HA! HA! Watch out for butt pirates.
http://www.telegraph.co.uk/finance/newsbysector/mediatechnologyandtelecoms/5170170/Pirate-Bay-four-jailed-for-breaking-copyright-in-Swedish-file-sharing-trial.html
QuoteExperts believe the ruling could be the first step towards ending illegal downloading, which has cost music and film companies billions of dollars in lost revenue.
Founders Peter Sunde and Gottfrid Svartholm Warg, along with two other employees Fredrik Neij and Carl Lundström, were sentenced to a year in jail after being found guilty in a Swedish court of making 33 copyright-protected files accessible for illegal downloading on the website Piratebay.org.
Related Articles
*
What does The Pirate Bay ruling mean for the web?
*
Pirate Bay verdict: erection
*
Pirate Bay victory after illegal file-sharing charges dropped
*
Pirate file-sharing trial starts
*
Butt pirates go on trial over illegal buttsex
*
Google offers China one million free songs
The four were also ordered to pay $3.6 m (£2.4m) in damages to copyright holders, including Warner Brothers, MGM, Columbia Pictures, 20th Century Fox Films, Sony and Universal, according to Swedish media reports.
In a Twitter posting before sentencing, Mr Sunde said: "Nothing will happen to TPB [the Pirate Bay], this is just theatre for the media."
The Pirate Bay provides a forum for its estimated 22 million users to download content. The site has become the entertainment industry's enemy No. 1 after successful court actions against file-swapping sites such as Grokster and Kazaa.
Defence lawyers had argued the men should be acquitted because The Pirate Bay does not host any copyright-protected material. Instead, it provides a forum for its users to download content through so-called torrent files. The technology allows users to transfer parts of a large file from several different users, increasing download speeds.
But the court found the defendants guilty of helping users commit copyright violations "by providing a website with ... sophisticated search functions, simple download and storage capabilities, and through the tracker linked to the website".
Judge Tomas Norstrom told reporters that the court took into account that the site was "commercially driven" when it made the ruling. The defendants have denied any commercial motives behind the site.
John Kennedy, the head of the International Federation of the Phonographic Industry, said the verdict was "good news for everyone, in Sweden and internationally, who is making a living or a business from creative activity and who needs to know their rights will be protected by law."
Supporters set up a website dedicated to the trial, and the defendants sent updates from the court hearings through social network Twitter.
Forrester Research analyst Mark Mulligan said: "The music industry has come out of this with a ruling that is more positive for them than many had been expected." But he warned that the epidemic of file sharing will continue to grow via instant messaging, email and blogs, as well as file sharing websites.
He said the verdict could have implications for Google, as it provides links to illegal content.
Dawn Osborne, copyright lawyer at intellectual property firm Rouse, said: "Pirate Bay have been thumbing their nose at the establishment for too long and the view of many content owners will be that they have finally got what they deserved.
"Copyright protection is crucial to ensuring that creativity and innovation continue and much needed economic prosperity returns. The case shows that breach of these rights potentially has very serious consequences."
Slargos we hardly knew thee. :(
Where will Swedes get their shitty death metal now?
The record companies must be creaming their pants. Time for a price increase for CDs, methinks.
33 files is all they came up with? :huh:
I think the navies of the UN nations need to be involved in policing this piracy menace to the internet oceans.
Bad news.
Talk from Swedes seems to suggest its likely there could be an appeal and overturn though.
Also, it it time for Donald to make an appearance:
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fimg299.imageshack.us%2Fimg299%2F4330%2Fzomgtorrentplz.jpg&hash=452867f6a87078c7eff1dfb0405e1db9e169a118)
They're going to appeal it.
Bad news.
Here we go with the "it's not stealing, it's shoplifting" crowd.
Shoplifters of the World Unite!
Dyslexics of the world Untie!
Quote from: PDH on April 17, 2009, 08:51:57 AM
Dyslexics of the world Untie!
I was making a music reference. <_<
here's the perps
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fmedia.thestar.topscms.com%2Fimages%2F59%2F41%2F01a3e4a84ae1a0763c9eafa0a0fe.jpeg&hash=578158588c906da207b64fb62ec11db56e92d0b9)
First they have to go through the "discount warehouse".
Quote from: Martinus on April 17, 2009, 08:53:30 AM
Quote from: PDH on April 17, 2009, 08:51:57 AM
Dyslexics of the world Untie!
I was making a music reference. <_<
Until you realize how good Johnny Marr was, it is hopeless.
Quote from: saskganesh on April 17, 2009, 09:34:02 AM
here's the perps
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fmedia.thestar.topscms.com%2Fimages%2F59%2F41%2F01a3e4a84ae1a0763c9eafa0a0fe.jpeg&hash=578158588c906da207b64fb62ec11db56e92d0b9)
Ugh. Call the fashion police. :bleeding:
QuoteExperts believe the ruling could be the first step towards ending illegal downloading
:lol:
Experts
Quote from: Martinus on April 17, 2009, 09:40:46 AM
Quote from: saskganesh on April 17, 2009, 09:34:02 AM
here's the perps
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fmedia.thestar.topscms.com%2Fimages%2F59%2F41%2F01a3e4a84ae1a0763c9eafa0a0fe.jpeg&hash=578158588c906da207b64fb62ec11db56e92d0b9)
Ugh. Call the fashion police. :bleeding:
This from the guy who thinks that H&M is the height of fashion? :bleeding:
You're just as bad as they are.
Quote from: Neil on April 17, 2009, 10:00:55 AM
This from the guy who thinks that H&M is the height of fashion? :bleeding:
You're just as bad as they are.
:yes:
I'm fairly sure that Martinus dresses in that exact way.
Unfortunately staying in a small basement room and not having any contact whatsoever with girls isn't exactly punishment for those guys.
Quote from: Maximus on April 17, 2009, 08:40:42 AM
Here we go with the "it's not stealing, it's shoplifting" crowd.
:huh:
Quotesteal, v. 1: to take the property of another wrongfully and especially as a habitual or regular practice
Quoteshoplift, v. 1. to steal displayed good from a store
Since no one is taking anything, digital "piracy" is pretty obviously neither. It's the equivalent of running off a tape of a recording, or running off photocopies of a book. The only thing that brings it to anyone's attention is the massive scale on which it is now possible, and the perceived financial loss that is a consequence.
One can make strong arguments that said loss is substantial and needs to be dealt with criminally, one can make strong arguments that said loss is far less than is perceived, but there's no way to make an argument that the information in question is being
taken from the copyright holder, so calling it theft is a misnomer at best and a distortion at worst.
Copyright violation is just that, it's just that instead of the handful of instances that almost everyone is guilty of we're dealing in cases on a vastly greater scale.
LOL Mr. Defensive. What do you care what the dregs of society are called?
Quote from: vinraith on April 17, 2009, 11:26:29 AM
Quote from: Maximus on April 17, 2009, 08:40:42 AM
Here we go with the "it's not stealing, it's shoplifting" crowd.
:huh:
Quotesteal, v. 1: to take the property of another wrongfully and especially as a habitual or regular practice
Quoteshoplift, v. 1. to steal displayed good from a store
Since no one is taking anything, digital "piracy" is pretty obviously neither. It's the equivalent of running off a tape of a recording, or running off photocopies of a book. The only thing that brings it to anyone's attention is the massive scale on which it is now possible, and the perceived financial loss that is a consequence.
One can make strong arguments that said loss is substantial and needs to be dealt with criminally, one can make strong arguments that said loss is far less than is perceived, but there's no way to make an argument that the information in question is being taken from the copyright holder, so calling it theft is a misnomer at best and a distortion at worst.
Copyright violation is just that, it's just that instead of the handful of instances that almost everyone is guilty of we're dealing in cases on a vastly greater scale.
So you're saying that theft of intellectual property isn't theft, that for the term "theft" to apply it has to be tangible property?
Vinny, theft does not need to involve the physical taking of an object. All that it requires is to convert an object to one's own possession or use. It has been found that pledging an object that is not yours as security will constitute theft, even though the object in question is never even touched or moved.
Quote from: dps on April 17, 2009, 11:59:51 AM
So you're saying that theft of intellectual property isn't theft, that for the term "theft" to apply it has to be tangible property?
Basically, yes. I"m saying that using the term "theft" for intellectual property is disingenuous (and yes BB, I'm aware that the law disagrees). I'm not saying that illegitimate acquisition of intellectual property shouldn't be a crime (and I'm not saying that it should be), I'm saying that calling it "theft" is a corruption of the meaning of that word. The application of antiquated terminology and antiquated law to this problem is not helping matters.
At least the porno version still exists.
:rolleyes:
oh yeah. winning lawsuits always stops filesharing. look at Napster, Kazaa. oh wait file sharing just changed and moved on to the point where it's now a mainstream thing. These morons running the Entertainment conglomerates need to worry more about the fact that their business model has been broken for over a decade. Either change with the times or be buried by innovation.
I wished that the media corps would spend as much time and money on creating viable online distribution methods that are easy to use and allow storage of their media as they spend hunting pirates.
I wished there was something as easy to use as Gamersgate, Direct2Drive, even Steam for movies and music. :(
Quote from: BuddhaRhubarb on April 18, 2009, 01:18:16 AM
:rolleyes:
oh yeah. winning lawsuits always stops filesharing. look at Napster, Kazaa. oh wait file sharing just changed and moved on to the point where it's now a mainstream thing. These morons running the Entertainment conglomerates need to worry more about the fact that their business model has been broken for over a decade. Either change with the times or be buried by innovation.
Actually I applaud this decision. If you want to name your site in such a way that it clearly illustrates that you are assisting people in their efforts to pirate material, live with the consequences.
Quote from: Barrister on April 17, 2009, 12:02:06 PM
Vinny, theft does not need to involve the physical taking of an object. All that it requires is to convert an object to one's own possession or use. It has been found that pledging an object that is not yours as security will constitute theft, even though the object in question is never even touched or moved.
Unlike physical property, legal protection of intellectual property is a relatively recent phenomenon and one cannot make a similar argument about this protection being "natural" or one of the fundamental rights (again, unlike that of physical property). It's a social convention, based on balancing two conflicting principles - that of fair reward for the author / right owner and that of free dissemination of information.
Quote from: Martinus on April 18, 2009, 02:22:21 AM
Quote from: Barrister on April 17, 2009, 12:02:06 PM
Vinny, theft does not need to involve the physical taking of an object. All that it requires is to convert an object to one's own possession or use. It has been found that pledging an object that is not yours as security will constitute theft, even though the object in question is never even touched or moved.
Unlike physical property, legal protection of intellectual property is a relatively recent phenomenon and one cannot make a similar argument about this protection being "natural" or one of the fundamental rights (again, unlike that of physical property). It's a social convention, based on balancing two conflicting principles - that of fair reward for the author / right owner and that of free dissemination of information.
Are you saying that there is a fundamental right to physical property, that it isn't a social convention? Source?
Read the Bible. :rolleyes:
What Budda said.
This won't do anything to curb piracy.
I'm not going to get all holier than thou. I, personally, am against piracy. I have plenty of friends in the music industry and I see how it effect them.
