David Schwartz wrote:
> All of these right conflicts are resolved by property rights. Yes, you can
> keep and bear arms on your property, but you can't let a bullet fly onto the
> circle K. Yes, you can smoke in your house or someplace under your control,
> but I can designate my house smoke free if I want to.
Free market capitalism _appears_ to tend towards a structure where the
bulk of property becomes owned by a few owners, and the majority of
owners own very little property.
So it's appropriate for rights to be distributed like that too?
For example, suppose you own _all_ the land I can travel to. Then my
right to not be shot by you is not protected at all. I do not think
that is an appropriate resolution of rights.
> The author's right to profit from his creation is about as absolute a
> property right as you can imagine.
For some kinds of profit, I agree. For other kinds of profit (read:
coercion over others), I disagree.
And if there are two authors who independently create something
similar? The rights do not resolve so long as both authors demand
that the other does not profit. The only resolution is when both
authors view cooperation as a satisfactory kind of profit.
I truly do not believe I have that "absolute property right", much as
I would like it. If I write a program or create a new kind of
technical device, I would like to profit from that. But I do not
think I would be allowed to, as I would be pursued into oblivion by
more powerful entities than I.
But then, I truly believe it is conceptually impossible to create
something which has no connection with what has come before. So I
would not claim it as absolutely mine anyway, unless I had an agenda
to fulfull...
-- Jamie
> David Schwartz wrote:
> > All of these right conflicts are resolved by property
> > rights. Yes, you can
> > keep and bear arms on your property, but you can't let a bullet
> > fly onto the
> > circle K. Yes, you can smoke in your house or someplace under
> > your control,
> > but I can designate my house smoke free if I want to.
> Free market capitalism _appears_ to tend towards a structure where the
> bulk of property becomes owned by a few owners, and the majority of
> owners own very little property.
>
> So it's appropriate for rights to be distributed like that too?
>
> For example, suppose you own _all_ the land I can travel to. Then my
> right to not be shot by you is not protected at all. I do not think
> that is an appropriate resolution of rights.
While this is an interesting defect in my analogy, it's not relevant to
copyright because here we're talking solely about property wholly created.
So the alternative to my owning all the land you could travel to would be
that land not existing.
> > The author's right to profit from his creation is about as
> > absolute a
> > property right as you can imagine.
> For some kinds of profit, I agree. For other kinds of profit (read:
> coercion over others), I disagree.
As I made clear, your right to profit to the idea is the same type of right
as your right to do what you want with your bat. It doesn't include taking
it onto my property to break my windows.
> And if there are two authors who independently create something
> similar? The rights do not resolve so long as both authors demand
> that the other does not profit. The only resolution is when both
> authors view cooperation as a satisfactory kind of profit.
Since we're talking copyright here and not patent, two independent
developers would both have equal right to authorize the use or distribution
of the idea.
> I truly do not believe I have that "absolute property right", much as
> I would like it. If I write a program or create a new kind of
> technical device, I would like to profit from that. But I do not
> think I would be allowed to, as I would be pursued into oblivion by
> more powerful entities than I.
You have the right to walk the streets at night with hundred dollar bills
danglnig out of your pockets and nobody has the right to steal the money
from you. That doing so is stupid and will likely make you the victim of a
crime doesn't change your right one iota. Heer we see a difference between
rights that are both legal and moral and what you can practically achieve.
Yes, it's a defect in our legal system that wealthy powerful people can
manipulate it with extreme effectiveness. Yes, it's a defect in our
legislative system that companies like Disney can exert enormous control
over what laws are passed. But these aren't really copyright issues in
principle.
> But then, I truly believe it is conceptually impossible to create
> something which has no connection with what has come before. So I
> would not claim it as absolutely mine anyway, unless I had an agenda
> to fulfull...
This is just equivocation on the "it". Legally, the "it" you own is not any
particular word or 'diff' output, it's the original creative effort that you
added. If I translate Hamlet into Polish, there is no physical way to
isolate my contribution from Shakespeare's, but that doesn't mean we don't
understand that there is creative effort that you added and that the total
work contains your creative effort and Shakespeare's.
This may be confusing for people not familiar with intellectual property
law. But trust me (or do some research or talk to an intellectual property
lawyer), it creates no legal problems or problems of principle whatsoever.
Your copyright rights to what you produce in no way affects what anyone can
do with, or what you can do to, anything that came before you.
DS
It truth, there is no such thing as "intellectual property" by the correct
legal definition of property. There was also no intent to create
"intellectual property" in the minds of the founders of the United States.
