Jonathan Band Flogs Fair Use

Recently, on the CCIA’s Project DISCO blog, Jonathan Band wrote a post that could make a person spit out the ol’ ball gag, if you know what I mean. He tells readers that the best-selling, S&M trilogy Fifty Shades of Grey, with film adaptation opening this weekend, exists thanks to the principle of fair use, a component of U.S. copyright law.  While one must submit to the truth that Fifty Shades’s started as a work of fan fiction, derived from the source material for Stephanie Meyers’s Twilight series, one must also bristle at the manner in which Band is trying to insert fair use where it doesn’t belong.  Specifically, there cannot be a question of a fair use if there is no use in the first place; and author E.L. James (Erika Mitchell) did not use any works protected under copyrights belonging to Stephanie Meyers. To the contrary, James specifically revised her original fanfic into what became Fifty Shades in order to avoid any content that might infringe, and this stands to reason because publishers aren’t that stupid.  So why is Jonathan Band fetishizing the principle of fair use here?  And is there a safety word one can utter that will get him to stop?

In fact, now that I’ve gone there, perhaps this is the central point of this rebuttal:  fair use is not a safety word. It is not a term one can just incant in order to stop all potential claims of copyright infringement.  Even a use that is allowed by a rights holder does not become “fair” by virtue of that permission.  Fair use doctrine is a very important, but very specific, aspect of copyright law, and it’s worth noting that the United States has the most liberal application of the principle among nations that maintain strong copyrights.

In simple examples, fair use wants to protect the right of one speaker who may use a work in order to criticize, comment upon, or parody that work.  These are not the only applications of fair use, and there are four criteria applied by judges when hearing a fair use claim as a defense against an infringement claim. But absent an actual dispute over infringement, fair use is often patently obvious or utterly irrelevant. And the case of Fifty Shades of Grey, the fact that there is no conflict between Meyers and James has nothing to do with the doctrine. These authors, and authors everywhere, professional or amateur, are free to remix the beauty and the beast theme to their hearts’ content. The elements which can be copyrighted in the individual expressions are easy enough to avoid plagiarizing, which is why James can begin with a derivative fanfic of Twilight and then revise to create an original work that does not infringe.

But fair use is just one concept that the dungeon masters of the tech industry like to dress up and parade around the blogosphere in order to seduce the public to believe that certain popular works only exist in spite of copyright. Interestingly, Band’s omission of the central fact that E.L. James did not use any protected works by Stephanie Meyers means that he isn’t actually writing a defense of fair use doctrine at all. Like so many blogs and articles of its kind, this seems to be another attempt to broaden one of copyright’s exceptions into some all-purpose answer to all manner of uses where the doctrine may not apply. This can be effective based on the safe assumption that most of us are not attorneys and don’t really know how the law functions.  Hence, as a PR move, Band’s editorial aligns with the tech industry’s interest in selling the idea that all fanfic should ultimately be defined as fair use so that the activity can more easily be monetized without permission of any original authors.

To be clear, this reply to Band’s assertion about fair use is in no way an indictment of fan fiction itself. Many authors welcome the trend and even personally curate sites hosting fan fiction.  It can be a great way to interact with avid readers and fans, particularly of popular series that contain many characters and complex plots and subplots.  But fanfic enthusiasts should not be enslaved to the tech industry’s interests.  Fanfic can and does coexist with copyright law without rewriting the meaning of core doctrine.

There are plenty of great examples of fair use doctrine available, and readers should be at least a bit skeptical when the tech industry picks a particularly weak example like this one to highlight. But I get it. This story wears stiletto heels, has a whip in one hand, and a multimillion-dollar franchise in the other. It’s flashy and alluring.  But editorials like Band’s continue to overuse this false role play in which creativity is blindfolded, bound, and gagged by copyrights.  Quite the contrary.  In fact, copyright is a bit like S&M in this one regard:  if the person being “used” doesn’t grant permission and can’t set limits, it’s called aggravated rape.

ADDENDUM:  I cannot say that I am surprised Twitter lit up a bit because some readers were offended by this final paragraph in which I appear literally to be comparing copyright infringement to rape.  I would never belittle a violent and disturbing crime by equating it with a non-violent one, and I hope readers understand that the S&M theme of this story is what sparked this reference to permission.  I will add that, throughout literature, movies, TV, and journalism, authors have used the word rape metaphorically, including some months ago when Madonna actually said that piracy of her works was “like being raped.” I didn’t even agree with that simile as I thought it was making too direct a comparison.  Take that all for what it’s worth.

© 2015, David Newhoff. All rights reserved.

Follow IOM on social media:

69 comments

  • “At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the potentially infringing references to Twilight characters and plotlines while retaining her original bondage/discipline, dominance/submission, and sadism/masochism themes. She divided this revised version into three novels that were published as e-books by an Australian virtual publisher.”

    Once her work started to get popular she removed the infringing items. Her work was in fact inspired by Meyer, and her original fiddy shades did use elements from Meyers work. It is Fair Use that allowed her to do so and develop a following. The fact that she removed the potentially infringing elements to commercialize HER work is irrelevant to how it was created.

    Without Twilight, 50 Shades does not exist as it does now, that is actually a really good example of why fair use is important.

    • The point you miss is that fair use did not even apply to the original fanfic.

      Let’s start with the basics. All copyright regimes that I am aware of make a distinction between the idea and the expression of that idea. Only the expression is protected under copyright – which is where copyright differs from patents. Clearly, copying a protected expression verbatim is infringement, but exploring the same idea through different expressions is perfectly ok.

      The next basic distinction that copyright makes is between works that are inspired by other works and works that are derivative. The distinction arises from the fact that whilst some works are clearly composed with the knowledge of a pre-existing work and show similarities to the pre-existing work that strongly indicate this prior knowledge, they do not incorporate the expressions of the pre-existing work in any meaningful way (any two books will obviously share the majority of the vocabulary used, as well as many whole sentences, but this will not be sufficient for a finding of infringement, even if one was inspired by the other; such commonalities are merely the result of using the same language and its stock expressions). On the other hand, a work that incorporates identifiable fragments of protected expressions from a pre-existing work will be considered derivative of it – without the pre-existing work, the new work could not be created.

      The fanfic was clearly a derivative work, because it was, well, a fanfic. All fan fiction incorporates protected expressions from pre-existing works, by definition. If a fanfic did not include expressions that are unique to (and thus, protected by copyright) Star Trek, Star Wars, or even Twilight, it would not be fan fiction, as we understand the term.

      Now, derivative works are pretty common – just think of how many books were adapted for the screen and how many movies have seen subsequent novelisations – and we have robust mechanisms for dealing with them under all copyright regimes known to me. The creation or authorisation of derivative works is one of the exclusive rights of the author, therefore anyone who wishes to create a derivative work may apply for a license from the author (as, for example, the producers of the Twilight movies have done). An author may also authorise derivative works tacitly, by declining to bring action against their creators – which is the typical way of dealing with fan fiction these days – and this is exactly what Meyer had done (had not done?) with regards to the fanfic that became Fifty Shades.

      At no point, so far, have we even approached fair use.

      The piece of fan fiction in question was a derivative work, tacitly authorised by Meyer – presumably, as long as it retained its status as a not-for-profit labour of love. Note that this tacit authorisation could have been withdrawn at any time: for instance, had James attempted to publish the fanfic for profit. If Meyer brought suit at this point, it seems almost certain that a court would find the fanfic infringing as an unlicensed derivative work, leaving James and her publisher liable for potentially massive damages.

      Only if such a suit were brought, however, would we have a chance to test whether the fair use defence could be applied and, frankly, I am sceptical. The purpose of fair use, as written, is a fairly narrow one: to allow people to talk about protected works. Any discussion of a copyrighted work that involves demonstration must almost certainly trigger infringement claims, because it is impossible to quote an author’s work without copying their protected expressions. The “fairness” of the use consists in the fact that the use was not meant to compete with the original author’s work or to exploit value that the author has created for one’s own profit (as a published fanfic would), but was necessary in the context of a very different endeavour – namely, discussion of the work.

      In our hypothetical scenario, James would be welcome to make the argument that her fanfic constituted a commentary on or criticism of Twilight (maybe even a parody) and if she could convince the court, her use would be deemed fair. On the other hand, if it were clear that the purpose of the fanfic was merely to capitalise on the popularity of Twilight, she’d be liable for infringement. This really isn’t rocket science.

      The existence of Fifty Shades has exactly fuck all to do with fair use. Deriving inspiration from a pre-existing work is not fair use – because it’s not an infringement to begin with – nor is the creation of a derivative work that is authorised by the copyright holder (if only tacitly) – precisely, because it is authorised (and, typically, licensed).

      • Fan fiction can be classified as transformative use. She used characters from an existing work in a different context, as does most fan fiction.

        Even if Meyer had been against the original fan fiction, it could have been considered fair use in regards to this property alone. Transformation is a subset of derivation.

        The point being, regardless of copyright, regardless of Meyer’s wishes, the work from which 50 Shades is derived, would qualify as transformative work, and fair use COULD have been argued were there an issue. Meyer could not have stopped her from creating fan fiction, maybe selling it, which is why it was modified to eliminate all aspects(other than being poorly written) of the material that inspired it.

        The sourced author may not have been 100% on point, but he was not completely off base either.

      • You’ll note that transformation is not, in itself, sufficient grounds for a finding of fair use. All derivative works are transformative – that’s what distinguishes them from verbatim copies – but that does not make all derivative works fair. Indeed, the fact that creation and authorisation of derivative works exists as a separate right means that all derivative works are presumptively unfair – fair use must be demonstrated during legal proceedings.

