Ranting to /dev/null

Pointing out the nature of the rights enumerated in the Bill of Rights and subsequent amendments does not constitute an argument against the validity of copyright. In the case of the Bill of Rights, it begs the question. These amendments exist because the anti-federalists wanted some assurance that the federal government's ability to interfere with individual and state rights would be restricted. Otherwise, they wouldn't have signed on to the Constitution. As to the other amendments, these can be classified as accidents of history. The form in which they exist is not sufficient to determine that all rights must follow the same pattern.

Also, because you have restricted your constitutional focus to amendments, it is, perhaps, a bit too easy to infer that copyright is not protected by the Constitution. But it's right there in Article I, Section 8, which lists the powers of the Congress. They have the 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.” You may be able to argue that large publishing companies have twisted copyright beyond its original intent and that, consequently, reform is needed. But stating that copyright law is “a restraint of trade, pure and simple” takes your case too far.

Copyright is, as you put it, an “[imposition] on the public at large.” But there's hardly anything wrong with this. The laptop upon which I am typing this response is mine. I worked and payed for it with my own money. I'd like to think that I have a right to keep it. Fortunately, my friendly neighborhood government has decided to impose on the public by not allowing them to do something they would otherwise be able to do with impunity; namely, steal.

The observation that copyright was not a legal concept until the 16th century begs the question of whether it was a necessary concept. Consider how relatively close this is to the invention of the printing press. The ease with which someone can undermine an author's ability to profit from his own work is greatly enhanced by technology. Copyright law is not about “making up new fundamental human activities.” The activities in question- writing, composition, invention- have been going on for quite some time now. Before making an all out case against copyright, you need to demonstrate that authors and composers, unlike other workers who produce something, do not have the right to profit from their labor. Either that, or show that copyright law is unnecessary to securing this right. The mere fact that these products are easy enough to reproduce and distribute such that they would naturally lie in the public domain without government interference is no argument that that's where they should be.

Kevin, though your comments are always welcome, I don't think you're completely up to speed here. I'm not arguing here that copyright is illegitimate per se. I'm arguing that the standard understanding of copyright is incorrect, which is a significantly different idea.

Copyright as such was not originally created by governments as a matter of law: it was created by a printing cartel as a trade practice which asserted not only perpetual copyright over the works which they published, but a complete monopoly over printing. This practice was established into law by royal decree in 1557, not to secure the rights of authors, but to establish effective censorship over the presses (Queen Mary's efforts to bring England back to the Roman church were frustrated by the printing of Protestant materials).

Authors and composers secure their living by deciding whether or not to publish. Taking a manuscript from them which they have not chosen to publish and then distributing it without permission would be wrong. But copyright isn't really about that. The law would protect that right without copyright. It's just theft. Authors made absolutely no money from the sale of copies of their work until much, much later than the Stationers' Company. They originally made money by selling rights of first publication. Royalties are a historically recent development and effectively convert authors into publishers.

Infringement is not theft, as I've discussed elsewhere.

Finally, though you make accuse me of suggesting issues which I have not answered, I'm not begging any questions. My reasoning isn't circular, whatever else it is.

I linked directly into this post so I didn't see the discussion you mention until just after commenting. That does make things clearer- I thought you were arguing against the legitimacy of copyright. While your account of the origins of copyright is quite interesting, wouldn't it be more to the point to argue from what it is rather than what it was? The constitutional definition (even if the word is not specifically mentioned) does make some significant improvements over 15th century printing cartels. It gives the right to the ones who produce the original work, and then only for a limited time.

Your argument that authors and composers make their living by deciding whether or not to publish only works up to a point. If they do decide to publish, and then someone comes along with either a cheaper or more efficient way to reproduce and distribute the material, the return on their investment is significantly reduced. It's one thing if an author doesn't make a living after publishing because he can't write; it's something else when the supply chain to the consumer is usurped by a third party.

As to whether copyright infringement is theft, I'm not ready to buy into your argument just yet. You write that piracy isn't theft because copyright isn't property. I'm not entirely sure what you mean by this. I've never thought of copyright itself as property, but as the legal protection of property. Perhaps this is a distinction without a difference, but, if so, how? You acknowledge that it would be theft if someone chose to leak something before official publication. If publishing were fundamentally a matter of releasing a work to be copied, then I could see limiting theft to the time before publication. However, if publishing is a matter of distributing a set number of copies, then it is just as much a matter of theft to copy one of the copies as it would be to copy the unpublished original. You also make the comment, concerning piracy as theft, “The fact that the law treats [copyright] as something like property doesn't make it that way.” If the law wants to say that the author has original ownership of any given copy of his work until he decides to sell that copy, then why doesn't that settle the matter?