The truth of the matter is that Digital Restriction(*) Management isn't even
about copyright. We are in the berth pains of the creation of "accessright"
law, and nobody has yet demonstrated that such a body of law is, well,
legal... let alone necessary for any purpose.
The fundamental problem with applying property law (et al) to the domain of
ideas is that you can not affect a clean and complete transfer of
possession.
Anything "intellectual" exists in the pure domain of thought (hence the root
"intellect" 8-) and the facts remain that one party, having processed an
idea (or set thereof) can not "willfully and completely surrender" the idea
out of their head and into someone else's.
You see, property is "transferable" but ideas can only be "copied" which is
why COPYright contains that word and not some variation of "property".
Property rights, patent rights, and copy rights are distinct.
That is also why "theft" and what we can generally refer to as "the theft
words" never applies these topics no matter how often or loudly someone
yells "you stole that idea from me." Notice that you *can* steal a program,
program source, manuscript, or copy of a book. To do so you must gain
access to (break) and/or variously enter (hence "breaking and entering") a
place where such materials reside, and then simultaneously gain possession
of said materials and deprive the rightful owner of them. (e.g. you can go
take the media, or you could access a computer, copy the information onto a
removable media, and then wipe the originals or take a hammer to the
computer or something.)
So by definition, the presidents of property rights can not reasonably and
fully be applied to information and ideas.
Worse, absolutely none of the DRM arguments even exist within the presidents
of copyright law as a significant subset of the technology and uncertainty
only comes into play well after the act of copying is completed.
Consider DeCSS. At the time that the CCS ("Content Control System", not
"Copy Control System") comes into play, all parties have already agreed that
the copy 1) should have been created, 2) should have been assigned, and 3)
is completely within the possession of the reasonably correct person. That
is, the copy has already been made, and you already have the DVD in your
grubby little paws.
Further, there is nothing inherent in the CCS system that takes a single
step towards controlling the copy of that DVD. If you have the hardware you
can make a byte-wise copy of the DVD onto another DVD and both copies will
contain identically CCS(ed) image.
CCS is about whether you can access what that copy contains in a meaningful
way.
Some people may access that information with the intent to copy it into a
non-CCSed image, but that is a separate follow-on activity that was not even
considered when the CCS system was created. The CCS system was invented to
solely (and, according to anti-trust law, illegally) tie the one product (a
particular DVD) to another (any player with a licensed DeCCS and matching
region code).
The sticky part is that the constitution does NOT create nor endorse any
sort of "accessright" law. Things like the DMCA endeavor to create such a
body of law in a back-handed fashion by attempting to convince everybody
that copyright always included accessright.
If it had, then it would be, and would always have been, legal to sell
someone a book and then say, "you may only read this book in a library" and
have the force of law behind you to back you up in that restriction.
Rob White
(Not A Lawyer!)
(*) "DRM" is improperly coined as Digital "Rights" Management, but no
existing work in the area actually "manages" "rights", the technology
singularly and specifically implements restrictions and manages those
restrictions. For instance, a DRM system can disallow your access to a work
that you actually have the right to access. For instance, a Digital
Restriction may prevent you from accessing a work that is in the public
domain (e.g. which you have the undisputed and indisputable right to
access).
> It truth, there is no such thing as "intellectual property" by the correct
> legal definition of property.
Nonsense. Intellectual property is, conceptually, a form of contractual
property. If I pay you $10 to mow my lawn tomorrow, my right to compel you
to mow my lawn (or have you pay me damages) is a property right.
If I develop an idea, I have the absolute right to the contents of my mind
and cannot be compelled to disclose the idea. Because the greater includes
the lesser, the right to not disclose the idea includes the right to
disclose the idea under terms, pursuant to a contract (actual or implied).
Most property rights are contractual. You come to own property because you
contract for it.
> There was also no intent to create
> "intellectual property" in the minds of the founders of the United States.
Because there was no need for them to do so. If I have possession of an
idea and agree to tell you the idea for $10 provided you agree not to
disclose the idea to anyone else, I don't need any special laws other than
the normal laws that permit me to make and enforce contracts.
> The truth of the matter is that Digital Restriction(*) Management
> isn't even
> about copyright. We are in the berth pains of the creation of
> "accessright"
> law, and nobody has yet demonstrated that such a body of law is, well,
> legal... let alone necessary for any purpose.
I think that you are right conceptually. Access restrictions are purely
contractual things and more obviously so. If I put a security restriction on
a CD and sell it to you, there's an implied agreement that you will respect
the restricitions. If I really wanted to, I could have you sign an agreement
to that affect.