That said, I also, unlike them, realize it 's a losing battle. I am completley shocked at work, for instance, how everyone downloads movies these days and when I tell them I bought a CD, they look at me kind of strange.
And they aren't 20 year olds. They're 40+ people. Downloading has become so mainstream, it's now almost expected that you do.
haven't there been a number of relatively recent studies that point out that on average people who download are also the people who buy most CD's-DVDs-games?
[slargos]if they had raped white women they would never have gone to jail[/slargos]
Quote from: Martinus on April 18, 2009, 02:22:21 AM
Unlike physical property, legal protection of intellectual property is a relatively recent phenomenon and one cannot make a similar argument about this protection being "natural" or one of the fundamental rights (again, unlike that of physical property). It's a social convention, based on balancing two conflicting principles - that of fair reward for the author / right owner and that of free dissemination of information.
Legal protection of gay rights is a relatively recent phenomenon compared to the legal protection of intellectual property.
Quote from: Norgy on April 18, 2009, 01:06:22 PM
[slargos]if they had raped white women they would never have gone to jail[/slargos]
You're joking, but a lot of rapists get off easier of course. :P
Quite recently, for instance, one got off without trial since the chick he raped committed suicide before the trial was over and the prosecutor decided to drop the charges since they were now without a witness. :lol:
Quote from: Neil on April 17, 2009, 08:04:03 AM
The record companies must be creaming their pants. Time for a price increase for CDs, methinks.
Yep. This alone is not guaranteed to put the record companies out of business. A price increase, plus this, should do the trick.
Back on topic, I doubt this will hold up in the appeal.
If it does, it changes little other than at worst the method of transfer.
I think that what will eventually kill piracy for games is among other things size of the full distribution and online services that require you to log in for full service and consistently gives the possibility of detecting foul play.
Another issue currently in Norway at least, is that the law that protects ISP customers by making it illegal to hand out user information in order to connect people to IP adresses is being changed which means it's now actually possible to prove misconduct.
Quote from: BuddhaRhubarb on April 18, 2009, 01:18:16 AM
oh yeah. winning lawsuits always stops filesharing. look at Napster, Kazaa. oh wait file sharing just changed and moved on to the point where it's now a mainstream thing. These morons running the Entertainment conglomerates need to worry more about the fact that their business model has been broken for over a decade. Either change with the times or be buried by innovation.
Agreed. The record companies are like the Big Three auto companies: the body is dead, but that info hasn't gotten to the brain as yet.
I think really clamping down on internet music piracy is going to be the death-knell of the industry, since prices of CDs are high enough that nobody is buying unless they hear the songs and decide they like them well enough to pay for them.
It is going to be the downloading-for-fee people that will benefit.
And, yes, piracy is theft. That is why copyrights exist. Copyrights will dwindle to legal insignificance as the business model of the music industry change, but they still mean what they have always meant in legal and moral terms.
Quote from: Crazy_Ivan80 on April 18, 2009, 08:09:06 AM
haven't there been a number of relatively recent studies that point out that on average people who download are also the people who buy most CD's-DVDs-games?
That is my understanding, yes.
Quote from: grumbler on April 18, 2009, 03:29:13 PM
Since prices of CDs are high enough that nobody is buying unless they hear the songs and decide they like them well enough to pay for them.
:huh:
Quote from: Crazy_Ivan80 on April 18, 2009, 08:09:06 AM
haven't there been a number of relatively recent studies that point out that on average people who download are also the people who buy most CD's-DVDs-games?
I've read various news articles that state that studies have shown this to be the case, but I've never actually seen any of the studies. Anecdotally, I can say that the people who I know who download the most also tend to own the most CD's, ect.--but on the other hand, most of what they bought, they got before they had access to high-speed internet.
Quote from: garbon on April 18, 2009, 04:36:40 PM
Quote from: grumbler on April 18, 2009, 03:29:13 PM
Since prices of CDs are high enough that nobody is buying unless they hear the songs and decide they like them well enough to pay for them.
:huh:
:huh:
Quote from: grumbler on April 18, 2009, 06:08:54 PM
Quote from: garbon on April 18, 2009, 04:36:40 PM
Quote from: grumbler on April 18, 2009, 03:29:13 PM
Since prices of CDs are high enough that nobody is buying unless they hear the songs and decide they like them well enough to pay for them.
:huh:
:huh:
:huh:
Quote from: grumbler on April 18, 2009, 03:29:13 PM
I think really clamping down on internet music piracy is going to be the death-knell of the industry, since prices of CDs are high enough that nobody is buying unless they hear the songs and decide they like them well enough to pay for them.
Agreed, although this is happening. BAnds and their record companies are routinely putting up their music for streaming on sites like myspace; lastfm; or their websites.
So the argument that "i download so I know if I like it" holds less and less water.
Quote from: Josephus on April 18, 2009, 07:09:46 PM
Agreed, although this is happening. BAnds and their record companies are routinely putting up their music for streaming on sites like myspace; lastfm; or their websites.
So the argument that "i download so I know if I like it" holds less and less water.
The bands do this precisely because they know it helps sales, and cuts out the middleman. Te highest-priced bands lose out, because they don't get the multi-million dollars contracts from the labels that control the retail CD business, but on average I think bands are better off controlling their own distribution and advertising through downloads. The cost of producing CDs has dropped dramatically, though the cost of buying them hasn't. In that gap can come the indie producers, who have less overhead and use viral, vice (expensive) mass, advertising.
Quote from: grumbler on April 18, 2009, 08:39:59 PM
Quote from: Razgovory on April 18, 2009, 07:06:03 PM
Quote from: grumbler on April 18, 2009, 06:08:54 PM
Quote from: garbon on April 18, 2009, 04:36:40 PM
Quote from: grumbler on April 18, 2009, 03:29:13 PM
Since prices of CDs are high enough that nobody is buying unless they hear the songs and decide they like them well enough to pay for them.
:huh:
:huh:
:huh:
:huh:
:huh:
Quote from: Martinus on April 18, 2009, 02:22:21 AM
Quote from: Barrister on April 17, 2009, 12:02:06 PM
Vinny, theft does not need to involve the physical taking of an object. All that it requires is to convert an object to one's own possession or use. It has been found that pledging an object that is not yours as security will constitute theft, even though the object in question is never even touched or moved.
Unlike physical property, legal protection of intellectual property is a relatively recent phenomenon and one cannot make a similar argument about this protection being "natural" or one of the fundamental rights (again, unlike that of physical property). It's a social convention, based on balancing two conflicting principles - that of fair reward for the author / right owner and that of free dissemination of information.
What does your comment have to do with my comment?
Quote from: Barrister on April 18, 2009, 09:51:55 PM
What does your comment have to do with my comment?
I think he's playing the "depends what your definition of 'is' is" game. Pledging assets that aren't yours means you have falsely indicated ownership where possession is clearly another individual's or entity's, with intent to transfer that ownership as if it were your own. Determining intellectual property is a shakier matter; IP is not wholly protected- see "derivative works." If the composition is overwhelmingly your own, and the majority of the material is your own, there are situations where the IP material used is
not protected.
P.S. - The 33 files in question were the ones seeded by those guys- creating The Pirate Bay itself was simply a means of P2P communication, which is still legal at this point; they're not on the hook for files seeded by other users...
yet.
Quote from: garbon on April 18, 2009, 06:17:30 PM
Quote from: grumbler on April 18, 2009, 06:08:54 PM
:huh:
Prices generally aren't that high anymore.
What's the average price for a CD in the U.S.? Over here it's usually between 14-16 EUR at release. Which is about the same what a newly released DVD movie costs (talking mainstream, not arthouse or niche which are usually more expensive). At that pricing the DVD always wins in my case in value for money.
I don't buy movies anymore. I don't want to pay for just DVD-quality (feels like VHS) and Blu-Ray are still too expensive for what you get.
Quote from: Syt on April 19, 2009, 01:06:35 AM
Quote from: garbon on April 18, 2009, 06:17:30 PM
Quote from: grumbler on April 18, 2009, 06:08:54 PM
:huh:
Prices generally aren't that high anymore.
What's the average price for a CD in the U.S.? Over here it's usually between 14-16 EUR at release. Which is about the same what a newly released DVD movie costs (talking mainstream, not arthouse or niche which are usually more expensive). At that pricing the DVD always wins in my case in value for money.
That's the interesting part. Over here (Canada, the USA) we say CDs are too expensive. Yet they are at least HALF of what they cost in Europe.
In fact it's probably cheaper for you euros to head over to amazon.com or amazon.ca and buy your CDs from there.
Given how many times I usually listen to my CDs, £10 a pop is not too much for me, especially as with services like LastFm and Spotify i can hear how good an album is.
Quote from: Syt on April 19, 2009, 01:06:35 AM
What's the average price for a CD in the U.S.? Over here it's usually between 14-16 EUR at release. Which is about the same what a newly released DVD movie costs (talking mainstream, not arthouse or niche which are usually more expensive). At that pricing the DVD always wins in my case in value for money.
Well I typically pay like $14-15 for the cds I buy. That might be near what DVDs cost, I don't know as I usually don't buy them - although I think I've paid between 16 and 20. Either way, I'd think a cd would win in terms of value for me, because although I might watch a dvd movie a few times, I'm going to be wearing that cd out!
Quote from: Josephus on April 19, 2009, 08:01:57 AM
That's the interesting part. Over here (Canada, the USA) we say CDs are too expensive. Yet they are at least HALF of what they cost in Europe.
In fact it's probably cheaper for you euros to head over to amazon.com or amazon.ca and buy your CDs from there.
I don't know about music but when it comes to games, prices are at least 3 times more expensive in Spain, taking median salaries and the $1 = 1€ conversion into account. In other words, it costs around $150 to buy a new game. And then they wonder why piracy is rampant. :lol:
I buy single songs or albums off Amazon's mp3 download service. :smarty:
Quote from: Iormlund on April 19, 2009, 05:50:13 PM
I don't know about music but when it comes to games, prices are at least 3 times more expensive in Spain, taking median salaries and the $1 = 1€ conversion into account. In other words, it costs around $150 to buy a new game. And then they wonder why piracy is rampant. :lol:
Why would you take salaries into account? Just because Europeans are less productive and thus rewarded less richly doesn't mean that they should enjoy subsidized goods.
Quote from: Neil on April 19, 2009, 06:02:26 PM
Why would you take salaries into account? Just because Europeans are less productive and thus rewarded less richly doesn't mean that they should enjoy subsidized goods.
:thumbsup:
Quote from: Neil on April 19, 2009, 06:02:26 PM
Quote from: Iormlund on April 19, 2009, 05:50:13 PM
I don't know about music but when it comes to games, prices are at least 3 times more expensive in Spain, taking median salaries and the $1 = 1€ conversion into account. In other words, it costs around $150 to buy a new game. And then they wonder why piracy is rampant. :lol:
Why would you take salaries into account? Just because Europeans are less productive and thus rewarded less richly doesn't mean that they should enjoy subsidized goods.
Correct. So they enjoy thsoe goods for free instead. Great thinking.
