Next message: Declan McCullagh: "FC: UK police call for national DNA database"
[Wow. This struck a nerve. Because of the sheer volume, it's been a
difficult set of replies to manage. First, I've had about 100 of them,
totaling over half a megabyte, and taking me about 40 minutes to
edit. Second, Eudora decided to eat the formatting, so the punctuation
is pretty chomped. Third, Eudora decided not to let me send out the
final text, so I'm using trusty ol' mutt instead. Previous Politech message
is here: http://www.politechbot.com/p-05056.html --Declan]
---
Date Tue, 9 Sep 2003 014645 -0600
From "Patrick J. Kobly" <patrick@kobly.com>
To Declan McCullagh <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
On Tue, Sep 09, 2003 at 120234PM -0400, Declan McCullagh wrote
> Date Tue, 09 Sep 2003 113631 -0400
> From "James Maule" <maule@law.villanova.edu>
> To <declan@well.com>
> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users
<SNIP>
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free? Why can I not pass that building and
> display on to my kids when I die, giving them something for which they
> can charge admission? Under current law, the property right (created by
> my physical efforts and the creativity of how I designed the layout and
> its accessories) is eternal.
The property right is _not_ created by your physical efforts or your
creativity. The property right here is created by the scarcity of the
land upon which you built your barn-like structure and the scarcity of
the building supplies that you used to build this structure.
Moreover, it is justified by the fact that when someone else uses the
barn-like structure, you are deprived of uses that you could make of
it. If you could not prevent people from entering the barn, this
would prevent you from removing the model railroad, and keeping
chickens in the barn, for example.
You are dishonestly conflating two different rights here - the real
property ownership interest in the barn, and the intellectual
"property" interest in the model railroad.
What area of law do you concentrate on? It appears clear that it is
neither real property nor intellectual property...
<SNIP>
> So the underlying premise of the entire argument of the "we share other
> people's property' crowd makes no sense unless it is viewed as a "I want
> it, you have it, I'll find a way to take it." Hmmm.... sounds like
> several national leaders of the 30s in Europe and the Pacific Rim......
Or one nation in North America throughout the latter half of the 20th
century... Either way, it's irrelevant. Copyright and "intellectual
property" were created in the United States to promote the arts and
sciences by offering a limited time of statutorily provided monopoly
protection to the creators of a work.
This is the bargain that was made by creators with society. The
progress of the arts and sciences requires that works be publicly
accessible and expandable. Many creators desire protection so they
can be paid for their works. So a bargain developed. Creators agreed
to allow their works to lapse into PD at some time in the future, in
exchange for protection of a monopoly on those works during that
limited time period. If they don't like the time limit, they
can choose not to release their works. Instead, we are faced by
creators and their middlemen continually arguing for retroactive
extensions of this term so that the consideration offered by the
creators (works lapsing into the PD) is never actually granted to
society. Society has held its end of the bargain (statutory
protection granting an exclusive right of duplication, distribution
and modification) for an awful long time. The creators have defaulted.
PK
--
Bow down before the one you serve
You're going to get what you deserve
-NIN
---
To declan@well.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
From "Larry Burton" <larry@dallasbay.net>
Reply-To larry@dallasbay.net
Organization Dallas Bay Networks
> From "James Maule" <maule@law.villanova.edu>
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free?
No, but after paying your $10 to visit I become inspired and wish build something just like it should I be prevented? The differences between real and intellectual property are so vast the it prevents analogies between the two.
---
From "Brandon Galbraith" <brandon@corruptedtruth.com>
To <declan@well.com>
Cc <maule@law.villanova.edu>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 114419 -0500
Declan,
Intellectual copyright has a time-limitation, so that after the owner of the
intellectual property has had time to make a profit on his work, the work is
then released into the public domain, for the public good.
Isn't this the same as eminent domain over private property?
>From eminentdomainlaw.net
"Eminent domain" (also called "condemnation") is the power of government
agencies to acquire property for "public use" so long as the government pays
"just compensation." Recognized public uses for which the power of eminent
domain may be used include, among other things, schools, parks, roads,
highways, subways, fire and police stations, public buildings, and the
elimination of blight through redevelopment. A key attribute of eminent
domain is that the government can exercise its power of eminent domain even
if the owner does not wish to sell his or her property."
So if the town where Jim's barn resides in decides that the public good
outweighs his right to charge $10 a person to get in, and they take it, how
is that different that copyrights expiring?
-brandon
From "B. Boom" <bb@ii.nl>
To <declan@well.com>
X-Mailer PocoMail 2.64 (1120) - Licensed Version
Date Tue, 9 Sep 2003 185106 +0200
In-Reply-To <6.0.0.22.2.20030909114510.01f48af0@mail.well.com>
James Maule wrote
>So, If I build a barn-like structure with my own hands, and then
>build
>a huge model railroad display inside, and then invite the public to
>visit for $10 a visit per person, why should I, after some short
>period
>of time, let people in for free?
So you are also of the opinion that no-one should be allowed to build a
replica of your railroad? And what if you close yours down?
Nobody is asking the record companies to deal out free records, just
the right to reproduce them after a while. More so, when they are out
of print and not being reprinted.
.B Boom
From ???@??? Tue Sep 09 125828 2003
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
From Steve Stearns <sterno@bigbrother.net>
To declan@well.com
On Tue, 2003-09-09 at 1102, Declan McCullagh wrote
Quoting from James Maule's response
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free?
It would be nice if he did but there's no expectation. When you are
talking about physical property, all the contributors to that physical
property have been compensated. If somebody builds a barn, and a model
railroad, they have to pay for the property, lumber, trains, and then
they add value by their own contribution of labor. Thus, when it is all
built, that person is sole owner of the creation.
With intellectual property, the building blocks of the works are never
paid for directly. If I was to go into the barn and film it, the owner
of the barn isn't paid for the images I take (except my $10 admission
fee that everybody else paid too). So I'm getting free material to work
with. Fair use and the limited terms of copyright insure a property
right where there otherwise would not be one in exchange for a
compensation structure that insures society as whole gets something back
for what is taken for free.
---Steve
Date Tue, 09 Sep 2003 130341 -0400
From "James Maule" <maule@law.villanova.edu>
To <brandon@corruptedtruth.com>, <declan@well.com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
It is different in several respects.
First, I am paid for the future profits I would have earned if the
condemnation did not take place. The P2P folks don't want to pay
anything.
Second, there are due process opportunities to contest the taking and
to dispute the amount of the damages. The P2P folks simply do the taking
without notice, hearings, or any other procedural safeguard.
Third, the condemnation of my building is an act of duly elected
government officials, and in many instances, while the condemnation
proceedings are underway, voters have ousted from office the officials
trying to take the property. The P2P folks are "take the law into their
own hands" types ... analogous to someone simply moving me out of the
model railroad barn by use of tanks or some form of terrorism.
I'm not arguing against the expiration of copyright (which is very
different from the in perpetuity nature of other property ownership).
Patents also expire. So do franchies and licenses (though those are
privately created, and need not expire if the contract makes them
perpetual).
What I'm arguing is that so long as the copyright exists, the
copywritten material is the property of the copyright owner. There's a
lot of material "out there" on which there is no copyright (through
expiration or because it is not of copywritable nature), or which the
copyright owner has put into the public domain (explicitly or by
ignoring all infringments). The RIAA liitigation doesn't involve those
items; it involves items which are privately owned and which are easy to
steal because the technology doesn't have the equivalent of the locks,
alarm systems, pit bulls, electric fences, and mine fields that can be
placed around the model railroad barn.
Date Tue, 09 Sep 2003 180542 +0100
From ken <bbrow07@students.bbk.ac.uk>
> Date Tue, 09 Sep 2003 113631 -0400
> From "James Maule" <maule@law.villanova.edu>
> To <declan@well.com>
> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P
> users
[...]
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free?
Not at all. What they are saying is that you should not be allowed
indefinitely to prevent someone else making a similar model railway.
</x-flowed>
Date Tue, 09 Sep 2003 101256 -0700
From Andrew Huntwork <ash@huntwork.net>
User-Agent Mozilla/5.0 (X11; U; Linux i686; en-US; rv1.4) Gecko/20030624
X-Accept-Language en-us, en
MIME-Version 1.0
To declan@well.com
<x-flowed>
So the intellectual property regime of this country for its entire
history is troubling to a law professor? perhaps he should find another
line of work. Remember what Thomas Jefferson said
"If nature has made any one thing less susceptible than all others
of exclusive property, it is the action of the thinking power called an
idea, which an individual may exclusively possess as long as he keeps it
to himself, but the moment it is divulged, it forces itself into the
possession of everyone, and the receiver cannot dispossess himself of
it. Its peculiar character, too, is that no one possesses the less,
because every other possesses the whole of it.
"He who receives an idea from me, receives instruction himself
without lessening mine; as he who lights his taper at mine, receives
light without darkening me. That ideas should freely spread from one to
another over the globe, for moral and mutual instruction of man, and
improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them, like fire,
expansible over all space, without lessening their density at any point,
and like the air in which we breath, move, and have our physical being,
incapable of confinement or exclusive appropriation.
"Inventions then cannot, in nature, be a subject of property.
While Mr. Maule may build a barn-like structure using his own hands
only, it is the rarest of intellectual works that is entirely new and
does not build on the ideas of others. Does every intellectual work
steal from the creators of the ideas on which it is based? I cannot
imagine such a definition of intellectual property being helpful to anyone.
