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Why strict copyright enforcement is becoming obsolete

Strict copyright enforcement is popular in major copyright dependent industries right now. But here's why advancing technology is rapidly making those industries' traditional business models obsolete.

The ongoing controversies over matters of copyright enforcement and piracy are infected by virulent strains of propaganda and misunderstanding. The entire issue is commonly framed as a battle between content creators and peer to peer file sharers. Let us take the two most extreme views, and refer to them by names they often choose for themselves. At one extreme, there are the defenders of "content owners" who either believe that copyright is a basic property right imperfectly embodied in law or who just believe that treating copyright that way is an important expedient that they should defend. At the other extreme, there are the "copyfighters" who believe that copyright is an authoritarian imposition, establishing harmful monopolies, either as corrupt and immoral support for capitalist plutocrats, or as unconscionable governmental interference in markets that should be free.

The copyfighter faction favors serving the consumer, often whether a given consumer has paid for what he or she consumes or not; strong protections provided by the legal doctrine of "fair use"; and free peer to peer file sharing. They sometimes characterize their counterparts as nothing more than corrupt politicians and fatcat corporate bureaucrats making obscene amounts of money doing nothing but taking egregious advantage of the financial and legal vulnerability of both actual content creators and content consumers.

The content owner faction favors strict copyright enforcement including DRM, draconian legal penalties for copyright infringement (or even any act that could conceivably look like infringement or accidentally contribute to it), and other measures that sometimes get on the EFF's bad side. This faction typically portrays file sharers as conscienceless thieves who just want to get something for nothing. Anyone who consistently enough argues against DRM and six-figure penalties for file sharing in online discussion eventually gets accused of stealing, and using their arguments against strict copyright enforcement for no purpose other than to excuse that behavior -- regardless of whether they actually engage in any infringing file sharing at all.

Like most issues normally cast in black and white terms, the reality is much more complex than that, and these two extremes lie at opposite ends of a spectrum of opinion, with most people falling somewhere along that spectrum other than the ends. As with most such oversimplifications, a reasonable, best truth for almost any useful definitions of "best" and "truth" will involve some basic principles poached from both ends, filling in the gaps with common sense. While I have my own ideas of what is best, easily discovered to some degree by following me around in TechRepublic discussions for a little while, sharing those ideas in general is not the purpose of this article.

Regardless of your personal beliefs about what should be the state of copyright law, the reality is that advancing technology is rapidly making enforcement of traditional copyright-dependent business models essentially impossible. Old-school media organizations are facing the problem of trying to figure out how they can change their business models to stay in the game, with the inherent problem of being built around their old models, unwilling to abandon those old models entirely, and lacking the ability to substantively change those models without replacing most of their workforces and losing decades of both expertise and brand trust. Meanwhile, media prices are often perceived as unreasonably high, the old models in many ways are far less convenient for the consumer than piracy-driven media distribution regardless of price, and the cost of using the law and inherently flawed technological measures to fight piracy is spiralling out of control as network technologies improve at an accelerating rate.

Much of the current state of affairs is a direct result of the fact that powerful media distributors have grown comfortable with a very profitable business model that is rapidly becoming obsolete. That model is predicated upon assumptions developed during a time when the tools of mass production were prohibitively expensive and mass distribution cost even more. Today, mass production is a trivially employed side-effect of the way computers -- including computers some people in barely industrialized countries carry around in their pockets -- work on their most fundamental level, while mass distribution is almost automatic for computers attached to the Internet. As their assumptions are challenged by the increasing ease of copying and distributing content, the business interests invested in revenue models built on those assumptions are doing what they can to undermine and forestall the effects of those challenges.

Over time, the vested interests that support strict copyright enforcement have been fighting an uphill battle against inevitable technological advancement. As desperation grows, so does the extremity to which the desperate are willing to take their efforts. Their tactics involve attacking the doctrine of fair use, expanding the reach of copyright law, the abuse of patent law, and intensive propaganda campaigns. The result has for the most part been that those products placed in the vanguard of strict copyright enforcement end up the most-pirated or the least-purchased.

Part of the propagandizing that goes on involves inventing new terms, or misapplying old terms, to confuse the nature of copyright law in the minds of the general public. By calling copyrightable and patentable materials "intellectual property", for instance, there is a strong correlation drawn between copyright infringement and theft where no such correlation exists by nature. Contrary to the implications of terms like "intellectual property", copyright is not a matter of property law: it is a government enforced monopoly on the manufacture and distribution of copies of a particular work. The key difference lies in the fact that in the case of copyright infringement a copy is made of the original without permission, while in the case of theft the original is actually removed from its possessor. This difference is recognized in law, in the communications of the founders and constitutional framers of the United States, and in everyday life.

