed to expire because lawmakers
knew and
understood that to create wonderful new IP, we need the ability to draw
upon
previous ideas.
and yet, due to the depthless coffers of RIAA/MPIAA/Disney, these
limitations
are continuously extended.
so i think what we are seeing is a natural sort of backlash to these
continus
extentions of IP. cause and effect...
matt
--
Matt Del Vecchio
Date Tue, 09 Sep 2003 143836 -0400
From "James Maule" <maule () law villanova edu>
To <subscriptionbox () squishymedia com>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
If it is in my self-interest to kill you and in your self-interest to kill me, and if society's self-interest either
doesn't care, or favors you, or me, we have a mess. What solves that problem is law... from Constitution through
statute to regulation and judicial opinion. Whether or not we agree that there should be copyright protection that
creates private property, that is a question separate and apart from the fact that our legal system does so provide.
Likewise, perhaps we should communally own all property and not just the O2 that MY houseplants produce for you to
breath <G>, but we don't have such a system (and attempts at doing that way haven't worked). So, as long as we have
what we have, and even though we can lobby to change it, there's no excuse for a person deciding that in their
self-interest they will take what belongs to another under the law, or that they will drive their Humvee through the
red light through a crowd of pedestrians because their self-interest in getting somewhere quickly trumps the
self-interest survival desires of the pedestrians. The law exists to resolve the conflicts among our individual and
collective self-interests.
And, incidentally, I tried, diplomatically, to differentiate between the self-interest that is pursued within the law
and the self-interest pursed outside the law. That I have a bias favoring the former and disrespecting the latter is a
matter of values.
"E. Miller" <subscriptionbox () squishymedia com> 9/9/03 15613 PM >>>
Howdy,
Just a comment on this comment I thought that this response was extremely
literal. All output of labor = personal property, all personal property =
total control and ownership in perpetuity. What a strange world we'd live
in if that were the case. I hereby claim eternal ownership of the carbon
dioxide I just exhaled. Keep your filthy lungs away from my CO2. Your
houseplants too. Seriously, I mean it.
Well, if we WANT a society in which everything is a commodity, if everything
can be owned and controlled by transient private entities, then we may just
get that. But that's a wildly naïve and absolutist view of our role as
ephemeral participants in collaborative society built on the eternal
exchange and elaboration of ideas, emotions, materiel goods...
Our individual actions influence the shape of society, sometimes for the
worse, but hopefully for the better. The same goes for production; it is
best for society if the actions of individuals contributes to the well-being
of society as a whole. Sometimes that's congruent with self-interest
(entrepreneurialism) and sometime it's not (theft). Sorry, Adam.
So it strikes me as amusing that the poster (from a good law school, at
that) doesn't differentiate between pure self-interest as expressed by the
entrepreneur (selling admission and claiming eternal ownership of profits)
and pure self-interest as expressed by the putative thief ("stealing" by
consuming an experience with zero marginal cost for the producer).
In the US we have somehow developed this odd collective self-delusion that
there isn't a differentiation between self-interest and collective interest.
And that's absurd. 'Cause you know what? You're going to die someday.
We're all going to die someday. And a system that assigns complete control
of physical, social, and cultural contributions to society to entities that
will soon be dead and decomposing...now that's asinine. Like I said, in an
extreme example don't you dare inhale my CO2.
We have to realize that we can't completely own the experiences that
constitute society any more than we can own air. But what the hell do I
know, I'm just a reformed ex-music major and a creative content producer...
Eric
Date Tue, 09 Sep 2003 144628 -0400
From "James Maule" <maule () law villanova edu>
To <rick () rickbradley com>, <declan () well com>
Cc <politech () politechbot com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
I understand that the inartful expression of the comparison (which I
corrected in another post) can generate the impression I am arguing for
eternal copyright by analogy to other parts of property law. I'm not.
And in fact, technically, there are limits on the extent to which
ownership and control of property can be extended into perpetuity.
That, however, does not mean that a comparison between one part of
property law (ownership of a self-built barn and model railroad layout)
and another part of property law (ownership of copyright) is a
"conflation". To both parts of property law belongs this maxim "If the
property [copyright, barn, or model layout] is owned by a person, no
other person has a right to take it or use it without consent, and if
that consent is conditioned on payment of compensation, a taking or use
without payment of that compensation constitutes civil and criminal
theft, trespass, or illegal appropriation, depending on the
circumstances."
The difference in term of the right (limited term for copyright, much
longer, perhaps perpetual term, for real property) does not translate
into a notion that because the copyright term will end we might as well
ignore the copyright now. There's just no getting around the lack of a
legal difference between stealing a CD from a store and stealing it from
a source closer to its creation. Except, of course, it's a tad more
difficult to shoplift than it is to set up a P2P network that feeds off
the efforts of others.
Rick Bradley <rick () rickbradley com> 9/9/03 21640 PM >>>
* Declan McCullagh (declan () well com) [030909 1149]
From "James Maule" <maule () law villanova edu> So, If I build a barn-like structure with my own hands, and then
build
a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short
period
of time, let people in for free? Why can I not pass that building
and
display on to my kids when I die, giving them something for which
they
can charge admission? Under current law, the property right (created
by
my physical efforts and the creativity of how I designed the layout
and
its accessories) is eternal. (Sure, I'll pay taxes to repay society
for
the burden my property puts on the environment, for police
protection,
etc..... just as creative artists pay taxes).
[...]
But if I were to write a song or make a movie about my model layout
you
want yourself (or others) to have access to it for free, at least
after
some short period of time? I'd sue someone who breaks in or tries to enter without paying, and the fact that the person is a "fan" of my railroad layout doesn't matter.
Declan,
What's disturbing to me is that a professor of law affiliated with a
respectable legal program conflates a property right with copyright.
While it is perhaps forgiveable for a layman (such as myself) to
proffer
such an ignorant analogy I'm interested in hearing the excuse Prof.
Maule makes for dealing so sloppily with his legal metaphors.
Rick
--
http//www.rickbradley.com MUPRN 856
| want the contract to
random email haiku | include. Some of the work would
| now be done offsite.
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule () law villanova edu
http//vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
To declan () well com, maule () law villanova edu
Date Tue, 9 Sep 2003 144743 -0400
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Message-ID <20030910.022851.-113720487.0.terry.s () juno com>
On Tue, 09 Sep 2003 120234 -0400 Declan McCullagh <declan () well com>
writes
Previous Politech message "Reply to Hugh Prestwood and RIAA suing individual P2P users" http//www.politechbot.com/p-05050.html
Date Tue, 09 Sep 2003 113631 -0400 From "James Maule" <maule () law villanova edu>
I don't get the gist of Jason's complaint. Actually, I do.... and it is troubling.
Let me add to those troubles.
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
Simple answer.... Constitutional law makes an arbitrary construct wherein IP is different than physical property. Troubling answer.... Our Constitution contains certain paradoxes, were it taken more seriously. Law seminary teaches some faith based delusions for pretending the entire legal system is something more solidly rooted than a self-contradictory house of cards waiting for the right (or wrong) puff of air. Human supremacy in our legal system has a basis in theocracy rooted Common Law, which is inherently at odds with religious equality so long as a single citizen of different beliefs exists (eg, those Indians formerly not taxed, and formerly counted as something other than humans too, whose beliefs consider humans stewards of the land and not supreme over nature, whether the ecosystem or other species of animals). Under that belief system, private property "ownership of the Earth" is impossible, and its treatment in European theocracy rooted law a fraud and paradox, waiting to be collapsed (consider real, chattel, and personal property from that viewpoint). (Stipulated, there's also a neutral legal issue of communications with other species whereby it's functionally impossible to have a legal system that treats all species equitably, in balance with discriminatory roots in xtian biblical dogma calling for tearing down institutionalized legal bigotry that didn't conflict in 1066 c.e. Europe.) Defining IP law to protect ideas for a limited duration is no more or less arbitrary than other Constitutional constructs that recognize different forms of private property "real", "personal", "corporate creature", etc.), or which have distinguished blacks as 3/5th persons for apportionment and taxation, or Indians as non-humans.
Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal.
That example obfuscates the key issue of IP versus physical goods, assuming the status quo of the legal religion of property law as it exists today. It's the building and display that can be passed down, not an exclusive claim to the notion of a scale model simulation of a railroad that fits in a building. The notion of model railroad patentable technical designs, or the artistic layout of that track and artwork application of technologies, are subject to the same IP law issues as a movie or music CD. The only real difference is that model train layouts are rarely copied, as individuals generally are more interested in expressing individual creativity or adapt layouts to different spaces which invite differences in application of the same technologies from one creation to another. If it were possible to build an HO train layout with 2500 feet of track, 57 switches, and 20 hot sections, with full landscaping, and do so in under an hour with negligible difference from how someone else constructed a layout of the same general technical content, would we see IP litigation over model trains as we do now over music? Conversely, what of music which has great similarities, but where one artist did not intentionally copy or sample work of another? That becomes a controversial area of law, because artists rarely have an end goal of copying one another in expressing original ideas, and cannot be expected to live their lives in isolation from radio and musical works of others for the duration of their creative lives, as engineers do for the scope of projects with specific intent to create functional equivalent uPC's or software without reverse engineering or directly copying the IP content of competitors (over technology "lifetimes" of a few years, versus entire natural lives for musical influences). In either case, it's fully legal under present arbitrary fictions of law to attempt "the same" end result of emotively influential melodies, or model trains running around tracks, or an AMD uPC that runs the same code as an Intel model, so long as there are subtle distinctions in what aspects are not copied directly, even if other aspects use the same materials in similar manner (though purchased separately, not using goods stolen from the predecessor). Where such distinctions in law more based on some absolute rational distinctions, and not subtle creations of law, there might well be less litigation or ambiguity over the very legalities of such issues. In any event, if I were given the same materials my father used to make a model train setup when I was a kid, and I tried to recreate as closely as possible what he built, my style would result in a significantly different model train layout than what he made in the 1960's, no mater how closely I tried to build a direct replica. Neither would be as eternal as a theoretical legal ownership of the pieces, as copper would corrode, plaster of paris would decay with humidity, and colored plastics and scenery would oxidize and fade. Oils would turn to varnishy gunk if not used and serviced, while parts would wear if used and serviced. Ultimately some parts would become junk, while others would survive as antiques. With ideas, most do turn to junk, as technology becomes obselete, while only a key few survive the ages. As Ovid remarked long ago, his (dissident political) poetry would survive, as the expensive stone monuments of the politicians he criticised turned to waste (under more acid rain than he ever anticipated). It may be the very nature of IP law to have limited duration which helps some ideas last longer than most physical "property". How about a more pragmatic challenge? Canada protects IP rights of pharmaceuticals for 10 years, the USA for 25 (in addition to other aspects of price regulation and voluntary marketing by drug vendors). The Internet allows me to help my elderly parents save about $4,000 a year on their medical needs by comparison shopping the USA market as the cheapest source for some items, and importing others from Canada, Mexico, or New Zealand, and by shopping for the same items from OEM's in different markets with arbitrary differences in pricing, or generics not yet available under USA laws unless imported under wierd USA drug laws. The intent of USA Constitutional provisions for IP law aren't to create proprietary lifetime rights (of a natural person or Disney Corp "lifetime"), but to balance incentive for creation with a public gain from sharing ideas. Is there a single optimum "lifetime duration" for IP rights to maximize creation incentives while creating public benefit from ideas? Does IP law need to be made more complex, to classify "short lifetime" technologies separately from "long lifetime" artistic ideas in order to optimize that balance? How can such legal notions be defined rationally, in algebraic formulas which could be differentiated to find the optimum private and public benefit, recognizing both economic value and other human benefits less easily reduced to numbers? That is, after all, the underlying "legal theology" of present IP law, which distinguishes IP from other arbitrary legal categories of so-called "property". Trains or music are little different than the peculiar model wherein a recipient becomes the owner of the paper of a letter, while the sender retains ownership of the ideas expressed, subject to implied license or Fair Use limits on exclusivity of that ownership. Terry Reply-To <admin () consumer net> From mail () consumer net (admin) To <maule () law villanova edu> Cc <declan () well com> Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Date Tue, 9 Sep 2003 144947 -0400 What do you think of www.Archive.org? This is owned by Amazon and they reproduce many millions of web pages along with ads to the Alexa service. They don't have permission from the copyright owners in the vast majority of cases. Russ Smith http//consumer.net Date Tue, 9 Sep 2003 115058 -0700 (PDT) From Peter Boothe <peter () cs uoregon edu> To Declan McCullagh <declan () well com> Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 09 Sep 2003 113631 -0400 From "James Maule" <maule () law villanova edu> To <declan () well com> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission?
You certainly may, although unless you die in an upcoming 2 year window, every generational transfer will most likely be taxed.
But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time?
Yes. And the founding fathers agreed and so put in the Constitution that
copyright duration could only last for a limited time. The relevant
sentence in that section reads
The Congress shall have power
...
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;
(Constitution, Article I, Section 8)
Any system that didn't eventually give your song to everyone would be
unconstitutional. The niggling, of course, comes about in the phrase
"limited times". Much wrangling over whether copy-right is a so-called
"natural right" or a "given privilege" can be found at many places on the
internet, but it's pretty clear that the founding fathers didn't want it
lasting for too long as the initial setup was for copyrights to last for
only 14 years. Currently copyright lasts for the life of the author + 75
years - which many people do not see as a "limited time" at all, leading
to a disconnect between the law and what people believe to be right.
This disconnect has caused people to violate the law on a breathtaking
scale via actions that most seem to feel are not unethical. Which is a
bad thing for society as a whole, and the only two ways out seem to be to
change the law or change society.
Jason is advocating the first, the MPAA and RIAA are trying to bring about
the second, and it seems like you are saying that nothing is wrong with
the current setup at all.