Date Tue, 09 Sep 2003 141939 -0300
From jtaylor <jtaylor@hfx.andara.com>
Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
To declan@well.com
----- Original Message -----
From "Declan McCullagh" <declan@well.com>
To <politech@politechbot.com>
Sent September 09, 2003 102 PM
Subject FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
> Previous Politech message
> "Reply to Hugh Prestwood and RIAA suing individual P2P users"
> http//www.politechbot.com/p-05050.html
>
> ---
>
> Date Tue, 09 Sep 2003 113631 -0400
> From "James Maule" <maule@law.villanova.edu>
> To <declan@well.com>
> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P
users
>
> I don't get the gist of Jason's complaint. Actually, I do.... and it is
> troubling.
>
[ a lengthy expansion of his difficulty deleted... ]
You mis-understand.
There is, in terms of copyright and patent, a difference between physical
things, and ideas and their expression(s). Property rights vested in each
are treated differently. You are taking an example from one arena and
applying it to the other - a common mistake, but unfortunately one made, it
would seem, on purpose and frequently so by those who would gain from an
expansion of their temporary rights.
We assume that your error is genuine and free from such taint...
Date Tue, 9 Sep 2003 172337 +0000 (UTC)
From "Robert J. Chassell" <bob@rattlesnake.com>
To Declan McCullagh <declan@well.com>
CC bob@rattlesnake.com
.... If I build a barn-like structure with my own hands, and then build
a huge model railroad display inside, and then invite the public to
visit for $10 a visit per person, why should I, after some short period
of time, let people in for free?
Let's ask another question If your neighbor, using his hands, not
yours, builds a barn-like structure and model railroad display inside,
should he be forbidden to invite the public to visit?
That is what the question is about can one person use police to
prevent others from using their `means of production' to make
competitive works?
Remember, the question is not really about a `rivalrous' property,
such as a barn and land. (`Rivalrous' is a term used by economists;
it means that your use and mine `rivals' each other; we both cannot
use a barn for different purposes at the same time.)
The question is about how to promote `non-rivalrous' works, the kind
you *cannot* drop on your toe how to promote the design of model
train layouts, not how to build specific model trains. (The use of
frameworks developed for thinking about `rivalrous' property to think
about `non-rivalrous' works is metaphorical, although often not
recognized as such.)
The U.S. Constitution said that to promote `non-rivalrous' works,
... promote the progress of science and the useful arts ...
government enforced regulation could be used, but only `for limited
times'. (U.S. Constitution, Article I, Section 8)
--
Robert J. Chassell Rattlesnake Enterprises
http//www.rattlesnake.com GnuPG Key ID 004B4AC8
http//www.teak.cc bob@rattlesnake.com
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 182442 +0100
X-MS-Has-Attach
Declan,
I worry greatly about a professor of law who doesn't understand the
concept of and differences in "intellectual property" versus physical
property. I'm likewise concerned about a tax lawyer creating simplified
analogies about Constitutional issues.
Copyright, by definition, exists to promote the various arts and reward
the creators a *limited* monopoly on use.
The U.S. Constitution, Section 1, Article 8, Clause 8 reads "[The
Congress shall have Power] To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries".
Disney has made an awful lot of money on items which are in the public
domain, such as Hans Christian Andersen's and Kipling's, and a quick
search will turn up their follies with the Milne estate over their
failure to pay royalties for Pooh. Yet, they want no one to be able to
use that which should also be available to the public in exchange for
the long monopoly which they held. The protections of trademark law
prevent others using Mickey for their own logo.
The original copyright duration was 28 years and could be extended once
for another 28 years. This let most works into the public domain within
a useful period. The excesses of changing that extension first to 47
years and then the period to "life plus 70" has effectively nullified
the public's interest. However, the Constitution clearly states that the
exclusive right is granted only for a limited time "to promote the
progress of science and useful arts".
There is no progress when none can use the works. Current Copyright
violates the spirit of Article 8, and, I expect, the letter of the law,
as well.
Sincerely,
M W Grossmann
(please block address)
To declan@well.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
References <6.0.0.22.2.20030909114510.01f48af0@mail.well.com>
From Michael Poole <mdpoole@troilus.org>
Date Tue, 09 Sep 2003 132623 -0400
It seriously concerns me that, of all people, a professor of law would
so flagrantly muddle intellectual property law with physical property
law. A simple extension of his argument would argue that anyone
running a railroad today should pay license fees to the descendants of
steam engine inventors for things that were invented 200 years ago
(and which have long since passed into engineering basics). On the
other hand, if someone stole my car for a short joyride, I would very
much like to claim $150,000 in damages!
Michael Poole
Message-ID <Pine.BSI.4.56.0309091250280.26120@tom.iecc.com>
From "John R Levine" <johnl@iecc.com>
To "Declan McCullagh" <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free? Why can I not pass that building and
> display on to my kids when I die, giving them something for which they
> can charge admission?
I have to say that I'm troubled to read a message from a professor of law
who seems unaware of the legal and historical basis of copyright law, or
at least is unwilling to acknowledge that basis.
Despite the (depressingly successful, evidently) attempts of the Disney,
the RIAA, et al. to persuade us otherwise, copyright is not the same as
real property. If you build a barn and a railroad, your setup is a unique
object, anyone who wanted to build another barn like it would have to put
about as much effort into their copy as you did into your original, and
anyone who wants to see your barn has to physically visit it.
Books and songs are different, in that copying an original is physically
very easy, much easier than creating the original. For that reason, the
Constitution has specific language creating copyrights, as a specific
offer to authors they get a artificial legal ban against other people
making those easy copies for a while, in return for the material
eventually being available to the public. Authors don't have to take this
deal. If you write a book, you can print up copies and lease them out for
$10/week, using contract law to forbid copying, and you and your heirs can
do that forever. The fact that nearly all authors take advantage of
copyright instead tells us that the copyright deal is a good one for
authors. It permits much wider distribution while still getting payment
to the author -- readers don't have to physically visit your barn and
negotiate with you to read your book.
Unlike ownership of real property, there's no ancient historical tradition
of ownership of copyright. Revolutionary France had no copyright at all,
and modern copyright dates only from the Statute of Anne in 1714. In U.S.
history, copyright has until recent years lasted roughly for the lifespan
of the author, originally 28 years, lengthened to 56 years in the late
1800s. The recent ballooning of the copyright term has only happened
since corporations, which are potentially eternal, have started to own
copyrights and have lobbied in disingenuous ways to extend protection on a
tiny set of still-valuable works from the 1920s that they own.
The social goal of copyright is stated in the Constitution to be to
encourage authors, but very long copyright terms are an extremely
inefficient way to accomplish that. Even if I were to write a copyrighted
work that stayed in print for 70 or 90 years, which is pretty unlikely
(how many books written before 1933 have you bought lately compared to
books written within the past decade?), the vast majority of income from
most books comes in the first few decades, particularly when you take into
account that a dollar in 2073 is worth about three cents today. In the
meantime, the public is denied the access that the copyright deal offered
them for works published in the 1920s, 30s, and 40s.
None of this should come as a surprise to anyone reading this, and
certainly not to anyone familar with U.S. law. So can we stop the
self-righteous complaints that copyright isn't perpetual, please?
Regards,
John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be, http//iecc.com/johnl, Sewer Commissioner
"I dropped the toothpaste", said Tom, crestfallenly.
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 132753 -0400
To declan@well.com
The framers of the U. S. Constitution, understanding the importance of
promoting creativity in the arts and science to a free people, vested
Congress with the power to enact copyright and patent laws. U.S.
Const., art I, section 8, clause 8 provides "To promote the progress of
science and useful arts, by securing for limited time to authors and
inventors the exclusive right to their respective writings and
discoveries." The entertainment industry has continued to push for
legislation that extends the "limited time" for exclusive copyright use,
most recently with the "Sonny Bono Copyright Term Extension Act," signed
into law in 1998. The Act's constitutionality was challenged and
rejected by a majority of the U.S. Supreme Court in an opinion dated
January 15, 2003. (537 U.S. __ 2003). That's what Jason was talking
about James.
Shame on you for speaking out without reviewing your con law notes.
Declan, if you post this, please remove my name and email address since
I am writing in my individual capacity (while using my employer's
facilities).
From "Budd, Tracy"
To "'declan@well.com'" <declan@well.com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 134042 -0400
<Please remove my email address from this>
This analogy makes no sense at all.
>I don't get the gist of Jason's complaint. Actually, I do.... and it is
>troubling.
>So, If I build a barn-like structure with my own hands, and then build
>a huge model railroad display inside, and then invite the public to
>visit for $10 a visit per person, why should I, after some short period
>of time, let people in for free?
If you are going to use this analogy, then the people don't want to be
let in for free. They would like to be able to take a picture of your
setup and build their own at home.
>Why can I not pass that building and
>display on to my kids when I die, giving them something for which they
>can charge admission? Under current law, the property right (created by
>my physical efforts and the creativity of how I designed the layout and
>its accessories) is eternal. (Sure, I'll pay taxes to repay society for
>the burden my property puts on the environment, for police protection,
>etc..... just as creative artists pay taxes).