Removal of property from its possessor is a definitive requirement of the term "theft". As the Merriam-Webster dictionary defines theft:

the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it

Note the term removing. In case that is not clear enough, consider this visual guide, distributed under the terms of the Creative Commons BY-ND License:

The reason copyright infringement is so difficult to prevent under traditional copyright dependent business models is quite simply that the aim of preventing such infringement involves trying to keep people from making copies of what you have already given them. Preventing theft is (relatively speaking) easy; just keep your doors locked and theft becomes an extreme rarity, because you possess something and want to stop someone else from getting it. Preventing copyright infringement is another can of worms entirely, because enforcement then consists of convincing the person who possesses something to refrain from doing things with it in the comfort and privacy of his or her own home.

The advancement of technology, so far, has only served to strengthen our ability to prevent people from removing things from our homes without our permission, but at the same time the advancement of technology has only served to strengthen our ability to make copies of copyrightable content as well, and technology is not getting any less advanced. To complicate matters for distributors in copyright dependent industries, the increasing ease and decreasing cost of copying content is actually a tremendous boon to those distributors' bottom lines, because as it gets cheaper to copy content, the profit margin for each copy sold gets bigger.

Regardless of your feelings about the matter of whether copyright enforcement is justified, it makes little sense to cover our ears, close our eyes, and ignore the facts that face us. In the end, if you want to make money by providing content for others' consumption in years to come, you are going to have to start recognizing the increasing difficulty of maintaining a state of artificial scarcity enforced by copyright law. The most successful media distributors will be those who can employ a business model that does not assume users can be prevented from making copies. Give people positive reinforcement for not making copies as an inherent feature of the model or, better yet, employ a model that relies on the natural tendency people have to share what what they like when it is essentially free to copy.

The opposite approach -- assuming people cannot make copies at home, followed by trying to force that state of affairs on customers -- is a great way to burn incredible sums of money in a futile effort to counteract the advancement of technology that in many ways actually helps your own business model. Even if you think customers making copies of what you have sold is immoral, taking the position that this means the traditional business models reliant on strict copyright enforcement are not rapidly and irresistibly disintegrating around us is quickly taking on the character of an astonishing act of stupidity.

Strict copyright enforcement is not quite obsolete yet, but obsolescence is definitely nipping at its heels. If your plans for a copyright dependent business model do not include a way to transition to a model that does not rely on strict copyright enforcement, you are not really practicing business for the long term; you are just engaging in short-sighted, willful ignorance. The only way to secure your content-based business model for the future is to find a way to make money without treating copyrightable works as property that can be secured.

About

Chad Perrin is an IT consultant, developer, and freelance professional writer. He holds both Microsoft and CompTIA certifications and is a graduate of two IT industry trade schools.

83 comments
cdiamond
cdiamond

The original intention behind copyright law was to give the author and printer (of a book) a reward for the labour and investment. This, similarly to patents for inventions, gave the author the monopoly of using or licensing the work for a limited period (14+14 years). After a while, various lobbies persuaded legislators to extend the subject matter and periods of the monopolies and detailed the acts which would infringe the monopoly. This was because, in common law countries, copyright was a creature of statute (authorised, in the case of the USA, by the constitution to the federal congress rather than, as theretofore, by the legislatures of the several colonies or states). This has led to a variety of infringing acts in various countries for various lengths of time. Generally, a mess. The question really ought to be how those who expend time and money can have a chance of reaping a reasonable reward. Otherwise, to adapt the language of patents, no one would expend their time and money on developing a new invention, which would be to society's or the economy's loss. I have little difficulty in agreeing a musician or the record producer, or even Microsoft are entitled to a chance of a reasonable, or even, if they can, an outrageous, reward. What acts ought to be restricted, for how long, to give such authors or printers or others a reasonable chance of achieving this aim? Do not forget the risk takers who will pay the author good money for a chance of reaping the big reward. Whether this is called a publisher's advance, recording contract or patent troll, this is all part of the capitalist risk system and rewards the author. Now I am not going to answer the question I posed. I do not know the answer. Not least there is not going to be a single answer for all circumstances and technologies and artistic or other works. Even worse, the lobbyists and tinkerers are loose and likely to make the illogical and inconsistent system they have achieved even worse. Not least the USA has forced by treaty various amendments internationally that make the system less alterable. This is just an appeal. Can we get back to the basic issue of how to get the author or creator or investor a reasonable chance of reward in society's and the economy's interests. Without stuffing up the rest of society or the economy in the works: how long, exactly what acts, etc. Remember an overall balance must be struck. Again to go to patent law, 20 years is generous for some technologies but short for others. And beware the law of unintended consequences. And nothing must be fixed in concrete. Mistakes will (have) be made and (will) need to be repaired.