-Peter
--
Trying to make bits uncopyable is like trying to make water not wet. The
sooner people accept this, and build business models that take this
into account, the sooner people will start making money again.
-- Bruce Schneier
Date Tue, 09 Sep 2003 115256 -0700
From Jules Agee <julesa () pcf com>
User-Agent Mozilla/5.0 (X11; U; Linux i686; en-US; rv1.1) Gecko/20020827
X-Accept-Language en-us, en
MIME-Version 1.0
To maule () law villanova edu
CC declan () well com
<x-flowed>
Jim,
I believe you're exaggerating the position of the person you're
responding to. He has some valid points. Too often I have bought a CD
from an artist who has a good hit single, only to find the rest of the
songs on the CD are junk. With current CD prices around $20, and
production costs under $1/unit, I think music fans have some valid
complaints.
The person you are responding to did in fact say that he does not
personally download songs illegally. Neither do I, for that matter. He
did state "I want to reward your talent and keep bread on your table
because I love your music." His objection is not to get free access
after "a short period" as you suggest. His specific objection was that
copyright should not extend beyond the lifetime of the artist.
At some point you have to acknowledge the value to society of having a
commons, a pool of ideas and culture that we can all access without
paying someone to find out who it belongs to and get all the royalties
and legal obstacles out of the way.
The creative person should be able to receive royalties for the duration
of their lifetime. Their descendants should inherit the real property of
the creative person, (hopefully some of the royalty payments were used
to pay life insurance and to buy real property), but they should not be
able to collect copyright royalties on their ancestors' work.
By your logic, we should all be paying yearly royalties to the composer
of "Happy Birthday" and Christmas carols, libraries should be shut down,
and automotive manufacturers should still be paying the descendants of
the inventor of the wheel.
Date Wed, 10 Sep 2003 002317 +0530
From Devdas Bhagat <devdas () dvb homelinux org>
To Declan McCullagh <declan () well com>
On 09/09/03 1202 -0400, Declan McCullagh wrote
Quoting Jim Maule
<snip>
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free? Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal. (Sure, I'll pay taxes to repay society for the burden my property puts on the environment, for police protection, etc..... just as creative artists pay taxes).
But you cannot stop anyone else from replicating the effort you put into your work and doing the same. On the other hand, copyright does restrain what another person can do. Copyright is a temporary monopoly granted by /society/ to people so that their work can later benefit all of society. The monopoly is the price paid by society to the thinker of a novel idea to encourage such thoughts as benefit society, but which will not benefit the thinker unless said thinker has a monopoly on the idea. Copyright works for anything which is hard to do the first time, but can be replicated indefinitely for very low costs.
But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time? I'd sue someone who breaks in or tries to
No. The free access is always there. There is no cost imposed on copying and replicating your idea. Society sets a value on your creativity by giving you a limited opportunity to turn that idea into hard cash. The real benefit to society lies in replicating those ideas, and if you wish to remove that benefit, then I see that no group of people has any responsibility to keep your ideas unreplicated. Think of it as a lead start granted to you in a race to replicate ideas because you were the first to think of it. Copyright is a *privilege* granted to thinkers by society for the long term benefit of its members.
enter without paying, and the fact that the person is a "fan" of my railroad layout doesn't matter. Muggers are "fans" of my wallet.... but they're not going to get the legal system to support their claim. Oh,
When a mugger takes your money, you are deprived of it. When your idea is duplicated, you are not deprived of the idea. <snip>
So should my grandchildren get to live off my model railroad creation? Yes, unless society through its legislatures, imposes a "take all"
I agree with this point.
estate or similar tax. It ought not be decided by outlaw renegade "do it yourself wealth redistribution entrepreneurs" (a fancy word for mugger, thief, embezzler, etc.). Sure, my grandchildren could be creative and make their own model railroad layout or whatever else suits them. And, just as well, these P2P activists can go and create their own music rather than stealing someone else's work.
Should society be deprived of the right to copy ideas, to understand them, to modify and expand on them? I wonder whether you could create modern society without that right. We are here because we stand on the shoulders of giants. Would you rather live in a world in which you did not have access to the ideas of these people? I know I would rather not. <snip>
So the underlying premise of the entire argument of the "we share other people's property' crowd makes no sense unless it is viewed as a "I want it, you have it, I'll find a way to take it." Hmmm.... sounds like several national leaders of the 30s in Europe and the Pacific Rim......
Or you could choose to see them as people who choose to withdraw privileges granted to a certain section of society because those privileges are being abused? If I were to put the reasoning behind copyright in a few lines "We can copy your idea now, but we choose not to, because the long term benefit we get from your newer ideas is likely to be greater than the short term benefit we gain by immediately replicating your idea. In return for our restraint, you will agree to make your idea freely replicable by anyone after a certain reasonably short period of time. During this time, we will not replicate your idea and will let you obtain what benefits you can by exchanging this idea for other ideas. To show commitment to this deal, we will enshrine it in the form of a law."
So, they're "not consumers anymore." So what are they? Can we dare utter the words?
Hmmm, if one party to a contract decides not to honour the contract, is the other party still bound by the terms of that contract? Devdas Bhagat Date Tue, 9 Sep 2003 145815 -0400 Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Content-Type text/plain; delsp=yes; charset=US-ASCII; format=flowed Mime-Version 1.0 (Apple Message framework v552) From Wes Rand <wrand () mac com> To declan () well com <x-flowed> On Tuesday, September 9, 2003, at 1202 PM, Declan McCullagh wrote
The idea that people come to visit and pay $10 because they want to expand on my work? Rubbish. They simply want to get in for free because they think they're "special" and don't need to abide by the rules that bind the rest of us. They're like folks who go straight from the left turn lane... and the fact more and more people act so idiotically is nothing more but proof that a few bad apples in the barrel, if permitted to remain, spoil the rest. So the underlying premise of the entire argument of the "we share other people's property' crowd makes no sense unless it is viewed as a "I want it, you have it, I'll find a way to take it." Hmmm.... sounds like several national leaders of the 30s in Europe and the Pacific Rim...... So, they're "not consumers anymore." So what are they? Can we dare utter the words? ----------------------------------------------------------------------- -- Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085
Declan- I have to say that I am shocked that a professor of law has such a fundamental misunderstanding of the concept of copyright (and its cousin, patent.) To equate a physical object -- property -- with a creative work reveals a disturbing ignorance on the subject. Jason wrote an interesting letter expounding upon the debate about copyright and how Hugh's ideas undercut the basic concept of copyright. Jim's (clumsy) response flies right by the points that Jason makes -- unusual for distributions on your list. Hopefully we can read a more cogent defense of Hugh to keep an interesting debate going. -Wes Rand Date Tue, 09 Sep 2003 150309 -0400 From "James Maule" <maule () law villanova edu> To <admin () consumer net> Cc <declan () well com> Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits If a page is copywritten, and it has been reproduced, without permission, there is a violation. Are there damages? In some instances, probably not. In others, surely. For example, if a newspaper is charging an access fee to get to its past issues, and archive.com is grabbing the pages on the day of publication and making them available for free, there's no question that archive.com is undercutting the newspaper's market. I can think of one defense and it rests on this if the owner of a web page replaces it, does the earlier version get treated as though the copyright in it were abandoned? Economics might dictate that the replacement of a web page, or book, with a later edition, sometimes makes the earlier edition worth so little that there'd be no damages anyway, or that because of its "first edition" value, its misappropriation would generate damages. The irony is that given what they're trying to do at www.archive.org is worthwhile in principle, why not ask permission? It is likely they'd get permission for most pages, especially those that are not commercial in nature.
mail () consumer net 9/9/03 24947 PM >>>
What do you think of www.Archive.org? This is owned by Amazon and they reproduce many millions of web pages along with ads to the Alexa service. They don't have permission from the copyright owners in the vast majority of cases. Russ Smith http//consumer.net Date Tue, 09 Sep 2003 150552 -0400 From Jonathan Peterson <jonathan () way nu> User-Agent Mozilla/5.0 (Windows; U; Windows NT 5.0; en-US; rv1.4) Gecko/20030624 X-Accept-Language en-us, en MIME-Version 1.0 To declan () well com Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits <x-flowed> Jesus Christ I'm tired of people who try to equate ideas with THINGS. James, you seem like a bright guy, see if this helps RIAA, MPAA and other big content companies and software patent supporters don't want to protect the revenue from your train museum, they want want a cut of the action for the very idea of a train and they want it for eternity. Big Content wants money everytime anyone builds a model train display, whether it's for personal use, commercial sale, or educational purposes in a museum. They want money from the manufacturers of the trains, the tracks, and probably the wood for the barn. They want money when someone paints a picture of their train display, writes a fictional book about riding the train or a documentary about it's construction. In fact is I were to build a big barn and charge people to look at a doll collection they want a piece of THAT, welcome to business model patents. Even if they tear down your train museum because it is no longer profitable, they want to haul my ass into jail for spending thousands of dollars of my own money rebuilding it from scratch because it was something I loved (check on the current state of classic film stock that is protected from restoration by the MPAA). Ideas are not things. Ideas surely have value, but the idea itself is not devalued when shared. Please tell me who loses money when Kindergarten teachers in Sweden sing a song with their class or when taxi drivers turn on the radio? The use of real-world metaphors for things that are not devalued when shared is a lie. Don't listen to RIAA's lies and don't fall under their spell. Jonathan Peterson e - jonathan () way nu p - 404-966-9493 w - http//www.way.nu w - http//www.corate.com/amateur From "Dave McClure" <dmcclure () usiia org> To <declan () well com> Subject RE Jim Maule's defense Date Tue, 9 Sep 2003 150804 -0400 MIME-Version 1.0 Content-Type text/plain; Declan, a response to Jim Maule. Personal opinion, of course. . . Gosh, Jim, what a lovely planet you must live on! Here on planet Earth, however, things work a little differently than you describe. Before you ever laid the first nail in your barn, or set one piece of track on your model railroad, you would be forced by contract -- the only contract that would enable anyone to ever hear of your work -- to sell all rights to your creation to the MegaBucks Corporation. MegaBucks would open it for a few weeks, and when sales fell off would stick it in a warehouse, never to be seen again. Your children and grandchildren would not benefit from your works, because you have already sold all the rights to keep your family fed years ago. Eventually, the railroad and building would rot away (much as so many of the world's films are rotting today in studio vaults). And your work would never be seen by anyone, ever, again. Hard to believe? Just ask artists like Janis Ian, who is barred from selling her own works from the Sixties. She signed a contract assuming that in a fixed number of years she would be able to again benefit from her creative efforts, as the contract specified. Surprise! MegaBucks Corp got Congress to extend the number of years. And extend. And extend. The contracts signed in good faith by artists aren't worth spit. The people who created limited copyrights were not the Fascists and Nazis of the 1930's (but kudos for a GREAT cheap shot, there, Jim!). They were the framers of the US Constitution. And what they understood was this If we allow a handful of corporations to lock up all aspects of culture, most of it will rot in vaults. There will be no great symphonies from the 20th century. No great literature. No great films. In its place will be a great void of ambivalence fostered by companies whose charter to increase the wealth of their shareholders over-rides any consideration of culture. Don't believe it? Try to buy the works of artists from the 1920's, other than the small handful who are slapped into "greatest hits" volumes. I won't side with the downloaders. Sure, they are breaking the law. But I believe that it is US law governed by the Constitution that must rule our legal response to copyright violations, not the "off with their heads" approach of the entertainment industry. And not the members of Congress who would sell our heritage to benefit a handful of corporations. Funny how we forget that the greatest liberties we enjoy were bought by "criminals" who "broke the law" with acts of civil disobedience. I believe that if old Sam Adams were alive today, he'd be downloading from KaZaA and burning his own CDs. Note to members of Congress Does it strike anyone that this seems perilously close to what happened with that Prohibition thing you tried to do? Gosh, do you think the 60 MILLION US DOWNLOADERS (and the friends and relatives of those being sued today) will have any impact on the elections next year? As for the hand-wringing emotional appeals of poor starving artists, widows and orphans from whom the downloaders are stealing the bread from their very mouths. . .well, it is specious nonsense. Anyone who has ever worked in the music industry knows that the money you get up front is likely the only money you will ever see, and that this battle is less over right and wrong than an entrenched entertainment bureaucracy petrified by new technologies and consumer trends. Before we go charging off to fight the good fight against those evil law-breakers, let's ask a couple of basic questions 1) Of the damages recovered by the RIAA, what percentage actually goes to the artists who are allegedly injured? Does the money even go the studios, or is it kept by the RIAA? 2) How many of the accused benefited in any way from their misdeeds? Did they make anything close to $150,000 per song, or did they just have a collection of songs they liked to listen to? 3) If their cause is just, why is the RIAA refusing to compensate ISPs for processing the subpoenas? 4) If this is aimed at scofflaws and not a twisted misuse of the law for competitive advantage, how many subpoenas have been served to the America Online division of AOL Time Warner, a major member of the RIAA? (last time I looked, the answer was "zip, zero, none.") 5) How is it possible that the war on terrorism, a major economic downturn, a lack of new and innovative creative works (do you think it is an accident they are having to drag geriatric rockers out of retirement to fill the venues?), the music industry's slap on the hand for price fixing, and its reliance on an obsolete distribution method. . .how is it possible that NONE OF THESE FACTORS contributed to the loss of CD sales? How come only file sharing is the cause? If King George thinks we will continue to allow these taxes on the tea we want. . .oops. Wrong injustice. If the music industry thinks we will continue to pay outrageous fees for a tiny vinyl disk filled with crap. . .well, hell. I think I'm just gonna dress up like an Indian and head down to the harbor. Regards, Dave McClure Date Tue, 9 Sep 2003 141242 -0500 From Rick Bradley <rick () rickbradley com> To James Maule <maule () law villanova edu> Cc declan () well com, politech () politechbot com Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits * James Maule (maule () law villanova edu) [030909 1347]
I understand that the inartful expression of the comparison (which I corrected in another post) can generate the impression I am arguing for eternal copyright by analogy to other parts of property law. I'm not. And in fact, technically, there are limits on the extent to which ownership and control of property can be extended into perpetuity. That, however, does not mean that a comparison between one part of property law (ownership of a self-built barn and model railroad layout) and another part of property law (ownership of copyright) is a "conflation". To both parts of property law belongs this maxim "If the property [copyright, barn, or model layout] is owned by a person, no other person has a right to take it or use it without consent, and if that consent is conditioned on payment of compensation, a taking or use without payment of that compensation constitutes civil and criminal theft, trespass, or illegal appropriation, depending on the circumstances."
