On Wed, 29 Dec 2004 11:01:15 -0600, Richard J Kinch
wrote:

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

Your thinking isn't particularly revolutionary. It's just plain wrong.
Now if you want to put this forward as the basis of a novel proposal
for copyright modification, you're free to do so. But that is not how
the matter stands today.

(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.

Urk? Your particular statement was about the history of copyright. And
as a statement of the history it was flat wrong.

If you want to see how wrong you are historically, take a look at the
first copyright law -- the Statute of Anne in 1710 -- which
specifically states the purpose of the law was to protect authors from
unauthorized copying of their work.


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.

Nope. I hold with the law and the long line of copyright decisions.

The "Sweat of the brow" doctrine doesn't come close to entering into
it. Do you even understand the terms you're blithely throwing around?

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

Implicitly, it did.

Wrong. If it had it would have been the publishers who would have been
protected, not the authors. Publishers have never been protected by
copyright, except as they may purchase the rights or hold a license
to the rights.

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

What's the cost of performing a piece of music live? Where's the
tangibility of singing a song? Music was protected even before
recording technology.

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.

Then you're simply wrong. This has been enunciated again and again in
the court decisions. Copying is specifically what is protected by
copyright.

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".

Well, no. You're making several completely unwarranted -- and untrue
-- assumptions here and you don't seem to know much about the theory
of copyright.

The theory is roughly as follows: A copyright is a monopoly granted by
the state. State-enforced monopolies are dangerous things and the
people who wrote the Constitution knew it. (Take a look at the
discussion of monopolies that surrounded the ratification of the
Constitution, including the anti-monopoly laws in several of the
states at the time.)

Yet granting a monopoly was recognized as a practical method of
allowing authors to profit from their work. So the United States
authorized a monopoly to the author. But it was a limited monoply,
limited both in time and in extent. This is anything but 'definitional
retreat'.

Again, this follows in the tradition that goes back to the Statute of
Anne, where a time limit was set on copyright.

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.

No. What is going on here is a balancing of rights for the greatest
public good. There are exceptions to the monoply granted by copyright
because making them serves either the interest served by the notion of
copyright -- the dissemination of knowledge (fair use) or equally
serious principles, such as equity.

So the basis was
never image-making, it was only about a restricted, ad-hoc, legal
invention that was misleadingly termed "copying".

Let me clue you in on a little secret. Laws are seldom, if ever,
absolute. There are exceptions and conditions to almost all of them.
Even our laws against murder have exceptions.


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".

Your conclusion is wrong as a matter of law. Present that argument in
court and you're going to lose.

I know it sounds scholastic.

It sounds half-baked.

Let me illustrate. Imagine we say "fishing" is immoral and should be
prohibited,

This is the rationale for the law, it is not the law itself.

and laws are passed against it.

What gets written and enforced is the law, not the rationale. If some
bright boy can find a way to fish without violating the law on
fishing, then he's home free, no matter how immoral the result may be.

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,

Whether or not morality is involved is immaterial if there is a law
against it, no matter what exceptions the law might make.

it was only certain actions that happened to involve fishing.
No, it was the act of fishing, as it is defined in the law.

When a new type of fishing appears, you can't automatically conclude it is immoral.

No but if the courts have held that it is illegal, then it is illegal.
In the case of electonic copying the courts have repeatedly ruled that
electronic copying can violate copyright. Playboy vs Webworld, for
example:

http://www.loundy.com/CASES/PEI_v_Webbworld.html

In other words, even if we buy your doctrine of 'definitional retreat'
the courts have decided that electronic copying falls squarely under
copyright law.

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.

Nope. Remember the writers of the Constitution were working in a
fairly well-defined legal universe where concepts such as copyright
were perfectly well understood. They could, and did, stretch that
framework, or completely discard parts of it in favor of something
new. But concepts like 'copyright' were perfectly well understood, as
was the phrase 'the exclusive right to their respective writings."
They were giving the authors control over the copying and
dissemination of their work.

--RC

"Sometimes history doesn't repeat itself. It just yells
'can't you remember anything I've told you?' and lets
fly with a club.
-- John W. Cambell Jr.