BlueCollarCritic
BlueCollarCritic

I worked For the Mega Multi-Media Industry and it made me a Copy Fighter. I saw firsthand as a manager of a store for a major national media retail chain how the industry, specifically the labels (both the record industry and the video industry) kept prices artificially high to pad profits. Case in point- the CD/DVD. When the CD first hit as well as the DVD several years later, the technology was relatively expensive thus requiring a higher sale price of consumer products on said media. A typical new release album by a top 40 artists would have a suggested retail price of between $16.99 and $18.99 with the corresponding cassette version listing at between $8.99 and $10.99. This price difference between the established cassette tape technology and the relatively new CD technology was about double. This was expected and seemed reasonable because of the higher production costs of the newer CD technology. This difference however never changed as the technology to produce the CD (and later on the DVD and even now the BluRay) became cheaper, a lot cheaper. At its lowest ratio, the cassette tape still cost 2/3 the price of its CD equivalent even though no one believed that it cost more to produce the CD then the cassette tape. Anyone with a home computer could by a CD burner for $20 (or less) and blank CD???s for pennies, and produce hundreds of CD???s for what they pay for one retail CD product. Is it a wonder then illegal copying of CD???s went thru the roof? The labels tried to justify the continued higher price of the CD with the argument that the retail CD???s consumers could buy and use to create their own music were of a much inferior quality but this did not hold up for very long. The fact is the labels were accustomed to making huge profits from the more expensive CD technology and they were not about to give that up without a fight. The labels were able to maintain this artificially high rate of their CD and DVD products until the age of file sharing shot a hole in their model. Today they are still refusing to price newer formats accordingly because they refuse to believe they are no longer masters of the entertainment domain. Unfortunately they have lots and lots of power thru the purchasing of many in government (although they call it lobbying) and they are using this power to enact draconian laws reading copyrighted material, but only their copyrighted material. They aren???t fighting for copyright violations in general but copyright violations of works owned by them and their industry peers. The bottom line is the record and video labels did this to themselves by fleecing the public for many years thru artificially high CD /DVD pricing and they are continuing this with the latest technology the Blu-Ray. While there is a royalty associated with producing content on BluRay the price offset they charge is far above and beyond what it is costing them. While I???m not promoting the deliberate violation of copyrighted works I also have no sympathy for these major labels who have fleeced the rest of us for so many decades. It???s just sad that there???s no way to fleece them back without harming the artist they represent who more often than not is the one who loses in this battle. Support independent artists and deal a blow to big media industry.

rancuretc
rancuretc

I once had to fight (successfully) to return a boring nintendo game to Walmart for a refund, because the manager seemed to have a general policy against returns of video games to prevent piracy. I argued that it would be harder to copy a nintendo cartridge (where's the USB port?) than to make a paper copy of a monopoly game using my PC. So, if they would let me return a board game, why not a cartridge game? They allowed the return. This example does speak to the old model/ new model paradigm.

BlueCollarCritic
BlueCollarCritic

Regardless of where you stand on this issue its great to see an unbiased (as unbiased can get) take on the whole thing.

Professor8
Professor8

Respect for, and enforcement of intellectual property is more necessary than it was 50 years ago, precisely because the new technology makes theft easier, and the radical leftist strain in educationism needs to be countered. My M-W Collegiate doesn't use the word "felonious". It just says "the act of stealing", "unlawful taking of property". And with current tech, "sharing" is just a euphemism for copying and distributing that which is not yours, thus depriving the creator of that work from the reward for his creativity. Why is IP important? Because, as the constitution notes, copyrights were to be designed to encourage creativity. If there's no chance I'm going to be able to survive from my writings and programmings, and if my writings are, instead, to be coopted by eveil CRiMinals, I'm a lot less likely to exercise my creativity in the ways most valued by the rest of the population. Ishanahan lays out some of the other details well.

Orodreth
Orodreth

That may or may not be true but the Fair Use clause said the owner of the copy does have the right to use and make copies as long as it was not for profit. OTOH, when is a copy no longer a copy? Someone copies a movie out in the NL but soon to be released in the US. They've made a copy of the original but someone else shrinks the movie to an *.avi format. Someone else copies the same movie to *.mpg format. Are these copies of the original 35mm film or something else? Who's owner of the *.avi copy downloaded or viewed by others?