The problem with the analogy before and the explanation here is that
copyright law is not property law, nor is it a subset nor a derivative.
As you are aware the long genealogy of these branches of law share
little common history, the establishment of the separate rights in this
country proceeds from disparate sources, as well the statutory and
caselaw evolution of these bodies of law are highly divergent.
Copyright is not property, but is established in our Constitution as a
limited monopoly over certain rights. The conflation of property with
copyright is a relatively recent (political) campaign to bestow the
protections commonly associated with property upon a set of rights of a
fundamentally different nature.
The limited monopolies established by the Constitution create certain
tradeoffs. As an attorney friend (and Politech subscriber, Howard
Merry, Esq.) once put it to me
"[It is an] unavoidable Constitutional fact that copyrights are
explicitly in some sort of balance with a concomitant reduction in
freedom of speech. Regardless of what the Court thinks about that
balance at the current time. . ."
I'm at a loss to reconcile the behavior of the institution of copyright
with the rights afforded to private property.
The difference in term of the right (limited term for copyright, much longer, perhaps perpetual term, for real property) does not translate into a notion that because the copyright term will end we might as well ignore the copyright now. There's just no getting around the lack of a legal difference between stealing a CD from a store and stealing it from a source closer to its creation. Except, of course, it's a tad more difficult to shoplift than it is to set up a P2P network that feeds off the efforts of others.
I take no umbrance with discussions of copyright terms, nor the exercise
of defensible copyrights under legislated terms. If a creator holds a
right in a work then that right adheres until the time of its
expiration.
However, we deal in no fine distinction when we discuss the theft of a
fixed expression of a work (such as a CD within the confines of a shop),
versus the infringement of copyrights held by the creator of a work.
There is a very simple way around the purported lack of legal
distinction between property theft and infringement of copyright
recognition that the legal distinction not only exists but is as
fundamental as the difference between recourse for a gunshot wound and
the cause of action for violating the terms of a contract. While a
popular analogy can confuse the layman, the law is clear on how these
matters are miles apart.
Rick
--
http//www.rickbradley.com MUPRN 633
| to charge them fees for
random email haiku | access to songs, movies and
| other media.
)
To maule () law villanova edu
Cc declan () well com, "bcleland" <bcleland () ipi org>,
"policyguy1" <mmatthews () ipi org>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
MIME-Version 1.0
X-Mailer Lotus Notes Release 5.0.11 July 24, 2002
From "Thomas A Giovanetti" <tomg () ipi org>
Message-ID <OFF74A1332.B628DE62-ON86256D9C.0069410B-86256D9C.0069C41E@org>
Date Tue, 9 Sep 2003 141514 -0500
I was delighted to see your posting.
I thought I was the only one who believed in a perpetual right to intellectual property. I have dared not voice it
until now.
We do a lot of work at IPI on intellectual property, but I have never dared argue a perpetual right to IP. But I have
always believed that there is absolutely no difference between "real" and "intellectual" property.
I agree that Jim Henson's descendents should control and own the rights to his creations, in perpetuity, unless they
sell those rights to someone else, who THEN should control them in perpetuity.
all the arguments about the benefits to society of something moving into the public domain are unsupportable. In fact,
it is generally recognized that the minute something moves into the public domain, it disappears, because there is no
longer any incentive for anyone to do anything further with it.
Thank you for voicing this opinion, and I'd invite you to further discussions about advancing this argument.
_____<br>
Tom Giovanetti<br>
President<br>
Institute for Policy Innovation (IPI)<br>
http//www.ipi.org<br>
tomg () ipi org<br>
<br>
*Note new address<br>
1660 S. Stemmons Freeway<br>
Suite 475<br>
Lewisville, TX 75067<br>
<br>
From "Matt Del Vecchio" <mdelvecchio () visi com>
To "'James Maule'" <maule () law villanova edu>, <declan () well com>
Subject RE FC Jim Maule's defense of Hugh Prestwood and RIAAlawsuits
Date Tue, 9 Sep 2003 142037 -0500
Message-ID <001801c37707$742c69d0$f600a8c0@battlewagon>
MIME-Version 1.0
i was referring to "So should my grandchildren get to live off my model
railroad creation?" revenue bit.. it seemed to be designed to provoke a
'yes' in order to equate that w/ a 'yes' on whether Hugh's grandkids
should inherit his IP revenue.
matt
Reply-To <admin () consumer net>
From mail () consumer net (admin)
To "'James Maule'" <maule () law villanova edu>
Cc <declan () well com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 152204 -0400
I thin everyone accepts archive.org as being worthwhile. They don't ask
permission because it would be too costly to get the permission and to cull
out all the ones where permission wasn't granted. They would never be able
to continue operating if they did that.
The main concern is liability. Lawyers use Archive.org to make cases
against people for a variety of reason such as intellectual property issues,
defamation, etc.
As for your other argument, are you saying that if users download music that
is not profitable then that is a defense? Maybe works that are no longer
available or works that people just aren't buying? How about new movies
that are destined to lose money based on their box office receipts? What if
a music downloader said "I wouldn't buy this, I would only accept it if it
was downloaded free?"
Date Tue, 09 Sep 2003 152222 -0400
From "James Maule" <maule () law villanova edu>
To <tomg () ipi org>
Cc <bcleland () ipi org>, <mmatthews () ipi org>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
My several posts in response to others' reactions haven't yet
circulated. I may be doing something wrong, Declan.. (I know Declan is
getting them as he's CC'd on my replies).
In one of those posts I clarified that I'm not advocating perpetual
rights, and noted that even as to real property there are some
limitations on a person's ability or right to control it into
perpetuity.
But I don't agree that copyright should end at the death of the
creator, because of the hypo involving the artist who dies months after
his work becomes a hit. That is, in fact, one reason for the original
"lifetime plus" approach.
If a corporation creates something (through employees who agree that
they labor on behalf of the corporation), then a lifetime ownership
could be eternal.
It may be that corporations ought not exist, or ought not be treated as
having eternal lifetimes, but that's a different question.
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule () law villanova edu
http//vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule () law villanova edu
http//vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
Date Tue, 09 Sep 2003 152723 -0400
From "James Maule" <maule () law villanova edu>
To <mdelvecchio () visi com>, <declan () well com>
Subject RE FC Jim Maule's defense of Hugh Prestwood and RIAAlawsuits
I don't have grandchildren (yet) but when and if they arrive they'll
have a presence in my mind far different than my great great great great
grandchildren (if they ever exist). The latter will need to fend for
themselves. The former are natural objects of my bounty and giving them
some financial protection isn't quite the same as creating a perpetual
copyright. Grandchildren were mentioned in the post to which I
originally responded so I stayed with that generation.
"Matt Del Vecchio" <mdelvecchio () visi com> 9/9/03 32037 PM >>>
i was referring to "So should my grandchildren get to live off my
model
railroad creation?" revenue bit.. it seemed to be designed to provoke
a
'yes' in order to equate that w/ a 'yes' on whether Hugh's grandkids
should inherit his IP revenue.
matt
Professor of Law, Villanova University School of Law<br>
Villanova PA 19085<br>
maule () law villanova edu <br>
http//vls.law.vill.edu/prof/maule <br>
President, TaxJEM Inc (computer assisted tax law instruction)<br>
(www.taxjem.com)<br>
Publisher, JEMBook Publishing Co. (www.jembook.com)<br>
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)<br>
Maule Family Archivist & Genealogist (www.maulefamily.com)<br>
From "Kowieski, Jeff" <JKowieski () wipfli com>
To <declan () well com>, <politech () politechbot com>
X-OriginalArrivalTime 09 Sep 2003 193607.0318 (UTC)
Jim- I see you on the ABA lists every now and again. Just wanted to
tell you I thought this was concise and right on point. When put in the
context you did, it should be the end of the discussion, it's jus that a
model railway is more tangible than a bunch of 1 and 0s, I guess.
Anyway, well spoken.
Regards,
jeff
- _______________________________________
Jeffrey W. Kowieski, CPA, JD
Senior Manager
Wipfli Ullrich Bertelson, LLP
Office 715.858.6682 // Fax 715.832.0475
www.wipfli.com
A Member of Moores Rowland International (MRI)
Date Tue, 09 Sep 2003 154243 -0400
From "James Maule" <maule () law villanova edu>
To <rick () rickbradley com>
Cc <politech () politechbot com>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
One quick point. Copyright originally was granted by the King (the
Crown). So, too, real property's origins are in feudal tenures granted
by the King and thence down through subtenants and vassals. The fact
that real property law had evolved somewhat when the first copyright
statutes were enacted doesn't detract from both real property law and
copyright law having origins in the principle that all ownership rights
originated with the Crown.
After all, every aspect of the law ultimately rests on rights, duties,
and privileges of one kind or another. Areas of law might not be
identical twins, but their relationship is close enough to make
analogies between one and another useful regardless of how the area is
subcategorized.
From "Ryan Porter" <rlucianporter () hotmail com>
To <declan () well com>
References <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 154818 -0400
MIME-Version 1.0
In seems that in haste to toss their respective two-cents in, Hugh, Jason,
and Jim are each making gross exaggerations.
Hugh claims he "labored for years to create those songs", but fails to
mention that hundreds before him labored for far longer to create the works
of which his songs are derivatives. (Or does Hugh think his work is
completely original?) Apparently, he thinks he can extract styles and
sounds and arrangements from previous songwriters and generations, change
them around a little bit, write new lyrics, etc., and make them miraculously
"his". (I am not trying to insult Hugh; a song is more than the sum of the
lyrics, musical structure, arrangement, production, etc. One can fairly
ask, however, if he has ever written even one single song the music of which
did not heavily resemble another?) The world at large is at least partly
responsible for "your" songs. Yes, Hugh, the trading of your songs of P2P
networks is wrong. Yes, it is theft. Yes, you should be upset. You should
not, however, pretend to be living in a cultural vacuum. You did not create
your songs from nothing, and you have no right to give nothing back. These
last two points are really secondary, though, and concerning length of
copyright protection. The central point that file-sharing copyrighted
material is theft ( both illegal and wrong ), and that it financially
affects both you and your colleagues, is all that needed to be said.
Instead you chose to give your detractors a logical hole through which a
truck can be driven. Oh, and sensationalism doesn't help your cause,
either, i.e., "A society that doesn't value a commodity enough to pay for it
will soon see the creation and production of that commodity cease." Do you
honestly think music in general is in danger?
Jason's arguments are also hit-and-miss. I agree that copyrights should not
extend in perpetuity. He loses me, however, when he writes "Your right used
to be able to trump technology. That is no longer the case." Is that to be
read "because we have the technology to undermine your rights, you rights
are essentially nullified"? Both Jason and Hugh contend there has been a
"lumping together [of] many professions", but disagree who has done this. I
think most people separate the artists from the corporations. The feeling
is along the lines of one of these two if the artist/band is a big name,
with multi-platinum records "they won't be missing my $10"; and if the
artist is not "oh, the artist probably isn't getting any of the money
anyway...it's the record company's greed that has that artist starving, not
mine." Nevermind the absurdity of the views or the fact that the action is
still theft, I'm simply pointing out a more realistic viewpoint of the
file-sharer. No one believes it's all "one big ugly corporate caricature".
I strongly feel, however, that statements such as Hugh's tend to create a
"lumping together". Maybe artists should, as Jason suggests, "focus [some
of their] ire upon the organization that claims to represent [them] to the
public", for at least allowing the impression, whether true or not, that
artists are abused by the industry. Artists standing hand-in-hand with the
big 5 will not help your cause, Hugh. That seems beyond obvious.
My only response to Jim is with regard to this statement
So the underlying premise of the entire argument of the "we share
other people's property' crowd makes no sense unless it is viewed as a "I
want it, you have it, I'll find a way to take it."
And the underlying premise of Jim's argument makes no sense unless viewed as
one of the two
1)"we don't like and have no need for 'public domain' ";
2)"we like to pretend things in the public domain just magically appear
there without any single item ever having been added."
If we could stop all the sensationalism, the point would be simple, clear,
and concise. Theft is occurring, and the affected persons are (rightfully)
upset and doing something about it. The question of how long copyrights
should endure is, of course, related (but only weakly) and manages, in this
context, only to make the speaker sound greedy, regardless of which side the
argument comes from.
Ryan Porter
------------------
Research Analyst for the astrophysical spectral simulation code Cloudy.
www.nublado.org
Date Tue, 9 Sep 2003 160450 -0400 (EDT)
From "Matthew G. Saroff" <msaroff () fellspt charm net>
Reply-To "Matthew G. Saroff" <msaroff () pobox com>
To Declan McCullagh <declan () well com>
cc politech () politechbot com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
On Tue, 9 Sep 2003, Declan McCullagh wrote
From "James Maule" <maule () law villanova edu> I don't get the gist of Jason's complaint. Actually, I do.... and it is troubling. So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free? Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal. (Sure, I'll pay taxes to repay society for the burden my property puts on the environment, for police protection, etc..... just as creative artists pay taxes).
The answer here is fairly simple because when someone occupies a
space in your barn, or takes your car, they deprive you of the use of that
space or that car.
Intellectual product (I believe that using the generally used term
for IP is ceding half the argument) is different.
