From: Mike Lorrey (mlorrey@datamann.com)
Date: Wed Jun 19 2002 - 20:38:04 MDT
0F78CF.EC749368@datamann.com> <20020618230126.GA9735@piclab.com>
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Lee Daniel Crocker wrote:
> >
> > It sure does. How else would you have ever known of the song you wish to
> > perform unless a) you wrote it yourself, or b) you either bought a
> > copyrighted recording, or copyrighted sheet music, or a combination
> > thereof. You were therefore provided a service by the original copyright
> > holder, purchased under a commercial arrangement and in a form where the
> > term "Copyright" was present on the product sold? It was your caveat
> > emptor responsibility to inspect the item for any sale contract
> > covenants/codocils/clauses, and to either accept the contract or refuse
> > the sale.
>
> I have no problem with contracts--but you and I both know that copyrights
> and patents are not contracts. You've tried to argue this nonsense
> before; you know it's not true, now stop it. If you want to argue that
> a world where copyrights and patents /are/ private contracts would be a
> good thing, that's fine--I'd even agree totally. But that's /not/ what
> they are now. I didn't sign anything, ever. And I can in fact violate
> plenty of copyrights without ever buying a copyrighted recording, book,
> sheet music, or other medium for which it can be reasonably argued that
> I consented by some implied means.
To receive objects from someone other than the owner or his agent, when
the owner's name is plainly printed on the object, for free, is
accessory to theft and receiving stolen goods.
The only way you could violate a copyright without ever buying a
copyrighted recording, book, sheet music, or other medium is if you
created an identical work (or reasonable facsimile thereof) of a
copyrighted object without ever having heard, read, or observed the
copyrighted object, and can prove it in court. This is not unheard of.
There are copyrights on building designs where two architects designed
nearly identical appearing buildings independently of each other,
copyrighted their designs, and could prove their independent origins,
and were thereby awarded shared ownership of the copyright.
One other possible exception is radio and television broadcasts over the
air, which are sent out for free to the public. Radio broadcasters deal
with this by copyrighting each entire broadcast day, as they state
either first thing in the morning, or when they go off the air at night.
They pay royalties for each song or other performance broadcast to their
respective owners, and advertisers pay for your right to listen and/or
view the broadcast, subject to the broadcasters restrictions. Television
broadcasts generally include a copyright statement in the credits of
each show.
Of course, if you get cable or satellite broadcasts, agreement to the
copyrights of every holder broadcast via those media is included in your
satellite or cable contract.
>
> > Derivative works are allowed within the 'fair use' loopholes. I can
> > write a satire song (like Wierd Al Yankovic does) using the entire score
> > of another person's song. I can patent a device which combines two or
> > more patented devices in a way not envisioned by the inventors of those
> > other devices.
>
> /Some/ derivative works like satire are fair use. That's an example of
> why we certainly need loopholes like that if we have the law. But some
> derivative works are still illegal, like translations, abridgements,
> collections, and others. We could make more loopholes for those, but
> the necessity of even a few should make one question whether the law
> was a good idea in the first place. Patents are even more restrictive.
> You can indeed patent a devie that combines earlier patents, but you
> still can't make and sell the device without licenses from both (though
> you do now have the slight bargaining position that they can't sell
> your combination gadget without a license from you). In fact, that's
> why a lot of big companies take out patents--not because they're of any
> use in themselves, but they serve as bargaining chips for reciprocal
> license agreements with other companies. Such "defensive patents" are
> also evidence that the original idea was pretty bad to start with.
>
> > Your ignorance of the law is showing, as well as your lack of reading
> > comprehension. I never said you can't build AND SELL a patented device.
> > I said that I can build any device ever patented, for my personal use
> > and for the non-profit use of family and friends. I can sell any device
> > with an expired patent.
>
> That's true, but I still have yet to hear in any of this exchange a
> rational reason for this restraint of trade.
>
> > As for copyrights, there are laws describing what a copyright is, but
> > that is separate from what I was describing. If I create a song, and
> > copyright it, and then sell copies of that song *with* the notification
> > attached or embedded in it that it was copyrighted and in what year and
> > by whom, then any commercial transaction, i.e. a 'sale', of a copy will
> > involve that copyright notification forming a part of the sale contract,
> > and if that is the only written document involved in the transaction,
> > then it has the weight of a written contract over a verbal one.