> The fundamental problem with applying property law (et al) to the
> domain of
> ideas is that you can not affect a clean and complete transfer of
> possession.
This would apply to employment contracts too.
> Anything "intellectual" exists in the pure domain of thought
> (hence the root
> "intellect" 8-) and the facts remain that one party, having processed an
> idea (or set thereof) can not "willfully and completely
> surrender" the idea
> out of their head and into someone else's.
This is true for employment to. In fact, it's true for all contractual
agreements except for the sale of real property. If you hire me to mow your
lawn, how can I "willfully and completely surrender" one day of lawn mowing
in the next ten days to you at that time?
Really, this is not a problem at all. Complex societies like ours
understand how to deal with intangible property rights. When you book a
hotel room in advance, the right to that hotel room on that day is an
intangible. It could, however, well be a transferrable property right that
you have. That's not a problem.
> You see, property is "transferable" but ideas can only be
> "copied" which is
> why COPYright contains that word and not some variation of "property".
> Property rights, patent rights, and copy rights are distinct.
You are confusing the right with the thing that the right is to. If I have
an idea, and I tell you that idea pursuant to an agreement that you will not
disclose the idea to others, the property I have is the right to pursue you
for damages should you disclose the idea. This is the same concept as if,
say, you sign a non-disclosure agreement. The right is not to the idea
itself, it's to pursue damages from those who violate their actual or
implied agreements not to disclose or use the idea without compensating you.
> That is also why "theft" and what we can generally refer to as "the theft
> words" never applies these topics no matter how often or loudly someone
> yells "you stole that idea from me."
But it is theft, as surely as if I pay you $10 to mow my lawn and you don't
mow my lawn. Violating a contractual agreement not to disclose and not
paying the damages the agreement specifies is a form of theft by fraud.
> Notice that you *can* steal
> a program,
> program source, manuscript, or copy of a book. To do so you must gain
> access to (break) and/or variously enter (hence "breaking and entering") a
> place where such materials reside, and then simultaneously gain possession
> of said materials and deprive the rightful owner of them. (e.g.
> you can go
> take the media, or you could access a computer, copy the
> information onto a
> removable media, and then wipe the originals or take a hammer to the
> computer or something.)
>
> So by definition, the presidents of property rights can not reasonably and
> fully be applied to information and ideas.
You are trying to set back a complex society by arguing that only what you
can touch has legal meaning. But you can't touch the right to use an
apartment from June 1 to July 1. Yet if you agree to pay monthly rent for
the apartment, use the apartment, but don't pay, it's theft.
Seriously, there is no problem at all here. You are needlessly and
senselessly manufacturing artitifical distinctions that make no sense.
> Worse, absolutely none of the DRM arguments even exist within the
> presidents
> of copyright law as a significant subset of the technology and uncertainty
> only comes into play well after the act of copying is completed.
Then forget about copyright law entirely. Think only about contractual
property and the fact that a person who comes up with an idea cannot be
compelled to disclose it and can disclose it under any terms he or she
chooses. Think that when you buy a CD or a program, there's an implied
contract that the CD or program is for your personal use and that violating
that contract is as much theft as living in an apartment without paying
rent.
> Consider DeCSS. At the time that the CCS ("Content Control System", not
> "Copy Control System") comes into play, all parties have already
> agreed that
> the copy 1) should have been created, 2) should have been assigned, and 3)
> is completely within the possession of the reasonably correct
> person. That
> is, the copy has already been made, and you already have the DVD in your
> grubby little paws.
>
> Further, there is nothing inherent in the CCS system that takes a single
> step towards controlling the copy of that DVD. If you have the
> hardware you
> can make a byte-wise copy of the DVD onto another DVD and both copies will
> contain identically CCS(ed) image.
>
> CCS is about whether you can access what that copy contains in a
> meaningful
> way.
Agreed.
> Some people may access that information with the intent to copy it into a
> non-CCSed image, but that is a separate follow-on activity that
> was not even
> considered when the CCS system was created. The CCS system was
> invented to
> solely (and, according to anti-trust law, illegally) tie the one
> product (a
> particular DVD) to another (any player with a licensed DeCCS and matching
> region code).
Agreed.
> The sticky part is that the constitution does NOT create nor endorse any
> sort of "accessright" law. Things like the DMCA endeavor to create such a
> body of law in a back-handed fashion by attempting to convince everybody
> that copyright always included accessright.
Agreed. More sensible would be to look at whether the implied agreement
when you purchased that DVD included a promise to only use it on licensed
DVD players. An argument that is, IMO, nonsense.