Again, using your analogy, someone can legally "copy" your train setup
in their own home. What you want to prevent is anyone from ever
duplicating or making a derivative of your train setup forever. Now you
might say, the model train setup (physical property) is not the same as
IP, and I would agree. This and similar equivocating physical with real
property is simply propaganda that does not hold up to scrutiny.
Regards,
-Tracy
Date Tue, 9 Sep 2003 124239 -0500
From mdelvecchio@visi.com
To declan@well.com
Cc maule@law.villanova.edu
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Ok maybe im missing some critical peice of information, but...
it sounds to me Mr. Maule's argument fails, because he's making an analogy
between property law and intellectual property law. that fails because unlike
physical property, IP has a built-in TTL (time to live).
from the beginning IP has been designed to expire because lawmakers knew and
understood that to create wonderful new IP, we need the ability to draw upon
previous ideas.
and yet, due to the depthless coffers of RIAA/MPIAA/Disney, these limitations
are continuously extended.
so i think what we are seeing is a natural sort of backlash to these continus
extentions of IP. cause and effect...
matt
--
Matt Del Vecchio
From Vicki Richman <vicric@vicric.com>
To Declan McCullagh <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
> Date Tue, 09 Sep 2003 113631 -0400
> From "James Maule" <maule@law.villanova.edu>
> To <declan@well.com>
> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users
[Likening copyright to ownership and use of real property,
Professor Maule writes]
> So should my grandchildren get to live off my model railroad creation?
Perhaps the father of modern copyright law, Mark Twain said
in defense of limitation
I like that extension of copyright life to the author's
life and fifty years afterward. I think that would
satisfy any reasonable author, because it would take
care of his children. Let the grandchildren take care of
themselves. That would take care of my daughters, and
after that I am not particular.
http//www.boondocksnet.com/twaintexts/speeches/mts_copyright.html
And that indeed is what happened, although not in a way that
Mark Twain intended. Because she deemed it pornographic,
Twain's daughter Clara Clemens denied scholars copies of
certain of her father's late unpublished work. It was only
in the 1960s, when his work came into the public domain,
that the full body of Twain's writings became known to the
public.
Before the 1960s, some of Twain's work was smuggled out of
Clara's possession and pirated. I still have my bootleg
first edition of "1601," one the bawdiest tales ever
written.
Copyright is a two-edged sword, as Clara Clemens and
Scientology have shown. It can be used to conceal, to
censor, to cut off part of our common culture, as well as to
gain an income.
Solidarity,
--
Vicki Richman
vicric@vicric.com
http//vicric.com
Date Tue, 09 Sep 2003 105613 -0700
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
From "E. Miller" <subscriptionbox@squishymedia.com>
To <declan@well.com>
Cc <maule@law.villanova.edu>
Howdy,
Just a comment on this comment I thought that this response was extremely
literal. All output of labor = personal property, all personal property =
total control and ownership in perpetuity. What a strange world we'd live
in if that were the case. I hereby claim eternal ownership of the carbon
dioxide I just exhaled. Keep your filthy lungs away from my CO2. Your
houseplants too. Seriously, I mean it.
Well, if we WANT a society in which everything is a commodity, if everything
can be owned and controlled by transient private entities, then we may just
get that. But that's a wildly naïve and absolutist view of our role as
ephemeral participants in collaborative society built on the eternal
exchange and elaboration of ideas, emotions, materiel goods...
Our individual actions influence the shape of society, sometimes for the
worse, but hopefully for the better. The same goes for production; it is
best for society if the actions of individuals contributes to the well-being
of society as a whole. Sometimes that's congruent with self-interest
(entrepreneurialism) and sometime it's not (theft). Sorry, Adam.
So it strikes me as amusing that the poster (from a good law school, at
that) doesn't differentiate between pure self-interest as expressed by the
entrepreneur (selling admission and claiming eternal ownership of profits)
and pure self-interest as expressed by the putative thief ("stealing" by
consuming an experience with zero marginal cost for the producer).
In the US we have somehow developed this odd collective self-delusion that
there isn't a differentiation between self-interest and collective interest.
And that's absurd. 'Cause you know what? You're going to die someday.
We're all going to die someday. And a system that assigns complete control
of physical, social, and cultural contributions to society to entities that
will soon be dead and decomposing...now that's asinine. Like I said, in an
extreme example don't you dare inhale my CO2.
We have to realize that we can't completely own the experiences that
constitute society any more than we can own air. But what the hell do I
know, I'm just a reformed ex-music major and a creative content producer...
Eric
Date Tue, 9 Sep 2003 135902 -0400
To maule@law.villanova.edu, declan@well.com
From Brent Neal
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
>
[Declan - if you post this to Politech, please obscure my email address]
Jim,
Did you perhaps see "League of Extraordinary Gentlemen" this summer?
Or did you ever see Disney's 20,00 Leagues Under the Sea. What about
Disney's "The Little Mermaid" or "The Hunchback of Notre Dame?" What
about "Tarzan?" Did you buy those DVDs for your kids? Your grandkids?
If you did, then you are in principle as guilty as you claim that the
file sharers are. The only difference is that you've lucked out the
great writers of the 19th and early 20th century did not have the
wonderful "protections" that modern artists do.
The fact is that without reasonable limits on copyright terms, NONE
of those movies would have existed. End of story. The public domain
is a living, vital source of ideas and material for new creative
works. You could easily argue that Disney would not be one of the
world's premier entertainment companies without their repeated use of
the public domain. Now, imagine the world without Disney. While I
cannot deny that the abuse that they've placed on our copyright
system and the violence that they have done to many literary classics
has been egregious, Disney has provided a creative outlet for many
original works as well. To have Mickey Mouse and Donald Duck never
exist at all due to the interests of selfish creators would be far
worse. Yet, our current copyright regime guarantees that the
entertainment companies of the future will never have the same
resources as the early Disney studios did, simply because the
copyright regime does not respect the value of the public domain.
Your example of the barn has two major flaws. First, you assume that
society as a whole benefits if a creator (or his inheritors) can in
perpetuity restrict any usage of his work. It is quite clear given my
previous example that this is not the case. The second flaw seems to
be a popular one these days, which is the assumption that ideas can
be treated like plots of land. This assumption may make the lawyers'
lives easier, since they aren't burdened with the task of
constructing a new framework for intellectual property, but it is
clearly what programmers call a "dirty hack," i.e. something that was
thrown in because it was (marginally) better than nothing at the time.
One thing about dirty hacks is that when the programmer has time, or
when the hack's usefulness has been outlived, is that they either get
replaced by more elegant code. It is clear to me, and to many
others, it seems, that the usefulness of that "plot of land"
assumption is growing long in tooth, and needs to be rethought
carefully, before a tiny handful of large companies wind up owning
the totality of our cultural and creative output.
If only our lawmakers would have as much pride in -their- code, as
programmers have in theirs.
Brent
Date Tue, 09 Sep 2003 142901 -0400
From "James Maule" <maule@law.villanova.edu>
To <mdelvecchio@visi.com>, <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
I'm not ignoring that distinction, nor did I argue for perpetual
copyright.
I merely argued that the existence of a term doesn't convert the
property into something that is in the public domain at the outset. So
long as something is protected from copyright, permitting P2P folks to
"take over" the reproduction and distribution part of the process is to
permit theft of the profits that can be generated from someone's
efforts.
So even if there were a "take all" estate tax that took my model train
barn when I died (and it didn't go to my descendants), that wouldn't
justify someone sneaking in without paying the entrance fee.
>>> <mdelvecchio@visi.com> 9/9/03 14239 PM >>>
Ok maybe im missing some critical peice of information, but...
it sounds to me Mr. Maule's argument fails, because he's making an
analogy
between property law and intellectual property law. that fails because
unlike
physical property, IP has a built-in TTL (time to live).
from the beginning IP has been designed to expire because lawmakers
knew and
understood that to create wonderful new IP, we need the ability to draw
upon
previous ideas.
and yet, due to the depthless coffers of RIAA/MPIAA/Disney, these
limitations
are continuously extended.
so i think what we are seeing is a natural sort of backlash to these
continus
extentions of IP. cause and effect...
matt
--
Matt Del Vecchio
Date Tue, 09 Sep 2003 143836 -0400
From "James Maule" <maule@law.villanova.edu>
To <subscriptionbox@squishymedia.com>, <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
If it is in my self-interest to kill you and in your self-interest to kill me, and if society's self-interest either doesn't care, or favors you, or me, we have a mess. What solves that problem is law... from Constitution through statute to regulation and judicial opinion. Whether or not we agree that there should be copyright protection that creates private property, that is a question separate and apart from the fact that our legal system does so provide. Likewise, perhaps we should communally own all property and not just the O2 that MY houseplants produce for you to breath <G>, but we don't have such a system (and attempts at doing that way haven't worked). So, as long as we have what we have, and even though we can lobby to change it, there's no excuse for a person deciding that in their self-interest they will take what belongs to another under the law, or that they will drive their Humvee through the red light through a crowd of pedestrians because their self-interest in getting somewhere quickly trumps the self-interest survival desires of the pedestrians. The law exists to resolve the conflicts among our individual and collective self-interests.
And, incidentally, I tried, diplomatically, to differentiate between the self-interest that is pursued within the law and the self-interest pursed outside the law. That I have a bias favoring the former and disrespecting the latter is a matter of values.