wsargent
wsargent

I would like to add that damages due to copyright "theft" was originally defined in terms of "denial of sale". An intellectual property theft does not deprive the owner of possession of the property, but denies them the opportunity for a sale. In the (old) world of bootlegging tangible goods, the thief was profiting from the theft and that was a basis for estimating damages. This makes a lot of sense. But in the world of zero-cost copying and distribution, it is much harder to make that case. Does the fact that someone is willing to download a movie for free demonstrate that the owner lost an opportunity to sale it for $30? A private individual who is not not making any money from sharing files could argue that they are adding value to the property. If you're a songwriter and your song "goes viral" on YouTube, its value skyrockets because it has been successfully test marketed. What IP owners really need is demonstrable, independently verifiable demand for their content so that they CAN sell it. The whole world could copy your song, but the television and film industry won't steal your song for their productions, because it is MUCH cheaper to negotiate the rights beforehand. In that sense, the current copyright model works just fine. The original intent of IP law was to establish a temporary and provisional monopoly that struck a balance between public and private interests. IP creators were allowed to profit commercially from the fruits of their efforts, but the public enjoyed non-commercial usage that didn't result in a denial of sale. Well, isn't that already the case? The minute anyone tried to make money from selling someone's property, they are much more exposed and vulnerable.

lshanahan
lshanahan

Copyright in the United States is a Constitutional matter, not merely a legal one. It is an express power of Congress given by Article I Section 8 and was intended as a guarantor of free speech by giving the author of a given work the exclusive right to publish and distribute it (including the right to grant others permission to copy and distribute) without submitting it to a government agency for approval or distribution. Meaning, very simply, if you buy a copy of a copyrighted work YOU DO NOT (with certain very limited exceptions) buy the right to indiscriminately copy said work and distribute it to others - even in the privacy of your own home. You could, for example, make a copy of a music CD to listen to in your car on the way to work or to listen while you work out at the gym. You could even sell the original copy to someone else. You could NOT make unlimited copies to give to anyone who walks in the door (which is essentially the problem with peer-to-peer sharing). Copyright also guarantees that if YOU as an author, musician, programmer etc., decide to freely distribute YOUR own work, you have the absolute right and authority to do so. The problem is NOT with copyright per se, it is with the extension of the limited timeframe of copyright (originally 7 years with the option to extend for one additional 7 year period if memory serves) to what many believe are unreasonable lengths of time. That is the primary problem that needs to be solved. Copyrights were never intended to last in perpetuity.

Dr_Zinj
Dr_Zinj

I rarely go to concerts because the cost is too high, decent performers are few and far between, and because scalpers buy up all the tickets within minutes of them going on sale and then price them even higher. RIAA and MPAA represent people and businesses with a fundamental lack of adaptability and flexibility in business. They have a fragile, non-workable-in-a-free-economy business model; requiring artificial life support. In short, they are parasites that can only survive by causing the death of their hosts if they try to remove them. The original copyright laws were formulated with an initial period which the author wasn't really expected to outlive, the second term was to virtually guarrantee that the author didn't outlive it. The obvious intention being the author enjoyed the fruits of his or her labor for his or her entire lifetime; at which point the work becomes open to everyone to build on. Wikipedia has good articles on the various copyright laws, in particular, sections from the Copyright Act of 1976, http://en.wikipedia.org/wiki/United_States_Copyright_Act_of_1976, 14 Jun 2011. The copyright act of 1976 defines "works of authorship" as any of the following: - literary works, - musical works, including any accompanying words, - dramatic works, including any accompanying music, - pantomimes and choreographic works, - pictorial, graphic, and sculptural works, - motion pictures and other audiovisual works, and - sound recordings (including digital - 1995). It also defines fair use as explicitly applying to use of copyrighted work for criticism, news reporting, teaching, scholarship, or research purposes, and other areas not explicitly defined. The Act gives four factors to be considered to determine whether a particular use is a fair use: - the purpose and character of the use (commercial or educational, transformative or reproductive); - the nature of the copyrighted work (fictional or factual, the degree of creativity); - the amount and substantiality of the portion of the original work used; and - the effect of the use upon the market (or potential market) for the original work. The problem with Copyright Act of 1976 is that it also provided for the reassignment of the copyright holder to the heirs of the author for up to 190 years. Such a designation is antithetical to the original intent of promoting the Progress of Science and useful Arts, or the U.S. courts current interpretion of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. George Orwell, J.R.R.Tolkein, H.Beam Piper, and Robert Heinlein are all dead. Under the founding father's intent, their works should have gone back to public domain upon their deaths, not been assumed and continued by their heirs. Under this law, any teacher could use an entire contemporary song, plus copies of the lyrics in their classrooms without the author's permission, for the purpose of teaching something. But the use of that song and lyric sheets could not be used for a school play or production without first being granted that right by the author. Weird Al's productions are artistic parody &or criticism of the original work and technically not requiring permission from the copyright holder of the source work. Copying of the work by a buyer for personal use to a media not being published in by the author is allowed as this has no significant effect on the market. (This would also have covered the case where that kid from europe hacked the system to allow playing music under Linux - court wrongly ruled against him in that case.) It does mean that pirating music to burn onto your own CDs or iPods IS theft.