Further, there is no reason why the DMCA should have been enforced in cases
where no right recognized under copyright law exists because the DMCA was a
copyright law extension. As far as I know, a DVD seller has no legally
recognized copyright interest in what device I play that DVD on, and hence
CSS is *not* a copright enforcement mechanism.
I totally disagree with the way the DMCA has been interpreted and hope that
there is a massive backlash.
> If it had, then it would be, and would always have been, legal to sell
> someone a book and then say, "you may only read this book in a
> library" and
> have the force of law behind you to back you up in that restriction.
This is certainly not a right recognized under copyright law, so it's not a
right that can be enforced by a copyright enforcement mechanism. However,
this is a moral right that a content author has. Copyright law has taken
this away from content authors in the name of benefitting the public at
large.
Copyright laws gave authors very little that they didn't already have.
Patent laws, on the other hand, give inventors many rights they would not
have otherwise.
DS
I am not sure why I am bothering since you clearly don't know anything at
all about what does or does not constitute property. (and therefore all
your "property law covers this" based logic is impossibly flawed.)
Nonsense right back to you. Your "right to compel me to mow your lawn
tomorrow" isn't a property right in any sense. It is covered under "tort"
law (whatever the heck that is). In plain speak is an AGREEMENT not a
POSSESSION.
It is not property because, among other things, it isn't transferable. You
can not COMPEL me to mow your neighbors lawn instead. You could pursue an
alteration of that agreement involving your neighbors lawn in stead, but I
am not COMPELLED to AGREE to such a change. Moreover, you can't re-sell my
mowing of your lawn to your neighbor without making me party to the revision
of the agreement. (The reason people confuse this often enough is because
into financial lending agreements one often agrees at the time of borrowing
to allow the lender to sell your promise of payment to a third party.)
However, as we all (hopefully) learned in primary school, you can't borrow a
dollar from me, loan a dollar to "Alex" and then, when I come for my dollar,
tell me to go get it from "Alex" because he owes it to you. Agreements can
not be sold, and are not property. Agreements that contain a right-to-sell
are agreements with that provision, but they are still not property. For
instance, you don't and *cant* "own stock" even though people use that
expression all the time. you *HOLD* stock in a company. Hence
"stock-holders meeting" and "majority share-holder" as so forth.
"Contractual property" is a non sequitur. As is "intellectual property".
Ask a lawyer.
The fact that you seem to equate "I will mow your lawn tomorrow in
consideration of the $10 you gave me today" to be the same as "one generic
day of lawn mowing" demonstrates that you, personally, should *NEVER* make
any kind of agreement with anybody for any purpose. 8-) "one day of lawn
mowing" is completely dissimilar to "mow (a specific) lawn on (a specific
date)". Persons who try to turn the latter into the former are guilty of
fraud and will tend to be out $10 in a court of law.
And no, I am not "trying to set back a complex society by arguing that only
what you can touch has legal meaning." I am trying to make you understand
that agreements, "real property" (which is land), "property" (which is any
tangible thing other than land), and copyright (among other concepts) are
completely dissimilar and are covered by completely different kinds and
scopes of law. The fact that they are "not the same thing" completely
negates your "the law of one is the law for all" claim that "property law"
somehow carries into the other areas.
There is not now, nor has their ever been, such a thing as "intangible
property". There is (real and otherwise) property, there are contracts
(oral agreements, written agreements, common stock, preferred stock, trusts,
etc are all contracts), and there are rights (including copyrights and
patents) and they are each governed by completely different sets of laws.
If you go to court to claim that property law says something about
non-property (like a contract you are a party too) you will get laughed at,
and then you will lose.
For instance, the authors right to not invent and not share his invention,
is, wait for it... a RIGHT... and doesn't make the idea any kind of
property. You even used the words your self "... I have the right to the
contents of my own head ..." and the follow-in fact that you can get
together with someone and agree to a contract where you will disclose the
idea for $10 and a non-disclosure agreement, is contract law. (Notice that
there is still no "property" anywhere in there, its all rights and
agreements. "Property law" doesn't apply because there is NO SUCH THING as
INTELLECTUAL PROPERTY)
Contrary to your statements, Patent law did less for the patent holder than
copyright did for authors.
In many cases, an invention is self describing. You build a windmill and
someone can come along and disassemble the thing and know how to build a
windmill. In most cases, however, inventors can keep secret the nature and
structure of their invention and still profit from that invention. Patent
law was really about convincing inventors to record their inventions in a
public archive instead of taking their invention with them into death.