        Fair use could apply to the fanfic, I suppose, though I find it unlikely. All sorts of things could happen. We’re discussing facts as they stand, however, and we have absolutely no reason to presume that a court would find fair use apply to this particular case.

        (Aside: Copyright does not empower anyone to stop the act of creation, nor do copyright owners have the means to enforce such a provision, even if it did exist. The only thing that matters, as far as copyright is concerned, is the act of publication.)

        To invoke Fifty Shades as an example of fair use is pure intellectual dishonesty. It is not a use in any meaningful sense of the term. It is a wholly separate work, albeit drawing some inspiration from Twilight (I’m not in any position to judge how much is left in the published book).

        The fanfic that served as a basis for Fifty Shades is not an example of fair use, either. The default state for fan fiction is that it is infringing, unless authorised – because it is a derivative work. It may be found to be fair use after meeting the requisite criteria, but that is an exceptional circumstance. Since the matter has not been tested in court (recall that fair use is an affirmative defence in an infringement suit, not a fundametal right as some would have us believe), we must presume that the fanfic was either:
        a. infringing,
        b. authorised (tacitly) by Meyer – which I believe is the case here.

        The funniest thing is that Fifty Shades actually offers solid evidence that a narrow reading of fair use – as outlined by me – does not stifle creativity. More than that: it actually encourages it. Had James been free to publish or otherwise monetise the original fanfic, it would be little more than a footnote to the Twilight franchise. Being unable to do so, she had to substitute her own creativity for the parts she had lifted from Twilight and thus created a work that achieved major success on its own merit. If James had kept the fanfic to herself, I seriously doubt anyone would have guessed the Twilight connection.

        Which is how it should be.

      • Not to pile on, but thank you, Faza. This is part of the point of the original post — that Band is guilty of promoting this idea that we can all tell what’s fair use just by looking at it and applying some vague notion of transformativenss or parody or whatever. As you rightly point out, transformativeness does not automatically brand a use fair. There are four criteria for making the judgment, though certainly creating a new work is the first rule, followed closely by an assessment of how much of the original work is being used.

        Regardless, unless there is a case of claimed infringement and unless you’re an attorney on either side of that case, bringing up fair use is silly and misleading. I should have made this point stronger in the post, but Band is either being naive or offensive by focusing on fair use here. He works for the computer industry, and that’s fine. But why not write a piece about how cool fanfic can be and how it spawned 50 Shades and all the benefits it produced? That would be a good article. Instead, his choice to inaccurately invoke this exception to copyright shows the political agenda pulling the strings.

      • David – you have to remember that comparatively few in the ‘software industry’ are writing end user code as their day job. Most of them are writing code within enterprises to extract and manipulate that enterprise’s data. So most of them never see their work pirated and their livelihood threatened as a result. My son-in-law works as a software engineer for a UK University. He writes systems to facilitate MOOC within the University. Previously he worked on the Universities student enrollment system. Most software people are in similar positions. Their work is non-commercial and of little relevance outside of the environment they work in. No one is going to be pirating their perl scripts. For software that was once sold directly to end users, that has mostly migrated to subscription services which require an internet connection and continuous verification/snooping on the users. Oddly you won’t hear much about the snooping from the Google App store shills and others that are tied up with the likes of Adobe, Apple, and Game software.

      • Anonymous —

        On the “allowed use” thing, that’s what I was saying, though you may not like my choice of words. I think there is an effort to confuse the general public by spreading terms around like “fair use,” and I was trying to make clear that even something like fanfic, which an author might support, has nothing to do with fair use doctrine.

        Likewise, I recognize that plagiarism is its own animal. In this context, though, I thought it was an appropriate verb for the non-lawyer reader. Perhaps it’s not helpful.

        As for the S&M metaphor, I got myself in enough trouble with that one and probably should have written a more detailed explanation. The image in my head is actually one in which the boundaries and permissions are actually varied and even elastic, but what holds them in check is permission.

        On leases and exclusivity, you’re right of course, but I don’t think leases are a good metaphor because you may not treat a leased property as yours in many of the ways that you may treat copyrighted material. You are entitled to keep people out of your home, including your landlord, but you may not sell the home or alter it without permission or base most businesses out of it or sublet to other tenants without permission or borrow money against it, etc. because it is not your property.

        I know you remain focused on the constraints of copyright, but there is simply no evidence to support the premise that there are works not getting produced because of copyrights. 50 Shades is a great example of a symbiotic relationship between new technology and working around copyright to publish a new work, and the public benefits, at least financially, from two successful franchises. And I’m sure the sex toy industry is thrilled right now. But as I said in the post, both James and Meyers are retelling Beauty and the Beast, and nothing constrains the next author with a new variation from doing the same thing.

  • TheAngryVillager is probably right here. It’s the original fanfic that was potentially infringing, not 50 Shades of Grey. I’m less convinced that it would have passed a fair use defense though. I’m not sure either way; fanfic is largely untested legally.

    All this is kinda immaterial though. Because the main reason that the original fanfic was always going to be fine is because Meyer chooses to be very tolerant of fanfic in general. (She even links to it from her site sometimes).

    Actually, much like the Spectrum gaming community, I think what this most demonstrates is that often there’s no need for the law to get involved. Assuming everyone is feeling sensible, this stuff is often resolved just by a dialogue between creators and fans.

    • Actually, as Hart points out in his post linked from this one, fair use still isn’t the applicable doctrine here. Derivative works don’t necessarily have anything to do with fair use. The fanfic itself was a use allowed by the author in that context, but even that does not raise any of the criteria for fair use if in fact there were a conflict. And no matter what inspired 50 Shades, its existence as a successful product also owes nothing to fair use. Authors are inspired by existing works all the time and then write their own variations on certain lessons or themes acquired. As I say, both Twilight and 50 Shades are variations on Beauty and the Beast, of which there are many. If Band had written a post about fanfic inspiring a writer to create a whole franchise, that would be a solid and factual celebration of how his industry plays a positive role, but fair use just doesn’t apply here.

    • A number of authors are indeed tolerant. But sometimes commercial lines are crossed and fair-use does not count.
      http://online.wsj.com/public/resources/documents/potterdecision.pdf

  • Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Ergo, copyright is not property. That is all.

    • Wendy, while I appreciate that you have a point of view, this is precisely why it is somewhat fruitless to debate the question of copyright as property with you, let alone do so on Twitter. Here you are, an amateur arguing with another amateur and citing a third amateur. By contrast, I sent you a lawyer’s perspective via Twitter that critiques a pair of legal scholars on the very question you’re raising; and unless any of us really has the expertise to add something to THAT conversation, it really is just noise.

      Argue that copyright doesn’t serve artists, and I’ll get into it with you (though this blog is full of responses to that notion), but the point you’re raising about copyright as a property v copyright as a government granted monopoly is in fact complex, as Hart’s article implies, given the case law he cites. I am not fully qualified to argue for or against your opinion at the constitutional level, but I suspect you aren’t either. And I know Masnick isn’t. When artists, for instance, testify before the House Judiciary Committee on copyright review, nobody asks them for their legal analysis or to make a case why the courts support or reject their positions. They talk about business, about the creative process, about culture, about piracy. That’s what I do and probably what you should do unless you’re actually a legal scholar. And if you are, you should debate other legal scholars.

      So, if you want to make an argument from a layman’s perspective as to why you feel copyrights are not property, by all means, proceed. So far, you have only said it isn’t property because it isn’t; and to date, the courts and nearly the entire history of transactions based on copyright disagree.

      • Whether or not courts and legal scholars call copyright “property” may indeed be meaningless.

        But we have to avoid sliding inconsistently between utilitarian reasoning (“copyright serves society”) and the “entitled to the sweat of his brow”-reasoning (“it’s unjust if artists are not compensated if others enjoy their work”).

        It’s absolutely clear from the phrasing of the copyright clause that the founding fathers regarded copyright only justified by utilitarian reasoning. They didn’t care if copyright served artists.

        Now, copyright clearly comes at some costs for all of us:
        1. It ties how much you can participate in our culture, seek intellectual improvement, education etc. to how much money you have, which is not nice.
        2. The enforcement of copyright costs resources. Law enforcement may have resort to be pretty intrusive tactics to effectively combat infringement which creates a burden on society.

        The benefits of copyright for society are also completely obvious:
        Copyright is the only system (I don’t know any alternatives) which guarantees us the production of a wealth of creative works and in which everybody has only to pay for the works he wants.
        (I do think Lanier-style arguments like “we need copyright for a healthy economy/middle class” are flawed, though.)

        Now the big problem of the utilitarian approach is, that we value benefits and costs differently.

        No matter how much you like copyright, you probably agree that the costs of effective copyright enforcement have increased dramatically with the advent of the information age.
        The fact that a modern hard drive can store seven years of non-stop music really makes a difference.

        Why is it such a scandalous thought, that the costs of copyright now outweigh the benefits for society?

        Of course, “technology changed, so we have to change our ethics” is rightfully not regarded as a good argument (if we could build invisibility cloaks we can’t just conclude that we should equanimously say goodbye to a number of our cherished values, like privacy).
        But that’s not the argument in this case. One just concludes that the fact that a certain technology exists changes the result of the utilitarian calculation.
        And IMHO you have a mountain to climb to still to come up with a compelling utilitarian argument for copyright, nowadays.

        So you have to resort to “sweat of my brow”-reasoning: “Artists have the right to control their work! Case closed! Who cares if copyright enforcement is a burden on society if you are defending justice?”