bblackmoor
bblackmoor

The new model for content restriction is already here. The Digital Rights Mafia -- the media robber barons -- want a world where no one (other than their cartel) owns a book, or a song, or a movie. Instead, you'll rent it. Every.Time. You. Read/Hear/Watch. It. That's the inevitable result of copyrights that last for multiple decades (and we are well on our way toward copyrights that last for centuries).

pgit
pgit

Full time, absolute positive ID, no access without it, all transactions audited for approval (at the packet level, even) is the "answer." (the question being "how do I, dinosaur vested interest X, maintain monopoly, total control and keep the cash cow alive?)

CharlieSpencer
CharlieSpencer

The industry can either cut its prices and accept lower profits, or continue its fight and eventually wind up with no profits. According to one of Chad's earlier articles, it's probably going to disappear anyway, but keeping its prices high just hastens that date.

apotheon
apotheon

I appreciate the kind regard. The truth is that I side with Thomas Jefferson on the matter of copyright and patent law. This article, however, was not intended to address that particular matter. Rather, I wrote it to address the matter of business models based on assumptions surrounding copyright law, and tried to confine my comments in the article to that particular subject. I'm glad you liked it. Thanks for reading and commenting.

pgit
pgit

wow. try to oppose that. :)

apotheon
apotheon

> Why is IP important? Because, as the constitution notes, copyrights were to be designed to encourage creativity. . . . except it doesn't demonstrably encourage creativity at all.

Neon Samurai
Neon Samurai

Copyright infringement is more like my tshirt design. I design the shorts and start producing and selling them. You open a factory beside mine, copy my shirt design and start selling your own. I have not been denied access to my own shirt design. I've also not been denied the opertunity to sell my shirts. I've simply had my monopoly on the shit design threatened. We can both continue on selling the same design of tshirt. Your counterfit product does not remove my product design. Now, what I would want to do is insure I can provide a quality of tshirt that people want to pay for. I need to give people something they can value over the counterfits they may be able to buy cheaper. I can't simply rely on the state sanctioned monopoly. In similar fashion, the music industry producing music people want to purchase and support with added value that the counterfit operations can't produce would be a far better aproach to problem of infringement. Regurgitating the same manufacturerd-by-commity musical bubble gum acts and songs just does not do that. Oh golly, another boy band.. wahoo.. let me throw money at that. Oh goody, yet another clone of the singer that seemed original two years ago.. yippy.. where is my wallet! Bah..

apotheon
apotheon

> In the (old) world of bootlegging tangible goods, the thief was profiting from the theft and that was a basis for estimating damages. This makes a lot of sense. But in the world of zero-cost copying and distribution, it is much harder to make that case. Does the fact that someone is willing to download a movie for free demonstrate that the owner lost an opportunity to sale it for $30? Of course not. There's a lot of stuff I'd take if offered for free, but wouldn't if it cost me $30. I won't pay $30 for one of those peppermint candies in a bowl near a restaurant exit, but I'll take one for free on my way out after dinner. Obviously, the offer of a free peppermint candy at a restaurant, and the fact I took one, does not in any way mean that some retail store selling those candies for $30 each lost a $30 sale. . . . but you knew that, and were just asking a rhetorical question.

apotheon
apotheon

> Copyright is a Constitutional right. No. It's a Constitutionally supported matter of law. It's not a right. There is a difference. The "rights" are the things enumerated in the first ten Amendments, and supported by certain provisions in some following Amendments. > Copyright in the United States is a Constitutional matter, not merely a legal one. The Constitution is a legal matter. The fact it's in the Constitution doesn't make it something other than a legal matter. The Constitution, after all, is a legal document. > It is an express power of Congress given by Article I Section 8 and was intended as a guarantor of free speech by giving the author of a given work the exclusive right to publish and distribute it WTF are you smoking? Free speech is "You're allowed to say something, or keep your mouth shut, at your own discretion." Copyright law is "You're not allowed to say this if we don't give you express permission." It's the opposite of free speech; it's censorship. > Meaning, very simply, if you buy a copy of a copyrighted work . . . I think we're all acquainted with the general applicability of copyright law in this case. The paragraph starting with those words I just quoted does not actually contribute anything substantive to discussion. > Copyright also guarantees that if YOU as an author, musician, programmer etc., decide to freely distribute YOUR own work, you have the absolute right and authority to do so. Incorrect. Many authors are denied the right to distribute their own works because copyright is held by some other party than the author. > The problem is NOT with copyright per se Maybe you weren't paying attention, but the article was not about whether there is a problem "with copyright per se." It was about how copyright is becoming increasingly difficult to enforce, increasingly counterproductive for making money off creative works, and -- in summation -- obsolete.