Invention is different than authorship because often times the invention
doesn't automatically reveal itself. Consider Damascus (sp?) steel or the
formula for the varnish Stradivarius (sp?) used on the instruments he
created. These are inventions that have been lost despite the fact that we
still have some of the swords and violins. So many, perhaps even most,
inventors enjoyed both the protection of keeping their secrets secret and
still profiting from them.
Copyright, however, gave authors something they didn't have at all. The
right to control who copied their work once it left their hands. Books only
have value if they are read, plays have their value in the performance. Art
is public. Prior to the invention of copyright, if you said your idea
aloud, wrote it down, painted it, sung it, or whatever, you had ceded it to
the public. Period. End of story.
So you have it exactly backwards. Copyright gave whole classes of
innovators something they never had before even slightly, while Patents gave
far less new protection to inventors.
Saving the best for last, the fact that "you come to own property via a
contract" doesn't bring the fact of property ownership under the purview of
contract law. The contract *ENDS* and ceases to exist, with respect to the
property, once the agreement is discharged and the ownership is transferred.
The contract law governing the sale of property has nothing to do with the
body of property law.
Example: you are selling Alex some land. I am injured on the land before
you complete the sale. The existence of the contract and the intent to sell
do not allow me to pursue Alex in court for my injury. If the injury happed
one instant after the transfer of ownership, you are safe and Alex is on the
hook *UNLESS* you agreed to indemnify him against such things for some
period of time after the transfer of ownership. In that last case I *STILL*
sue him as the owner, but he gets to exercise the agreement and bring you
into it. There will even be a meta-hearing to determine if the agreement
validly redirects my suit and whether the suit goes under property or
contract law at that point. (and so on...) This special example case of
indemnity exists because the contract didn't end with the transfer of
property (for the specific purpose of that indemnity).
[ASIDE: you are also wrong about contracts being the basis of real property
ownership. Real property has its basis in the fact that someone at some
time in the past said "this place is mine!" (which you can still do in well
defined circumstances, see "squatters rights" etc.) The *transfer* of
ownership is *usually* accomplished by agreement, but that isn't the basis
of the law in the matter. I can come to own your house by all sorts of
means you did not agree to, not the least of which would be moving into your
house and living there for N years and having you not complain about it.]
[ANOTHER ASIDE: you ever hear the expression "possession is nine-tenths of
the law"? The law in that usage is only property law. Which is why NDAs
work, because possession is *NOT* nine-tenths of the way out of a contract
nor is it nine-tenths of the way into a copyright.]
You can agree to almost anything, but agreements don't create property, and
property exists in the absence of agreement.
All that considered, the rest of your argument is specious. Period.
Rob.
-----Original Message-----
From: David Schwartz [mailto:[email protected]]
Sent: Thursday, May 01, 2003 4:09 PM
To: Robert White; Jamie Lokier
Cc: [email protected]
Subject: RE: Why DRM exists [was Re: Flame Linus to a crisp!]
> It truth, there is no such thing as "intellectual property" by the correct
> legal definition of property.
Nonsense. Intellectual property is, conceptually, a form of contractual
property. If I pay you $10 to mow my lawn tomorrow, my right to compel you
to mow my lawn (or have you pay me damages) is a property right.
If I develop an idea, I have the absolute right to the contents of my mind
and cannot be compelled to disclose the idea. Because the greater includes
the lesser, the right to not disclose the idea includes the right to
disclose the idea under terms, pursuant to a contract (actual or implied).
Most property rights are contractual. You come to own property because you
contract for it.
> There was also no intent to create
> "intellectual property" in the minds of the founders of the United States.
Because there was no need for them to do so. If I have possession of an
idea and agree to tell you the idea for $10 provided you agree not to
disclose the idea to anyone else, I don't need any special laws other than
the normal laws that permit me to make and enforce contracts.
> The truth of the matter is that Digital Restriction(*) Management
> isn't even
> about copyright. We are in the berth pains of the creation of
> "accessright"
> law, and nobody has yet demonstrated that such a body of law is, well,
> legal... let alone necessary for any purpose.
I think that you are right conceptually. Access restrictions are purely
contractual things and more obviously so. If I put a security restriction on
a CD and sell it to you, there's an implied agreement that you will respect
the restricitions. If I really wanted to, I could have you sign an agreement
to that affect.
> The fundamental problem with applying property law (et al) to the
> domain of
> ideas is that you can not affect a clean and complete transfer of
> possession.
This would apply to employment contracts too.
> Anything "intellectual" exists in the pure domain of thought
> (hence the root
> "intellect" 8-) and the facts remain that one party, having processed an
> idea (or set thereof) can not "willfully and completely
> surrender" the idea
> out of their head and into someone else's.
