Negotiators Lose Last Chance to Salvage the TPP by Caving on Copyright Extension

One needs to write the law/regulations very carefully and be prepared to strike down extremely hard on corps who will try to manipulate this, eg by saying for a movie that the copyright work is on the DVD and you bought that for 1 cent but the packaging and label cost $19.99 and the work isn't available without those (or saying the customer pays for the TMs used separately or whatever other Hollywood accounting means they concoct).

You're splitting hairs, and not adding to the conversation, but I'll correct my statement: If the general, constitutionally-enshrined idea is to romote progress in science and the useful arts, hen don't we have an implied obligation to figure out what term actually does increase the progress in science and the useful arts?

That way if it's not valuable to them they will let it go instead of hoarding it all forever.

Why does your grandfather's farm deserve perpetual protections as he hands it down over generations? Or put another way, why does anyone else deserve any rights over Mickey Mouse when Disney is the one that created him?

Your language betrays your assumptions. You're trying to argue for the property of intellectual works by assuming it, which is obviously circular.

The constitution does not pretend that intellectual property is the same as real property and for good reason. For some reason I don't see anyone who says they are equivalent also saying that copyright holders should also pay property taxes on copyrighted works like they do their house. So even the proponents of this, realize that intellectual property is different than real property.

These giant corporations that are bribing (er I mean lobbying) politicians to extend copyright to infinite terms are destroying our cultural heritage for short term profit.

In all other cases, someone is getting some use out of the land, and in general allowing anyone else to use the same land would impair that use. (In some special cases, there are again laws on the matter: in most US states it is illegal to hunt on others' private property, but only if the owner posted a sign or applied specially colored paint. If not, since the hunting would likely have minimal impact on rural property, it is allowed.) Perhaps, according to someone's standard, the owner is making inefficient or wasteful use of the land; perhaps they have barely changed it from its natural state, while a developer would like to add it to their adjoining property full of valuable businesses or whatnot. But this is subjective, and doesn't change the fact that the 'better' uses would deprive the current owner of something - depending on the owner's sentimental attachment to the land, potentially something subjectively irreplaceable.

I do not have enough knowledge to directly argue in favor of capitalism. There are plenty of theories under which to posit that the current owner should be deprived anyway in the interest of the common good. But at least it is clear that our current system has certain significant benefits.

To take the argument to its obvious conclusion, for copyrighted works, the public domain would at most deprive someone of money they could potentially be making, which is hardly the same thing. Meanwhile, it would allow many different people to enjoy passive use of, or build interesting things on, the same property without getting in each other's way. The flipside is of course the standard justification for copyright: the prospect of that money encourages people to be creative, and getting that money allows them to make a living through creativity. But this does not mean copyright has to last forever. (It also doesn't inherently imply copyright should a right of exclusive control; in the special case of radio broadcasts of songs, making it purely a mandatory royalty, open to all by law, seems to have worked out pretty well. And then you get to fair use, but of course there are far more detailed arguments to be found there.)

But you know all that. In another post, you said:

> While that's one philosophical justification for property, we've had property long before anyone coined the phrases "rivalrous" or "excludable" and it has been justified for reasons that have nothing to do with those economic concepts: http://en.wikipedia.org/wiki/Labor_theory_of_property. Going back further, see Psalm 128:2 ("For thou shalt eat the labour of thine hands: happy shalt thou be, and it shall be well with thee.")

For one thing, I don't think coining the phrases "rivalrous" or "excludable" means much. If you're making a theory of property, where property is defined as actual physical objects or land, you don't need to make up terms to describe what obviously applies to all property; it's only when you start calling data property that you have to distinguish it from the rest. Any older philosophical argument in favor of property, regardless of whether it explicitly addresses the matter, was written, and should be read, with some broad ideas in mind that do not apply to data. This certainly applies to the Psalm you cited.