Samuel Clemens descendents are just as capable of reading or
creating derivatives of "Tom Sawyer" as they always were. Even if I copy
the entire book and put it on the web.
IP is a temporary monopoly granted for the purpose of encouraging
the creative arts and sciences (IIRC that's the line from the
constitution).
It's no more property than the grant of a royal monopoly to the
East India Tea Company in the 1500s, or the granting of a liquor license
today.
--
Matthew Saroff
At some point in the future, the total number of lawsuits being prosecuted
by the Church of Scientology will exceed the population of the world
Extrapolating on current trends, this will occur on April 1, 2005.
Date Tue, 9 Sep 2003 150546 -0500
From Rick Bradley <rick () rickbradley com>
To James Maule <maule () law villanova edu>
Cc politech () politechbot com, declan () well com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
* James Maule (maule () law villanova edu) [030909 1443]
One quick point. Copyright originally was granted by the King (the Crown). So, too, real property's origins are in feudal tenures granted by the King and thence down through subtenants and vassals. The fact that real property law had evolved somewhat when the first copyright statutes were enacted doesn't detract from both real property law and copyright law having origins in the principle that all ownership rights originated with the Crown.
To pick nits, copyright originally was granted by the Queen [0], but yes it originated with the Crown. As of the end of the 18th century all American legal rights originated with the Constitution, where property rights were established as independent from copyrights and other limited monopolies designed to enrich the public domain and promote the progress of Science and the Useful Arts. Though these rights stem from the common origin of the Constitution (as do rights to bear arms, rights to due process, etc.) these rights were separately established and have remained distinct to this date.
After all, every aspect of the law ultimately rests on rights, duties, and privileges of one kind or another. Areas of law might not be identical twins, but their relationship is close enough to make analogies between one and another useful regardless of how the area is subcategorized.
Useful, or harmful.
[0] In 1710 via the Statute of Anne http//www.copyrighthistory.com/anne.html
Rick
--
http//www.rickbradley.com MUPRN 677
| that much attention
random email haiku | to all those screams while I am
| stompin Southern Flags.
Date Tue, 09 Sep 2003 162849 -0400
From "James Maule" <maule () law villanova edu>
To <rick () rickbradley com>
Cc <politech () politechbot com>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
You're right.. it's a Queen. Mary I, that is, who in 1557 gave control
of all printing and book distribution to the Stationer's Company. The
1709 Act, effective 1710, is the first "modern" copyright statute (I
guess it is "modern" because it is more like what exists now than the
monopolistic arrangement of the 16th century).
Date Tue, 09 Sep 2003 140040 -0700
From Jules Agee <julesa () pcf com>
User-Agent Mozilla/5.0 (X11; U; Linux i686; en-US; rv1.1) Gecko/20020827
X-Accept-Language en-us, en
MIME-Version 1.0
To James Maule <maule () law villanova edu>
CC declan () well com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Comments interspersed below
James Maule wrote
Jules, Declan has not yet posted my clarifications... I don't seek perpetual copyright. And I tried to write in a way that acknowledged Jason as an advocate/defender/counsel rather than a perpetrator of P2P. Jason's post, though, didn't make the proposition that copyright terms should be more limited. He defended P2P practices that are not limited to songs written by dead artists. The P2P folks don't make distinctions based on whether the artist is alive (and in terms of what circulates, most artists are in fact alive).
Agreed, and I don't want to suggest that indiscriminate file sharing is in any way justified. But I understand the motive behind the consumer backlash, and I think the average P2P perp is less like a mugger and more like a small-time shoplifter. We could probably get rid of most of this shoplifting problem if the stores would start selling the shoplifted candy bars one by one instead of by the box. And I think the real impact of the problem thus far has been exaggerated. There is no hard data one way or the other, but I bet a lot of these people buy the CD after downloading a few of the songs on it. After all, most home/car stereos don't play MP3 yet. On the other hand, I don't really object to the RIAA lawsuits either. It's within their rights. They won't stop the real pirates, the people who make money by printing bogus CDs, and people who know how to protect their identities online. But they will be able to effectively prevent regular joe music lovers from sharing files. Fine, sic the lawyers on your customers, what do I care. Like I said, I understand the backlash.
Even so, suppose two artists, age 23, write and produce and sing top 40 hits. A month later, one of the artists dies. His kids starve and the other artists' kids don't? That's why there's a post-death extension. Sure, it could be refined (and made more complicated) to tie it to whether the artist had dependents, etc., at the time of death, but I doubt the P2P folks would respect that.
That's what life insurance is for. Why should artist's kids be any different from welders or truck drivers or grocers or computer technicians? Nobody else gets paychecks after they're gone. But my only real objection in that arena is to 80+ year copyright terms, which Congress seems to extend every time Mickey Mouse's first cartoon approaches the public domain limit. I think most people don't appreciate how much ideas in the public domain impact our culture, our technology, and innovation in every area of our society.
As for the $20 CD... I belong to CD clubs that sell for less than that. Sure, we often get junk packaged in with the gold. Newspapers have been that way for years... I want the news, the sports, the comics, the business pages, and a few other things .. On Sunday I get swamped with mountains of ads for women's clothing, etc etc. The CD marketing approach is stupid, and the marketplace would sort it out, but for the existence of the P2P black market. Jim
I think the P2P black market IS the marketplace sorting things out.
Unfortunately, the marketplace doesn't have an innate respect for law.
Hopefully the recording industry will finally get in gear and
aggressively market a reasonable, fairly priced alternative before
someone popularizes a P2P system which uses encryption technology to
hide the identity of the file sharers. Such a system is actually
available today, but few know about it... so far, anyway.
Take care, Jim.
-Jules
Date Tue, 09 Sep 2003 140752 -0700
To declan () well com
From Mike Masnick <mike () techdirt com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
<x-flowed>
Well, now we know why Prof. Maule is a law professor and not an
economics or business professor.
I'm actually getting sick of lawyers (who should know better) equating file
sharing with theft. It's (in some cases) copyright infringement, but it's
not theft.
Anyway, as a first pass, you could argue that Prof. Maule is talking about
a service. He's not profiting off of the barn and model train he built -
but the service of letting people view it. I didn't realize that in buying
music we were buying a service. We've always been told it was a good ("the
song") and not a service ("listening to the song"), and a good doesn't
include the same perpetual rights that Prof. Maule describes. Once I sell
it, it's out of my hands, and it's up to whoever bought it to figure out
what to do next with it. The standard right of first sale stuff.
So, maybe it is the "service" that musicians are selling. Let's assume
that's the case and move forward from there. It's still up to the musicians
to figure out the best way to perpetually market that service if they want
to continually make money off of it. The market is telling the music
industry they want the service delivered online in a convenient package,
and the music industry is ignoring them. Thus, it's no surprise that
people have cut back their spending.
No one is telling anyone they need to give up the *means* by which they
offer their services. In Prof. Maule's case, it's the barn and toy trains
that are the means of offering the service. In the case of musicians it's
their ability to make music - not the music itself. The ability to make
music is something they own. The music itself, like the tour of the barn,
is a fleeting service. Just like Prof. Maule built his barn and trainset,
a musician builds his skills and musical knowledge. Then, they have to go
out and figure out a way to make money off of it. However, if the markets
change, then the way they once made money may no longer work in the
future. They still own their own ability to make music, but that doesn't
mean they're granted a perpetual right to force people to use the old service.
Anyway, let's look at Prof. Maule's barn & train example. What if I go
ahead and build my own barnlike structure, with my own hands with a model
train display inside and then decide to invite the public in to visit for
$5 per person? Better yet, what if I decided that since people want so
badly to see those trains I can do something even better... I let people
into my barn for free to see the trains, and then sell them their own model
train kits, posters, books about model trains and other tangible
items. Or, I could also sell my own services (for future work) in building
barn-like structures and model train displays.
According to Prof. Maule, I'm now a thief because he believes that anyone
who builds something has an eternal right to profit off of it - and I've
now removed the ability for him to profit off his labors from years
ago. I don't think I'm a thief, in this case. I think I'm a good
business man who recognizes what the market is doing and how to offer a
better service and make money in a different way. Prof. Maule will quickly
discover that his "right" to eternal profit dwindles when all of his
customers start coming to my barn instead.
I've found a way to take something that historically people have paid for,
utilize the economics of "free" to act as a promotional tool, and figured
out a way to beat the competition.
If only certain industries would learn to do the same...
Mike
http//www.techdirt.com/
Date Tue, 9 Sep 2003 141325 -0700 (PDT)
From "Matthew M. Boedicker" <mboedick () mboedick org>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
To declan () well com
Why is it that every argument against reasonable copyright lengths amounts to
contrived analogies to the physical world? Despite the RIAA media campaign to
equate copyright violation with theft in the minds of the American public,
it's simply not the same thing. Physical property and intellectual property
are indeed completely different animals and we need to think about them
differently (yes this means more effort).
This makes it entirely possible that collective physical property is a bad
idea and collective intellectual property is a good idea. In fact collective
intellectual property has always been the norm. Art doesn't happen in a
vacuum, it is always a continuation of what has come before.
And how lawyer-like to drag some of the most egregious wrongs in history
(slavery and totalitarianism) into the debate.
X-Mailer Novell GroupWise Internet Agent 6.5.1
Date Tue, 09 Sep 2003 171520 -0400
From "James Maule" <maule () law villanova edu>
To <jack () rigley org>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
Mime-Version 1.0
Even though I've seen the post come through in which I clarified my
point that I was NOT advocating unlimited terms, somehow the impression
that I was (arising, understandably, from a not quite well drafted
sentence which I corrected) continues to have a life of its own.
Nonetheless, I never read Jason's post to be, "After the term of
protection ends it ought to be ok to share the works on a P2P network."
That's not an issue. Nor was that the point of Jason's post and the one
to which he replied. Nor is it a matter solely of whether the existing
term is too long. Quite simply, even if the term were for some very
short period shorter than it ever has been historically, the P2P crowd
would still be undermining the protection of the copyright provisions.
And yes, hyperbole works; it gets people's attention, and sometimes it
makes it easier for those who can't understand nuances to grasp the
bigger picture. Even so, the hyperbole really isn't all that
hyperbolic.
At lease SOME P2P folks admit, "I don't want to pay for this and so
I'll take it for free." Justifications range from "everyone does it" to
"the capitalist system is at fault." But the notion of "I don't want to
pay for this and so I'll take it for free (and I'm not waiting for the
copyright term to end)" really ISN'T different from the person who
looks at someone else's property and says, "I don't want to pay for this
and so I'll take it for free." True, muggers and nations seeking
"breathing room" use physical violence, trespassers usually don't, and
copyright violators don't... so what? Taking an uninvited and
impermissible free ride on someone else's back isn't all that different,
morally (or legally) from benefitting from the efforts of people dragged
into slavery. Slavery is far worse, because it also involved total
deprivation of human rights, but cause and motivation rested on the same
economic immorality as do all the other practices I crtiticize, for all
involve riding free, uninvited, on someone else's efforts.
From Alex Russell <alex () netWindows org>
Organization netWindows.org
To maule () law villanova edu
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 162350 -0500
Note I'm a nobody. Just some guy who writes software for fun and profit. I'm
not a lawyer, not an artist, and not a music type, so please take this with
whatever salt serving size you feel appropriate.
I don't get the gist of Jason's complaint. Actually, I do.... and it is troubling.
Although no less unsettling to my mind than your miss-characterization of the basic trade-offs we make in this country in order to promote continued creativity for both common and individual benefit.
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
You are under no obligation to do so. The barn is squarely your *physical* property, as is what it contains. You have the ability to cordon off access to your one-and-only barn at any time you feel is right, and no one can say "boo" to you. Property rights make the democracy go 'round. What you can't do, however, is remove the memories of everyone that walked through your barn. In this way, you creation is unguard-able as soon as you open it up in order to derive economic benefit from it. That's how IP works, after all. You can't own some chunk of someone else's brain.
Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal. (Sure, I'll pay taxes to repay society for the burden my property puts on the environment, for police protection, etc..... just as creative artists pay taxes). But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time?
"short" is your qualification of a societally agreed upon time frame. You can call it whatever you like, but it won't make it less fair. You can, however, lobby to have it changed if you dissagree with its current value.
I'd sue someone who breaks in or tries to enter without paying, and the fact that the person is a "fan" of my railroad layout doesn't matter. Muggers are "fans" of my wallet.... but they're not going to get the legal system to support their claim. Oh, wait, we live in a society where muggers are coddled because no one "understands" them. *I* understand them... they're too lazy to go to school, learn how to do something productive, and then labor in a job. Much like plantation owners who couldn't pick their own cotton. So should my grandchildren get to live off my model railroad creation? Yes, unless society through its legislatures, imposes a "take all" estate or similar tax.
This is again a societal norm. Americans tend to like some churn in their elite, so we do this kind of thing. It's part of living here.
It ought not be decided by outlaw renegade "do it yourself wealth redistribution entrepreneurs" (a fancy word for mugger, thief, embezzler, etc.). Sure, my grandchildren could be creative and make their own model railroad layout or whatever else suits them. And, just as well, these P2P activists can go and create their own music rather than stealing someone else's work.
Fair enough, but both sets of individuals will need enough incentive to create in the first place. The current balance seems out of whack to a lot of people when it comes to producing incentive on both sides.
The idea that people come to visit and pay $10 because they want to expand on my work? Rubbish. They simply want to get in for free because they think they're "special" and don't need to abide by the rules that bind the rest of us.