This is true for employment to. In fact, it's true for all contractual
agreements except for the sale of real property. If you hire me to mow your
lawn, how can I "willfully and completely surrender" one day of lawn mowing
in the next ten days to you at that time?
Really, this is not a problem at all. Complex societies like ours
understand how to deal with intangible property rights. When you book a
hotel room in advance, the right to that hotel room on that day is an
intangible. It could, however, well be a transferrable property right that
you have. That's not a problem.
> You see, property is "transferable" but ideas can only be
> "copied" which is
> why COPYright contains that word and not some variation of "property".
> Property rights, patent rights, and copy rights are distinct.
You are confusing the right with the thing that the right is to. If I have
an idea, and I tell you that idea pursuant to an agreement that you will not
disclose the idea to others, the property I have is the right to pursue you
for damages should you disclose the idea. This is the same concept as if,
say, you sign a non-disclosure agreement. The right is not to the idea
itself, it's to pursue damages from those who violate their actual or
implied agreements not to disclose or use the idea without compensating you.
> That is also why "theft" and what we can generally refer to as "the theft
> words" never applies these topics no matter how often or loudly someone
> yells "you stole that idea from me."
But it is theft, as surely as if I pay you $10 to mow my lawn and you don't
mow my lawn. Violating a contractual agreement not to disclose and not
paying the damages the agreement specifies is a form of theft by fraud.
> Notice that you *can* steal
> a program,
> program source, manuscript, or copy of a book. To do so you must gain
> access to (break) and/or variously enter (hence "breaking and entering") a
> place where such materials reside, and then simultaneously gain possession
> of said materials and deprive the rightful owner of them. (e.g.
> you can go
> take the media, or you could access a computer, copy the
> information onto a
> removable media, and then wipe the originals or take a hammer to the
> computer or something.)
>
> So by definition, the presidents of property rights can not reasonably and
> fully be applied to information and ideas.
You are trying to set back a complex society by arguing that only what you
can touch has legal meaning. But you can't touch the right to use an
apartment from June 1 to July 1. Yet if you agree to pay monthly rent for
the apartment, use the apartment, but don't pay, it's theft.
Seriously, there is no problem at all here. You are needlessly and
senselessly manufacturing artitifical distinctions that make no sense.
> Worse, absolutely none of the DRM arguments even exist within the
> presidents
> of copyright law as a significant subset of the technology and uncertainty
> only comes into play well after the act of copying is completed.
Then forget about copyright law entirely. Think only about contractual
property and the fact that a person who comes up with an idea cannot be
compelled to disclose it and can disclose it under any terms he or she
chooses. Think that when you buy a CD or a program, there's an implied
contract that the CD or program is for your personal use and that violating
that contract is as much theft as living in an apartment without paying
rent.
> Consider DeCSS. At the time that the CCS ("Content Control System", not
> "Copy Control System") comes into play, all parties have already
> agreed that
> the copy 1) should have been created, 2) should have been assigned, and 3)
> is completely within the possession of the reasonably correct
> person. That
> is, the copy has already been made, and you already have the DVD in your
> grubby little paws.
>
> Further, there is nothing inherent in the CCS system that takes a single
> step towards controlling the copy of that DVD. If you have the
> hardware you
> can make a byte-wise copy of the DVD onto another DVD and both copies will
> contain identically CCS(ed) image.
>
> CCS is about whether you can access what that copy contains in a
> meaningful
> way.
Agreed.
> Some people may access that information with the intent to copy it into a
> non-CCSed image, but that is a separate follow-on activity that
> was not even
> considered when the CCS system was created. The CCS system was
> invented to
> solely (and, according to anti-trust law, illegally) tie the one
> product (a
> particular DVD) to another (any player with a licensed DeCCS and matching
> region code).
Agreed.
> The sticky part is that the constitution does NOT create nor endorse any
> sort of "accessright" law. Things like the DMCA endeavor to create such a
> body of law in a back-handed fashion by attempting to convince everybody
> that copyright always included accessright.
Agreed. More sensible would be to look at whether the implied agreement
when you purchased that DVD included a promise to only use it on licensed
DVD players. An argument that is, IMO, nonsense.
Further, there is no reason why the DMCA should have been enforced in cases
where no right recognized under copyright law exists because the DMCA was a
copyright law extension. As far as I know, a DVD seller has no legally
recognized copyright interest in what device I play that DVD on, and hence
CSS is *not* a copright enforcement mechanism.