Neon Samurai
Neon Samurai

It's even worse then simply extending the term the monopoly powers remain on a work. Things previously out of term and well into the public domain have been removed from public domain with copyright re-applied. WTF is that?

apotheon
apotheon

There's a wall of text there that, to a significant degree, is not very relevant to the article -- then you end with this: > It does mean that pirating music to burn onto your own CDs or iPods IS theft. You say that as if you've somehow proven your case. You haven't. You have, in absolutely no way at all, disputed the argument in the article to the effect that copyright and theft are different ethically, physically, and legally.

apotheon
apotheon

Things look pretty bleak for enforcement in the future. A law nobody respects is a law that will not be effectively enforced.

Neon Samurai
Neon Samurai

IPv4 persistance and 4to6 birdges, darknets, proxies.. those with the will can find a way

apotheon
apotheon

I should have been more careful with my words in the article.

Neon Samurai
Neon Samurai

I'm one who think piracy should be used when discussing the classic privateering on the high seas. Turns out when the printing press was first released, those who copied works they did not "own" where refered to as "word pirates" applying the privateer title to the reproducing of written content.

AnsuGisalas
AnsuGisalas

Since their product is superabundant, if they accept micropayments, they might even get higher profits. Say, if people go nuts throwing 0.05$ tunes at each other on facebook.

apotheon
apotheon

I tried to just ignore it.

wsargent
wsargent

When the RIAA sues ordinary folks and wins damages for tens of thousands of dollars for copyright infringement, what is the basis for those damages if it is not denial of sale? How do they convince the court that they have been materially harmed and that granny is responsible because her granddaughter found a way to download some music from the Internet?

pgit
pgit

The Constitution, after all, is a legal document. Not exactly. The "founding fathers" not only had no authorization to alter government, they lacked the lawful quorum required of the articles of confederation, under which supposed authority they were operating. The constitution was a coup. Read my friend's excellent work on the real deal, "The CONstitution that never was." He and I independently researched the matter and came to the same conclusions. He just happened to have the time on his hands to write a book. Guy's name is Ralph Boryszewski. A real national treasure, and a holy riot for a 95-ish year old. eg he was a cop in Rochester New York from the late 40's through 1970 or so, but the RCMP (Canadian "mounties") made him "mounty of the year" in 1967. The real goal of the constitution was to fudge Article III, get the damned thing approved (bogus means btw) and then spring the "First Judiciary Act" on an unsuspecting public. Lots of huge, killer problems surrounding the whole ordeal. Long story short the First Judiciary Act basically voided the constitution. If Article III had been written as intended, ie the First Judiciary Act was actually article III, not only would the constitution NOT been ratified, but Washington and crew would have been lynched. Of course we know who writes history. For the real history read Ralph's book. He used more original materials, for example many hand written notes of the "founders" some of which have never been provided to anyone else for any reason, than any other researcher tackling the subject. The subtitle of the book is "How the American people have been conned by lawyers." Ralph's a hoot.

AnsuGisalas
AnsuGisalas

No wait, it has government approval, so that makes it privateering. To them. To We the Public, it's of course despicable larceny (since it taketh away rights from us to give unto others, THIS is in fact theft, unlike copying).

pgit
pgit

I agree, true enforcement seems near impossible. So the incentive is to pick one victim, hype the crap out of it in the media and leave their head on a pike at the edge of town. I think that's pretty much what we're seeing. Thank goodness the blanket suits leveled at IP addresses is beginning to be curbed a bit. But I think you're going to see more suits targeting someone they can reasonably lay hands on. It would behoove them to keep this issue (we're gonna prosecute you!) alive in the media, on medium-low heat. Lengthy suits drawn out over months, a perpetual conveyor belt of at least one "newsworthy" action in constant motion. Like with a lot of things, raw fear will keep a lot of people in check.

AnsuGisalas
AnsuGisalas

are not the same though. The privateer is one with a license to stay, inspect and confiscate maritime vessels during times of war... license issued by one of the warring nations. Of course, one nation's [b]bold privateer[/b] is another nation's [i]despicable pirate[/i] (say that like Elmer Fudd). So, if I was to claim that the P.O.E.E. has declared a most holy jihad upon the DRM-backing industries, I could then, as a Pope, issue letters of Marque to people they call despicable pirates, making them in turn bold privateers.

apotheon
apotheon

bblackmoor makes a good point.