But some portion of the people that walk through the door _will_ be inspired by your work (if it's any good), and will do something different but related. Perhaps building on it, perhaps mocking it, perhaps commenting on it's nature. So whose inspiration is that? and are you suggesting that everyone who has inspiration from your work pay you $10 in perpetuity in order for the premise of their creativity to be accessible enough to make sense to the receiver? Also, are you saying that your grandkids should be saddled with the responsibility for keeping your idea alive for however long someone else finds it valuable? Who would wish that on their kids? What you propose is the forced removal of shared experience through simple economics. The owning of history. There's also a fundamental difference between a barn and a song you can walk through my barn and never take any part of it with you, but you cant hear my idea or song and not at least have the capacity to "steal" it. Copyright, patent, and trademark are therefore government endorsed "protection" of your creation from what you consider to be abuse in a situation in which you would otherwise have no recourse but not to create or share with others in the first place. I.e., you can't guard a song with a shotgun, so you'll have to accept the terms of protection that society decides to extend to you. The debate then is about the terms of the protection we collectively extend and what we expect in return. We make trade-offs here between what is good for the individual and what is good for society. A good compromise will please neither side as much as they would like. The framers explicitly made the "for limited times" clause both necessary for the grant of rights but also a term defined by Congress in order to allow this debate to happen. It is up to us as a society to strike a balance that provides the most benefit to everyone, not just the original content producer. Want to give something to your kids? Turn your limited monopoly on your creation into a gold mine while you're still alive and then give 'em a bundle of cash. That's the upside for the producer in this bargain no one else can take a cut that the producer doesn't explicitly allow while the producer's rights are still in force. You get a limited *monopoly* in order to allow you to make your own way in this world. The term of this monopoly is constrained so that there is continued incentive for you (and your children and grandkids) to continue to produce (which again, benefits society as well as you). I'm sure this will devolve into an argument about how you can give someone rentable property, which will be neither apropops nor analagous, so let's not go there. What you seem to be arguing for isn't property rights, but perpetual thought tax. The ability to introduce economic drag onto every creative thought that may be even secondarily related to your original work, seemingly forever. The framers rejected this model explicitly by creating the public domain. The public domain is not theft, it is our collective payment for giving you the right to profit from your otherwise unguard-able creation for some amount of time.
So the underlying premise of the entire argument of the "we share other people's property' crowd makes no sense unless it is viewed as a "I want it, you have it, I'll find a way to take it." Hmmm.... sounds like several national leaders of the 30s in Europe and the Pacific Rim......
Remember, if reason fails and you can't attack your opponent's actual point, accuse your opposition of being aligned with a set of repressive and monstrous regimes that viciously destroyed lives without a second thought! Hmmm....sounds like a sitting administration in the worlds only superpower...
So, they're "not consumers anymore." So what are they? Can we dare utter the words?
Sure! "Citizens who expect the long-term benefit of the exclusive deal they've been giving to content producers to be paid up in full." Regards. -- Alex Russell alex () burstlib net BD10 7AFC 87F6 63F9 1691 83FA 9884 3A15 AFC9 61B7 alex () netWindows org F687 1964 1EF6 453E 9BD0 5148 A15D 1D43 AB92 9A46 Date Tue, 09 Sep 2003 142902 -0700 Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits From "E. Miller" <subscriptionbox () squishymedia com> To James Maule <maule () law villanova edu>, <declan () well com> I think we could agree, then, that the law is the embodiment of how society wishes to regulate itself. Right? That the law itself is a collective good, owned by no one but acting as social capital for everyone. It seems that the sticky area is the lag time between changing societal mores and the formation of consensus about how those mores should be reflected in law. In the specific case of ownership of cultural production, there seem to be three problems where existing law isn't coping well. First, the fact that we live in such an information- and content-rich society that everything is effectively derivative from prior art. We're living in remix culture, with its habit of placing copyrighted works in the blender and hitting "puree", putting us in an ambiguous area when it comes to assigning ownership of what is in effect only semi-new content. This isn't new; it's just extending the concept of what is public and what is private to reflect usage. Shakespeare would have been in a world of hurt if English was patented and licensed...but it wasn't, and he created something beautiful out of a pre-existing shared community cultural good. All we're seeing now is a shifting definition of what is shared and what is owned. Secondly, technology has radically changed the way content is created, distributed and consumed...and the 19th century tradition of copyright stemming from pirated Dickens novels hasn't provided enough of a conceptual framework for, say, handling Negativland's work. And lastly, the Disney Act extending copyright to, whatever, life + 70? One corporate entity buying a law that significantly changes society's rules for collective management of cultural goods. That's frickin' warped. It's somewhat chicken-and-egg, isn't it? Especially when law, built to deal with property as finite and tangible goods, is suddenly expected to govern intangible goods. Like you said, it's a value judgment. I guess I come from the school of thought that says that sometimes the legal environment needs an extracurricular kick in the a** in order to evolve and reflect current society. Otherwise, we'd probably all still be still under the thumb of the King of England, the Brits would still be running India, and African-Americans would still be disenfranchised and sitting on the back of the bus. Eric PS touche on your point concerning your houseplants' generous contribution to my oxygenated well-being... On 09-09-2003 1138, "James Maule" <maule () law villanova edu> wrote
If it is in my self-interest to kill you and in your self-interest to kill me, and if society's self-interest either doesn't care, or favors you, or me, we have a mess. What solves that problem is law... from Constitution through statute to regulation and judicial opinion. Whether or not we agree that there should be copyright protection that creates private property, that is a question separate and apart from the fact that our legal system does so provide. Likewise, perhaps we should communally own all property and not just the O2 that MY houseplants produce for you to breath <G>, but we don't have such a system (and attempts at doing that way haven't worked). So, as long as we have what we have, and even though we can lobby to change it, there's no excuse for a person deciding that in their self-interest they will take what belongs to another under the law, or that they will drive their Humvee through the red light through a crowd of pedestrians because their self-interest in getting somewhere quickly trumps the self-interest survival desires of the pedestrians. The law exists to resolve the conflicts among our individual and collective self-interests. And, incidentally, I tried, diplomatically, to differentiate between the self-interest that is pursued within the law and the self-interest pursed outside the law. That I have a bias favoring the former and disrespecting the latter is a matter of values.
Date Tue, 09 Sep 2003 173549 -0400
From "James Maule" <maule () law villanova edu>
To <mike () techdirt com>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
Mime-Version 1.0
Mike,
If you build a nicer better barn with a more attractive layout, you
don't charge admission, and you sell merchandise, you haven't stolen
from me. Ideas aren't subject to copyright. People will visit you (and
not me, if we assume a limit, because many would want to visit both). So
I need to do something to make mine more attactive. You're not a thief.
You didn't take my barn and layout.
An efficient marketplace isn't necessarily a legal one. Whether that's
a problem with law or human nature depends on whether one views human
nature as needing guidance from the law or as law simply reflecting the
human nature of those who get to say what the law is. The marketplace
correction that occurs when people refuse to buy something (and walk
away), or decide not to visit my barn and model railroad layout, is not
the same as a marketplace correction that arises from disregard of
legally protected rights. There are legally acceptable means of
correcting the music sales marketplace, though some may involve the same
sacrifice as that which is made by those who forego access to a service,
or a good, because they think it is overpriced. "I'm not paying $300 for
this dress" is accompanied by a search for another or a departure from
the store, without the dress.
That the technology permits multiple copies of the music to exist
appears to make a difference, but only if we compare the music to the
dress rather than to the dress design (the copywritten pattern). That's
the same reason the black market in "knock offs' is illegal it steals
the dressmaker's market. If you buy a song and sell it, as you suggest,
that's not infringement. The infringement occurs when you copy the song,
keep what you purchased, and pass the other on for compensation (whether
in the form of cash or a copy of another song). What is being sold by
the music publisher is a "good", namely a fixed representation or
manifestation of the work. The publisher retains the right to
manufacture or produce another fixed representation or manifestation to
sell to someone else (in competition with you selling to someone else at
a lower price the fixed representation or manifestation that you
purchased). When you create another fixed representation of the work to
sell to another, you are exercising a right that you do not own and did
not purchase.
Lastly, though technically copyright infringement is not "theft" as
used in the criminal law context, it is an illegal taking of someone
else's right. A society that does not protect legal rights becomes a
society no longer based on rule of law. Recall that most commercial law
grew out of the unregulated marketplaces that were becoming inefficient
because of the lack of rights protection... thus, marketplaces that are
unregulated by law (whether private law or governmentally imposed law
isn't the issue) become, in the long run, inefficient.
From "Roy M. Silvernail" <roy () rant-central com>
Reply-To roy () rant-central com
To declan () well com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 174647 -0400
User-Agent KMail/1.5
Declan,
James Maule's response to the Hugh Prestwood/RIAA article is interesting, in
that it comes from a Professor of Law. But of course, he has fallen for the
same misguided illogic that the RIAA, et al, have spewed endlessly.
Prof. Maule conflates intellectual property with physical property, and
through that conflation concludes that copyright infringement is directly
equivalent to theft. It's not all that surprising, given the RIAA and MPAA
beat the 'Sharing Is Theft' drum more loudly each day. I suppose they
believe in the concept of Proof By Assertion, but it doesn't make them right.
Prof. Maule addresses the subject of copyright by analogizing to a tangible
piece of real property, but the analogy is specious. Of course no one is
suggesting that the good Professor give free admission to his railroad
exhibit. To do so would deprive him of real property, in the form of income
from allowing admission to his property. That is theft.
The proper analogy would be to posit that because he has assembled a model
railroad exhibit, that no one else may assemble a similar (or even
substantially identical) exhibit, whether or not they charge admission. The
concept of a model railroad exhibit is intellectual property. The
realization of that intellectual property is Professor Maule's barn.
What the current Copyright Jihad seeks is to control each and every expression
of an idea, and to extend the control of that expression into perpetuity.
Even the original framers of copyright law recognized the problems with this.
Witness the compulsory licensing provisions that specifically allow any
artist to perform and record a song once it has been initially released.
Real property can be controlled in perpetuity because it is unique. Ideas can
be unique as well, but their expression can be shared without any loss of
real property. You and I can whistle the same tune, and neither one of us is
deprived. But given their way, the RIAA would charge both of us for
whistling.
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
From John <john.g.a.gardner () ntlworld com>
To declan () well com
Date 09 Sep 2003 230738 +0100
Jim appears to believe that there is an equivalence between a piece of
physical property and an idea (or other intellectual property.
It is relatively easy to demonstrate ownership of most physical
property, conversely almost all intellectual property is based on others
thoughts and ideas.
Ideas are built "standing on the shoulders of great men" - almost all
art-forms function by reference to others. In the case of popular and
classical music I cannot think of an instance where there was not some
form of predecessor.
Only if one could demonstrate either exclusive origination of all
components of a piece of music,or complete payment of all dues to the
originators of the earlier IP (and all of their dependents if the
argument is to be believed), would Jim's analogy stand.
John Gardner
UK
Date Tue, 09 Sep 2003 161631 -0700
To "James Maule" <maule () law villanova edu>, <declan () well com>
From Mike Masnick <mike () techdirt com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
In-Reply-To <sf5e0f8f.036 () VLSMAIL1 law villanova edu>
<x-flowed>
James,
Thanks for the reasoned follow-up. I think we're basically in agreement,
actually. Though, I do question the assumption you make that the market
correction is due to disregard of legally protected rights. I'd argue
there are plenty of other factors - and in some cases, the crack down has
done more to harm them than letting the infringement stand. For instance,
when Napster first launched and was still in a legal "gray area", I used it
to discover many new bands. I bought a bunch of CDs and saw bands that
performed live. Since it was declared illegal, I haven't used a file
sharing service - though, I do download MP3s directly from bands that allow
it. In that time, I've pretty much stopped buying CDs from all but a few
bands, simply because I no longer know what's out there. To me, file
sharing was a great way to learn about new artists - who I would then spend
money on. The lack of such a tool means I no longer know what's going
on. That's too bad for me, too bad for the bands I'm sure I'd like, and
too bad for the music industry who has to watch my money go elsewhere.
My argument is that, as a business person, I don't want my business model
dependent on something as out of my control as the whims of lawmakers and
lobbyists. It's my job to build a business that succeeds no matter what.
If I'm working in the music industry, I would be doing everything possible
to create a business model that didn't depend on copyright laws to
enforce. That way, everyone is better off. The record industry claims
they can't come up with a business model that keeps them in business, but
they're just buggy makers who can't figure out they're in the
transportation business and not the buggy making business.
You may claim that copyrights are due to inefficient marketplaces, but you
shouldn't assume all open marketplaces are inefficient. It may be a
function of time and technology - and the times have changed since our
original intellectual property laws were put in place. You have to look at
the actual market place and right now the legalized monopoly on music seems
a hell of a lot more inefficient than opening up the music as free content
and building smarter businesses on top of that.