        But, well, this interpretation of copyright is a “European thing”, not what the founding fathers thought.
        And it is pretty problematic, too.
        Take the idea-expression distinction: Sometimes the idea is EVERYTHING (and this idea might not be protected otherwise by IP laws, e. g. patent law), like the idea how to prove a mathematical theorem.
        Copyright may protect the exact wording of the original proof, but nobody cares for that! Years of hard work but if you publish your results, everybody can use them for free! (And indeed, renaissance mathematicians kept their discoveries secret, secret knowledge was their asset. Of course, today we have a huge, mainly government funded system, with prizes and all, which rewards publication, but you still stand no chance to get rich like Kid Rock from basic research).
        So, why is the artist entitled to the “sweat of his brow”, but not the scientist, mathematician, etc?

      • rarara –

        I’m not going to get into all the philosophical and legal questions your comment raises. Unpacking everything you’ve said would be very longwinded, and I am also not the person to debate on some of those topics. There are blogs hosted by legal experts and scholars far more qualified than I. So, I’ll politely decline to get into the intent of the Framers and the entire history of copyright since ratification of the Constitution.

        But to your central argument that copyright has no utilitarian purpose today due to technological changes, I simply don’t see that argument holding up in practice, which is the only context for judging utility. Simply because technology makes it possible to steal or get around copyrights does not mean they have yet lost their purpose. Authors of works at this moment are entering into transactions based solely on the existence of their copyrights, and that is certainly utilitarian. There is an implication or assumption that technology changes everything — that because the author of a work could use technology to deliver directly to consumers, copyrights have effectively lost relevance; but nothing occurring in the market supports this idea so far. There are basic market forces and social habits, which have nothing to do with copyrights, that may prevent the individual author from truly “self publishing” directly to an audience willing to pay for access to the works. Additionally, there are noncommercial uses of copyrights that creators employ all the time, like not wanting their songs used to promote a particular organization.

        As for the “cost of enforcement,” I’m not sure what you mean. Cost to the rights holder of enforcement or cost to society of enforcement? If the former, that’s up to the rights holder to decide. If the latter, I’ll mention that the value of the core copyright industry is assessed at over a trillion dollars, so I don’t know where the cost/benefit break-even point is on protecting that. Or do you not mean financial cost? I’m just unclear.

        As for why Kid Rock is worth more than a physicist, again I don’t think this has anything to do with copyrights or IP law in general. Kid Rock is worth millions because millions of people want his songs, though I can’t claim to be one of them. An article written by a physicist simply doesn’t set teen toes a tappin’ so it just isn’t worth as much in the market. I’m sure the market buys more paper towels than it buys cancer drugs, but that doesn’t mean paper towels are more important than cancer drugs. The artist is not entitled to anything different than the scientist per se. Both can copyright recorded works. The fact that E.L. James’s S&M trilogy will outsell all of Stephen Hawkings’s books has nothing to do with any difference in their rights. And the more arcane the publication, like a white paper written for other scientists, the less interest the general public is going to have in it. Likewise, both the published scientist and the pop artist are equally vulnerable to unlicensed use, but at a scale relative to their value in the legal market.

      • David,

        thanks for your reply, you misunderstood me, but it was still interesting to read. 😉

        I don’t think that copyright has lost its good sides.

        The problematic part of copyright today is enforcing it against natural persons. Copyright is largely intact and easy to enforce in the business-to-business-sphere (like software industry etc., which is the biggest chunk of the core copyright industries).

        Effective copyright enforcement against natural persons will have serious collateral damage for society (that’s what I meant when I said “costs”). Even if the production of creative works collapses in the future and only a few artists survive on patronage, it may be the lesser evil than effective, intrusive copyright enforcement.

        That’s why it is impossible to make a compelling argument that society is better off with effectively enforced copyright than without.

        The argument that an industry is a benefit for society just because it employs a lot of people is completely flawed.
        For example, many people are employed in coal mining and the petroleum industry. If we discover a clean, cheap, compact, inexhaustible energy source, all those people will become unemployed. But that’s no reason to argue for a law that protects these industries.

        You miss my point in your last paragraph. I try to put it as simple as I possibly can… (warning: the nuance gets lost 😉 )

        Assume copyright exists: People are not allowed to make copies of Kid Rock’s songs and give them to others. So people have to buy them from Kid Rock. Many people want Kid Rock’s songs. Kid Rock gets rich.

        Assume copyright doesn’t exist: People are allowed to make copies of Kid Rock’s songs (assume he still produces them under this conditions) and give it to others. Many people want Kid Rock’s songs, but they just copy it. Kid Rock doesn’t get rich.

        Copyright => Rich Kid Rock
        No copyright => Poor Kid Rock

        Let’s compare Kid Rock to Ronald Rivest, one of the mathematicians, who created the RSA algorithm:

        Assume “Mathematical Algorithm Protection Law” exists: If a company uses the RSA algorithm in their software, they have to pay Ronald Rivest. The RSA algorithm is used in a lot of software, so Ronald Rivest gets rich.

        Assume “Mathematical Algorithm Protection Law” does not exists (which is the case right now): If a company uses the RSA algorithm in their software, they don’t need to pay Ronald Rivest. The RSA algorithm is used in a lot of software, but Ronald Rivest does not get rich.

        Mathematical Algorithm Protection Law => Rich Ronald Rivest
        No Mathematical Algorithm Protection Law => Poor Ronald Rivest

        Why is Kid Rock entitled to have his music protected but Ronald Rivest is not entitled to have his algorithm protected?

      • rarara —

        With regard to enforcement, it isn’t necessary to focus on intrusive measures, though I understand some people will consider just about anything “intrusive.” For the moment, I think if enterprise-scale, for-profit piracy could be mitigated, that would be a positive form of enforcement; and it is not necessary to resort to harsh measures against individual users to achieve that goal. I certainly think it would be both nice and ultimately smart if a segment of individuals voluntarily did the right the thing; and while that may be wishful thinking, it is certainly not a burdensome request. Above all, though, it is not draconian to ask that other corporations — Google, Visa, Master Card — stop profiting from piracy.

        As stated in other discussions, I don’t have any argument with creative destruction. If clean energy wipes out jobs in the extraction industries and migrates some of those jobs to new energy systems, that’s legitimate creative destruction. But if technology fosters a black market that hijacks revenue from a legitimate market in which there is no honest shift in consumer demand for the product, that’s not creative destruction. If the market switches to renewables and stops demanding coal, so be it. If the market switches to finger symbols and stops wanting to listen to recorded music, so be it. But that’s not what’s happening. The products we’re talking about haven’t lost any market value absent the presence of a black market. And where society is losing is in the lower rate of investment in a diverse range of works due to added risk.

        With regard to poor Mr. Ronald Rivest, I can’t claim to know anything about RSA, but algorithms are patentable and software is copyrightable. Google is built on a patented algorithm that made Stanford some $200 million. So, without knowing the story, Rivest is in principle entitled to protect his algorithm, but most likely by patent law not by copyright.

      • It’s absolutely clear from the phrasing of the copyright clause that the founding fathers regarded copyright only justified by utilitarian reasoning. They didn’t care if copyright served artists.

        The same is true of all property. The law has no special care for shopkeepers when it address shoplifting. It simply cares that if it allows shop theft there will be fewer shops and less competition.

        Indeed you see the results in places where theft is allowed to run rife. The commercial activity decreases as competing stores shutter up, the more affluent depart of other places, leaving the remaining residents of such places with a few shops selling low quality goods, at high prices, and with little variety.

      • David,

        1) Sensible idea to stop the money flow, will reduce infringement somewhat. Would it reduce it drastically? I doubt it. Who cares if you drive people to non-commercial file-sharing software (like Tribler) and mass copyright infringement continues?

        Eventually you just have to go after individuals. And you need very problematic legal constructs (like Hadopi), which blur the distinction between criminal and civil law, to do that effectively: The state does the pirate-hunting for you, but can punish the innocent Internet subscriber for his pirating family members!

        Ok, few still pirate music anyway, as you know of course, since it’s given away nearly for free.

        So another example: You want people start paying for music again. Providing an “all you can eat” streaming model for a modest fee doesn’t seem sustainable. Increasing that fee very probably doesn’t work, too. Better to limit the number of songs which can be played (like 100 plays for 10$/month) and to allow users to
        a) buy more plays or
        b) buy a certain song which then can be played unlimited times, forever, free of charge.
        Very sensible model. But, oops, people might use stream-ripping! Few people do stream-ripping now, but that will change if you wanted to implement a more sustainable pricing scheme. What then?

        The core problem is always the same: controlling digital data has become very difficult.

        2) I didn’t say that piracy was “creative destruction”, that would be silly. Only that we can’t justify laws, including copyright, by the number of jobs that depend on it.

        3) Mathematical algorithms aren’t patentable themselves (see Gottschalk v. Benson). But even if they were, come on, please, you get my point!

        Scientific discoveries are not protected by any IP system.

        We could concoct a system where scientists retain control of their discoveries after publication and could sell “licenses”. Basic research could then become completely privatized and a kind of market would emerge. But the burden to society to enforce such a system would be immense, it would be utterly impractical.

        Here is a nice quote (J. Neubüser):
        “You can read Sylow’s Theorem and its proof in Huppert’s book in the library without even buying the book and then you can use Sylow’s Theorem for the rest of your life free of charge, […]”
        “In mathematics information is passed on free of charge and everything is laid open for checking.”

        Artists: Copyright protects their “fruits of their labor”, can control and sell their work.
        Scientists: “Fruits of labor” aren’t protected, can’t be controlled, are given away for free.

