Have you ever read any of the standard legal analyses of the notion of
copyright? Or the histories of printing, publishing and copyright? You
certainly don't seem to have any familarity with them.

You seem to assume that revolutionary thinking (and mine in 1987 on this
topic led to a major US software copyright case) must grow out of
ignorance of the status quo. Not so.


The effort that was -- and is -- being
protected is the creative effort involved in creating the work in the
first place.

Now I have to turn the jaundiced eye to your background, because here
you sound as if you hold to the "sweat of the brow" or "creative"
theory.

The cost of reproducing the work does not and never has
entered into it.

Implicitly, it did. The old laws only dealt with copies that cost
something (tangible media), not trivial copies (on retinas, in transit
through a DVD player, etc).

Such exceptions prove that the basis of copyright is absolutely
not copying per se;

Utterly incorrect. Copying per se, when not covered by one of the
various exceptions in the law, is indeed copyright violation.

Try to follow my line here. I challenge the idea that "copying" is the
action controlled by copyrights. Of course the spirit and letter of the
law refer to that term. Yet the exceptions and qualifications of what
copies doesn't count as infringing, are so shot through the dogma, that
it leads to the linguistic fallacy of "definitional retreat". You and I
casually understand a "copy" to be some kind of physical image of
something. Yet the law, which purportedly controls making "copies",
admits so many exceptions for non-infringing images, that what is being
controlled in fact is not copying in the usual sense. So the basis was
never image-making, it was only about a restricted, ad-hoc, legal
invention that was misleadingly termed "copying". And my conclusion is
that while downloading a book is surely making an image, which is to
say, a copy, this is not the "copying" which is the essence of
"copyright infringement".

I know it sounds scholastic.

Let me illustrate. Imagine we say "fishing" is immoral and should be
prohibited, and laws are passed against it. Then the law gets qualified
to permit "fair use" fishing if you don't actually catch anything, or
you catch something and immediately throw it back. You see, the
definition fishing-that-is-prohibited gets so qualified that it shows
the morality never involved fishing per se, it was only certain actions
that happened to involve fishing. When a new type of fishing appears,
you can't automatically conclude it is immoral.

Let me beg off any further rebuttals and close this by saying that the
paleo-conservative and strict-constructionist view should be that the
Constitution had it correct: it never uses the word "copy", and copying
is not what the clause addresses. "The exclusive Right to their
respective Writings" meant that consideration was necessarily involved,
not the case of casual image-making such as downloading.