>>> "E. Miller" <subscriptionbox@squishymedia.com> 9/9/03 15613 PM >>>
Howdy,
Just a comment on this comment I thought that this response was extremely
literal. All output of labor = personal property, all personal property =
total control and ownership in perpetuity. What a strange world we'd live
in if that were the case. I hereby claim eternal ownership of the carbon
dioxide I just exhaled. Keep your filthy lungs away from my CO2. Your
houseplants too. Seriously, I mean it.
Well, if we WANT a society in which everything is a commodity, if everything
can be owned and controlled by transient private entities, then we may just
get that. But that's a wildly naïve and absolutist view of our role as
ephemeral participants in collaborative society built on the eternal
exchange and elaboration of ideas, emotions, materiel goods...
Our individual actions influence the shape of society, sometimes for the
worse, but hopefully for the better. The same goes for production; it is
best for society if the actions of individuals contributes to the well-being
of society as a whole. Sometimes that's congruent with self-interest
(entrepreneurialism) and sometime it's not (theft). Sorry, Adam.
So it strikes me as amusing that the poster (from a good law school, at
that) doesn't differentiate between pure self-interest as expressed by the
entrepreneur (selling admission and claiming eternal ownership of profits)
and pure self-interest as expressed by the putative thief ("stealing" by
consuming an experience with zero marginal cost for the producer).
In the US we have somehow developed this odd collective self-delusion that
there isn't a differentiation between self-interest and collective interest.
And that's absurd. 'Cause you know what? You're going to die someday.
We're all going to die someday. And a system that assigns complete control
of physical, social, and cultural contributions to society to entities that
will soon be dead and decomposing...now that's asinine. Like I said, in an
extreme example don't you dare inhale my CO2.
We have to realize that we can't completely own the experiences that
constitute society any more than we can own air. But what the hell do I
know, I'm just a reformed ex-music major and a creative content producer...
Eric
Date Tue, 09 Sep 2003 144628 -0400
From "James Maule" <maule@law.villanova.edu>
To <rick@rickbradley.com>, <declan@well.com>
Cc <politech@politechbot.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
I understand that the inartful expression of the comparison (which I
corrected in another post) can generate the impression I am arguing for
eternal copyright by analogy to other parts of property law. I'm not.
And in fact, technically, there are limits on the extent to which
ownership and control of property can be extended into perpetuity.
That, however, does not mean that a comparison between one part of
property law (ownership of a self-built barn and model railroad layout)
and another part of property law (ownership of copyright) is a
"conflation". To both parts of property law belongs this maxim "If the
property [copyright, barn, or model layout] is owned by a person, no
other person has a right to take it or use it without consent, and if
that consent is conditioned on payment of compensation, a taking or use
without payment of that compensation constitutes civil and criminal
theft, trespass, or illegal appropriation, depending on the
circumstances."
The difference in term of the right (limited term for copyright, much
longer, perhaps perpetual term, for real property) does not translate
into a notion that because the copyright term will end we might as well
ignore the copyright now. There's just no getting around the lack of a
legal difference between stealing a CD from a store and stealing it from
a source closer to its creation. Except, of course, it's a tad more
difficult to shoplift than it is to set up a P2P network that feeds off
the efforts of others.
>>> Rick Bradley <rick@rickbradley.com> 9/9/03 21640 PM >>>
* Declan McCullagh (declan@well.com) [030909 1149]
> From "James Maule" <maule@law.villanova.edu>
>
> So, If I build a barn-like structure with my own hands, and then
build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short
period
> of time, let people in for free? Why can I not pass that building
and
> display on to my kids when I die, giving them something for which
they
> can charge admission? Under current law, the property right (created
by
> my physical efforts and the creativity of how I designed the layout
and
> its accessories) is eternal. (Sure, I'll pay taxes to repay society
for
> the burden my property puts on the environment, for police
protection,
> etc..... just as creative artists pay taxes).
[...]
> But if I were to write a song or make a movie about my model layout
you
> want yourself (or others) to have access to it for free, at least
after
> some short period of time? I'd sue someone who breaks in or tries to
> enter without paying, and the fact that the person is a "fan" of my
> railroad layout doesn't matter.
Declan,
What's disturbing to me is that a professor of law affiliated with a
respectable legal program conflates a property right with copyright.
While it is perhaps forgiveable for a layman (such as myself) to
proffer
such an ignorant analogy I'm interested in hearing the excuse Prof.
Maule makes for dealing so sloppily with his legal metaphors.
Rick
--
http//www.rickbradley.com MUPRN 856
| want the contract to
random email haiku | include. Some of the work would
| now be done offsite.
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule@law.villanova.edu
http//vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
To declan@well.com, maule@law.villanova.edu
Date Tue, 9 Sep 2003 144743 -0400
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Message-ID <20030910.022851.-113720487.0.terry.s@juno.com>
On Tue, 09 Sep 2003 120234 -0400 Declan McCullagh <declan@well.com>
writes
> Previous Politech message
> "Reply to Hugh Prestwood and RIAA suing individual P2P users"
> http//www.politechbot.com/p-05050.html
> Date Tue, 09 Sep 2003 113631 -0400
> From "James Maule" <maule@law.villanova.edu>
> I don't get the gist of Jason's complaint. Actually, I do.... and it
> is troubling.
Let me add to those troubles.
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free?
Simple answer.... Constitutional law makes an arbitrary construct
wherein IP is different than physical property.
Troubling answer.... Our Constitution contains certain paradoxes, were
it taken more seriously. Law seminary teaches some faith based delusions
for pretending the entire legal system is something more solidly rooted
than a self-contradictory house of cards waiting for the right (or wrong)
puff of air.
Human supremacy in our legal system has a basis in theocracy rooted
Common Law, which is inherently at odds with religious equality so long
as a single citizen of different beliefs exists (eg, those Indians
formerly not taxed, and formerly counted as something other than humans
too, whose beliefs consider humans stewards of the land and not supreme
over nature, whether the ecosystem or other species of animals). Under
that belief system, private property "ownership of the Earth" is
impossible, and its treatment in European theocracy rooted law a fraud
and paradox, waiting to be collapsed (consider real, chattel, and
personal property from that viewpoint). (Stipulated, there's also a
neutral legal issue of communications with other species whereby it's
functionally impossible to have a legal system that treats all species
equitably, in balance with discriminatory roots in xtian biblical dogma
calling for tearing down institutionalized legal bigotry that didn't
conflict in 1066 c.e. Europe.)
Defining IP law to protect ideas for a limited duration is no more or
less arbitrary than other Constitutional constructs that recognize
different forms of private property "real", "personal", "corporate
creature", etc.), or which have distinguished blacks as 3/5th persons for
apportionment and taxation, or Indians as non-humans.
> Why can I not pass that building and
> display on to my kids when I die, giving them something for which they
> can charge admission? Under current law, the property right (created
> by my physical efforts and the creativity of how I designed the layout
> and its accessories) is eternal.
That example obfuscates the key issue of IP versus physical goods,
assuming the status quo of the legal religion of property law as it
exists today.
It's the building and display that can be passed down, not an exclusive
claim to the notion of a scale model simulation of a railroad that fits
in a building. The notion of model railroad patentable technical
designs, or the artistic layout of that track and artwork application of
technologies, are subject to the same IP law issues as a movie or music
CD. The only real difference is that model train layouts are rarely
copied, as individuals generally are more interested in expressing
individual creativity or adapt layouts to different spaces which invite
differences in application of the same technologies from one creation to
another.
If it were possible to build an HO train layout with 2500 feet of track,
57 switches, and 20 hot sections, with full landscaping, and do so in
under an hour with negligible difference from how someone else
constructed a layout of the same general technical content, would we see
IP litigation over model trains as we do now over music?
Conversely, what of music which has great similarities, but where one
artist did not intentionally copy or sample work of another? That
becomes a controversial area of law, because artists rarely have an end
goal of copying one another in expressing original ideas, and cannot be
expected to live their lives in isolation from radio and musical works of
others for the duration of their creative lives, as engineers do for the
scope of projects with specific intent to create functional equivalent
uPC's or software without reverse engineering or directly copying the IP
content of competitors (over technology "lifetimes" of a few years,
versus entire natural lives for musical influences). In either case,
it's fully legal under present arbitrary fictions of law to attempt "the
same" end result of emotively influential melodies, or model trains
running around tracks, or an AMD uPC that runs the same code as an Intel
model, so long as there are subtle distinctions in what aspects are not
copied directly, even if other aspects use the same materials in similar
manner (though purchased separately, not using goods stolen from the
predecessor).
Where such distinctions in law more based on some absolute rational
distinctions, and not subtle creations of law, there might well be less
litigation or ambiguity over the very legalities of such issues. In any
event, if I were given the same materials my father used to make a model
train setup when I was a kid, and I tried to recreate as closely as
possible what he built, my style would result in a significantly
different model train layout than what he made in the 1960's, no mater
how closely I tried to build a direct replica. Neither would be as
eternal as a theoretical legal ownership of the pieces, as copper would
corrode, plaster of paris would decay with humidity, and colored plastics
and scenery would oxidize and fade. Oils would turn to varnishy gunk if
not used and serviced, while parts would wear if used and serviced.
Ultimately some parts would become junk, while others would survive as
antiques.