      • rarara —

        People on both the producing and consuming side like legal streaming services, but the business model and rates have yet to be satisfying. Though Pandora’s ability to push for absurdly low rates is, in part, thanks to piracy holding a gun to creators’ heads. But, in principle, people like the idea of streaming services as a solution. As for targeting individuals, it’s too hypothetical and varied at this moment based on region to really go there. US really isn’t “going after” individuals at the moment, the UK has six-strikes, which is targeted but hardly draconian. Each country approaches the matter differently. As for the U.S., where is the state doing the hunting? At present, copyright holders themselves use the very weak DMCA to essential beg people to not infringe. Nobody’s being hunted.

        “We can’t justify laws by the number of jobs that depend on it.” Why not? If a system produces social benefits, then maintaining that system can be justified. If a system stands in the way of social benefits, it should be altered or removed. If indeed copyright’s pros outweigh its cons, then why is it not justifiable to maintain it? If you want to prove the opposite, you may try to do so, but you’ll have to actually prove it. The law that created the NTSC standard for television was technologically regressive but socially progressive at the time, and it is now effectively obsolete due to technological change. So? Laws change or disappear as needs change, but I don’t see how your generalization can be supported. We should not have laws that stifle progress, but copyright doesn’t actually do that despite what Google says. Maybe it stifles Google, but I’m okay with that.

        Regarding scientists, maybe I don’t get your point. I don’t know the legal distinctions between a mathematical algorithm and the Google search algorithm — why one is patentable and one not. Perhaps I’ll educate myself on that subject if I get time, but what is your larger point? That you would like to see IP protections extended to the mathematician and scientist that they presently don’t enjoy or that you’d like to take away IP protections from artists in the interest of “fairness,” because what artists do isn’t as important as math and science? I am reasonably confident that my copyright and patent attorney friends would have detailed answers for what is and what is not protectable in math and sciences, but I just don’t. I am also not a mathematician or a scientist, so I can’t even comment in practical, non-legal terms on the subject.

  • If that is true, why isn’t copyright perpetual yet? It started out as

    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.

    at a term of 14-28 years. Now it’s life + 70yrs in the EU and USA, life +100 yrs in Mexico.

    I’m eating a plate of chicken and veg right now. I own the plate. My ownership of the plate is not limited by anything at all, it’s my plate. I can sell it, give it away, or post photos of it online and all without asking permission because it’s my damn plate.

    Ownership is, by nature, perpetual; the clue was in the limited time granted to Authors and Inventors.

    Appealing to authority doesn’t work with me; I see a blatant attempt to cast me as one who tries to pass herself off as an ornithologist because she described the differences between a duck and a goose. I’m not. I’m simply jerking my thumb at the US Constitution and asking a simple question: how did a clause designed

    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.

    become a property right? You’d have to get rid of Article I, Section 8, Clause 8 altogether by means of a Constitutional amendment to stop all the arguing; I wouldn’t have a leg to stand on if you managed to persuade your representatives to do so and it’d stop any more talk about the public domain and fair use. Because it would be actual property in that case.

    • No modern ownership is perpetual, it probably never was. It is ringed about by all sorts of regulations and limitations.
      http://www.ukmove.co.uk/leaseholdinformationfreehold.html

      The money in your bank account may not be yours either.
      http://money.cnn.com/2013/03/19/news/economy/cyprus-russia/index.html

      Even with a Freehold (and there is also Leasehold Property) the State can come along and compulsory purchase your house. A business can come along buy up the stocks and shares in a company you have shares in and force you to sell your shares at the rate that others have decided on your behalf.

    • I’m not trying to pass you off, but you presume that citing the clause leads to one rational conclusion, while it really doesn’t. I personally think the language in the 2nd Amendment makes it null and void today, but quite a few Americans disagree with me on that subject. Regardless, your assertion is that the “limited time” language in the clause implies that it is not property. Do you have the case law experience to back that up? Because I will freely admit that I do not have the case law experience to refute it. Interesting, though, that you don’t want to “appeal to authority” but are convinced that you not only know the will of a handful of 18th century men, but that their will remains immutable.

      Again, I can speak to the value of copyrights for individual creators, and have done so — a lot. On the property question, though, I humbly have no choice but to refer to the decisions of legal authorities. You are entitled to feel you know better. I make no such claims. Even when I agree or disagree with a court decision, I rarely can claim to have full, contextual, legal authority behind my opinion. I don’t like the Citizens United decision, for instance, but having read the transcript, I cannot entirely argue with many of Justice Scalia’s points. I am confident that I could not write a proper dissenting argument that would be taken seriously at that level.

      So, in a layman’s context, what you create is yours. What I create is mine. Many of us feel this principle is both just and civil. And so did the founders, schooled as they were in the Enlightenment. So, they established a mechanism, which treats certain works as the property of their authors, renewable up to a duration that was pretty long relative to life expectancy at the time. The fact that terms have grown longer has nothing to do with the central question of treating the works as property, and neither does the fact that the terms remain limited. Like your plate, it is a thing — a recorded work that is the property, not the copyright per se. One cannot have a copyright without a work to protect. I fail to see how limited terms makes the works something other than property. What is the real difference between “Ownership of” a thing and an “exclusive Right to” a thing? Do you have an exclusive right to anything that does not belong to you?

      • I’m not trying to pass you off, but you presume that citing the clause leads to one rational conclusion, while it really doesn’t. I personally think the language in the 2nd Amendment makes it null and void today, but quite a few Americans disagree with me on that subject.

        http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
        A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

        What do gun rights have to do with this? Are you planning to shoot infringers? Sorry, I’m not sure why you mentioned it.

        Regardless, your assertion is that the “limited time” language in the clause implies that it is not property. Do you have the case law experience to back that up? Because I will freely admit that I do not have the case law experience to refute it. Interesting, though, that you don’t want to “appeal to authority” but are convinced that you not only know the will of a handful of 18th century men, but that their will remains immutable.

        It says what it says in English, not Latin. It’s not some sacred text in need of interpretation by qualified scribes. Here’s some case law:

        http://en.wikipedia.org/wiki/Dowling_v._United_States_%281985%29

        http://en.wikipedia.org/wiki/Wheaton_v._Peters

        http://en.wikipedia.org/wiki/Folsom_v._Marsh

        http://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co.

        Again, I can speak to the value of copyrights for individual creators, and have done so — a lot. On the property question, though, I humbly have no choice but to refer to the decisions of legal authorities.

        Well per established case law (Dowling), infringement is not theft. Which decisions are you deferring to?

        You are entitled to feel you know better. I make no such claims. Even when I agree or disagree with a court decision, I rarely can claim to have full, contextual, legal authority behind my opinion. I don’t like the Citizens United decision, for instance, but having read the transcript, I cannot entirely argue with many of Justice Scalia’s points. I am confident that I could not write a proper dissenting argument that would be taken seriously at that level.

        Again with “She thinks she’s an expert!” I’m not claiming to be, I’m simply questioning your stance because it seems to hinge on ignoring the Constitution and case laws you don’t like because “It’s mine. Mine, I tell you…”

        So, in a layman’s context, what you create is yours. What I create is mine. Many of us feel this principle is both just and civil.

        A certain Mr. Benjamin Franklin felt differently where ideas were concerned. Notice that patents STILL only last for 10 years, except pharmaceuticals, which can be evergreened. Don’t get me started on that.

        And so did the founders, schooled as they were in the Enlightenment. So, they established a mechanism, which treats certain works as the property of their authors, renewable up to a duration that was pretty long relative to life expectancy at the time.

        Citation? You appear to have forgotten about the progress of science and the arts, and the existence of the public domain.

        The fact that terms have grown longer has nothing to do with the central question of treating the works as property, and neither does the fact that the terms remain limited.

        Copyright maximalists keep pushing term limits up because they’ve persuaded many lawyers, judges, and other law-makers that copyright is property. And that it’s a welfare scheme for authors, a family heirloom, and a goose that lays golden eggs for anyone who holds the rights, whether or not they created the works. Don’t get me started on works for hire. See this justification from a maximalist: http://surprisinglyfree.com/2012/10/16/stan-liebowitz/

        Like your plate, it is a thing — a recorded work that is the property, not the copyright per se. One cannot have a copyright without a work to protect.

        Copyright protects nothing, it gives you the right to sue infringers, that’s it. I blog. Each post is copyrighted by default. However, I wouldn’t take you to court if you copied, pasted, and commented on my Talking Points posts here without asking me first because a) I can’t afford it and b) if you link to my blog or otherwise credit me, I benefit from the traffic. In any case, I might “own” the pattern in which the words are written (I have a rather ascerbic writing style) but the facts? The ideas? They’re up for grabs and even if I was the most grasping maximalist in the world I would have to accept that I can’t own an idea. That’s tough luck on me. If I was a maximalist, which I’m not.

        I fail to see how limited terms makes the works something other than property. What is the real difference between “Ownership of” a thing and an “exclusive Right to” a thing? Do you have an exclusive right to anything that does not belong to you?

        You’ve just described a monopoly, though an exclusive license would achieve the same thing. Note that no ownership is involved, you have the exclusive right to the thing in question until your time is up or the agreement is terminated. If Hello magazine gets the exclusive right to take photos of your wedding, they have the monopoly on taking the pics, publishing and syndicating them. You might have to ask for permission to share them on your social media. Fun!! Meanwhile, if Granny lifts up her mobile phone to take a snap she is gently reminded that she signed an agreement to *not* do that because Hello has an exclusive licensing agreement on the wedding pics.