I totally disagree with the way the DMCA has been interpreted and hope that
there is a massive backlash.
> If it had, then it would be, and would always have been, legal to sell
> someone a book and then say, "you may only read this book in a
> library" and
> have the force of law behind you to back you up in that restriction.
This is certainly not a right recognized under copyright law, so it's not a
right that can be enforced by a copyright enforcement mechanism. However,
this is a moral right that a content author has. Copyright law has taken
this away from content authors in the name of benefitting the public at
large.
Copyright laws gave authors very little that they didn't already have.
Patent laws, on the other hand, give inventors many rights they would not
have otherwise.
DS
> And no, I am not "trying to set back a complex society by arguing
> that only
> what you can touch has legal meaning." I am trying to make you understand
> that agreements, "real property" (which is land), "property" (which is any
> tangible thing other than land), and copyright (among other concepts) are
> completely dissimilar and are covered by completely different kinds and
> scopes of law. The fact that they are "not the same thing" completely
> negates your "the law of one is the law for all" claim that "property law"
> somehow carries into the other areas.
Do you agree that:
1) A person who thinks of an idea cannot be compelled to disclose it,
especially since nobody would even know that he had it unless he told them
and that therefore absent a contract or other agreement to the contrary, may
refrain from disclosing it to others.
2) The greater includes the lesser.
In any event, my dictionary defines "property" as "something tangible or
intangible to which the owner has legal title".
> There is not now, nor has their ever been, such a thing as "intangible
> property". There is (real and otherwise) property, there are contracts
> (oral agreements, written agreements, common stock, preferred
> stock, trusts,
> etc are all contracts), and there are rights (including copyrights and
> patents) and they are each governed by completely different sets of laws.
> If you go to court to claim that property law says something about
> non-property (like a contract you are a party too) you will get
> laughed at,
> and then you will lose.
Who said anything about "property law"? All I'm talking about, and all I
need, is contract law. What I'm saying is that contractual property acts
like property but it wholly covered by contract law.
If I acquire from you the transferrible right to one day of your lawn
mowing, I have something. It acts like property -- a person can own it,
transfer it, control it. Yet it's not covered by real property law. If you
fail to mow the lawn, I wouldn't argue property law, I'd argue contract law.
The right is a contractual right but it, in every essential way, acts like
property.
> For instance, the authors right to not invent and not share his invention,
> is, wait for it... a RIGHT... and doesn't make the idea any kind of
> property. You even used the words your self "... I have the right to the
> contents of my own head ..." and the follow-in fact that you can get
> together with someone and agree to a contract where you will disclose the
> idea for $10 and a non-disclosure agreement, is contract law.
Absolutely. That's what I'm saying. Intellectual "property" rights are,
morally and conceptually, based in contract law. This is because, unlike
real property, intellectual property consists solely of the right to
control, to some extent, what other people can do.
> (Notice that
> there is still no "property" anywhere in there, its all rights and
> agreements. "Property law" doesn't apply because there is NO
> SUCH THING as
> INTELLECTUAL PROPERTY)
Play word games if you want, but people use the term "property" to cover
intangibles if you can have the exclusive right to them.
> Contrary to your statements, Patent law did less for the patent
> holder than
> copyright did for authors.
I disagree. As a single example, independent creation is a defense to a
copyright infringement claim. However, a patent holder need not prove that
the infringer got the idea from him at all.
> In many cases, an invention is self describing. You build a windmill and
> someone can come along and disassemble the thing and know how to build a
> windmill. In most cases, however, inventors can keep secret the
> nature and
> structure of their invention and still profit from that invention. Patent
> law was really about convincing inventors to record their inventions in a
> public archive instead of taking their invention with them into death.
Sure, but patent law doesn't stop them from failing to disclose just they
didn't have to before. That is, patent law didn't take away your ability to
keep an invention secret. Nor does it stop you from enforcing contractual
secrecy agreements in the absence of a patent, so you can still use
contractual techniques or even quasi-contractual technques like trade
secrets.
> Invention is different than authorship because often times the invention
> doesn't automatically reveal itself. Consider Damascus (sp?) steel or the
> formula for the varnish Stradivarius (sp?) used on the instruments he
> created. These are inventions that have been lost despite the
> fact that we
> still have some of the swords and violins. So many, perhaps even most,
> inventors enjoyed both the protection of keeping their secrets secret and
> still profiting from them.
As they still can if they wish. However, patent law gave them something
they never had under contract or property laws -- the right to control other
people's use of "their" ideas even if the others developed them wholly
independently.
> Copyright, however, gave authors something they didn't have at all. The
> right to control who copied their work once it left their hands.