With ideas, most do turn to junk, as technology becomes obselete, while
only a key few survive the ages. As Ovid remarked long ago, his
(dissident political) poetry would survive, as the expensive stone
monuments of the politicians he criticised turned to waste (under more
acid rain than he ever anticipated). It may be the very nature of IP law
to have limited duration which helps some ideas last longer than most
physical "property".
How about a more pragmatic challenge?
Canada protects IP rights of pharmaceuticals for 10 years, the USA for 25
(in addition to other aspects of price regulation and voluntary marketing
by drug vendors). The Internet allows me to help my elderly parents save
about $4,000 a year on their medical needs by comparison shopping the USA
market as the cheapest source for some items, and importing others from
Canada, Mexico, or New Zealand, and by shopping for the same items from
OEM's in different markets with arbitrary differences in pricing, or
generics not yet available under USA laws unless imported under wierd USA
drug laws.
The intent of USA Constitutional provisions for IP law aren't to create
proprietary lifetime rights (of a natural person or Disney Corp
"lifetime"), but to balance incentive for creation with a public gain
from sharing ideas. Is there a single optimum "lifetime duration" for IP
rights to maximize creation incentives while creating public benefit from
ideas? Does IP law need to be made more complex, to classify "short
lifetime" technologies separately from "long lifetime" artistic ideas in
order to optimize that balance? How can such legal notions be defined
rationally, in algebraic formulas which could be differentiated to find
the optimum private and public benefit, recognizing both economic value
and other human benefits less easily reduced to numbers?
That is, after all, the underlying "legal theology" of present IP law,
which distinguishes IP from other arbitrary legal categories of so-called
"property". Trains or music are little different than the peculiar model
wherein a recipient becomes the owner of the paper of a letter, while the
sender retains ownership of the ideas expressed, subject to implied
license or Fair Use limits on exclusivity of that ownership.
Terry
Reply-To <admin@consumer.net>
From mail@consumer.net (admin)
To <maule@law.villanova.edu>
Cc <declan@well.com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 144947 -0400
What do you think of www.Archive.org? This is owned by Amazon and they
reproduce many millions of web pages along with ads to the Alexa service.
They don't have permission from the copyright owners in the vast majority of
cases.
Russ Smith
http//consumer.net
Date Tue, 9 Sep 2003 115058 -0700 (PDT)
From Peter Boothe <peter@cs.uoregon.edu>
To Declan McCullagh <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
> Date Tue, 09 Sep 2003 113631 -0400
> From "James Maule" <maule@law.villanova.edu>
> To <declan@well.com>
> Subject Re FC Reply to Hugh Prestwood and RIAA suing individual P2P users
>
> Why can I not pass that building and display on to my kids when I die,
> giving them something for which they can charge admission?
You certainly may, although unless you die in an upcoming 2 year window,
every generational transfer will most likely be taxed.
> But if I were to write a song or make a movie about my model layout you
> want yourself (or others) to have access to it for free, at least after
> some short period of time?
Yes. And the founding fathers agreed and so put in the Constitution that
copyright duration could only last for a limited time. The relevant
sentence in that section reads
The Congress shall have power
...
To promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries;
(Constitution, Article I, Section 8)
Any system that didn't eventually give your song to everyone would be
unconstitutional. The niggling, of course, comes about in the phrase
"limited times". Much wrangling over whether copy-right is a so-called
"natural right" or a "given privilege" can be found at many places on the
internet, but it's pretty clear that the founding fathers didn't want it
lasting for too long as the initial setup was for copyrights to last for
only 14 years. Currently copyright lasts for the life of the author + 75
years - which many people do not see as a "limited time" at all, leading
to a disconnect between the law and what people believe to be right.
This disconnect has caused people to violate the law on a breathtaking
scale via actions that most seem to feel are not unethical. Which is a
bad thing for society as a whole, and the only two ways out seem to be to
change the law or change society.
Jason is advocating the first, the MPAA and RIAA are trying to bring about
the second, and it seems like you are saying that nothing is wrong with
the current setup at all.
-Peter
--
Trying to make bits uncopyable is like trying to make water not wet. The
sooner people accept this, and build business models that take this
into account, the sooner people will start making money again.
-- Bruce Schneier
Date Tue, 09 Sep 2003 115256 -0700
From Jules Agee <julesa@pcf.com>
User-Agent Mozilla/5.0 (X11; U; Linux i686; en-US; rv1.1) Gecko/20020827
X-Accept-Language en-us, en
MIME-Version 1.0
To maule@law.villanova.edu
CC declan@well.com
<x-flowed>
Jim,
I believe you're exaggerating the position of the person you're
responding to. He has some valid points. Too often I have bought a CD
from an artist who has a good hit single, only to find the rest of the
songs on the CD are junk. With current CD prices around $20, and
production costs under $1/unit, I think music fans have some valid
complaints.
The person you are responding to did in fact say that he does not
personally download songs illegally. Neither do I, for that matter. He
did state "I want to reward your talent and keep bread on your table
because I love your music." His objection is not to get free access
after "a short period" as you suggest. His specific objection was that
copyright should not extend beyond the lifetime of the artist.
At some point you have to acknowledge the value to society of having a
commons, a pool of ideas and culture that we can all access without
paying someone to find out who it belongs to and get all the royalties
and legal obstacles out of the way.
The creative person should be able to receive royalties for the duration
of their lifetime. Their descendants should inherit the real property of
the creative person, (hopefully some of the royalty payments were used
to pay life insurance and to buy real property), but they should not be
able to collect copyright royalties on their ancestors' work.
By your logic, we should all be paying yearly royalties to the composer
of "Happy Birthday" and Christmas carols, libraries should be shut down,
and automotive manufacturers should still be paying the descendants of
the inventor of the wheel.
Date Wed, 10 Sep 2003 002317 +0530
From Devdas Bhagat <devdas@dvb.homelinux.org>
To Declan McCullagh <declan@well.com>
On 09/09/03 1202 -0400, Declan McCullagh wrote
Quoting Jim Maule
<snip>
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free? Why can I not pass that building and
> display on to my kids when I die, giving them something for which they
> can charge admission? Under current law, the property right (created by
> my physical efforts and the creativity of how I designed the layout and
> its accessories) is eternal. (Sure, I'll pay taxes to repay society for
> the burden my property puts on the environment, for police protection,
> etc..... just as creative artists pay taxes).
But you cannot stop anyone else from replicating the effort you put into
your work and doing the same. On the other hand, copyright does restrain
what another person can do.
Copyright is a temporary monopoly granted by /society/ to people so that
their work can later benefit all of society.
The monopoly is the price paid by society to the thinker of a novel idea
to encourage such thoughts as benefit society, but which will not
benefit the thinker unless said thinker has a monopoly on the idea.
Copyright works for anything which is hard to do the first time, but can
be replicated indefinitely for very low costs.
> But if I were to write a song or make a movie about my model layout you
> want yourself (or others) to have access to it for free, at least after
> some short period of time? I'd sue someone who breaks in or tries to
No. The free access is always there. There is no cost imposed on copying
and replicating your idea. Society sets a value on your creativity by
giving you a limited opportunity to turn that idea into hard cash.
The real benefit to society lies in replicating those ideas, and if you
wish to remove that benefit, then I see that no group of people has any
responsibility to keep your ideas unreplicated.
Think of it as a lead start granted to you in a race to replicate ideas
because you were the first to think of it. Copyright is a *privilege*
granted to thinkers by society for the long term benefit of its members.
> enter without paying, and the fact that the person is a "fan" of my
> railroad layout doesn't matter. Muggers are "fans" of my wallet.... but
> they're not going to get the legal system to support their claim. Oh,
When a mugger takes your money, you are deprived of it.
When your idea is duplicated, you are not deprived of the idea.
<snip>
> So should my grandchildren get to live off my model railroad creation?
> Yes, unless society through its legislatures, imposes a "take all"
I agree with this point.
> estate or similar tax. It ought not be decided by outlaw renegade "do it
> yourself wealth redistribution entrepreneurs" (a fancy word for mugger,
> thief, embezzler, etc.). Sure, my grandchildren could be creative and
> make their own model railroad layout or whatever else suits them. And,
> just as well, these P2P activists can go and create their own music
> rather than stealing someone else's work.
Should society be deprived of the right to copy ideas, to understand
them, to modify and expand on them?
I wonder whether you could create modern society without that right.
We are here because we stand on the shoulders of giants. Would you
rather live in a world in which you did not have access to the ideas of
these people?
I know I would rather not.
<snip>
> So the underlying premise of the entire argument of the "we share other
> people's property' crowd makes no sense unless it is viewed as a "I want
> it, you have it, I'll find a way to take it." Hmmm.... sounds like
> several national leaders of the 30s in Europe and the Pacific Rim......
Or you could choose to see them as people who choose to withdraw privileges
granted to a certain section of society because those privileges are
being abused?
If I were to put the reasoning behind copyright in a few lines
"We can copy your idea now, but we choose not to, because the long term
benefit we get from your newer ideas is likely to be greater than the
short term benefit we gain by immediately replicating your idea. In
return for our restraint, you will agree to make your idea freely
replicable by anyone after a certain reasonably short period of time.
During this time, we will not replicate your idea and will let you
obtain what benefits you can by exchanging this idea for other ideas.
To show commitment to this deal, we will enshrine it in the form of a law."
> So, they're "not consumers anymore." So what are they? Can we dare
> utter the words?
Hmmm, if one party to a contract decides not to honour the contract, is
the other party still bound by the terms of that contract?