      • The fact that you don’t understand why I mentioned another example of constitutional language many people believe speaks for itself, yet interpret oppositely, is the reason I have no further interest in pretending this is a “discussion.” That and your inappropriate implication that I wish to shoot infringers or anyone else. There are some very interesting people, including a few experts, who debate on this blog. I have neither time nor patience for your somewhat ranting approach to these issues. The bottom line is I don’t actually care if you support copyright or not, and you’re not offering any fresh or, frankly, well-founded perspective to the discussion.

    • There is a natural law property in the creation of a work. So long as it remains ‘unpublished’. Unpublished works garner far more legal protection than published works. The rationale for the Copyright is to encourage publication, the problem with a perpetual property right is that property can be transferred, and as happens with copyrights publishers buy up copyrights from creators, if the property right was perpetual it would lock the works up with specific publishers for all time. Thus published works have there property right time limited. As it was back in 1705 14 years with a 14 year renewal was a damned long time, as it still was some 80 years later.

      However, “under the 1909 Copyright Act, works that were neither published nor registered did not enjoy statutory protection, although they were protected under common law in perpetuity as long as they remained unpublished and unregistered.”
      http://www.copyright.gov/pr/pdomain.html

      As you can see from the above the encouragement is to publish the works.

      Now one thing that is amusing about the internet, digital works, and the likes of Massnick is that almost none of the stuff that you see on websites is published and as such prior to 1978 would have enjoyed even greater protection than Disney’s Mickey. Publication wrt to copyright requires at least two elements 1) That it must involve an offer of sale, or other transfer of ownership, or by rental, lease, or lending. 2) that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work.

      http://www.legallanguage.com/resources/copyright/publication/

      • There is a natural law property in the creation of a work. So long as it remains ‘unpublished’.

        Citation?

        Unpublished works garner far more legal protection than published works.

        Not since 1992 http://en.wikipedia.org/wiki/Salinger_v._Random_House,_Inc.

        The rationale for the Copyright is to encourage publication, the problem with a perpetual property right is that property can be transferred, and as happens with copyrights publishers buy up copyrights from creators, if the property right was perpetual it would lock the works up with specific publishers for all time. Thus published works have there property right time limited. As it was back in 1705 14 years with a 14 year renewal was a damned long time, as it still was some 80 years later.

        I’d be happy with that, it seems reasonable.

        However, “under the 1909 Copyright Act, works that were neither published nor registered did not enjoy statutory protection, although they were protected under common law in perpetuity as long as they remained unpublished and unregistered.”
        http://www.copyright.gov/pr/pdomain.html

        The Act was repealed and superseded by the Copyright Act of 1976

        As you can see from the above the encouragement is to publish the works.

        Yeah, about that…

        1) the market decides whether a published article is profitable or not and publishers will generally publish whatever makes them the most money, Twilight and 50 Shades being examples of this.

        2) If 28 years is a damned long time, why is a term of almost 200 years okay and how does it encourage publishing. These works are locked up with publishers for a long time. Long terms mean they can keep older works out of circulation so they’re not competing with new ones.

        3) I’m glad you mentioned the fact that this is more about the publishers than the authors, since publishers are the problem, here.

        Now one thing that is amusing about the internet, digital works, and the likes of Massnick is that almost none of the stuff that you see on websites is published

        All digital content is copyright, including my responses here. *Shakes a can* Rent, please. Oh wait, I didn’t check to see if I’ve waived my copyright by posting here. Dang! /s Link: http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

        and as such prior to 1978 would have enjoyed even greater protection than Disney’s Mickey. Publication wrt to copyright requires at least two elements 1) That it must involve an offer of sale, or other transfer of ownership, or by rental, lease, or lending. 2) that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work.

        http://www.legallanguage.com/resources/copyright/publication/

        That’s publication, but even this reply is copyright. Copyright in most countries today is automatic on “fixation” – it applies as soon as the work is fixed in some tangible medium. This standard is established internationally by the Berne Convention (1886), which most countries have signed onto since. http://en.wikipedia.org/wiki/Copyright_registration It’s not restricted to books, films, or professionally-recorded music. Your adorable six-year-old singing “Twinkle Twinkle” while bashing her toy xylophone out of tune is copyright the moment you record it and upload it to YouTube. Thankfully, the Mozart estate won’t be chasing you for royalties if that happens.

      • Citation?

        Find it yourself there are enough pointers in the post, in the text, and in the links.

        Not since 1992

        Not since 1978 as I posted above, but lets stay with 1992. Contrary to the Masnicks and other freetard shills on behalf of Google et al, copyright for the bulk of material posted on websites lasts for a shorter time time period than it did in the 1950s, not longer as the lying sacks of shit claim but infinitely shorter. Nothing you post on a blog is published in terms of copyright, prior to 1978 what ever you posted would have been protected in perpetuity, now only for life plus 70 years.

        since publishers are the problem, here.

        Nope. The commercial worth of copyright resides in the length of time it can be exploited. Most creators sold their copyright to a publisher. The economics of a copyright that lasts 28 years as opposed to one that lasts 56 years gets reflected in what the publisher is willing to pay the creator.

        Of course most creations, such as songs, movies, photos, academic books etc are pretty much worthless after a few years. But those aren’t the ones that are valuable, those aren’t the ones that people are clamoring to enter the public domain.

        All digital content is copyright, including my responses here.

        Irrelevant to whether the property right in the copyright on unpublished material is in perpetuity (pre 1978) or limited (post 1978).

        Copyright in most countries today is automatic on “fixation”

        Listing truisms does not make the conclusions true.

        1+1 = 2 AND Obama is president of the USA in 2015 does not imply that Shergar was a Marmoset.

  • Those things are true of money in banks and houses but the time limits haven’t been addressed in this comment. RE: the English literature link, some of the links aren’t working and many of those works are now in the public domain. Due to copyright NOT being property, there is a public domain.

    Okay, let’s take time out to imagine a world in which copyright is actual property.

    First of all, how would you work it, bearing in mind that all works fixed in a tangible medium (or electronically) is automatically copyright, including my posts here. So… one of this blog’s readers takes one of my posts and quotes either some or all of my comment on a blog of his or her own. That’s a violation, right there, right now, because he or she failed to ask permission from the blog’s owner or from myself. Who owns the copyright, David or me? Both of us? Tut! Whether or not the comment (or part thereof) is on a blog that makes money is beside the point. A violation of my author’s rights has been committed and a pound of flesh is due.

    Well that’s 2015, fast forward to 2515. If copyright is ownership it should be transferable. Therefore, 500 years after my death, the Cockcroft estate can chase that violator down if my blog post comment is copied and pasted in whole or in part without its permission. If David has heirs, and per the TOS of this site he owns a share in the copyright, he can go after them too.

    On what planet is that reasonable?

    http://en.wikipedia.org/wiki/Joan_Shakespeare

    Per this link, we should be paying Joan Shakespeare’s descendants royalties for every performance, every book printed, or anything else containing any of William Shakespeare’s works. That includes Horrible Histories skits because fair use is evil, or something.

    • You forget that all property is the creation of society, its norms, and its laws. Not so long ago you would have been the property of your father until his property right was transferred to another as way of marriage. Society creates property, it uncreates it, and it defines that scope of the rights attached to it. So though you may have been the property of your father he did not have the right to destroy you.

  • But before that he would have, particularly if he was an ancient Roman. Besides, a leased isn’t your property, it’s someone else’s. You just get to exercise control over it, within the limits set by the terms of the lease, until it expires or the agreement is terminated.

    So if, for limited Times, I have the exclusive Right to my respective Writings and Discoveries, I don’t own them, I’m just exercising exclusive rights over them for the duration. Otherwise, how is the progress of science or the arts promoted? The idea was to release it to the public, not pass ownership on. Even the state doesn’t own it if it’s public domain.

  • You seem to be confused, the problem is not that the paragraph is offensive, but that it’s something only an incredibly dumb person would say. Your addendum only helps further the impression, as instead of an apology you give a justification. I can’t even begin to comprehend how you can think you’re qualified to say anything about any subject to anyone really. That you’re trying to, while pretending to be an intellectual, that’s what many people may find offensive.

    • Thank you for your comment. This blog defends the concept of permission in all contexts. Also, anyone who is pro-piracy and claims to be a supporter of women’s rights ought to take a careful look at most of the ads/links supporting pirate sites.

      • Is “pro-piracy” even a coherent view? One can be “anti-copyright”, of course. But that doesn’t make one “pro-piracy”, exactly as being “anti-prohibition” didn’t make one “pro-gangster”.

        And you surely don’t think that some law-abiding professor arguing for the abolishment of copyright can’t also be a supporter of women’s right, because there are some dubious ads on pirate sites, do you?

      • rarara-

        You are correct. And the post itself does not address piracy. That comment was in response to one complaining about the metaphor in the final paragraph. And some of the people “offended” on Twitter over the rape reference also happened to be pro-piracy, so which agenda sparks the response is hard to say. Probably a bit of both, but I do find anyone who claims to be pro-piracy and a feminist to be hypocritical. Those ads are not to be dismissed as mere window dressing. They link to other for-profit enterprises that are at least sketchy and may tie to human trafficking.

        No, Band didn’t say anything about piracy in his post, and I didn’t mention it in my rebuttal. I think you’ll find the pro-copyright posts on this blog tend to stick to the context at hand. That said, it is indisputable that the Internet industry has a vested, financial interest in a world without copyright and that they have at least an interest in looking the other way on piracy. I think it’s 24% of all bandwidth worldwide is consumed for pirate traffic. That’s a lot of mouse clicks.

    • SQUIRREL!!!!!!!!!!

  • RE the term differences between patent any copyrights:
    it can be summed thusly- patents are absolute rights, and copyrights are limited in scope. that I can quote the poster above (quoting for purpose commenting is ahem..fair use.. btw…imagine that! an actual fair use example..) that you can record any published song and sell it (by simply paying the low mechanical license), and any of the tens of other ways copyright is a limited right.