Quote from: Iormlund on April 19, 2009, 05:50:13 PM
In other words, it costs around $150 to buy a new game.
Madre de Dios! :blink:
Quote from: Iormlund on April 19, 2009, 06:35:22 PM
Quote from: Neil on April 19, 2009, 06:02:26 PM
Quote from: Iormlund on April 19, 2009, 05:50:13 PM
I don't know about music but when it comes to games, prices are at least 3 times more expensive in Spain, taking median salaries and the $1 = 1€ conversion into account. In other words, it costs around $150 to buy a new game. And then they wonder why piracy is rampant. :lol:
Why would you take salaries into account? Just because Europeans are less productive and thus rewarded less richly doesn't mean that they should enjoy subsidized goods.
Correct. So they enjoy thsoe goods for free instead. Great thinking.
So shouldn't the solution be to lobby the United States to declare war on Spain?
Hehe. They would have to find it on a map first. And recall one of their BBs to be sunk in port, which is all BBs were ever good for anyway
Quote from: Iormlund on April 19, 2009, 06:44:41 PM
Hehe. They would have to find it on a map first. And recall one of their BBs to be sunk in port, which is all BBs were ever good for anyway
Everything you say is a lie. Your third world country could never sink a BB, unless it was your own. Even then, it would be sunk through incompetance and disrepair.
Does the US really need to spank Spain again? :yeahright:
I know some Spanish girls who i wouldn't mind spanking.
You'll never find Osama bin Zapatero. We've got plenty of mountain caves. :contract:
Quote from: Iormlund on April 19, 2009, 07:11:25 PM
You'll never find Osama bin Zapatero. We've got plenty of mountain caves. :contract:
We just need to take your your telecommunications. We wouldn't care if you lived, once you were no longer stealing.
Quote from: garbon on April 19, 2009, 07:17:36 PM
Quote from: Iormlund on April 19, 2009, 07:11:25 PM
You'll never find Osama bin Zapatero. We've got plenty of mountain caves. :contract:
We just need to take your your telecommunications. We wouldn't care if you lived, once you were no longer stealing.
Still, ideally they would die.
Heh, like you need Internet to get stuff for free.
Quote from: Iormlund on April 19, 2009, 07:22:54 PM
Heh, like you need Internet to get stuff for free.
Oh, I forgot that Spain is like a trip back to the late 80s. :Embarrass:
A friend of mine went to the US in the late 80s, on an exchange program. He was told not to be startled by that funny looking device hung on the wall. "You see, it is called a te-le-phone".
:lol:
Quote from: Martinus on April 18, 2009, 02:22:21 AM
Unlike physical property, legal protection of intellectual property is a relatively recent phenomenon and one cannot make a similar argument about this protection being "natural" or one of the fundamental rights (again, unlike that of physical property). It's a social convention, based on balancing two conflicting principles - that of fair reward for the author / right owner and that of free dissemination of information.
Civil rights are a relatively recent phenomenon as well - does that mean they aren't fundamental rights?
As you are a continential lawyer, I presume I don't need to explain the difference between natural and customary law - the fact that enforcement of a norm is recent in time doesn't indicate it isn't natural.
All legal norms can be characterized as social conventions that balance conflicting principles - private real property rights balance encouraging investment and validating investment backed expectations versus the appropriation of the commons. IP rights involve the same considerations but because the titles tend to be of later vintage, the process of creations and the tradeoffs involved are more transparent.
Quote from: Syt on April 18, 2009, 01:31:16 AM
I wished that the media corps would spend as much time and money on creating viable online distribution methods that are easy to use and allow storage of their media as they spend hunting pirates.
I wished there was something as easy to use as Gamersgate, Direct2Drive, even Steam for movies and music. :(
I found Amazon.de very convenient for downloading MP3s recently.
Quote from: The Minsky Moment on April 20, 2009, 10:57:52 AM
No form of property is.
I wasn't saying that any is, and I considered Mart's argument a red herring also; I was just pointing that out to Beeb.
Quote from: Zanza2 on April 20, 2009, 12:32:37 PM
I found Amazon.de very convenient for downloading MP3s recently.
NOT AVAILABLE IN AUSTRIA
Unfortunately the EU has so far failed to reach an agreement about a "common media market".
Europe :lol:
Trial might have to be redone completly, one of the judges is a member of an interest organisation. :unsure:
http://www.thelocal.se/19028/20090423/ (http://www.thelocal.se/19028/20090423/)
Quote from: Ape on April 23, 2009, 05:26:56 AM
Trial might have to be redone completly, one of the judges is a member of an interest organisation. :unsure:
:lol:
Oops.
Quote from: Ape on April 23, 2009, 05:26:56 AM
Trial might have to be redone completly, one of the judges is a member of an interest organisation. :unsure:
http://www.thelocal.se/19028/20090423/ (http://www.thelocal.se/19028/20090423/)
:pinchL
What exactly do these organizations do?
For example, I am a member of an IP orgnanization which has a lot of IP holders and their counsel in it, but also includes IP practioners who more commonly represent infringers (such as myself). I don't think membership in such an organization should force recusal.
Obviously a judge cannot be a member of an organization that promotes law & order.
Quote from: The Minsky Moment on April 23, 2009, 11:48:48 AM
What exactly do these organizations do?
For example, I am a member of an IP orgnanization which has a lot of IP holders and their counsel in it, but also includes IP practioners who more commonly represent infringers (such as myself). I don't think membership in such an organization should force recusal.
If you can't answer that, no one can.
It's an organization for "furthering the knowledge about intellectual property law and contributing to the development of this legal area". The organization is led by a certain Jan Rosén, who is well known as an intellectual property maximalist often seen in the media championing the cause of the IP rights and who advised the government in the creation of harsher laws on file sharing.
QuoteCivil rights are a relatively recent phenomenon as well - does that mean they aren't fundamental rights?
As you are a continential lawyer, I presume I don't need to explain the difference between natural and customary law - the fact that enforcement of a norm is recent in time doesn't indicate it isn't natural.
All legal norms can be characterized as social conventions that balance conflicting principles - private real property rights balance encouraging investment and validating investment backed expectations versus the appropriation of the commons. IP rights involve the same considerations but because the titles tend to be of later vintage, the process of creations and the tradeoffs involved are more transparent.
What do we mean by a law being a natural law?
For example; the jews, upon Moses decline from Mt. Sinai, surely were not surprised on hearing that theft and murder and the like were all of a sudden not kosher. They could not have had the cohesion necessary to get that far had they not already known that. Some values men are born with and religion as well as the law have received them from man. And not the other way around.
From an evolutionary perspective it is easy to see why theft and murder within the group would be detrimental to human well-being. I think we can safely say that all men who are not psycopaths are born with a feeling of these things being wrong. Hence I would call laws against murder and theft natural laws.
Certainly we are not born with a feeling of respect for intellecutal property! How would that come about? In Sweden, at least, a vast majority of the population are polled as having no respect for intellectual property rights at all. Indeed, very few people consider it criminal in the least, and I think a carefully conducted cross-cultural study would show that there is nothing natural about respect for intellectual property.
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.
Quote from: miglia on April 23, 2009, 01:28:15 PM
What do we mean by a law being a natural law?
Don't look at me - Martinus is the one who relied on that particular distinction.
QuoteFrom an evolutionary perspective it is easy to see why theft and murder within the group would be detrimental to human well-being. I think we can safely say that all men who are not psycopaths are born with a feeling of these things being wrong. Hence I would call laws against murder and theft natural laws.
Certainly we are not born with a feeling of respect for intellecutal property! How would that come about? In Sweden, at least, a vast majority of the population are polled as having no respect for intellectual property rights at all. Indeed, very few people consider it criminal in the least, and I think a carefully conducted cross-cultural study would show that there is nothing natural about respect for intellectual property.
I don't think real property (property in land) satisfies that test. Ownership in real property is not an evolutionary necessity, and there have been many societies in history that don't recognize it.
For much of history, many societies have viewed institutions such as slavery or formal discrimination on the basis of race, gender, religious identification etc to be natural. Most civilized modern socities reject this notion, and now the opposite concept -- equality of status -- is accepted as "natural".
My point is simply that "natural" law can only be one of two things:
1) Those rules which are fundamental to the raison d'etre of a particular society. (subjective)
2) Those rules which flow from "correct" normative principles of justice (objective).
Without getting into the debate about whether an objective natural law is truly possible, IMO IP law can fairly be argued to satisfy either definition.
On 1) Modern capitalist societies are based on clear delineation and strict enforcement of complexes of rights (called "property rights") - both tangible and intangible. In the 21st century world, approximately 75% of business assets consist of intangible property (and IP rights of various kind constitute the majority of that property). Absent laws that establish and enforce IP rights, our present societies could not operate in their present form.
On 2) if one views creative acts as bringing broad value to society, then fairness demands that the creator be able to obtain some control over the dissemination of his or her creation and some compensation for the social benefit.
Of course - there are arguments to be made against, but that is so for any form of property right.
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail.
No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.
Quote from: ulmont on April 23, 2009, 02:25:19 PM
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail.
No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.
I don't follow. I am talking about laws.
Quote from: ulmont on April 23, 2009, 02:25:19 PM
No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.
It may be fundamental in that the author can still read his own manuscript for pleasure, but it's also trivial.
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.
Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.
Keynes/Joan/Minsky:
It is certainly true that there is no objective natural law. With further advancements in evolutionary psychology, genetics and neuroscience, however, we may come close to a good definition within our lifetimes.
I think humans do have a sense of ownership of property of land. This is true for many animals. As for humans consider men in cars, who are well known to be much more forceful in their dealings with fellow travellers of the road than they would be if they were walking (for example) - because they are in their car, which they feel is their own territory.
However, had we only recently landed on this planet and we were to build our societies from scratch today, our concept of land ownership would certainly be a lot different than our current agrarian anachronism.
You are right, of course, to say that legal norms are built on balancing conflicting interests. In Sweden the interest of the land-owner is weighed against the interest of the multitude and it is decided on a right to roam freely on land belonging to others as long as you do no harm. We call this "Allemansrätten", or loosely translated "The right of all men".
I certainly do view creative acts as bringing broad value to society. It is in the interest of society that these things are created so that they may be consumed by society. If creative acts are created and then not shared within society, or only shared at a prohibitive cost, then that is by definition not in the interest of the society.
What is certainly in the interest of society is freedom of speech and freedom of information. Intellectual property laws are, by definition, an encroachment on these freedoms. They exist out of mere convenience, an artificial construction to stimulate the creative.
It used to be that this helped along the diffusion of the creative into society. It still does, to some extent. But of course legal interests must be balanced against each other.
Quote from: ulmont on April 23, 2009, 02:25:19 PM
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail.
No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.
So if I have multiple copies of an item (say a book or a baseball card) - is it more OK to steal one?
Quote from: The Minsky Moment on April 23, 2009, 03:30:20 PM
So if I have multiple copies of an item (say a book or a baseball card) - is it more OK to steal one?
Progressive taxation supports a conclusion of yes.
