Re: When is an MP3 file like a lighthouse?

From: Lee Daniel Crocker (
Date: Mon Oct 29 2001 - 15:47:16 MST

> Lee Daniel Crocker wrote:
> >
> > > > Why is protection of publishing industries more important to American
> > > > politicians than ammendments I, IV, V, and X?
> > >
> > > How does the 1st Amendment apply? Your right of free expression does not
> > > mean you have the right to express other people's expressions without
> > > their consent.
> >
> > It also prohibits derivative works: I cannot produce a translation,
> > adaptation, or a work in another medium based on a copyrighted work
> > (such as, say, a book comparing short stories by different authors,
> > or a rap song sampling differing tunes).
> This is inaccurate. Sampling and referenced quotation are entirely
> accepted 'fair use' exceptions. The problem is when you use so much of
> someone elses work in your work that you are essentially creating
> nothing new.

Sampling is NOT "fair use"--just look at the long lists of permissions
on rap albums. Yes, some excerpting is "fair use", but such use us
very limited--only small excerpts, either for non-commercial use, or
parody (even though even Weird Al has been sued many times) or a few
other uses. By why _shouldn't_ it include reproducing, say, three
short stories in their entirety interspersed with commentary and
comparison? Is that not a useful document? Why shouldn't it
include a translation into the language of a small market the author
or his publisher doesn't want to pursue, but that it important to
the translator who does the work?

> > I can't use a song as the
> > soundtrack to a movie, or make a remix, or many other creative things.
> Because if you use so much of another's work, your use is not original,
> and therefore is not art, it is reproduction.

This is such a profound misunderstanding of the nature of "art" that
it is laughable. ALL art is derivative. Even the king of copyright
abuse, Walt Disney, would be crippled without stories and characters
from the public domain, yet his heirs refuse to allow his work to
give back to that public domain--they insist on "owning" important
parts of American culture like Mickey Mouse, long beyond the time
when their ownership would have created incentives for production.

> > And this is true even if the artist is long dead and cannot possibly
> > benefit from copyright protection, because most copyrights are owned
> > by publishing companies. Just ask anyone who has tried to make
> > undergound cartoons with Disnet characters. Copyright stifles
> > expression as much, if not more, than it encourages it. Likewise
> > patents prevent me from making a minor improvement to an existing
> > invention, or combining inventions in useful ways.
> I do not oppose the elimination of corporate ownership of IP.
> Corporations are not senient beings, and therefore cannot be artists.
> The Constitution clearly states that Congress is to protect the
> creators, the artists, not anyone else. However, as an artist, I highly
> oppose the idea that you can take someone else's work and tweak it a
> little to be able to claim it as your own.

Well that's a start. But please don't confuse infringement with
plagiarism--that's an entirely separate subject and one which I happen
to agree with you on--claiming someone else's work as your own is
fraud, and will--and should--remain illegal even if copyright is
abolished. So please stick to the subject. I don't want the right
to publish a Mike Lorrey book and claim that I wrote it. I want to
be able to publish a Mike Lorrey book on some medium that you don't,
fully crediting you. Or to translate it, or excerpt from it freely,
stil giving you full credit. Yes, that will cut into your market,
so my proposal will require you to rethink how to make money from
your book in a world where you can't interfere with my reproduction
of it. That will require some creative business modeling, which
has been discussed before.

> > > The 4th? Considering an artist who never makes any money because his art
> > > is stolen by millions of ungrateful fans starves to death, I propose...
> >
> > That one's been batted out of the park so many times I won't even
> > bother with it, except to say that I'm surprized how many otherwise
> > libertarians, who would otherwise never assume that a law actually
> > accomplishes what the politicians who passed it says it will, are so
> > willing to assume that copyrights and patents actually accomplish
> > what they claim, or even that the real reasons for their passage
> > are the same as the claimed reasons. And what do you say, Mr. Lorrey,
> > to the former admins of, who used to run a popular
> > anonymization service that was shut down by the feds at the request
> > of the Church of Scientology over copyright issues? Was that a
> > reasonable seizure of criminal taking money from the pockets of
> > artists? What do you say to Dmitri Sklyarov, now in jail under the
> > DMCA for publishing security information about a piece of software?
> > Was that seizure reasonable?
> Scientology is obviously trying to have their cake and eat it. They
> claim their work is 'art' to protect its proprietary value in skinning
> marks, yet also claim it is historical truth and religious dogma to
> protect themselves against taxation and fraud charges. Using them as an
> example has likewise been batted out of the park so many times that I'm
> rather surprised you are using it here, Lee.