AnsuGisalas
AnsuGisalas

Because COPYING doesn't use up or displace the commodity! Exactly the thing they're trying to obfuscate.

apotheon
apotheon

There might be a lower per-unit profit, but profits in the aggregate could increase, by making up the difference (and then some) in volume.

AnsuGisalas
AnsuGisalas

on money spent greasing up lawmakers!

Tony Hopkinson
Tony Hopkinson

The assumption is that every one who obtained a pirated copy, would have bought it. Given A then B. So assumption of sale that should be 'erm examined. not 10,000 downloads = 10,000 CDs they didn't sell.

apotheon
apotheon

> How do they convince the court that they have been materially harmed and that granny is responsible because her granddaughter found a way to download some music from the Internet? Sophistry, basically. Correlation does not imply causation, but many judges and jury members are not aware of this fact. They exploit such ignorance mercilessly.

pgit
pgit

yes, the confusion is intentional. Made by and for lawyers and the control freaks that have loosed them upon an unassuming world.

pgit
pgit

I gather from you that is true as well, and I'd hazard that maybe you know the 5th and 6th things. Of course "nobody" is a flame-bait word. In my use it's a reflection of the severe frustration I faced in 10+ years of battling with over a hundred, mostly faceless bureaucrats. To a one they assumed they were "authorized," had jurisdiction and to a one this was backed by the official answer "that's the way we do it." It took getting into the courts to demand either the answer they are compelled to give, (detail the actual facts of jurisdiction from the constitution on down) or go away and leave me in peace. They actually admitted my positions on the Law are correct, by the time tested "silence is acquiescence" that they lay on the mundanes day after day. In fact 90% or more of federal jurisdiction is obtained by a simple common law default. They boggle your mind with all the statutes etc, but they also give you the conclusion, eg we're going to clean out your savings account. The two are NEVER connected. Their statutes are not law, but the poor victim goes off arguing "the law," which is not law, and the time runs out on the threat that "if you don't do A by date B, we will do C." If you have a lawyer, you have lost from the outset, unless more money can be made (or favors owed returned) by finding FOR the poor victim. I never made a single argument or discussed any codes, regs or statutes POSITIVELY. I asserted nothing, I asked for proof of this claim of jurisdiction. Per their 13th amendment it cannot be compulsory. They can't, unless they want to be honest and put it on the record that their true "authority" is the barrel of a gun, covered by the average stupidity that prevails. If you knew some details I think you'd be astonished. Unfortunately I do not speak of such things publicly any more, and only rarely over a bottle of wine or a beer. (ie in person) My statement that "I do argue" the constitution is illegal is a separate matter. Quite the opposite of what I did. In fact I started with the position that the constitution is operative, then asked the various systems to please hew to it. The better of many introductions to this concept is my friend's book. But after that, we were both first motivated by reading Lysander Spooner's works of the late 19th century. Dense reading, but he does a great job countering prevailing assumptions, which assumptions are best understood by reading Oliver Wendell Holmes' "The Common Law." (which proves to be an early "Orwellian" title) Spooner's "No Treason" is the place to start. Ralph pried that one open with a screw driver and shed light on the actual people and events. I think I mentioned his subtitle is "how the American people have been conned by lawyers." Ralph gets himself in front of a judge as often as possible and always ends up at a point where he can tell the judge and his team of prosecutors "you don't know what the law is!" He's quite right, but I have yet to find the average man on the street that either knows this, or can fathom and

apotheon
apotheon

In the end, every time you are tempted to think "There oughta be a law," consider whether you're willing to kill your most-cherished loved one (your grandmother, in the example offered by PJ O'Rourke, if I recall correctly) to enforce it. That's really what it boils down to: If someone disagrees with the law enough to die rather than comply or go to jail -- will you kill that person? What if it's grandma? edit: What if the person doesn't even disagree with the law -- what if he or she broke a law by accident, and simply isn't willing to go to jail for it?

AnsuGisalas
AnsuGisalas

"...that there may be a law..." That rings both deep and true... Not that there may be a law, but the quasi-religious displacement of the fact that it all comes down to "we'll kill you if you don't", hiding behind the curtain, with the smoke generators and the megaphone. Illegal, unlawful, illicit ... what a trinity :)

apotheon
apotheon

> I do argue that the constitution is an illegal, legal document. So I gather. This is not an area of knowledge to which I have devoted a lot of time, however, so I'm willing to just take your word for it, for argument's sake. > Nobody in the US knows the first thing about jurisdiction. I know the first thing about jurisdiction (though basically only the first thing). I just can't repeat what I know here, because the TR censoring scripts would asterisk it out.

