While browsing the interwebs today, I noticed that a wide variety of companies and websites are engaged in a protest regarding the atrocious Stop Online Piracy Act. The most elegant one is Google's:
The recent campaign against the SOPA strikes me as both good and necessary. But I immediately wondered how it fit with recent discussions about corporations and political advertising (see here by way of example). Putting up a politically charged message on Google's home search screen is much more valuable than almost any ad buy. Many of the protests appear to be on corporate websites. These efforts involve the use of corporate resources to attempt to directly influence Congressional opinion. Beyond the corporate agitation, these efforts involve pooling resources among lots of people in an attempt to raise public awareness which no individual voice would likely get on their own.
If the politicians were allowed to shut this kind of thing down, they absolutely would. There must be ways to attack corruption in politics without attacking free speech.
Seb, I have some thoughts on this but want to see a representative range of pro-speech limitation responses to your post first.
Given that this is a corporation trying to influence the outcome of the legislative process directly rather than indirectly, I would sooner compare this to lobbying than to buying political ads during an electoral cycle. That may be a difference without distinction, though.
The problem with corporations using their resources to affect public policy isn’t, and never has been, the mere fact that they do so.
The problem is, and always has been, the anonymity of their influence, and the overwhelming disparity between how loudly they can speak to Congress (via campaign contributions) versus how loudly non- or anti-corporate voices can speak.
Citizens United made legal and overt what has been covert: “freedom of speech” has been subverted to “money = speech,” so that the only voices which are heard, and the only agendas which are considered relevant, are those with millions of dollars behind them.
Also, and crucially, there is no longer any law or regulation requiring the contributors of those millions of dollars to show themselves.
The coordinated protests against SOPA and PIPA are “just like” major corporations anonymously and disproportionately funding political candidates and policy debates only if you’re high and half-blind.
There are two very different things under discussion:
1. Corporation uses well-positioned web page to discuss issue and encourage citizens to participate and talk to legislators – (“bill X is a bad idea and here’s why”).
2. Corporation buys ads for, gives money to, or otherwise uses company resources to promote a particular candidate – no doubt out of the goodness of their heart, and favorable votes or bill sponsorship from the politician down the road will surely be entirely coincidental. Wink, wink.
Number 2 is the one suspiciously akin to “corruption”. Number 1 is just more or less positive and open participation in democracy.
Now, I’m fairly sure that we’re capable of distinguishing between issue advocacy and candidate advocacy/contributions at a basic legal level. So there’s no technical difficulty about making a law applying to one and not the other.
The contention seems to be that there is a slippery slope in operation. You can’t possibly restrict #2 without also risking #1. I’d like to see more evidence for that claim. (Particularly since I don’t really see any evidence for the claim that politicians would shut down “this kind of thing” if they could.)
“There must be ways to attack corruption in politics without attacking free speech.”
Indeed. The critical question is whether any of those ways involve legislation written by already corrupt politicians.
I believe that’s why campaign ‘reformers’ focus so relentlessly on corruption of Congress by outside influences. Admitting that the corruption flows the other way makes the whole project of reform by legislation look terminally foolish: The reformers can be as high minded as they like, the implementation will be handled by people who make your average mobster look like a paragon of virtue.
“I’d like to see more evidence for that claim. (Particularly since I don’t really see any evidence for the claim that politicians would shut down “this kind of thing” if they could.)”
McCain/Feingold, which was written to NOT disintguish between for profits like ADM, and non-profits like the ACLU or NRA, even though the authors had people constantly pointing out to them they were making a ‘mistake’. Why? Because it wasn’t a mistake, it was deliberate: They meant to shut down ‘this sort of thing’. ADM was the excuse, NRA was the real target.
My thoughts:
Bravo for an interesting question.
I’m trying to come up with an analogy for a non-web company. Basically, I see it this way: you see this message if you are a google user. So, let’s imagine a scenario involving the EPA regs on mercury. Instead of Google, we have a power company that relies on coal-fired plants. What is the equivalent to what Google did? Sending a flier out with this month’s bill complaining that the EPA regs will raise their costs and, thus, your bill?
How would I feel about that? Aside from being opposed to the content of the message, the same. You know who the messenger is and can, if you choose, examine whether your interests really align with theirs.
“The contention seems to be that there is a slippery slope in operation. You can’t possibly restrict #2 without also risking #1. I’d like to see more evidence for that claim. (Particularly since I don’t really see any evidence for the claim that politicians would shut down “this kind of thing” if they could.)”
Your number one is “issue advertising” your number two is “candidate advertising”. Campaign finance laws have nearly always attempted to limit both. Campaign finance politicians treat issue advertising as merely an end run around rules about candidate advertising.
It is easy to see why. In an important campaign you want to be able to say things like “we are against torture, George Bush isn’t”. But you can’t identify which candidate is for or against torture if you can’t name candidates in your advertising.
McCain/Feingold
I may be missing something, but none of the blackout sites I’ve seen single out any candidates up for election inside of 2 months, so McCain/Feingold would not seem to apply (if it was still in effect, that is).
And that’s by design: M/F was intended to target “electioneering” (hence the part about mentioning of candidates by name in close proximity to elections), not “this sort of thing” (legitimate issue advocacy).
Using google’s protest as an example of the beneficial effects of corporate speech is a bit problematic, since SOPA itself is clearly a product of corporate lobbying. Thus, given that corporate corruption already exists, it’s a good thing that corporations are speaking up in those cases where they agree with the public.
In some sense I think a straightforward “Google endorses Barack Obama for President” or “Exxon endorses Mitt Romney for President” ad would be just fine. The problem is in this area, corporations want to have it both ways. On the one hand they want to curry favor with/elect politicians to advance their business interests, on the other hand they know that if they did do the above they would be alienating a huge portion of their customer base.
So they do this indirectly by, e.g., giving money to the U.S. Chamber of Commerce, or the Business Roundtable, or some more anonymous vaguely noble-sounding group like “Americans for Mutha Fukkin Jobs” or what have you. Thus, they obscure what they’re doing from the general public while still promoting politicians that advance their business interests.
Whereas in the present case there is no question about what Google’s doing and why.
I’ll speak as the anti-Seb on this point.
I don’t think it’s corruption. The more relevant question is whether it’s constitutionally protected speech.
In russell’s imaginary perfect world, it might not be. It would depend on whether corporations were extended the privilege of engaging in speech on public matters by law. As opposed to as a matter of constitutional right.
Does this mean that Google might be prohibited from putting their very eloquent black band on their logo? Yes, it might. I personally could live with that.
Not just live with it, I don’t think it would bother me at all.
In any case, what would absolutely be protected would be the right of Sergei Brin and Larry Page, frex, or the members of the Board of Directors of Google, to buy all of the ad space they wanted to buy, on any medium or combination of media they wanted to buy it on, to say whatever they wanted.
Including publishing an image of the Google logo covered by a black ban.
All they would have to do is pay for it with their own money, and sign it.
Likewise, if 1,000,000 users of the Google search engine wanted to chip in $5 each and do the same, mazel tov.
Also protected would be the entirety of Wikipedia, because unlike Google, which is a tool, Wikipedia is content, authored by humans, and offered, for free, in the public space.
Also protected, blogs, for the same reason.
Long story short, I would trade Google being able to put a black banner on their logo in exchange for corporate Constitutional personhood in a heartbeat.
Great question Seb, I always end up on the other side of the fence from you on this, but I also always appreciate your thoughts and comments.
Your number one is “issue advertising” your number two is “candidate advertising”. Campaign finance laws have nearly always attempted to limit both. Campaign finance politicians treat issue advertising as merely an end run around rules about candidate advertising.
I’m certainly no expert, but as noted above, I’m not convinced this is the case. Or if it is, McCain/Feingold isn’t an example. I mean, some “issue” advertising clearly is a circumvention attempt, and M/F just sought to draw a workable line around it. That’s the exact opposite of evidence that anyone views all issue advertising as an end run around the rules.
Even under M/F, the SOPA blackouts would be perfectly legit. As would most actual issue advocacy, which usually takes a form something like “here’s why you should think XYZ, please call your legislators (Sens. P & Q and Rep. R) and tell them they should too,” and tends to occur far outside the proscribed electioneering periods.
Now, M/F may or may not have been exactly the best place to draw that line, but I do think there’s a line you can draw somewhere in there. You can’t necessarily catch ALL the corner cases, but there’s nevertheless a not-so-subtle difference between “call your legislator and tell them you support X” and “vote for/against Q because of their stance on X”.
Google’s protest, and the corporate lobbying which produced SOPA, are similar in that both are examples of corporations trying to influence legislation. But the similarity ends there. Google is being quite open about what it is doing and that it is the company doing it.
Can anyone name (without doing a web search) the companies which pushed for SOPA? Me neither. Because they were hardly being forthright about what they were doing.
On balance, I can live with companies (or, more accurately, their CEOs and Boards) having opinions and making them known. I can live with them asking their customers to contact their legislators on the subject. But having them giving funds to legislators, to their campaigns, or to PACs which are nominally (but only nominally) independent — that’s a difference of kind, nota difference of degree.
“Americans for Mutha Fukkin Jobs”
Ugh funny.
This is not simply a protest of corporations, but of individuals darkening their own personal sites to illustrate the potential effect of SOPA. As such, they use their supposedly Constitutionally protected freedom of speech to help draw attention to potential censorship — and that is so far from corruption that it can’t see it over the horizon. It is not just a ‘corporate protest’.
How does freedom of the press, as opposed to freedom of speech, figure in, if at all (lack of by-lines?), when it comes to Google and other websites?
Can anyone name (without doing a web search) the companies which pushed for SOPA?
Warner Brothers. Universal. Sony. Really any member of the MPAA.
Because they were hardly being forthright about what they were doing.
Actually, I think the MPAA at least has been very public about their advocacy of SOPA/PIPA. And they’re the public front for the big movie studios. They’re not hiding it at all.
To second Russel’s view: even though I don’t find actions in the style of the SOPA blackouts problematic, I do NOT believe that this kind of corporate speech is constitutionally protected.
I don’t see any conflict in those positions.
Also: to add to my first comment, much of what, e.g., the MPAA, does is in distinct category #3: lobbying.
Lobbying is tricky. It’s sometimes problematic, but it’s also not necessarily wrong. In principle, lawmakers should seek input from industry experts, issue interest groups, and so forth. But they should also know how to weigh them against each other and the public interest, which they often fail to do.
In theory, I think if we could remove the inappropriate quid pro quo aspects of campaign contributions and lobbyist access, lobbying wouldn’t necessarily be such a bad word. (Politicians might still make stupid decisions based on personal bias and faulty information, but that’s a different problem.)
(Oops, that’s Russell‘s view, obviously.)
Some questions:
(1.)If money=speech, then how can anyone have the unmitigated gall to decry corruption in the first place? The asserted equivalence dismisses the idea of corruption out of hand.
(2.)If slopes are slippery, how is their direction determined? What makes more sense: Laws against corporate speech result is silly contradictions that limit corporate ‘speech’ in other realms; or the fact that more money concentrated in fewer hands speaking ‘freely’ will lead to the increasing concentration of economic and political power and the strangulation of democracy?
(3.)Why is a regulation limiting corporate speech imposing an unconstitutional limit on free speech, but outlawing the secondary boycott is not?
(4.) Why does Russell always say sensible things?
It’s not that money equals speech. It’s that regulations of money equal regulation of speech, if the regulations are contingent on the content of the speech.
We’re not talking about a ban on advertising during the relevant period. We’re talking about a ban on advertising which happened to mention McCain or Feingold. Because they didn’t like what was being said about them.
There’s a school of thought that the only people who ought to get to say anything during a campaign are the candidates themselves, and everybody else ought to STFU. I can understand why candidates take this position, and try to write it into law.
But why would anybody else treat it with anything less than the contempt it deserves?
Money equals speech is just shorthand for the idea that you don’t get to circumvent real Constitutional rights by just banning the transactions of money surrounding them.
I take you would be ok with regulations stating that while the right to an abortion remains untouched, no doctor may charge for one and no woman may pay for one?
Does that mean that money equals abortion?
A better analogy might be that you say no doctor may charge more than one million dollars for an abortion and no woman may pay more than that for one. Of course, that won’t prevent anyone from getting an abortion, just as limits on campaign contributions won’t prevent anyone from saying anything he or she likes.
Random questions to myself:
Would I have a problem with Warner Bros, Universal, or the MPAA supporting SOPA on their corporate websites? No. Why the hell should I?
When B(ritish)P(etroleum) buys TV ads touting its good works in the Gulf of Mexico (without mentioning that little spill that made the good works necessary or any legal obligations that make the good works compulsory) should I give a damn? I can’t see why.
If GM decided to ship every car with a “Re-elect Obama” bumper sticker already on it, would I have standing to object? I dunno. FTR, I am not a customer, employee, or stockholder of GM — I am simply a citizen of the US.
–TP
Does that mean that money equals abortion?
Depends. Are we starting from the premise that abortion is an individual constitutional right, like speech?
–TP
Well, I think we could safely say that prohibiting a corporation from paying any money to get an abortion for itself would not interfere with any person’s ability to get one.
Politicians have always hated folks with their own press (or radio station or television station or internet site). The adage of “don’t pick a fight with a man who buys ink by the barrel” clearly needs to be updated.
Why is Chris Dodd allowed to lobby his colleagues? I thought they had rules for that.
Hey, McKinney – happy with your “representative range of pro-speech limitation responses” so far?
Prosecutors and federal courts have also been heading the other direction on the money=speech equation…that is speech=money.
Speaking “favorably” about Hamas = material support = federal felony.
And thus is the First Amendment truly killed off.
Less snarkily, I will go so far as agreeing with the first paragraph of Brett’s most recent comment, and more or less the whole of Sebastian’s.
The problem with both is the unstated that assumption that corporations have an implicit right to unrestricted free speech, constitutional or otherwise.
Sebastian asked:
“Does that mean that money equals abortion?”
Colbert needs to have Sebastian on his show as a guest. A suspect, Sebastian being a satirist in his own right, he would get Colbert’s deal, unlike many of the nincompoops who agree to be torn to bits by Colbert (or Stewart’s kids, or the Smothers Brothers, for that matter) while maintaining clueless and gravely earnest expressions on their faces.
But to answer the question with another, I don’t know, when Intel kills a start-up project under their corporate supervision, is that abortion?
When WalMart put the pillow of scaling comparative advantage over Mom and Pop’s dozing faces down the street, was that euthanasia?
Corporations … who have corporations, are the luckiest people in the world, are they not?
And, natch, if money is speech and money is abortion, then abortion is speech.
Which makes Citizens United a veritable Planned Parenthood.
I’m not too fond of abortion or money, and people aren’t too far behind.
But I love babies and little kids. Like shiny new pennies they are, until they grow up to be hundred dollar bills and can buy votes.
Actually, I think the MPAA at least has been very public about their advocacy of SOPA/PIPA. And they’re the public front for the big movie studios. They’re not hiding it at all.
They absolutely haven’t. Their strategy has plainly been to draw as little attention to this bill and get it through as quickly as possible. There is evidence that news outlets owned by pro-SOPA media companies have mentioned the bill significantly less.
Which is not to say they conceal their position. Obviously they can’t do that. The people that matter, sympathetic politicians and business leaders, need to know how MPAA feels about this. But public attention is another matter; they know they have extremely little sympathy to gain there.
There are a few things in this area where any kind of legislation will fail. The modern way is not to bribe an elected official with money but to threat him (or her) with withholding the bribe while supporting his or her rival. Given that elections are hideously expensive even in well-regulated countries with free-of-charge access to the broadcast media during election season such threats work even with no money changing hands. And there is no way to ban a ‘denial of support’ in a free society. Also on the distinction between issue and candidate advocacy there are numerous ways to circumvent that that are impossible or near impossible to prevent, especially in a two-party system like the US. Typically candidates differ on issues. Let’s simplify it for a moment to yes/no on any given issue. Each candidate will have a pattern of yes/no for a set of issues that can be deducted by any normal person. Even with a limited number of issues it is likely that each candidate will have a pattern distinct from any other. Advocating for a specific candidate can thus be done by advocating for that specific pattern without mentioning a candidate at all (provided the target audience knows this which in most cases can be taken as given). Unless it is extremly blatant (although it often is) there is not much one can do against that (again: in a free society).
The main problem I see is the disparity of means to use those methods. An influential preacher or a controller of large sums of money can play this game far more effectively than the average person.
As for Brett’s standard counter that the effective flow of corruption is predominantly outwards not inwards, I’d say it’s mutual and inseparable. The one can and will not exist without the other*. At best it is balanced on a low level, at worst it is an arms race or both sides simply merge. But even in the last case the corruption simply moves to other places with those on the levers intriguing against each other. The only way out would be a robot king controlling everything while not being controlled in the slightest by anything beside itself.
*if those in had no power there would be no need to influence them from without.
While this is pretty much ‘What Russell said’ comment, I do want to thank Seb for posting. I was going to try and fulfill my New Year’s resolution of a regular mid week post with something about the Jodi Cantor book about the Obamas, which would have just been the king thread in a different key, I think.
Jack Lecou points out the notion of ‘electioneering’ and I’m always perplexed why the US can’t do something that deals with something in close proximity to the election. I realize that it is an arbitrary line, but here in Japan, everyone has to shut it down 12 days before the election and various forms of election advertising are highly restricted. It gets a bit strange (laws have been interpreted to ban all forms of Internet election advertising) While I don’t think the Japanese gerentocracy is something that the US should be emulating, and the effect of a lot of these laws is to benefit the incumbent, it seems like the US has no idea of trying to deal with electioneering (I also think that’s why the Virginia ballot caused so many problems, because a lot of the Republican candidates seemed to assume they could just walk a couple of weeks before and put their name on the ballot, so I guess everything has a silver lining) Any idea why this is so?
“Well, I think we could safely say that prohibiting a corporation from paying any money to get an abortion for itself would not interfere with any person’s ability to get one.”
Really? Blue Cross/Blue Shield isn’t a corporation? The things you learn…
I don’t think it’s not that independent expenditures can’t be part of something corrupt. Sure, media corporations should strike an under the table deal with members of Congress, that they pass incredible expansions of copyright, and give the corporations the power to shut down any site on the web which so much as mentions bittorrent…
But the idea that you’re going to basically shut down independent expenditures during the part of the campaign when they matter, based on a presumption of corruption? It gets the burden of proof backwards.
There is evidence that news outlets owned by pro-SOPA media companies have mentioned the bill significantly less.
FWIW, I was actually surprised when I heard Time Warner’s support plainly stated yesterday on CNN International, but it’s also mentioned in the links to the CNN website if a google search is done for CNN and SOPA. Which makes it all the more interesting that Wolf Blitzer’s segment didn’t disclose that fact, I suppose.
Really? Blue Cross/Blue Shield isn’t a corporation? The things you learn…
Well, it’s certainly a corporation.
If you think it’s likely to happen, I’ll let you go ahead and let me know when it gets pregnant. That would seem like a precondition for getting itself an abortion…
“Well, I think we could safely say that prohibiting a corporation from paying any money to get an abortion for itself would not interfere with any person’s ability to get one.”
Really? Blue Cross/Blue Shield isn’t a corporation? The things you learn…
See if you can figure out what you did wrong here. I’ve provided a helpful hint.
A corporation could of course get an abortion for itself in exactly the same way that a corporation speaks–by doing so for some of its members.
But it goes much further. Before Citizens United, the DOJ argued that corporations could not spend money on any instrumentality that contributed to the banned speech–that it would be a violation for a publishing corporation to spend money on printing presses that published such speech, or ink, or paper. That means that even if the corporation is not funding the speech itself, it can’t participate in the regular activity of commerce surrounding the speech (it could not for example sell the book written by someone else, or ship the book if they were Amazon). The abortion analogy would be that corporate owners of building could be banned from providing space where abortions would be performed. That would obviously be attacking the right to abortion, and just as obviously the DOJ was assaulting freedom of speech.
Now notice what I did there? I said that the Department of Justice did something. Of course the Department of Justice can’t DO anything. It has people to do that. In this case the person who argued that position in front of the Supreme Court was Elana Kagan. She is now a Supreme Court Justice.
…in exactly the same way that a corporation speaks–by doing so for some of its members
Sure. Much as a corporation owns assets by assigning the rights to shareholders. Or takes on debts by parceling out payment obligations to shareholders. Or faces criminal penalties by passing those penalties on to shareholders.
Oh. Wait.
Thanks, but I remain unconvinced by the argument that an entity whose sole purpose of existence is to not be identical with its constituent human beings nevertheless necessarily becomes such when it comes to speech.
The abortion analogy would be that corporate owners of building could be banned from providing space where abortions would be performed.
Incidentally, unless I misunderstand the DOJ argument you relate (which is possible), you meant to write:
“The abortion analogy would be that corporate owners of building could be banned from providing space where illegal abortions would be performed.”
Which does not seem extraordinarily unreasonable. (And does not in itself seem to be much of an [additional] attack on abortion – since the affected abortions are ones already prohibited.)
Before Citizens United, the DOJ argued that corporations could not spend money on any instrumentality that contributed to the banned speech–that it would be a violation for a publishing corporation to spend money on printing presses that published such speech, or ink, or paper.
I’d be interested to read that argument, Sebastian. Would you mind providing a link or a cite?
Hey, McKinney – happy with your “representative range of pro-speech limitation responses” so far?
I think I do. Below are the two dominant themes on the left.
In some sense I think a straightforward “Google endorses Barack Obama for President” or “Exxon endorses Mitt Romney for President” ad would be just fine.
Does this mean that Google might be prohibited from putting their very eloquent black band on their logo? Yes, it might. I personally could live with that.
Not just live with it, I don’t think it would bother me at all.
The school’s are ‘content’ and ‘ban’. The ‘content’ school is that it’s ok for corporations to say some things, but not others. The ‘ban’ school says that corporations can only say as much or as little as the state permits because, as corporations, they have no free speech rights(and by extension, no constitutional rights at all). But, the ‘ban’ school is really ‘content’ unless, in Russell’s world, all corporate speech, including commercial advertising, can and should be legally banned.
Anything short of outlawing any form of corporate speech invites, if not requires, state policing of speech content. All roads lead to this result, eventually.
Which is why I continue to marvel at these discussions. Each proponent of some kind of limit on corporate speech has his or her own lines on when, what and how a corporation might be allowed to say something that has a political ring to it, but these are all simply matters of degree, not kind.
Ultimately, the state would be the arbiter of what can and cannot be said.
This fundamentally statist position scares the crap out of me. I don’t believe for a minute that anyone here thinks of their solution(s) as anything but benign field-leveling.
An individual’s good intentions, however, don’t carry forward to the state. Seb has documented how extreme the Obama’s administration was in its quest to suppress speech of any and all kinds by any and all corporations. The administration’s position on speech is coequal with the worst tyrannies. That virtually no one (except Ral, as I recall) even pauses to consider what Seb has said, and to express outrage about it, illustrates the problem: vesting that degree of power in the state isn’t really that much of a concern in for many here, if the higher goal of controlling corporations is served. Or, putting it differently, the end justifies the means.
Or, as I’ve put it in the past, liberals want to forge the govenment into a sword with which to slay their enemies, and never stop to think for a moment that their enemies will someday get their hands on that sword.
Some days I think they’re just short sighted. Others I think it’s because they don’t just mean to slay their enemies metaphorically. This attitude does make a bit of sense if you figure on winning the battle for good, on fundamentally changing the system so that your oposition can never replace you.
The Constitution is, I think, in it’s end game. Perhaps liberals are looking beyond the next election, to the final score?
This fundamentally statist position scares the crap out of me.
Statist? You mean that state that is the mother of the corporation? You don’t think a mother should be able to exert control over her unruly child?
Ultimately, the state would be the arbiter of what can and cannot be said.
First of all, that sentence is supposed to read:
“Ultimately, the state would be the arbiter of what can and cannot be said by corporations.”
Which, to me, renders it far less scary right off.
But secondly, maybe I’m just not as paranoid, but it seems to me the state (broadly construed) is already pretty much in the business of being the arbiter of what can and cannot be said [and when, and where, and how]. Most of these restrictions we find pretty reasonable or necessary: The classic yelling ‘fire’ in a crowded theater. Or prohibiting a judge from making political endorsements from the bench. Or restricting the publication of child pornography. Or prohibiting the use of a sound truck in a residential neighborhood after midnight. Or putting up an excessively distracting billboard on a busy street. Etc. Etc.
Even if you don’t agree with all of those, most people probably agree with some. The principle that there needs to be at least some rules and arbitration is common-sensical.
All of this messy business with details and fine tuning certainly means that, as with every other aspect of good government and democracy, we can’t just put free speech on autopilot. We have to be vigilant, and there’s necessarily some leeway in the system where overreach or abuse can creep in.
But it doesn’t really support paranoia about unusually steep and slippery slopes either.
Corporate political speech certainly seems pretty akin to some of the other categories of regulated speech to me. As with sound trucks or child pornography, there’s some harm to the public going on. And as with, e.g., judges saying stuff in their official capacity, there’re elements of inappropriate/unfair use of resources or position, as well as the fact that prohibiting judges [officers/shareholders] from saying things in their capacity as a judge [as a corporation] does not interfere with their free speech rights as a private citizen.
Or, as I’ve put it in the past, liberals want to forge the govenment into a sword with which to slay their enemies, and never stop to think for a moment that their enemies will someday get their hands on that sword.
You fundamentally misunderstand liberals, Brett, unless by “enemies” you mean things like poverty/hunger, racism, and such. Those enemies, I think it’s fair to say, liberals would like to slay. Most (damn near all) recognize that they probably won’t ever be slain, but can be combatted vigorously.
But that’s not what you meant. You meant political opponents. At which I can only roll my eyes. As the GOP fights to harm groups that tend to support Dems (unions, fer instance), in the aftermath of Citizens United, you look on and say to yourself “the liberals have nearly succeeded in their dastardly plot to turn the US into a 1-party state!”
Really? Wow.
Or, as I’ve put it in the past, liberals want to forge the govenment into a sword with which to slay their enemies, and never stop to think for a moment that their enemies will someday get their hands on that sword.
A strawman. I assure you liberals think very hard about the downsides of swords.
It’s just that we also think about the fact that the “enemies” who are plaguing us tend to already have swords. Or maces. Or crossbows. Or flamethrowers.
So worrying about what they might one day do if they go their hands on it isn’t really sensible. You still kind of need that sword. Better to forge the sword and just try to hold on tight.
(Which I daresay is better than the “small government” approach, which, in the spirit of the above, we could characterize as: laying the sword down on the ground and hoping that 1. nobody else picks it up, and 2. that von Mises or Rand or whoever was right about swords working pretty well on autopilot if you just leave them alone…)
Hmm. Like Rob, I took “enemies” to mean broad human problems like racism, hunger or corruption.
Did you really mean political enemies, Brett? If so…ugh.
Oh, yes, he meant exactly that, and actually believes it. Even while he himself stockpiles guns, just, you know, in case.
(emphasis added)
By your standard, it already is. After all, last I checked corporations aren’t allowed to e.g. make death threats, and and are held liable for libel. So unless you’re saying these are unreasonable and unacceptable limits of the free speech rights of Statutory Americans (and by corollary, Uterine Americans), you’re arguing for your own personal line on where corporate speech can be limited.
(And the above examples can certainly be done within the domain of “political speech”, so no backsies trying to scale down your grand generalization to something a slight degree more easily defended.)
(…or what jack said…)
McTx: Seb has documented how extreme the Obama’s administration was in its quest to suppress speech of any and all kinds by any and all corporations. The administration’s position on speech is coequal with the worst tyrannies.
And the ability of states to abolish corporations altogether would bee coequal with….?
Ultimately, the state would be the arbiter of what can and cannot be said.
liberals want to forge the govenment into a sword with which to slay their enemies
I think it’s because they don’t just mean to slay their enemies metaphorically.
Hard to know how to reply to this stuff.
Here’s what I want. I want to be able to set limits on whether, and to what degree, corporations are allowed to engage in the American political process.
Simple as that.
We intend to have a government by, of, and for the people. Human beings are people, corporations are not.
So, people can participate in any way they like. Corporations, only to whatever degree we, the people, decide to allow.
That’s about it. Nothing more or less complicated than that.
You show me anything that I have written, said, or done, anywhere, anytime, that calls for the rights of any human being to be limited in any way.
Then you can call me a statist, or am endorsing censorship, or claim that I’m looking for a “sword” to “slay my enemies”.
Until then I call bullsh*t. Or, more accurately, until then I am not going to bother engaging the topic with the two of you.
Seb I don’t mind discussing this with, or Farber, or folks who are actually interested in talking about the pragmatic reasons that it might be a bad idea to limit corporate personhood.
You guys, with the weird paranoid fantasies of Absolute State Control, I have no idea how to have a conversation with. Because you’re not talking about anything I’m talking about.
I distinguish between humans, and legal instruments created to aggregate capital and engage in commerce. Legal instruments which exist, in fact, specifically to legally NOT BE the people they are a proxy for.
I distinguish between those things. So does the law. So should you.
And not for nothing, but the enemy slaying talk ain’t coming from my side. So give that a freaking rest.
I’d like to slay the enemy that is the outsized influence of large sums of money on our political process, which mainly comes from corporations, since they have more money than individual people.
I know, I’m practically Stalin, right?
I want to be able to set limits on whether, and to what degree, corporations are allowed to engage in the American political process.
Then you can call me a statist, or am endorsing censorship
You guys, with the weird paranoid fantasies of Absolute State Control, I have no idea how to have a conversation with. Because you’re not talking about anything I’m talking about.
I am not going to repeat myself (much), but I would request that you reread my comment and think it through. If a corporation is allowed to advertise at all, i.e. speak in its corporate capacity, the inevitable next question is “what is the corporation saying, what imagery is it projecting?” Suppose a corporation, in the midst of an unpopular war, chose to embellish its advertisement with American flags and a small statement, “We support our troops.” Isn’t this in some degree political? It might be minimally political, it might be the kind of political speech that is sufficiently neutral as to cause you no personal angst, but that is not how laws are written. There has to be, if you are going to have a law, some definition of what is or is not political speech. Once you have that law, the state becomes the decider of what can and cannot be said by corporations, period. Including the print and air media.