    Patents are absolute, but they require the patent holder to publically disclose exactly HOW her invention works, so the next innovation can be built upon it’s shoulders when it expires, and others can innovate and design around it..today…
    otherwise you would neither get investment nor disclosure…everything would be hidden in the dark via “trade secrets” (ahem google)…and great inventions would never come to market, as there would be no incentive for investors to help an inventor develop ideas.

    Maybe you don’t get how laws are written here in the USA, Wendy, but the Constitution isn’t law, its an outline. I won’t repeat the copyright clause, but that enables Congress TO MAKE THE LAWS regarding copyright. This is born out via legislation, yes, but also case law via the courts. To simply quote a passage in the Constitution to refer to a very complex legal system is like saying its cold out today, so there’s no such thing as climate change… there’s no ‘there’ there…

    we’ve got enough Google payroll posters here than to link to Mike Masnik… of all people, please use your own thoughts and words…

  • David–
    “Even a use that is allowed by a rights holder does not become “fair” by virtue of that permission.”

    Actually, a use that is allowed by a rightsholder cannot be fair. Fair use can only be raised where there is prima facie infringement. Permission means there’s no infringement, so no need to ever reach fair use.

    “The elements which can be copyrighted in the individual expressions are easy enough to avoid plagiarizing”

    A minor nit: Plagiarism is not a synonym for infringement; in fact it commonly isn’t infringement.

    “In fact, copyright is a bit like S&M in this one regard: if the person being “used” doesn’t grant permission and can’t set limits, it’s called aggravated rape.”

    Not at all; copyright law permits all sorts of uses without requiring permission. That this might not be an example of it doesn’t support your incorrect assertion that permission is always required in order to avoid ‘raping’ the author.

    “Do you have an exclusive right to anything that does not belong to you?”

    Sure, it’s called a negative easement. And in fact, that is the type of real property interest that is most similar to copyright. The way that it works is that the owner of the easement isn’t what you’d think of as an owner of the underlying property; instead he merely has a right to prohibit the actual owner from using the property in certain ways. Copyright, likewise, isn’t a right to do anything with a work, but empowers the copyright holder to stop third parties from doing certain things with a work.

    “The lessee never owns the property and does not have exclusive rights, only limited rights.”

    ‘Exclusive rights’ is a term of art; it means a right to exclude. It does not mean ‘all the rights.’ Exclusive rights can be leased. Consider a leased apartment — it wouldn’t be very private if you the lease didn’t provide the lessee with a right to exclude third parties (and under most circumstances, the landlord himself).

    *****

    Faza–
    “The purpose of fair use, as written, is a fairly narrow one: to allow people to talk about protected works.”

    No, the purpose of fair use is quite broad: to allow uses which, if prohibited by strict conformity to the rest of the Copyright Act, would defeat the public purpose of copyright. Essentially, it’s a sort of catch-all relief valve. This is why it’s so vague. Any sort of use can potentially be a fair use, depending on the circumstances. Not every specific use will be a fair use, however, due to the circumstances involved.

    “You’ll note that transformation is not, in itself, sufficient grounds for a finding of fair use.”

    It can be, but it isn’t necessarily. The four factor fair use test is not applied mathematically, where all, or a majority, or even half, must weigh in favor of the use. It’s really just guidance for the court to make the ultimate decision of fairness.

    Consider, for example, time shifting: The purpose and character of the use is simply to use the time shifted work; it’s not transformative. The work in question is often creative. The entire work is typically recorded. But the effect of time shifting a broadcast has no appreciable effect on the market for the work. So even though only the fourth factor weighs in favor of the use, and the other three weigh against it, it is possible to have time shifting as fair use. Space shifting (used to rip CDs into mp3s for use on iPods and such) works out similarly.

    “Indeed, the fact that creation and authorisation of derivative works exists as a separate right means that all derivative works are presumptively unfair – fair use must be demonstrated during legal proceedings.”

    Fair use, if claimed, always has to be shown. Nothing special about derivative works there.

    “It may be found to be fair use after meeting the requisite criteria, but that is an exceptional circumstance. ”

    You have no grounds to claim that it would be exceptional. There’s not enough case law on fanfic as fair use. Not to mention that each use must be treated separately, judged on its own circumstances.

    “Had James been free to publish or otherwise monetise the original fanfic, it would be little more than a footnote to the Twilight franchise.”

    How do you know that? The idea of a good-hearted criminal who helps the underclass is not protected, but numerous adaptations of Robin Hood specifically have been made which turned out to be big financial and critical successes.

    In fact, if you want an excellent example of fanfic that is far more than a mere footnote to the work it is based on, consider Virgil’s Aeneid, a fan sequel to the Illiad.

    *****

    John Warr–
    “There is a natural law property in the creation of a work. So long as it remains ‘unpublished’. ”

    That is unclear, actually. Also, in the US, it’s a moot point; the 1976 Copyright Act preempted the states on common law copyright, and of course there isn’t so much federal common law. The current rule is that unpublished works’ copyright term is limited more or less along the same lines as published works. In fact, there was a deadline for unpublished works; if they were published before the end of 2002, they were eligible for a longer term than if they were not. There was a bit of a rush to publish at the time, but a tremendous volume of works didn’t make it (because no one cared to get the copyrights). The 1976 Act does change term lengths for pre-1978 works, by the way.

    “Now one thing that is amusing about the internet, digital works, and the likes of Massnick is that almost none of the stuff that you see on websites is published and as such prior to 1978 would have enjoyed even greater protection than Disney’s Mickey. Publication wrt to copyright requires at least two elements 1) That it must involve an offer of sale, or other transfer of ownership, or by rental, lease, or lending. 2) that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work.”

    I don’t think you’re right, and the problem is one of trying to have things both ways. The underlying mechanism by which computers and the Internet work is one of copying; I have a copy of this text on my computer, but it’s impractical to transfer it to David for posting on this site, much less to you, so you can read it. Instead, David’s site makes a copy when I submit the posting form. When your computer requests the page from David’s site, you make a copy.

    Now I would say that this is in the nature of public display, since no copies — a term of art meaning physical objects in which the work is embodied — are being distributed. But the courts have seen it differently, and they call this sort of thing distribution. For example, when someone like Joel Tenenbaum got sued for infringement, he was sued for distribution, not public performance.

    This suggests that when a court looks at the sort of communications of data on computer networks at issue, they see it as distribution, not display or performance, whether it is legitimate or infringing. This means it is published by the traditional definition.

    Of course, the better answer would be to update the Act to define public performance and display as publication. There’s no logical reason that they aren’t.

    “But those aren’t the ones that are valuable, those aren’t the ones that people are clamoring to enter the public domain.”

    I clamor for them. This is why I want copyright to return to an opt-in system, except for all works, not just published works, where authors would have to expressly seek copyright protection, as well as a return to short terms with the option of renewal. Both registration and renewal formalities would get many works into the public domain faster because only the economically valuable works would get copyrighted and get renewed.

    *****

    AudioNomics–
    “RE the term differences between patent any copyrights:
    it can be summed thusly- patents are absolute rights, and copyrights are limited in scope.”

    No, it’s more to do with how it just sort of shook out. Remember, originally patent terms were originally 14 years, and copyright terms were originally 14+14 years (and in practice, few people ever bothered to ask for the renewal term). The actual lengths are based on guild apprenticeship periods from the middle ages.

    The main reason that patents didn’t get as many or as long term increases as copyrights is because people were more romantic about authorship and more critical about industrial monopolies. Probably helped that the copyright folks were good at writing and published their ideas, while the inventors and businesses did not usually possess that as their strength.

    “Patents are absolute, but they require the patent holder to publically disclose exactly HOW her invention works, so the next innovation can be built upon it’s shoulders when it expires, and others can innovate and design around it..today… otherwise you would neither get investment nor disclosure…everything would be hidden in the dark via “trade secrets” (ahem google)…and great inventions would never come to market, as there would be no incentive for investors to help an inventor develop ideas.”

    That’s why there traditionally were deposit and publication formalities in copyright. Unpublished works don’t benefit the public and are not deserving of protection, save to the extent that they are being prepared for publication.

    “Maybe you don’t get how laws are written here in the USA, Wendy, but the Constitution isn’t law, its an outline.”

    Wow.

    If you take nothing else away from this comment, please take this: The United States Constitution is absolutely a law. It is a law that creates a government and embodies it with the power to make certain further laws, while prohibiting it from making other laws. But it is a law all by itself, and is routinely used as a law standing alone, by countless people.

    (It is also really short compared to most other constitutions, because the federal government isn’t a plenary government)

    “I won’t repeat the copyright clause, but that enables Congress TO MAKE THE LAWS regarding copyright.”

    It is also a law regarding copyright: It requires that copyrights be initially vested in authors, not other persons; It requires that copyrights be for authors’ writings, not for other things or by other people; It requires that copyrights expire; I would say it requires that copyrights promote the progress of science, but there’s been some dispute about that recently (and the counter argument is that it does, but it’s not really a justiciable matter); And it also imposes some other limits on copyright, e.g. Fair Use is, in part, based on the penumbra of the First Amendment.

    • anon- “It is also a law regarding copyright: …”

      Yes, you are right mine w a s Hastily written and could have been clearer. What I meant in regards to Wendy was that you cannot get the entirety of copyright law just by incanting the copyright clause in the Constitution. US law is much broader and more nuanced than that on the ground level, with court cases and legislation spelling out the specifics.
      -in comparison- the Constitution is quite limited (information-wise) if you want to know about copyright , and how it applies to the citizenry…and thusly repeatedly reciting the claus, without a further understanding of the underlying laws, is a pointless excercise if debating the finer points…

    • I don’t think you’re right, and the problem is one of trying to have things both ways.