Devdas Bhagat
Date Tue, 9 Sep 2003 145815 -0400
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Content-Type text/plain; delsp=yes; charset=US-ASCII; format=flowed
Mime-Version 1.0 (Apple Message framework v552)
From Wes Rand <wrand@mac.com>
To declan@well.com
<x-flowed>
On Tuesday, September 9, 2003, at 1202 PM, Declan McCullagh wrote
> The idea that people come to visit and pay $10 because they want to
> expand on my work? Rubbish. They simply want to get in for free because
> they think they're "special" and don't need to abide by the rules that
> bind the rest of us. They're like folks who go straight from the left
> turn lane... and the fact more and more people act so idiotically is
> nothing more but proof that a few bad apples in the barrel, if
> permitted
> to remain, spoil the rest.
>
> So the underlying premise of the entire argument of the "we share other
> people's property' crowd makes no sense unless it is viewed as a "I
> want
> it, you have it, I'll find a way to take it." Hmmm.... sounds like
> several national leaders of the 30s in Europe and the Pacific Rim......
>
> So, they're "not consumers anymore." So what are they? Can we dare
> utter the words?
>
> -----------------------------------------------------------------------
> --
>
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
Declan-
I have to say that I am shocked that a professor of law has such a
fundamental misunderstanding of the concept of copyright (and its
cousin, patent.) To equate a physical object -- property -- with a
creative work reveals a disturbing ignorance on the subject.
Jason wrote an interesting letter expounding upon the debate about
copyright and how Hugh's ideas undercut the basic concept of copyright.
Jim's (clumsy) response flies right by the points that Jason makes --
unusual for distributions on your list. Hopefully we can read a more
cogent defense of Hugh to keep an interesting debate going.
-Wes Rand
Date Tue, 09 Sep 2003 150309 -0400
From "James Maule" <maule@law.villanova.edu>
To <admin@consumer.net>
Cc <declan@well.com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
If a page is copywritten, and it has been reproduced, without
permission, there is a violation. Are there damages? In some instances,
probably not. In others, surely. For example, if a newspaper is charging
an access fee to get to its past issues, and archive.com is grabbing the
pages on the day of publication and making them available for free,
there's no question that archive.com is undercutting the newspaper's
market.
I can think of one defense and it rests on this if the owner of a web
page replaces it, does the earlier version get treated as though the
copyright in it were abandoned? Economics might dictate that the
replacement of a web page, or book, with a later edition, sometimes
makes the earlier edition worth so little that there'd be no damages
anyway, or that because of its "first edition" value, its
misappropriation would generate damages.
The irony is that given what they're trying to do at www.archive.org is
worthwhile in principle, why not ask permission? It is likely they'd get
permission for most pages, especially those that are not commercial in
nature.
>>> mail@consumer.net 9/9/03 24947 PM >>>
What do you think of www.Archive.org? This is owned by Amazon and
they
reproduce many millions of web pages along with ads to the Alexa
service.
They don't have permission from the copyright owners in the vast
majority of
cases.
Russ Smith
http//consumer.net
Date Tue, 09 Sep 2003 150552 -0400
From Jonathan Peterson <jonathan@way.nu>
User-Agent Mozilla/5.0 (Windows; U; Windows NT 5.0; en-US; rv1.4) Gecko/20030624
X-Accept-Language en-us, en
MIME-Version 1.0
To declan@well.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
<x-flowed>
Jesus Christ I'm tired of people who try to equate ideas with THINGS.
James, you seem like a bright guy, see if this helps
RIAA, MPAA and other big content companies and software patent
supporters don't want to protect the revenue from your train museum,
they want want a cut of the action for the very idea of a train and they
want it for eternity. Big Content wants money everytime anyone builds a
model train display, whether it's for personal use, commercial sale, or
educational purposes in a museum. They want money from the
manufacturers of the trains, the tracks, and probably the wood for the
barn. They want money when someone paints a picture of their train
display, writes a fictional book about riding the train or a documentary
about it's construction. In fact is I were to build a big barn and
charge people to look at a doll collection they want a piece of THAT,
welcome to business model patents.
Even if they tear down your train museum because it is no longer
profitable, they want to haul my ass into jail for spending thousands of
dollars of my own money rebuilding it from scratch because it was
something I loved (check on the current state of classic film stock that
is protected from restoration by the MPAA).
Ideas are not things. Ideas surely have value, but the idea itself is
not devalued when shared. Please tell me who loses money when
Kindergarten teachers in Sweden sing a song with their class or when
taxi drivers turn on the radio?
The use of real-world metaphors for things that are not devalued when
shared is a lie. Don't listen to RIAA's lies and don't fall under their
spell.
Jonathan Peterson
e - jonathan@way.nu
p - 404-966-9493
w - http//www.way.nu
w - http//www.corate.com/amateur
From "Dave McClure" <dmcclure@usiia.org>
To <declan@well.com>
Subject RE Jim Maule's defense
Date Tue, 9 Sep 2003 150804 -0400
MIME-Version 1.0
Content-Type text/plain;
Declan, a response to Jim Maule. Personal opinion, of course. . .
Gosh, Jim, what a lovely planet you must live on!
Here on planet Earth, however, things work a little differently than you
describe. Before you ever laid the first nail in your barn, or set one
piece of track on your model railroad, you would be forced by contract --
the only contract that would enable anyone to ever hear of your work -- to
sell all rights to your creation to the MegaBucks Corporation.
MegaBucks would open it for a few weeks, and when sales fell off would stick
it in a warehouse, never to be seen again.
Your children and grandchildren would not benefit from your works, because
you have already sold all the rights to keep your family fed years ago.
Eventually, the railroad and building would rot away (much as so many of the
world's films are rotting today in studio vaults). And your work would
never be seen by anyone, ever, again.
Hard to believe? Just ask artists like Janis Ian, who is barred from
selling her own works from the Sixties. She signed a contract assuming that
in a fixed number of years she would be able to again benefit from her
creative efforts, as the contract specified. Surprise! MegaBucks Corp got
Congress to extend the number of years. And extend. And extend. The
contracts signed in good faith by artists aren't worth spit.
The people who created limited copyrights were not the Fascists and Nazis of
the 1930's (but kudos for a GREAT cheap shot, there, Jim!). They were the
framers of the US Constitution.
And what they understood was this If we allow a handful of corporations to
lock up all aspects of culture, most of it will rot in vaults. There will
be no great symphonies from the 20th century. No great literature. No
great films. In its place will be a great void of ambivalence fostered by
companies whose charter to increase the wealth of their shareholders
over-rides any consideration of culture. Don't believe it? Try to buy the
works of artists from the 1920's, other than the small handful who are
slapped into "greatest hits" volumes.
I won't side with the downloaders. Sure, they are breaking the law. But I
believe that it is US law governed by the Constitution that must rule our
legal response to copyright violations, not the "off with their heads"
approach of the entertainment industry. And not the members of Congress who
would sell our heritage to benefit a handful of corporations. Funny how we
forget that the greatest liberties we enjoy were bought by "criminals" who
"broke the law" with acts of civil disobedience. I believe that if old Sam
Adams were alive today, he'd be downloading from KaZaA and burning his own
CDs.
Note to members of Congress Does it strike anyone that this seems
perilously close to what happened with that Prohibition thing you tried to
do? Gosh, do you think the 60 MILLION US DOWNLOADERS (and the friends and
relatives of those being sued today) will have any impact on the elections
next year?
As for the hand-wringing emotional appeals of poor starving artists, widows
and orphans from whom the downloaders are stealing the bread from their very
mouths. . .well, it is specious nonsense. Anyone who has ever worked in the
music industry knows that the money you get up front is likely the only
money you will ever see, and that this battle is less over right and wrong
than an entrenched entertainment bureaucracy petrified by new technologies
and consumer trends.
Before we go charging off to fight the good fight against those evil
law-breakers, let's ask a couple of basic questions
1) Of the damages recovered by the RIAA, what percentage actually goes to
the artists who are allegedly injured? Does the money even go the studios,
or is it kept by the RIAA?
2) How many of the accused benefited in any way from their misdeeds? Did
they make anything close to $150,000 per song, or did they just have a
collection of songs they liked to listen to?
3) If their cause is just, why is the RIAA refusing to compensate ISPs for
processing the subpoenas?
4) If this is aimed at scofflaws and not a twisted misuse of the law for
competitive advantage, how many subpoenas have been served to the America
Online division of AOL Time Warner, a major member of the RIAA? (last time I
looked, the answer was "zip, zero, none.")
5) How is it possible that the war on terrorism, a major economic downturn,
a lack of new and innovative creative works (do you think it is an accident
they are having to drag geriatric rockers out of retirement to fill the
venues?), the music industry's slap on the hand for price fixing, and its
reliance on an obsolete distribution method. . .how is it possible that NONE
OF THESE FACTORS contributed to the loss of CD sales? How come only file
sharing is the cause?
If King George thinks we will continue to allow these taxes on the tea we
want. . .oops. Wrong injustice. If the music industry thinks we will
continue to pay outrageous fees for a tiny vinyl disk filled with crap. .
.well, hell. I think I'm just gonna dress up like an Indian and head down
to the harbor.