Mike
Date Wed, 10 Sep 2003 095756 +1000
From Moz <lists () moz co nz>
X-Mailer The Bat! (v1.62r) Personal
Reply-To Moz <lists () moz co nz>
James Maul wrote
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
You're confusing property rights with intellectual property here. In most legal systems it's your barn, so you have the right to exclude most people from it. What you don't have is the right to stop someone paying the fee, then going home and building a similar model railway in their barn. You can possibly get a limited ability to stop that via patent or copyright law, and a question is how long that ability should last. On the one side is the RIAA saying that this special ability should be perpetual, on the other is a variety of groups saying that a shorter, fixed period would be more reasonable. There is also a group saying that obviously the whole notion of intellectual property is broken so it should be discarded. The key difference is in what happens when the "property" is stolen. If your barn is stolen, you no longer have a barn. But if your idea for the model railway is stolen, you still have the railway. The RIAA argument that you thereby lose part of the income stream, so that must have been "stolen" too, requires a leap into consequential losses. On a policy level, the question is where will music come from, if the RIAA is not there? Phrased that way the question is absurd, but it does seem to be the argument. The internet is affecting music in two ways people can now download music directly, and share the music that they have. But the musicians can also more easily sell directly to listeners. The internet now makes it trivial to do what previously required a large investment in a physical structure set up a store and accept payments. Today, for a tiny sum, I can set up an online store and accept instant credit card payments. This leaves the RIAA claiming that no-one will produce and promote global rock stars if they don't. I argue that the evidence suggests a declining market for global rock stars, as reflected in the movement of album sales from them to local artists. Addressing that issue, I'd like to see figures on the money flowing into online and direct-sale music. But that question is hard to answer, as the money flow is now very decentralised. I have bought music directly from artists both online and at performances, bought via label sites and downloaded "shareware" tracks and paid for them. Payment methods range from direct deposit into a bank account to third party credit card services like 2checkout.com. Tracking those flows is very, very hard to do. My suggestion is that those out-of-band flows are growing rapidly, and will continue to do so, and the former middlemen will continue to suffer. From "JayHolovacs" <holovacs () 1st net> To <declan () well com>, <politech () politechbot com> References <6.0.0.22.2.20030909114510.01f48af0 () mail well com> Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Date Tue, 9 Sep 2003 195810 -0400 There is an old saying, 'yesterday's home runs don't win today's ballgame'. Surgeons, lawyers, atheletes, and LIVE musicians (who put far more of themselves into a life on the road than do people doing a studio set) don't continue to get paid for a performance long after it's done. You want to eat tomorrow, you have to perform tomorrow. That's life. One measure of the effectiveness of a law is how closely it natural actions. Protection of physical possessions is relatively straightforward, easily grasped by virtually any culture in the world. By contrast, ideas, poems, stories, songs, have from time immemorial simply spread. As long as it's in your mind alone, it's yours. The moment you extend it to other minds, you no longer have real control over it, thoughts belong to the world. It's only an artifact of our civilization (which we try to force onto others) to try to have it both ways, spread the idea and simultaneously keep control of it. Now there is no natural way to do that (unlike protecting one's possessions which is conceptually plain) so we have contrived this highly artificial mechanism, enforcing a kind of 'thought control' through the force of the state. It's that disconnect that should alert us to the fact that this attempt to control ideas is a losing battle, or at least a battle that should be lost. Jay From Kelly Gray <gray () mygate dhs org> To declan () well com Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits Date Tue, 9 Sep 2003 205415 -0400 I have to disagree with James Maule's comentary on copyrights. His analogy is badly flawed because he misses the difference between physical property and "intellectual property". The difference is that having someone else use your ideas does not deprive you of the use of those ideas.
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free? Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal. (Sure, I'll pay taxes to repay society for the burden my property puts on the environment, for police protection, etc..... just as creative artists pay taxes).
To use your model railroad analogy more correctly, you want the ability to
prevent me from paying to visit the display, and then going home and creating
my own display identical in every respect. Having the display go into the
public domain would mean that I would be able to create my own display and
charge admission to those who wanted to see it. The competition might result
in a lower income, but would not take the original display away from you.
What's more, you also want the ability to prevent me from photographing your
display, and then using the photographs to illustrate a book on how to create
a model railroad. Such a book would not interfere with your income from the
display at all.
But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time? I'd sue someone who breaks in or tries to enter without paying, and the fact that the person is a "fan" of my railroad layout doesn't matter. Muggers are "fans" of my wallet.... but they're not going to get the legal system to support their claim. Oh, wait, we live in a society where muggers are coddled because no one "understands" them. *I* understand them... they're too lazy to go to school, learn how to do something productive, and then labor in a job. Much like plantation owners who couldn't pick their own cotton.
Once again, the confusion of physical property vs ideas. Only one person can use a physical object at any one time, so it's only fair for the owner of that object being the one to decide who gets to use it. On the other hand, ideas can be used by an unlimited number of people simultaneously. I don't see much fairness in restricting an unlimited resource to a select few merely because they happen to be related to the person who stumbled across it first.
So should my grandchildren get to live off my model railroad creation? Yes, unless society through its legislatures, imposes a "take all" estate or similar tax. It ought not be decided by outlaw renegade "do it yourself wealth redistribution entrepreneurs" (a fancy word for mugger, thief, embezzler, etc.). Sure, my grandchildren could be creative and make their own model railroad layout or whatever else suits them. And, just as well, these P2P activists can go and create their own music rather than stealing someone else's work.
Ahh, but you see, I can't go and create my own music. Not because I lack the talent, but because perpetual copyrights have made it impossible for me to learn music by studying, i.e. playing, the music of those musicians who have come before me. What's more, even if I do manage to learn to play somehow, I still face a legal minefield in trying to prove that I didn't subconsciously copy a few bars of music from a song I may have heard years before.
The idea that people come to visit and pay $10 because they want to expand on my work? Rubbish. They simply want to get in for free because they think they're "special" and don't need to abide by the rules that bind the rest of us. They're like folks who go straight from the left turn lane... and the fact more and more people act so idiotically is nothing more but proof that a few bad apples in the barrel, if permitted to remain, spoil the rest.
Perhaps it's not the people that are wrong, but the rules? Just because a law
has made it onto the books does not make it a good law. There are many laws
passed more because politicians were convinced to accept them than because of
the benefits of the law. In the case of the recording industry, they seem to
have a history of price fixing, monopolistic restraint of trade, and using
political influence to have laws rewritten to favour them.
When you look at laws in general, they're really only a codified view of what
we as a society see are the limits of acceptable behavior. If a large part of
society considers violating a particular law to be acceptable, then perhaps
the law should be rewritten to more closely conform to the view of society.
At one time slavery was considered acceptable, and the laws reflected that.
When society's attitude changed, so did the laws. The changes in the law were
caused by the change in society, not the other way around. At the present
time, society seems to be indicating that a change is needed in the copyright
laws, and indeed in all the "intellectual property" laws.
Kelly Gray
From "kawaii ryuko" <trunks () stackers org>
To <declan () well com>
References <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 210055 -0400
I don't know if Jim's defense is even applicable.
Let's go with his scenerio
He has built a barn and a railroad display. I pay $10, walk in, and gasp at
the display. I think it is really good. I then leave, and build my own
railroad display, which in this case, is identical to Jim's display. I let
people look at it for free.
Jim's argument is as such
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
I say that Jim is under no obligation to allow people in for free, but if I choose to build a replica on my personal property, am I under any obligation to charge the same price as Jim? or to charge any price at all?
But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time? I'd sue someone who breaks in or tries to enter without paying, and the fact that the person is a "fan" of my railroad layout doesn't matter.
And if I were to duplicate the song or movie? Because that's what the crux
of the issue is, distribution and duplication. Theft is somehow an
inadequate word for the digital medium, because mugging and other such crime
is depriving the owner of the object in question. When someone 'steals'
music, the original artist is not prevented from touring, nor is the artist
prevented from otherwise 'using' the music.
I don't believe that music piracy can be described using analogies with any
tangible good and the related theft of said good, simply because this isn't
a case of someone shoplifting a CD from a store.
I don't even think the RIAA is too concerned with the theft. People have
been making mix tapes for years. It is the wide-spread distribution that
they have a problem with - and if I understand the recording industry's
break down properly, it would seem that the things that allow an artist (not
necessarily a song writer) to make the most money (touring, merchandise,
etc) are still available to the artist, despite the 'theft'. The only people
who are losing big when music is free digitally is the recording industry
middle-man, and that is why they are so virulent in their attacks against
file-sharers.
Ever lovable and always scrappy,
kawaii
From jason <jaegner () mindspring com>
To Declan McCullagh <declan () well com>
Cc maule () law villanova edu
In-Reply-To <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
References <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
I'd like to answer Professor Maule's last question first, as I believe
it might shed more light on the rest of my reply
"So, they're 'not consumers anymore.' So what are they? Can we dare
utter the words?"
-- Yes, sir...I believe it's safe to utter the words discerning,
informed customers.
"I don't get the gist of Jason's complaint. Actually, I do.... and it is
troubling."
-- I'm sure that my opinion is "troubling" to someone that is more
familiar with tax law and the IRS than constitutional law and the PTO
but I think that's a good thing in this debate because I'm not trying to
defend people that infringe copyrights any more than I am supporting the
illogical approach being adopted by those who support "intellectual
property".
In the interests of brevity, I won't quote Prof. Maule's points. I
simply question his analogy. Physical property is just that
physical. You buy the land, build your barn, erect your display and do
whatever you want with it. That's physical...tangible. Of course it's
logical that your heirs should inherit that work.
What I can't agree with is the mapping of "intellectual property" onto
physical property in our society. Let's be honest here There is no
such thing as "intellectual property". Copyright, patent, and trademark
laws create an _artificial_ monopoly. I find it hard to believe that a
professor of law at Villanova has never read the words of Thomas
Jefferson when he said
"If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an
idea, which an individual may exclusively possess as long as he keeps it
to himself; but the moment it is divulged, it forces itself into the
possession of everyone, and the receiver cannot dispossess himself of
it. Its peculiar character, too, is that no one possesses the less,
because every other possesses the whole of it. He who receives an idea
from me, receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me."
In the economy of ideas, the public is the ruling body and given the
power and decentralization of the Internet, those whose business model
relies upon the control of information need to figure out another way to
do business. I don't imagine it will be easy and (as the RIAA is
proving daily) it certainly won't be painless. I simply believe it is
inevitable.
Regarding the RIAA, I await proof that "pirates", and not their own
reduced production schedule, are to blame for their profit loss.
I do of course retain the utmost respect for Professor Maule and should
the IRS ever knock on my door, it is my sincere hope that he will forget
we ever had this discussion. )
--Jason
Date Tue, 09 Sep 2003 215132 -0400
From "James Maule" <maule () law villanova edu>
To <jaegner () mindspring com>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
Jason,
Whatever Jefferson has said, the Constitution gives Congress the power
to give copyright protection to the fixed forms of ideas. It is the
fixed manifestation and the right to copy it that is protected, not the
idea or the thought. Hopefully Declan will post this so that the
discussion can re-focus on the point I think you made and that I think
you made again (in your suggestion that the pirates aren't the cause of
revenue loss and in your point concerning the burden on the owners of
information to invent new business models).
When the law grants a right, whether in title to real property or the
right to copy, it is a violation of that law to act, without permission
and without privilege, in a manner that denigrates those rights. In this
regard, it makes no difference whether a right attaches to physical
property or the manifestation in physical or digital form of an idea or
the intangible "right" to own real property or to copy or fix an idea.
The specifics of remedies, proof, and procedure may vary, but an
intrusion on a right is an intrusion whatever the right.
I am not arguing for a perpetual copyright, as my careless articulation
in my original posts seems to say. I corrected that in a followup.
Nor am I arguing that the term provided under existing law necessarily
is the best, or ideal, or good for business or the economy. But I do
argue that just because a person does not agree with a law is not in and
of itself justication to ignore it.
The notion that the owners of copy rights need to rethink their
business model because modern technology has made it easier for pirates
to steal the profits flowing from the right to make copies (and that
their failure to do so excuses the theft) is like saying that the
creation of better lock picking tools means that those who don't change
their security system excuses the thieves. This is a natural consequence
of the "blame the victim" mentality that permeates our culture. Sure,
some copyright owners have exploited artists and consumers. That's not
enough to sanction P2P schemes that infringe on all sorts of artists,
publishers and copyright owners (many of whom are not big Disneys).
How you can suggest that file swappers aren't eating into CD sales
boggles me. Who has to prove what is a different matter, and yes, the
burden is on the RIAA. That the decline in sales matches the growth in
the Internet and P2P and other file sharing schemes isn't a coincidence.
No one believes that in the absence of the technology the swappers would
not have purchased CDs.
So I'd be happy to hear you say that you think the file swappers are
violating the law and violating the copyrights. And then say you
understand why they do that although you don't think that makes it
right. Then we'd be fairly close to having the same position. If that is
what you are saying, then I apologize for mis-interpreting your earlier
post and this one.
Jim
From "Geoff Gariepy" <geoff_gariepy () hotmail com>
To <declan () well com>
Cc <maule () law villanova edu>
References <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 234632 -0400
MIME-Version 1.0
Declan,
One thing's for sure, James can write a convincing argument, and he's got
the balls to put it out there. I think he's right on.
--Geoff
Date Wed, 10 Sep 2003 113255 +0200
To declan () well com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
References <6.0.0.22.2.20030909114510.01f48af0 () mail well com>
From Alf Kåre Lefdal <aklefdal () online no>
Content-Type text/plain; format=flowed; charset=iso-8859-1
MIME-Version 1.0
Declan,
Property and ideas are different. If I wanted to build a copy of his
barn, together with a huge model railroad display, then that would be
fine! He doesn't have the copyright of his property. Why should I pay
for entrance to his barn, when I can build my own for free?
Alf
Alf Kåre Lefdal
<http//home.online.no/~aklefdal/>
Content-Type text/plain; charset=iso-8859-15; format=flowed
From Andrew Steingruebl <steingra () earthlink net>
MIME-Version 1.0
Date Wed, 10 Sep 2003 070512 -0500
<x-flowed>
Is it just me, or this essentially an agument against fair-use overall.
That is, a rejection of copyright law and the balances it strikes.
Not sure if that was the intent, but are we seriously still having that
debate, especially with a lawyer?
- Andy Steingruebl
From "George, Paul" <PCGeorge () BBandT com>
To "'declan () well com'" <declan () well com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Wed, 10 Sep 2003 105003 -0400
I presume our learned colleague is aware that intellectual property is a
rather new concept in the law and is arguing that it shouldn't be treated
any differently than physical property. The practical reason is that such an
approach stifles civilization. I drift slightly into the areas of copyright
and patent in this argument.
To use James Maule's analogy, the issue is not my viewing his display for
free, but rather, per the DMCA
- restricting my ability to build a copy of his display, having paid
admission to see it.
- restricting my ability to make a drawing/diagram or take a photo of his
display
- restricting my ability to build an identical or similar display and
charge admission.
- restricting my ability to buy or sell model train components lest I
enable building such a display (possibly a stretch).