And if you start with 10 copies, if it is possible for me to steal 1 copy and still leave you 10, then the yes answer is even stronger.
Quote from: ulmont on April 23, 2009, 02:25:19 PM
No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.
I am gonna jump on the bandwagon and also call bullshit (at least as this is written). There are differences (i.e. if you are zeroxing a copy of a book on which I lack a copyright, you are not stealing from me, but from the copyright holder) but they are not fundamental.
Miglia - I think you are overestimating the "naturalness" of titles to real property. It seems to me more natural to distinguish chattel or movable property (which is inherently personal in nature) from land and the bounty of nature which is common to all (though perhaps vested in the control of the ruler as steward). Indeed, historically that is a common conception. Ownership of real property was historically a challenge to those philosophers attempting a natural right justification -- recall Locke's rather tortured explanation of right by virtue of "mixing" labor. It isn't too difficult to adapt that notion to intellectual property as well, for whatever it is worth.
It's true that real property ownership (unlike IP ownership) involves possession of something tangible and physical. But that doesn't seem to be a critical distinction. Indeed, what is really at stake in real property is control of the usufruct right - which is intangible. Imagine a piece of grassland that person A purports to own. If person B grazes some cattle and then departs, then -- just as in the copyright case -- the "original" is not taken - the land remain, and assuming person B's herd is reasonably sized, there isn't any direct impact on Person's A ability to use his land for the same purpose. But Person A's land has value precisely because notwithstanding the "renewable" quality of his land, he has the power to exclude Person B and all other persons - and that power to exclude gives him the ability to obtain compensation for access. Thus the essence of the right to real property is a grant of monopoly as to use and access which can be exploited to generate revenue (rent). The parallel to IP seems obvious.
Quote from: grumbler on April 23, 2009, 03:53:05 PM
I am gonna jump on the bandwagon and also call bullshit (at least as this is written). There are differences (i.e. if you are zeroxing a copy of a book on which I lack a copyright, you are not stealing from me, but from the copyright holder) but they are not fundamental.
I'm going to maintain my disagreement. And really, grumbler, you're saying that you don't see any fundamental difference between rivalrous and non-rivalrous consumption?
Quote from: ulmont on April 23, 2009, 03:47:57 PM
Progressive taxation supports a conclusion of yes.
Explain - I don't see the connection.
QuoteAnd if you start with 10 copies, if it is possible for me to steal 1 copy and still leave you 10, then the yes answer is even stronger.
So its Ok for me to steal your liver tissue, because you can regenerate it back? Can I steal crops as well because they will grow back again?
Quote from: The Minsky Moment on April 23, 2009, 04:20:57 PM
So its Ok for me to steal your liver tissue, because you can regenerate it back? Can I steal crops as well because they will grow back again?
If you can take my liver tissue in a way that I never notice, feel free.
As to crops, they generally don't grow back again these days but are replanted each year. Harvesting (pecans, peaches, etc.) from trees might be a better analogy. Even in that case, though, there is only X amount of product per year, and it cannot be consumed non-rivalrously, so no, you cannot steal crops.
I would like to point out at this juncture that the position I am supporting, as opposed to the straw man position you are attempting to push me toward, is that IP is fundamentally different from other property. Not that laws protecting IP are not justifiable.
Another entertaining fundamental difference, in the US context, is that certain IP protections are only authorized "[t]o promote the progress of science and useful arts" and "for limited times." The implied quid-pro-quo for societal benefit and the limited time is simply not found in the real or personal property scenario.
Quote from: The Minsky Moment on April 23, 2009, 04:20:57 PM
Quote from: ulmont on April 23, 2009, 03:47:57 PM
Progressive taxation supports a conclusion of yes.
Explain - I don't see the connection.
If it is fair to tax a higher percentage of the income of those making a higher income, it appears more justified (less unjustified?) to steal from those who have more than to steal from those who have less. See also Hood, Robin.
Quote from: The Minsky Moment on April 23, 2009, 04:05:04 PM
Miglia - I think you are overestimating the "naturalness" of titles to real property. It seems to me more natural to distinguish chattel or movable property (which is inherently personal in nature) from land and the bounty of nature which is common to all (though perhaps vested in the control of the ruler as steward). Indeed, historically that is a common conception. Ownership of real property was historically a challenge to those philosophers attempting a natural right justification -- recall Locke's rather tortured explanation of right by virtue of "mixing" labor. It isn't too difficult to adapt that notion to intellectual property as well, for whatever it is worth.
It's true that real property ownership (unlike IP ownership) involves possession of something tangible and physical. But that doesn't seem to be a critical distinction. Indeed, what is really at stake in real property is control of the usufruct right - which is intangible. Imagine a piece of grassland that person A purports to own. If person B grazes some cattle and then departs, then -- just as in the copyright case -- the "original" is not taken - the land remain, and assuming person B's herd is reasonably sized, there isn't any direct impact on Person's A ability to use his land for the same purpose. But Person A's land has value precisely because notwithstanding the "renewable" quality of his land, he has the power to exclude Person B and all other persons - and that power to exclude gives him the ability to obtain compensation for access. Thus the essence of the right to real property is a grant of monopoly as to use and access which can be exploited to generate revenue (rent). The parallel to IP seems obvious.
Locke proceeded from the false premise of the human mind at birth being an empty slate. I believe humans to be born with a sense of ownership of land (control of territory can be as important for mammals in the urban jungle as for mammals in the tropic jungle). That's simply an observation though - while some may be born with rapacious lust that doesn't legitimize rape. I personally don't feel strongly one way or another about the control of land.
I do see your analogy. I do not, however, quite see it's relevance.
Quote from: ulmont on April 23, 2009, 04:32:08 PM
If you can take my liver tissue in a way that I never notice, feel free.
So the key question is whether one notices or not? Because it is certainly possible for IP holder to notice an infringement as it happens. This seems to be a pretty irrelevant distinction - surely the significance of a violation of a property right does not turn on whether it is noticed at the time it happens.
QuoteEven in that case, though, there is only X amount of product per year, and it cannot be consumed non-rivalrously, so no, you cannot steal crops.
Assume -- as is often the case -- that my production far exceeds my personal ability to consume or even give away to frieds and family. Thus, the consumption of the take is non-rivalrous with my own consumption. It is only rivalrous with my ability to exploit the surplus through commercial sale and distribution. This also holds in the IP context.
QuoteAnother entertaining fundamental difference, in the US context, is that certain IP protections are only authorized "[t]o promote the progress of science and useful arts" and "for limited times." The implied quid-pro-quo for societal benefit and the limited time is simply not found in the real or personal property scenario.
Not exactly - what is limited is certain powers of the federal government. State law and the common law also instantiate protections of intellectual property right - for example, there are common law trademark, copyrights and trade secret protections. The significance of the IP Clause is to provide for the possibility of additional protections of such common law rights on a nationwide basis.
As I stated earlier, all property rights are limited and based on a quid pro quo trade offs of benefits vs. burdens.
QuoteIf it is fair to tax a higher percentage of the income of those making a higher income, it appears more justified (less unjustified?) to steal from those who have more than to steal from those who have less. See also Hood, Robin.
A progressive tax treates everyone equally - the higher rates are on marginal income. I don't see the connection. That the government has to make a call about how to distribute the burden of taxation is not a commentary on the legitimacy of property rights generally.
In any case, this is more an argument about why the property rights of the rich should be attenuated, not why IP rights as a category (which may be held by persons of modest means) should be considered less legitimate than other forms of property right.
Quote from: miglia on April 23, 2009, 05:38:52 PM
I believe humans to be born with a sense of ownership of land (control of territory can be as important for mammals in the urban jungle as for mammals in the tropic jungle).
You may believe that, but I suspect it runs contrary to a lot of evidence. An awful lot of cultures have historically not believed in the concept of ownership of land, or would even believe the opposite - that humans belonged to the land, not the reverse.
Quote from: Barrister on April 23, 2009, 06:09:38 PM
Quote from: miglia on April 23, 2009, 05:38:52 PM
I believe humans to be born with a sense of ownership of land (control of territory can be as important for mammals in the urban jungle as for mammals in the tropic jungle).
You may believe that, but I suspect it runs contrary to a lot of evidence. An awful lot of cultures have historically not believed in the concept of ownership of land, or would even believe the opposite - that humans belonged to the land, not the reverse.
Well, these people you speak of. When another people or tribe move in on the territory they inhabit, do they not defend it?
Having raised the existence of the common law of IP protection, I would add that some of these protections are of very ancient vintage. Copyright protections can be dated back to the early days of the publishing industry. Trade secret protection is even older - it is traced back to the actio servi corrupti actions of ancient Rome. This is so even though trade secrets are the quintessential non rivalrous property - they are pure ideas.
Indeed, and wine producers of Gaul would copy the corks of the superior producers of Italy ;)
Quote from: The Minsky Moment on April 23, 2009, 06:22:08 PM
Having raised the existence of the common law of IP protection, I would add that some of these protections are of very ancient vintage. Copyright protections can be dated back to the early days of the publishing industry. Trade secret protection is even older - it is traced back to the actio servi corrupti actions of ancient Rome. This is so even though trade secrets are the quintessential non rivalrous property - they are pure ideas.
Corrupting a slave or servant?
Quote from: The Minsky Moment on April 23, 2009, 01:57:50 PM
Don't look at me - Martinus is the one who relied on that particular distinction.
Actually I thought it was a religious concept.
Quote from: The Minsky Moment on April 23, 2009, 06:07:31 PM
This seems to be a pretty irrelevant distinction - surely the significance of a violation of a property right does not turn on whether it is noticed at the time it happens.
As noted, the fundamental distinction is between rivalrous and non-rivalrous consumption. Absent an external force imposing arbitrary monopolies, IP consumption is non-rivalrous in an age of digital distribution.
Quote from: The Minsky Moment on April 23, 2009, 06:07:31 PM
Assume -- as is often the case -- that my production far exceeds my personal ability to consume or even give away to frieds and family. Thus, the consumption of the take is non-rivalrous with my own consumption. It is only rivalrous with my ability to exploit the surplus through commercial sale and distribution. This also holds in the IP context.
Uh, no. Commercial sale of a bushel of crops, leaving the seller with X - 1 bushels, is rivalrous. Commercial sale of a digital copy of a work, leaving the seller with X copies, is non-rivalrous. Your analogy is Martinused.
Quote from: The Minsky Moment on April 23, 2009, 06:07:31 PMNot exactly - what is limited is certain powers of the federal government.
Evidencing the views of the Framers on the tradeoff. I did not mention trademarks previously, as they are a distinctly different class of IP. In fact, trademarks are more of a public benefit, offering the public the ability to recognize the producer of a good or service, than a real IP right vested in the owner (if not, there would not be the naked assignment and abandonment rules, to pick the most obvious).
Trade secrets are rivalrous; once the second person knows the information, the benefit is lost or significantly diminished to the creator. They are much more like personal property than copyrights or patents.
Quote from: The Minsky Moment on April 23, 2009, 06:07:31 PM
there are common law trademark, copyrights and trade secret protections.
Common law trademarks and trade secrets are discussed above. 17 USC 301 says you are wrong regarding common law copyright except as a matter of historical interest.