Regards,
Dave McClure
Date Tue, 9 Sep 2003 141242 -0500
From Rick Bradley <rick@rickbradley.com>
To James Maule <maule@law.villanova.edu>
Cc declan@well.com, politech@politechbot.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
* James Maule (maule@law.villanova.edu) [030909 1347]
> I understand that the inartful expression of the comparison (which I
> corrected in another post) can generate the impression I am arguing for
> eternal copyright by analogy to other parts of property law. I'm not.
> And in fact, technically, there are limits on the extent to which
> ownership and control of property can be extended into perpetuity.
>
> That, however, does not mean that a comparison between one part of
> property law (ownership of a self-built barn and model railroad layout)
> and another part of property law (ownership of copyright) is a
> "conflation". To both parts of property law belongs this maxim "If the
> property [copyright, barn, or model layout] is owned by a person, no
> other person has a right to take it or use it without consent, and if
> that consent is conditioned on payment of compensation, a taking or use
> without payment of that compensation constitutes civil and criminal
> theft, trespass, or illegal appropriation, depending on the
> circumstances."
The problem with the analogy before and the explanation here is that
copyright law is not property law, nor is it a subset nor a derivative.
As you are aware the long genealogy of these branches of law share
little common history, the establishment of the separate rights in this
country proceeds from disparate sources, as well the statutory and
caselaw evolution of these bodies of law are highly divergent.
Copyright is not property, but is established in our Constitution as a
limited monopoly over certain rights. The conflation of property with
copyright is a relatively recent (political) campaign to bestow the
protections commonly associated with property upon a set of rights of a
fundamentally different nature.
The limited monopolies established by the Constitution create certain
tradeoffs. As an attorney friend (and Politech subscriber, Howard
Merry, Esq.) once put it to me
"[It is an] unavoidable Constitutional fact that copyrights are
explicitly in some sort of balance with a concomitant reduction in
freedom of speech. Regardless of what the Court thinks about that
balance at the current time. . ."
I'm at a loss to reconcile the behavior of the institution of copyright
with the rights afforded to private property.
> The difference in term of the right (limited term for copyright, much
> longer, perhaps perpetual term, for real property) does not translate
> into a notion that because the copyright term will end we might as well
> ignore the copyright now. There's just no getting around the lack of a
> legal difference between stealing a CD from a store and stealing it from
> a source closer to its creation. Except, of course, it's a tad more
> difficult to shoplift than it is to set up a P2P network that feeds off
> the efforts of others.
I take no umbrance with discussions of copyright terms, nor the exercise
of defensible copyrights under legislated terms. If a creator holds a
right in a work then that right adheres until the time of its
expiration.
However, we deal in no fine distinction when we discuss the theft of a
fixed expression of a work (such as a CD within the confines of a shop),
versus the infringement of copyrights held by the creator of a work.
There is a very simple way around the purported lack of legal
distinction between property theft and infringement of copyright
recognition that the legal distinction not only exists but is as
fundamental as the difference between recourse for a gunshot wound and
the cause of action for violating the terms of a contract. While a
popular analogy can confuse the layman, the law is clear on how these
matters are miles apart.
Rick
--
http//www.rickbradley.com MUPRN 633
| to charge them fees for
random email haiku | access to songs, movies and
| other media.
)
To maule@law.villanova.edu
Cc declan@well.com, "bcleland" <bcleland@ipi.org>,
"policyguy1" <mmatthews@ipi.org>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
MIME-Version 1.0
X-Mailer Lotus Notes Release 5.0.11 July 24, 2002
From "Thomas A Giovanetti" <tomg@ipi.org>
Message-ID <OFF74A1332.B628DE62-ON86256D9C.0069410B-86256D9C.0069C41E@org>
Date Tue, 9 Sep 2003 141514 -0500
I was delighted to see your posting.
I thought I was the only one who believed in a perpetual right to intellectual property. I have dared not voice it until now.
We do a lot of work at IPI on intellectual property, but I have never dared argue a perpetual right to IP. But I have always believed that there is absolutely no difference between "real" and "intellectual" property.
I agree that Jim Henson's descendents should control and own the rights to his creations, in perpetuity, unless they sell those rights to someone else, who THEN should control them in perpetuity.
all the arguments about the benefits to society of something moving into the public domain are unsupportable. In fact, it is generally recognized that the minute something moves into the public domain, it disappears, because there is no longer any incentive for anyone to do anything further with it.
Thank you for voicing this opinion, and I'd invite you to further discussions about advancing this argument.
_____<br>
Tom Giovanetti<br>
President<br>
Institute for Policy Innovation (IPI)<br>
http//www.ipi.org<br>
tomg@ipi.org<br>
<br>
*Note new address<br>
1660 S. Stemmons Freeway<br>
Suite 475<br>
Lewisville, TX 75067<br>
<br>
From "Matt Del Vecchio" <mdelvecchio@visi.com>
To "'James Maule'" <maule@law.villanova.edu>, <declan@well.com>
Subject RE FC Jim Maule's defense of Hugh Prestwood and RIAAlawsuits
Date Tue, 9 Sep 2003 142037 -0500
Message-ID <001801c37707$742c69d0$f600a8c0@battlewagon>
MIME-Version 1.0
i was referring to "So should my grandchildren get to live off my model
railroad creation?" revenue bit.. it seemed to be designed to provoke a
'yes' in order to equate that w/ a 'yes' on whether Hugh's grandkids
should inherit his IP revenue.
matt
Reply-To <admin@consumer.net>
From mail@consumer.net (admin)
To "'James Maule'" <maule@law.villanova.edu>
Cc <declan@well.com>
Subject RE Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 152204 -0400
I thin everyone accepts archive.org as being worthwhile. They don't ask
permission because it would be too costly to get the permission and to cull
out all the ones where permission wasn't granted. They would never be able
to continue operating if they did that.
The main concern is liability. Lawyers use Archive.org to make cases
against people for a variety of reason such as intellectual property issues,
defamation, etc.
As for your other argument, are you saying that if users download music that
is not profitable then that is a defense? Maybe works that are no longer
available or works that people just aren't buying? How about new movies
that are destined to lose money based on their box office receipts? What if
a music downloader said "I wouldn't buy this, I would only accept it if it
was downloaded free?"
Date Tue, 09 Sep 2003 152222 -0400
From "James Maule" <maule@law.villanova.edu>
To <tomg@ipi.org>
Cc <bcleland@ipi.org>, <mmatthews@ipi.org>, <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
My several posts in response to others' reactions haven't yet
circulated. I may be doing something wrong, Declan.. (I know Declan is
getting them as he's CC'd on my replies).
In one of those posts I clarified that I'm not advocating perpetual
rights, and noted that even as to real property there are some
limitations on a person's ability or right to control it into
perpetuity.
But I don't agree that copyright should end at the death of the
creator, because of the hypo involving the artist who dies months after
his work becomes a hit. That is, in fact, one reason for the original
"lifetime plus" approach.
If a corporation creates something (through employees who agree that
they labor on behalf of the corporation), then a lifetime ownership
could be eternal.
It may be that corporations ought not exist, or ought not be treated as
having eternal lifetimes, but that's a different question.
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule@law.villanova.edu
http//vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule@law.villanova.edu
http//vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
Date Tue, 09 Sep 2003 152723 -0400
From "James Maule" <maule@law.villanova.edu>
To <mdelvecchio@visi.com>, <declan@well.com>
Subject RE FC Jim Maule's defense of Hugh Prestwood and RIAAlawsuits
I don't have grandchildren (yet) but when and if they arrive they'll
have a presence in my mind far different than my great great great great
grandchildren (if they ever exist). The latter will need to fend for
themselves. The former are natural objects of my bounty and giving them
some financial protection isn't quite the same as creating a perpetual
copyright. Grandchildren were mentioned in the post to which I
originally responded so I stayed with that generation.
>>> "Matt Del Vecchio" <mdelvecchio@visi.com> 9/9/03 32037 PM >>>
i was referring to "So should my grandchildren get to live off my
model
railroad creation?" revenue bit.. it seemed to be designed to provoke
a
'yes' in order to equate that w/ a 'yes' on whether Hugh's grandkids
should inherit his IP revenue.
matt
Professor of Law, Villanova University School of Law<br>
Villanova PA 19085<br>
maule@law.villanova.edu <br>
http//vls.law.vill.edu/prof/maule <br>
President, TaxJEM Inc (computer assisted tax law instruction)<br>
(www.taxjem.com)<br>
Publisher, JEMBook Publishing Co. (www.jembook.com)<br>
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)<br>
Maule Family Archivist & Genealogist (www.maulefamily.com)<br>
From "Kowieski, Jeff" <JKowieski@wipfli.com>
To <declan@well.com>, <politech@politechbot.com>
X-OriginalArrivalTime 09 Sep 2003 193607.0318 (UTC)
Jim- I see you on the ABA lists every now and again. Just wanted to
tell you I thought this was concise and right on point. When put in the
context you did, it should be the end of the discussion, it's jus that a
model railway is more tangible than a bunch of 1 and 0s, I guess.
Anyway, well spoken.
