[Followup to -legal.] Okay, I'm going to a pull an RMS and plead for a change in our collective use of certain terms. * Under U.S. law and the laws of most countries I'm familiar with, copyright IS NOT A NATURAL RIGHT. It is a government-granted limited monopoly to make and distribute copies of an original work of authorship. The purpose of this monopoly is to provide authors with pecuniary incentive to produce works which will inevitably and irrevocably fall into the public domain. A healthy public domain promotes the "progress of science and the useful arts", as the U.S. Constitution puts it. This means that one should not use the terminology or rhetoric of natural rights (such as the right to free speech, exercise of religion or freedom of conscience, security and privacy in one's person and effects, freedom from cruel and unusual punishments, and so forth). The Universal Declaration of Human Rights[0], adopted by the United Nations in 1948, lists many other rights commonly thought of as "natural rights" or "civil rights". You'll note that the terms "copyright", "trademark", and "patent" do not even appear in this document. That's no accident. So, let us not speak of "copyrights" in the same way we do "rights". * Some countries, particularly some in Europe, have a concept of "moral rights" that attach to creative works. I admit I am not too familiar with these, but they are not the same thing as copyright and have little in common with copyright. Moreover, moral rights are seldom asserted in anything the Debian Project seeks to distribute. So, let us not confuse moral rights with copyrights and thus lazily introduce the language of the former when speaking of the latter. * Because copyrights are not inherent, are not natural rights, are not granted by God, but in fact merely incentive programs instituted by governments, one does not "violate" the rights of anyone when one disregards or acts contrary to a person's copyright. When someone's "rights" are "violated" we can and often do think of horrific things like the torture of Abner Louima[1], or the mass execution of Cambodians under the Khmer Rouge regime of Pol Pot[2]. Putting Mickey Mouse in your movie or trading Smashing Pumpkins songs with your friends, or even the whole world, isn't even close to the same thing. So, let us not speak of "violating someone's copyright", since this confuses the language of natural rights with the legal fiction called copyright. * For many years, copyright infringement wasn't even illegal. The first U.S. criminal copyright statue passed in 1897. Prior to that -- meaning for over 100 years since the U.S. Constitution was ratified with its Copyright Clause, copyright infringement could only be tortious, not criminal. This means that copyright infringement claims had to be prosecuted by civil plaintiffs, not government prosecutors. Times are different now, of course, and especially over the past couple of decades the criminal penalties for copyright infringement have skyrocketed, meaning that in the United States you can spend more time in prison for annoying the Walt Disney Company than you can for killing someone. Some people might feel that punishing the infringement of a legal fiction more harshly than we punish violations of universally accepted human rights reflects a priority inversion in the legal system. Some people also feel that the very large media corporations that now control most published, copyrighted works in existence have ample resources to pursue tort claims against infringer. If you share either of these perspectives, then you might also wish to help restore sanity to modern discussions of intellectual property law by not referring to allegedly infringing materials or actions as "illegal". Instead, simply call them "infringing". Better still, don't even call them "infringing" unless you're confident they actually are -- and keep in mind that even today, the standard in the U.S. for *criminal* copyright infringement requires 1) the existence of a valid copyright in the work being distributed; 2) infringement by the defendant; 3) *willful* infringement by the defendant; 4) infringement by the defendant for commercial advantage or private financial gain. Some jurisdictions also that the government prove absence of a first sale in the allegedly infringing works. After all of that, acts undertaken in the exercise of Fair Use provide for an affirmative defense, meaning that you should know that there is no Fair Use exception for the activities in question. If you don't know all of that, perhaps you're better off not telling people what they're doing is "illegal". If one is unconvinced that copyrights are fundamentally different from natural rights, one may wish to perform a thought experiment. Do you believe that the ancient Greeks and medieval Europeans had a right to life and free exercise of religion? Was it possible for a Greek to be murdered, or a medieval man or woman wrongly persecuted by the Inquisition for his or her heretical religious beliefs? Now, then, do you think Euclid held a copyright in the _Elements_? Did the apostles of Jesus hold a copyright in the gospels? If so, when did these copyrights expire, or have they? If they haven't, who controls them now, and by what right? Should the Roman Catholic Church have sued Martin Luther, John Calvin, and the other Protestant leaders for copyright infringement? Do these questions sound ridiculous to you? If so, then you shouldn't speak in terms of "illegal" copyright "violations". Needless to say, if you don't share my premises, feel free to ignore this message. Please do not endeavor to persuade me that bypassing the region coding or CSS encryption on a DVD in any way morally resembles arson, assault, torture, or murder. Thanks. [0] http://www.un.org/Overview/rights.html [1] http://www.thesmokinggun.com/torture/torture.shtml [2] http://www.yale.edu/cgp/ [3] http://www.cyberlaw.com/cylw0195.html#V -- G. Branden Robinson | Human beings rarely imagine a god Debian GNU/Linux | that behaves any better than a branden@debian.org | spoiled child. http://people.debian.org/~branden/ | -- Robert Heinlein
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