>
> The copyright exists whether you claim it or not. Notificaton and
> registration are both completely irrelevant and have been since the
> Berne convention. Registration only allows you to sue for more money.
> Like I said, I don't have much problem with shrink-wrap licenses and
> other kinds of implied or understood contracts, although even those are
> problematic when it comes to third parties. For example, what happens
> if someone inherits your collection of tapes, which you have legally
> made from albums you purchased and later lost? Your heir has never even
> seen the albums, so how can he be bound to license terms that were
> printed on them? What I have a problem with is (1) Restrictions imposed
> by government fiat, and (2) restrictions that have not even a semblance
> of rational basis, like protecting the copyrights of Walt Disney decades
> after his death.
>
> > [Speaking of China]
> > Thus piracy creates a high barrier to entry in a market that can only be
> > overcome by those with large capital resources. Ergo, piracy does not
> > improve competition, it stifles it.
>
> That's an interesting contention. I'm not sure I buy it, though. I
> suspect that a "Mom and Pop" software company would have an advantage
> because they have less investment to recoup. But of course one can
> only say that lack of IP stifles competition if you define away selling
> copies as competition, in other words, if you assume what you're trying
> to prove. Without IP, mom & pop can compete with Microsoft by selling
> Microsoft stuff, perhaps with some home-grown small improvements and
> patches they've made (maybe bug fixes or customizations) and with their
> own support contracts. Of course Microsoft would be less inclined to
> invest in the production of something anyone could sell, but they too
> would know the rules of the game ahead of time, and would only invest
> where they thought they could make money under those rules.
>
> > > I'm sure you'll respond that they would make more with IP. That might
> > > be true. And farmers make more when the government subsidizes them too.
> > > But that's no excuse for subsidies, and I don't buy it as an argument
> > > for IP either.
> >
> > Farmers would make more when squatters are prevented from occupying
> > their land (i.e. when environmentalists stopped telling them what they
> > can and can't do with their land).
>
> Totally irrelevant, and of course I agree completely. Bringing up
> stuff like this is just wasting time.
>
> > [Public goods argument]
> >
> > This is a valid argument, although your derision at the end is countered
> > by the fact that if a patent is crap, then nobody will bother to pirate
> > it, so it's enforcement costs will be nil as well.
>
> True, but administration still costs money, and there's the HUGE cost
> of the straightjacket put of further innovations by the fact that companies
> have to hire lawyers to sift through all the patents to make sure they
> aren't violating any. That's just a subsidy for patent lawyers.
>
> And I'm surprized you just blindly accept the argument anyway. Isn't
> the "public goods" argument uniformly rejected by most libertarians for
> everything else? I certainly reject it, as does Friedman and others.
>
> > This is also valid, though your caveats are answered by the historical
> > record, where cascade effects of technological development have only
> > occured where there have been statutory IP protections.
>
> Oh, you mean creative bursts like the Renaissance? Oh, wait, no IP
> there. I assume you mean the American industrial revolution, but even
> there that's a slim argument.
And the British industrial revolution, as well as the few scattered
periods in history where patents existed by royal grant.
> The present state of copyright and
> patent law is much more recent than most people think--we've had /some/
> form of IP law since the early 1800s, but it didn't even apply to things
> it applies to today (like music, for example), it was much more limited
> in duration and scope (we didn't recognize international coprights, for
> example, until much later, and we didn't sign the Berne convention until
> 1980). But even then, the argument is somewhat post hoc ergo propter hoc;
> just because we happened to have some IP law during that time is little
> reason to give it credit unless you have specific reasons to. Sometimes
> there is specific reason not to: for example, the big Swiss and German
> drug companies that lobby for stronger IP today were all created because
> of a lack of IP--Bayer, Bristol-Meyers Squibb, and Ciba-Geigy all became
> big companies by manufaturing drugs somebody else invented.
As I recall, they became big as a result of abrogation of patents from
enemy countries by governments during wartime. As such, they got their
start by looting.
> Walt Disney
> may have created Mickey Mouse, but Disney coroporation became a giant
> from profits on movies based on public-domain stories like Snow White.
Yet its rendition of the story as an animation was copyrighted.