As history amply demonstrates, once the state outlaws something by drawing a line, people and companies, and their lawyers, figure out a way around or over or under the state-drawn line. If the state moves to stop the end-runs and whatnot, it has to pass more laws and limit speech further. When new loopholes are found, newer laws get written, at least in theory, to close those loopholes (or, we’ve simply created a silly mass of do’s and don’ts that accomplish very little substantively).
Each of these laws necessarily would address speech content: has the corp slipped from purely commercial speech to quasi or implicit political speech?
I don’t impute bad motives to any who comment here. I tried to make that clear. But, if it is offensive to say that Russell’s approach, or Ugh’s, or anyone else’s, would have the unintended effect of potentially promoting a level of state intrusion into the realm of speech that exists only in dictatorships, is that out of bounds at ObWi? Because if it is, I am pretty sure I can find many, many examples of me being accused of a much more personal mal-intent by a number of commenters here.
I would also suggest that Seb’s detailed discussion of what this administration has actually advocated before our supreme court be read and comprehended for its incredible breadth. If that isn’t scary, I don’t know what is. And it isn’t paranoid speculation about a worst case future, it’s what actually happened. It was statism, through and through.
Including the print and air media.
Freedom of the press is listed as a right as something distinct from freedom of speech, no?
But, if it is offensive to say that Russell’s approach, or Ugh’s, or anyone else’s, would have the unintended effect of potentially promoting a level of state intrusion into the realm of speech that exists only in dictatorships, is that out of bounds at ObWi?
Not out of bounds, but patently silly. How does my freedom of speech depend on that of a corporation?
“Here’s what I want. I want to be able to set limits on whether, and to what degree, corporations are allowed to engage in the American political process.
Simple as that.”
But it isn’t as simple as that, cannot be as simple as that, when every newspaper, every book, every radio program, every TV program, every magazine, is published through the agency of a corporation. The power to silence corporations IS the power to silence everybody, save in groups so small and unorganized as to be meaningless.
It can’t be as simple as that, when “corporations” include not just money making enterprises such as ADM, but also groups of Americans who’ve gotten together to advance viewpoints, like the NRA.
No, it can never be as simple as that, unless you trust government to an insane degree. Or expect to be controling it yourself…
There has to be, if you are going to have a law, some definition of what is or is not political speech.
McK, unless I am mistaken, this exists now.
But it isn’t as simple as that, cannot be as simple as that, when every newspaper, every book, every radio program, every TV program, every magazine, is published through the agency of a corporation.
Again: Freedom of the press is listed as a right as something distinct from freedom of speech, no?
That, and the individual right to freedom of speech applies to most of those situations. The corporation is not speaking – the radio host or guest is, the book’s author is, the person who wrote the article is, the TV show host or guest is.
Yes, all of that potentially allows corporations to get around some things to some degree, but it still beats letting them spend as much as they want on political endorsements of candidates for elected office.
It can’t be as simple as that, when “corporations” include not just money making enterprises such as ADM, but also groups of Americans who’ve gotten together to advance viewpoints, like the NRA.
Why don’t the proponents of corporations having rights identical to humans ever address the fact that but for the state, corporations wouldn’t exist. People can associate in all kinds of ways, but the corporate form is a very specific statutory creation that shields people from personal liability. So, don’t use that personal liability shield mechanism, otherwise known as a corporation, as your free speech mechanism.
Let’s abolish corporations entirely. Then we don’t have the problem. Repealing corporation statutes isn’t unconstitutional. The NRA could still have a convention, and NRA members could say whatever they wanted, as members of an organized unincorporated association.
Just joking, of course. There are lots of good reasons to have corporations so that people can engage in business enterprises. But not so that corporations can be fake “people” with the rights, but not the corresponding liabilities and risks that real humans have.
But it isn’t as simple as that
Well yeah, it bloody well is.
The government has to get a warrant to tap your phone. Or, they used to, anyway. Why? Because you, a human being, have a 4th Amendment protection against unreasonable search and seizure.
The phone company doesn’t hold the right, you do. But the government cannot make the phone company do stuff without the warrant. At least, as noted above, until fairly recently.
The fact that a corporation publishes a book, or produces and distributes a TV show, etc etc etc, does not mean that those corporations have to hold the 1st Amendment right to speech in order for you, the author, to write the book or the TV program script, or act in the TV show, etc etc.
And I believe I am long, long, long, long, long since on the record as regards groups of human beings organizing to collectively engage in protected speech.
And yes, we can distinguish between corporations organized to engage in business, and corporations having memberships limited to rights-holding US persons and organized for specific purposes. We do it right now, each and every day.
Go look at the weird smorgasbord of organizations available under the 501(c) laws. If there is one thing we are already good at, it is distinguishing between types of corporate entities and what they can and cannot do.
This is not some weird Martian innovation pulled out of my butt. We do this stuff now, just not applied in the particular way we are discussing.
Or expect to be controling it yourself…
Just want to add that this kind of paranoid aspersion applied to myself always makes me, literally, laugh out loud.
Yes Brett, I am a closet Stalinist. I’m just waiting for you to drop your guard and forget to load your gun so that I can have you whisked away to a FEMA camp in Idaho.
I don’t mean to be picking on you, but seriously, do you believe this stuff?
Only Hannah Bumpass has gotten a bigger chuckle out of me today.
McK, unless I am mistaken, this exists now.
Not really. The only instance I can think of quickly is the 503(c) limitation on “political activities” or some such, without defining what that is. The gray areas are huge. If you look at what Seb has documented, you come away with an assertion of federal power over speech that dwarfs the issue of “is a corporation a person for the purposes of free speech (or any other constitutional right)?”
Whether a statement is political is entirely subjective and contextual. You could have a candidate look-alike saying something silly in a commercial context two weeks prior to an election–political or not? The state decides. And, if the Obama administration had is full sway, every entity in the line of commerce leading up to that commercial is in hot water.
Or better, you could have individuals sponsor an add telling outright lies about a corporation and it relationship with a candidate or an issue and the corporation could not respond in the media, or at least, would have to tailor its response so as to avoid state scrutiny.
All of the above would clearly be statist, totalitarian conduct if applied to individuals. If true for individuals, it is true for corporations, the difference being that it is, apparently, ok to treat corporations in this way. And, I assume you mean all corporations, profit and nonprofit, publicly traded and privately owned–or, would some corps have rights that others do not?
And, as a final note, I am well aware that you harbor no desire whatsoever to limit personal freedom. Yet, your regime would do exactly that, at least to a degree. One of the reasons why membership lists in private organizations cannot be obtained by the state is to allow individuals the right to band together in anonymity to advance causes that, if their involvement were known, could affect their employment and other relations or produce retributive acts by the state. As in, for example, the various civil rights groups in the 60’s.
To reprise an earlier discussion:
So we’re f*cked then, right?
If that isn’t scary, I don’t know what is.
Oh, get up off the fainting couch, granny. The existence of the “Department of Homeland Security” alone is 10,000 times as scary as the desire to get corporate money out of politics.
Or better, you could have individuals sponsor an add telling outright lies about a corporation and it relationship with a candidate or an issue and the corporation could not respond in the media, or at least, would have to tailor its response so as to avoid state scrutiny.
The president of said corporation is, presumably, an actual human being — in all likelihood a wealthy one! with signifacnt personal money to spend on TV ads! — who has free speech rights of his own.
All of the above would clearly be statist, totalitarian conduct if applied to individuals. If true for individuals, it is true for corporations,
So, if a corporation is found guilty of murder, can we sentence it to life in jail (i.e., dissolve its operations)? If true for individuals, then true for corporations, right?
Why don’t the proponents of corporations having rights identical to humans ever address the fact that but for the state, corporations wouldn’t exist.
Yes. I’ve gotten tired of asking about that small bit of trivia, myself.
And, I assume you mean all corporations, profit and nonprofit, publicly traded and privately owned–or, would some corps have rights that others do not?
Why not? Some people have rights that others do not.
Yet, your regime would do exactly that, at least to a degree.
And your‘s wouldn’t? After all, your “regime” will lead inexorably to increasing concentration of power as the wealthy use the government to increase their wealth and then use that wealth to enhance their power to pass more laws enabling more economic rent seeking, looting, etc. That is what YOUR regime(s)has been doing for the last 40 years. So I guess that makes you responsible.
Like Rob said, I guess we’re just f*cked then, because your absolutist position leads logically and inevitably to the ultimate arbiter….political violence.
Sigh.
Not really.
If you say so. You’re the lawyer, not me.
If true for individuals, it is true for corporations, the difference being that it is, apparently, ok to treat corporations in this way.
We could add it to the list of 10,000 other ways in which we treat corporations and individual human beings differently.
And, I assume you mean all corporations, profit and nonprofit, publicly traded and privately owned–or, would some corps have rights that others do not?
Please see my 3:33 to Brett.
bobbyp makes a good point, the 1st Amendment is not the only Constitutional right/provision at play here.
And further to russell’s 4:09, there are limits that can be placed on speech consistent with the 1st Amendment, so it’s not like McCain-Feingold was some sort of un-explored ground.
Did you ever stop to think that it isn’t just the corporation which is a creation of government, but also the need to use corporations? That it isn’t just an accident or a fad that so much of our life is funneled through these institutions, but rather, it’s a result of the way laws are written? Written so as to make much of our lives infeasibly expensive or perilous if we don’t use corporations to accomplish them?
What good it it to say that, if you want your publishing to be protected by the 1st amendment, you need merely not do it through a corporation, if the law makes sure nobody can keep a non-corporate publisher in business? What good is it to say that, if you want to join with other people to petition your government for redress of grievances, or influence the outcome of an election, you need merely not do so through a corporation, if the government has set up a system where doing so will leave you open to being sued into oblivion?
How DARE the government which herds us into these institutions use our response to it’s pressure as an excuse to restrict our rights! Maybe if we were free to publish and so forth without forming corporations, there might be some excuse. But not in THIS world.
Why don’t the proponents of corporations having rights identical to humans ever address the fact that but for the state, corporations wouldn’t exist.
Yes. I’ve gotten tired of asking about that small bit of trivia, myself.
I haven’t addressed this because it doesn’t really mean much, at least not to me. But for individuals, states wouldn’t exist. In a democracy, saying something is a product of the state is no different that saying it is a product of the people.
And, no one is saying that corporations have rights identical to individuals, only that corporations have most of the same constitutional rights as do individuals. The constitution is a limited document. States can do things to corporations the feds can’t. Some rights can’t be exercised by corporations.
Russell, the Nike case is a commercial speech case. The article notes how the lines are blurred, it points out all kinds of problems that arise when courts try to evaluate and regulate speech content. And, it does not define political speech. And, it is a state court opinion apply state law.
I did see your 3:33, but after the fact. I am afraid that what seems simple in theory becomes remarkably complex in practice. Today, 503(c)’s are forbidden from political activity. Do you think the NAACP, the ACLU, Planned Parenthood and the NRA are apolitical? That preachers don’t preach politics from the pulpit? The prohibition against political activities is rarely actually enforced because it is so damn difficult to do so and doing so inevitably raises the specter of state bias: if the state goes after 503(c)’s that criticize the current administration, or doesn’t go after 503(c)’s that support the administration, you have selective enforcement, which is, to me, about as bad as you can get: the state permitting favorable speech and persecuting unfavorable.
503(c)’s are supposed to be non-profit. Yet, many of them make money, i.e. show a profit. Do you want the state doing an end run on unpopular speech by selectively auditing 503(c)’s who it doesn’t like? I don’t.
What good it it to say that, if you want your publishing to be protected by the 1st amendment, you need merely not do it through a corporation…
What good is it to say that, if you want to join with other people to petition your government for redress of grievances, or influence the outcome of an election, you need merely not do so through a corporation…
Who is saying such things?
So Brett are you saying that the government created corporations as a means of herding the citizenry into forming such corporations to protect their rights, only to turn around and extract political rents from the corporations subsequently formed? Or what?
Russell, the Nike case is a commercial speech case.
Yes, exactly right.
My point in citing the article was because it contains a good, concise discussion of the history of the regulation of commercial speech, including reference to various SCOTUS cases in which the distinction between commercial and political speech makes up some significant part of the case itself.
In other words, the distinction between political speech, which has very strong protections under law, and commercial speech, the protections for which are weaker, is no novelty. It has existed for quite a while.
I am afraid that what seems simple in theory becomes remarkably complex in practice.
Yes, that’s true, but somehow we muddle through.
I don’t mean to minimize your point, which is a valid one, I’m just noting that making the kind of distinctions you refer to is something we already do. Every day.
One option would be to simply say that legal persons of any and all types are persons for purposes of Constitutional rights, all speech is equally protected speech, and let the chips fall where they may.
It’s all good, as it were.
What you end up with is just an extension of what we have now, where for-profit corporations literally write laws to be rubber-stamped by the Congresspeople they have bought and paid for.
It does have the advantage of being uncomplicated, I will give you that.
And no, you can’t allow issue advocacy by corps but not allow lobbying, because it’s all protected activity. Lobbying is petitioning for redress of grievances, and if you try to shut that off you will be met by a Constitutional challenge there as well.
McTx: States can do things to corporations the feds can’t. Some rights can’t be exercised by corporations.
So the argument is, if I understand it correctly, if a state creates a certain means of pooling assets, the feds can’t interfere with that mechanism, at least in terms of the mechanism’s ability to express itself (though the methods in the mechanism’s organizing documents)?
In Brett’s Libertopia, where the nasty ole guvmint would NOT be so meddlesome as to grant limited liability to corporations, I wonder whether Brett would ever buy a share of stock.
I would be happy, myself, to grant Brett his apparent wish and let every business be a partnership, every investor be personally liable. But I’m a goddam communist who hates the free market. What’s Brett’s excuse?
–TP
503(c)’s are supposed to be non-profit. Yet, many of them make money, i.e. show a profit.
That’s not, technically, the case. If 501(c)(3)’s make more money than they use for expenses, they aren’t allowed to distribute it to shareholders. It goes in the bank for future needs, maybe allowing the organization to rely less on contributions the following year. Sometimes the executives might get a bonus, or there might be some distribution of part of the extra money to staff, but this should absolutely be subject to scrutiny.
I haven’t commented as to the subject of Sebastian’s post, but I think that public issue advocacy (not monetary support for particular candidates) which is disclosed as such, and directly related to a corporation’s purpose should be allowed, not as a Constitutional right, but because it makes sense in the context of a business. But the idea that a state-personal liability protection scheme (which exists for good reasons that I support) should have Constitutional rights is absurd.
Oops
(Italics begone?)
Anyway. Yikes. Go away for a while to get some work done, and look what happens.
I don’t have much to add: No, associations != corporations or vice versa; yes it would be wrong to effectively prohibit a particular book from being printed – but that’s because the rights of the author – an actual human being – would be infringed; yes, we actually can make up somewhat vague definitions about things like “political speech” and enforce them in the corner cases using the imperfect and mercurial judgement of human beings – I’m not aware of any government which runs as a computer program, are you?
It’s the last point I find most interesting, as it, or the principle underlying it, seems to be at the core of the split here.
AFAICT, Brett and McKinney have been persistently ignoring the fact – pointed out ad nauseum – that government already regulates speech. Instead, we get statements like:
Like Russell, I really struggle to understand the viewpoint which could lead to such a statement.
Trusting the government to regulate speech is not, to me, “an insane degree”. It is nothing more or less than trusting the government to do its job. In the case of regulating speech, a job it has performed essentially since its inception.
Not always perfectly of course. Never perfect. Because we fallible, stupid, ignorant, corrupt human beings are the ones who are actually in there spinning the wheels of government. Which is why “trust” is probably much too strong a word to use. But there are many jobs which need to be done. Jobs for which a government constituted of humans and their judgement is the only remotely suitable employee at hand, however unreliable an employee it may sometimes be.
Setting ground rules and managing this employee is therefore also frightfully difficult, requiring never ceasing vigilance. And this is itself a task conducted by human beings – and therefore almost invariably performed imperfectly.
But I cannot even begin fathom what the alternative is supposed to be.[1]
There are, to the best of my knowledge, no governments which run on cleverly constructed clockwork mechanisms, or orderly computerized rules — nor any good reason to believe that such a government would, in practice, be fairer or more humane than the ones we have.
Ultimately, we just have to keep plugging away.
There’s also the related tendency to assume that a “can” is necessarily an “is already”. The apparent assumption (examples are easy to find above) that the mere power to regulate some forms of speech, corporate or otherwise, is tantamount to the end of free speech altogether, or at least rampant political abuse of the enforcement power. [2] (Again, contra to observed facts on the ground. Namely the actually existing practice of regulating various kinds of harmful or inappropriate speech, or other acts, and the marked tardiness in the subsequent collapse of the rest.)
—-
fn1.: There are, I suppose, various utopian “alternatives” such as libertarianism. But even in the most charitable interpretation, these are simply sweeping the problem under the rug by wishfully assuming a much simpler and more orderly model of human motivation and behavior than anyone who’s ever actually seen a real-live human being has any right to expect.
fn2.: It’s basically ignoring any possible chance of future agency or decision points. It’s like saying that your front walk leads to the street, which leads to the crossroads, which leads to the highway, which leads to the seashore, where there’s a ship, which goes to Greenland, so opening the front door is tantamount to being in Greenland! Don’t open the door!
What you end up with is just an extension of what we have now, where for-profit corporations literally write laws to be rubber-stamped by the Congresspeople they have bought and paid for.
I think you are conflating lobbying with the broad range of political speech in which corporate entities engage. Lobbying can’t be stopped, and probably shouldn’t, but it is subject to regulation. Forex, several of my clients have strict policies barring any form of gift giving or entertainment. Senior employees have been fired within these companies and outside counsel such as myself have lost all of their business. This is the kind of thing that can be done, without impairing speech, and, at a minimum, because it is far less intrusive, it should be done first. Granted, PAC’s and whatnot can still fund supportive campaign advertising. That certainly could influence law making. Disclosure mitigates this to a degree.
I think you minimize the complexity of regulating speech content. That isn’t something that we do all the time, other’s views notwithstanding. The limits on speech are minimal: fighting words, “shouting fire in a crowded theater”, child pornography, defamation of private citizens, and possibly a few other categories, none of which come close to evaluating and suppressing political speech.
if a state creates a certain means of pooling assets, the feds can’t interfere with that mechanism, at least in terms of the mechanism’s ability to express itself (though the methods in the mechanism’s organizing documents)?
Every state, and most foreign countries use the corporate form. It is a universal phenomenon. They are not odd quirks of this or that state. Corps are separate and distinct legal entities whose function requires that they have the same “rule of law” rights as individuals, including constitutional rights. Once you get to that point, you have to have a definable constitutional principle that allows the feds to restrict one constitutional right–speech–but not all of the others, e.g. due process, right to counsel, etc. The natural person distinction is a “distinction”, but it doesn’t have any constitutional significance. The first amendment speech right is simply granted, not to people, not to corporate entities or any other association. It is just there. As a matter of (sound) constitutional law, every part of that document is applied and construed in the same manner. If a particular right, e.g. due process, is found to extend to corporate entities, then there has to be some valid constitutional reason for not extending all other rights of which a corporation is capable of exercising. Not liking what a particular company has to say, or what many companies have to say, that is disapproving of the content of a company’s speech is the polar opposite of a valid constitutional principle. The entire free speech body of law turns on the idea that every idea, every thought, every position is of equal dignity and it is for the listener to decide what to accept and what to reject. It’s called the ‘marketplace of ideas.’
There are non-corporate publishers all over America, Brett. For realsies.
And, no one is saying that corporations have rights identical to individuals, only that corporations have most of the same constitutional rights as do individuals.
And yet the punishments for crimes are different for corporations than they are for individuals.
Some rights can’t be exercised by corporations.
Why not? I mean, seriously, I’m asking you – and not for the first time! – why should ExxonMobil (or the NRA or the NAACP or Google or Apple) NOT have the right to vote? If they have a legitimate interest in particular candidates winning office such that they have a Constitutional right to say so publicly, why shouldn’t a designated officer of the corporation be permitted to cast a vote on behalf of the corporation?
I’d actually like an answer to the question, please.
Conservative: You cannot infringe on the absolute freedom of political expression, including that of corporations.
Liberal: We need to regulate this. I know unwarranted corruption when I see it.
Liberal: You cannot infringe on the absolute freedom of artistic expression, including that commonly called pornography.
Conservative: Yes we can. Think of the children. I know pornography when I see it.
Also I might add that Seb’s idea of free abortions is a good one. Kudo’s to him for a change.
Granted, PAC’s and whatnot can still fund supportive campaign advertising. That certainly could influence law making. Disclosure mitigates this to a degree.
I still maintain that a commercial endorsing a particular candidate is an in-kind donation and should be counted as such against any limits on giving to candidates.
AFAICT, Brett and McKinney have been persistently ignoring the fact – pointed out ad nauseum – that government already regulates speech. Instead, we get statements like:
Not me. Repetition doesn’t make a statement true. As I stated above, the very few limits on speech are far removed from political speech.
Child pornography isn’t political speech. It is suppressed criminally. Which is not to say that there isn’t a body of law dealing precisely with the extent to which child pornography is within 1st amendment protections. IIRC, the argument was made that drawings of children having sex, or of being depicted sexually, were protected. Further IIRC, I think the SCt said “no”, but I don’t think the decision was unanimous. I could be wrong here.
Let me shift the question: give me an example of a legal definition of political speech and a law, rule or court decision that authorizes suppressing it or regulating it that passed constitutional muster.
You first. Why shouldn’t ExxonMobil have the right to vote? How is society served by preventing it from doing so?
I’d be ok with giving ExxonMobil one vote. But they’d have to show ID. And the guy actually showing up to do the voting doesn’t get to vote on his own behalf.
Actually, I’ll spot you: Morse v. Frederick. http://en.wikipedia.org/wiki/Morse_v._Frederick
Now you.
Why not? I mean, seriously, I’m asking you – and not for the first time! – why should ExxonMobil (or the NRA or the NAACP or Google or Apple) NOT have the right to vote?
And I answered your question the first time. Voting is clearly reserved to natural persons who must also be “citizens”. Art. I, Sec. 2 refers to “free persons including those bound to Service for a Term of Years, and excluding Indians not taxed, and three fifths of all other persons” for the purpose of determining apportionment of representatives.
Voting first appears in the 15th Amendment where the right to vote cannot be denied to any “Citizens” “on account of race, color or previous condition of servitude.”
Voting next appears in the 19th amendment wherein the right to vote cannot be denied on account of sex and then again, in the 24th amendment, voting is referred to as the “right of citizens” and then again in the 26th amendment, the right to vote in federal elections is extended to “citizens” 18 years or older.
A “citizen” is a natural person with rights that “persons”, including “natural persons” do not have.
Contextually, sex, age, race, color, and servitude are conditions of natural persons. The constitution further applies, in this context, only to citizens.
A further reason, if one is needed, for not allowing corporations to vote is that anyone, for a modest fee, can create literally as many corporations as he/she can dream up names.
If that doesn’t answer the question, I give up.
I didn’t ask you for a dissertation on the state of the law. I asked a question beginning with “why.”
But that last paragraph gets closest to an actual reason why they *shouldn’t* be permitted the vote. Now let’s see if the ease with which one can whip up corporations out of thin air might serve as a reason to keep them on a tight leash in other areas.
Back to another subject, does Brett realize that every time he posts here he’s creating content on a non-corporate publisher?
Actually, I’ll spot you: Morse v. Frederick. http://en.wikipedia.org/wiki/Morse_v._Frederick
Phil, this is lame. Your example, (1) is not political speech case, (2) it does not define political speech and (3) it does not authorize suppression political speech.
Your example does raise one of several examples of real friction between free speech–by individuals, not by corporations–and other “compelling state interests”. Public schools and the military are two situations in which some speech can be and is suppressed. Its a rocky area of constitutional law that, quite frankly, I had forgotten about until I saw your example. It is permissible for employers, including the military, and schools during school hours, to restrict political activity. But note: this is not suppression by the feds, other than by attenuation. The military is a federal entity, obviously. Schools are largely state and local entities. The free speech analysis changes dramatically and more liberally at the college level outside of the classroom, where it is virtually unfettered, as it should be.
To make my point about the lameness of your example, here is a quote from your source:
One scholar noted that “by its plain language, Morse’s holding is narrow in that it expressly applies only to student speech promoting illegal drug use”.[3] She adds, however, that courts could nonetheless apply it to other student speech that, like speech encouraging illegal drug use, similarly undermines schools’ educational missions or threatens students’ safety. “Further, Morse arguably permits viewpoint discrimination of purely political speech whenever that speech mentions illegal drugs – a result seemingly at odds with the First Amendment.”[3]
I didn’t ask you for a dissertation on the state of the law. I asked a question beginning with “why.”
You asked “why” in the constitutional sense: the constitution only preserves the right to vote for natural persons who are citizens. If that wasn’t made clear before, I am making it clear now. There is nothing in the constitution that can even unreasonably be construed as extending the right to vote to a non-natural person who must also be a citizen.
Calling for the legalization of marijuana — even in a juvenile, ham handed way — is not political speech???!? On what planet?
Also, I CTRL-f’ed for the word Feds or Federal in here and seemed to have missed it. Can you help me?
“Let me shift the question: give me an example of a legal definition of political speech and a law, rule or court decision that authorizes suppressing it or regulating it that passed Constitutional muster.”
As I stated above, the very few limits on speech are far removed from political speech.
That doesn’t seem right. Just to use examples from earlier, are you saying that things like billboards and sound trucks are not regulated if the speech happens to be political? Things like judges or other officials making political endorsements in inappropriate contexts are not noxious precisely because they are political?
And note that if you are claiming there is special leeway in some circumstances for political speech, that requires doing exactly what you are claiming is so difficult: namely distinguishing political speech from other kinds.
Corps are separate and distinct legal entities whose function requires that they have the same “rule of law” rights as individuals, including constitutional rights.
Really? Seems like a conclusion without an argument to me. Not to mention the fact that corporate statutes don’t (as far as I know) state that corporations have the same “rule of law” as individuals. Nothing in the Virginia statutes (where I’m a a member of the bar) states that “corporations shall have the same constitutional rights as individuals”. You are making this up.
Just because corporations have been recognized as a convenient mechanism for business enterprise by many different jurisdictions doesn’t mean that they should be entitled to Constitutional rights. In fact, that they exist in places without a Constitution that looks like the U.S. model suggests that they are capable of operating just fine without U.S. Constitutional rights.
The concept of corruption is critical to this issue.
Thanks, bobbyp. Just curious what led you to this article. Are you a law student or did you find it otherwise? If you don’t want to identify as such, it’s okay – just wondering how I can discover …
Interesting question that occurred to me reading McKinney‘s posts. The claim is advanced that there is a category of “person” distinct from “natural person” into which corporations fall. Constitutional rights that adhere to “persons” thus adhere to corporations, while those that adhere to more specific classes like “citizens” do not. Specifically:
Here’s the question, though: is there anything in the Constitution that can (even unreasonably) be construed as allowing states the ability to extend the concept of personhood to non-“natural persons”?
Let’s riff on that for a moment: a corporation is a legal instrument created under the auspices of the states for commercial reasons. These instruments do not exist in the constitution; their existence is not guaranteed by the constitution; and, as noted previously, their existence can be revoked at any time. [Although their dissolution is not considered “murder”, or even “execution”.] So, since this is entirely a legal instrument created by the states…
1) Can the state endow personhood onto an arbitrary group of people?
2) Can the state endow personhood onto non-humans? Could it declare a dog to be a person in the constitutional sense?
3) Can the state endow personhood onto inanimate objects? Could a rock be elected Senator?
Or, if you prefer your examples slightly less contrived…
4) Can the state grant corporations the personhood necessary to avoid “enslavement” (i.e. to forbid acquisition) or to be treated as property?
5) Can the state grant corporations the personhood necessary to vote?
6) Can the state grant corporations the personhood necessary to become citizens?
7) Can the state grant corporations the personhood necessary to stand for election?
And so forth. The argument can’t be advanced that those powers aren’t in the Constitution because nothing about corporations is; neither their current structure nor any other hypothetical one.
Fundamentally, then, I think the problem is in this statement here:
There are a couple of problems with this:
a) Their function requires that they have similar protections under the rule of law as people. It does not require that they have (some of) the same rights as individuals.
b) Even if they did, possessing (some of) the same rights as an individual pursuant to their function as a legal instrument of commerce does not mean that they are individuals — and that category error is indeed a slippery slope.
[This feels like a fairly fundamental design anti-pattern in programming but I’m having trouble putting my finger on it. Using a bogus superclass instead of an interface or a member? Not really sure; other code monkeys out there, what say you?]
What I find particularly amusing is that I think that McKinney’s position is probably held by many self-described “originalists”, and I can’t imagine a position less in keeping with the original founders’ intent than declaring a legal instrument equivalent in liberty to human beings. Not a knock on McKinney at all, who’s clearly his own person :), just… amused in general, I guess.
A corporation has rights only in the sense that it is a proxy for and derives rights from the rights of the natural person(s) it represents.
Sapient,
Quite prosaic, actually. I googled “constitution + corruption”.
Activity like this keeps me from firebombing my local Starbucks. A classic example of how the current rules shape even a heartfelt attempt to “do the right thing”. There is no room for queasiness in the corporate realm. It’s one of those personhood attributes that is obviously discouraged.
I think you are conflating lobbying with the broad range of political speech in which corporate entities engage.
Lobbying is a species of protected activity.
So, no conflation needed. It’s baked in.
Look for “no spending limits on lobbying” to be the next rallying cry from our pals at Cato et al. It’ll probably be on the SCOTUS docket in 2013. CU will be the precedent.
In for a penny, in for a pound McK. If it’s a right, it’s a right, and if corps have it, they have it.