Quote from: The Minsky Moment on April 23, 2009, 06:07:31 PM
all property rights are limited and based on a quid pro quo trade offs of benefits vs. burdens.
There is a qualitative difference in the quid pro quo made for a piece of personal property, a piece of real property, and a piece of intellectual property. These differences are sufficiently varied in degree and kind as to be "fundamental". This was and is my point.
@Minsky:
On potential recusal: I see no direct relation to prosecution witnesses, but there is grounds for recusal in that one of the chief issues of the case is whether or not providing the tracker constitutes a breach of copyright law. Since there was an attempt to establish that as a fact of the case (in fact in the second day of the trial, prosecutors dropped half the charges because of that question), that's where the conflict of interest lies.
Quote from: miglia on April 23, 2009, 06:18:30 PM
Quote from: Barrister on April 23, 2009, 06:09:38 PM
Quote from: miglia on April 23, 2009, 05:38:52 PM
I believe humans to be born with a sense of ownership of land (control of territory can be as important for mammals in the urban jungle as for mammals in the tropic jungle).
You may believe that, but I suspect it runs contrary to a lot of evidence. An awful lot of cultures have historically not believed in the concept of ownership of land, or would even believe the opposite - that humans belonged to the land, not the reverse.
Well, these people you speak of. When another people or tribe move in on the territory they inhabit, do they not defend it?
This is the junior high version of history, but it has some accuracy...
No, not necessarily. When the Dutch offered to buy New York for some beads the Indians figured they got the better end of the deal since no one can own land.
I always thought that was a myth.
Quote from: Razgovory on April 23, 2009, 10:25:12 PM
I always thought that was a myth.
As I mentioned, I think the truth is far more complex but it has some truth to it. The first nations notion of ownership of land is quite different than ours.
Quote from: Barrister on April 23, 2009, 10:28:26 PM
Quote from: Razgovory on April 23, 2009, 10:25:12 PM
I always thought that was a myth.
As I mentioned, I think the truth is far more complex but it has some truth to it. The first nations notion of ownership of land is quite different than ours.
Was it actually uniform? You say "First Nations" but there were lots of people in North America when the Euros got here. I doubt they all looked at land use in the same way.
Quote from: ulmont on April 23, 2009, 04:09:32 PM
I'm going to maintain my disagreement. And really, grumbler, you're saying that you don't see any fundamental difference between rivalrous and non-rivalrous consumption?
Even if "rivalrous" was a word, the issue at stake isn't consumption, but rather production, and so the difference you note is irrelevant.
You can borrow my Mike and the Mechanics CD and "consume" it all you like. You just cannot produce another copy of it, because the right to produce copies is held by someone else.
Quote from: grumbler on April 24, 2009, 06:39:06 AM
Even if "rivalrous" was a word
Quote from: Merriam-Webster
Main Entry: ri·val·rous
Pronunciation: \ˈrī-vəl-rəs\
Function: adjective
Date: 1812
: given to rivalry : competitive
http://www.merriam-webster.com/dictionary/rivalrous
The word only dates back to 1812, so I can see how it might be a little new for you.
And here's an example of it being used in the economic context, in an Economics textbook by Richard Lipsey:
http://books.google.com/books?id=XzU1jwwwU80C&pg=PA278&lpg=PA278&dq=rivalrous+economics&source=bl&ots=-2m47Khr8i&sig=LBi5Pd6EB2_OtrlUSY2gAVqsN9o&hl=en&ei=UrTxSbzXEtyLtgeenJynDw&sa=X&oi=book_result&ct=result&resnum=4
Quote from: grumbler on April 24, 2009, 06:39:06 AM
You can borrow my Mike and the Mechanics CD and "consume" it all you like. You just cannot produce another copy of it, because the right to produce copies is held by someone else.
You're begging the question there. Absent the externally imposed right to copy structure, I can make a copy of your Mike and the Mechanics CD and enjoy it without taking yours away. This cannot be done with your car. The difference is fundamental.
Quote from: ulmont on April 23, 2009, 07:49:13 PM
I did not mention trademarks previously, as they are a distinctly different class of IP. In fact, trademarks are more of a public benefit, offering the public the ability to recognize the producer of a good or service, than a real IP right vested in the owner (if not, there would not be the naked assignment and abandonment rules, to pick the most obvious).
Trademarks protect the public from source confusion, but they also protect the markholder from diversion - I would suggest you look at the doctrine of initial interest confusion (which provides for liability based on diversion even if the customer is aware the differences between the products at the point of sale), and the trademark dilution statute - which does not require a showing of confusion at all. There is also the common law doctrine of misappropriation which explicitly protects producers, not consumers.
QuoteTrade secrets are rivalrous; once the second person knows the information, the benefit is lost or significantly diminished to the creator.
Nonsense, a trade secret is an idea. Under your definition of rivalrous, it is clearly non-rivalrous, because the appropriation by another does not diminish its content, quantity, or utility.
It only diminishes the ability of the holder to exploit it economically - and in that sense is identical to other forms of IP. Under your new standard of a "benefit [being] significantly dimished" - the other forms of IP clearly qualify.
QuoteCommon law trademarks and trade secrets are discussed above. 17 USC 301 says you are wrong regarding common law copyright except as a matter of historical interest.
No it says nothing of the sort. Read subsection (c) a little more carefully - this covers quite a lot of material. Then read Capitol Records v. Naxos, 4 NY3d 540 (NY 2005). In the area of sound recordings - which is the original subject of this thread - there is still quite a lot of material subject to common law copyright protection.
In any case, my point didn't turn on whether common law IP rights exist now, but whether they existed historically.
QuoteThere is a qualitative difference in the quid pro quo made for a piece of personal property, a piece of real property, and a piece of intellectual property.
If so, you have not made the case. Rather, the only distinction you claim to be making is one of "rivalrousness" - which is distinct from the social quid quo pro.
QuoteAs noted, the fundamental distinction is between rivalrous and non-rivalrous consumption. Absent an external force imposing arbitrary monopolies, IP consumption is non-rivalrous in an age of digital distribution.
But you still haven't given a clear explanation of why the possibility "non-rivalrous consumption" does or should undermine the quality of something as a property right.
In order to try to get to the bottom of this let me advance some other hypothetical cases of non-rivalrous consumption and you can tell me whether there is something attenuated about the property rights at issue.
1) Without payment or authorization, I surreptiously tap into a cable TV provider's box. (ie I "steal" the cable). OK? Does the answer change if I turn around and resell cable services from other using the siphoned cable?
2) (a) The power plant near where I live consistently generates more power than is needed even at peak levels of consumption. Without payment or authorization, I tap into the power lines and siphon off power. (b) Does the analysis change if I resell?
3) Every day, I get on a train without a ticket and successfully evade the conductor. Variant hypo - I sneak into Disneyland/Yankee Stadium/etc.
4) I notice that the newspaper box near my office never sells out of papers. Every day I wait for someone to pay for a paper and open the box. Then I sneak in a grab a paper before the door shuts.
5) Joe owns a big piece of land near my house that has a nice view of the river. He is paranoid though and doesn't allow anyone on his land and prominently posts no trespassing signs all over the place, even though he just stays in the basement of his house all day. Every day, I walk right past the signs onto his land and have a nice picnic and enjoy the view.
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
There is also the common law doctrine of misappropriation which explicitly protects producers, not consumers.
Misappropriation is generic unfair competition, not trademark.
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
Nonsense, a trade secret is an idea. Under your definition of rivalrous, it is clearly non-rivalrous, because the appropriation by another does not diminish its content, quantity, or utility. It only diminishes the ability of the holder to exploit it economically - and in that sense is identical to other forms of IP. Under your new deinition of a "benefit [being] significantly dimished" - the other forms of IP clearly qualify.
Another person having a copy of an artistic work or an embodiment of a patent idea does not diminish the value of the original creator or inventor. For a trade secret, that value is lost, by definition.
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
No it says nothing of the sort. Read subsection (c) a little more carefully - this covers quite a lot of material. Then read Capitol Records v. Naxos, 4 NY3d 540 (NY 2005).
I've read them. Pre-1972, to 2067, and then done, for sound recordings. Everything else is federal.
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
QuoteThere is a qualitative difference in the quid pro quo made for a piece of personal property, a piece of real property, and a piece of intellectual property.
If so, you have not made the case.
Really? You are claiming that the protections and obligations for you to protect your property rights in your TV, your house, and your copyrights are not qualitatively different?
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
But you still haven't given a clear explanation of why the possibility "non-rivalrous consumption" does or should undermine the quality of something as a property right.
In debating whether the state should protect property rights in personal property, such as a television, the potential harm of non-protection is obvious. Less people would buy televisions if their neighbors could make off with them,
In debating whether the state should protect property rights in real property, the potential harm of non-protection is less obvious. While beach access doctrines in particular show that exclusion is not always necessary for real property, there are certain uses for land, from individual dwellings to industry, that are harmed if there are no exclusion rights.
In debating whether the state should protect property rights in intellectual property, the potential harm of non-protection is still less obvious. We know that artists and scientists will create and innovate for motives other than monopoly rights in their works. I don't see that the case has been made that exclusionary rights are necessary in intellectual property.
In order to try to get to the bottom of this let me advance some other hypothetical cases of non-rivalrous consumption and you can tell me whether there is something attenutated about the property rights at issue.
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
1) Without payment or authorization, I surreptiously tap into a cable TV provider's box. (ie I "steal" the cable). OK? Does the answer change if I turn around and resell cable services from other using the siphoned cable?
In the first part, there is a potential but minor harm (wear and tear on cable boxes, etc.). If you're surreptiously tapping into a cable TV provider's box and reselling cable services, the harm is greater (and it looks like an unfair competition harm, among other things).
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
2) (a) The power plant near where I live consistently generates more power than is needed even at peak levels of consumption. Without payment or authorization, I tap into the power lines and siphon off power. (b) Does the analysis change if I resell?
Same analysis (distribution lines, blah blah; unfair competition, blah blah).
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
3) Every day, I get on a train without a ticket and successfully evade the conductor. Variant hypo - I sneak into Disneyland/Yankee Stadium/etc.
Same analysis (wear and tear on trains, rides, bathrooms, water fountains, etc.).
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
4) I notice that the newspaper box near my office never sells out of papers. Every day I wait for someone to pay for a paper and open the box. Then I sneak in a grab a paper before the door shuts.
I don't see any harm here. Even the potential harm possibilities appear sufficiently attenuated as to be de minimis, unless there is some big economic potential in recycled unused newspaper.
Quote from: The Minsky Moment on April 24, 2009, 09:31:44 AM
5) Joe owns a big piece of land near my house that has a nice view of the river. He is paranoid though and doesn't allow anyone on his land and prominently posts no trespassing signs all over the place, even though he just stays in the basement of his house all day. Every day, I walk right past the signs onto his land and have a nice picnic and enjoy the view.
I don't see any harm here. The analysis changes if the number of visitors increases to the point of damaging the grass etc.