On begging the question: if you were merely making an observation that the Bill of Rights contain a different kind of right than what copyright is, then you're not guilty. Before reading that you weren't arguing against copyright per se, I understood your point to be that, because copyright did not fit into the category of being protected from government interference, it was not a legitimate right. In this case, appealing to something that was intended as a list of restraints on the government, would be begging the question. You would have been assuming a contested point necessary to your conclusion- that legitimate rights are limit to protection from government interference. As far as my using the term in relation to the necessity of copyright laws in the 16th century, I probably could have used the weaker “raises the question.” All I meant to say was that, if the historical circumstances were such that copyright law was not needed, then pointing out that such a law did not exist at the time carries very little weight.

About your discussion of the diminution of the author's investment in light of piracy subsequent to publication: actually, that's not true at all. The publisher loses out on his investment, and the author loses some profit if there's a royalty agreement (which makes him a kind of co-publisher), but historically authors have been paid up front in full, with all the risks of publication borne by publishers, not content-creators. The fact that this has changed is due to the confusion and conflation of the origins of copyright. Authors are paid for their time before a book is published. That's what advances are. Royalties are shared profits, not return on investments.

Your discussion about the relationship between infringement and theft is also somewhat lacking. Saying that "copyright is the legal protection of property" actually is question-begging, because copyright creates protection was none before. The monopoly that is copyright is a creature of statute; no protection exists apart from that. Yet there doesn't really need to be a statute about theft, because the courts have been punishing that for centuries both with and without statutory definitions.

The negotiation that precedes publication is essentially the author and publisher haggling over the price at which the author is willing to release his manuscript for public consumption. Once it is so released, the common-law rights of the author are extinguished and supplanted by the statutory rights that pertain to publication.

Consider the analogy of trade secrets. Those can indeed be stolen, because their creator has not decided to release them to the public. But the idea of a patented invention cannot possibly be stolen, because the invention described therein has been made public. An instantiation of said invention can quite certainly be stolen, but the idea itself cannot. Likewise, once a creative work has been published, it is not capable of being "stolen" because it exists in public space.

I'm also not arguing that copyright is unnecessary because it is historically late. I am arguing that it doesn't describe what is commonly recognized as a basic human right akin to freedom of expression or freedom of religion. Copyright is probably necessary, because publishing does require investment of significant amounts of capital, and it is arguably beneficial to society for publishers to have some protection, just like inventors are given patents. But the current state of the law is demonstrably unsatisfactory (e.g. Ms. Thomas being fined $224,000 for infringing upon $24.00 of music) and many of these oddities are related to the fact that the current state of the law is either a historical oddity or representative of legal theories abandoned as unproductive if not downright malevolent.

There is, perhaps another distinction that would make my arguments clearer. That is the distinction between "theft" as such and "lost profits".

Theft, or, more precisely, "conversion", involves the unauthorized taking of the property of another with the intent permanently to deprive the owner of the use thereof. Copyright infringement thus cannot be theft, because the copyright holder still has everything he had before.

What the copyright holder has lost is expected profits from the sale of goods to the infringer. Lost profits can be actionable in certain circumstances, most frequently in contract situations, but in copyright cases as well. Lost profits are not theft; otherwise every time you shop at Target you'd be stealing from Wal-Mart. But even that analogy demonstrates how hard lost profits can be to calculate. In a contract setting, this usually easy, as profits are frequently stipulated. But in other circumstances, where the terms of a sale, even the existence of a sale are in dispute, this can be almost impossible to calculate.

Note that the RIAA is trying as hard as it possibly can to prevent calculation of actual damages from being admitted into its current bout of litigation: actual damages probably came to less than $20 from Ms. Thomas' infringement, yet she was fined $224,000, and the statute would probably have allowed damages of up to several million dollars. Given the fact that the RIAA has not established that she uploaded the files to anyone at all, actual damages are thus entirely nominal.

Copyright creates a protected monopoly for a fixed duration, the infringement of which can constitute actionable lost profits, but does not constitute theft/conversion.

Would you say that this confusion of the origins of copyright was a factor in the Constitution's treatment of copyright? There it is the author or inventor who has the exclusive right to their creation for a limited time. While it does make sense to say that this right can be transferred to a publisher, this isn't the case if we say that this is a right that ceases upon decision to publish. If it did, then how would we distinguish this from the right to decide to publish? And, if we can't make the distinction, couldn't we infer that, after so long, there is no longer any constitutional restriction against a third party taking the rights of initial publication into his own hands? In addition, if this right ceases upon the author's decision to publish, then whatever rights publishers may have, they are not among those specifically guaranteed by Article I, Section 8. If the distinction between the common-law rights of the author and the statutory rights of the publisher that you draw is valid, then it does seem that the Constitution has conflated the two. But then, it's allowed to do that.