None of this splitting hairs and trying to find distinctions where none exist. Isn’t that your position?
No shilly-shallying. Because their will be no shilly-shallying from their quarter.
You will also notice in the article that contra Brett, the need for lobbying and currying political favor does originate with politicians (they didn’t shower Schultz with ideas for trade deal scams) ….it’s our system, a system whose foundation is money and power and the drive to pivatize profit, and socialize costs.
These forces originate with private actors.
oops…does not originate with….
Must have been a Freudian slip of my liberal Will To Power.
McK:
Wow. It’s like the Hatch Act doesn’t even exist. Good thing, too, because if it did, it’d probably define what political activity is considered. And since we know that’s fundamentally undefinable, we’d probably end up with human sacrifice, dogs and cats living together… mass hysteria!
McK:
[…]
Anarch:
Sure. There’s absolutely nothing in the Constitution stopping a State from doing so. Citizens are granted various protections through which certain classes of them are guaranteed the right to vote, but nowhere are they guaranteed an exclusive right. All references to voters are as “the People of the several States” or “the people thereof [a state]”. If a corporation is a person of a state – and I must say that seems to be the prevailing opinion of the corporatists – I cannot see anything in the Constitution that is actually forbidding the several States from granting the vote to corporations. Or just some corporations. Or only the corporations that offer the nicest bribes. Is that unreasonable enough for you?
(Since I couldn’t link the OSC’s discussion of the Hatch Act into that last comment w/o plunging into the abyss of the spam filter, here. And do note that there are categories of employees who are barred from participating in political activities as defined therein (“an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.”) both while on duty and off.)
I’m sure Jefferson would be happy to see the monied interests have so much power.
About as happy as he’d be to see all the African American citizens going ’round with rights and such.
Yes, I know: that’s not an argument. I agree. It’s an expression of frustration, nothing more.
I’m going all-out in my on-line narcissism (which is what blogs are really about, right?) by quoting myself on the previous thread that Sebastian linked in the current post:
I think I’m in more or less the same place. Even if I don’t think corporations have constitutionally guaranteed rights, there a practical considerations in attempting to limit their rights as opposed to the rights of humans.
While ‘corporations = people’ and ‘money = speech’ intersect, given the financial resources that corporations have, the two are not the same, and I think taking on either one by itself can be helpful.
Here’s my question: Is anyone’s (corporate or human) right to free speech unduly infringed if limitations on the resources that can be used to make that speech are such that the ability of anyone to speak is no less than what virtually everyone else would have, absent those limitations, given the distribution of resources among the populace?
Does the existence of new technology and the accumulation of vast sums of wealth among a select few give those few the right to speak louder than everyone else, simply because those few have the right to speak at all?
If so, does that not, in practical terms, diminish the rights of the many, who lack the resources to speak remotely as loudly, to speak?
I’m not suggesting that we attempt to make the playing field perfectly even. Money will always give advantage. I’m only suggesting that reasonable limitations on spending, even if only in the area of political campaigns, can mitigate the imbalance of political power held by the wealthy few (people or corporations) in relation to the not-wealthy many, and that it can do so without violating anyone’s right to free speech. In fact, I’d say it can strenthen most people’s right to free speech.
If you start at about the 9 minute ten second mark (it’s already beeped for woik) yous wise guys overheah will loin why we can’t do nuttin bout regulation, increasing taxes, or money talkin da talk in political campaigns:
http://www.hulu.com/watch/321291/the-daily-show-with-jon-stewart-thu-jan-19-2012
All of it stifles the creation of made men in our, watchamacallit, country.
This clip brought to you by the corrupt enemies of SOPA.
As an aside, Newt Gingrich’s performance last night, in which he (the Boston Strangler of civility) takes on John King, media gangbang buddy of genocidal cracker punk and media-king-pin Erick Erickson, who is in turn Gingrich’s most rancid supporter, outside of bird of prey (credit T-Bogg for that image, I think) Callista, for asking a question about an issue first brought to a “head” by Republican made man and mainstream media eff Matt Drudge regarding the parallel wanderings of Newt’s d*ck and his political aspirations, and to which fundamentalist “values” voters (by which I mean those who, despite the wishes of canines everywhere, will tolerate man-on-dog sex as long as either the man or the dog defeats the swarthy enemy in the White House and eliminates their taxes and health insurance for both of Newt’s sickly former wives) in the old Confederacy rise in full-throated support of Newt’s snarling lie blaming “liberal” media for exposing the truth is — take a breath — yet another reason to visit one’s local gun store to peruse the various instruments by which the murderous policies of Republican sub-human vermin filth vying for political office will need to be defended against.
Would the perennially victimized NRA like to f*ck with me?
Money will always give advantage.
Sadly, true. Perhaps the solution is to ensure that those who currently have it all have less of it in the future, and that We The People can drown any randomly chosen corporation in a bath-tub with little or no effort. Under those conditions, I would have no problem with unlimited ‘free speech’.
I am therefore of the opinion that this conversation is, in some important respects, premature.
“Here’s my question: Is anyone’s (corporate or human) right to free speech unduly infringed if limitations on the resources that can be used to make that speech are such that the ability of anyone to speak is no less than what virtually everyone else would have, absent those limitations, given the distribution of resources among the populace?”
Is the “virtually anyone else” an identifiable class, such as, say, incumbent politicians? So that what you’re really talking about is incumbents having greater ability to speak than challengers, or citizens who want the incumbent unseated?
The class including “virtually anyone else” is those people who don’t have hundreds of thousands or millions of dollars to spend on political campaigns.
I’m all for being able to challenge incumbents, and I imagine there are ways to make that possible other than allowing any given legal entity, corporate or human, to spend unlimited amounts of money on political campaigns.
That aside, what do you think about the constitutional free-speech aspect of what I’m saying, Brett?
I mean, maybe we could try changing the way we set up districts, or do something more with term limits?
Is there some reason monied interests wouldn’t be as likely to support incumbents as opposed to challengers?
A lot of the latter bits of this discussion have lurched into personal attacks which seem unproductive. I don’t think anyone *here* at least is advocating for unbridled corporate control of politics (even as much as currently exists) nor limitless power to control free expression.
Unfortunately, the immediate history of the United States strongly suggests that even with various presidents such as Bush or Obama at the helm, the Department of Justice will lurch almost immediately to censorship based on political viewpoint.
The fact that by only the second election in which the rules will firmly in place, the big G government was attempting prosecution based on film that should have been clearly within the First Amendment’s protection should cause some pause. The fact that it doesn’t is what disturbs me.
Russell, you seem to want me to trust the government in an area where it has already proven that it isn’t trustworthy. From the previous discussions, and please correct me if I’m wrong, nearly everyone here agrees that the movie produced by Citizens United ought to have been protected. You don’t like the other stuff that came with the case, but you seem to agree with that.
But you aren’t even remotely wrestling with the idea that IN ACTUAL HISTORICAL FACT, the government attempted to enforce punishment based on that movie. Further the government argued that it was a clear violation, didn’t implicate the First Amendment, and signaled that they would be willing to go after corporate assets even if they were merely the distribution channels of someone else’s speech.
I didn’t make that up as a hypothetical. That is the case that the government brought.
Talk about narrow measured responses isn’t talking about the governmental history of abusing this area of law. The government has repeatedly, and quickly jumped to enforcements that seemingly everyone here thinks are clearly unconstitutional.
Why does that seem to cause no pause? Shouldn’t we at least wrestle with that a tiny bit before jumping immediately to “You guys, with the weird paranoid fantasies of Absolute State Control, I have no idea how to have a conversation with. Because you’re not talking about anything I’m talking about.”
These aren’t fantasies. This is a sober analysis of exactly what the government immediately tried to do with the last two iterations of campaign finance law.
Why does that seem to cause no pause?
Seemingly, because the SCOTUS overruled the executive branch? Because checks and balances worked (the over-broadness of the ruling not withstanding)?
Who knows what reaction there would have been around here and among the left in general had the administration actually been able to do the crap they wanted to? It’s not like the ACLU didn’t jump in, as it was.
nearly everyone here agrees that the movie produced by Citizens United ought to have been protected.
I absolutely agree that the basic issue in CU was correctly decided. Further, I think McCain/Feingold is a crappy law.
IMO it’s inevitable that campaign finance laws are going to be a farrago of crap, because everyone is trying to dance around the fundamental issue, which is that large pools of private wealth have profoundly corrupted the political process.
So, we end up with stupid laws about whether somebody can broadcast a snarky movie on the third Wednesday before the second full moon of the campaign season.
The law deserved to be tossed out.
The reason I am less disturbed by all of this than you think I ought to be is that I’m not looking to strip Constitutional protections away from all actors, only specific ones.
So, speech by people will continue to be protected, as it is now.
And, of course, everything we’re talking about is basically hypothetical, because even with the level of anti-corporate-personhood that is currently abroad, I am not seeing anyone, anywhere, propose actual legislation / amendments / what have you to actually change anything.
Perhaps the hypothetical nature of the issue gives me license to be cavalier.
In any case no, I do not trust the government to do the right thing out of the goodness of it’s heart. I expect the institutions that currently labor so assiduously to preserve the rights of corporations to do the same for actual human beings.
The big issue, to me, is how we would get from where we are, to where we might want to be. There is a ton of legal and social infrastructure that is based on the idea that corporations hold rights. A lot of what the infrastructure does is quite valuable.
I would be 100% in agreement that we would not want to simply cut the Gordian knot, wake up the next day, and hope for the best.
But I have no question that the kinds of protections that we all do agree need to be in place could be ensured without the fiction of corporate personhood.
If anything like this actually does happen, it’s going to be incremental. And every step along the way will be debated at great length, tested and re-tested. Progress will not be in a uniformly forward direction.
Realistically, *were it to actually happen*, putting aside the doctrine of corporate personhood for purposes of enforcing Constitutional liberties would probably play out over 50 or 100 years.
That’s about how long it took to put into place. More like the 100 year number, actually.
So, I’m not alarmed.
But nothing will happen, at all, as long as the basic idea continues to go unchallenged. The Overton Window does, and needs to, move in more than just one way.
These aren’t fantasies
I’m sorry, but claiming that restricting the ability of corporations to engage in the political process will inevitably usher in a regime of totalitarian censorship *is* a paranoid fantasy.
Likewise, speculating about whether folks who want to limit the rights of corporations are secretly plotting the death or enslavement of their political opponents, likewise.
Crazy, paranoid fantasy.
Nothing personal intended toward either Brett or McK in that, either, both are people for whom I have a high regard, and with whom I enjoy discussing this stuff.
But there’s no reply to make to stuff like that other than to scratch your head and shrug.
We all say crazy stuff now and then. God knows I do. So, no animus towards either of those guys, from me.
But I also don’t have to pretend that it’s something that deserves serious rebuttal.
“Who knows what reaction there would have been around here and among the left in general had the administration actually been able to do the crap they wanted to? ”
We don’t have to guess. The ACLU was roundly criticized for opposing the government on Citizens United.
“Seemingly, because the SCOTUS overruled the executive branch? Because checks and balances worked (the over-broadness of the ruling not withstanding)?”
But in a discussion about implementing similar rules in the next iteration, isn’t highly relevant to know how the government acted in the recent past? If we were discussing torture and the US government, talking about ticking time bomb scenarios would be clearly ignoring the reality of what the government does with the power to torture. It’s recent exercise of that power showed that it did so when there was not a time crunch, when it was not sure that the person had relevant information, and when it was not even sure that the person being tortured was a member of the terrorist organization being investigated. That is highly relevant because it means that talk about narrowly targeted ticking time bomb situations are distractions from the way the government actually works.
The same is true in the free speech area. Talking about narrowly targeted laws that mysteriously hamper the speech of corporations while leaving legitimate political discourse unprosecuted is contrary to the history of such rules under the relatively civil rights aware Obama administration, much less the Bush administration.
I’m not being paranoid when I note that the Obama administration and Elana Kagan (current Supreme Court Justice) attempted to punish people for creating a political documentary which had non-slanderous characterizations of Clinton that she didn’t like.
If I can’t trust Obama’s DOJ not to abuse this power, why should I trust any one else’s DOJ not to abuse the power?
Seb: I’m not being paranoid when I note that the Obama administration and Elana Kagan (current Supreme Court Justice) attempted to punish people for creating a political documentary which had non-slanderous characterizations of Clinton that she didn’t like.
I thought they were attempting to punish the 501(c)(3) non-profit entitled “Citizens United,” not people.
Also, let’s not impute Kagan’s client’s views to the good Justice Kagan.
Further, from the second paragraph of J. Kennedy’s opinion: The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.
So what is left of NAACP v. Alabama then?
If I can’t trust Obama’s DOJ not to abuse this power, why should I trust any one else’s DOJ not to abuse the power?
You shouldn’t, just as you shouldn’t trust the DOJ not to abuse any power it has. But you do have to allow them power none the less, because they can’t protect us in legitimate ways without some sort of power. I’m not suggesting that laws be written without caution or that the courts shouldn’t be able to overrule what the other branches do, based on the law as written.
The government has checks and balances, but the private sector does not – except for the market and the government. I don’t expect the market to prevent the undue influence of money on politics – quite the opposite, in fact – which leaves us with the imperfect check provided by the imperfect government in our imperfect world.
And I’d be curious to know what you think about what I wrote earlier on constitutional freedom of speech, practical concerns aside, Sebastian, since IANAL but YAAL.
Looking at the Delaware corporate law, a corporation’s charter can be repealed upon failure to pay the annual franchise tax (to simplify a bit), and if so “the charter of the corporation shall be void, and all powers conferred by law upon the corporation are declared inoperative.”
IOW, if the corporation fails to pay the tax, it ceases to exist (absent cure). Thus, e.g., Exxon could vanish for not paying a very nominal sum (for it) to the State of Delaware (or wherever it’s registered) and the similar provision that applies to human beings is…?
My opinion here is shaped by the following:
1. It is crucial to distinguish between membership type non-profit organizations and for-profit corporations. The former generally are the types of “voluntary associations” where the free speech right of the individual members is simply aggregated. Fine. I think there is widespread agreement on this, by the way.
2. For-profit corporations are entirely different, despite the Court”s opportunistic lumping of the two types together. It is just unreasonable to assume that the shareholders are largely in agreement on political questions, especially elections.
3. For-profit corporations enjoy legal privileges that make it possible for them to assemble massive resources. That’s not just a consequence, it’s really a purpose of those protections. This is important. To the very large extent that those resources give large corporations power, that power is a grant by government. The right to form immortal limited liability business organizations is not in the Constitution.
4. Corporate power is controlled by a handful of individuals who are, in fact, not much accountable to their shareholders for their use of it.
So I think that it is quite legitimate to restrict corporate speech (by for-profit corps), because what we blithely call “corporate speech” is in fact the use of other people’s money by executives and directors to promote their own preferred candidates. This is anything but a “voluntary association.”
Now, I can fix this. Let’s have a law that says:
1. Every year public corporations must announce to their shareholders their planned budget for campaign activity. This should also include a description of candidates they are likely to support and, to serve as examples, those they have supported in the past. No BS like “we support candidates who like liberty and free markets, etc.” Names. Specificity.
2. The above information will be included in the proxy statement that corporations are already required to send to shareholders. No big cost there.
3. On the proxy card that shareholders already send back they are asked to authorize the per-share budgeted amount for the shares they hold. Shareholders who do not authorize it get the per share amount rebated to them and the political budget is accordingly reduced.
4. Institutional holders, such as mutual funds, must request rebates.
What this does is make the corporation’s “speech” truly that of individuals voluntarily aggregating their money. Notice that this is actually not difficult to implement, since it can easily piggyback on proxy procedures already in place.
How about it?
In 1996 John Boehner, currently Speaker of the House and second in line to be POTUS, walked the floor of the House handing out checks to buy votes in favor of tobacco subsidies.
The tobacco industry prevailed.
So yeah, it sucks that DOJ was picking on CU. You know what? They didn’t prevail.
Today, each and every day, 24/7, the federal government of the US, and in particular the Congress, is openly and explicitly for sale.
McK will tell me “that’s not speech, it’s lobbying”. Lobbying is protected under the 1st Amendment, and corporations enjoy that protection.
I am, frankly, NOT THAT WORRIED about the federal government shutting off all speech that they disagree with. First of all, there is no imaginable speech that “the federal government” is uniformly either for or against. Second, they don’t have the means to do so, there are too many channels available. Third, the law has thus far provided adequate in preventing them from prevailing in whatever effort they make to do that.
So claims of totalitarian censorship are, frankly, hypothetical. That situation does not exist, the apparatus to make it exist does not exist, and the will to make it happen in anything like a thorough enough manner to be worth the candle does not exist.
It is not in evidence. CU notwithstanding.
What IS IN EVIDENCE, now, today, each and every day, is the profound and thorough-going corruption of our government by private wealth.
It is not only in evidence, it is banal in its ubiquity.
Your concerns are valid but are not the reality. People speak all the time, each and every day, all day, about everything, from every imaginable point of view, and I can’t imagine what the DOJ could possibly do to turn that off.
My concerns are our current reality. Not hypothetical, not what-if, but present day, tangible reality.
Checks on the House floor, and the man is Speaker of the House. That’s the reality.
At the risk of drifting back to the original issue,
It appears that, whatever its merits, the blackout effort has been a success. At least, the report I saw not only had SOPA and PIPA moved from a majority of those in Congtress taking a position being in favor to a majority being opposed. The total number of supporters had dropped in absolute terms. Including a couple of so-sponsors removing their names and moving to opposition.
It appears that companies can substantially influence politicians without ever giving them (or their surrogates) any money.
I’m not being paranoid when I note that the Obama administration and Elana Kagan (current Supreme Court Justice) attempted to punish people for creating a political documentary which had non-slanderous characterizations of Clinton that she didn’t like.
I just putting this up a second time rather than try to rebut charges of paranoia. In further rebuttal, Seb has detailed specific and extensive powers to regulate and punish speech claimed by this administration. Not hypothetical–it has happened, and they were stiff-armed by that much despised conservative majority on the SCt. It isn’t hypothetical when an administration tries something and doesn’t get away with it. That is called a ‘failed attempt.’
I’d like to see an on-point response to Seb’s documented, and clearly anti-liberty, positions advanced by the Obama administration before the SCt.
I like internet companies, I like getting access to movies, books and music free. I don’t care that this whole issue is about who gets paid for it, not whether it is available. I don’t want to have to pay.
So Google using its billions of dollars worth of Klout to make sure I can steal IP from movie studios is certainly good speech/money that should be protected.
Or maybe I am just great at rationalization.
Third, the law has thus far provided adequate in preventing them from prevailing in whatever effort they make to do that.
I’m headed home for an early start on the weekend, but I wanted to note this one: it is of minimal consolation that the law you are advocating changing was adequate to prevent an even graver injustice. Moreover, ‘adequate’ is an overstatement– it was barely adequate, a 5-4 decision.
HTD, “I’m not suggesting that laws be written without caution or that the courts shouldn’t be able to overrule what the other branches do, based on the law as written.”
But on what basis can they overrule it if we remove associative speech rights? Russell has suggested again and again that corporations don’t/shouldn’t have Constitutional rights. A movie will rarely be made by just one person. It will often be made by groups of people.
Byomtov: “For-profit corporations are entirely different, despite the Court”s opportunistic lumping of the two types together.”
This is a key area of disagreement I have in this discussion. McCain/Feingold didn’t make the distinction. And that was wholly intentional. The DOJ didn’t make the distinction. And that was wholly intentional. Throughout the case, the courts gave multiple opportunities for the DOJ and Kagan to make that distinction. They didn’t. That was wholly intentional. Campaign finance laws that don’t muzzle independent associative groups aren’t the kind of laws that the real live politicians want.
I’m perfectly ok with disclosure requirements for corporate speech however, and your proposal looks like a fine start (I’d apply it to unions too btw).
Russell “So yeah, it sucks that DOJ was picking on CU. You know what? They didn’t prevail.”
But the reason they didn’t prevail is because of a legal doctrine that you want to get rid of.
HTD I’m not sure if these are the thoughts you wanted me to respond to, but if it isn’t, let me know.
“Here’s my question: Is anyone’s (corporate or human) right to free speech unduly infringed if limitations on the resources that can be used to make that speech are such that the ability of anyone to speak is no less than what virtually everyone else would have, absent those limitations, given the distribution of resources among the populace?”
I’m not sure I understand what you are saying. But let me see if I can get at it with more concrete illustrations. You seem to be saying that the government should be able to restrict corporations to creating speech/using press to that level available to the general populace.
So it *sounds like* you are saying that the government should be able to restrict for example the political content of Hollywood movies (or indie films beyond the output of single people). That sounds like it can’t be right but it is what I’m getting from your comment. It sounds like you are saying that the political commentary of the NYT could be banned unless the average person had access to the same reach. That sounds like it just can’t be right, but that looks like what you are saying.
I’m really trying not to strawman. But those two examples seem to be ok under what you’re proposing.
It isn’t hypothetical when an administration tries something and doesn’t get away with it. That is called a ‘failed attempt
What is hypothetical is the state determining what can and can’t be said.
That does not exist.
How do I know? Because I’m saying whatever the hell I want. So are you. So is pretty much anybody with an interest in doing so.
The absolute worst case under discussion here was the showing of one movie, on one cable channel, during a period of time when a crap law said it was not allowed.
How far is that from absolute state censorship? How long is your ruler?
And as it turns out that case did not hold.
Here is my on-point commentary about the powers that the Obama administration claimed:
It was a boneheaded argument. They were wrong. They lost.
Am I being dismissive of everyone’s concerns about the right of people to speak?
No, I am not. I am trying to discuss those concerns in light of what the reality is.
You appear to be arguing that, absent corporations having Constitutional rights, attempts like that of DOJ to suppress speech they don’t like would somehow inevitably succeed.
I don’t find that particularly credible.
Seb says yes, but that’s the doctrine that was used to thwart the power grab.
That’s because that is the doctrine we have. We need a better one.
CU should have prevailed for the simple and obvious reason that *people* were making their views known on a topic of public interest.
The corporate rights thing is not essential to that argument, and is not essential to preserving the rights of *people* to speak.
But on what basis can they overrule it if we remove associative speech rights?
Show of hands – who wants to remove associative speech rights?
Look, here are what seem to be the arguments in favor of preserving Constitutional rights for corporations, and here are my replies.
Argument: People organize under the corporate form to engage in legitimate political speech.
Me: Fine, continue to do so. Carry on.
Argument: But then we have to distinguish between corporations that are people organizing to engage in protected speech, and corps organized for other purposes.
Me: We do that now.
Argument: But there may be weird fuzzy areas where we have to distinguish between speech that is political in nature and other kinds of speech that might not deserve the same level of protection.
Me: We do that now.
Argument: Most of the entities that own or manage the material means by which speech is expressed are corporations. How will the rights be protected if they don’t hold them.
Me: The *exact* analogy to this currently exists with communications protected by the 4th Amendment, but we manage to protect them in that context based on the rights being held by the *people* who are doing the communicating, not the corporation that owns the channel.
The burden of proof is on you to explain why speech is different.
Argument: Corporations need a subset of the rights available to natural persons in order to carry out the purposes for which they are created.
Me: Fine. Grant them those privileges by law.
Have I missed anything?
I don’t mean to be a smart-@ss, we just seem to go around and around the same points every time this comes up.
I could be missing something crucial, but as far as I can tell granting corporations civil rights under the Constitution is completely unnecessary to guaranteeing those rights to humans.
And granting them those rights is bolloxing our public life to an amazing degree.
Enough already. Cut the freaking cord. Do so responsibly, and prudently, and with due regard for the pragmatic, tangible effects.
But cut the damned cord.
Glad to hear you like libraries. Support your local library!
Or maybe you are just not great at network technology. <appeal_to_authority>I’ve got a Master’s in CS, with a focus on network security. The bills in question were monstrously awful. Not ’cause “oh noes I can’t has free stuff” but ’cause “oh noes they breaked Teh Interwebs”.</appeal_to_authority>
Sebastian,
So what? I make it, as do many others here who disagree with you.
I don’t see a lot of people on your side making that distinction either. Maybe they did during the case, or maybe not. I don’t know. You suggest that those who favor restricting corporate speech really want to shut down membership associations. I suggest that many of those who speak nobly of the rights of citizens to form associations really want to be able to tap into vast, anonymous, wells of corporate cash.
How does this matter to our discussion?
Let’s cut to the chase. Why can’t we just sell our votes to the highest bidder?
You know, we have, as a nation, expended a great deal of political energy trying to deal with corrupt political machines, corrupt government employees, corrupt unions……but corrupt corporations, not so much lately.
So I’ll offer a deal. Conservatives can have their unlimited corporate personhood and its money=speech paradigm. All I want is the repeal of Taft-Hartley. Because unlimited money is setting the foundation for a civil war, the center will not hold, and the unintended consequences we’ll suffer as a result will far exceed those of the ferved imaginations we see here.
“Have I missed anything?”
Yes. You miss the part where anything is different if we hold all of your assumptions true. If we hold them all true, nothing changes at all. And I know you aren’t satisfied with the status quo, so I don’t understand what you think you are getting out of the change you want to make.
“Or maybe you are just not great at network technology.I’ve got a Master’s in CS, with a focus on network security. The bills in question were monstrously awful. Not ’cause “oh noes I can’t has free stuff” but ’cause “oh noes they breaked Teh Interwebs”. ”
I have a BS in CS and have run technology/internet BUSINESSES for 20 years and this is utter crap.
It is all about free stuff for the millions of people that protested outside of the few companies who make their living providing free stuff.
And a library is licensed to loan books, that have to be returned or you get charged full price, and the library buys at least some book. There are lots of fine and potentially profitable for all business models that follow that example. Neither SOPA or PIPA (or sopapilla) prevent that.
The technical challenges are real, but the free stuff people just kill it because they want to get and use free stuff to make money. And it doesn’t break the interwebs.
IMHO, some version of SOPA is necessary even if it doesn’t accomplish much. What it might accomplish is pointing out to millions of people that they are stealing just as certainly as if they went next door and stole their neighbors car. Just because a massive criminal enterprise is difficult to stop doesn’t mean we should all think it is ok.
What is completely unworkable is demanding that content creators have to monitor the internet and find every individual instance of theft and request it to be taken down with no other consequences to the provider. That just ensures the criminal enterprise is protected.
CCDG, it is quite possible to agree that something needs to be done regarding Internet piracy, and still think that SOPA was a horribly written law. One which would result in lots of unintended consequences. And one which had enormous potential for abuse as written.
you are correct wj, IMHO the primary opponents of the bill didn’t care about how poorly the bill was written. It had already been changed and could have been improved, they just cared about killing any attempt.
The people who wrote the bill (movie studios etc.) certainly set their cause back two years by overreaching, but aside from the lack of at least minimal due process it contained mostly things you would have to do to have any impact.
People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can’t possibly be effective.
“you are correct wj, IMHO the primary opponents of the bill didn’t care about how poorly the bill was written. It had already been changed and could have been improved, they just cared about killing any attempt.”
Yes, and I’m ok with that. The government showed that it was making a hash out of the whole project and that every time it approaches the subject it makes a hash out of it. Rather than waste lots of time making a hash out of it again, we should approach things differently.
“People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can’t possibly be effective.”
And exactly like RICO I’d prefer that we stop trying that approach. If you can’t save the village without destroying it, maybe you’re doing the wrong thing.
I’m really trying not to strawman. But those two examples seem to be ok under what you’re proposing.
I understand completely. I wrote that very generically, without providing context. I was writing within the context of political campaigning, under the assumption that there was a compelling interest for the government to limit that specific type of speech, as opposed to just any speech at all. There is no reason to prevent people from making movies.
In the case of the NYT, and I’ve brought this up before, freedom of the press is something unto itself AFAICT, since it is listed as a right in addition to freedom of speech, not as some sort of exposition or clarification of what freedom of speech means. (What about that, anyway? No one seems to address that point. People on the pro-corporate-personhood side keep bringing up newpapers and such as though it is freedom of speech they rely on rather than freedom of the press. I don’t get it. But, again, IANAL.)
Seb,
I would love to hear one alternative “approach” that doesn’t simply equate to capitulation to the most blatant criminal conspiracy in the history of mankind.
You miss the part where anything is different if we hold all of your assumptions true. If we hold them all true, nothing changes at all.
Maybe it’s because it’s late, but unfortunately I don’t understand your point here.
Can you possibly expand on this?
Thanks Sebastian.
Also, just wanted to say that CCDG has more than a point regarding SOPA.
It is IMO true that it’s not a very good law, and it’s IMO true that the folks pushing it are basically trying to use the law to avoid having to come up with better business models.
But content piracy is a real thing, and it takes money out of real people’s pockets.
The people who wrote the bill (movie studios etc.) certainly set their cause back two years by overreaching, but aside from the lack of at least minimal due process it contained mostly things you would have to do to have any impact.
People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can’t possibly be effective.
Over-reaching is an understatement. The utter lack of due process in Sopapilla would have wreaked havoc on the Internet. It wasn’t so much that it could be abused, but that it was designed to be abused. Heavily. And the people who wrote the bill (MPAA, RIAA, etc.) have never shown the least trace of restraint or responsibility in this regard, nor any concern for collateral damage, nor even much concern for lawfulness when it’s them who’s acting. Sopapilla is far more ripe for abuse than RICO, not insignificantly in that the degree that it empowered copyright holders to act on their own.
SOPA/PIPA would not have eliminated online piracy by any stretch. They’d have slightly curbed it, and as a side (?) effect had massive negative impact on many completely legitimate websites, and significantly raised the cost of doing business online. They are ill-conceived from a technical standpoint, and pretty much awful for anyone who isn’t an aggrieved copyright holder with a “damn them all, I will get my pound of flesh” attitude. You can argue this level of intrusiveness and potential for abuse is necessary to curtail online piracy, but even if it is there needs to be due process and accountability that SOPA/PIPA very pointedly omitted. They’re awful bills. They’d not succeed in their stated aims, but they would do severe damage to the Internet.