- restricting my ability to buy or sell locksmithing or keymaking equipment
on the grounds that it's primary purpose is to open locks such as those on
his barn.
The growth of culture and technology is based upon it's spread. It has not
been held historically that a composer such as Handel, or more currently the
patron that commissioned the work ('work for hire'), should be able to
restrict how the work could be played or by whom, nor that the score should
be not distributed to enable such playing. The copying mechanism of the work
is human memory. If it had we would probably have no classical music today.
OTOH that is why artists have historically needed patrons and were often
destitute.
What would happen if no one could play an old blues or folk tune without
buying the rights, or indeed if the distinctive pattern of a blues song were
copyrighted or patented (e.g. Disney copyrights of cartoon characters)?
What about a 'theme and variations' composition using someone else's theme?
I argue the development of music would be stifled.
If I visiting a different area and saw a better way of building something it
would be traditional to bring that idea back to my own country or town and
use it to improve our lives as well. This kind of 'stealing' is the basis of
civilization.
Thought experiments
- the catholic church copyrighted the bible, and banned the printing press
and movable type on the grounds that it's primary purpose was the
unauthorized reproduction of a copyrighted work.
- the concept of the printing press and movable type received a permanent
patent, which the owner declines to license.
I'll argue that providing a title to intellectual property over time would
cause all areas of human expression would become owned by those who have a
'dog in the manger' interest in seeing no one else make a profit using their
property, even if they aren't. Everything is to some extent a derivative
work. If all 'prior art' is owned, then.....
From "Derek Scruggs" <derek () scruggs net>
To <declan () well com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Wed, 10 Sep 2003 092512 -0600
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
I don't necessarily support file sharing, but this is a straw man. This is an example of real property. Recorded music is intellectual property. The difference between them is great enough to have been specifically singled out in the Constitution. If you want them to equate, launch an effort to amend the Constitution. -Derek Escalan, LLC Smart marketing. Measurable results. http//i.escalan.com/cts/home 303-543-1186 phone 303-808-6614 cell 425-920-6124 fax Date Wed, 10 Sep 2003 092307 -0700 From Eric Lee Green <eric () badtux org> User-Agent Mozilla/5.0 (Windows; U; Win98; en-US; rv1.4) Gecko/20030624 X-Accept-Language en-us, en MIME-Version 1.0 To declan () well com, maule () law villanova edu <x-flowed> From "James Maule" <maule () law villanova edu>
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free?
So if I buy a CD-ROM with music on it, why should I not have the right to do anything I wish with the property that I just purchased? Including play it in public, share it with my friends, whatever? Mr. Maule is using an intellectually dishonest argument typical of the RIAA storm troopers He is confusing the boundary between an idea and its instantiation. Ideas are not owned. All that is granted by our Constitution is a limited monopoly on use of an idea, in order to give people an incentive to express said idea onto a physical media such as paper or, yes, a model railroad display. But note that the actual physical object -- the model railroad display -- is property. The idea of a model railroad display, on the other hand, is *not* property, but at best something to which our Constitution gives limited "copy right".
Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission?
Why should I pay money to you if I want to build a model railroad display that's exactly like yours? That's what copy right is all about -- the right to copy your model railroad layout and build one exactly like it in my backyard. Why should you have a government-enforced monopoly on all model railroad displays that are built like yours, forever? You're using government to keep me from going into business competing with you!
Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal.
But we're not talking about property rights. We're talking about copy rights -- the right to make our own copy of your display, using our own materials on our own property. Copy rights were originally conceived as a limited government monopoly to encourage people to express their ideas in innovative ways by giving them a monopoly on making copies. The only thing that has changed is that it is now easier for me to make my own copy. But there is no God-given right for you to keep me from making a display built like yours, or a musical composition that uses the same aureal elements as yours. This is entirely an artificial government-created restriction on what I, as a free man, can do with my own property. Again, I ask why should you be able to use government to tell me what I can do with my property, forever? Why should you have an eternal right to keep me from making model railroad layouts identical to yours? You're using government to tell me what I can do with my own materials, my own labor, my own property!
But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time?
No, I do say that you should not be able to tell me what I can do with my OWN materials and my OWN property after a certain period of time. If I bring a tape recorder to your concert, the recorder and tape are my own property. Now, because it is in the public interest to encourage you to create songs, government has wisely granted you the right to tell me what I can do with my recorder and tape for some limited amount of time. I.e., you have the copy right, I don't, so I cannot use my materials and my labor to build a copy of your song. But should this government-granted restriction on what I can do with my materials and my labor apply *forever*?!
So should my grandchildren get to live off my model railroad creation?
Should your grandchildren have the right to use the power of government to tell me that I cannot build my own model railroad creation, identicial to yours, next door to yours? That's what copy right does. It keeps me from using my materials, my labor, to build a model railroad creation identical to yours. It restricts what I can do with my materials and labor, on my property, in order to enrich you. There is a good reason for this -- it gives you an incentive to create an innovative model railroad creation. But should your grandchildren also have that monopoly?!
The idea that people come to visit and pay $10 because they want to expand on my work? Rubbish. They simply want to get in for free because they think they're "special" and don't need to abide by the rules that bind the rest of us. They're like folks who go straight from the left turn lane... and the fact more and more people act so idiotically is nothing more but proof that a few bad apples in the barrel, if permitted to remain, spoil the rest.
The idea that you, your children, and your grandchildren should have the
right to tell me that I cannot build a model railroad display identical
to yours, using my own property, my own materials, my own labor, because
you have some sort of God-given right to use government to keep me from
competing with you? Rubbish! You aren't going to get out of this by your
usual RIAA tactics of confusing people about an artificially granted
government monopoly, implying that an artificial monopoly (the right to
create model railroad displays identical to yours) is the same as the
property itself (the model railroad display). That's just an attempt to
trick and deceive people. It is intellectually dishonest, and utter rubbish.
The fact of the matter is that if I offered a song (written by you) for
download, it is identical to the situation of where I bought the
property next door to you and built a model railroad display exactly
identical to yours. You still own your own model railroad display. I
have not taken that away from you. All I have done is gone into
competition with you, using my own materials and my own computer and my
own time. Now, government has wisely detirmined that if I could just rip
off your own ideas and use them to go into competition with you, you
would have little incentive to build your model railroad display. So
government gave you an artificial monopoly, which I violate if I go into
business against you using ideas identical to yours. But trying to
confuse people by saying that competing with you is the same thing as
stealing from you and thus you should have the right to use government
power to tell me what I can do, forever, with my time and my materials
and my computer, is the sort of socialist big-brother nonsense that I'd
expect from some Communist, not from someone who (since he reads
Politech) who supposedly supports free-market economic solutions. It is
not only intellectually dishonest. It is a *LIE*, and that's what
irritates me the most -- I despise liars, and when I see a bunch of
liars getting away with telling outright lies, I get irritated and ornery.
- Eric Lee Green mailtoeric () badtux org
Date Wed, 10 Sep 2003 142117 -0400
From "James Maule" <Maule () law villanova edu>
To <eric () badtux org>, <declan () well com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
Eric Lee Green <eric () badtux org> 9/10/2003 122307 PM >>>
So if I buy a CD-ROM with music on it, why should I not have the right to do anything I wish with the property that I just purchased? Including play it in public, share it with my friends, whatever? JEM You cannot make copies and transfer them for value during the period that the law protects the copy-right of the owner. So, no, you cannot do "whatever." Mr. Maule is using an intellectually dishonest argument typical of the RIAA storm troopers He is confusing the boundary between an idea and its instantiation. Ideas are not owned. JEM No, I am not confusing the boundary. If A records a song about flowers, you can record and distribute a song about flowers. But you cannot take A's song (without permission) and copy it in order to sell those copies. I addressed the treatment of copies of the instantiation, not the idea. Why should I pay money to you if I want to build a model railroad display that's exactly like yours? That's what copy right is all about -- the right to copy your model railroad layout and build one exactly like it in my backyard. Why should you have a government-enforced monopoly on all model railroad displays that are built like yours, forever? You're using government to keep me from going into business competing with you! JEM You can imitate me, but you cannot use a holographic duplication electron beam transmitter to make copies of my property. You can go buy your own stuff and try to copy mine, but I can prohibit you from filming, photographing or otherwise taking notes of my layout while you are in my barn. That means it is unlikely you will produce an exact copy of my layout. You may improve on it, and thus cause me to improve mine. That's fine. That is very different from making an exact copy, digitally, of a work in which someone else has a copy-right, and taking their limited-term monopoly away from them without permission by selling to their would-be customers the illegally generated copy that you have made. But there is no God-given right for you to keep me from making a display built like yours, or a musical composition that uses the same aureal elements as yours. This is entirely an artificial government-created restriction on what I, as a free man, can do with my own property. Again, I ask why should you be able to use government to tell me what I can do with my property, forever? Why should you have an eternal right to keep me from making model railroad layouts identical to yours? You're using government to tell me what I can do with my own materials, my own labor, my own property! JEM See above, where I explain the blurring you make between imitation and copying. Looking at my layout and trying to reconstruct it from memory is NOT the same as generating a precise copy. When the holographic duplication electron beam transmitter gets invented we'll have quite a discussion, won't we, about your copying my railroad barn and layout. (But we'll probably be too busy making copies of celebrities and money to worry about barns and railroads). If I bring a tape recorder to your concert, the recorder and tape are my own property. Now, because it is in the public interest to encourage you to create songs, government has wisely granted you the right to tell me what I can do with my recorder and tape for some limited amount of time. I.e., you have the copy right, I don't, so I cannot use my materials and my labor to build a copy of your song. But should this government-granted restriction on what I can do with my materials and my labor apply *forever*?! JEM No, and I clarified that in a follow-up posting which no one seems to have seen (though it did reach me by e-mail) and which I do not see on the politechbot.com web site. But, until the term expires, no, you cannot make copies of my song to sell for gain. Should your grandchildren have the right to use the power of government to tell me that I cannot build my own model railroad creation, identicial to yours, next door to yours? That's what copy right does. It keeps me from using my materials, my labor, to build a model railroad creation identical to yours. It restricts what I can do with my materials and labor, on my property, in order to enrich you. There is a good reason for this -- it gives you an incentive to create an innovative model railroad creation. But should your grandchildren also have that monopoly?! JEM Actually, if you take your brain, your ideas, your materials and create a layout identical to mine, you have NOT violated the copy right (assuming there was one in a model train layout) because you have not COPIED. So the seeming restriction on your use of your brain and your materials isn't nowhere as tight as you suggest. The idea that you, your children, and your grandchildren should have the right to tell me that I cannot build a model railroad display identical to yours, using my own property, my own materials, my own labor, because you have some sort of God-given right to use government to keep me from competing with you? Rubbish! You aren't going to get out of this by your usual RIAA tactics of confusing people about an artificially granted government monopoly, implying that an artificial monopoly (the right to create model railroad displays identical to yours) is the same as the property itself (the model railroad display). That's just an attempt to trick and deceive people. It is intellectually dishonest, and utter rubbish. JEM Whether there should be a monopoly is a different issue (and if one didn't exist, it would curtail creativity... why work if there's no way to be compensated?). But the monopoly does exist and requires respect. The monopoly is real, not artificial. It exists. The right to create is different from the right to copy. The discussion is a focus on pirates who copy when the law says they have no right to do so. Period. Claiming that the law is stupid or makes someone's life less than ideal is no defense. Pirates aren't "creating" based on imitation... they are flat out copying. Period. The fact of the matter is that if I offered a song (written by you) for download, it is identical to the situation of where I bought the property next door to you and built a model railroad display exactly identical to yours. JEM Not at all. I write a song, and I own the right to copy it. There is no copy right in the model train layout (and to those who pointed that out, sure, I understand that). So you can try to imitate me and make a replica of my layout but the odds are you'll not have a precise copy (or even come close). You have no right to make copies of the song as to which I have exclusive copy rights. By doing so you infringe on my rights. If you transfer the copy for value, you clearly are diverting my income from me to some other place. It is an illegal taking. But trying to confuse people by saying that competing with you is the same thing as stealing from you and thus you should have the right to use government power to tell me what I can do, forever, with my time and my materials and my computer, is the sort of socialist big-brother nonsense that I'd expect from some Communist, not from someone who (since he reads Politech) who supposedly supports free-market economic solutions. JEM Competing with me by using rights that you steal from me is not merely competing with me. It is stealing, followed by competition, and the subsequent competition does not absolve the theft. Use your own ideas, or use something you create influenced by my ideas, but don't copy the precise manifestation of my idea and then sell it as though it were yours. A non-socialist, free market advocate such as myself understands that "free" in market does not mean "free for all, bully thieves are the winners" but "free" as unregulated except to the extent the market must be regulated in order to exist. (A free but dead market is not a market). Otherwise, "free market" would mean anything in the market I can grab/download for free is mine. It is not only intellectually dishonest. It is a *LIE*, and that's what irritates me the most -- I despise liars, and when I see a bunch of liars getting away with telling outright lies, I get irritated and ornery. JEM It is not a lie. It is an interpretation of law that generates a result you don't like. No one has yet provided a basis for concluding that file swappers aren't violating copyright law. I've heard some interesting arguments of sympathy, in which folks have shared why they "understand" what motivates file swappers (just as one can understand what motivates other law breakers (sometimes)). All this discussion of what the copyright law SHOULD be doesn't change what it is, nor does it give justification for seeking change through the legal process. I just had an off-list exchange with someone who explained that his goal is to see the middleman eliminated. I proposed setting up a competing Internet music distribution system in which the artists signed contracts with what would be an Internet-based music publisher. THAT is legal, barring interference with existing contracts, that would reduce the cost of distributed music, and that might catch on. But it takes effort, creativity, and time, which is what the file swappers don't need to invest when they simply take what belongs to another. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 maule () law villanova edu http//vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) Date Wed, 10 Sep 2003 121132 -0700 From James Ausman <ausman () CSUA Berkeley EDU>
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person, why should I, after some short period of time, let people in for free? Why can I not pass that building and display on to my kids when I die, giving them something for which they can charge admission? Under current law, the property right (created by my physical efforts and the creativity of how I designed the layout and its accessories) is eternal. (Sure, I'll pay taxes to repay society for the burden my property puts on the environment, for police protection, etc..... just as creative artists pay taxes).
