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CLUEBAT: copyrights, infringement, violations, and legality



[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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