> > IP is art, whether it is a gear design or an oil painting or a building
> > blueprint. It has always been a moral principle that someone who copies
> > another persons original works of art is nothing but a cheap
> > counterfieter, lacking in imagination, inventiveness, trustworthiness
> > and respectability. I am not surprised that these adjectives are so
> > easily applied to the average napster user.
>
> Actually, that's never been a moral principle until recently. The great
> masters of painting and sculpture copied each other all the time--it was
> always considered the normal state of affairs. Homage, collage, and
> re-interpretation where quite respected.
Actually, the masters had their apprentices train by copying their or
other masters. This is still done today as a training method, but such
works are not considered art, and were not. The masters of the
renaissance period produced many similar works generally because the
primary market was limited to a limited range of subjects, generally
biblical or greco-roman mythological in nature, but each artist would
generally paint with their own interpretation, and these scenes could
all be considered 'public domain' as much as the Snow White fairy tale
is. You don't seriously claim that any of the great masters made IP
claims on the Bible?
The only real 'works of art' are those which are original. Copies are
not art, and copiers are not artists, and as such are not entitled to
the artists claim on the the ingenuity component of the value of the
copy, since each copy steals value from the original, as artists who
make living cash off of limited edition copies of their works learn in
the long run.
>
> > Dissolution of IP by pirates and counterfieters propagandizing against
> > IP is as much an erosion of liberty on the economic front as other
> > subversive organizations and individuals try to erode liberty by sowing
> > mistrust, fear, uncertainty, and doubt in individual political freedoms
> > like speech, association, bearing arms, travel, etc.
>
> That's just so far from any ration definition of "liberty" I can
> imagine that it's laughable. IP is the erosion of liberty; it is
> copyright which is an affront to free speech, and patents which are
> an affront to free enterprise. "Liberty" is about being allowed to
> do things, not about forbidding others to do things. Whether or not
> it's a good diea to forbid some people to do things can be argued, but
> calling that "liberty" is utter nonsense. Throwing unrelated concepts
> into the word "liberty" cheapens the real meaning of the word.
Liberty is as much about forbidding others to do things as it is being
allowed to do them. It is about erecting fences around individuals that
state "you can come this close, but no closer". You can swing your fist,
but are forbidden to strike my nose with it without good reason. That is
forbidden. Without that stricture, fist swinging as a liberty is seen as
a negative good.
IP is a defensive fence around the individuals mind to defend individual
ingenuity from the fist swinging of unimaginative schoolyard bullies.
>
> > Just because 'most people' would benefit from eliminating IP doesn't
> > make it right, it only illustrates that 'most people' are unoriginal,
> > unimaginative, uninventive hangers on. The purpose of natural law is to
> > exclude some liberties from public confiscation based on utilitarian,
> > security, or other arguments. IP is no different than speech, bearing
> > arms, or other individual rights that IMHO should be exclusive of
> > confiscation by popular vote.
>
> I actually agree with most of those words even though they're a bit
> twisted around. I don't care either whether most people would benefit
> from elimination of IP--I;m not a populist either, and I too believe
> that right and wrong should not be subject to the whims of majority
> rule. I reject IP law because it's morally wrong. I don't care one
> way or the other who it benefits. But it restricts freedom, and freedom
> is something I fight for.
Freedom for who?
> IP is the exact opposite of speech--IP is a
> muzzle, preventing speech for the supposed utilitarian reason that it
> encourages more of certain kinds of speech we want, i.e., "creative"
> work. Whether that's a good bargain or not is debateable, but I totally
> reject any attempt not to honestly call it what it is--a restriction on
> freedom for for pragmatic reasons.
Are laws against murder a pragmatic restriction on your right to keep
and bear arms?
> I also reject pragmatism, but I'm
> willing to listen to pragmatic arguments. I'm not willing to listen
> to wholesale re-definition of simple terms like "liberty" to the point
> of absurdity.
Yet the whole argument of the looters is total absurdity. Lets face it,
less than 1% of the people are the ones actually responsible for
creating our civilization, growing it, advancing it, improving it, one
day at a time. Everybody else does nothing else but the 'details', the
drudge work, the sweating and bean counting that turns great ideas into
reality for the masses. That one percent are an economic specialization
acting as a yeast without which the beer of civilization will not
ferment, but will remain nothing but stinky sugar water. Anti-IP
arguments are arguing that the 99% percent shouldn't have to pay the 1%
for making the alcohol and CO2 that give life fizz and buzz.
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