They always had that. They just write a contract that says so and compel
everyone who receives the work to sign the contract. In fact, copyright
behaves just like an implied contract.
> Books only
> have value if they are read, plays have their value in the
> performance. Art
> is public. Prior to the invention of copyright, if you said your idea
> aloud, wrote it down, painted it, sung it, or whatever, you had
> ceded it to
> the public. Period. End of story.
All you would have had to do was state, before the play, that listening to
the play is contingent on their agreement not to further distribute it. Can
you give me any rational reason such a contract wouldn't be enforceable?
> So you have it exactly backwards. Copyright gave whole classes of
> innovators something they never had before even slightly, while
> Patents gave
> far less new protection to inventors.
Obviously, I 100% disagree with you.
> Saving the best for last, the fact that "you come to own property via a
> contract" doesn't bring the fact of property ownership under the
> purview of
> contract law. The contract *ENDS* and ceases to exist, with
> respect to the
> property, once the agreement is discharged and the ownership is
> transferred.
> The contract law governing the sale of property has nothing to do with the
> body of property law.
I agree with you. I don't believe that I ever said contracts are the
"basis" of real property ownership. However, you can, purely by contract
law, obtain much the same thing as real property ownership with no actual
legal transfer of the title. The distinctions are largely artificial legal
ones, though admittedly created for legitimate and useful purposes.
It is useful to have an actual "owner" for physical object in a way that it
is not useful to have an actual "owner" for an idea. This is the basis for
the laws covering real property.
However, there is another sense of "owner" which still includes the right
of control, use and exclusion. It is this type of ownership that is acquired
by explicit or implicit contract, and it is this type of property that
intellectual property falls into.
Tell me anything significant that copyright law does that an author could
not do by requiring anyone to whom he discloses his idea to sign an
appropriate contract. Tell me anthing copyright law does that contract law
can't do.
DS
> > The fact that they are "not the same thing" completely
> > negates your "the law of one is the law for all" claim that
> > "property law"
> > somehow carries into the other areas.
You know, I read over my original argument again, and I absolutely cannot
understand how you could have misunderstood it. There is no reference to
property law at all in it, and several times I mentioned that I was talking
about contract law. So how you could have misunderstood me to mean that
property law applies to contracts is baffling to me. What I mean is the
reverse, that intangible property rights and conceptually part of contract
law.
The one thing I said that was not clear and where I understand your
confusion was:
> Most property rights are contractual. You come to own property because you
contract for it.
However, I maintain that the rest of my argument is completely clear and
you have not responded to it:
>> There was also no intent to create
>> "intellectual property" in the minds of the founders of the United
States.
>Because there was no need for them to do so. If I have possession of an
idea and agree to
>tell you the idea for $10 provided you agree not to disclose the idea to
anyone else, I don't
>need any special laws other than the normal laws that permit me to make and
enforce contracts.
>Access restrictions are purely contractual things and more obviously so. If
I put a security
>restriction on a CD and sell it to you, there's an implied agreement that
you will respect the
>restricitions. If I really wanted to, I could have you sign an agreement to
that affect.
>> That is also why "theft" and what we can generally refer to as "the theft
>> words" never applies these topics no matter how often or loudly someone
>> yells "you stole that idea from me."
>But it is theft, as surely as if I pay you $10 to mow my lawn and you don't
mow my lawn.
>Violating a contractual agreement not to disclose and not paying the
damages the agreement
>specifies is a form of theft by fraud.
>> Worse, absolutely none of the DRM arguments even exist within the
>> presidents
>> of copyright law as a significant subset of the technology and
uncertainty
>> only comes into play well after the act of copying is completed.
>Then forget about copyright law entirely. Think only about contractual
property and the fact
>that a person who comes up with an idea cannot be compelled to disclose it
and can disclose it
>under any terms he or she chooses. Think that when you buy a CD or a
program, there's an implied >contract that the CD or program is for your
personal use and that violating that contract is as >much theft as living in
an apartment without paying rent.
DS
On Thu, 01 May 2003 20:10:55 PDT, David Schwartz said:
>
> 1) A person who thinks of an idea cannot be compelled to disclose it,
> especially since nobody would even know that he had it unless he told them
> and that therefore absent a contract or other agreement to the contrary, may
> refrain from disclosing it to others.
They can't be compelled *YET*.
http://www.boston.com/dailyglobe2/121/nation/Some_fear_loss_of_privacy_as_science_pries_into_brain+.shtml
This could make for some *interesting* EULA clauses...
Where's my copy of The Demolished Man??? ;)