But of the course the fundamental difference is that an idea is not property. Property rights protect property, you know, that real physical thing that you can touch with your hands and exists in only limited quantities. If someone takes your model train set, you are without a model train set. You have lost and they have gained. If someone copies a song that you "own" you both have copies. Nothing has been lost, only gained.
But if I were to write a song or make a movie about my model layout you want yourself (or others) to have access to it for free, at least after some short period of time? I'd sue someone who breaks in or tries to enter without paying, and the fact that the person is a "fan" of my railroad layout doesn't matter. Muggers are "fans" of my wallet.... but they're not going to get the legal system to support their claim. Oh, wait, we live in a society where muggers are coddled because no one "understands" them. *I* understand them... they're too lazy to go to school, learn how to do something productive, and then labor in a job. Much like plantation owners who couldn't pick their own cotton.
No, not like plantation owners. Not like muggers. Only a lawyer could confuse the real world, with its tangable objects, with the crazy attempt to map Intellectual Property laws to the world of ideas. Ideas are not tangable objects and no one "owns" them. Guess what? People created songs and invented things before the notion of Intellectual Property came along. Society decided it was in our collective best interest to create patent laws to encourage creativity. They are not inherent qualities and attempts by people like you to transfer the rules regarding actual real property to the "intellectual property" world are only going to make you look more and more foolish and are already leading to the inevitable backlash. No matter how much you try to pretend that an idea is "property," it is not, and you will convince no one, but the gullible.
So should my grandchildren get to live off my model railroad creation? Yes, unless society through its legislatures, imposes a "take all" estate or similar tax. It ought not be decided by outlaw renegade "do it yourself wealth redistribution entrepreneurs" (a fancy word for mugger, thief, embezzler, etc.). Sure, my grandchildren could be creative and make their own model railroad layout or whatever else suits them. And, just as well, these P2P activists can go and create their own music rather than stealing someone else's work.
The laws creating the ownership of ideas was designed to encourage
creativity and to reward creators for their own work. Allowing this
to be passed on discourages creativity. Why should your children
create anything when they can just live off the work of their ancestors?
What a terrible precident. Your vision leads to a world where every
invention, every innovation, every piece of entertainment is held by
a few, instead of the commonweal of humanity. They can withold as
they see fit or charge as much as they like, impoverishing any who
cannot afford the fee. The intellectual and creative output of mankind
is our birthright, not some thing to be bartered and sold.
Cheers,
Jim Ausman
Date Wed, 10 Sep 2003 153430 -0400
From "James Maule" <Maule () law villanova edu>
To <ausman () CSUA Berkeley EDU>, <declan () well com>
Cc <politech () politechbot com>, <ausman () soda csua berkeley edu>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
Mime-Version 1.0
James Ausman <ausman () CSUA Berkeley EDU> 9/10/2003 31132 PM >>>
writes But of the course the fundamental difference is that an idea is not property. Property rights protect property, you know, that real physical thing that you can touch with your hands and exists in only limited quantities. If someone takes your model train set, you are without a model train set. You have lost and they have gained. If someone copies a song that you "own" you both have copies. Nothing has been lost, only gained. JEM Not so. If someone copies a song to which I have the copy-right, they take from me the income I can generate by making a copy and selling it to the person who compensates the thief for the copy that the thief had no right to make and sell. Property law and copyright law have similarities resting on an underlying legal principle the owner of a RIGHT (of any kind) is protected by law from impermissible intrusion on that right by others (e.g., INFRINGEMENT in copyright law and TRESPASS in real property law, CONVERSION in personal property law, etc etc) No, not like plantation owners. Not like muggers. Only a lawyer could confuse the real world, with its tangable objects, with the crazy attempt to map Intellectual Property laws to the world of ideas. Ideas are not tangable objects and no one "owns" them. Guess what? People created songs and invented things before the notion of Intellectual Property came along. Society decided it was in our collective best interest to create patent laws to encourage creativity. They are not inherent qualities and attempts by people like you to transfer the rules regarding actual real property to the "intellectual property" world are only going to make you look more and more foolish and are already leading to the inevitable backlash. No matter how much you try to pretend that an idea is "property," it is not, and you will convince no one, but the gullible. JEM ALL LAW (other than the "laws" of physics and mathematics) is invented. Our property law is the way it is because somewhere "society" (legislatures, courts...) decided that feudal tenure didn't work, that the systems in place in the former Soviet Union, the PRC, etc. weren't desirable, and that a law of life estates, remainders, tenancy by the entirety, etc etc would work. The Framers decided that there would be legal protection of copyright. The fact that it (as other law) was "created" (rather than being bestowed from On High) makes no difference to my point the law is valid, it creates rights, and those who trespass or infringe on those rights are violating the law, whether by stealing a wallet, stealing a copyright, or stealing parts of a barn. It really is very simple. It's the pirates, who in an attempt to make theft look like a good deed for society, claim that intangibles aren't property, or are "different" in some way that permits what is illegal behavior. There is nothing INHERENT in real property that causes life estates and remainders to exist anymore than there is anything INHERENT in intellectual property that causes copyright to exist. SO WHAT? And if you read my post, nowhere do I claim an idea is property. I compare the protection of a property right with the protection of a copy right. BOTH ARE RIGHTS and both are protected by the law. The laws creating the ownership of ideas was designed to encourage creativity and to reward creators for their own work. Allowing this to be passed on discourages creativity. Why should your children create anything when they can just live off the work of their ancestors? What a terrible precident. Your vision leads to a world where every invention, every innovation, every piece of entertainment is held by a few, instead of the commonweal of humanity. They can withold as they see fit or charge as much as they like, impoverishing any who cannot afford the fee. The intellectual and creative output of mankind is our birthright, not some thing to be bartered and sold. JEM If society wants to eliminate or curtail the ability of people to live off the rewards of the work of their parents, grandparents, great grandparents, etc, it can (and has) impose wealth transfer taxes (estate tax, gift tax, inheritance tax, etc). The law permits people to live off the income of trust funds set up with the fruits of the ancestors' rights. That's a totally different issue. The argument that the pirates are doing a "Robin Hood" benefit is a smoke screen, not only because they're not passing anything onto the "poor", but because they're not distinguishing the wealth status of those from whom they steal. The defenses that have been posted, and emailed to me off-list, citing the abuses of the Disneys of the world presuppose that only the Disneys of the world are being harmed. As the son of a musician, as a writer and programmer, and as the father of an artist in the making, I have first hand experience that not every copyright owner who is harmed by pirating is a Disney or other megacorporation. JEM P.S. I have repeatedly clarified that I am NOT advocating a perpetual copyright term, and in any event that has no bearing on the analysis of the actions of pirates during the copyright term. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 maule () law villanova edu http//vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) Date Wed, 10 Sep 2003 224924 +0100 From David Tomlinson <d.tomlinson () tiscali co uk> <x-flowed> Declan McCullagh wrote Previous Politech message Reply to Hugh Prestwood and RIAA suing individual P2P http//www.politechbot.com/p-05056.html I was hoping someone else would take the burden of educating James. But here is my attempt.
So, If I build a barn-like structure with my own hands, and then build a huge model railroad display inside, and then invite the public to visit for $10 a visit per person
<snip>
But if I were to write a song or make a movie about my model layout
Not another alchemist who can turn non-physical and non-rival goods into property. They are not the same ... interlectual property is not the same as physical property. Interlectual property is a deliberately misleading term. And you are seriously deluded if you think that the idea of railroads, model railroads, or anything else is your creative and exclusive invention, without reference to society, culture or other peoples creative labours.
The idea that people come to visit and pay $10 because they want to expand on my work?
I don't know, they may be inspired to build a larger or more
sophisticated railroad. After all you were so inspired. You did not
invent the railroad or the model railroad as a idea. You are just
building on the work of others.
But they are actually paying for access to your physical property and
the railroad is the attraction.
No the whole premise is that interlectual property goods are non-rival,
so unlike physical goods you are not deprived of them when someone else
enjoy's them. And no matter how much you protest about your creativity,
you have borrowed substantially form the cultural environment and the
work of other people.
In fact as non-physical goods the premise, is like ideas, you can't own
them. Just like idea's.
You want a return on your creativity, make live performances, of your
railroad in your barn. The movie is just promotional material, so people
will be encouraged to pay to see the real thing.
The real issue is where do you get to control the behaviour of eveyone
else. Don't want movies to be made of your railroad to be available.
Don't allow cameras on your property. That is the limit of your control.
Someone else might see the opportunity in getting more free publicity by
circulating a film of their railroad. And in my view if they make the
film publicly available through sale or other form of distribution they
are explitly for going control. The doctrine of first sale.
Do you have to go to school to learn to be creative, I wonder how early
cultures managed.
It would appear that you are not sufficiently educated to understand
the abstract world of non-physical property. I hope I have contributed
to your education on the non-rival aspects of culture.
Culture is an emergent property of society.
http//dictionary.reference.com/search?q=culture
" 1. The totality of socially transmitted behavior patterns, arts,
beliefs, institutions, and all other products of human work and thought.
2. These patterns, traits, and products considered as the expression
of a particular period, class, community, or population Edwardian
culture; Japanese culture; the culture of poverty.
3. These patterns, traits, and products considered with respect to a
particular category, such as a field, subject, or mode of expression
religious culture in the Middle Ages; musical culture; oral culture.
4. The predominating attitudes and behavior that characterize the
functioning of a group or organization."
You cannot own your personal aspect of culture to the exclusion of
everyone else. It is not an individual trait or product.
Regards
David.
p.s.
James,
Given your views, I am sure that you will want to credit my paypal
account with the outstanding royalties on the invention of the wheel. I
am sure a relative (perhaps distant) was part of the development
process. Very reasonale rates $1 per annum, back to when your ancestors
first applied this technology. (I will in additional waive any rights to
fire).
p.p.s
Try reading your constitution for the original, and now much abused,
intention behind copyright. Which with the development of the internet
should in my view be abandoned.
Date Tue, 09 Sep 2003 155555 -0400
From brunkb () ils unc edu
To maule () law villanova edu, declan () well com
Subject apples vs. oranges
Message-ID <1167707114.1063122955@flaffa>
<x-flowed>
Jim,
Having just read your post to Declan's list, I'd like to offer a few
comments. I think you're comparing apples to oranges when you compare a
model railroad exhibit to which admission is charged, with the music
business. The business models are quite different, as are the issues
involved. I tend to agree with what Jason said because when the founders
set up our country, they created a copyright system and a patent system
that included limited time periods for control of the monopoly. Neither
copyright nor patents apply to your model train example, however.
The idea behind these two systems was to protect the holder of the patent
or copyright for a relatively short period of time so that they could
recover the costs of their innovation or work. The idea was that they are
contributing to the knowledge and culture of society, and that knowledge
and culture must at some point reach the public domain and become widely
accessible with no restrictions on use. The point was never so that
companies could make money for decades or centuries. That notion, I
suspect, would have been completely foreign to our nation's founders to
whom copyrights were there to ensure that a book or other work would have a
single "official" source. It is only in the 20th and now 21st century that
these tried and true foundations of our republic have been co-opted by
corporatists who have the ability to convince legislators that
protectionism and monopolization is what the founders really intended.
It's all nonsense, and it is indicative of just how corrupt our system of
government has become and how few people really understand it. The RIAA
lawsuits are a consequence of public policy gone awry. Technology forces
change. The RIAA can resist that change all they please, but in the end,
they are only hurting themselves--the next generation of file swapping
systems will not allow the RIAA to track users so easily.
I, for one, think we should encourage the marketplace of ideas, even if
this means that record companies have to alter their revenue models.
Ben Brunk
Date Tue, 9 Sep 2003 110748 -0700
Mime-Version 1.0 (Apple Message framework v551)
Content-Type text/plain; charset=US-ASCII; format=flowed
Subject reply to James Maule
From Harry Shearer <harryj () interworld net>
To declan () well com
Such a bad analogy. What distinguishes music and its industry from
other pursuits--like building a model train exhibit in your barn--is
that, for more than sixty years, the music industry has been giving its
product away. In some cases, as with radio airplay, it had to be
dragged kicking and screaming (recognize that behavior?) into
acknowledging that airplay was a promotional bonus to record sales, in
other cases, less documented but no less true, the industry has given
away caseloads of "product", with no payment of the royalties to
artists, to those whom it wished to flatter or cajole, including its
own underpaid employees. It's a full thirty years since FM stations
started advising their listeners to "start your tape machines" as they
played full-length albums on Sunday nights, with the connivance and
cooperation of the record companies (artists not consulted). Ask the
septuagenarian R&B artists who have to depend on the Rhythm and Blues
Foundation for their medical expenses how sensitive the industry has
been over the years to artists' rights. The industry dug its own grave
and it wants to blame us for its demise. Worse yet, it wants to sue us
into saving it.
From Monk <monk () redneck gacracker org>
To declan () well com
Mr. Maule's argument has a fatal flaw, this comparison of a song and a barn.
Does he have the right to pass on the barn to his heirs? Of course. But it
is not an issue of the barn being built, but of the land on which it stands.
This is the difference that the writers of the US Constitution understood
but which he seems to miss.
Monk
sw
----- End forwarded message -----
-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
-------------------------------------------------------------------------
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
Like Politech? Make a donation here: http://www.politechbot.com/donate/
-------------------------------------------------------------------------
Current thread:
- FC: Many, many replies to Jim Maule's defense of Prestwood, RIAA Declan McCullagh (Sep 11)