Also, and more succinctly… what Russell said. As usual. <sigh>
SOPA etc. has direct precedents in an age long gone (i.e. when I was a kid). I remember attempts to either ban the selling of blanc audio/video tapes (and later blanc CDs) or to extract a fee for each to be paid to the entertainment industry. Similar with photocopying machines. The industry claimed that about the only reason for audio/video recorders and photocopiers to exist was to enable copyright violations and theft and therefore those things should not be allowed in the hands of commoners or at least (that was the compromise position) heavily fee-ed (even if used for other purposes). Somehow both book publishers and the recording industry survived the failure of these attempts.
Caveat: I am well aware that there is such a high density of copyshops in the vicinity of universities because students will photocopy expensive textbooks* and in university libraries because everyone and his genetically engineered dog copy scientific journal articles.
The problem then and now is that the attempts to control the abuse of technology are so far in excess of any reasonable approach that they would in essence kill legitimate use while at the same time usually totally failing in achieving their goals (to a large degree because the lawmakers lack any technical understanding).
The most recent and most blatant attempt over here was to extend the definition of ‘performance’ of copyrighted materials to humming and whistling the tune in private (with no intended audience). The GEMA (the performance fee collecting agency) went to court over this but failed on all accounts. The judges would have none of it. Not that they were copyright pirates themselves (although I assume they were as law students 😉 ) but this simply was total overreach and would have required Orwellian measures to enforce anyway. The GEMA has a well-earned bad rep for going after the weakest targets. Like kindergarten (‘you did not buy a copy of this songbook for each kid but used some mechanical or digital copies on at least one occasion. Please send us a million bucks or we will sue you to death’). Btw, If you happen to be a Nazi, you may run into double trouble since some songs are both forbidden and still copyrighted (yes, those songs that one can hear in all those old war movies. The legal successors of Horst Wessel etc. still have the copyright even if singing the song in public is illegal).
*I have copied and will copy books that I cannot acquire legally with reasonable effort. In some cases I have even tried contacting the publisher first to see, if they have either some copies left or plan to reprint in the forseeable future. I also downloaded some music where I was unable to get my hands on the CD in question. Those are strictly spoken copyright violations but with no financial damage to anyone (but profit for the copyshop owners). Since this is not a case of ‘can’t afford’ but of ‘can’t acquire’ I see no moral problem there. In some cases I have even replaced my copy with the original when it became available again somehow many years later.
“But content piracy is a real thing, and it takes money out of real people’s pockets.”
On the other hand, copyright is a real thing (an artificially created monopoly), and it takes money out of real people’s pockets (the rest of us).
But if somebody pays me enough, I’ll vote for it.
“What it might accomplish is pointing out to millions of people that they are stealing just as certainly as if they went next door and stole their neighbors car.”
Sadly, no. Those two things are different in nontrivial and legally significant ways that are obvious to anyone not trying to polemicize.
If we hold them all true, nothing changes at all
OK, it’s not 1:30 in the AM, I think I follow you now.
What would be different, even if all of my assumptions were factored in, would be that we could pass a law saying that for-profit corporations are not allowed to participate in the political process, whether through financial contributions, contributions in kind, use of resources like corporate aircraft, etc etc etc.
If we wanted to, we could even pass laws saying whether, and to what degree, corporate funds could be employed in lobbying, and/or people acting as agents of corporations could participate in lobbying.
We would not *have to* do any of those things. But we *could* do them, if we thought they were needed.
That’s what would be different.
Who knows, maybe corporations would enjoy not having to budget millions and millions of dollars for political graft every year. It could be a win/win.
But basically that is what would be different.
bobbyp wrote:
“Because unlimited money is setting the foundation for a civil war, the center will not hold, and the unintended consequences we’ll suffer as a result will far exceed those of the ferved imaginations we see here.”
I think this is about right, he concluded fervedly.
I was reminded the other day that Citizens United Not Timid was originally founded by Gingrich hitman and professional liar David Bossie back in HillaryCare days, and that led me to wondering if Thomas Jefferson held that “watering”, as in “the tree of liberty must be watered from time to time with the blood of patriots” was a form of free speech, with equal currency to the Crown’s money, protected by the First Amendment.
As to SOPA/SIPA, I agree that the law is poorly written and represents ridiculous overreach, but I wonder why Megawhatchamallacit, the service shut down by the Feds the other day can’t have a business model along the lines of Apple, which has royalty payments built in to its distribution model, if I’m understanding how these things work, which I’m probably not.
I, natch, am an American, and want to collect every cent and more of what’s owed to me should my up-til-now-nonexistent-and-may-they-never-see-the-light-of-day creations, God forbid, and simultaneously I want all of yous guy’s creations downloaded to me gratis, probably in the middle of the night, to save time.
After all, keep the government out of my free Medicare, and whatever else the King of England does, I’ll start throwing tea overboard if I have to in any way pay a tax, fee, or royalty to support the defense required to transport that tea across oceans to my lips.
I see no obvious solution to these problems in a culture that features, to mixed reviews, wealthy celebrities shoplifting high-end cosmetics and apparel.
By mixed reviews, I refer to our collective public outrage at said celebrities and say, investment bankers, when they get caught, but our private, closeted why-didn’t-I-think-of-that and puckish admiration for the clever chutzpah of the scoundrels.
Who’s “we” kemosabe, you might well arsk?
I don’t know.
Can we get back to corruption for a minute?
It seems to me a basic premise of democracy that speech is the very opposite of corruption. By “speech”, I mean what I think the framers of the Constitution meant: loud, public speech; published or broadcast speech; speech that can be heard by innocent bystanders as well as the interlocutors.
Corruption involves a different kind of speech — hushed, conspiratorial speech. “Congressman, vote for this earmark (or regulation, or tax loophole) and I will give you a bag of cash,” is certainly speech, but I cannot imagine the speaker seeking 1st-Amendment protection for it. Doesn’t matter whether the speaker is a person or a “person”.
In the present context, namely Wikipedia and Google and others publicly and in their own names urging opposition to SOPA, the distinction between speech and corruption seems worth emphasizing.
I don’t remember whether it was Jefferson, Madison, or Hamilton who made the point that conflict between “special” interests is a pretty good way to serve the “general” interest. The MPAA is a special interest; Google is a special interest; I’m delighted to see them fighting with each other. That I can “see them” means the fight is public, open, UNcorrupt. That they are trying to persuade ME with their expensive speech, rather than spending the money to bribe Congressmen, is a good thing.
So my answer to Seb’s headline question (“Is This Corruption?”) is a definite no.
–TP
Well count, the Supreme Court has ruled that the our secret delight in the scoundrels is not in vain.
TP, I don’t really disagree with your conclusion, although I fail to see where the Super PAC’s, etc are any less publicly obvious special interests. I imagine, note that makes it my opinion, that few Americans are fooled as to which moneyed interest is behind them.
I would also guess that Google doesn’t apply it’s great resources to fight other special interests on behalf of me. It’s no less disingenuous for them to frame the discussion in terms of protecting freedom of the internet than oil companies framing their arguments as being for the best interest of job creation. Both may have some truth but neither is their motivation.
I will add that if the oil companies start supporting candidates based on their views on internet freedom it could become confusing.
Well (oil well), oil companies do employ goons (some of them freelancing public officials) to suppress the freedom of the press (creating freedom form the press) instead. The constitution is silent on this kind of stuff since it only forbids government to do it.
BP did it in the Golf after Deepwater Horizon. They even hired actual policemen to keep reporters away from the clean-up so it looked official while it actually was not. Big companies in general love to go after critics and many of those are on the internet these days. And alleging abuse of copyrighted material is a common tool to silence the critics, if it is impossible/impractical/bad PR to do so based on substance.
I maintain hope that the satire of the next President of the United States of South Carolina and SuperPac Chairman will at least forestall the next American Civil War …
http://digbysblog.blogspot.com/2012/01/stephen-on-trail.html
…. but I doubt it.
So, on the money=speech and buying politicians tip, is anyone else concerned that a single $5 million donation by a single rich individual turned someone from an also-ran into the Republican front runner in just a week? Is that how we want things to work in this country?
“but I wonder why Megawhatchamallacit, the service shut down by the Feds the other day can’t have a business model along the lines of Apple, which has royalty payments built in to its distribution model, if I’m understanding how these things work, which I’m probably not.”
I understand their business model to be roughly the same as that of your neighborhood u-store; They provide a metaphorical ‘location’ where data can be kept and retrieved. Like a u-store, they don’t look at the data, to determine whether it’s somebody’s excess furniture, or equipment for a meth lab; They just provide the storage capacity and the ability to get at it if you’ve got the appropriate codes.
A lousy level of service is available to people who don’t pay, a superior level of service to people who do pay, but Megaupload and similar outfits have neither knowledge nor interest in what you’ve stored there.
Some people use this to distribute pirated data, like movies. (Quite possibly most people. I really don’t know.) Others use it to distribute large files, like, for instance, video of weddings, or software packages. (Ever try to email a 50mb file to somebody? Several somebodies? You run into these things called “attachment limits”.)
In no case is Megaupload asserting ownership of the data, quite the contrary. They haven’t the slightest clue what you’ve got stored with them. So how are they supposed to set up this system of royalty payments.
Really, it is exactly as though the feds found a meth lab in one room of the neighborhood u-store facility, declared the place to be a criminal enterprise, and burned it to the ground, old sofas and classic cars included, without giving anybody a chance to retrieve their property. Rather reminds me of the way the RIAA took down the entire MP3.com site, deleting a massive amount of non-infringing content. (Perhaps because a massive amount of non-infringing content consisted of indy bands that weren’t giving the RIAA a cut.)
Due process looks nothing like this.
“So, on the money=speech and buying politicians tip, is anyone else concerned that a single $5 million donation by a single rich individual turned someone from an also-ran into the Republican front runner in just a week? Is that how we want things to work in this country?”
Bothers me not at all.
Did it escape your attention that said “Republican front runner” just got creamed in South Carolina by somebody who spent a fraction of his millions?
There’s this fantasy on the part of campaign ‘reformers’ that money dictates the outcome of elections, that any schmuck can win if he’s got enough money behind him. The truth is somewhat closer to the exact opposite: That LACK of money frequently dictates the outcome of elections, that the finest candidate alive can’t win if he doesn’t have enough money to be heard. But that, once the candidates are spending enough to be heard, extra exposure just gives the voters more opportunity to determine that you ARE a schmuck.
The media are particularly fond of being outraged over spending, because absent spending by other people, the only thing that’s going to be heard is, ta da, what the media have to say. They want the candidates short on money, because then they can be kingmakers.
I think yesterday’s primary demonstrated pretty conclusively just how little Romney’s millions could buy him. So they bother me not at all.
Phil can correct me, Brett, but I think you have “that said ‘Republican front runner'” confused with the other guy. I took Phil to mean that a single $5M contribution from one casino mogul turned Gingrich into a “front runner” practically overnight.
Actually, of course, what turned Newt into South Carolina’s hearthrob was the spinelessness of the would-be “kingmakers” like Juan Williams and John King, to name but a few. Newt snarls at them, and they wilt like graveside flowers.
To the extent that the $5M from Newt’s billionaire backer had an effect on the vote, it was for one of these two reasons:
1) The money bought TV ads promulgating lies, which SC voters swallowed because people in general have an amazing propensity to be persuaded by what they see on television; or
2) The money bought TV ads promulgating truths, which SC voters would not otherwise have known because people in general spend so much time watching television that they don’t have the leisure to “consume” information from other channels like newspapers, political meetings, barroom bull sessions, back fence conversations, etc.
Either way, the thing I always come back to is that whether advertising contains Truth or Lies; whether it’s paid for by big donors or small ones; whether it’s “co-ordinated” with the candidate’s campaign or not; if it persuades ordinary people then those ordinary people are, well, persuaded. Money would be a smaller issue in politics if the average American were less … persuadable … than he is.
You should keep in mind, BTW, that professional politicians like Newt and Mitt and Ron Paul and Barack Obama (not to mention their campaign staffers) all act as if they truly believe that money does influence elections. It takes an amateur politician like you or me to think up rationalizations for why it doesn’t, really, not always, so what’s the big whoop?
–TP
I had an epiphany. You want to create a War On Online Piracy à la the War On Drugs. You freely admit that the measures you propose probably won’t do much to actually curb the criminal behavior. You freely admit that they would be ripe for abuse, would lack due process protections, etc. You don’t care though, because the important thing is that we don’t appear to be tolerating this behavior, that we Send A Message with ever-harsher laws, and civil-rights and economic collateral damage be damned. Intent of legislation > effect of legislation. Because while the last round of rights-eroding laws obviously didn’t send enough of a message (to say nothing of, ya know, actually rolling back online piracy), this time – this time – we’ll show those impudent little hooligans what’s what!
Ouch.
truth be told envy, I would like to replace the war on drugs with a war on online piracy. At least most people now believe that abusing drugs is a bad thing, not necessarily true when I was 16. It would be good if we limited the negative effects to the time it takes for people to think it is bad.
Tony P., you are so right. Money = speech, but speech = bs if, in fact, speech is bs. When speech makes sense, we should be persuaded by it. There is speech out there that makes sense.
Brett, thanks for the explanation.
Yes, I can understand that Megawe’reshockedIsayshockedwehadnoidea may have trouble developing a business model enabling royalty payments.
If you were a songwriter, Brett, and for all I know you are both Boyce AND Hart, would you consider the songs you write (and own) your property?
By the way, may I cover the song on a recording without consulting you?
Would you not, for the period in which copyright is in force, expect …. demand payment for use of your property?
The government, on behalf of the people, like all of us, is (are) grappling with a way to deal with this dilemma.
I suppose they could look to established search warrant law. Say I steal an original Bellmore painting and hide it in a locker in Grand Central Station. If I’m not mistaken, the government has figured out how to procure that property and evidence without blowing up Grand Central.
How can this precedent be applied to data (unauthorized digital images of Bellmore’s shocking, ground-breaking work) uploaded to the cloud?
All of this might be complicated by the fact that Megaheyhecameinhereleftthepackageandthendisappearedwhyareyoubreakingmyballs may have some emails detailing their knowledge of exactly what their digital cloud lockers were storing, in some cases.
Now, if there are deeper currents at work, say you’re embedding meth or the formula for creating meth in your paintings or digital images, I might go along with sustaining some damage to Grand Central beyond blowing the lock off one locker.
Don’t worry, other drugs found in adjoining lockers will be ignored, since they would be decriminalized; I just have a problem with meth production.
This whole thing is a mess.
It seems to me Louis C.K. and Trent Reznor are showing the way through, but it will take Megamyhandsareclean and the government time to catch up.
Countme-In, if I wasn’t clear, I have used Megaupload. They do not ask about the content you upload, if you encrypt it they have no way of knowing the content you have uploaded. They are in EXACTLY the same position as a u-store facility: Providing a service for storing they know not what, knowing that there are infringing uses, and non-infringing uses. Heck, the extent they differ, they have less knowledge of their customers and their doings, not more.
So long as we have copyright, I have no problem with reasonable enforcement mechanisms. I do have a problem with burning down the entire facility if you find one bay with a stolen car in it. Shutting down Megaupload does not merely effect the people running it. It effects the customers, and THEY have rights, too, including the right to be presumed innocent absent individualized evidence of guilt, of having THEIR IP rights respected. Suppose the only copy of your wedding photos had been stored there, for easy access to your relatives. Foolish, yes, but you’d still be entitled to be pissed off right now.
Let’s be clear about this: Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others. It deserves less respect than property rights in physical objects, not more. And nobody would consider the physical equivalent of what was done with Megaupload to be even remotely reasonable.
And finally, I note that the 1st Amendment, adopted to alter the Constitution, postdates the copyright clause. That means, in my view, that any time the two conflict, the 1st amendment must prevail. Because that’s what amendments do, they prevail over the status quo ante.
Silly Brett! That reasoning is so last week. We now live in the brave new world of Golan v. Holder, where the Supremes swept aside such backward thinking with the astute observation that, honestly, ensuring that copyright holders profit off their existing works is sufficient to satisfy the Copyright Clause’s “Progress of Science” aims, as they can then use the profits from existing copyrights to finance the creation of new ones, if they so choose. Or not, and just keep disseminating their old ones. As we all know, dissemination is just as good for progress as creation.
Sheesh. Encourage the creation of works. How quaint.
“In no case is Megaupload asserting ownership of the data, quite the contrary. They haven’t the slightest clue what you’ve got stored with them. So how are they supposed to set up this system of royalty payments.”
I suggest you read the indictment, which is about to make you look very, very silly for saying this. The evidence suggests that not only did they know in a great many cases what was being sent across its network, they were deliberately allowing and facilitating it for properties they knew to be under copyright, and profiting off of it.
“Suppose the only copy of your wedding photos had been stored there, for easy access to your relatives. Foolish, yes, but you’d still be entitled to be pissed off right now.”
The phrase “the only copy” presupposes existence of an original that exists elsewhere.
“Let’s be clear about this: Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others”
This is a pretty funny stance for a libertarian. All the others I know believe one bedrock thing: That all people have the right to benefit from the fruits of their own labor without having it stolen from them. Apparently that’s no longer operative for creators of artistic works.
Just to bullet point it:
Wait, did you just imply that the First Amendment *negated the copyright clause*?
“This is a pretty funny stance for a libertarian.”
We’re not all Galambosians, you know. In fact, practically none of us are, he’s a running joke among us.
Megauploadvideo” was news to me. If they can prove counts 1 and 4, they’ve got a good case against them. 5 is like complaining that the phone company isn’t listening to your calls. 2 and 3 are iffy.
And none of it justifies the fact that the feds didn’t bother to distinguish infringing from non-infringing data before bringing the whole thing down. Customers of a u-store have rights, even if it turns out the owner himself was running a meth lab in one of the bays.
That means, in my view, that any time the two conflict, the 1st amendment must prevail.
OK, I am going to download Louis CK’s Beacon Theater show for $5. Then I’m going to set up a website where folks can download it for $2. Which I will, of course, put in my pocket.
Because, hey, free speech!
Louis will come find me and personally kick my @ss. As well he should.
And then his lawyers will have my site shut down in a new york minute. As well they should.
The purpose of copyright is to encourage people to do creative work, by making it possible for them to earn a living from that work.
The current copyright law is asinine, and is skewed toward letting folks who hold lucrative catalogs of IP to continue to milk the cash cow long after the creators are dead and gone.
But the solution to that problem is not to eliminate copyright. The solution is to reinstate sane copyright duration.
There aren’t many artists who really get that bent out of shape about individual people trading mp3s with each other. On the contrary, it’s helpful to the artist to get their name out.
People distributing thousands of copies of their work, for a fee, is a different story.
Copyright is how a lot of people make a living. Those people typically spend more time and effort than you would likely imagine producing that work, and they are entitled, both naturally and by law, to the fruit of their labor.
They should get paid.
Shorter me:
The copyright issue has bugger-all to do with free speech.
^
|
This
There’s a certain point, there, but if you have precious data (in the form of pictures, etc) that you want to preserve, uploading them to a file-sharing site without having a separate backup is probably not your best move.
Consequences: learn from them.
I really doubt the DoJ is going to sift through the various terabytes of files and decide on a case-by-case basis what to return to whom, so I’d guess that issue is a dead one.
I’d also say the u-store-it analogy isn’t such a good one, which isn’t to say that I have a better one in mind.
5 is like complaining that the phone company isn’t listening to your calls.
Under current law Megaupload had a legal obligation to identify and remove infringing material, and to perform takedowns when requested by rights holders. Your analogy is . . . inapposite.
“This is a pretty funny stance for a libertarian.”
We’re not all Galambosians, you know. In fact, practically none of us are, he’s a running joke among us.
This doesn’t answer the question. Do creators of artistic works have a right to the fruits of their labors, or not? If not, why not?
There’s a certain point, there, but if you have precious data (in the form of pictures, etc) that you want to preserve, uploading them to a file-sharing site without having a separate backup is probably not your best move.
Most people, including big corporations that should know better, are stunningly ignorant when it comes to backups. I have a really tough time faulting random people who didn’t realize that they should have stored their wedding photos or whatever somewhere besides Megaupload.
I really doubt the DoJ is going to sift through the various terabytes of files and decide on a case-by-case basis what to return to whom, so I’d guess that issue is a dead one.
There’s no need to do that. Just open up the site for downloads only for a few weeks with a giant flashing banner saying that all downloads will be monitored so you should only download stuff that is legitimately yours. People who need their wedding photos can get them and pirates will go elsewhere since it is not worth the extra risk of downloading from a site that is literally controlled by the Feds.
I’d also say the u-store-it analogy isn’t such a good one, which isn’t to say that I have a better one in mind.
I like it, but I’d modify it so that the U-store in question is also providing warehousing services to drug dealers on the side. Now, would the average person notice shifty guys moving stuff in and out? Maybe, if you knew what to look for and showed up at the right time. But I’m guessing a lot of people wouldn’t. I think it is really harder to show personal culpability for all or even many users of a site; users are just so clueless.
I don’t know too much about the MegaUpload stuff, but when I read this, the idea of him being a guy who just happens to be running a U-store site seems to be less likely.
In the dramatic arrest scene, dozens of New Zealand police backed by helicopters swarmed the barricaded mansion of Megaupload founder Kim Dotcom to arrest him on Friday.
The report also says that the police had to cut their way through electronic locks to reach to Dotcom, who was hiding there with his shotgun.
The police said two firearms and several luxury cars were removed from Dotcom’s mansion, that include a Rolls Royce, a pink Cadillac and a Mercedes.
Maybe if he had some atlatls, he would have been in better shape…
the idea of him being a guy who just happens to be running a U-store site seems to be less likely.
I don’t think the point of the U-store analogy is that the Megaupload owner is innocent; the point is what should non-infringing customers have expected. Should they have believed it was reasonable that the Feds would just show up and destroy EVERYTHING one day? I don’t think so. If you’re leaving stuff at a storage facility that is knowingly working with the mafia, I don’t think it is fair to expect that everyone will know that. Do you?
I think the Megaupload owners were clearly encouraging infringement while also trying to be responsive to DMCA takedown requests (I’ve seen comments in tech forums where people mentioned that they found MegaUpload quite responsive to takedowns). It seems like they were trying to walk a fine line between using infringement to make money while hewing close enough to the letter of the law to avoid prosecution.
I’m not saying that it’s their fault so much as I am saying that it’s not the job of the US government to make sure people get their data back.
Sometimes you do stupid things, and you wind up losing things you’d rather keep as a result.
Your idea of allowing downloads might have merit, but if law enforcement permits download terabytes of copyrighted material to a server where the local law enforcement is a great deal less pliable than that in NZ, then law enforcement has then failed to protect the owners of said material.
Can we get a ballpark percentage of the number of people who actually decided to store important things, not on some cloud storage site, but on a filesharing site, and then deleted all the originals from their local machines? Because I suspect we’re talking about a trivial number of people, here.
I’ve seen comments in tech forums where people mentioned that they found MegaUpload quite responsive to takedowns
From a very good piece on just what happened to MU:
I’m not saying that it’s their fault so much as I am saying that it’s not the job of the US government to make sure people get their data back.
Sometimes you do stupid things, and you wind up losing things you’d rather keep as a result.
So, it is their fault because they were stupid?
Also, “I am saying that it’s not the job of the US government to make sure people get their data back.” Why not? The government has taken property of innocent people and has no obligation to give it back? Is it okay because it’s just data and not, say, a car?
Your idea of allowing downloads might have merit, but if law enforcement permits download terabytes of copyrighted material to a server where the local law enforcement is a great deal less pliable than that in NZ, then law enforcement has then failed to protect the owners of said material.
I don’t see a problem here. All of the copyright material is already widely available on the internet. All of that material is already on servers in very jurisdiction you can imagine. Law enforcement is not responsible for ensuring that zero copyright infringement ever occurs.
I’m really struck by the balance of harms here: the feds decided to force some ordinary citizens to lose irreplacable data in order to take steps that will do ABSOLUTELY NOTHING to reduce the availability of copyright material on the internet. That just seems…really dumb.
By that logic, they should not pursue ANY knowing infringers, because it’s just data and almost surely exists somewhere else, too.
he feds decided to force some ordinary citizens to lose irreplacable data
Again, I’m going to need some ballpark numbers here.
Turb,
I am not so sure it is so dumb. I don’t quibble that it would be reasonable to put the non bad material back up with a notice of time availability, seems logical and technically trivial.
But shutting down sites does change behavior. Napster comes to mind. Without delving into the business models of Spotify and iTunes in detail I think the business models have incorporated some protection for IP in that area.
Brett: And finally, I note that the 1st Amendment, adopted to alter the Constitution, postdates the copyright clause. That means, in my view, that any time the two conflict, the 1st amendment must prevail. Because that’s what amendments do, they prevail over the status quo ante.
I’m not unsympathetic to this view, but my recollection is that SCOTUS generally considers the various “outs” under copyright law, such as fair use and parody, to clear up any constitutional first amendment concerns and also they seem to consider the first amendment (and maybe all of the Bill of Rights) to have been adopted at the same time as the Constitution (for reasons that escape me).
But shutting down sites does change behavior. Napster comes to mind.
I don’t see why you think Napster proves anything. I mean, during Napster’s heydey, it was extremely difficult to purchase high quality music online because record companies were not interested in making their catalogs available for sale. Even ‘trying before you buy’ was hard. Over time, Apple and other companies convinced the record labels to let them sell music on the internet and lots of money was made. So, after Napster was shutdown there was a huge rise in the number of people legally purchasing music online….was that because Napster was shutdown or was that because record companies started allowing people to sell their music online after Napster died?
Without delving into the business models of Spotify and iTunes in detail I think the business models have incorporated some protection for IP in that area.
I don’t see your point here; iTunes sells tons of non-DRM protected music. But that doesn’t matter because there always have been and always will be tons of local file sharing. People used to copy tapes back in the day; now they set up a server and share logins.
By that logic, they should not pursue ANY knowing infringers, because it’s just data and almost surely exists somewhere else, too.
No, that’s not true.
I’m not saying the Feds shouldn’t put sites like MegaUpload out of business. I’m just saying they should offer people a grace period to retrieve their own stuff before killing the site for good.
And I think sites like MegaUpload are different than, say, the Pirate Bay; MegaUpload marketed itself to lots of ordinary people and had an easy to use interface. That makes a difference.
Again, I’m going to need some ballpark numbers here.
Alas, I don’t have any. Given that the Feds have the data and aren’t talking, the best we could ever get would be anecdotes.
Like I said, the best we can do is anecdotes, but if you want anecdotes, you can find some here.
Well, at least one of those people (@pattysplayhouse) is a complete idiot: “They shut down #Megaupload. I had backup files of all my personal images on that site.” If they were backups, you still have the originals.
The rest just learned a valuable lesson, not only applicable in this situation but in any case in which you’re storing data non-locally: KEEP YOUR ORIGINAL FILES. Hard drives fail, servers fail, all kinds of things happen.
If you’re trusting some site you don’t have control of to keep your data safe forever, you are a great big dummy, whether its a site that happens to be involved in IP controversies or not.
For pete’s sake, one of those people even notes that she was sharing work projects. Unless she’s a freelancer and working from home, I bet her employer would take a dim view of storing everything offsite and not keeping local copies.
We’ve just learned a valuable lesson: Phil doesn’t care about collateral damage when the feds enforce the rights of huge corporations.
No, I’m not convinced that there was any significant collateral damage, and any that there was was a result from the damagees own stupidity. Aren’t you libertarians big fans of forcing stupid people to face the consequences of their own stupidity? Or does that only count for poor people? I mean, can you at least pretend to have a consistent political philosophy for two seconds?
You also haven’t answered my questions, Bellmore: Do the authors of creative works have a right to profit from their endeavors, or not? Is obtaining material you know to be under legitimate copyright without paying for it robbing them, or not? Simple one word answers will suffice.
(Keep in mind that outside the confines of copyright law there are contract issues dealing with exclusivity of distribution as well. I know you believe in contracts, so long as they don’t involve labor unions.)
Phil: Is obtaining material you know to be under legitimate copyright without paying for it robbing them, or not?
This kind of gets to the issue of the unique status of IP rights, particular in a digital age. If I steal an actual CD from you, clearly I’ve robbed you, but have I robbed the artist? However, if I make a copy of friend’s CD, I don’t think I’ve robbed them, but have I robbed the artist? Does it depend on whether I would have otherwise paid for the CD (or, e.g., iTunes download) if I couldn’t get it for “free”?
This last point is why I find all these estimates of the cost of piracy to be wildly overblown. Would some of the people downloading copyrighted content from Megaupload have purchased the same content were it not available on the site? Of course, but would all of them have so paid? Of course not, and yet AFAICT the MPAA/RIAA calculations of the “cost” of piracy assumes that everyone downloading would have instead purchased (though maybe not) and then multiplies that by the retail cost of the good.
Hard drives fail, servers fail, all kinds of things happen.
I agree: everyone who has data should think long and hard about a backup strategy. Ideally, they should keep multiple backups, including at least one off-site, and they should attempt regular test restores from a blank system.
But we need to be realistic. Most people aren’t going to do that. Heck, most companies that I’ve seen don’t even do that. I’ve watched smart people, including doctors and lawyers and developers screw this up. Repeatedly. Look, if everyone, even experts, regularly fails at this, can we really say that a bunch of non-experts who failed were “stupid”?
If you’re trusting some site you don’t have control of to keep your data safe forever, you are a great big dummy
This seems nuts. Unless you’re a company big enough to have multiple offices, you’re going to have to entrust your data to a site you don’t control in order to do offsite backup. I really can’t fault anyone for trusting say, Amazon S3 or Crashplan or Backblaze with their offsite backups.
Oh, don’t get me wrong, Ugh – I don’t agree for a moment with the RIAA/MPAA estimates of piracy costs. I think they’re so bad, they give “ludicrous” a bad name. I’m trying to pin Bellmore down on Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others, which appears to imply that, uniquely among all human beings, content creators do not deserve to be compensated for their labor.