Copyright creates legal protection where there was none before. This does not imply that it creates property where there was none before. I don't see how I'm begging the question by defining copyright as the legal protection of property. Assume for the sake of argument that any given copy of an author's work is his property (or that of his publisher) until he decides to sell it. This sale would not include the right to make a copy. [I believe this view is basically what you have identified as the common misunderstanding of copyright law.] Assume also that this has always been property. If the state of technology has been such until relatively recently that making unauthorized copies just wasn't feasible, then it shouldn't be surprising that copyright didn't come into existence much earlier or that courts weren't busy punishing unauthorized copying with or without statute. Basically, the situation would look the same as you have described it under the assumption that no property is involved. The mere fact that, at one time, something had no legal protection does not imply that it wasn't worth protecting. It could just as well be the case that protection from another source made the legal protection, whether statutory or from the courts, superfluous. I would be more inclined to agree with your position that copyright protection is a legal fiction and not theft if I could see some historical evidence that what would be considered copyright violation today was accepted practice before the existence of copyright law.

On your comment that an instantiation of an invention can be stolen, do you limit this to those that already exist or would the unauthorized instantiation of inventions also count as theft? I ask because I'd like to know to what extent your position that activities such as downloading music files are not theft is related to the fact that they aren't tangible. I do agree with you that the current state of the law needs much improvement. I can see recovering the cost of the music plus court costs, but awarding damages that are over 9000 times what was lost is rather excessive.

Your argument that lost profits are not theft is convincing. However, before accepting the idea that copyright infringement is not theft I need some reason to believe that the author or publisher does not, before selling each one, own all copies of a work regardless of who makes the copies. If the copies and not just the original idea are the property, then the owner is being deprived of their use when he is not given the option to sell them.

First of all, it is an established legal fact that ideas are not property, and published ideas per se enjoy no protection under any legal theory. You cannot own an idea. The thing protected by copyright is a specific instantiation of an idea in a tangible medium. This is why cover songs are not copyright infringement: you can copyright a particular recording, but you can't copyright a song.

The argument I'm going to be making in my papers this semester echoes arguments made by copyright scholars for about fifty years: Article I, § 8 follows an unfortunate conflation by the House of Lords in a 1774 case, Donaldson, in which they misconstrued the Statute of Anne, which was itself merely a kind of botched trade regulation, not a property act. Both conflate author and publisher in ways that have permanently confused discussions of copyright and patent by treating them like property, not like the trade regulations they really are. The fact that the Constitution contains a provision for copyright is all well and good: some kind of regulation is probably needed, because the potential for market failure in non-scarce objects is quite high. But due to the confusion, Viacom can actually advocate an internet-wide filter to rival the Great Firewall of China and say that it's just trying to defend its property, instead of being properly viewed as perhaps the greatest monopoly grab in history.

Your discussion conflates two unrelated legal ideas, contract and property. Contract != property. Under your description, the fact that an author can theoretically say "I'm not going to sell you this unpublished work unless you agree up front to not make any additional copies without my permission," need not imply that the author has a property interest in those copies, only that he has a property interest in the original unpublished work--which is not in dispute--and that he can leverage that interest as consideration for influence over subsequent copies. But making unauthorized copies would still not be theft; it would be breach of contract, which is an entirely different tort. Under theories of contract, the courts have long held that contracts which run contrary to established principles of public policy are unenforceable, e.g. predatory lending, unconscionable boilerplate on form contracts, contracts of adhesion, etc. The public at large has a long-recognized interest in the distribution of creative material, and Article I, § 8 was actually designed to promote distribution, not restrict it.

Okay, granting your premises tracing Article I, S. 8 from the Statute of Anne through Donaldson, how does it follow that copyright and patent discussions are not about property? The idea may have originated as nothing more than trade regulations, but this doesn't mean that it can't or didn't evolve into something else. If the Constitution treats them as property, then doesn't its status as the our highest law trump any other considerations? Say that you were arguing against Viacom and the judge agreed that copyright was simply a trade regulation and not about property rights. Say that he thought the framers of the Constitution were hopelessly confused when they included the section on copyright. If the question could be reduced to Viacom's assertion that they are protecting property rights, are there any theories of Constitutional interpretation with which you agree that would allow the judge to rule against them?

It is true that current jurisprudence treats the right to copy as a property right, but my argument is that because it did not originate as a property right, treating it as if it were a property right leads to confusion and inappropriate results.

Article I, § 8 doesn't actually say that patents and copyrights are property rights, only that Congress may grant them. I don't need a new theory, I only need to point out the language of the texts. The Constitution also grants the right of free expression (merger of freedom of speech and freedom of the press), but you don't have a property right to free expression. Likewise, Congress may grant to authors and inventors some kind of exclusive distribution right, but there's a jump from there to saying that it confers a property right, and I contend that this jump is unjustified, a-historical, and inappropriate.