      Indeed it is. It matters not how many copies were created as the text moved from my computer to yours, at no point in the journey did I either offer it for sale, or to transfer ownership, or to put it up for lease or rent. As such in pre 1978 terms it is unpublished. and would have been afforded far greater protection than it does now. As such copyright terms post 1978 have greatly decreased, because now any image I post onto flickr goes into the public domain 70 years after my death, whereas previously it never would have. The amount of works available on networks nowadays that are never ‘published’ in copyright terms massively outweighs works that are ‘published’, the world teems with works that are now destined for the PD. You should all be over the moon about it, rather than whining about the handful of works that had their terms increased by a handful of years.

      because only the economically valuable works would get copyrighted and get renewed.

      And once again, the others are not the ones you want to use. Why would you want the uneconomically valuable works? Makes no sense at all. Though I’ll throw a bone and say that any non registered work can be used by strictly non-commercial entities for non-commercial purposes. Does that sound fair enough?

      • They seem to be stuck on some theoretical harm, instead of actual practice.
        ‘but what if…’ is their mantra, when ours is ‘ in actuality…’
        The funny (or sad..) thing is that beyond the two or three examples of people being ‘burdened’ (ie, caught..) … they seem to gloss right over the Thousands of people actually and factually harmed by piracy when their lifes-work is ripped off every single day…

      • AudioNomics–
        “What I meant in regards to Wendy was that you cannot get the entirety of copyright law just by incanting the copyright clause in the Constitution. US law is much broader and more nuanced than that on the ground level, with court cases and legislation spelling out the specifics.”

        Oh, absolutely. The Constitution empowers Congress to enact (or not) copyright law, so long as it meets certain prerequisites. Most of the details are left up to Congress, and so appear in the statute, or the caselaw interpreting the Constitution and the statutes.

        “They seem to be stuck on some theoretical harm, instead of actual practice. ‘but what if…’ is their mantra, when ours is ‘ in actuality…’”

        Well, let’s go back in time a little. What if not guaranteeing equal rights for women was harmful to them? The conservatives of the day commonly responded by saying that in actuality women were adequately protected by men, so didn’t need equal rights, and begged the question by saying that women were mentally and physically incapable of using the rights if they had them, making it pointless to grant them in the first place.

        If you’re really interested in factual harm caused by copyright, let’s make substantial reforms to copyright for a while, and see whether it produces a better or worse outcome for society. While I’d be up for it, I doubt you would ever put your beliefs to the test.

        *****

        John Warr–
        “It matters not how many copies were created as the text moved from my computer to yours, at no point in the journey did I either offer it for sale, or to transfer ownership, or to put it up for lease or rent. As such in pre 1978 terms it is unpublished.”

        Well… while publication was more important prior to the 1976 Act taking effect, it wasn’t statutorily defined until then. Your formulation is a little limited. Here’s a quote from American Vitagraph v. Levy, itself quoting Nimmer:

        “An oft quoted modern definition of general publication is that ‘publication occurs when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public, or when an authorized offer is made to dispose of the work in any such manner even if a sale or other such disposition does not in fact occur.'”

        “Otherwise made available to the general public” is probably relevant with regard to web pages. A web site that limited access to only a small number of selected users might not qualify as publication, but a server that fulfills any request sent to it by anyone in the world surely would qualify. This is particularly true given that the underlying mechanism of the Internet requires that in order to show the work to someone, you must allow them to make a copy which is largely if not entirely outside of your control. For example, the third party can sell that copy to others quite easily.

        While we may never have an authoritative answer, since there probably aren’t any 1909 Act cases that are on point (and modern cases wouldn’t have this as an issue), I still don’t think you’re right that use of the Internet could not constitute publication.

        “You should all be over the moon about it, rather than whining about the handful of works that had their terms increased by a handful of years.”

        Well, I’m sure I would be, but as I see it, had the pre-1976 Act rule placing published, unregistered works immediately into the public domain stayed in effect, virtually the entire contents of the Web would be in the public domain from the moment they were posted. So for those works to get long terms is quite disappointing. Also, the increased term length directly contradicts the promotion of progress language in the Constitution and cannot be justified on utilitarian grounds. Plus, it’s clear that a more sensible reform would have been to expand the definition of publication while retaining the publication sans-registration rule (subject perhaps to an exception for works fixed simultaneously with their publication, but then only to offer a short grace period to authors to register, since the paperwork obviously cannot be filed simultaneously as well).

        Your comment strikes me as being reminiscent of the joke ‘But other than that, Mrs. Lincoln, how was the play?’

        “And once again, the others are not the ones you want to use. Why would you want the uneconomically valuable works? Makes no sense at all.”

        Why wouldn’t I? Copyright’s purpose requires more works; whether the works are economically valuable or not is of no importance.

        Besides, if they’re so valueless, surely what actually makes no sense is to grant them valuable protection automatically. Why should the public give away copyrights for a mess of pottage? If the author specifically requests a copyright for a copyrightable work, and complies with formalities designed to protect the public interest and avoid thoughtless requests, I’d be happy to see it granted to him. But if the author himself doesn’t care enough to ask for copyright, why should we grant it? If the author doesn’t think the work has enough copyright-related economic value to merit a copyright registration, who are we to second-guess him? By letting the work enter the public domain immediately, at least we open up the field to the world to see what can be salvaged.

        “Though I’ll throw a bone and say that any non registered work can be used by strictly non-commercial entities for non-commercial purposes. Does that sound fair enough?”

        Setting aside that neither of us is in a position to change the law in that way, no, it’s not enough. That should simply be a rule for all registered works. Non-registered works shouldn’t be protected at all — anyone should be able to use them for anything. That’s fair.

      • Of course its not fair. We saw that in the 40s and 50s in the US when the Blues and Jazz players were ripped off by commercial enterprises. We saw it in the 60s when the Reggae players were similarly ripped off. Contrary to the opinions of Libertarian thieves, the poor are not some free labour that just happen to inhabit the earth, feudalism in the West ended a few 500 years ago.

      • John Warr–
        “Of course its not fair. We saw that in the 40s and 50s in the US when the Blues and Jazz players were ripped off by commercial enterprises. We saw it in the 60s when the Reggae players were similarly ripped off.”

        Seems fair to me. In the US, if you find valuable minerals (gold, basically) on public land, you can file a claim to establish a right of priority for mining it. If you don’t file a claim, and don’t keep the location a secret, someone else can file a claim instead, displacing the original prospector.

        Requiring registration by the author for published works, and giving only minimal protection to the authors of unpublished works to encourage swift registration and publication (whether by the author, or if the author sits on it and lets the rights lapse, a third party) is more fair than that because then if the author failed to seek a copyright, no one else can get one, so the author needn’t fear being displaced.

        Your blues, jazz, and reggae musicians couldn’t get ripped off so long as they filed a bit of simple, inexpensive paperwork. And if they failed to do so (their own fault), they’d be at no disadvantage to third parties, but merely on a level playing field.

        “Contrary to the opinions of Libertarian thieves, the poor are not some free labour that just happen to inhabit the earth, feudalism in the West ended a few 500 years ago.”

        I agree that libertarianism and feudalism are stupid, but I don’t see why you’d raise the point here.

      • The creative outpouring of the population is not public land. Additionally “filing a bit of simple, inexpensive paperwork.” is neither simple for some dyslexic kid living in the suburbs, nor is it inexpensive for someone living in the Gambia for example.

      • Replace “Gambia” above for “Government yard in Trenchtown”

      • I agree that libertarianism and feudalism are stupid, but I don’t see why you’d raise the point here.

        Why? Well I mainly see libertarians argue to reduce the scope of legal and civil responsibility to the point where a) only the wealthy can afford the protection of the law b) the wealthy can exploit and cheat the poor and the trusting without running foul of the criminal laws. Then again I mainly think of right-wing libertarians as being equivalent Spivs.

  • anon- “Well, let’s go back in time a little. What if not guaranteeing equal rights for women was harmful to them? The conservatives of the day commonly responded by saying that in actuality women were adequately protected by men, so didn’t need equal rights, and begged the question by saying that women were mentally and physically incapable of using the rights if they had them, making it pointless to grant them in the first place.”

    which is pretty much what you are suggesting we do with copyright…

    “If you’re really interested in factual harm caused by copyright, let’s make substantial reforms to copyright for a while, and see whether it produces a better or worse outcome for society. While I’d be up for it, I doubt you would ever put your beliefs to the test.”

    How about this: we actually inforce our constitutional rights regarding copyright for a while, and see all the money and talent poured back into these industries.
    As for your experiment, I think google has enough money, and they’ll need to find another way to make money going forward thankyouverymuch. I’m not tied to Google’s bottom-line, so I’m not interested in your little “experiment”.

  • Patrick Landreville

    Perhaps the following definition of property will help you understand that intangibles are considered as such:

    Property: “Everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate.”
    Personal Property: “Personal property is divisible into (1) corporeal personal property, which includes movable and tangible things, such as animals, ships, furniture, merchandise, etc.; and (2) incorporeal personal property, which consists of such rights as personal annuities, stocks, shares, patents, and copyrights.”

    Definitions: Black’s Law Dictionary, Fourth Edition, copyright 1957 West Publishing Co.

    Copyrights are in fact transferable. That is precisely the mechanism by which publishers gain copyrights from creators of works.