…which appears to imply that, uniquely among all human beings, content creators do not deserve to be compensated for their labor.
Jumping in here, I’ve got to say that this seems like kind of an unfair question.
I mean, I don’t know about Brett, but, while I might say something like “‘content creators’ deserve to be compensated fairly for the labor which provides value to society“.
But that is very different from something like “‘content creators’ deserve to receive compensation through a particular artificial monopoly scheme.”[1]
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[1]: The footnote: We need to be particularly careful of status quo bias. “Content creators” is a very sloppy term. Almost by definition, who is and isn’t a “content creator” — what kind of creative works are lucrative, popular and respected and thus believed to deserve reward — is completely embedded within the structure of the artificial incentives which society creates beforehand.
Here in this universe, you say, “Well of course you’re not a ‘content creator’ who deserves to be rewarded just because you composed a bad poem while on the toilet”.
But over in the other universe, a butterfly flapped it’s wings slightly harder in the 3rd century BCE. Later, early in the 13th century, the 10th Imperator of Britaspania, Ming the Wise, laid the foundation for the modern Western system in which creative work is rewarded on a fixed basis from a taxpayer funded pool. People over there are currently vigorously denouncing the suggestion by certain radicals that paying $0.50 per blog comment is becoming an increasingly cumbersome and untenable system.
“Are you saying that, uniquely among all human beings, professional blog commenters do not deserve to be compensated for their labor?”, they cry.
Oops, that second paragraph would probably read better as:
I don’t know about Brett, but, while I might say something like “‘content creators’ deserve to be compensated fairly for the labor which provides value to society,” that is very different from something like “‘content creators’ deserve to receive compensation through a particular artificial monopoly scheme.”
Also.[2]
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[2]: Ming initially did so at the behest of his sister, who had asked him to help her pay for her invasion of Sicily by channeling some funds from the treasury toward her husband, the Imperial brother-in-law, a rather bad poet who usually did his best work while visiting the facilities.
My own bad poetry is for free until I say otherwise. Just don’t try to make money from it or claim it as your own. All legal trouble due to content is also your own problem. 😉
þađ er Cþul(h)u
þursa drottnari
Skrímsli stjörnur
Skelfing er manna
Dauður en dreymandi
Sinn dagur mun koma
Rikir brjálædi
En birta er ekki
(that may also contain bad grammar)
Fashion Tips
Would not Cthulhu look just great in pink
And/Or with a wig to cover his bald head?
He stares at stars but could he not instead
Become a star himself? What do you think?
Aren’t Deep Ones sexy? Could they drop the stink
We’d stand in queue/line to get/have them in our bed
A decent fragrance and some lipstick red
Work well together (plus a stole/coat of mink)
No girl would shun a night-gaunt’s call to dance
Wore he a tux and polish on his nails
Ghouls are so nice, if you give them a chance
Let shoggoths shape their slime in ponytails
Let pretty* shoes their pseudopods enhance
They are not fiends because their dress sense fails
*In order to avoid product placement, I did not put some brand name here
Don’t try to babelfish (or google translate) that. The results are quite off (e.g. turning ‘enemy he is of men’ into ‘horror is a human right’, also getting the cases wrong).
Uh oh. Giving away poetry for free?
Don’t let Big Poetry find out about that. Under the new ENSALADA act, the PVAA (Poetry and Verse Association of Amerigonia) is authorized to send government revenue men to your door and force you to sign and deposit your royalty check at dagger point. I’ve heard it’s very traumatic.
I might say something like “‘content creators’ deserve to be compensated fairly for the labor which provides value to society”.
Whether it provides value to society or not kind of answers itself. If someone will pay money for it, it’s adding value to somebody’s world, somehow.
Musicians, writers, inventors, research scientists, there is a very long list of people who derive some more or less significant part of their income from copyrighted or patented work.
Those people would not get paid for that work without the copyright or patent.
The list of people making money from somebody’s original creative work should include the original creator.
And “content creator” is not that hard of a party to identify.
And, in addition to what russell says, copyright or no copyright, there are still contract issues at play. Universal Studios has the exclusive contractual right to distribute to exhibitors the films which it has financed, and to profit from the exhibition thereof. Warner Music has the exclusive contractual right to distribute music from its signed artists, to profit therefrom, and to compensate those artists from the profits. HBO has the exclusive contractual right to broadcast “Boardwalk Empire” to its paying subscribers. And so forth.
So, even outside the arena of copyright/IP infringement and society’s attempt to cope with a model in which the marginal cost of producing a copy is zero, as is the cost of acquiring a copy, there are lots of tortious interference cases going on here.
“I’m trying to pin Bellmore down on Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others, which appears to imply that, uniquely among all human beings, content creators do not deserve to be compensated for their labor.”
A fairly complex question, if answered properly, which is to say I’m confident there’s no way for me to answer it that you won’t be able to find SOME way to get outraged about. But I’ll venture a reply anyway, since your outrage means nothing to me.
Way back in college, I wrote the following ditty. I doubt any of the wax recordings of it still survive, but it went something like this:
God rest ye hairy gentlemen who barbers do dismay,
Remember Grecian Formula was made upon this day,
To save us all from salt and pepper, or worse, from going gray,
Oh, tidings of hair upon the floor, upon the floor,
Oh, tidings of hair upon the floor.
Now, I am, I assure you, the perpetrator of this atrocity, in a sense it’s “creator”. Do I have a right to profit from it’s creation?
No.
I have a right that nobody else falsely claim to be it’s author, in the sense that nobody is entitled to defraud others. But should somebody learn of it, perhaps by reading this thread, do I have a right that they not perform it without compensating me?
Not a natural right, that’s for sure. Because natural rights are negative rights, and nobody harms me by repeating my words. Nobody prevents me from doing anything I otherwise had a right to do.
The Constitution authorizes Congress to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
This is not a natural right, it’s a legal right. It’s justified on the basis of promoting progress in science and useful arts. And it requires that the right be limited.
Right away we see a problem with current copyright law, which is that the time is no longer limited, but instead renewed repeatedly as it approaches expiration.
Nor can renewal of copyright encourage long dead authors to pen more works. Taking works already in the public domain, and handing out copyrights to them, as was recently approved of by the Supreme court, is right out.
But, the point is, this is not a conventional property right, it’s a temporary grant of monopoly, justified for the public good, not the interest of the creators themselves.
Would we be substantially worse off without copyright? Maybe. I’m not entirely certain, because the current copyright regime has been carried so far beyond the point of diminishing, indeed negative, returns, that it may on net be harmful, rather than beneficial.
But our being worse off without it doesn’t make it a natural right.
“And, in addition to what russell says, copyright or no copyright, there are still contract issues at play.”
Indeed, there are: At the time the RIAA took down the MP3 website, and deleted all it’s stored content, non-infringing as well as infringing, I, along with many others, had a binding contractual right to download certain content in perpetuity. RIAA took the site over, and violated the contract, even though violating it was in no way necessary to end any infringments they found.
Likewise, Megaupload had binding contracts with numerous people to provide legal, non-infringing services, for all that they may have been committing illegal acts as well. The US government went in, and while they could quite easily have stopped the infringements without violating the legitimate contractual rights of customers, chose to violate the contractual rights of hundreds of thousands of innocent people.
Yes, indeed, there are contractual issues involved. They do not remotely work exclusively to the benefit of Universal Studios, the RIAA, or any of those other IP giants. They demand a more individualized response than those giants prefer.
Just as, in my analogy, the government can not burn to the ground the neighborhood U-store, even if the proprietor does turn out to have done something illegal. Because it’s not just the proprietor whose rights are at stake.
Nobody here has defended the extension of copyright beyond even the author’s life, let alone in perpetuity, nor defended last week’s court decision.
Now, I am, I assure you, the perpetrator of this atrocity, in a sense it’s “creator”. Do I have a right to profit from it’s creation? No.
If you decided to record and release your parody for sale, would other people have a right to give it away for free?
Do I have a right to profit from it’s creation?
No.
Actually, I would say that if somebody somewhere manages to make some money off of it, and it was worth your while to jump through the required hoops in order to demand your piece of that, that you would have a right to it.
Natural, legal, I am happy to leave that distinction to the political economy theorists.
You would have a basis for getting paid.
Right away we see a problem with current copyright law, which is that the time is no longer limited, but instead renewed repeatedly as it approaches expiration.
I agree.
Nor can renewal of copyright encourage long dead authors to pen more works. Taking works already in the public domain, and handing out copyrights to them, as was recently approved of by the Supreme court, is right out.
I agree.
But, the point is, this is not a conventional property right, it’s a temporary grant of monopoly, justified for the public good, not the interest of the creators themselves.
I’d say that the way copyright creates the public good is by protecting the interest of the creators themselves.
So, to my eye, there’s not much of a distinction to be made there.
But as long as folks get paid for their work, I am happy to defer to you as far as whether there is one or not.
Getting back to the original event that prompted the post, I found this piece quite interesting. It seems to me that given the changes and the forces involved, analogies to U-store shops and discussions of just what kind of right I have to what I make (and what you make) are not going to make a bit of difference. I don’t know which way the ball is rolling on all this, but it’s like that stone ball in the opening of Indiana Jones: you just run like hell to get out of the way.
1. So why don’t you and other MP3 and MU users launch a class action lawsuit based on the violation of your contracts with those sites?
2. Just as, in my analogy, the government can not burn to the ground the neighborhood U-store, even if the proprietor does turn out to have done something illegal. Because it’s not just the proprietor whose rights are at stake.
If the police find out that the Genco Olive Oil Importing Co. Is, in actuality, a front and a money-laundering operation for the mob, they can in fact shut it down forever and auction off its assets, and woe to the people who bought their olive oil there.
If the police find out that the Genco Olive Oil Importing Co. Is, in actuality, a front and a money-laundering operation for the mob, they can in fact shut it down forever and auction off its assets, and woe to the people who bought their olive oil there.
Doesn’t there have to be a trial or something first?
If the police find out that the Genco Olive Oil Importing Co. Is, in actuality, a front and a money-laundering operation for the mob, they can in fact shut it down forever and auction off its assets, and woe to the people who bought their olive oil there.
That’s an awful analogy because MegaUpload is providing a data storage service rather than selling goods. I really don’t see anything wrong with treating MegaUpload as a storage facility that’s been working with the mafia: does anyone, anyone at all, think that the feds would be justified in burning the whole place down without even trying give non-criminal clients their stuff back?
So a world in which, say, films weren’t copyrightable would make them them valueless (at least to those who watched them without bothering to pay)?
Nothing really answers itself that I can see. The point is that whether and how much someone is willing to pay intrinsically depends on the (inherently artificial[1]) regime which a society might or might not use to reward creators.
People pay for some stuff, sure. And that probably indicates that they think it has value. But other stuff they don’t pay for because they don’t have to, or they don’t know they value it, or they don’t know about it, or it doesn’t even exist because nobody is even making it.
Copyright and patent create a particular world, with a particular assortment of content created and not created, and a particular assortment of payments, and a particular assortment of winners and losers.
There’s really no special reason to believe either 1) that creators are being rewarded in anything like the proportion to which their respective creations are valuable to society, or that 2) this is anything even close to the best of all possible worlds with regard to the kinds of stuff those people are creating or who and how many get to enjoy the use of it — or even that any reward regime based on copyright or patent will be optimal compared to some other regime.
Well, that second sentence is trivially false. The first is more careful, but at that only trivially true. Just because they get income that way now, doesn’t mean that’s the only way they possibly can (or, as above, that they’re the only ones who should).
I mean, there are a variety of other ways creators can be paid or get themselves paid. Musicians, for example, certainly existed before copyright. And many of them still make most, if not all, of their money from performances, not copyrighted recordings – which are probably more useful as advertising than revenue, all things considered.
And research scientists are not such a great example. I’m not sure what fraction of scientists might make significant earnings from patents, but I believe even for many of those who do it’s often something of a bonus, rather than a primary livelihood or the actual motivator of the research. And then there are scientists working on things like pharmaceuticals – where patents are, arguably, actively worse than some alternate regime, perhaps one based on grants or prizes. And then there’s copyright, whose primary purposes in the publication of science currently seems to be to restrict the free availability and distribution of papers and other published research results – results which are produced using funding from other sources in the first place, and warehoused by publishers who don’t particularly channel much or any money to researchers in any case.
Finally, it’s true that writers and some others do at least seem to depend on copyright to a greater degree, but to the extent that that is actually true, there are alternative systems which could also provide them (and/or others who are not successful in the current system) with perfectly comfortable incomes while enabling the creation of their work. For all we know, in superior quantity or quality than is produced in the current system.
All of which is not to say that I’m necessarily advocating abolishing or replacing copyright completely (patent, maybe). I just think it behooves us to cultivate a very deep skepticism of the current system and try to remain aware that, while we have never known any other life, living in a pond and eating mosquitoes may or may not be the best of all possible lifestyles. It may or may not even be the best possible lifestyle for a fish.
And it’s certainly not true that we necessarily have a good idea at any particular time of who “deserves” to be rewarded for their creativity.
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[1]: I have to part ways with Brett on the whole “natural” rights business, but it’s hard to argue with the general point that something like copyright is a more or less entirely arbitrary construction.
I agree completely. To continue my tangent one more comment before dropping it, the Golan decision last week looked very forward-thinking in this regard. By which of course I don’t mean it seemed to be aiming at correcting these problems; no, I mean that while reading it, one is sore tempted to see a lot of the language as sowing the case law with seeds of precedent to help justify upholding a future perpetual copyright law…
So a world in which, say, films weren’t copyrightable would make them them valueless
No.
It would be a world in which, with the ability to make and distribute infinite copies of original work for tiny cost, it would be very hard for the film-maker to get paid.
In other words, the value would still be there, however the creator would not receive much of it.
Copyright and patent is how creative work generates revenue for the creator.
If you can think of a better way to make that happen, hold forth, I’m all ears.
Musicians, for example, certainly existed before copyright.
Yes, and they also existed before recordings.
But we have recordings now. And recordings generate huge revenue streams. Recorded music and film make up a freaking huge industry, and comprise a huge amount of this nation’s export.
The artist should get a piece of that. Absent copyright, they would likely not.
And many of them still make most, if not all, of their money from performances, not copyrighted recordings – which are probably more useful as advertising than revenue, all things considered.
Some do and some don’t.
If you’re a songwriter, frex, you likely don’t perform at all. You make all of your income from licensing your songs to performers, or for use in film or TV, or any of a number of other markets.
Do you like nice songs? Pay the songwriter.
A lot of people – regular, workaday, people, journeyman musicians and other artists – make their living by licensing the use of their original work. Absent copyright, they would not be able to do so.
It’s f**king hard to make a living as a creative person. I could easily go on at great length, but I won’t belabor it.
Suffice it to say that copyright enables a critical revenue stream for a lot of people. Not just Disney Inc., regular people who happen to make their living as creative artists.
It’s how they get paid. It’s how they pay their mortgages, buy groceries, and build enough wealth that they don’t have to work at McDonalds when they’re 70.
It’s a good thing.
It can be a good thing, if not carried to absurd extremes. As it is being carried today.
Let’s be clear about this: Extending copyright beyond the life of the actual author does precious little to encourage the creation of more intellectual property. It’s just a way for megacorps to extract rent on our cultural heritage.
It’s not just extension of copyright where you see this, either. There was that law they got passed to destroy old children’s books. Anybody really believe the point of that was to protect children from being poisoned? No, it was to wipe out the existing stock so that people would have to buy the damn books all over again.
I’m all in favor of a limited monopoly for content creators. That’s not what we have anymore.
Extending copyright beyond the life of the actual author does precious little to encourage the creation of more intellectual property. It’s just a way for megacorps to extract rent on our cultural heritage.
For the record, I agree.
As has pretty much everyone here, so Brett is fighting a dragon that nobody here is backing.
Russell: “If you can think of a better way to make that happen, hold forth, I’m all ears.”
Economist Dean Baker has proposed a publicly financed scheme to finance artistic effort. Check it out.
I also find it curious to see so many equate “value” with “price”. That is the very concept that Marx is so taken to task for by current day defenders of “free markets”. Or maybe there’s just a lot of closet marxists out there!
But there has to be a better way. I’m all ears, too.
Phil,
I recall someone hereabouts recently asking where Brett had gone off to. Maybe he got retooled. I kinda’ enjoy this newer “property is theft” version of Brett(vP1)*.
*All copyrights preserved.
Propery isn’t theft, (Indeed, the very concept of “theft” relies on property.) but copyright ain’t property. It’s just a government grant of monopoly.
No, but a sound recording or a movie print ARE property, with exclusive distribution rights built into them.
In other words, the value would still be there, however the creator would not receive much of it.
We already live in that world. There’s a lot of value already out there which creators don’t receive much of.
Nor should they necessarily.
The point of copyright, at least in the US tradition, is about serving the interests of the public, not the creator. The rents a creator might be able to parlay their copyright are only intended to be, from the public perspective, large enough to, well, pay the rent so to speak. Just big enough to allow them to do their work and produce the work for the public’s consumption in the first place.
If an occasional artist can parlay that into greater wealth — not just the rent, but also a mansion with a stadium-sized closet stocked with parachute pants — well, bully for them. But it isn’t the point. The creation and distribution of works for the enjoyment and betterment of the public is.
Which is, you’ll recall, the entire purpose of the second part of copyright: limited time, so that the work soon finds it’s way into the public domain where it can reach even more people (who might, say, download it for free!) and thereby produce more value, all without the original creator receiving a penny of it. Or at least not any guaranteed pennies they “deserve” thanks to copyright.
And you still seem to be missing the part where, on the one hand, copyright is not the only possible way of channeling income to creators (hence examples like musical performances, or reward systems based on grants or prizes), and, on the other hand, you have no reason to believe that the creators who get income under the current system “deserve” it while others don’t. This concept of “deserve” you are clinging to is an intrinsic artifact of the status quo.[1]
Yes, I agree with you broadly that we do need some kind of system which, one way or another, works well to to ensure that people who write/film/tinker/sculpt/map/play/paint/discover/sing/document/cook/dance/etc. good things may be able to earn a decent living at it, so they will make more stuff for the public to enjoy. That’s very important.
But I don’t think it’s productive to take any great pains to ensure that the “original creator” gets to collect on every piece of value they might create ever and everywhere. We’re not likely to succeed at it, for one (nor do we do today), and the purpose of copyright is to serve the public, not to guarantee creators what they “deserve” – whatever you want to define that to be.
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[1]: See separate post below.
[1]: It’s possible my previous illustrations were not concrete enough, so how about this one: recipes.
As a general principle, it’s my understanding that recipes are not copyrightable as such. Cookbooks are, of course, but not the recipes themselves. Indeed, the best recipes are often widely shared, modified, and republished. Quite widely nowadays, thanks to the internet. That obviously creates an awful lot of value for the world, most of which the original creators see no part of. Nor do the other creators who might rewrite or improve a recipe along the way.
But. It wouldn’t really be that difficult to imagine a world where recipes are copyrightable, or even protected by some other kind of specialized ‘intellectual property’ – a reciperight lets call it – that gives the creator the exclusive right not only to publish their recipe (and close variations) but also to authorize or deny uses of it.
Using your — obviously god-given! — entitlement to exercise “reciperight”, you could write some new recipes and publish a cookbook, for example, bundled with only a limited “home” license to make the recipes therein for groups of 8 people or fewer. But someone throwing a larger dinner party, or a chef at a hotel, would have to contact you and pay you for a “public performance” or “commercial” license.
Results: Such a world would obviously produce a lot more income for some cooks and chefs. Ones who were successful at writing popular recipes under that system could get a much bigger cut of the value they create than they might currently. Many other cooks who are successful under the current system would find that system less congenial, perhaps some would not be chefs at all. On the whole it’s not entirely obvious whether or not it would lead to more and better recipes being written, or more people enjoying better food.
But I digress.
I just have a couple questions for you:
In your view, do the successful chefs and recipe writers in that other world “deserve” the extra rents they extract thanks to reciperight? Are they being served up an injustice in our world, because they are getting much less than they deserve?
What about the other cooks and recipe creators who are more successful in our current world? Do they actually “deserve” less because “reciperight” is somehow a more natural system?
you have no reason to believe that the creators who get income under the current system “deserve” it while others don’t.
Really?
If we’re talking about songwriters, they wrote the song.
If we’re talking about musical performers, they performed it.
If we’re talking about filmmakers, or actors, or scriptwriters, they made the film.
If we’re talking about authors, they wrote the books.
If we’re talking about photographers, they took the picture.
If we’re talking about inventors, they brought the patented thing into existence, out of their own freaking brains.
At no point have I argued that folks who create copyrightable content deserve ALL of the revenue created by their works.
At no point have I argued that they deserve an exclusive claim on their work forever.
If you remove copyright, in the current technical environment you eliminate the means for people who do creative work to derive ANY reliable income from their work product. Because films, books, sound recordings, photographs, etc., can be reproduced and distributed for what amounts to nothing.
Yes, musicians can *also* do live performance. They can also teach, or operate recording studios, or work as professional sound people, or as tour managers, or any of 1,000,000 other jobs related to the music industry.
And, they *do* do all of those things.
So what?
They create a work product that generates revenue. A lot of revenue. They should get a piece of that. Not all of it, and not forever and ever and ever.
But they deserve a piece of it BECAUSE THEY CREATED IT.
If you think that CREATING THE ACTUAL THING THAT GENERATES THE REVENUE is insufficient justification for receiving some of the revenue generated, then IMO the burden of proof is on you to explain why.
Seriously, what the hell do you get paid for? Why do you deserve to get paid for it? How different is that from getting paid for creating a work product that people want and will pay for?
The thing *you* are missing is that creative content doesn’t fall from trees. People make it. And it takes a lot of work to do so.
If we’re talking about inventors, they brought the patented thing into existence, out of their own freaking brains.
This is a really naive statement russell. At least in my field, patents have nothing to do with real innovation. Most people who create new things never patent them, and most people who patent things never create real innovation. Patents are used as a way for big companies to crush new competitors.
For small companies, the patent system is completely useless. If you have a brilliant idea that IBM wants, they’re going to take it from you, even if you have a patent, and you’re going to let them do it. Why? Because IBM has a million patents that cover everything and you’re infringing most of them right now. If you don’t cross license with them, they’re going to sue you to death because your software writes text to a computer display. Yep, they’ve got a patent on that. Think you can fight IBM’s lawyers? Hahahaha.
I’ve never seen anyone look through patent filings in the hopes of learning something new; patents are quite possibly the worst way of transmitting technical knowledge ever invented (“we’ll start by filtering your complex technical ideas through a bunch of lawyers and people so stupid they could only find employment as patent examiners”).
Now, I get that patents may work better in different fields, but given the rank incompetence of the patent office and the legal system I’ve seen in my field, I’m a bit skeptical.
But they deserve a piece of it BECAUSE THEY CREATED IT.
But how big a piece? And who deserves to get these guarantees? And a piece of what?
We agree that it’s good for creators to earn a living, but beyond that, there’s choices, and compromises, and picking of winners and losers, you have to make. At every step.
I mean, you say, e.g., songwriters wrote the song, so they get to get a “piece of it”. But a piece of what?
You speculate that in a world with no copyright, nobody would pay songwriters anything to write songs (this is disputable, but whatevs). If so, there’d be no market for songs, so probably no standalone songwriters. Or no professional ones, anyway. There’s no ‘it’ for anybody to have a piece of. And nobody to complain about not having a piece of it, either.
And yet, someone over there is still arguing just as vociferously (and tautologically) that of course the system should be exactly the way it is, because everyone gets what they deserve.
After all, he says, it makes sense that a musician should get a fair cut of the door money for a performance. But why would they pay somebody else for singing a song when they’re the ones doing the singing? And why should anyone have to pay the musician for making a recording if they bought their ticket, and they’re the one doing the recording? And why should anyone pay someone else for a copy of a recording when they’re the ones doing the copying? After all, nobody believes that artists should get absolutely all the revenue from anything related to what they do, so the limits are obvious, right?
Or back over in our world, why don’t recipe authors get a bigger cut of “it” — or a bigger “it” — than they do now?
And are there compromises? By giving the copyright we do to musicians who are mega-successes, is it possible that we’re reducing the revenues other would-be musicians might be getting for doing performances? What do they “deserve”?
We’re both agreed that it’s both good and just for productive artists and creators to earn decent livings.
But please stop going further and claiming that there is also some intrinsic “it” that they “deserve” to have a piece of, as if both of those things are obvious. They’re not. Those are a matter of public policy.
How many artists should there be? Who and which kinds? How much should they get? How should they be able to get it? How and how much should we empower them to get more than they otherwise could? Those are all questions which are valid to ask when formulating that policy.
This is a really naive statement russell
Yeah, I know, the software industry has turned patents into rent-o-rama.
On the other hand, I have a buddy who invented a mechanical brake for telescoping stands. He was annoyed that he always had to put his guitar down whenever he wanted to adjust his music stand, so he invented a way to adjust it with one hand.
After about nine years and $30K out of his own pocket worth of building prototypes, documenting the invention, pushing the application rock like sisyphus through the patent process, etc., he now holds a patent for his gizmo.
The range of potential applications is quite broad. Music stands, but also hospital gear, etc etc etc.
If it ever turns into $$$, he should get some of it. That’s pretty much all I’m saying.
I can give you lots of other examples of simple, handy stuff that somebody somewhere has been able to turn into a reasonable business, because they were able to obtain and enforce a patent. A family friend invented an automatic process for breading chicken parts. There’s a popular apparatus for suspending tom toms that an enterprising dude turned into a nice small business. There’s a guy who basically redesigned the vibraphone and sold the IP to one of the instrument manufacturers and has received a modest but useful living from the royalties.
All of these people deserve to get paid for their work. Absent patents, some jerk would buy one of their products, copy it, and sell it for a buck less, and they’d have no recourse.
People deserve to get paid for their work. If anyone wants to put that concept up for grabs, you’ll have to talk to somebody other than me, because as far as I’m concerned any talk about “fairness” that doesn’t include that concept is bullsh*t.
But how big a piece?
As much as they can negotiate for. Like every other damned business in the world.
And who deserves to get these guarantees
The people who create the thing that generates revenue.
And a piece of what?
The revenue stream that flows from the thing they create.
But please stop going further and claiming that there is also some intrinsic “it” that they “deserve” to have a piece of, as if both of those things are obvious.
Excuse me, but both of these things are baldly obvious.
“It” is the money that is generated from the sale and use of the stuff they create.
“Deserve” means they should get paid, because they created it.
I can’t think of anything more obvious than that.
As far as mega-successes, you are basically talking about extreme statistical outliers. Extreme.
And the reason they are mega-successes is because a lot of people want to buy their work. Copyright has nothing to do with it. The only effect copyright has on the situation is that the mega-successes get to keep some of the revenue. Assuming, of course, that they were smart and cut a good deal. Some don’t.
If they don’t deserve some of the revenue their work generates, who the hell does?
They create a work product that generates revenue. A lot of revenue. They should get a piece of that. Not all of it, and not forever and ever and ever.
Redundant at this point, but to say it in a different way:
That revenue you’re referring to – from what, how much, where it goes – is entirely defined by the status quo system.
If there were no copyright at all, for example, than a recording of a performance would not (you presume at least) generate any revenue. Nobody would ever bother calling a recording “work product that generates revenue”. Because it wouldn’t. So there wouldn’t be anything to get a piece of.
Or really try to consider the supposed “plight” of songwriters in a system where songs work a lot like recipes do in our system. They could publish books of songs [recipes] and perhaps make a modest living at it. They could also perform their songs [cook their recipes] for people, and earn a living that way. And nobody would stand up and say that songwriters “deserved” a piece of the revenue someone else got from performing a song, anymore than anybody thinks the corner diner should be paying the Joy of Cooking a royalty every time they bake an apple pie.
I’m sure there’d be no songs [recipes] written by anybody at all. Musical [culinary] creativity would probably be stone dead.
Turbulence: … people so stupid they could only find employment as patent examiners …
You mean like Albert Einstein, for example.
Turbulence: For small companies, the patent system is completely useless. If you have a brilliant idea that IBM wants, they’re going to take it from you, even if you have a patent, … Think you can fight IBM’s lawyers? Hahahaha.
russell: All of these people deserve to get paid for their work.
You perhaps have seen Flash of Genius?
Don’t get me wrong, I mostly agree with Turbulence about the wretchedness of today’s patent system. And, of course, patents and copyright are not the same.
Information is a difficult thing to protect. I quote one of my favorite references, the Alice and Bob After Dinner Speech:
As much as they can negotiate for. Like every other damned business in the world.
So….Artists negotiate copyright with their customers? News to me.
What if the customers don’t agree to it?
The people who create the thing that generates revenue.
So, NOT people who want to create things that don’t have a legally protected revenue model then. Fair enough.
The revenue stream that flows from the thing they create.
But without the artificial legal framework, no revenue stream flows.
So if there were no, e.g., copyright, and people copied things freely, then artists who relied on copy restrictions would not deserve any income?
This seems to contradict a previous answer of yours somewhere.
“It” is the money that is generated from the sale and use of the stuff they create.
Again, the sales and money that doesn’t exist if copyright doesn’t? Or the sales and money that might be generated in different mediums on the sale of different works if copyright were to take a different form?
“Deserve” means they should get paid, because they created it.
But not the ones who create something without a legally protected revenue source, as per the above, of course.
….Methinks this is not so obvious as you claim.
If there were no copyright at all, for example, than a recording of a performance would not (you presume at least) generate any revenue.
I don’t presume anything. Maybe there would be a robust recording industry, maybe there wouldn’t.
What would be true is that if there were, the artist would get much less of the revenue.
Which you seem to feel is fine, but I don’t.
They could publish books of songs [recipes] and perhaps make a modest living at it.
Not really, because there would be no copyright on the book, either.
Musical [culinary] creativity would probably be stone dead.
Musical creativity would be fine. Music as a way to make a living would be significantly impaired.