Quote from: ulmont on April 24, 2009, 10:03:26 AM
Misappropriation is generic unfair competition, not trademark.
TM is a branch of unfair competition. The nature of the common law action of misappropriation is that it does not involve the taking of tangible property, but rather intangible goodwill or reputation. In that sense it is akin to other actions protecting rights to intangible property.
QuoteAnother person having a copy of an artistic work or an embodiment of a patent idea does not diminish the value of the original creator or inventor. For a trade secret, that value is lost, by definition.
Plainly false. The value to the creator of an artisitic work is not just the value of being to contemplate its aesthetic quality - its value consists of the ability to monetize it through sale ot others. The ability of others to copy without compensation destroys that value. OTOH, a trade secret arguably retains some value even if stolen, as long as it is not disseminated to every producer or potential entrant.
QuoteReally? You are claiming that the protections and obligations for you to protect your property rights in your TV, your house, and your copyrights are not qualitatively different?
Not in the sense they all involve social quid pro quos. Not in the way the existence of the rights are justified.
QuoteIn debating whether the state should protect property rights in personal property, such as a television, the potential harm of non-protection is obvious. Less people would buy televisions if their neighbors could make off with them,
In debating whether the state should protect property rights in real property, the potential harm of non-protection is less obvious. While beach access doctrines in particular show that exclusion is not always necessary for real property, there are certain uses for land, from individual dwellings to industry, that are harmed if there are no exclusion rights.
In debating whether the state should protect property rights in intellectual property, the potential harm of non-protection is still less obvious. We know that artists and scientists will create and innovate for motives other than monopoly rights in their works. I don't see that the case has been made that exclusionary rights are necessary in intellectual property.
Obviousness is pretty subjective - in each case the harms and benefits are pretty obvious to me. But I don't think the obviousness of the harms and benefits is what matters. What matters is that the nature of those harms and benefits. In each case, the nature is the same - establishing and enforcing the property right encourages and protects productive commercial activity and validates investment backed expectations. In each case, there is the disadvantage of excluding others from enjoyment of usufruct rights - even where the outside could make a better or more compelling use or even where the use would not necessarily harm the owners ability to use (eg my neighbor could have the right to borrow my TV when I am out of the house or on vacation). In each case, the absence of the right would seriously impact productive activity but not eliminate it (in a Hobbesian world, people would still engage in productive activity).
QuoteIn the first part, there is a potential but minor harm (wear and tear on cable boxes, etc.). If you're surreptiously tapping into a cable TV provider's box and reselling cable services, the harm is greater (and it looks like an unfair competition harm, among other things) . . . Same analysis (wear and tear on trains, rides, bathrooms, water fountains, etc.).
Assume there is no wear an tear problem (any such problem would be de minimis under these hypotheticals). On what basis is the harm greater given this is non-rivalrous?
QuoteI don't see any harm here. Even the potential harm possibilities appear sufficiently attenuated as to be de minimis, unless there is some big economic potential in recycled unused newspaper.
So if there is no harm - does that mean the the newspaper companies property right in its papers is somehow attenuated the moment it puts the paper in the vending box? If so - please explain how this happens? If not - then there is no connection between the harm caused by rivalrous and non-rivalrous consumption and the quality of the property right.
QuoteI don't see any harm here. The analysis changes if the number of visitors increases to the point of damaging the grass etc.
Same question as above, this time re the real property right. Are you claiming rights to real property are not as strong as rights to personalty? If not, how is your rivalrous analysis relevant?
Quote from: The Minsky Moment on April 24, 2009, 10:44:12 AM
In each case, the nature is the same - establishing and enforcing the property right encourages and protects productive commercial activity and validates investment backed expectations.
This is not always the case. Hell, look at your Capitol v. Naxos example; enforcement there upset investment backed expectations and shredded productive commercial activity.
Quote from: The Minsky Moment on April 24, 2009, 10:44:12 AM
Assume there is no wear an tear problem (any such problem would be de minimis under these hypotheticals). On what basis is the harm greater given this is non-rivalrous?
I'm not understanding your second sentence. These examples are boiling down to a non-rivalrous consumption of a piece of personal or real property, though, so yes, in the hypothetical cases of non-rivalrous consumption of personal or real property, the potential harm from infringing on property rights appears less than in the vastly more common case of the rivalrous consumption of same.
Quote from: The Minsky Moment on April 24, 2009, 10:44:12 AM
Are you claiming rights to real property are not as strong as rights to personalty?
I make that claim, yes. I support it by the higher frequency of taxation, the higher frequency of regulation, the higher frequency of condemnation, and the entire adverse possession doctrine.
Quote from: ulmont on April 24, 2009, 07:47:27 AM
Quote from: Merriam-Webster
Main Entry: ri·val·rous
Pronunciation: \ˈrī-vəl-rəs\
Function: adjective
Date: 1812
: given to rivalry : competitive
http://www.merriam-webster.com/dictionary/rivalrous
The word only dates back to 1812, so I can see how it might be a little new for you.
And here's an example of it being used in the economic context, in an Economics textbook by Richard Lipsey:
http://books.google.com/books?id=XzU1jwwwU80C&pg=PA278&lpg=PA278&dq=rivalrous+economics&source=bl&ots=-2m47Khr8i&sig=LBi5Pd6EB2_OtrlUSY2gAVqsN9o&hl=en&ei=UrTxSbzXEtyLtgeenJynDw&sa=X&oi=book_result&ct=result&resnum=4
man, we need that "whoosh!" smiley. :(
QuoteYou're begging the question there. Absent the externally imposed right to copy structure, I can make a copy of your Mike and the Mechanics CD and enjoy it without taking yours away. This cannot be done with your car. The difference is fundamental.
You are ignoring the point here. Intellectual property isn't about consumptions. The difference between rival and nonrival consumption is
utterly irrelevant to copyright. You violate copyright by making a copy of my M&tM album even
if you never listen to it. The difference between production and consumption is fundamental.
QuoteNo, not necessarily. When the Dutch offered to buy New York for some beads the Indians figured they got the better end of the deal since no one can own land.
That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.
Minsky:
I believe we reached common ground in that laws reflect competing interests balanced against each other.
In the case of file-sharing, specifically, those interests are (1) the interests of the copyright owner and (2) the freedom of information.
Consider now the power of the internet for near unlimited spread of information. There is no easy way for the state to stop the spread of copyrighted material over the internet. Either the enforcement of copyright is inefficient and sporadic, which would be a danger in itself, or the internet would have to be massively regulated and policed. That would be a great tragedy, and there is no way of knowing the damage that would cause.
Quote from: miglia on April 24, 2009, 12:24:34 PM
That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.
What now? Are you saying that the Native Americans were born feeling ownership of land but then decided that ownership wasn't something they valued?
No, I'm saying they were born with the ability to feel ownership of land.
Quote from: miglia on April 24, 2009, 12:24:34 PM
QuoteNo, not necessarily. When the Dutch offered to buy New York for some beads the Indians figured they got the better end of the deal since no one can own land.
That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.
I think we both agree that the large majority of people are born with a sex drive and it is the small minority that lack such a drive.
You apparently assert (correct me if I'm wrong) that the large majority of people are born with a sense of ownership of land, and any counter-examples are just a small minority. I very much disagree, and challenge you to prove that assertion.
If you want other examples, even in medeival europe there was no notion of
fee simple title like we have now. Serfs of course belonged to the land, not the other way around. And while the noble had rights over the land it also had quite numerous obligations as well, and could not simply be dealt with in whatever manner the noble felt fit.
Quote from: Barrister on April 24, 2009, 12:34:29 PM
If you want other examples, even in medeival europe there was no notion of fee simple title like we have now. Serfs of course belonged to the land, not the other way around. And while the noble had rights over the land it also had quite numerous obligations as well, and could not simply be dealt with in whatever manner the noble felt fit.
Well, even now, when you consider property taxes, zoning, blight ordinances and the like, ownership of land still comes with a fair number of obligations.
Quote from: miglia on April 24, 2009, 12:24:34 PM
Consider now the power of the internet for near unlimited spread of information. There is no easy way for the state to stop the spread of copyrighted material over the internet. Either the enforcement of copyright is inefficient and sporadic, which would be a danger in itself, or the internet would have to be massively regulated and policed. That would be a great tragedy, and there is no way of knowing the damage that would cause.
I agree that as a pratical matter, aggressive efforts to enforce these rights in that context are probably counterproductive.
Quote from: The Minsky Moment on April 24, 2009, 12:36:59 PM
I agree that as a pratical matter, aggressive efforts to enforce these rights in that context are probably counterproductive.
Huh. Almost a fundamental difference between the types of property.
Quote from: miglia on April 24, 2009, 12:24:34 PM
That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.
Wait, what in the fuck? The ability to feel land ownership is genetic?
This is of course not something I can prove, as you no doubt must understand. The sciences of evolutionary psychology, genetics and neuroscience are yet in their infancy and while we wait for solid evidence we can do no more than speculate.
My argument is that there is something as human nature. The human mind at birth is not a blank slate, as Locke thought it was. Human nature, however, is something quite flexible and adaptible. In particular, we adapt to the culture forged by the experiences of those that came before us.
Quote from: ulmont on April 24, 2009, 10:55:57 AM
This is not always the case. Hell, look at your Capitol v. Naxos example; enforcement there upset investment backed expectations and shredded productive commercial activity.
I know you understand the distinction between the underlying purposes of a rule of law, and the effect of an ajudication in a particular case. Where the application of law is uncertain, there is always going to be an upset of at least one side's expecatations.
QuoteI'm not understanding your second sentence. These examples are boiling down to a non-rivalrous consumption of a piece of personal or real property, though, so yes, in the hypothetical cases of non-rivalrous consumption of personal or real property, the potential harm from infringing on property rights appears less than in the vastly more common case of the rivalrous consumption of same.
In that case, are you taking the position that the property rights in question are somehow diminished?
QuoteI support it by the higher frequency of taxation, the higher frequency of regulation, the higher frequency of condemnation, and the entire adverse possession doctrine.
Not sure that flies:
Personalty is very commonly taxed (income tax, sales tax, VAT, etc)
Personalty is also subject to heavy regulation (commerical regulation, substantive regulation of invididual categories like alchohol, tobacco, weapons, health products, etc)
Personalty is subject to forfeiture and confiscation under certain circumstances.
Given the reaction to Kelo, I also doubt that most people view real property rights as being a lesser form of property right (not that "common man" perception is a determinative factor - just an observation).
Quote from: PDH on April 24, 2009, 12:45:05 PM
Quote from: miglia on April 24, 2009, 12:24:34 PM
That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.
Wait, what in the fuck? The ability to feel land ownership is genetic?
Consider the chimpanzee, our closest relative, which is well known to engage in violent war over territory. As indeed many mammals do. A casual glance at human history will reveal we are not so different.
Edit: Oh, and forgive me for my reductionism, but all our abilities are genetic.
Quote from: miglia on April 24, 2009, 12:45:22 PM
This is of course not something I can prove, as you no doubt must understand. The sciences of evolutionary psychology, genetics and neuroscience are yet in their infancy and while we wait for solid evidence we can do no more than speculate.