It's a good example of the kind of abuses that become possible when the
law is as powerful as it is. Yes, it's an extreme example, but I don't
think it's particularly unique.

> The DMCA is obviously a flawed law that needs legal precedents to
> eliminate its problems. I personally wouldn't mind eliminating the right
> of corporations to own IP.

I applaud your minor concession, but if you cling to the idea that it
is indeed a form of "property", how can you prevent it being bought and
sold? Either it's property or it isn't. If it isn't, then you don't
support I{, but you support something more like the original definition
in the constitution: an explicit government-granted exclusive right to
take certain actions, enforced by a private right of action to sue
those who infringe. That would certainly be a step in the right
direction, but I'm still not convinved it wouldn't be better to just
junk the whole idea.

> > ...and the unenumerated rights of the people. Such as the basic
> > human right to use the information in your head to improve your
> > life, without having to know where every little piece of it came
> > from or which uses are legal and which aren't.
> Usage is fine. If you posess the information, you should know where you
> got if from, and it is rather easy to understand what uses are legal and
> which are not. Only con artists would try to claim otherwise.

Absolute poppycock. I don't know where half the stuff in my head came
from, and neither do you. That's not how human brains work. We don't
have little tags on ideas for their source. Human culture is a mass
of ideas--tunes, words, math, machines, processes--whose origins are
lost in antiquity, yet which were undoubtedly the creative work of
someone. Our culture grows when that public domain of ideas grows.
Do I know who to pay royalties to for the idea of the 12-tone scale
all modern Western music uses, or every chord progression. or grouping
of instruments, or the notation system? Those are every bit as much
creative inventions as the particular tune I might create--which will
no doubt be influenced by the culture of all the music I listened to
growing up, all I heard on the radio last week, and all the other
influences I can't possibly enumerate, much less recall with full
credits. The epitome of this silliness is when John Fogerty was
taken to court for copying himself--he probably had no idea at the
time he wrote "Old Man Down the Road" that it was essentially the
same tune as "Run Through the Jungle", he just thought it sounded
good as it came out. Maybe he did; I don't know. But at any rate
I think it's silly to require artists to precisely remember and
credit all their influences. It's just not possible. Artists don't
"create" ex nihilo, they synthesize influences of culture, upbringing,
and personal values in interesting ways; their results influence
others. We shouldn't get in the way of that process.

Eliminating copyright ownership by corporations might have eliminted
that particular suit, and perhaps NBC's suing David Letterman over
the idea of top ten lists. I'll have to think a bit about what other
side effects that might have, and if it might be a reasonable step
in the right direction.

> > > One could say that
> > > intellectual property rights, because they exist within the
> > > constitution, are the 0th Amendment rights.
> >
> > That section of the constitution enumerates the rights of congress,
> > one of which is the right to make laws estabishing intellectual
> > property rights. It does not require them to do so, it only allows
> > them to (and they have chosesn to pass such laws). The Bil of Rights
> > enumerates those things that congress _cannot_ legislate away from
> > the people, because they are basic human rights. When sections of
> > the constitution conflict, the courts and congress are expected to
> > compromise. It is not at all unreasonable to suggest that present
> > copyright law should be re-evaluated in the light of its effect
> > on free speech and other rights.
> Uh, not quite. The Bill of Rights is not the only part which defines the
> rights of individuals. The right to vote, for example, is defined within
> the body of the Constitution. The preamble also defines a right of the
> people to reconstruct the government, to replace one that has grown
> tyrannical.
> Similarly, copyright is now recognised as a constitutional right of the
> individual. You don't need to register a copyright in order to hold one
> on your works. Getting your work notarized by any other means (Justice
> of the Peace, court clerk, postmark, etc) also acts as an informal
> registration, since in IP disputes, the date of creation is of key
> importance (as is degree of exposure).

You don't even need informal registration: just the fact of publication
creates copyright, unless it is explicitly disclaimed (which is why I
have to explicity disclaim copyright for everything I write, as I do
in my signature and on my website). But that fact doesn't come from the
Constitution, it comes from the Berne convention treaty that the US signed
in 1980. Yes, that's a 19; modern copyright is a very recent thing.

Lee Daniel Crocker <> <>
"All inventions or works of authorship original to me, herein and past,
are placed irrevocably in the public domain, and may be used or modified
for any purpose, without permission, attribution, or notification."--LDC

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