And the astounding range of musical recordings that are available to all of us now would be a fraction of what they are, because it’s freaking expensive and time-consuming to make sound recordings, and there just aren’t that many people who will do it as a hobby.
So yeah, maybe no “it” anymore, in the sense of no multi-billion market in sound recordings, or films, or photographic images.
That multi-billion market funds the creation of a lot of stuff you like. Kiss it goodbye.
That’s why we have copyright and patents.
If they don’t deserve some of the revenue their work generates, who the hell does?
No/different copyright would mean the nature and size of the revenue stream would change. Someone else would “deserve” the revenue stream, because then they’d be the ones producing it.
You missed the point of that example: it’s not about the megastars. It’s about the people the megastars may have displaced. Under a different framework, they might well be the ones generating the revenue, and thus “deserving” it.
What would be true is that if there were, the artist would get much less of the revenue.
Actually, different artists would like likely get different revenue. Possibly less overall. Possibly not.
You’re stuck on the fallacy that in a radically different system, the same people are artists and they’re making the same kind of art in the same kind of quantities. Just getting paid less.
You’re fixated on the last part being unfair. Which it would be, if it occurred. But all the premises are faulty. A radically different system will result in a different set of people producing a different set of works and earning livings on completely different streams.
Some of those other universes might or might not be overall more productive and creative places than our own.
But what they are NOT is places where where homeless, destitute musicians are mysteriously compelled to produce music with no prospect for any money, just because that’s what their counterparts over in our universe chose to do…
Not really, because there would be no copyright on the book, either.
I didn’t say there was no copyright there. I said songwriting worked like recipes. Are you paying attention?
It’s about the people the megastars may have displaced.
If we’re talking about the music industry, the megastars haven’t displaced anybody. And the prominence of megastars has nothing to do with copyright, marginal artists’ work are covered by copyright also. There are just fewer people that want their work.
What you are missing is that if you remove significant revenue streams from creative workers, fewer people will do creative work.
All that stuff you like? Less of it. Much less.
Yes, people will still sing around the campfire, and your local bar will have some kind of musical entertainment. Some artists will make recordings as a way of building and audience for their live performances. Some won’t.
The amazing range of artistic product that is currently available for not a whole lot of money? You will not have it.
It takes too much time and effort to produce, it won’t be worth folks’ while to do it.
And for the record, the analogy to a recipe would be something like sheet music. The analogy to a recorded performance would be some kind of magic hologram of the chef coming into your very own home and cooking the food for you right in your own kitchen.
… cooking the food for you right in your own kitchen.
You could only imagine eating it though. At least until we have direct-to-brain sensory recordings. See Minority Report and many other SF examples.
That multi-billion market funds the creation of a lot of stuff you like. Kiss it goodbye.
That’s why we have copyright and patents.
But there are potentially quite a lot of other ways to fund the creation of the stuff you and I like.
Some of the them might even be more fair or effective than our current system. More/better/different works might be produced, and more people might be able to afford to have use of them.
But we can’t have that. Because then all those new creators wouldn’t get the patent and copyright revenue streams they “deserve”.
And for the record, the analogy to a recipe would be something like sheet music. The analogy to a recorded performance would be some kind of magic hologram of the chef coming into your very own home and cooking the food for you right in your own kitchen.
Um. Which is why the analogy was to, you know, songwriting…
I didn’t say there was no copyright there. I said songwriting worked like recipes.
Why would a book be copyrightable, and not a song?
Yes, you are correct, absent copyright an entirely different universe of revenue streams, means of employment, etc. would exist.
And yes, people would find a way to make a living.
But one way or another, absent copyright, creative authors would no longer have a basis for getting paid for revenue created from any tangible work product of theirs that was readily copyable and distributable.
So, there would likely simply be less of those things.
Good, bad, who’s to say? I live in the world that exists. In this world, those things generate a lot of revenue. In this world, the people who create those things deserve to get some of that revenue.
When your alternative universe comes to pass, we can compare and contrast.
Are you paying attention?
Not anymore. It’s been fun, but I have to get back to work.
Copyright and patent is how creative work generates revenue for the creator.
Of course it is. Can someone give me the short version argument opposed to letting people protect and own their own intellectual property?
russell, I’m sure you know that artists are mostly treated very shabbily in the current regime; it’s the middle men who collect most of the money. I don’t imagine you are a fan of the RIAA.
Any perforing art is a very tough way to make a living.
Information technology is forcing a change here. Whether it will be for the better remains to be seen.
McKinneyTexas: Can someone give me the short version argument opposed to letting people protect and own their own intellectual property?
I’m not advocating it, but since you asked…
“Information wants to be free.”
Can someone give me the short version argument opposed to letting people protect and own their own intellectual property?
For patents, economists have been big on the notion of prizes. Instead of our current system where the State runs the centralized Registry of Ideas and imprisons anyone who has an idea and dares to profit off it if someone else Registered their idea first, the government picks a few problems that really matter and offers huge cash prizes for fixing them. So, if the government wants a new malaria drug, it offers $10 billion to companies that can give it a drug that meets its criteria.
I often wonder if the problem with the patent system is that it hasn’t gone far enough. Perhaps we should allow lawyers to patent legal arguments. That seems fair. Without that, how could attorneys possibly hope to be paid for their work? What do you think McKinney? Wouldn’t that be awesome?
For copyright, there are lots of proposals; many start with reducing the duration of copyright.
You could only imagine eating it though
Unlike a recorded musical performance. No imagination required, the sound is actually there.
Look, Jack says absent copyright, some other entire economy would exist relative to creative work.
I completely agree. And that economy would not support the widespread creation of a number of the tangible work products of creative effort that we have now.
Because, while those things are trivially expensive to copy and distribute, they are very costly, in terms of time and money, to *produce*.
So fewer folks would bother producing them. They’d do something else with their creative energy.
The purpose of copyright is to encourage the production of creative work. No encouragement, no production.
Why the hell should anyone bother? It’s hard enough to do anything creative, at all. Why bother producing all of the beautiful work that folks do now, just to give it away to people who don’t give a crap if you get paid or not?
Musicians will, in the end, play for each other and for their own pleasure. If you don’t get to listen because it’s not worth their while to bring it to you, who loses?
You do.
What you are missing is that if you remove significant revenue streams from creative workers, fewer people will do creative work.
Lets take this veeeery slowly.
1. Copyright is not the only possible way to give creative workers a living.[1]
2. We already use quite a mix of these, copyright is only one, and it’s not entirely obvious that it’s even the most important.[2][3]
3. We could use a different mix without necessarily reducing the number of people doing creative work. It might be we could even increase it, increase the access of the public to the creative work that is produced, decrease the total cost to the public, or all three.
You seem to be both overestimating the actual importance of copyright for creative work, and incorrectly assuming that there is no mix of public policy that might replace it or improve upon it.
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[1]: Just a few other systems: grants, prizes, disbursement from a pool of dedicated funds (say, from a download tax), revenue from performances, sales of souvenir merchandise, sponsorship, patronage, commission.
[2]: There are economists and others who study this kind of thing, and I’ll leave the resolution of this obviously difficult empirical question, if it ever comes, to them. Nevertheless, “not obvious” seems a fair summary.
[3]: You lump all “creative work” together, but a lot of it really doesn’t depend on copyright or patent at all. I keep bringing up recipes. But there’s also, say, architecture, which is basically commission based. (Plans are no doubt copyrighted as a matter of course, and some people might certainly prefer it that way. But it’s hard to see how architecture in general would change or suffer much without it. The same is true for a lot of other commercial creative work.)
russell: Unlike a recorded musical performance. No imagination required, the sound is actually there.
You’ll get no argument from me on that point. I meant only to point out a flaw in the analogy.
I’m very sympathetic to russell’s point of view. I just don’t see the current copyright system rewarding most artists very well.
Why would a book be copyrightable, and not a song?
The written song would be – you wouldn’t necessarily be allowed to copy it and print your own book (this is actually still a bit stricter than recipes).
But why shouldn’t you be able to sing the song?
“Information wants to be free.”
Free. You get what you pay for.
Perhaps we should allow lawyers to patent legal arguments. That seems fair. Without that, how could attorneys possibly hope to be paid for their work? What do you think McKinney? Wouldn’t that be awesome?
What I think would be awesome is a world where smart people are motivated to invent and produce cool stuff that makes my very comfortable life the way it is. Fresh food, nightly entertainment, wine delivered by the case to my office, a one pound piece of electronics that saves me a trip to the bookstore and holds more books than my study at home. No flint napping and atlatl for me. Pottery making or food preserving either. I’ve farmed, gardened, hunted and fished using modern equipment. It’s still a spotty way of getting food on the table.
I stay warm in the winter, cool in the summer, fly to Europe once a year and play golf all because a lot of smart people over the last couple of hundred years started really inventing stuff. Keep it up.
(In very much the same way that if you buy a book with plans for a boat in it, the author of the book doesn’t have any claim on the boat you build, or any “revenue stream” which might result from it.
If there’s an “intuitive” approach to intellectual “property”, this certainly seems closer to it than the way it actually works with music.)
jack lecou: But why shouldn’t you be able to sing the song?
Sing it, sure. But what about when you perform it and charge admission? Or use it in a TV commercial? or … (many other examples).
This is a big fight because a lot of money is involved.
<rant>If the RIAA could reach into your brain and erase the memory of hearing it so they could charge you again, they would.</rant>
Just in case it’s not clear, I think both russell and I would be fine with reducing the term of copyright to the life of the author; and I think Golan v. Holder was wrongly decided. (Can’t speak for russell on that one.)
As far as artists getting treated shabbily by the current system, that’s largely true, but that’s not a problem with copyright qua copyright. It’s a problem with who owns master recordings and for how long, which party gets ownership of publishing rights (record labels often assume them in order to recoup advances), negotiated per-unit royalty amounts etc.
I completely agree. And that economy would not support the widespread creation of a number of the tangible work products of creative effort that we have now.
This is bizarre. What’s the argument for this? Copyright is hardly indispensable.
Because, while those things are trivially expensive to copy and distribute, they are very costly, in terms of time and money, to *produce*.
Um. But this is exactly the argument for why copyright is increasingly looking like it’s NOT the best public policy approach to funding creative work.
Why would anybody think that a world in which work is expensive to produce but cheap/free to reproduce is a world in which we want to collect/disburse the needed money at the point of reproduction???
Sing it, sure. But what about when you perform it and charge admission? Or use it in a TV commercial? or … (many other examples).
Like the author of that book of boat designs should get money if I make a bunch of money running a sightseeing service with it?
The point is that the place where we draw these lines is ultimately pretty arbitrary. There’s nothing “obvious” about it.
Just to confuse the matter further, Larry Lessig on laws that choke creativity.
Just in case it’s not clear, I think both russell and I would be fine with reducing the term of copyright to the life of the author; and I think Golan v. Holder was wrongly decided. (Can’t speak for russell on that one.)
On copyright:
1. I would be in favor of reducing the term, maybe to something on the order of a decade, not much more.
2. I would carve out an exemption for personal sharing of digital files, including peer-to-peer and online sharing.
2b. As part of that, I’d be willing to support some kind of download/internet/hard drive tax scheme, with disbursement back to rightsholders (possibly on a non-linear basis). I’m not convinced that such a scheme would really be necessary in the grand scheme of things, but it would be a good experiment, and might well be a necessary pot sweetener.
3. I’d be in favor of radically increasing public funding for the arts and creative work in general. (I don’t have many specific ideas for programs, but I’m sure there are no shortage. Supporting and expanding the libraries which are building out public “maker” facilities would be a good start.)
Like the author of that book of boat designs should get money if I make a bunch of money running a sightseeing service with it?
I was on board (pun!) with this analogy for a while, but I think the difference is in the investment required to build a boat as opposed to playing a song, assuming you don’t go out and buy instruments and amps and mics and such just to play one song, rather you use those things potentially to play hundreds or thousands of songs.
The portion of the investment you can allocate to the playing of a single song is negligible. Building a single boat requires far more material and labor than playing a single song, thus you made the boat, while you only played the song (for money). (I won’t even get into operating expenses.)
This is bizarre. What’s the argument for this?
The argument for this is as follows:
I free lance as a musician. I work with a number of people who are active recording artists. It costs them a lot of time and effort to make their recordings. If there was no financial upside in the form of revenue from those recordings, they wouldn’t bother making them, because it’s too much of a f***ing PITA to make them for no money.
Yeah, people will still make home studio recordings to sell or give away at shows, but the range and availability of recorded music that currently exists, along with the ubiquitous channels that bring it to you for chump change, will largely go away.
Because it will be impossible to realize any revenue from it, for the creator.
If you want to replace copyright with a download tax, fine with me.
If you want to replace copyright with a publicly financed artists slush fund, per Dean Baker, fine with me.
I don’t much care where the money comes from, by what channels it travels, or in what currency or denomination it arrives in.
I want the people who create the thing that people pay for to get some of the money.
Dig?
And grants, prizes, what have you are all very lovely, but they will not replace the multi-billion dollar revenue stream that the existing market in recorded materials now creates, on a purely voluntary basis, via plain old private commerce.
Last but not least I will note that, if you think copyright is rife with abuse and gaming, public financing of artistic endeavor through taxes etc is going to give you hives.
Just one last thing for now:
If we’re talking about the music industry, the megastars haven’t displaced anybody.
This is, of course, false.
For example, a world in which bands only really made money on performances, and recordings (if only bootlegs of performances) were shared.
In such a world, it might be the case that MegaBand X was still extremely megapopular. What wouldn’t necessarily be the case is that people spent a lot of money on MegaBand records. Which would leave money in their pocket. Which they might, among other things, use to go see shows by local or smaller bands instead. (Maybe even local MegaBand cover acts…)
Now, do I think those local bands deserve that money more than MegaBand and their record label? No.
That’s just the point. I don’t think we can ever really have any idea who “deserves” what.
Instead, I want to try to figure out which universe might be more fun, and make our universe more like that.
*Note: Annotate this comment to allow for all of the postings, especially Jack’s and ral’s descriptions of their new copyright regime, which sounds like the direction things are going anyway (Louis ck and Trent Reznor saying goodbye to the middle men), since I began writing it 45 minutes ago, and then ignore it.
You may hum it to yourselves, but if I catch you participating in a sing-along using my words, well, I think I may have discovered a revenue stream. ;)*
First of all, we could all rattle our jewelry in lieu of paying for music.
Jack wrote:
“Under a different framework, they might well be the ones generating the revenue, and thus “deserving” it.”
For what? What am I missing here?
Do you mean that the musicians/performers who have been displaced by the megastar Beatles, for example, may cover “Strawberry Fields Forever” in performance and/or in a recording without a royalty payment?
May the displaced ones (the Displacements would be a good band name; The Hip Displacements could tour Florida retirement communities and nursing homes to cash in on captive baby boomers as we limp like lemmings headfirst into the abyss) also claim with impunity to have composed the song?
If I’m in the audience and the same displaced band opens the second set with an original number the guitar player wrote, may I (as displaced as a guy can get) run out the next day, under this different framework, and do what I want with the song?
After all, there are many songs out there that when I heard them for the first time I swear the melodic hooks were so — something — great, catchy, but obvious — that I must have heard them before — they were floating in our commonly-shared ether and the fact that McCartney, for example, managed to pick them up in a dream and transcribe them, “Yesterday” for example, before the dream was available to me doesn’t seem kosher.
Copyright law in music is, I admit, made up as we go along, yes, I mean the Beatles or EMI paid a royalty, I should hope, when the Beatles recorded “Please, Mr. Postman”, but they certainly didn’t pay anything to perform “Raunchy” or whatever 37,000 times in Hamburg.
Yet George Harrison was sued successfully for lifting the chord progressions and melody of “My Sweet Lord” from someone or other, and I think Lennon was sued for lifting a guitar riff from Chuck Berry, but on the other hand Boyce and Hart or Neil Diamond or whomever wrote “Last Train to Clarksville” was not sued for lifting that guitar riff from the Beatles’ “Run For Your Life”.
There’s copyright and royalty payments and then there is tribute and then there is every local band down the street covering songs without paying a dime and that’s the way it is.
Like recipes. But if a band, (named “Too Many Cooks”) published a book of Mario Batali’s exact recipes, what then? Course, Batali lifted many of his recipes from regional chefs in Italy and now Spain, in the spirit of the Beatles and every other artist whose motto was “when in doubt, steal”, so who is kidding whom?
Then we throw another layer of ridiculous injustice (only, in that it just doesn’t seem right to me, but carry on) into it when Michael Jackson own the Beatles songs, while McCartney owns the Buddy Holly catalog, etc, etc, because the lot of them were too stupid at 20 years of age to resist signing sh*t deals for their songs with a bunch of Mitt Romney Bain Capital suits.
By the way, I was 12 and sitting in the car with my mother when I first heard “She Loves You”. The car radio wasn’t on, the song just came to me, whole and intact with harmonies.
One second later, the Beatles’ “She Loves You”, which sounded exactly like my version except for that great EMI engineering, was released and on the radio.
I swear I coulda been a contenda. Tell me I was picking up my version through my fillings
By the additional way, to add to the conundrum, I hated it when free internet guitar tabulature sites were for a time a couple years ago threatened with copyright infringement oversight.
Further, I want to patent a recording deck into which you could input a song (or a symphony) recording and it would spit out a completely accurate transcription and tabulature of every track and instrument on the original recording.
A time-saver, but not nearly as an effective ear-trainer as spending hours listening to a recording over and over to figure out a song.
But McTex, wouldn’t the world be better if you could patent your legal arguments? Can’t you see how much better legal practice would be? After all, why on earth should you get to benefit from another attorney’s hard work without compensating them? That’s not fair, is it? And if we created a government instituted monopoly for legal arguments, we’d get more and better legal arguments, right?
Last but not least I will note that, if you think copyright is rife with abuse and gaming, public financing of artistic endeavor through taxes etc is going to give you hives.
Russell, my man!
My experience with copyright is from a written works angle than a music one (and the regimes are different, because the music industry is set up to make it fairly easy for musicians to get royalties, and for people using other people’s music to pay royalties – at least, that’s my understanding).
Anyone who doesn’t think that the First Amendment is affected by copyright law should read the very persuasive dissent by Justice Breyer in Eldred v. Ashcroft. Also, Breyer makes a good point about the costs, not only of royalties (which may or may not be significant) but also of finding authors, obtaining permission, etc.
Turbulence, believe it or not, there have been attempts to claim copyright on legal briefs. To my knowledge, the issue is still up in the air.
This is, of course, false.
I’m going to ask you to back up the “of course”.
What is your experience with / knowledge of / exposure to the music industry?
Can you demonstrate that anybody, anywhere has had their personal income stream reduced because, frex, U2 made hundreds of millions of dollars on their last tour?
Anybody? Or are you speculating?
Speculation does not earn an “of course”.
Imaginary compensation regimes that you are making up on the back of an envelope don’t earn an “of course”.
It’s fine to discuss them, they just don’t earn an “of course”.
they certainly didn’t pay anything to perform “Raunchy” or whatever 37,000 times in Hamburg.
Most venues the offer live music participate in the royalty process by registering with one of the three big royalty enforcement companies, ASCAP, BMI, or SESAC.
So, chances are the author of “Raunchy” got paid. Or, at least would do so nowadays.
Russell, my man!
Yes, there is no market failure in the music industry at the moment.
Crap accounting and fraud, yes. Market failure, no.
Most venues the offer live music participate in the royalty process by registering with one of the three big royalty enforcement companies, ASCAP, BMI, or SESAC.
This is why I object much less to the music industry copyright regime than the written works business (although I think that the copyright term is way too long). The music industry makes it easy for people to use other people’s works and pay for the privilege.
The portion of the investment you can allocate to the playing of a single song is negligible. Building a single boat requires far more material and labor than playing a single song, thus you made the boat, while you only played the song (for money).
That’s a workable view, but like I said, it’s all pretty arbitrary.
If you want to start making a distinction on the basis of how much “effort” went into it, it gets really tricky, really fast.
Take the songwriting example: the musician doesn’t just play the song. To do it well enough to make money off of it, he probably has to play a it a lot. Practice, practice. It could conceivably take a lot of time and effort to get it the way he wants it to sound. And then, the songwriter doesn’t necessarily take much time at all. He’s got to have the “tools” of course: musical training and so on. But the song itself? Maybe it just came to him in the shower one day, and he dashes it out and he’s done.
So now does the musician deserve it more than the songwriter? Do we judge case by case? It’s madness.
Or consider my picturesque, run down old barn and unmowed lawn. A photographer might come along one day and take an extremely valuable shot of it. Click. All he did was point the camera and hit the shutter. It took me decades of effort to get my barn in that condition. Who “deserves” a cut of the cash when a print of the photo sells at a gallery?
This is why I object much less to the music industry copyright regime than the written works business (although I think that the copyright term is way too long). The music industry makes it easy for people to use other people’s works and pay for the privilege.
I’d at least halfway agree with that too.
This whole mess would actually be a lot less objectionable if the music industry had simply approached, say, Napster, with some kind of straightforward, transparent, licensing scheme.
Still important to recognize that the lines are pretty arbitrary though. And there is never really any original work.
And then, the songwriter doesn’t necessarily take much time at all.
A photographer might come along one day and take an extremely valuable shot of it. Click. All he did was point the camera and hit the shutter.
Do you know any songwriters?
Do you know any photographers?
I am talking about people who earn a living writing songs and taking pictures.
Because your comments here display a profound ignorance of what is involved in doing either at a professional level.
Not hobbyists, not folks who strum away in their bedrooms. People who produce songs and photographs that other people actually want to hear or look at.
Yeah, Paul McCartney woke up one morning with the music to “Yesterday” running, almost fully formed, through his head.
He did this after working 24/7 as a professional musician for ten years.
I’m not sure you understand either the crafts, or the industries, you’re talking about.
The fact of the matter is that creative work is freaking hard.
And the fact of the matter is that copyright enables creative authors to realize income from their work product.
Maybe you have a much, much better way to make that happen, but you have not demonstrated anything of the sort.
So as far as I’m concerned, copyright is a great way to go.
I recognize that the existing copyright law is out of balance with the actual purpose it is intended to accomplish, and it should be changed.
But you have not demonstrated, at least to my satisfaction, any reasonable alternative that doesn’t amount to “those people will just go do something else”.
Yes, they will go do something else. What they won’t do is create stuff, stuff that millions of people like to have and are happy to pay for, for no compensation.
So, everybody loses.
That’s why we have copyright. To encourage creative people to do their thing, so everyone else can use and enjoy it.
Speculation does not earn an “of course”.
It’s impossible to produce examples of successful artists who by definition never had a chance to exist, so… fair enough, I guess.
But obvious or not, you can’t really say megabands aren’t displacing anyone.
Actually, everyone who ever gets a buck is displacing someone.
That’s one of the better arguments for why online sharing is doing zero damage, at least economy wide: entertainment budgets are pretty fixed in the short term, so people might download a movie for free, and then use the saved money for a concert. They’re just displacing spending from one place to another, and the overall pool flowing to creative endeavor is largely unchanged. (The recent decision to allow personal sharing in Switzerland was partly based on studies which showed exactly that.)
(We do, maybe, get a problem if people start downloading so much that there’s not enough money in some fields to produce new work at all. But there’s no indication that we’re even anywhere near that point. Besides – showing me a hypothetical work that would have been produced if, say, 10,000 fewer downloads had happened is at least as difficult as my task.)
Because your comments here display a profound ignorance of what is involved in doing either at a professional level.
Care to elaborate?
You apparently agree that, while it might take someone like Paul McCartney a lifetime to gain the requisite training, talent and experience (the “tools” I noted), once he has them, the time it takes to write a particular song may, on lucky occasions, be virtually no time at all.
And I’d assume that you’d also agree that as a result of this and other considerations, how long one spends or how much effort it takes to make a particular song isn’t necessarily a reliable gauge to how much one ought or ought not “own” any resulting performances.
So what did I get wrong there, exactly?
I’m not quite sure where I offended.
This
is probably only true on the margins. Most professional artists would create stuff anyway. This in now aay justifies reducin their ability to make money at it.
And this:
Is just silly. The competition for those dollars is in significant ways the way artists EARN their money, by being the first choice for peoples entertainment dollars. The theft is what makes them able to have both for the same money.
Now we are certainly into justifying I wants my free stuffs.
But you have not demonstrated, at least to my satisfaction, any reasonable alternative that doesn’t amount to “those people will just go do something else”.
I’m not sure I ever could satisfy you.
Nor am I sure the system will ever change much. Status quo bias is a powerful thing.
Largely agreeing with russell, I nevertheless want to throw out The Verve’s loss of all revenues from “Bittersweet Symphony” as fodder for discussion.
Personally, I think they got taken to the cleaners. They made a legitimate effort to secure rights and permissions for some digital samples they used, and…I am still not sure how they managed to lose it, really.
Is just silly. The competition for those dollars is in significant ways the way artists EARN their money, by being the first choice for peoples entertainment dollars. The theft is what makes them able to have both for the same money.
So people having less stuff is an intrinsic public good in your book?
I’m not sure I’m the one being silly.
The best of all possible worlds is the one where, 1. lots and lots (all possible) creative stuff is created, 2. the people who make the stuff earn a living doing it, and 3. this stuff is distributed far and wide and everyone can use and enjoy any of the stuff being created, any time and in any way they please.
In practice we have to make tradeoffs. Copyright is a scheme where, roughly speaking, we spend some of the social benefit from #3 and use it to try to buy some more #1 and #2.
It may be a worthwhile bargain. But that spending is still a sacrifice, not an intrinsically desirable feature.
If there’s some modification of the system that (as per above) leaves #1 and #2 essentially intact, but gets us a lot more of #3, that’s just an objectively better system.
It’s not “theft” just because something becomes cheaper or free.
(I mean, I expect you’re also going to come out against the “theft” represented by the productivity increases of, say, the industrial revolution? All those common people getting inexpensive mass produced clothing! Think of the poor tailors!)
“It may be a worthwhile bargain. But that spending is still a sacrifice, not an intrinsically desirable feature.”
True of all things, food, housing, all stuff. Having to pay is not an intrinsically desirable feature.
“It’s not “theft” just because something becomes cheaper or free.”
No, it depends on how it became free.
No, it depends on how it became free.
In this case, as with cheap clothes, it was technological advance.
Theft?
So what did I get wrong there, exactly?
e.g., it took McCartney many years of disciplined, hard, daily work to get to the point where he could write something like “Yesterday” intuitively.
Your comment is like saying, Larry Bird used to get paid millions for sinking a jump shot.
Or, Edison built his fortune on a lucky idea about a light bulb.
Larry Bird used to get paid millions because he had spent freaking years shooting thousands and thousands and thousands and thousands of jump shots, until he could pretty much hit them whenever he wanted.
Edison built his fortune on years and years of relentlessly trying every imaginable way to build something like a light bulb, until he got it right.
Lennon and McCartney spent years and years learning every song they could get their hands on, learning every nuance and stylistic quirk of about 50 years of pop music, in a variety of styles, then performed for hours and hours and hours, night after night after night, for crap money, then wrote a staggeringly ridiculous number of songs of their own, then rewrote them over and over and over again until they were good.
Then, he woke up one morning and “Yesterday” was running through his head.
It takes a huge amount of work to do creative work effectively. In any field. What you see is the tiniest fraction of the tip of the iceberg.
Care to elaborate?
Consider it elaborated.
It’s impossible to produce examples of successful artists who by definition never had a chance to exist, so…
There are approximately seven million, three hundred forty two thousand, eight hundred and nineteen bands in the United States.
Trust me on this.
Nothing stands in the way of anybody writing songs, performing them, trying to sell them into whatever market they like.
Some people are good at it, some aren’t. Some people have the drive and persistence to continue doing it for the proverbial 10,000 hours it takes to actually be sort of good at it, some just like to bang away at the hobby level.
Some people make it big, some people don’t. But there is no shortage of folks doing creative work in the world, and the fact that some of them are wildly successful is exactly zero impediment to the less wildly successful.
If anything, it helps create a larger market for everyone.
Yes, it really kinda does work that way.
My “reasonable alternative” would be,
1. Restore the scope and term of copyright to something more like what prevailed for most of the nation’s history, rolling back the vast expansion of the last few decades. Including restoring the rule that, once a work enters the public domain, it stays there.
2. Subject enforcement to reasonable balancing, including attention to damage done to innocent third parties, and genuine penalties for fraudulent claims.
I don’t in principle object to copyright as an answer to the free rider problem for creative works. I just object that copyright law has gone berserk over the last few decades, as huge corporations buy Congressmen, so that they can monetize our pre-existing cultural heritage.
I swear, the way things are going, one of these days I’m going to be walking down the street, humming the theme from an old TV show, and be taken out by a sniper.
Intellectual property didn’t “become” free. People are taking it without paying for it despite it being for sale by the people who have the exclusive legal right to distribute it.
I mean, the people who invested the time, money and talent to make (checks Google) Adele … really? Adele? Yeesh. … the top selling album of 2011 didn’t then place the records on the rack and put up a sign saying “FREE, TAKE ONE.” No innovator came up with a more cost-efficient way to make Adele albums. People are simply making copies and giving them away without the right to do so. That doesn’t mean Adele albums “became free.” Let’s not fall into passive voice BS here.
No Jack, its not like cheap clothes. It is cheaper to make music so the cost per unit probably is less like clothes. However I still can’t go online and download the shirt you make. Or even a copy of it.
No Jack, its not like cheap clothes. It is cheaper to make music so the cost per unit probably is less like clothes. However I still can’t go online and download the shirt you make. Or even a copy of it.
That has nothing to do with it.
The point is that, once upon a time, it was very expensive to harvest fiber, spin thread, weave cloth, and sew a pair of trousers. Some people invented stuff, and that got much, much cheaper.
And, once upon a time, creating a copy of a book required an expensive special purpose press and lots of paper. It would have been fantastic to suggest that someday it might be possible to go on a “webb-syt” and download a copy of potentially any book ever printed, and keep most of them, simultaneously, on a device in your pocket.
