Re: Napster destroys Western Civilization

On Wed, 17 May 2000, Marty Hayes <9ball[_at_]hostsite.net> wrote:
>
> On Tue, 16 May 2000, Timothy Arnold-Moore <tja[_at_]io.mds.rmit.edu.au> wrote:
> >
> > "Taking" carries with it the implication that the object is removed from
> > the possession of one person to that of another.
>
> I would suggest that "taking" is denying another person of something.
> That "taking" can be a removal or property; it could also be "taking"
> by virtue of failure to recognize a legal right.

That sense doesn't appear in my dictionary (OED). What dictionary are you using? Anyway, although I initiated it, focussing on the word "taking" is really not what the debate is about, rather it is about "theft". My apologies for throwing in the red herring.

> > While a copyright infringer misappropriates one or more of the rights
> > of the owner, with the possible exception of first publication, an
> > infringer could hardly be said to be denying the owner from exercising
> > their rights
>
> How do you figure? It doesn't appear you live in the U.S. from your
> e-mail address, so let me elaborate. Under U.S. copyright law, "the
> owner of copyright ... has the exclusive rights to do and to authorize
> any of the following:
>
> (1) to reproduce the copyrighted work in copies or phonorecords;
>
> (2) to prepare derivative works based upon the copyrighted work;
>
> (3) to distribute copies or phonorecords of the copyrighted work to
> the public by sale or other transfer of ownership, or by rental,
> lease, or lending

You are clearly not aware that this is substantially the same as the text in the UK, Australia and Canada (except we use "adaptation" instead of "derivative work"). I don't misunderstand what rights are granted. I've been on this list long enough to be flamed well and truly for failing to read the appropriate texts. Maybe its my turn to pass on this heritage?

> By the above, if you make a copy (outside of the fair use application)
> without the creator's permission, you have just essentially negated
> the effect of one of the creator's exclusive rights that copyright
> law was designed to protect. Does the creator still possess the
> legal protection of the right? Sure, but what good is that if no
> one will honor it?

If I breach your copyright in this email, my breaching those rights does not remove them from your possession. You still have those rights to enforce. I have usurped your rights but I have not taken them. About the only way I can see to "steal" your copyright is to somehow maliciously induce you to assign it to me. But I can't do that by infringing, only by an action like fraud, black-mail or threat. Any such contract is void or voidable so I still have not deprived you of your right! Maybe if I try to pass off your email as mine?

> > copyright does not leave the possession of the owner.
>
> So? The creator still hold the "copyright", but that copyright is
> a set of exclusive rights that are essentially worthless if others
> don't honor them.

No. They are worthless if there is no mechanism to enforce them. That is an entirely different proposition. You might argue that, given the cost of litigation in the US, that there is no mechanism to enforce, but that can be addressed in other ways.

> Not incidentally, you also deprive the potential for revenue to the
> copyright holder when you make a copy without permission/royalties.

As has been pointed out, that is only true if, but for the copying I would have paid a royalty some other way. This has been discussed sufficiently.

> There are different schools of thought as to whether or not copyright
> law (in its origins) had any revenue/economic considerations in its
> inception, and that's a whole other discussion (which has been hashed
> to an exhaustive level). The fact that the remedies for infringement
> include monetary damages award to the copyright holder suggest that
> economics does play at least some part in present-day thinking
> correlating to copyright.

Nothing to do with the discussion at hand. The value of the item stolen has nothing to do with whether or not I commit theft. I can steal a paper clip. A judge would probably not impose a harsh penalty (although if you follow Australian news at all with regard to 3-strikes legislation and teenagers stealing felt pens, you might disagree ;-) but it is still theft. Infringing your copyright, on its own, cannot be.

--
| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
| Postal address:  Multimedia Database Systems, RMIT
|                  GPO Box 2476V
|                  Melbourne 3001
|                  AUSTRALIA
| Tel: 		+61 3 9925 4116
| Fax: 		+61 3 9925 4098
|	simul iustus et peccator
<tja[_at_]io.mds.rmit.edu.au>