My argument is that there is something as human nature. The human mind at birth is not a blank slate, as Locke thought it was. Human nature, however, is something quite flexible and adaptible. In particular, we adapt to the culture forged by the experiences of those that came before us.
I don't know where to start...really...good luck with this one, Beeb...
Lol what?
Quote from: miglia on April 24, 2009, 12:45:22 PM
This is of course not something I can prove, as you no doubt must understand. The sciences of evolutionary psychology, genetics and neuroscience are yet in their infancy and while we wait for solid evidence we can do no more than speculate.
My argument is that there is something as human nature. The human mind at birth is not a blank slate, as Locke thought it was. Human nature, however, is something quite flexible and adaptible. In particular, we adapt to the culture forged by the experiences of those that came before us.
Thus of course you'll understand why I don't just accept your word for it.
I'm not asking you to. I never said more than that I believed humans had this ability. I could of course be wrong.
What I do hold as fact, however, is that humans are a product of evolution - and that there is such a thing as human nature. Is there any one here who will dispute this?
In what way does territoriality imply an understanding or concept of ownership?
I don't think that it really matters what chimpanzees do or don't do . . .
What I will say is that there is a sense in which the assertion of a private right over an object is a little bit odd, if you step back and try to think about it abstracted from our own social context. What does it mean to say one "owns" a object? It really is meaningless outside a social and legal framework that gives content to that concept. And there is nothing about the nature of physical things that makes them more "natural" subjects for such treatment than intangible things.
I suppose there is a moral sense in which having created an object (how? from what?), one can claim some right to determine how it used. But then again, it seems to me there is an equally, if not stronger moral sense that having created a work of art, one can make a similar claim. What hurts more - someone that I don't like borrowing my saw or a company whose products and actions I abhor using my musical composition to market its product? The first causes some de mimimus wear to my saw; the second perverts my own creative efforts by associating them to the world with something that sickens me.
Quote from: Warspite on April 24, 2009, 12:56:44 PM
In what way does territoriality imply an understanding or concept of ownership?
It implies it because the latter often stems from the former. Of course it doesn't have to, but I have argued no such thing.
Quote from: ulmont on April 24, 2009, 12:38:06 PM
Huh. Almost a fundamental difference between the types of property.
More like a practical approach to determining how to enforce within a particular cultural context.
If a hotel chooses not to aggressively investigate and prosecute guests who steal towels, that doesn't mean that there is something questionable about the nature of the hotel's property rights in its towels. It's just a recognition that the direct and indirect costs of strict enforcement are far too high to justify the benefits.
Quote from: PDH on April 24, 2009, 12:45:05 PM
Quote from: miglia on April 24, 2009, 12:24:34 PM
That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.
Wait, what in the fuck? The ability to feel land ownership is genetic?
I'm not sure that 'ownership' is the right word. But all the great apes seem to exhibit territorial behavior.
Quote from: The Minsky Moment on April 24, 2009, 12:46:40 PM
I know you understand the distinction between the underlying purposes of a rule of law, and the effect of an ajudication in a particular case. Where the application of law is uncertain, there is always going to be an upset of at least one side's expecatations.
The point re: Capital v. Naxos was that productive commercial activity can occur in the absence of an enforceable IP right, and can be more productive than the commercial activity that occurs in their presence.
Quote from: The Minsky Moment on April 24, 2009, 12:46:40 PM
In that case, are you taking the position that the property rights in question are somehow diminished?
Are or should be, yes.
Quote from: The Minsky Moment on April 24, 2009, 12:46:40 PM
Not sure that flies:
Personalty is very commonly taxed (income tax, sales tax, VAT, etc)
Personalty is also subject to heavy regulation (commerical regulation, substantive regulation of invididual categories like alchohol, tobacco, weapons, health products, etc)
Personalty is subject to forfeiture and confiscation under certain circumstances.
At the end of the day, though, you are a lot freer to do as you like regarding your bed and your couch than with your house or your lot.
Quote from: The Minsky Moment on April 24, 2009, 12:57:25 PM
I don't think that it really matters what chimpanzees do or don't do . . .
Why not? We share 98.5% of our genes (or thereabouts).
Quote
What I will say is that there is a sense in which the assertion of a private right over an object is a little bit odd, if you step back and try to think about it abstracted from our own social context. What does it mean to say one "owns" a object? It really is meaningless outside a social and legal framework that gives content to that concept. And there is nothing about the nature of physical things that makes them more "natural" subjects for such treatment than intangible things.
I suppose there is a moral sense in which having created an object (how? from what?), one can claim some right to determine how it used. But then again, it seems to me there is an equally, if not stronger moral sense that having created a work of art, one can make a similar claim. What hurts more - someone that I don't like borrowing my saw or a company whose products and actions I abhor using my musical composition to market its product? The first causes some de mimimus wear to my saw; the second perverts my own creative efforts by associating them to the world with something that sickens me.
I agree, and I have never argued against droit morale.
Quote from: The Minsky Moment on April 24, 2009, 01:01:44 PM
More like a practical approach to determining how to enforce within a particular cultural context.
From a descriptive rather than a prescriptive approach, a right that almost no one feels obligated to honor a) isn't much of one and b) perhaps shouldn't exist at all.
Quote from: miglia on April 24, 2009, 01:05:15 PM
I agree, and I have never argued against droit morale.
Droit morale. :x
Quote from: ulmont on April 24, 2009, 01:06:05 PM
Quote from: miglia on April 24, 2009, 01:05:15 PM
I agree, and I have never argued against droit morale.
Droit morale. :x
Well, to be honest I have no strong feelings one way or the other about droit morale. Why are you disgusted by it?
Quote from: PDH on April 24, 2009, 12:47:20 PM
I don't know where to start...really...good luck with this one, Beeb...
:lol:
Quote from: ulmont on April 24, 2009, 01:03:55 PM
The point re: Capital v. Naxos was that productive commercial activity can occur in the absence of an enforceable IP right, and can be more productive than the commercial activity that occurs in their presence.
Not disputed. Nonetheless the justification for the right is that the existence of a general rule that applies that right is more generative of productive activity than its absence.
This is a pretty trivial point I think -- there is no distinction here between other kinds of rights as well. There are plenty of situations where Person A could put Person B's property to more productive use - regardless of whether that property is tangible or intangible. In most cases, the presence of such a situation is insufficient in itself to defeat the right.
QuoteAre or should be, yes.
I think that leaves you with some very tough questions to answer. What it is about putting a newspaper in a vendor box that makes the property right diminish? Why does a power plant previously operating at demand have its property right in its product dimish once it starts reliably producing above demand?
Quote from: ulmont on April 24, 2009, 01:05:42 PM
Quote from: The Minsky Moment on April 24, 2009, 01:01:44 PM
More like a practical approach to determining how to enforce within a particular cultural context.
From a descriptive rather than a prescriptive approach, a right that almost no one feels obligated to honor a) isn't much of one and b) perhaps shouldn't exist at all.
Only if you want to start bringing your own towels whenever you travel. ;)
Quote from: The Minsky Moment on April 24, 2009, 01:14:22 PM
I think that leaves you with some very tough questions to answer. What it is about putting a newspaper in a vendor box that makes the property right diminish? Why does a power plant previously operating at demand have its property right in its product dimish once it starts reliably producing above demand?
We should punish success!
Quote from: miglia on April 24, 2009, 01:10:13 PM
Well, to be honest I have no strong feelings one way or the other about droit morale. Why are you disgusted by it?
I find the ability to exclude others from making use of one's work in further creations to be repugnant.
Taking older works and expanding on them or riffing on them should not be blockable.
The right of attribution doesn't bother me, though.
Quote from: The Minsky Moment on April 24, 2009, 01:14:22 PM
Not disputed. Nonetheless the justification for the right is that the existence of a general rule that applies that right is more generative of productive activity than its absence.
This justification is asserted, but is pretty obviously false. See the dissents in Eldred v. Ashcroft.
Quote from: The Minsky Moment on April 24, 2009, 01:14:22 PM
I think that leaves you with some very tough questions to answer. What it is about putting a newspaper in a vendor box that makes the property right diminish? Why does a power plant previously operating at demand have its property right in its product dimish once it starts reliably producing above demand?
Eh, I think it simply shows that there are cases where what might be a technical theft results in no real harm.
I'm with ulmont and vinnie on this. You can have almost infinite amount of intelectual "property" and limited amount of physical objects. Historically people are used to pay for things they cannot easily get by other means.
The problem with IP is that everyone can have it at almost no cost, thus easily.
Besides, when supply of something is infinite in number its market price is very close to 0. Why would someone have to pay for it the monopolistic fees?
What IP holders are trying to achieve, is just to cut the supply to raise the real market price, which is hopeless task, unless you cut everyone from the internet, but even then I don't think they would be in better position.
Szmik has made an argument about why property rights should disappear when marginal costs are near zero.
Once again, the rationale is not explained and applies to property beyond IP rights,
Quote from: ulmont on April 24, 2009, 01:43:00 PM
Quote from: The Minsky Moment on April 24, 2009, 01:14:22 PM
Not disputed. Nonetheless the justification for the right is that the existence of a general rule that applies that right is more generative of productive activity than its absence.
This justification is asserted, but is pretty obviously false. See the dissents in Eldred v. Ashcroft.
its pretty obviously correct - otherwise no propery right would be safe.
Eldred is certainly not to the contrary - it was a facial constitutional challenge to an entire statute, not a particular application of a statute to a particular case. the question in Eldred was whether the extension of copyright term was within the constitutional power of the federal government. 7 of 9 justices said yes. The dissenting justices disagreed, but they did not base their argument on the fact that in individual cases the existence of the copyright might achieve a commercially undesirable result. To the contrary, their argument (which I happen to agree with) was that the extension applied as a general rule in the aggregate was undesirable (and hence did not fit within the limiting clause)
QuoteEh, I think it simply shows that there are cases where what might be a technical theft results in no real harm.
I get that - what I don't get is :
(a) why the integrity of the property right is contingent on the objective harm caused by a single violation
(b) why in evaluating harm for the purpose of this exercise, one unrealistically confines oneself to the impact of single violation when what is at issue is the existence of the right in its entirety.
My production possibilities curve is huge.
Quote from: The Minsky Moment on April 24, 2009, 02:28:05 PM
I get that - what I don't get is :
(a) why the integrity of the property right is contingent on the objective harm caused by a single violation
(b) why in evaluating harm for the purpose of this exercise, one unrealistically confines oneself to the impact of single violation when what is at issue is the existence of the right in its entirety.
For whatever its worth, the Canadian Supreme Court has held that the "harm principle" is not a part of the criminal law.
The government need not show that anyone is harmed in order to make something illegal.
http://www.canlii.org/en/bc/bcca/doc/2000/2000bcca335/2000bcca335.html
Quote from: The Minsky Moment on April 24, 2009, 02:28:05 PM
its pretty obviously correct - otherwise no propery right would be safe.
I disagree. We have limited data on the IP front, of course, but those "pirate nations" where IP is not respected, including the US in its earlier days, have managed substantial economic production sans IP protections.