And you can just forget about the idea that the same device could also store a little digital copy of every musician you’d ever heard and play them back to you at will.
Now, back in the age when that seemed fantastical, and when a book, nevermind an entire library, cost a certain amount of money to copy and purchase, this little sacrificial payment we’re making out of the “complete library in every pocket” fund looked a whole lot more reasonable.
But technology has obviously changed a bit. And thus so has this price we’ve been paying. We’ve muddled through for a bit, but now the contradictions are heightening. It’s becoming obvious to many people that this is quite a high price, even if they don’t think of it in those terms.
The idea that we should deliberately impoverish humanity[1] by telling everyone they are not allowed to produce unlimited copies of goods with zero marginal costs — further, that reproducing such goods is “theft”, and should even carry criminal penalties — all in the service of perpetuating a particular scheme originally designed for the express purposes of motivating the creation of work so that more people would be able to enjoy it is absurd. And getting more so everyday.
Why try to adjust the people in increasingly invasive ways? Why not just adjust the system a bit? It shouldn’t really be astronomically difficult to figure out some other, simpler, way to get creators paid. It wouldn’t even take particularly large or risky adjustments to the existing system.
—-
[1] Make no mistake, that’s what you’re contemplating. In your world, you spend $10 a month and that’ll get you either one movie or one concert. In my world, you still have $10 on a movie or a show, but you also get to watch listen and read as much as you have time for. All else equal (yes, including payments to creators), my world is better.
The task is rewarding creators efficiently SO THAT more work is created for people to enjoy. It is absolutely NOT somehow a good thing to unnecessarily prevent people from sharing and enjoying and even building on that work and culture (or “stealing” as you like to call it). Let’s not lose track.
Intellectual property didn’t “become” free. People are taking it without paying for it despite it being for sale by the people who have the exclusive legal right to distribute it.
See above.
That “exclusive legal right” exists in the first place for the purpose of allowing creators to make a living making stuff so that there’d be more stuff around for people to have access to.
Now we have a situation, where, finally, for the first time in history, everyone really can have access to whole categories of that stuff, at no additional cost.
But, instead of celebrating this new wealth and freedom, you’re calling the whole situation “theft”…
I just think maybe that ought to give us pause. There seems to be something askew there. And there might be much simpler ways to solve the whole “problem” this embarrassment of riches is causing us.
No innovator came up with a more cost-efficient way to make Adele albums.
Just to really beat this dead horse:
Yes, they did. We went from “no such thing as an album” to wax cylinders, vinyl disks, analog tapes, cds, and then mp3s over the internet. At every stage it got cheaper and cheaper and cheaper for ordinary people to make copies of them.
Now, what you are trying to say is that it still takes about as much effort for Adele (is that a person or a band?) to write and perform for that first recording. There’s been much less technical advance there.
And then there’s the fact only system we seem to have in place (this is debatable, but it’s not important) for paying Adele to make that first album seems to sort of break down a bit if we’re just giving everyone copies for free.
And so there is a developing conflict here between this (early) post-scarcity technology we now have which can hand out happiness by providing everyone in the world with a copy of the album at essentially zero cost, and this legacy system for distributing payments to creators, which relies on the principle that nobody ought to get a copy until they pay something for it.
I would argue that calling this situation “theft” and trying use the legal system to put a padlock on the cornucopia is maybe not the healthiest approach to the problem, such as it is.
“All else equal (yes, including payments to creators), my world is better.”
Absolutely, your fantasy world is better. If I could wake up each morning and have someone feed and clothe and house me for free so I could spend all my money on entertainment then my world would be better.
The “all else equal” is just carrying way too much weight here. The point of this discussion is that all things aren’t equal.
People are happy to steal the content and turn a blind eye to how it was made available. The world is NOT a better place because they can. It is no less wrong than buying a hot tv for cheap, or stealing it yourself.
Lets not lose track.
It is no less wrong than buying a hot tv for cheap, or stealing it yourself.
To be fair to Jack, I’d have to point out that stealing a TV isn’t the same as making an exact copy of the same TV at little to no cost. That’s the heart of what he’s getting at, even if you don’t think it’s relevant.
People are happy to steal the content and turn a blind eye to how it was made available. The world is NOT a better place because they can. It is no less wrong than buying a hot tv for cheap, or stealing it yourself.
Let’s try a different tack.
Let’s say you’re right.[1] People are bad, bad thieves, etc. How does this self righteousness actually solve the conflict?
The fact is that technology has changed. It is, I hope, indisputable that it is fantastically easy to copy and share lots of digital stuff.
And there’s not really any clear path to go back, even if we wanted to. Something like SOPA, as Draconian as it was, was nevertheless unlikely to even make a dent. It’s an open question whether it’s even theoretically possible to put the technology back in the bottle while still allowing people to possess anything remotely resembling a general purpose network computer in the first place. And if it is, it would take likely a really unprecedented level of government (if not record company!) control over (and inside) your computer. As well as over the process of technological innovation. I doubt anybody here thinks that would be acceptable. I hope not, anyway.
So:
What we have now isn’t working[2].
We can’t go back.
How do you propose to go forward?
Yell “stop thief!” until all those naughty people feel guilty enough to comply?
I don’t think that’s gonna work.
Nor do they really need to stop. The basic problem is, as it always was, just ensuring that work continues to be created, NOT preventing it from being shared. Which obviously means collecting and channeling money in such a way that creators can pay expenses and earn an income.
I humbly propose that we get mildly creative (it’s not that hard) and come up with a few new policy approaches to make sure creators get what they need, no matter what happens on the internet (or maybe just expand some of the other old ways). And then… we can ‘decriminalize’ people taking advantage of new technology to share and create cost free copies of culture with each other.
Voila. No more “theft”. Artists get paid. “Fantasy” made manifest. Peace in our time. Etc. Etc.
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[1]: The comparison to rival (in the economics term of art sense) objects like TVs is completely specious, but let’s let that slide for now.
[2]: I mean, so everyone says. There’s not really any evidence forthcoming that creators are being especially harmed. Even big media companies, if they’d just remember that their customers just want some respect. But I’ll agree insofar as it’s objectionable that people are being slandered as “thieves”. Not to mention SOPA, ’nuff said.
is that a person or a band?
Adele is a person.
There’s not really any evidence forthcoming that creators are being especially harmed.
Actually there is. If you are interested in finding it, you can.
The basic problem is, as it always was, just ensuring that work continues to be created, NOT preventing it from being shared. Which obviously means collecting and channeling money in such a way that creators can pay expenses and earn an income.
Sounds good to me.
You’re the guy saying that the mechanism that’s been working for 250 years or so needs to go away.
So, ball’s in your court to come up with the bright idea. Have at it.
Otherwise, you’re just the guy that wants free stuff.
Note that “collecting and channeling money” and “create cost free copies” are, not necessarily mutually exclusive, but at least at odds with each other.
And no, prizes and awards are not going to fill in for the current revenue stream.
And no, I can’t really see public funding of the arts or a “download tax” doing so either.
If you’re willing to pay a download tax why aren’t willing to just pay the damned artist directly?
In any case, I’m still waiting to hear the bright idea that’s going to replace a content creator having a property in their work product.
That “exclusive legal right” exists in the first place for the purpose of allowing creators to make a living making stuff so that there’d be more stuff around for people to have access to.
I’m not talking about copyright, I’m talking about the investment made by the record company, and their contract with the artist to be the exclusive worldwide distributor of the music. It’s no different from any other contract between a supplier and a distributor. Period. Copyright doesnt enter into it. You no more have the right to hand out free copies of the Adele album than you do to hand out free Barbies. Not unless you’ve paid for every single one.
But, instead of celebrating this new wealth and freedom, you’re calling the whole situation “theft”…
I hope by “you” you don’t mean “me,” since I quite specifically have not used the word “theft” nor alluded to it any way, since I quite specifically disavowed Marty’s comparison of downloading IP to stealing a car, I quite specifically said I disagreed with the RIAA’s and MPAA’s anti-piracy tactics, and I quite specifically said I didn’t support SOPA.
Maybe you should spend less time composing clever footnotes and more time paying attention to the arguments you’re attempting to address.
I hope by “you” you don’t mean “me,” since I quite specifically have not used the word “theft” nor alluded to it any way,
I’m sorry, you’re right. I was thinking of CCDG’s comment, at the same time as this: “People are simply making copies and giving them away without the right to do so,” and it all got muddled together. My bad.
But this,
I’m not talking about copyright, I’m talking about the investment made by the record company, and their contract with the artist to be the exclusive worldwide distributor of the music.
Doesn’t seem to make sense. Without copyright (or something that acts very much like it), there simply is no exclusive sale or distribution right in the first place, either for the artist to sell or the distributor to buy.
Russel,
I’m having a hard time reconciling this:
Actually there is. If you are interested in finding it, you can.
with this:
You’re the guy saying that the mechanism that’s been working for 250 years or so needs to go away.
They just don’t appear to agree with each other.
What I am actually saying is that: things have already changed. Home taping. Computers. Internet. Pirate Bay. Yadda yadda.
I’m also saying that, at least in terms of primary effects, my view is that all this is not clearly negative. May even be quite positive. People are downloading, yes. Sampling. Partaking. Discovering. Holding back on stuff they don’t feel like rewarding, shifting their spending around to match their adjusted preferences, routing around inconvenient or broken distribution models – like the ones based on restricting release dates and places, or the ones which treat customers like criminals. And it’s all really upsetting some middle men and distributors. But creative industries in general don’t seem to be in any danger. Someone told me there are over 7 million bands in the country (I think he might have been exaggerating, but maybe not by much). More movies and music and videogames, etc. are being released than ever before. And new technologies and abilities are inspiring lots of fertile experimentation with whole new types of creativity, new creators, and new distribution and money making models. It’s much too early to see how it all plays out, but there’s no reason to be pessimistic about the future of creativity or entertainment media that I can see.
I’m somewhat less sanguine about the secondary effects: RIAA and MPAA trying to pay Congress to put the genie back in the bottle. People calling people thieves for having the audacity to take full advantage of the newly created technological wealth.
But, I could more or less live with that if I had too.
So I am not saying the legal mechanism “that’s been working for 250 years or so” necessarily needs to go away. Parts of it are clearly obsolete, of course, but conveniently, they’re the same parts that have been rendered unenforceable. The de facto situation doesn’t necessarily look that different from what it might if I had my way on the de jure adjustments. I would reduce terms, if I could, but on the more radical changes… I can wait.
From where I sit, you appear to be the one saying that people are getting hurt, or going to be hurt, or losing out on something they’re entitled to. And thus, I presume, that something needs to be done to stop file sharing. What do you want that to be?
Without copyright (or something that acts very much like it), there simply is no exclusive sale or distribution right in the first place, either for the artist to sell or the distributor to buy.
Nonsense. The existence of the song, and even published sheet music of the song, “Rolling In The Deep,” is not equivalent to the Adele recording “Rolling In The Deep.” Even without copyright, as a supplier of a specific, unique product,, the artist still has the right to restrict who is permitted to distribute copies of specific recordings for sale. Just like Honda has the right to decide who can and cannot sell its cars. Just like the NFL has the right to determine which teams are in its league and where and when they play.
More movies and music and videogames, etc. are being released than ever before.
You realize there are alternate explanations to this besides the floodgates of creativity having been opened by zero-cost distribution models, right? Like large media corporations fighting declining revenue from certain streams by trying to make it up on the margin with a glut of product?
From where I sit, you appear to be the one saying that people are getting hurt, or going to be hurt, or losing out on something they’re entitled to. And thus, I presume, that something needs to be done to stop file sharing. What do you want that to be?
First of all, I am not particularly bugged by file sharing per se. People have been ‘file sharing’ in one form or another for years. Lending each other records, making mix tapes, burning CDs of their favorite stuff to share with friends. The only thing different nowadays is the ease and scale of it.
I also agree that file sharing as it is now practiced is not going away. It is, straight up, simply too convenient, and any conceivable way of preventing it is going to create too many unwanted effects.
So, I’m not all that interested in stopping file sharing per se. What I think would make sense would be to find ways to have file sharing generate revenue for the folks who hold a property in the content.
I will leave it to the brighter marketing and technical minds to sort out the mechanics.
What I find, basically, unacceptable in your comments here is the idea that folks who actually create the content *have no property* in the work product. In other words, once it’s available at all, anyone and everyone who feels so inclined should be able to make whatever use of it they will, whether that is swapping mp3’s with their buddies, or making it available for free download to anyone who wants it, or using it to generate revenue for themselves, and the original creator has no claim on that whatsoever.
I think that’s wrong. Wrong as in unfair, wrong as in unworkable, wrong as in counterproductive because it is actually a disincentive to do the work.
What originally got me on this thread was commenting that CCDG had more than a point when he said that unrestricted duplication and distribution of copyrighted work was stealing.
Well, it is stealing, if the folks who hold a property in that work don’t want you to make a gazillion copies of it and give them away. We can talk about the folly of thinking that there is a practical way of preventing that from happening, and we can talk about whether the better approach will be to reorganize business models to accept and work with the reality of the technology.
But the basic idea that folks who produce creative work hold a property in that work – specifically, a right to receive some portion of whatever revenue that work creates – is about as close to a natural right as I can imagine.
Just because you can duplicate a computer file doesn’t mean that what’s in it belongs to you. It just means it’s easy for you to get it.
I think the SOPA stuff is stupid because all it is going to do is piss a lot of people off. Gun, meet foot.
But that doesn’t mean the idea that people should get paid for the use of their work is no longer valid.
If you like music and movies and all of the other wonderful things that modern technology brings to you, you should be willing to pay the folks who create it and bring it to you.
If you don’t pay them, they will stop doing it. They won’t stop playing music etc., they’ll just stop doing it in ways that make it available to you for no money.
Two asides:
And it’s all really upsetting some middle men and distributors.
From a lot of people’s point of view, that’s the good part. 🙂
But creative industries in general don’t seem to be in any danger.
People who do creative work for a living are, hands down, the most adaptive and entrepreneurial folks I know.
They will figure out a way to continue doing what they love to do.
The issue is not whether music / film / what have you is going to die on the vine. It won’t.
The issue is whether you respect their right to be paid for their work.
In the case of Edison, who (figuratively speaking) wasn’t the brightest bulb in the chandelier, he tried literally everything he could think of until he came up with something that worked. And, you know: ditto for synthetic rubber, except he never did succeed at that endeavour AFAIK.
I’ve skimmed over jack’s many, many comments here, and if he’s described some kind of workable system where income magically appears in the pockets of artists commensurate in some way with their production and its value (which, as far as I can tell, is highly subjective) without involving some kind of highly intrusive government picomanagement, I have completely missed it. Which wouldn’t be the first time, certainly, but please humor me.
BTW russell’s allusion to the huge amount of very hard work that almost HAS to accompany world-class skill in nearly any endeavor (even slacking) is part and parcel of Outliers.
Which shouldn’t be confused with TRVTH, but it’s an interesting read.
Though this conversation seems to be finishing up, since music seems to be causing some friction here, how about I share an example and y’all can point out what is right or wrong about it. Doesn’t have anything to do with recording or file sharing, so apologies if it isn’t to the point.
When I came to Japan the first time, I worked at a high school with a very good ‘brass band’ as they are called. If you don’t have an idea of how high a level some of these bands are, check this out.
The brass band at the school I was first assigned to was at the threshold, not quite up into the top rank. The music teacher had a band transcription of a 19th century German composer’s work that is quite famous as an orchestral piece and wanted to play it in the contest, because to break into the top rank, you really had to so something spectacular so he asked me to write a letter to the music company about the rights. I called 3 or 4 times (I think the office was in London or Geneva, so I had to call at around 4 am my time) They gave me a figure to pay for the rights to 2 performances and I sorted out a foreign postal money order, and everyone was happy. So I thought.
So the band plays it at the regional contest, blows everyone away, and gets to go to Nationals. But a few weeks before nationals, I get a letter from the rights guy saying that whoops, there was a mistake, the composer’s surviving family has specifically enjoined any performances of band transcriptions of the composer’s works, the rights guy had made a mistake, so sorry, the performance is off, even though the rights permission letter had already been submitted and one performance had already been made.
I had been transferred to a different school, so what ended up happening was that I “couldn’t be reached”, so the band director was in the clear. They forwent the usual recording of the band, and when the band director was asked about how he did it, he said there was a mysterious foreign teacher who got the letter, but he’s went back home and no, he didn’t know how to get in touch with him.
This was over 20 years ago, so maybe now, I would have been found out because I put it in a facebook post and some law firm would be chasing after my ass. I dunno. While I can say that the office screwed up so it’s their problem, I still feel a bit bad about the whole thing cause I don’t want to try and prevent the composer’s family from getting something, but because I’m a teacher and I studied music, I wonder about enjoining performances by students for educational purposes. Again, not file sharing, but I wonder if what folks think about the situation. Does it make sense that a composer has an absolute right to dictate the way what he writes is heard? And how long does the composer retain that right?
I also note that there are some interesting differences in Japanese and US copyright law that might interest some and this page lays them out. interesting stuff, I think.
What I find, basically, unacceptable in your comments here is the idea that folks who actually create the content *have no property* in the work product.
Well, for what it’s worth, what I mean is that these folks have no intrinsic property in the work product, at leas once it leaves their typewriter/easel/studio.
Certainly, as part of the current bargain society has made with them (i.e., copyright), they do. And it would be unfair to revoke that right retroactively for works already made (or in progress) in expectation of that bargain[1].
But copyright, even if it’s not changing or going away, is still, in principle, only one possible bargain. And it must be permissible, at least in principle, for society to revisit it if need be. One might conceivably make a variety of arguments against a proposal to alter or phase out copyright, but I don’t think that any inherent entitlement to the arrangement on the part of the creators of future works can be one of them.
I know that you feel strongly that it is more natural than that, but I don’t think you’ve really provided any solid basis for that intuition. In a hypothetical world where copyright was only a dim memory — or had never existed — I believe it would be equally intuitive for your counterpart there to view it as right and natural that, say, works passed into the public domain immediately as part of the workings of whatever alternate bargain that society had made with its creative types. There’d be no more reason for a person there to think that “copyright” would be a more natural state of affairs than someone here today has to believe that “reciperight” would be.
—
[1]: At least not without compensation. And it’s a continuum: I’m not sure I’d feel very choked up about retroactively reducing the currently inflated terms. Modifications which were found likely to have only small-ish financial impact, such as, perhaps, a non-commercial sharing exception, would also be alright in principle. Dropping rights on existing works altogether would definitely be too much.
I’ve skimmed over jack’s many, many comments here, and if he’s described some kind of workable system where income magically appears in the pockets of artists commensurate in some way with their production and its value (which, as far as I can tell, is highly subjective) without involving some kind of highly intrusive government picomanagement, I have completely missed it.
Well, if you mean a radically different proposal which foregoes copyright altogether, you haven’t seen it because I haven’t posted one. There’s a difference between pointing out that other arrangements with artists have, in principle, a right to exist, and actually advocating for one.
I think making the principle based argument is important, at least in terms of moving the Overton window over into an area where the whole thing can be discussed with something approximating perspective. But the proposals I think I’d actually advocate, or at least accept, are much more modest: for example, a fair use exemption for non-commercial copying and sharing.
Of course, that’s not to say that other people don’t have more detailed schemes:
To start with there is, like it or not, a valid debate to be had about whether anything to replace copyright would be needed. Such a world would be very different, and a very different mix of creative avenues would be successful (among other things, it might have a much greater emphasis on amateur expression) but whether it would be, on the whole, better or worse? It’s not actually immediately obvious. At least to me.
There are also, I believe, proposals for at least plausibly workable schemes based on some kind of fee or tax (e.g., on internet connections) which would entitle people to all-you-can-eat downloads of various kinds of works. Setting the level of tax and distributing the money back in a fair manner is thorny in some ways, but not necessarily insoluble (though I guess it depends on how you define “government picomanagement”). Such a system might make a different estimate of value than the current system, but it would not necessarily be any more wrong.
There are probably other possibilities out there as well. And of course, they could be mixed and matched. And leavened heavily with things like grants, patronage, etc., as the current system is.
what I mean is that these folks have no intrinsic property in the work product, at leas once it leaves their typewriter/easel/studio.
Why not? Because you say so? Because technology has provided you with a convenient way to work around whatever right they may claim?
I don’t think you’ve really provided any solid basis for that intuition.
People who make things have a property in their work product.
Is there a more basic economic concept than that?
You have asserted that it doesn’t really apply in this situation, but the only reason you’ve given for why that is so is because of the ease with which folks can work around it.
If you really want to hold the position you are holding, you need to explain why, in principle, people who do creative work are not entitled to a share of the value that their work creates.
And by ‘value’ I mean ‘money’.
And leavened heavily with things like grants, patronage, etc., as the current system is.
??????????
I don’t mean to be breaking your chops about this, but I really don’t think you have a clear understanding of how most creative workers, for lack of a better term, make their living.
I wonder if what folks think about the situation.
IMVHO copyrighted works should enter the public domain upon the death of the creator.
Maybe before then, even. But as a maximum, one human lifetime seems a long enough period to hold an exclusive right like that.
Brett, way up thread:
“I swear, the way things are going, one of these days I’m going to be walking down the street, humming the theme from an old TV show, and be taken out by a sniper.”
This is an amusing image. The suspicion that you may actually believe it to be possible makes me want to steal the idea and make a short movie about just such an occurrence.
I visualize a guy walking down the sidewalk on a busy city street, singing the “The Addams Family” theme just barely under his breath and even absentmindedly putting both hands up in front of himself and punctuating each chorus with the two famous finger snaps in time with the pace of his walking.
As he launches into a verse, a red infrared dot appears on his forehead and he goes down like a water buffalo in the pedestrian crosswalk.
His fellow pedestrians form a little moving eddy around his crumpled body on the pavement but go on about their business, each remembering to stop their own humming.
The sniper turns his attention to the guy across the street who, in a feeble attempt to add some drama to his quotidian life, has the Mission Impossible theme music going at full tilt in his consciousness as he runs for his bus, imaginary (but are they?) assassins hot on his trail.
The bullet strikes him right between the shoulder blades.
As he goes down, his inner theme music (the tape distorting at variable speeds as the life force leaves him) switches to the Mancini “Pink Panther” theme, a more suitable accompaniment to his bungled life.
A third person, a woman, has a stomach upset and decides to cross the street as she spots a Walgreens, cheerfully repeating the old Alka-Seltzer jingle as she trots, holding her hat on, expecting relief …
…. you get the idea.
I was once at a McCartney concert and during the long “Naaaa, na na na-na na na” coda to “Hey Jude”, which the optimistic Beatle had coaxed the tens of thousands of audience members to join in the inevitable sing-along, went into the shrewd business mode that Apple Corps lacked, and suddenly stopped the music and called up the house lights as uniformed security accompanying hundreds of process servers filed through the hall issuing subpoenas to each fan alleging copyright infringement and demanding a small royalty payment.
None of this happens, of course, because the copyright system, faulty as it is, is lubricated enough to prevent this type of petty friction.
Plus, the concert ticket cost $250 bucks as it is, for which my jewelry rattled as I handed it over the counter to the pawnbroker.
But Macca deserved every cent. Except for a few of the Wings songs.
But as a maximum, one human lifetime seems a long enough period to hold an exclusive right like that.
Maybe, but what about this: creator X is 30 years old, married with 2 kids, and supports his family with the income from his copyrighted works. X dies suddenly. Why shouldn’t his dependents have the benefit of their provider’s work?
Maybe: for the life of the holder, the holder’s spouse and children.
but what about this: creator X is 30 years old, married with 2 kids, and supports his family with the income from his copyrighted works.
OK, also a good point.
Long story short, IMO LJ’s brass ensemble should have been able to perform the piece.
I think copyright should be for X years, end of story (with X being a number more than 20 and less than 50). And no increasing (or decreasing, hah!) X after the fact Congress, just going forward.
Maybe, but what about this: creator X is 30 years old, married with 2 kids, and supports his family with the income from his copyrighted works.
Should he get life insurance or make other sorts of arrangments like everyone else whose income will go away if he dies? I don’t say that to be callous. I’m just wondering why that sort of income should be treated specially. (Maybe there’s a really good reason that I’m too dense to figure out for myself.)
Even without copyright, as a supplier of a specific, unique product,, the artist still has the right to restrict who is permitted to distribute copies of specific recordings for sale.
Well, while you retain unique physical possession of the first copy of a particular work, you certainly have the ability to choose who you trust to share it with.
And you could try to bind everyone in that chain of distribution with some kind of contract agreement. It just probably wouldn’t work very well. IANAL, but it seems like it would only take one person to forget/ignore the license, and then the work is fully public domain. Forever.
You could sue that one person, if you can find them, but that’s the end of your remedy. There’s no putting the horse back in the barn.
You and your distributor might well still make some money that way — based on first-to-market, customer loyalty and so forth — but realistically, you’d both have to expect that any “exclusivity” guarantee you try to make isn’t going to survive very long at all once the work hits even moderately wide distribution.
If you really want to hold the position you are holding, you need to explain why, in principle, people who do creative work are not entitled to a share of the value that their work creates.
It’s possible this is really a semantic argument. The word “entitled” (and to only a slightly lesser extent, “deserves”) really leap off the page in an unpleasant way for me.
To start with, it’s not just that creative workers are not “entitled to a share of the value that their work creates”, it’s that nobody is.[1]
For example, AFAICT, plumbers aren’t “entitled to a share of the value their work creates”. If they’re “entitled” to anything, it’s only to try to negotiate a bargain they think is acceptable, do the work (if they want), and then get paid (if they did).[2]
I mean, silly example, but if a plumber breaks into my apartment while I’m at work, does a lot of valuable stuff — fixes the leaky faucet, replaces some rusty pipes, etc. — he still isn’t “entitled” to bill me for a dime. I don’t actually owe him a thing. Even if I take a nice hot shower and enjoy [“steal”] all that work for free. (Ok, maybe I feel gratitude and offer to pay something anyway later, but that sure as heck isn’t the situation evoked by the word “entitled”.)
Yes, obviously plumbers need to get paid. As do artists. But there are two parties to every transaction, and both sides need to be able to participate. There’s a process of ex ante expectations and negotiations which means something, darn it. Nobody is in general “entitled” to anything just because they put in some work in one place and someone else in some other place benefited.
—-
[1]: “Share of the value” is possibly another point of semantic dischord: technically anything from a penny to “100% of everything” is a “share of the value.” And, wisely, you don’t seem to have any absolute commitment to some particular point on that spectrum. Because picking exactly what point(s) we want is obviously a somewhat pragmatic process: how much, whether it’s lump some or proportional, etc. It is all about the negotiation, including fairly arbitrary judgements about exactly how much is “fair”.
But that fuzziness and willingness to compromise jars with the far more absolutist mood of the word “entitled”. I end up reading this as something like “ENTITLED…[to a somewhat nebulous and ill defined quantity which may or may not even be anything in some circumstances].” It’s…confusing.
[2]: If a plumber wants to negotiate some kind of royalty payment agreement based on the future uses of the pipes they fix (or the anticipated quantity of such uses), well bully for them I guess.
And if society wants to implement some kind of generalized legal framework where I have to pay particular plumbers before I have a moral right to use the toilet they worked on? Well, it’s possible that would be a decent system with many very fine points to recommend it. But “intuitive” wouldn’t be one of them. Nor would “plumbers are ‘entitled’ to a share of the benefit stream that results from all those flushes” ever be a phrase I anticipate uttering.)
I would say that plumbers absolutely do deserve a share of the value that their work creates.
Do you want running water?
What is the value of running water to you?
Do you have the skill set and/or time and/or interest needed to make water come out of your tap?
If the answers to the above are “yes”, “more than what a plumber charges”, and “no”, then you hire a plumber.
If what the plumber brings to the situation is of less value to you than what the plumber charges, you don’t.
If you do hire the plumber, the plumber will deserve, and ought to receive, compensation in return for the value his or her work creates.
Likewise, do you like music / films / photographs / graphic design / name your personal favorite creative work product?
What is the value of those things to you?
And so forth.
People who work are entitled to a share of the value that their work creates. This seems pretty freaking basic to me.
What do you do for a living jack? I’m curious.
if a plumber breaks into my apartment while I’m at work, does a lot of valuable stuff — fixes the leaky faucet, replaces some rusty pipes, etc. — he still isn’t “entitled” to bill me for a dime.
Correct.
And if I, as a musician, make a sound recording, and sneak into your house while you’re away and copy it on to your computer, you don’t owe me a dime.
If, however, I make a sound recording and offer it for sale, and you find a way to make a copy of it without paying me, the situation is different.
*If I make something and offer it for sale*, the ex ante assumption is that you will pay for it if you want it. If you take it without paying for it, *you have stolen it*.
The only reason this is question is under discussion, at all, is that technology has made certain kinds of products trivially easy to steal.
The only reason this is question is under discussion, at all, is that technology has made certain kinds of products trivially easy to steal.
“Certain kinds of products” are themselves made possible by technology, including sound recordings. In its purist sense, music is a unique phenomenon in time, and would be impossible to copyright.
That’s not saying that I don’t think copyright is a good thing (if limited). But the law should reflect the purpose of copyright – to promote the progress of science and useful arts. Copyright wasn’t designed to compensate artists except to fulfill this purpose. It’s rare that people who do work can live from the very work they did for many years. Most people’s work is limited in time – limited to one sale. So copyright is unique in the sense that people earn money over and over again from the exact same product. Even if you lease real property to tenants, you have to maintain it.
It’s a good thing for people make a living, and copyright (within limits) is a reasonable way to compensate people for doing valuable things. But the regime is not comparable to manufacturing or services (such as the plumbing example).
What if an out-work musician breaks into my apartment during his day job as a handyman and crosses up my plumbing and electrical to the point where Ripple flows out of the electrical outlets and every time I flush the toilet, Buddy Hackett’s muffled voice bleats out Sha-poopy from inside the tank.
What then?
“Certain kinds of products” are themselves made possible by technology, including sound recordings.