  • Patrick Landreville

    @Wendy
    Dowling V. The United States does in no way state that copyright infringement is not theft.

    This is the key except from the Justices decision:
    “But these cases and others prosecuted under 2314 have always involved physical “goods, wares, [or] merchandise” that have themselves been “stolen, converted or taken by fraud.” This basic element comports with the common-sense meaning of the statutory language; by requiring that the “goods, wares, [or] merchandise” be “the same” as those “stolen, converted, or taken by fraud,” the provision seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods.”

    This is a purely technical argument; the Justices were saying that because the actual phonorecords, the physical objects themselves that were transported interstate, were not “stolen, converted, or taken by fraud” but were rather manufactured by Dowling et al. then 2314 should not apply and they were unwilling to apply 2314 to the intangible property, the copyrighted material fixed within the physical objects (the phonorecords), which was in fact stolen and converted to Dowling’s use, as other statutes were, in the Justices opinions, more appropriate to the claims of infringement.
    In other words, in the opinion of the majority of the Justices the Government had brought suit under the wrong statute and therefore the lower court’s decisions should be reversed. Mind you the Justices did not preclude the Government from refiling the case under a different statute.

  • Patrick Landreville

    @Wendy
    Please read the following legal definitions:

    Property: That which is peculiar or proper to any person; that which belongs exclusively to one; in the strict legal sense, an aggregate of rights which are guaranteed and protected by the government extending to every species of valuable right and interest. More specifically, ownership; the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. That dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects. The exclusive right of possessing, enjoying, and disposing of a thing. Everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments. The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. It consists of the free use, enjoyment and disposal of all a person’s acquisitions, without any control or diminution save only by the laws of the land.
    Personal property: Personal property is divisible into (1) corporeal personal property, which includes movable and tangible things, such as animals, ships, furniture, merchandise, etc.; and (2) incorporeal personal property, which consists of such rights as personal annuities, stocks, shares, patents, and copyrights.

    Theft: “Unlawful acquisition of property with intent to convert to taker’s use and appropriation by taker.”
    Appropriate: “To make a thing one’s own; to make a thing the subject of property; to exercise dominion over an object to the extent, and for the purpose, of making it subserve one’s own proper use or pleasure.”
    Infringement: “A breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract or right. Used especially of the invasions of the rights secured by patents, copyrights, and trademarks.”

    Definitions: Black’s Law Dictionary

  • Patrick Landreville

    @Wendy,

    Copyrights fall under the heading of “intangible or incorporeal” property. When an unlawful copy is made that is an appropriation of property, the property being the information, that is the music, text etc, contained in the original. That information, though intangible, is the actual property of the copyright holder. Regardless of the fact that when a digital copy is made the original may still exist, intact, in the owners possession, property has still been appropriated. Hence unlawful copying, or copyright infringement, is in fact legally defined as theft.

    Contrary to the belief of many larceny, robbery, burglary, infringement, fraud and embezzlement are all legally defined forms of theft. The term “infringement” is merely descriptive of the type of theft as are the other terms. Also, for your edification, the term for US patents is now 20 years to align US domestic law with our international treaties.

    • More importantly, whatever thief has the greatest present command of power is the one that gets to define theft. In the USA, the government pretty much stopped “handing out” private real property around the time the theft from the previous property owners was complete (of course, possibily the greatest single act of theft in human history). With homesteading grants one can argue that private property is just a convinent legal construct to enable grassroots atrocity by European invaders.

      In the end of the day the only real thing is people or peoples act in their own self-interest. And if enough people view copyright or any kind of legal regime of control to be contrary to their interests, well, there it goes.

  • Patrick Landreville

    @Rarara
    Algorithms can in fact be patented if strictly defined as a series of steps to attain an end result as in some computer software. Algorithms as a mathematical concept cannot be patented as they are not inventions but discoveries, they already exist within the framework of mathematics whether heretofore known or unknown. One cannot invent something that already exists.

    You state, “Scientific discoveries are not protected by any IP system. Scientists: “Fruits of labor” aren’t protected, can’t be controlled, are given away for free.”
    Scientists fruits of labour are protected by in most instances patents and in some instances copyrights. There
    already exists a system in which scientists licence and profit from their work. It is standard practise. In regard to your idea that all basic research be privatised, that would be disastrous as very little basic research would ever be done since there is rarely immediate profit to most basic research. The public funds nearly all basic research through government agencies such as DARPA, NASA , universities and grants. R & D in the private sector is generally based on the truly “basic” research done under public auspices.

    • Patrick Landreville,

      Algorithms can in fact be patented if strictly defined as a series of steps to attain an end result as in some computer software. Algorithms as a mathematical concept cannot be patented as they are not inventions but discoveries, they already exist within the framework of mathematics whether heretofore known or unknown. One cannot invent something that already exists.

      Didn’t I say anything else?

      But, yes, that’s the creation-discovery-dichotomy, which is as arbitrary as the expression-idea-dichotomy.

      The outcome is that a novel practical application of a mathematical algorithm can be patented, but the mathematical algorithm itself cannot. Which may result in the funny situation that the guy who discovered the algorithm may be prohibited to use it in a certain way.

      And if we believe that a mathematical algorithm or theorem already exists in some platonic realm of ideas before it’s discovered, why can’t the same be true for a new kind of jet engine? Especially since independent inventions are quite common.

      And even if the creation-discovery-dichotomy were clear cut, why would it matter ethically? The discovery of the RSA algorithm was the result of Ronald Rivest’s mental efforts. Without his efforts, we would be ignorant about it. So why is it fair to deny him an exclusive right to his discovery?

      “You state, “Scientific discoveries are not protected by any IP system. Scientists: “Fruits of labor” aren’t protected, can’t be controlled, are given away for free.”
      Scientists fruits of labour are protected by in most instances patents and in some instances copyrights. There
      already exists a system in which scientists licence and profit from their work. It is standard practise.”

      Then enlighten me if one could patent a natural law like E = m c² or the Schrödinger equation? Or do you deny that E = m c² is the fruit of Einstein’s labor?

      So theoretical scientists, basic researchers, mathematicians definitely aren’t entitled to the fruits of their labor.

      In regard to your idea that all basic research be privatised, that would be disastrous as very little basic research would ever be done since there is rarely immediate profit to most basic research. The public funds nearly all basic research through government agencies such as DARPA, NASA , universities and grants. R & D in the private sector is generally based on the truly “basic” research done under public auspices.

      I didn’t propose to privatize basic research, I just said that it might happen (probably not) if one could patent results of basic research.

      But the real problem with an IP law, which allows you to patent natural laws and mathematical theorems is that it would bring everything to a grinding halt, it would require an administrative effort of gargantuan proportions and legions of IP lawyers.

      And that’s the take home message: IP has nothing to do with ethics or morality (it’s not about “justice” or “fair compensation”) and everything to do with what is deemed “practical”.

      • Then enlighten me if one could patent a natural law like E = m c² or the Schrödinger equation? Or do you deny that E = m c² is the fruit of Einstein’s labor?

        What can be copyrighted is the expression. Einstein didn’t just write E = m c² he wrote “Zur Elektrodynamik bewegter Körper” which contains a whole bunch of other stuff around it.

      • John Warr, of course, but that’s nearly not worth anything for most scientist (or at least the great ones).

        Nobel Prize winner Barry Marshall discovered what causes ulcers and how to cure them effectively. This was the result of a heroic effort. And what we value about his work is not the beautiful prose and wordsmithery of his original paper (which is protected by copyright), but his results. And these results aren’t protected by IP. Once released into the wild, anybody can use them for free.

      • Again, I’m not going to play patent law expert, but one may not patent something one does not make. You may not patent a discovery that heat rises and, therefore, claim an ownership stake in all heating systems that take advantage of this property of physics. Marhsall may patent a drug to cure ulcers if he makes one, but his discovery simply isn’t subject to IP protection. It seems self-evident that the cons would outweigh the pros in such a patent regime; and your only point appears to be that such discoveries are more important than, say, music and so the whole magilla is unfair. Why you focus on who gets rich and who does not is a mystery. You live in a market-based society with a market-based copyright law. In fact, as Tom Sydnor points out, the first market-based copyright law. http://www.techpolicydaily.com/technology/presidents-day-copyrights-george-washington/

        Ditto patents since they stem from the same clause in the constitution.

        So far, the US leads the world in diverse, professional creative works and holds its own in scientific discovery and Nobel prizes. What exactly isn’t working for you?

    • Algorithms as a mathematical concept cannot be patented as they are not inventions but discoveries, they already exist within the framework of mathematics whether heretofore known or unknown. One cannot invent something that already exists.

      In the philosophy of mathematics, it’s not even clear that math is discovered or invented. One intepreation is all math exists are just a restating of axioms. Therefore, nothing but the axioms have any further meaning. And new mathematics are not discovered but are a created aesthetic, like any painting or artwork is.

  • Patrick Landreville

    @Rarara
    My apologies, I inadvertently deleted a portion of my post in regard to your statement “Scientific discoveries are not protected by any IP system”. It should have read : Scientific discoveries should not be patented for the same reasons I’ve given for mathematical concepts. Though in recent years many patents on discoveries and natural processes have been awarded, wrongly in my opinion. In many fields of scientific endeavour discovery is the goal, but the majority of scientists are not in the business of discovery they are actually in the business of development. For those in the fields of development, such as pharmaceuticals, the scientists fruits of labour are protected by…. etc.

  • Thanks for the legal definitions, Patrick.

  • Pingback: Celebrate fair use, but don't misunderstand it. - The Illusion of MoreThe Illusion of More

Join the discussion.