Regards,
jeff
- _______________________________________
Jeffrey W. Kowieski, CPA, JD
Senior Manager
Wipfli Ullrich Bertelson, LLP
Office 715.858.6682 // Fax 715.832.0475
www.wipfli.com
A Member of Moores Rowland International (MRI)
Date Tue, 09 Sep 2003 154243 -0400
From "James Maule" <maule@law.villanova.edu>
To <rick@rickbradley.com>
Cc <politech@politechbot.com>, <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
One quick point. Copyright originally was granted by the King (the
Crown). So, too, real property's origins are in feudal tenures granted
by the King and thence down through subtenants and vassals. The fact
that real property law had evolved somewhat when the first copyright
statutes were enacted doesn't detract from both real property law and
copyright law having origins in the principle that all ownership rights
originated with the Crown.
After all, every aspect of the law ultimately rests on rights, duties,
and privileges of one kind or another. Areas of law might not be
identical twins, but their relationship is close enough to make
analogies between one and another useful regardless of how the area is
subcategorized.
From "Ryan Porter" <rlucianporter@hotmail.com>
To <declan@well.com>
References <6.0.0.22.2.20030909114510.01f48af0@mail.well.com>
Subject Re Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Date Tue, 9 Sep 2003 154818 -0400
MIME-Version 1.0
In seems that in haste to toss their respective two-cents in, Hugh, Jason,
and Jim are each making gross exaggerations.
Hugh claims he "labored for years to create those songs", but fails to
mention that hundreds before him labored for far longer to create the works
of which his songs are derivatives. (Or does Hugh think his work is
completely original?) Apparently, he thinks he can extract styles and
sounds and arrangements from previous songwriters and generations, change
them around a little bit, write new lyrics, etc., and make them miraculously
"his". (I am not trying to insult Hugh; a song is more than the sum of the
lyrics, musical structure, arrangement, production, etc. One can fairly
ask, however, if he has ever written even one single song the music of which
did not heavily resemble another?) The world at large is at least partly
responsible for "your" songs. Yes, Hugh, the trading of your songs of P2P
networks is wrong. Yes, it is theft. Yes, you should be upset. You should
not, however, pretend to be living in a cultural vacuum. You did not create
your songs from nothing, and you have no right to give nothing back. These
last two points are really secondary, though, and concerning length of
copyright protection. The central point that file-sharing copyrighted
material is theft ( both illegal and wrong ), and that it financially
affects both you and your colleagues, is all that needed to be said.
Instead you chose to give your detractors a logical hole through which a
truck can be driven. Oh, and sensationalism doesn't help your cause,
either, i.e., "A society that doesn't value a commodity enough to pay for it
will soon see the creation and production of that commodity cease." Do you
honestly think music in general is in danger?
Jason's arguments are also hit-and-miss. I agree that copyrights should not
extend in perpetuity. He loses me, however, when he writes "Your right used
to be able to trump technology. That is no longer the case." Is that to be
read "because we have the technology to undermine your rights, you rights
are essentially nullified"? Both Jason and Hugh contend there has been a
"lumping together [of] many professions", but disagree who has done this. I
think most people separate the artists from the corporations. The feeling
is along the lines of one of these two if the artist/band is a big name,
with multi-platinum records "they won't be missing my $10"; and if the
artist is not "oh, the artist probably isn't getting any of the money
anyway...it's the record company's greed that has that artist starving, not
mine." Nevermind the absurdity of the views or the fact that the action is
still theft, I'm simply pointing out a more realistic viewpoint of the
file-sharer. No one believes it's all "one big ugly corporate caricature".
I strongly feel, however, that statements such as Hugh's tend to create a
"lumping together". Maybe artists should, as Jason suggests, "focus [some
of their] ire upon the organization that claims to represent [them] to the
public", for at least allowing the impression, whether true or not, that
artists are abused by the industry. Artists standing hand-in-hand with the
big 5 will not help your cause, Hugh. That seems beyond obvious.
My only response to Jim is with regard to this statement
So the underlying premise of the entire argument of the "we share
other people's property' crowd makes no sense unless it is viewed as a "I
want it, you have it, I'll find a way to take it."
And the underlying premise of Jim's argument makes no sense unless viewed as
one of the two
1)"we don't like and have no need for 'public domain' ";
2)"we like to pretend things in the public domain just magically appear
there without any single item ever having been added."
If we could stop all the sensationalism, the point would be simple, clear,
and concise. Theft is occurring, and the affected persons are (rightfully)
upset and doing something about it. The question of how long copyrights
should endure is, of course, related (but only weakly) and manages, in this
context, only to make the speaker sound greedy, regardless of which side the
argument comes from.
Ryan Porter
------------------
Research Analyst for the astrophysical spectral simulation code Cloudy.
www.nublado.org
Date Tue, 9 Sep 2003 160450 -0400 (EDT)
From "Matthew G. Saroff" <msaroff@fellspt.charm.net>
Reply-To "Matthew G. Saroff" <msaroff@pobox.com>
To Declan McCullagh <declan@well.com>
cc politech@politechbot.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
On Tue, 9 Sep 2003, Declan McCullagh wrote
> From "James Maule" <maule@law.villanova.edu>
>
> I don't get the gist of Jason's complaint. Actually, I do.... and it is
> troubling.
>
> So, If I build a barn-like structure with my own hands, and then build
> a huge model railroad display inside, and then invite the public to
> visit for $10 a visit per person, why should I, after some short period
> of time, let people in for free? Why can I not pass that building and
> display on to my kids when I die, giving them something for which they
> can charge admission? Under current law, the property right (created by
> my physical efforts and the creativity of how I designed the layout and
> its accessories) is eternal. (Sure, I'll pay taxes to repay society for
> the burden my property puts on the environment, for police protection,
> etc..... just as creative artists pay taxes).
The answer here is fairly simple because when someone occupies a
space in your barn, or takes your car, they deprive you of the use of that
space or that car.
Intellectual product (I believe that using the generally used term
for IP is ceding half the argument) is different.
Samuel Clemens descendents are just as capable of reading or
creating derivatives of "Tom Sawyer" as they always were. Even if I copy
the entire book and put it on the web.
IP is a temporary monopoly granted for the purpose of encouraging
the creative arts and sciences (IIRC that's the line from the
constitution).
It's no more property than the grant of a royal monopoly to the
East India Tea Company in the 1500s, or the granting of a liquor license
today.
--
Matthew Saroff
At some point in the future, the total number of lawsuits being prosecuted
by the Church of Scientology will exceed the population of the world
Extrapolating on current trends, this will occur on April 1, 2005.
Date Tue, 9 Sep 2003 150546 -0500
From Rick Bradley <rick@rickbradley.com>
To James Maule <maule@law.villanova.edu>
Cc politech@politechbot.com, declan@well.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
* James Maule (maule@law.villanova.edu) [030909 1443]
> One quick point. Copyright originally was granted by the King (the
> Crown). So, too, real property's origins are in feudal tenures granted
> by the King and thence down through subtenants and vassals. The fact
> that real property law had evolved somewhat when the first copyright
> statutes were enacted doesn't detract from both real property law and
> copyright law having origins in the principle that all ownership rights
> originated with the Crown.
To pick nits, copyright originally was granted by the Queen [0], but yes
it originated with the Crown. As of the end of the 18th century all
American legal rights originated with the Constitution, where property
rights were established as independent from copyrights and other limited
monopolies designed to enrich the public domain and promote the progress
of Science and the Useful Arts. Though these rights stem from the
common origin of the Constitution (as do rights to bear arms, rights to
due process, etc.) these rights were separately established and have
remained distinct to this date.
> After all, every aspect of the law ultimately rests on rights, duties,
> and privileges of one kind or another. Areas of law might not be
> identical twins, but their relationship is close enough to make
> analogies between one and another useful regardless of how the area is
> subcategorized.
Useful, or harmful.
[0] In 1710 via the Statute of Anne http//www.copyrighthistory.com/anne.html
Rick
--
http//www.rickbradley.com MUPRN 677
| that much attention
random email haiku | to all those screams while I am
| stompin Southern Flags.
Date Tue, 09 Sep 2003 162849 -0400
From "James Maule" <maule@law.villanova.edu>
To <rick@rickbradley.com>
Cc <politech@politechbot.com>, <declan@well.com>
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA
lawsuits
You're right.. it's a Queen. Mary I, that is, who in 1557 gave control
of all printing and book distribution to the Stationer's Company. The
1709 Act, effective 1710, is the first "modern" copyright statute (I
guess it is "modern" because it is more like what exists now than the
monopolistic arrangement of the 16th century).
Date Tue, 09 Sep 2003 140040 -0700
From Jules Agee <julesa@pcf.com>
User-Agent Mozilla/5.0 (X11; U; Linux i686; en-US; rv1.1) Gecko/20020827
X-Accept-Language en-us, en
MIME-Version 1.0
To James Maule <maule@law.villanova.edu>
CC declan@well.com
Subject Re FC Jim Maule's defense of Hugh Prestwood and RIAA lawsuits
Comments interspersed below
James Maule wrote
> Jules,
>
> Declan has not yet posted my clarifications... I don't seek perpetual
> copyright. And I tried to write in a way that acknowledged Jason as an
> advocate/defender/counsel rather than a perpetrator of P2P.
>
> Jason's post, though, didn't make the proposition that copyright terms
> should be more limited. He defended P2P practices that are not limited
> to songs written by dead artists. The P2P folks don't make distinctions
> based on whether the artist is alive (and in terms of what circulates,
> most artists are in fact alive).
Agreed, and I don't want to suggest that indiscriminate file sharing is
in any way justified. But I understand the motive behind the consumer
backlash, and I think the average P2P perp is less like a mug