Quote from: The Minsky Moment on April 24, 2009, 02:28:05 PM
The dissenting justices disagreed, but they did not base their argument on the fact that in individual cases the existence of the copyright might achieve a commercially undesirable result. To the contrary, their argument (which I happen to agree with) was that the extension applied as a general rule in the aggregate was undesirable (and hence did not fit within the limiting clause)
And those justices pointed out that the existence of the property right, or at least its extension thereof, would not produce more economic activity...
...and studies have shown that the patent system is a negative-sum game for all non-biotech industries.
http://www.patentlyo.com/patent/2008/03/the-costs-and-b.html
http://www.researchoninnovation.org/dopatentswork/
Quote from: The Minsky Moment on April 24, 2009, 02:28:05 PM
I get that - what I don't get is :
(a) why the integrity of the property right is contingent on the objective harm caused by a single violation
(b) why in evaluating harm for the purpose of this exercise, one unrealistically confines oneself to the impact of single violation when what is at issue is the existence of the right in its entirety.
I think now you're backtracking. I said real property and personal property were fundamentally different from IP based off of the typical consumption pattern. You gave examples of the consumption of real and personal property that were much closer to the IP pattern, but which were also rather tangential.
To the issue of the existence of the right in its entirety: I do not believe that inventors would stop inventing or artists would stop creating if there were no IP protections. I believe that the existence of those protections is actually hindering inventors and artists now.
Quote from: Barrister on April 24, 2009, 02:42:01 PM
For whatever its worth, the Canadian Supreme Court has held that the "harm principle" is not a part of the criminal law.
The government need not show that anyone is harmed in order to make something illegal.
http://www.canlii.org/en/bc/bcca/doc/2000/2000bcca335/2000bcca335.html
Quote from: Justice BraidwoodI conclude that on the basis of all of these sources – common law, Law Reform Commissions, the federalism cases, Charter litigation – that the "harm principle" is indeed a principle of fundamental justice within the meaning of s. 7. It is a legal principle and it is concise. Moreover, there is a consensus among reasonable people that it is vital to our system of justice. Indeed, I think that it is common sense that you don't go to jail unless there is a potential that your activities will cause harm to others.
What did I misread in that opinion?
Quote from: ulmont on April 24, 2009, 02:44:20 PM
I disagree. We have limited data on the IP front, of course, but those "pirate nations" where IP is not respected, including the US in its earlier days, have managed substantial economic production sans IP protections.
That's an empirical claim. Your original claim was not that IP does not deserve status as property because as an empirical matter, one can show that the benefits are outweighed by the drawbacks - your claim was that IP is inherently a different kind of property right regardless of its policy justification. OTOH my argument the whole time has been that every form of property involves a policy rationale (an explicit or implicit social quid quo pro) balancing benefits of protections vs. no or less protection. So I would agree that if as an empirical matter IP rights do more harm then good, they should be limited. Then again, the same is true of any other form of property right.
QuoteAnd those justices pointed out that the existence of the property right, or at least its extension thereof, would not produce more economic activity...
...and studies have shown that the patent system is a negative-sum game for all non-biotech industries.
Again, this is an empirical argument. If it turns out you are wrong, and that protecting IP rights is actually more economically aggregative than protecting other forms of property rights, then the opposite of your conclusions would hold. We could certainly trade studies and empirical data all day long without ever coming to a satisfactory resolution.
QuoteI think now you're backtracking. I said real property and personal property were fundamentally different from IP based off of the typical consumption pattern. You gave examples of the consumption of real and personal property that were much closer to the IP pattern, but which were also rather tangential.
I think it is you that are backtracking here. You concede that your argument is based off consumption patterns, and further concede that my examples track the same consumption pattern. Yet you want to discard them as "tangential". If consumption pattern is the key distinction, then these examples are not tangential.
In response you appear to have switched to a harm-based argument that contends that where a single violation of the property right results in de minimus harm, the property right should be attenuated. But that doesn't seem to be a justifiable distinction either.
Quote from: ulmont on April 24, 2009, 02:56:46 PM
Quote from: Barrister on April 24, 2009, 02:42:01 PM
For whatever its worth, the Canadian Supreme Court has held that the "harm principle" is not a part of the criminal law.
The government need not show that anyone is harmed in order to make something illegal.
http://www.canlii.org/en/bc/bcca/doc/2000/2000bcca335/2000bcca335.html
Quote from: Justice BraidwoodI conclude that on the basis of all of these sources – common law, Law Reform Commissions, the federalism cases, Charter litigation – that the "harm principle" is indeed a principle of fundamental justice within the meaning of s. 7. It is a legal principle and it is concise. Moreover, there is a consensus among reasonable people that it is vital to our system of justice. Indeed, I think that it is common sense that you don't go to jail unless there is a potential that your activities will cause harm to others.
What did I misread in that opinion?
:palmslap:
You misread nothing. I posted the Court of Appeal decision, which was overturned by the Supreme Court of Canada.
QuoteEven if the "harm principle" relied upon by the accused could be characterized as a legal principle, it does not meet the other requirements. First, there is no sufficient consensus that the harm principle is vital or fundamental to our societal notion of criminal justice. While the presence of harm to others may justify legislative action under the criminal law power, the absence of proven harm does not create an unqualified s. 7 barrier to legislative action. Nor is there any consensus that the distinction between harm to others and harm to self is of controlling importance. Finally, the harm principle is not a manageable standard against which to measure deprivation of life, liberty or security of the person.
While the "harm principle" is not a principle of fundamental justice, the state nevertheless has an interest in the avoidance of harm to those subject to its laws which may justify legislative action. Harm need not be shown to the court's satisfaction to be "serious and substantial" before Parliament can impose a prohibition. Once it is demonstrated, as it has been here, that the harm is not de minimis, or not "insignificant or trivial", the precise weighing and calculation of the nature and extent of the harm is Parliament's job.
http://www.canlii.org/en/ca/scc/doc/2003/2003scc74/2003scc74.html
Just to be clear, there should be no question that an IP holder is harmed by violations of the IP rights in many cases. If anyone can publish my work without compensating me, the commercial value of my work diminishes to near zero. That is plainly a harm.
Quote from: The Minsky Moment on April 24, 2009, 03:10:58 PM
Just to be clear, there should be no question that an IP holder is harmed by violations of the IP rights in many cases. If anyone can publish my work without compensating me, the commercial value of my work diminishes to near zero. That is plainly a harm.
This argument presupposes the existence of IP rights.
Absent IP rights, I copy your CD, you still have your music.
Absent personal property rights, I take away your ball, now you have no ball.
Fundamental difference.
Quote from: The Minsky Moment on April 24, 2009, 03:03:27 PM
I think it is you that are backtracking here. You concede that your argument is based off consumption patterns, and further concede that my examples track the same consumption pattern. Yet you want to discard them as "tangential". If consumption pattern is the key distinction, then these examples are not tangential.
Your examples are tangential in that they do not reflect the common consumption pattern for real or personal property. Using an outlier to justify the rule in the common case doesn't work.
Quote from: ulmont on April 24, 2009, 03:15:29 PM
This argument presupposes the existence of IP rights.
Absent IP rights, I copy your CD, you still have your music.
Absent personal property rights, I take away your ball
Absent personal property rights, it's not "your" ball. The argument presupposes the existence of personal property rights.
QuoteYour examples are tangential in that they do not reflect the common consumption pattern for real or personal property.
They do reflect the common consumption pattern for real property. And they refect a very common consumption pattern for non-real property - namely property which is distributed by subscription or "hook up", or through ticketing or charged access schemes.
Quote from: The Minsky Moment on April 24, 2009, 03:30:05 PM
Quote from: ulmont on April 24, 2009, 03:15:29 PM
This argument presupposes the existence of IP rights.
Absent IP rights, I copy your CD, you still have your music.
Absent personal property rights, I take away your ball
Absent personal property rights, it's not "your" ball. The argument presupposes the existence of personal property rights.
No it doesn't. If I take away "the ball you had previously been playing with," (previously referred to as "your ball") you don't have it. The same is not true for copies of digital works.
Quote from: ulmont on April 24, 2009, 03:43:15 PM
No it doesn't. If I take away "the ball you had previously been playing with," (previously referred to as "your ball") you don't have it.
But I do "have it", even if it is not immediately in my possession.
In a social sytem where property is communally held, possessory rights aren't zero sum in the way you are suggesting. In such a system, if someone takes a saw that I had previously used and chops down some trees for firewood, or builds a dwelling, I haven't lost a saw. On the contrary, I have gained the communal right to use the firewood to cook my meals, or to use the shelter of the dwelling.
Quote from: ulmont on April 24, 2009, 01:05:42 PM
Quote from: The Minsky Moment on April 24, 2009, 01:01:44 PM
More like a practical approach to determining how to enforce within a particular cultural context.
From a descriptive rather than a prescriptive approach, a right that almost no one feels obligated to honor a) isn't much of one and b) perhaps shouldn't exist at all.
So from 1876 to 1964, when almost no one felt oligated to honor the voting rights of blacks in the south, those blacks shouldn't have had the right to vote in the first place?
Quote from: miglia on April 23, 2009, 03:28:16 PM
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.
Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.
"Fundamentally different" and "different" are, appropriately enough, different.
Quote from: The Brain on April 25, 2009, 05:34:10 AM
Quote from: miglia on April 23, 2009, 03:28:16 PM
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.
Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.
"Fundamentally different" and "different" are, appropriately enough, different.
That is a distinction without a difference. Stop making a fool of yourself.
Quote from: miglia on April 25, 2009, 06:36:59 AM
Quote from: The Brain on April 25, 2009, 05:34:10 AM
Quote from: miglia on April 23, 2009, 03:28:16 PM
Quote from: The Brain on April 23, 2009, 01:56:09 PM
miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.
Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.
"Fundamentally different" and "different" are, appropriately enough, different.
That is a distinction without a difference. Stop making a fool of yourself.
:D
:hug:
According to Polish press, the defense is pushing for a mistrial declaration since the judge in the first instance court was a member of the Swedish Association for Copyright and the Swedish Association for the Protection of Industrial Property, and didn't inform the parties of this. Both organizations acted as amicis curiae during the trial, supporting the prosecution.
Quote from: Martinus on April 28, 2009, 09:42:42 AM
According to Polish press, the defense is pushing for a mistrial declaration since the judge in the first instance court was a member of the Swedish Association for Copyright and the Swedish Association for the Protection of Industrial Property, and didn't inform the parties of this. Both organizations acted as amicis curiae during the trial, supporting the prosecution.
Ah, there's the missing piece of the puzzle; I was wondering but couldn't find whether those organizations were involved in the prosecution. I saw that they weren't litigants, but I didn't think to check for amicus curiae involvement.
As the amici curiae could have presented presupposed opinions, then as a representative of those organizations, that judge's impartiality was compromised.
The really dumb part is that evidence presented by amici curiae has to be reviewed and voluntarily admitted by the court-- either the judge concealed his involvement, which looks really bad, or else they were so hasty in accepting that evidence that they overlooked the potential conflict of interests, which also looks really bad.