Aside from the wee problem of getting a judge to go against precedent, appealing to the language of the text is not going to work here. Even though Art. I, Sec. 8 does not explicitly mention property rights, the language still allows for that interpretation. By your own account of this section, it confuses discussion of copyright and patent by treating them like property. The relevant point for interpretation of the text is not that it confuses discussion of copyright and patent, but that it treats them like property. There's a disjunctive here and I don't think you can have it both ways. Whether the framers of the Constitution were hopelessly confused is beside the point. It appears that they thought copyright was a property right and the textual language is consistent with that idea.

Your argument that treating copyright as a property right will lead to inappropriate results because it did not originate as a property right appears to commit some variant of the genetic fallacy. Earlier, you drew a distinction between legal fictions, which exist only in the contemplation of the law, and those crimes that courts have historically punished with or without statute. I could see the argument for inappropriate results if the latter were suddenly changed by statute. For instance, no statute should be able to redefine theft [where we both agree property is involved] as non-punishible self charity. The strongest case that can be made under your assumptions is that one legal fiction has been replaced with another. How is this inappropriate? Before saying that it is, you would need to demonstrate that the first legal fiction is inherently valid and that the second is incompatible with it. There may be a jump between distribution rights and property rights, but who jumped first? If the relevant section of the Constitution is a result of that jump, then by what standard can you argue that this was unjustified, a-historical, or inappropriate? You probably have a case that thinking of copyright and patents as property rights is not the best way to go about things; however, barring a constitutional amendment, I think that you're pretty much stuck with the current state of jurisprudence.

Okay, ambiguity in my language is coming back to bite me. The Constitution does not treat copyright like property. If anything, by authorizing Congress to grant such a right, it recognizes that such things are not property, but regulatable anyways. Current court jurisprudence has tended to treat the rights as if they were property rights. This is what I was getting at. I do not believe that the Constitution suggests that literary property is a concept at all.

Second, the House of Lords decided in 1774 in the Donaldson case that copyright was not a crime previously punishable without statute, but a right that came into being with the Statute of Anne. The US Supreme Court followed Donaldson in Wheaton in 1834, holding that copyright does not exist at common law and is purely a creature of statute. Thus they explicitly rejected the idea that authors and publishers have property rights in their work, and recognizing that copyright is a different kind of legal right.

Current jurisprudence is more-or-less recognized to be at odds with Wheaton (Patterson points out that though Congress still tends to treat copyright as a trade regulation, the courts tend to treat it as a property right), but as the Supreme Court has not overruled Wheaton it remains good law. There has been no judicial finding that copyright is a property right, there has simply been a trend of adjudicating copyright cases as if they dealt with property. This is an unjustified assumption, not legal precedent.

I needn't demonstrate either of the two things you set before me, because those are only needed if your previous argumentation is correct, and I hope to have shown here that it is not.

All right, tell me if I'm following this correctly:

Property rights, by definition, exist in common law.
In Wheaton v. Peters, the Supreme Court ruled that copyright does not exist in common law.
Therefore, copyright and property rights do not overlap.

Practically then, what changes if published works are not property? For instance, if Viacom's proposed filter could be justified as a defense of property, would this not be true as a defense of copyright? Why or why not?

That's something like it.

What changes is that if copyright is a property right, there really isn't any reason to limit the scope or duration of the rights of the copy holder, because property doctrines recognize only outlying restrictions on the rights of the owner. You can't use your property to interfere with the property or safety of others, but that's about it. Extending the duration of copyright and the rights associated with it is easy and doctrinally correct.

But if copyright is a trade regulation intended to "promote science and the useful arts", then the rights of the copy holder should be limited to things which actually do encourage such things. Distribution becomes the goal, not protection of property, and thus works should enter the public domain immediately after most of their commercial value has been realized, clearly a decade or two at most. The public should also be given expansive fair use rights, especially for derivative works. Penalties should be limited to actual damages and no injunctive relief should be available.

Instead, we have massively expansive copyright protections, with damage awards in excess of 9,000 times actual damages, and statutory damages in excess of 150,000 times actual damages. Copy holders currently claim the right to charge you for every use of their content in any medium but the one in which it was sold to you. So if you buy a CD, they're okay if you listen to it on your stereo, but not if you listen to it on your computer or iPod. They probably realize that this is not a viable litigation goal, but they're trying to make CDs impossible to copy. If we're protecting property--or as the EU would have it, the person of the artist--this is at least theoretically justifiable. But if we're simply violating a trade regulation, this is completely incoherent.