But actually, Locke makes it quite explicit - right near the beginning of the chapter "Of Property" in his Second Treatise on Civil Government:

And tho' all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.

This is just stating the concept of "rivalrous" without using the word! And it clearly does not apply to intellectual property at all; when a basic premise of his argument is voided, we should be hesitant to apply his conclusions.

edit: There is also the matter that as eager as philosophy is to be concluded from first principles, in general I think empiricism is superior. (And don't confuse 'common wisdom' which at least somewhat reflects centuries of empiricism with first principles.) Capitalism has its moral arguments, communism has its moral arguments, and neither are necessarily wrong; in my drastically oversimplified view, in practice it seems like pure communism doesn't work out very well, but socialist economics tries to satisfy some of the moral precepts of both in a more achievable way. But we haven't had centuries of empiricism when it comes to intellectual property - not that long a history of protection nearly as strong as today, and certainly not of the fundamentally new practical properties of digital intellectual works.

He/She was asserting it as the moral equivalent. Taking someone's land involves deprivation, passive copying of a book etc doesn't imply that in all/most cases.

There is no possible argument not involving time travel by which we get more works created through retroactive copyright extension of already existing works.

Honestly, I think he should have tried the "to the creators" phrase, as well: post transfer extensions of copyright no longer held by the original creator creates a new protection that never goes to the creators, and therefore not only fails to serve the purpose of the promotion clause, but isn't even within the scope of the means by which Congress is authorized to serve those purposes.

(Of course, considering this argument alone doesn't stop indefinite extensions, its just means that works transferred before the extension would not be eligible for the extension. But if you include all transfers in that, including by inheritance, your only left with, at most, originally-corporate copyrights that have never been transferred, since the original term of modern personal copyrights already is longer than the life of the original owner.)

No, he doesn't. He says the focus should be on scarcity because if it's on creation, and if it's applied in a consistent and non-arbitrary way, life becomes impossible, as "as every conceivable use of property, every single action, would be bound to infringe upon one of the millions of past, accreted IP rights."

He actually has almost six pages explaining the problem with the creation-based IP rights, so saying that he "simply asserts" is just incorrect.

His scarcity argument is itself flawed: he focuses on the fact that copies of an intangible good are not scarce, and glosses over the fact the originals definitely are.

That's because the scarcity of the originals is irrelevant to whether the copies should be considered property, any more than it makes me the owner of the light that comes from my light bulb.

The scarcity of the originals is only relevant vis-a-vis the use of the originals.

Copyrighted material is the ultimate example of "You didn't build that." That's why it's a temporary bargain with the public domain, and not an entitlement.

Wrong. The DMCA provides safe harbor for online service providers. It provides no safe harbor for those who personally reproduce a copyrighted work, on an online service or otherwise. Rather, it increases the penalties if such reproduction is infringing. And I don't see how David Friedman is under any obligation to take such a risk or research the status of a work to which he owns no rights, did not author, and does not benefit from.

So you're against the income tax?

What if the author can't afford to pay? Does being poor mean you don't deserve to own the work you've created?

How can (s)he not afford to pay, if it's "a fraction of what they make from profits from that work"? In any case, that sounds like a poor objection to the general idea of a tax - it could simply have a minimal cutoff, like many taxes.

The pre-1976 scheme required a filing and fee, though it was relatively modest. All non-registered works were public domain, and the circle-C symbol (or phonogram cicle-P) and notice were required.

I really wish we'd go back to something more like that.

The vast majority of creative works (which automatically receive copyright protection) are worthless. There's no reason why they shouldn't quickly become part of the public domain.

Everyone else /should/ be able to make those same stories in similar media. Disney /really/ needs to be more proactive about using their brand name's trademark within advertising as the consumer protection measure as that is the intended to function of trademarks.

That, BTW, is what is stopping others from making a Disney(tm)'s Mickey Mouse(tm) in steamboat willy(c, expired); and not stopping others from making a more generic 'mouse piloting a steam boat' movie.