pgit
pgit

as always, you clarify things. I do argue that the constitution is an illegal, legal document. I also acknowledge that it is (de facto) a legal document. In fact I accomplished something rather astounding by holding the system that purports to obtain authority from that document to the document's stated "law." It looked to me that operation and lip service conflicted, I insisted the lip service be upheld. =D BTW the bigger distinction is between "legal" and "lawful." The "illegal" may in fact be lawful, and vice versa. Statutes, code and regulations are LEGAL, but they are in fact quite unlawful, if the constitution is to be believed to have any effect. Governments themselves state clearly that "code" is not "law," merely (sometimes) "evidence" that there may actually be a law. The supreme court and several state courts have stated so. Where it gets complicated is when you look at nexus, venue and standing, which are boundaries of jurisdiction. Nobody in the US knows the first thing about jurisdiction.

apotheon
apotheon

> Not exactly. The "founding fathers" not only had no authorization to alter government, they lacked the lawful quorum required of the articles of confederation, under which supposed authority they were operating. . . . and? It is the founding document of the US legal system. That makes it a legal document. You might conceivably argue it's an illegal legal document, but whether it is lawful or not, it is a document of the law. > Read my friend's excellent work on the real deal, "The CONstitution that never was." I'd heard about that, but my reading list is a bit long to get to it any time soon. For now, I'll just point you back to my previous statement in this comment about why the Constitution is a legal document (that is, a document of law). The confusion between you and me over whether the Constitution is a "legal document" is based on the multiple uses of the word "legal". In this case, our discussion has run afoul of the fact that legal can mean either "within the law" or "of the law".

Neon Samurai
Neon Samurai

It is indeed an attempt to remove under state sanction.

apotheon
apotheon

Don't confuse people with a change in username.

pgit
pgit

How about "sunshine?" Or maybe "Glee!?" Unfortunately EFF has to jump up and down waiving it's arms or even kick the door down to be heard. The other side shares the same wallet. But you're quite correct, the dialectic will put the Siths in power, but it also guarantees there will be a resistance. On the other hand, without that resistance, there are no arms sales, no profit center for a military-industrial complex. So despite knowing it may be the end of yourself, the Sith still elects to, well, be a Sith, hoping it'll be a good ride "as long as I live."

apotheon
apotheon

> I agree, true enforcement seems near impossible. So the incentive is to pick one victim, hype the crap out of it in the media and leave their head on a pike at the edge of town. I think that's pretty much what we're seeing. True. On the other hand, it's not doing much "good" for them. > It would behoove them to keep this issue (we're gonna prosecute you!) alive in the media, on medium-low heat. Lengthy suits drawn out over months, a perpetual conveyor belt of at least one "newsworthy" action in constant motion. Doing that has consequences beyond what they intend, though. For one thing, it causes people to buy less of their product, as more and more people start boycotting the worst offenders. For another, it makes people feel more justified to infringe copyright, driving people through spite and offense to try to hurt the worst offenders. Finally, of course, it gives the EFF plenty of fodder to paint the worst offenders as the evil bastards they are, which also gets media coverage. > Like with a lot of things, raw fear will keep a lot of people in check. I believe some Jedi or other had something to say about the efficacy of ruling through fear. It's a doomed tactic in the long run, and the "long run" is getting much shorter as the turnover rate for new technologies increases.

AnsuGisalas
AnsuGisalas

of course... If we agree to sanction "software pirates" they'll be software privateers... To us. But there's always been completely unsanctioned pirates too, whom no nation has regarded with other than hatred. That was before the POEE, though. Now they can give themselves a Papal charter! ;)

AnsuGisalas
AnsuGisalas

I seem to remember something like that. Hosts a population of next to nothing, a satellite hookup, and a data center.

Neon Samurai
Neon Samurai

My understanding is that the original Pirates where, or started as, privateers. For example, within English waters English privateers would be safe but from the perspective of non-English fleets, English privateers where pirate scourge. Someone went to the queen and said "paper us as privateers ("private combatants?") and we'll help the war effort by robbing the enemy blind and returning the spoils to you." I was trying to use a more interesting word but search/replace and reread if you like. Piracy meant theft on the high seas. When the Goutenburg press turned up, the term was reused "Word Pirate" meaning theft of words or using the printing press to copy others works. Being that true pirates still operate on open water (the Simali coast is not recommended for recreational sailing); I really do prefer it's more accurate use that way rather than in relation to copyright but I can understand the historical president for it's sensationalized use.

apotheon
apotheon

It's more fun to say it like Daffy Duck, but I like combining Elmer Fudd's name with the acronym for Fear, Uncertainty, and Doubt. Also . . . I don't do a very good Fudd impression. By the way, I think we need to create an Internet nation just so we can issue Letters of Marque and Reprisal. We should talk about this in more detail.