Yes indeed, many kinds of things are themselves made possible by technology. Like, this conversation. Like, books, at all. Like, anything that uses wheels. Like, any form of clothing. Like, cooked food.
What we are discussing in this thread is a specific set of technologies, which make a specific set of work products, offered for sale, trivially easy to copy and distribute without paying for them.
In its purist sense, music is a unique phenomenon in time, and would be impossible to copyright.
We aren’t discussing things “in their purest sense”. We are discussing the copying and redistribution of work products offered for sale, without paying for them.
And no, in its purest sense, music is not a unique phenomenon in time. There’s quite a bit more to it than that.
It’s a good thing for people make a living, and copyright (within limits) is a reasonable way to compensate people for doing valuable things.
I couldn’t have said it better. Not sure there’s anything else to say on the topic, frankly.
But the regime is not comparable to manufacturing or services (such as the plumbing example).
It wasn’t my example, it was jack’s. I’m just working with the material in front of me.
Look, the question everybody appears to be evading here is this:
If somebody makes something and offers it for sale, and you take it without paying for it, is it theft or not?
Does the answer to that question depend on how easy it is to take it without paying for it?
If so, why?
Talking about how, in some imaginary universe, nobody would even offer those things for sale, we’d all make our money through patronage and grants, doesn’t fly.
We live in the world we actually live in, and in the world we actually live in, people make films, sound recordings, books, and any number of other works, and offer them for sale. And other people take them without paying for them.
I’m still waiting for somebody to explain to me in anything like a convincing way why that is anything other than stealing.
And no, I don’t think we should go throwing every college kid who shares mp3’s with their buddies in jail.
But that doesn’t change the basic nature of what’s going on.
In my own personal imaginary world, we are all ruled by the just humane and dope-slap-bestowing hand of benevolent savant and beatific court jester, Countme-in.
I for one welcome our gonzo buddha overlord.
If somebody makes something and offers it for sale, and you take it without paying for it, is it theft or not?
Does the answer to that question depend on how easy it is to take it without paying for it?
If so, why?
Well, musicians aren’t making an object and offering it for sale, as when a tailor makes a coat and sells it to someone. When the latter thing happens, a person buys a coat, the tailor gets some money, and that’s the end of it. The tailor doesn’t get more money when a third party sees the coat, thinks it’s cool and makes one just like it. In order to make continuing returns from that one project, the tailor has to invest his money.
A recording artist makes something, betting on the fact that lots of people will like it and buy copies of it. He can then make more and more money for one work product forever. Then, when people are tired of hearing that version, another artist pays him to make a different version and he gets more money. Then he gets even more when people buy the new version. Isn’t that the way it works?
I’m not opposed to the system. I’m just saying that intellectual property is really not at all like other property, so the idea of “stealing” isn’t really the same either. At least, it shouldn’t be surprising that people who are not in the business don’t see it as stealing. And intellectual property rights seem to be becoming less enforceable. Anytime laws are almost unenforceable, they are likely to be abused and enforced arbitrarily. I don’t think it’s a bad idea to come up with other ways of compensating people, just in case this model falls apart. It worked well in the music business for a century, but it may not last forever.
There are other ways that people make money doing creative things. For example, NPR pays its staff by asking for people to pay for what they hear, getting grants and selling limited advertising. It’s not very reliable, but it is a system that rewards people’s work. I don’t suggest that the music industry adopt this particular model, but a lot of people pay the bills by working for NPR.
Because fewer people in this country “make things” and sell objects for money, it’s becoming more important for people who are creative to come up with new ways of figuring out how to spread wealth to people who do good work of all kinds. I’m not sure it’s a good idea to be loyal to a system that isn’t necessarily working well anymore.
Again, the purpose of copyright has never been to remunerate artists for life, or to punish people who want to enjoy art and science for free. It was to allow a short period of time for artists and scientists to make money from something so that they would have an incentive to do more stuff.
“It was to allow a short* period of time for artists and scientists to make money from something so that they would have an incentive to do more stuff.”
Yes, because it was clear that selling the first copy for enough money to make a living was unlikely or, worse, someone would have to pay a lot for the first copy even if it never sold another. Broad distribution with copyright protection and, later, revenue sharing was the financial solution to the very problem being described.
Actually, those terrible labels/studios used to take advantage of artists by paying them a fixed fee up front for the rights and then taking the risk on distribution success. Song writing was a job. Piecework at that. The actual artists didn’t care a lot about copyright infringement in that system.
Then United Artists, mega artists, and indie labels decided that revenue sharing was a better solution. Now, if they want, all of that can be marketed through the internet and the artist doesn’t have to share with anyone. Except the most consistent way to have a successful song/movie is still to have the capital to market it broadly, which they get from the labels and studios.
So, (despite being able to make copies easier and faster), the problem being addressed is no different than the original problem. Copying was too easy then. So they made a law. Funny, thats probably why they called it copy rights.
All this talk about the technology making it impossible to protect the rights of artists IS just like we heard when cassettes and then CD’s were introduced. However, it never stopped the police from raiding high volume bootleg makers on both media.
I just don’t understand the whole “we should just give up because the technology makes it so difficult”. Hogwash, the technology that allows it can also stop mass illegal distribution.
*(Although the “short” here is probably not accurate, I suspect the first person to decide on 20 years for a drug thought of it as a long time).
All this talk about the technology making it impossible to protect the rights of artists IS just like we heard when cassettes and then CD’s were introduced. However, it never stopped the police from raiding high volume bootleg makers on both media.
Our police don’t do very effective raids in China.
I just don’t understand the whole “we should just give up because the technology makes it so difficult”. Hogwash, the technology that allows it can also stop mass illegal distribution.
I’m pretty sure you’re incorrect about this, but a man can certainly dream.
If, however, I make a sound recording and offer it for sale, and you find a way to make a copy of it without paying me, the situation is different.
Now that’s a much stronger statement than I was responding to. I feel like we’re going in circles.
You’re now implicitly assuming not just an entitlement to “a share of the value that their work creates”, but also the existence of (moral entitlement to?) a particular legal framework which allows you to productize recordings by prohibiting me from making a copy.
I mean, the idea that everyone should get paid, one way or another for the work they do? I can basically buy that. I was offering some quibbles with the strong form of the “entitled” formulation, pointing out that like every other kind of work, whether you’re actually entitled still depends on what kind of agreement you’ve made with the people you’re doing the work for. (The point being that in the case of the arts, the ‘client’ is often ‘all humanity’, so it’s more efficient to have some kind of standing agreement in place — but that is not to be confused with artists simply being ‘entitled’ in principle with no background agreement being necessary at all.) But, basically, yeah, people should get paid for doing good stuff.
But the further idea that the only possible moral system is one in which the payment occurs through the granting of a “right” to prevent others from manufacturing their own copies? I don’t see how that is even remotely defensible.
Does the answer to that question depend on how easy it is to take it without paying for it?
Yes, because you don’t really mean “how easy is it to take it without paying for it” you mean “how easy is it to manufacture an infinite number of copies so everyone in the world can have one”. The change in formulation should make the reasoning obvious.
Saying that the only moral system for rewarding creators is one in which you have a monopoly right which allows you to arbitrarily prevent a small piece of wealth from existing for the billions of people who value your work below the monopoly price you want to set is ludicrous on its face.
Whether granting such a monopoly is even moral (or at least, efficient) in the first place, given the circumstances, is actually an open question in my mind. To further imply that it’s the only moral way to reward creators beggars belief.
musicians aren’t making an object and offering it for sale
Seriously, WTF? They’re not?
I have some friends who will be very very surprised to hear this news.
The difference between a sound recording and a coat is that the former is easier to physically reproduce.
Which is what makes it easier to take without paying for it.
I’m just saying that intellectual property is really not at all like other property
Yes, that is correct. It is generally less tangible.
That is what makes it easier to take without compensating the creator.
And that is why we have copyright. To secure the exclusive right to IP and creative work to the authors, for a limited time, so that there will be some incentive for them to DO THE WORK.
so the idea of “stealing” isn’t really the same either.
Why not?
I made something and offered it for sale. You took it without paying for it.
Why is that not stealing? Because it was easy for you to get away with?
At least, it shouldn’t be surprising that people who are not in the business don’t see it as stealing.
That’s an entirely different issue.
And intellectual property rights seem to be becoming less enforceable. Anytime laws are almost unenforceable, they are likely to be abused and enforced arbitrarily. I don’t think it’s a bad idea to come up with other ways of compensating people, just in case this model falls apart. It worked well in the music business for a century, but it may not last forever.
I have no argument whatsoever with anything in this last paragraph.
Technology has made copyright very difficult to enforce for any product that can be digitized. That’s a problem, because it makes copyright very hard to enforce.
I’m completely open to alternate ways to ensure that creative workers get paid for their work.
But none of that – absolutely none of that – makes it any less true that authors of creative content earn and deserve a share of the revenue that their work generates.
If somebody makes something and offers it for sale, and you take it without paying for it, it’s stealing.
As a practical matter, nobody really cares if people swap mp3’s with their friends. In general, artists, musical artists at least, encourage that, because it increases their visibility and helps enlarge their market.
People generating revenue for themselves by making copyrighted material available for little or no cost, and not kicking any of the revenue back to the authors, is a different story.
But if you are listening to a sound recording, you are enjoying the work product of a musician, and most likely that musician created it with the intent of getting paid for doing so.
Also: CCDG’s summary of the history of the recording industry is IMO right on. Great summary, and thanks.
To further imply that it’s the only moral way to reward creators beggars belief.
I believe the man you are talking to is made of straw.
I don’t really care what legal, economic, or other structures we create to ensure that folks get paid for their work.
For creative workers, we current use copyright. In general, it’s effective. So, there’s a point in favor of copyright.
It’s not so effective for any work products that can be digitized. So, we have a problem.
Is there a better idea on the table? No, not really. Not yet. And no, grants and prizes are not going to get the job done. And no, a tax is not bloody likely. Seriously, a tax? What country do you live in?
But folks will figure something out, over time.
The only points I’ve attempted to make throughout this discussion are the following:
CCDG has a point when he says that reproducing people’s work without their permission and without paying them is stealing.
Why? Because, to use your language, the ‘bargain’ that the folks who created the work are offering is, if you want the work, you need to pay me for it. If you don’t agree, you don’t enter into the bargain. Just taking the work and telling them to piss off is what is not defensible.
Why do they have any right to dictate any terms at all in this ‘bargain’? Because they created the work product. They recorded the music, or wrote the song, or took the picture, or make the film.
The point you and I seem to be unable to come to any kind of agreement about is whether folks who produce work that other folks want have any right, whatsoever, to receive compensation for their work.
If we can’t agree on that basic point, there really is no point in pursuing this any further. We’re living on different planets.
Enjoy your free mp3’s.
Yes, because you don’t really mean “how easy is it to take it without paying for it” you mean “how easy is it to manufacture an infinite number of copies so everyone in the world can have one”.
As an aside, don’t f***king tell me what I really mean.
I really mean exactly what I said.
“Changing the formulation” into something you’d prefer to respond to is horsesh*t.
My guess is that we’re done here.
Thanks all!
sapient: At least, it shouldn’t be surprising that people who are not in the business don’t see it as stealing.
russell: That’s an entirely different issue.
No, it’s really not a different issue. It is THE issue. Because “intellectual property” is a construct (a legal fiction, actually) that people have to buy into in order for it to work throughout society. (Actually, it’s the same with all property, but most people understand and accept the concept of tangible property rights.)
As to how intellectual property is a different concept than tangible property: as I tried to explain, you cannot make infinite copies of a tangible object. I sell you an object that I made; I don’t have it anymore. If I sell you a license to use it, I don’t have it while you’re using it. I sell you a song that I wrote; unless I sell you the rights along with the song, I can sell that song to a gazillion other people too. And I still have it.
I’m not talking about “fairness.” If you’ve compensated a hundred times already, a lot of people don’t see why you need to be compensated thousands of times more. Those people will not be convinced out of the kindness of their heart – they just don’t think you need a million times more money for that one thing. And they have an intellectual point: how can they be stealing something you still have, something for which you’ve already made plenty of money. In addition, one can go to a party where there are lots of people and listen to music and all can enjoy one copy to the same extent as one person does. The only reason to “buy” music is for convenience. It’s not just intangible like money or stocks, which are limited. It’s very different from any other kind of property.
I understand why musicians and others who make money from copyrighted work don’t want to lose it. I myself think it’s been a reasonably good system for 100 years. But I don’t think anyone does themself any favor by insisting that intellectual property is just like tangible property except that it’s easier to steal. It’s not like tangible property at all.
It is generally less tangible.
Most often, it is intangible. So are services, in many instances. The idea that someone who produces an intangible product shouldn’t have the right to own and be compensated for what he/she produces is just–I’m struggling for an adjective here–wrong on every possible level. I can’t believe this conversation has lasted this long.
I can’t believe this conversation has lasted this long.
I think because the conversation involves the method and extent of compensation, not that compensation should = $0 (though I haven’t read all the comments and so maybe someone is arguing that position).
I really mean exactly what I said.
Alright. But it makes no sense. Downloading an MP3 isn’t “taking” anything from you. It’s copying bits.
It might result in fewer sales and less money in your pocket (in some circumstances). But that’s not the same as “stealing”.
If you’re really insisting on taking the “downloading is theft” line, than yeah, we’re probably done here.
But, just in case, I’ll give this answer another try:
It depends.
If the something is a loaf of bread, and somebody takes it, then clearly yes.
But on the other end of the spectrum, suppose I own an old office building in the middle of a major city. There’s a huge blank wall, facing a well traveled street, and so I put in a lot of hard, creative, work to paint a mural. Everyone says it’s really gorgeous and inspiring, and people who walk by obviously take a lot of pleasure in viewing it, photographing it, etc.
So I decide to set up a stand on the sidewalk, and tell people that they can’t look in the building’s direction unless they pay me a certain amount of money.
I have certainly “made something and offered it for sale”, as you put it. Is someone who walks by and looks at my wall without paying therefore “stealing” my product?
I don’t know about you, but I’d say no.
To start with, there’s no legal basis. The government is not in the practice of handing out “lookrights” that would grant me the privilege of deciding which people are and are not allowed to look at my building.
And then, even if they did, calling an unauthorized look a “theft” would seem to be stretching it. Certainly, as far as the law would be concerned, this would only be something like “unauthorized looking”, not “theft”.
To continue the example above, looking at things that are in the public view is a very easy thing to do. It’s also a very useful thing to do. Our views of whether people who stole a glance were actually thieves would certainly take both into account.
In fact, it’s such an easy and useful thing to do, we might want to ask the question of whether a legal system prohibiting looking at otherwise publicly visible things – “lookright” – was particularly moral or workable in the first place.
But how else would mural painters get paid for the obviously valuable work they do, you ask? Well, I don’t know exactly. But I think that if there are ways to make it happen without restricting the direction my eyes point, maybe we should consider looking for them.
I believe the man you are talking to is made of straw.
Not as far as I can tell. For example, you responded to the plumber example (work performed without a prior arrangement) with a statement about putting mp3s on my computer (i.e., a statement about our world, one in which copyright — the prior arrangement — exists).
That’s typical of most of your responses as far as I can tell. You’re implicitly rejecting premises you regard as merely unlikely or impractical, while in the course of making a point about what you think is fundamentally moral.
The effect is that all your arguments about how to compensate musicians or others morally are premised on your own personal assumption that copyright is the only possible practical system. All this muddling of premises and practical vs. moral, is, at the very least, making it very difficult to have a conversation. If you’re really prepared to allow that there might be other moral systems to reward creators, if only in theory, then I really wish you’d do so when responding to statements where that’s the premise.
In light of Posted by: Ugh | January 26, 2012 at 10:28 AM, I’d like to say I’m very happy that this conversation has gone on as long as it has, because it’s great, thought-provoking reading, which is what blogs are, in very large part, about.
Also, since we’re not actually making policy here, there’s not much to get upset about (just in case anyone was actually upset by any of this, and not that I don’t get upset myself at times when I shouldn’t).
Because “intellectual property” is a construct (a legal fiction, actually) that people have to buy into in order for it to work throughout society.
It’s a social construct. It’s an understanding that a society has about who has the right of ownership of a particular work.
And, as you note, so are many other understandings of who owns what.
Ownership of real property: social construct. Not all societies share it, certainly not in the ways that we understand it.
Another popular social construct: the idea that you have to have special training and a license to practice certain professions. That’s a rent, dude, no matter how justifiable.
All social constructs, embodied in and enforced by law.
Let’s put them all on the table, why don’t we?
If you’ve compensated a hundred times already, a lot of people don’t see why you need to be compensated thousands of times more.
Imagine that I own a piece of land and I rent it out to a local farmer to raise hay on. How many years can I do this before I’ve been compensated enough?
Imagine that I build a factory to make machine screws. Once I’m tooled up the incremental cost of making N thousand more screws is minimal. After I recoup the cost of building my factory, my costs are basically maintenance, raw material, and paying some folks to run the machines. My margin goes way up, I’m making lots of money. After how many thousands of screws should I reduce my price to just cover my cost, because I’ve been “compensated enough”?
If I record a song that 100 million people want, why is it legitimate for the first 100,000 of them to pay me, but the next 99.9 million not?
Seriously, I’m not sure the idea that “you’ve made enough money out of this, now you should give it away” is workable. It’s certainly not workable in any other environment, why should it be for digital products?
How many times do I get paid for the same work before I’ve made “enough”? Who gets to decide that?
What about people whose product is, basically, their expertise? The incremental level of effort they have to expend the 1,000th time they, frex, advise someone on how to set up a will is minimal. Why should they keep getting paid for that, or at least paid the same amount? Why shouldn’t their fees go down on a sliding scale commensurate with the cost, to them, of providing their services?
And not for nothing, but do you have any idea how many records get made in a year? Do you have any idea how many of those make money, for anyone?
There’s a non-trivial capital structure behind the production and distribution of recorded music. The big hits go a long way to funding that, for everyone. They help make the odd little indie stuff that only sell 10,000 copies possible.
That, BTW, is something that is also changing, because it’s technically less capital-intensive to make and distribute music. But it’s still a factor.
When records were physical objects, there was no question about any of this. If you wanted the music, you bought the physical record.
The difference now is the convenience of reproduction.
As a practical matter, it makes copyright difficult to enforce, so maybe we need a new approach.
But “sorry, you’ve made enough money off that, you need to give it away now”? When you’re ready to apply that to any other kind of way of making money, we can talk.
I’m open to finding other ways to make sure creative workers get paid. I’m not open to the idea that folks should be able to take and use their work, for free, just because they can.
Let’s put them all on the table, why don’t we?
Aren’t they already?
Aren’t they already?
Sure jack, I am going to come over to your house, eat your food, and drive away in your car. Because the idea of ownership of tangible private property is on the table.
Then, I’m going to buy a bunch of law books, hang my shingle, and start working as an attorney, because the idea of professional licensing is on the table.
Sure jack, I am going to come over to your house, eat your food, and drive away in your car. Because the idea of ownership of tangible private property is on the table.
Then, I’m going to buy a bunch of law books, hang my shingle, and start working as an attorney, because the idea of professional licensing is on the table.
Which one of us is unclear on what “on the table” means? I’m asking. It could be me.
I thought tables were where discussions took place. But I guess it is also the place where you might eat my food.
It could be me.
I think it’s you.
How many folks on this thread have suggested revisiting the social construct of private property ownership?
How many have suggested revisiting the social construct of professional licensing?
How many have suggested revisiting the social construct of copyright?
One and only one of these numbers is non-zero.
Imagine that I own a piece of land and I rent it out to a local farmer to raise hay on. How many years can I do this before I’ve been compensated enough?
Not the same thing. Local farmer pays you and raises hay. You can’t use the same land to raise hay; other local farmers can’t use the same land to raise hay. It’s limited. Your scheme might last through your lifetime but you can’t copy your income from it billions of times.
[re: screw factory] my costs are basically maintenance, raw material, and paying some folks to run the machines.
Maintening machinery, purchasing raw material, managing and paying folks, etc. – those are absolutely not trivial costs, and require continuing work.
What about people whose product is, basically, their expertise? The incremental level of effort they have to expend the 1,000th time they, frex, advise someone on how to set up a will is minimal. Why should they keep getting paid for that, or at least paid the same amount? Why shouldn’t their fees go down on a sliding scale commensurate with the cost, to them, of providing their services?
They may know how to do it, but they still have to show up and do it. And they have to figure out whether the situation they’re looking at is different from the last one or they’ll get sued.
All of the above examples involve people actually giving up something (the landowner can’t lease or sell the same ground; the factory owner has to continue to buy raw material, pay management and workers, produce, market, and transport screws; the lawyer has to show up, talk to clients, make assessments and produce a document.) In contrast, the recording artist puts his work out there, goes to the beach, and forever collects a check.
Look, I pay for all of the music I carry around on my iPod. I buy CD’s or use iTunes. I don’t mind doing it, and I don’t begrudge anyone their money. I can afford it. I subscribe to the New York Times, even though it’s easy to get behind their firewall. I respect intellectual property rights because it’s the current way we compensate some people for valuable things they do, and I’m not opposed to people being paid, especially since I can afford to buy these things.
My objection to the current regime is that the duration of copyright is way too long, and uneven enforcement is likely to punish the people who least deserve it. Also, I think there’s more room for “fair use” in the sense that intellectual property has always been widely available to people who don’t pay for it if they’ve had access to a good library, or have friends who share books, records, etc. Nobody ever called it stealing to enjoy reading somebody else’s book, so “enjoying intellectual property without paying for it” has never been the issue.
Um. That’s because it’s a thread about a copyright related law…
Or seems to be now. It (was) also about free speech. You’ll note that back then, there was a lot of discussion about revisiting social constructs/contracts related to that (or what they really mean in the first place).
Ditto the social constructs known as corporations. Lots of talk about what they are and what limits they should have. (Which certainly does touch on certain other kinds of property ownership.)
And I don’t know about Obsidian Wings per se, but I’m pretty sure there are healthy discussions to be found from time to time and place to place on matters like private property and professional licensing.
You’ll forgive me if I don’t share your view that copyright is somehow being unfairly persecuted.
Nobody ever called it stealing to enjoy reading somebody else’s book, so “enjoying intellectual property without paying for it” has never been the issue.
Good point.
How many have suggested revisiting the social construct of professional licensing?
Well, although that’s not the subject of this thread, I’d be happy to revisit it. Licensing is a regulatory system. Although it creates a privilege to engage in a certain profession, it also imposes standards. I don’t know that copyright in any way regulates artists.
One and only one of these numbers is non-zero.
But they don’t have to be. We could have any one of those discussions. Of course, there might be less reason to, because technology hasn’t changed the nature of those things nearly as much. But they’re “on the table” – as in not verboten.
If we think of copyright as something that is useful, rather than something that enforces certain notions of morality and fairness (even if it does enforce those notions), how do we best deal with new technology that makes it less useful, even if only in certain areas?
Copywriting NFL broadcasts doesn’t seem to be as much of an issue simply because no one wants copies of games to watch over and over again, potentially over the course of decades, whenever the mood strikes, as people do with music and, to some extent, movies.
It’s a bit paradoxical, that the value of a copy of piece of music is so great, in that it can be enjoyed countless times by the same person, but that that is also what makes people want to copy it for free.
Myself, I have no problem paying a nominal fee for a digital copy of a song or an album. I’d just like to realize some of the savings in the distribution costs at the consumer’s end of the deal. And eff the middle man.
Well, although that’s not the subject of this thread, I’d be happy to revisit it.
Me too. And there are some important issues to discuss there.
To the extent that it’s maybe not quite as popular as copyright, it’s because there really are exogenous technological factors driving the urgency of the conversation.
If someone invented a device tomorrow that could, say, easily and reliably download all the expertise needed to be a doctor or a lawyer or whatever into your brain instantly, I think the urgency of the conversation about professional licensing might increase considerably.
Somewhat apropos post which happened to pop up in the old feed reader just now:
http://www.antipope.org/charlie/blog-static/2012/01/hello-my-name-is-the-problem-o.html
Puts things in perspective a little bit. The world really does change radically, all the time. And reality doesn’t usually pay much attention to our own individual human difficulties in imagining how things could be — will be — completely different one day.
No, it’d go away instantly. I mean, if everyone could instantly become insanely competent as a physician, why do licensing?
But that’s kind of a diversion; there’s no such thing in the remotely near future.
I think russell’s issue isn’t so much what could change a lot in a few decades so much as the reality of right-this-second. Be here now, man.
the recording artist puts his work out there, goes to the beach, and forever collects a check.
Yes, that indeed is the life of the recording artist.
What is your feeling about people who live off of investment income? Hit a couple of home runs, get to some kind of critical financial mass, and you’re done, right? Sit on the beach and cash the checks.
Shouldn’t there be some kind of limit on how much money someone can receive for a given level of capital investment?
Or is the counter-argument that the investor can’t then use the capital for something else?
Sound recordings, movies, photographs, etc., do not grow on trees. They are *created*, most often at significant if not enormous expense and effort, by people. I assure you that those people could have done many, many other things with their money and time.
Among the reasons those people spend their time, effort, and money making those products is their expectation that they will get paid for doing so. That’s their side of the ‘bargain’, to use jack’s language.
The *vast majority* of creative products made generate little or no revenue for the creator. Quite often they are a net loss. And creating all of those non-renumerative works is another part of the cost, to the artist, of creating the ones that actually make any money, at all.
A lot of those works, BTW, are quite good, they just don’t make money for one reason or another. I can guarantee that you have some of those works on your ipod, or on your computer, or hanging on your wall. Consider them a gift, from the artist, to you. Because whatever you paid for them did not cover the cost, to the creator, of making them.
The occasional successful work is what makes all of the many years of freaking unending labor that is required to be reasonably good at any kind of creative effort worth doing.
And the folks who are extremely successful are, I can assure you, not sitting on the beach cashing checks. They are working their freaking @sses off.
Creative work is an extremely high-risk entrepreneurial pursuit. It’s f**king hard work, and there are just not that many people that are up for the level of effort and risk involved. And very few of the folks who pursue it sit around on the beach, living large off of the 99 cents you paid for their song on iTunes.
By “very few” I mean statistical noise. Absolute outliers.
As an aside, among the things I take away from this discussion is that none of the folks arguing for getting rid of copyright have any freaking idea how creative industries function. Just for the record.
I agree that current copyright law is crappy, and I agree that technology is making copyright as we currently understand it very problematic. I’m fine with the idea that we need to find better ways for folks to get paid for creative work.
What I by god will not accept is that folks who spend their freaking lives doing the unending hard work involved in doing creative work for a living are not entitled to a share of the revenue their work generates.
All of the talk of social constructs, legal fictions, etc is all very entertaining.
But folks who use other people’s work – work created and offered for sale in the marketplace – without paying for it are stealing from them.
If you want to drop an mp3 you got from your buddy on your ipod, or print a picture you grabbed off the web and hang it in your cubicle, or watch a movie you grabbed somewhere on your computer, frankly nobody is going to give a crap. As a practical matter.
But the Pirate Bays of the world are making money – sometimes lots of money – off of other people’s work and putting it in their own pockets.
People do, in fact, give a crap about that. It deprives hard-working people of revenue that they have earned and deserve, and makes it that much less feasible for creative folks to earn a living from their work.
Enjoy your free mp3’s y’all. Next time you see a musician, or actor, or film-maker, or photographer, or what have you, do me a favor and at least buy them a sandwich.
It’s the least you can do.
I doubt I have anything further of any use to offer to this discussion, so I’ma check out. See you on the flip side.
russell: If I record a song that 100 million people want, why is it legitimate for the first 100,000 of them to pay me, but the next 99.9 million not?
Seriously, I’m not sure the idea that “you’ve made enough money out of this, now you should give it away” is workable.
Well, that’s sort of the system we have now, except that it’s time limited (in theory) not copy-limited. There are differences, e.g., someone who can sell 100 million copies within the copyright time limit will receive greater compensation than someone who can only sell that many copies over a longer time frame, but once the time is up, we are essentially saying “you’ve made enough money out of this, now you should give it away,” no?
I’d just like to realize some of the savings in the distribution costs at the consumer’s end of the deal.
A 45 RPM record ca. 1970 cost about 75 cents. You got an A side and B side, so two songs.
That’s about $4 in 2012 money. iTunes downloads are generally a buck each.
Plus nowadays you can make the purchase at 2AM in your pajamas.
So, mission accomplished.
but once the time is up, we are essentially saying “you’ve made enough money out of this, now you should give it away,” no?
No, we’re saying the time period during which your monopoly lasts is over. It has nothing to do with how much money you make.
And if you sell 100 million copies in your time frame, you get paid for them.
Seriously, it’s hard for me to hear this discussion as anything other than “I should have it for free if I want to, because I can”.
Apply it to your own way of making a living and see how it suits you.
And I’m seriously checking out of this discussion before I have to go find a baby to punch.
Thanks.
But folks who use other people’s work – work created and offered for sale in the marketplace – without paying for it are stealing from them.
I don’t know why you’re not willing to address the implications of counterfactuals like my post at 10:37 (‘lookright’), or the ‘reciperight’ one, etc., etc.
But I don’t see anywhere that you have. Blind assertions like the above are going to be pretty unconvincing until you do.
russell: What about people whose product is, basically, their expertise? The incremental level of effort they have to expend the 1,000th time they, frex, advise someone on how to set up a will is minimal. Why should they keep getting paid for that, or at least paid the same amount?
This brings to mind the joke about the plumber who gives the customer a bill for $75.00 for tightening a bolt. The angry customer demands an itemized bill. The bill reads: Bolt tightening, $0.25. Knowing which bolt to tighten: $74.75.
[admission: I have been reading this thread sporadically, so I no doubt have missed some things. I appreciate the conversation and just want to say “thank you” to russell, jack lecou and others.]
Seriously, it’s hard for me to hear this discussion as anything other than “I should have it for free if I want to, because I can”.
I appreciate that that’s what you’re hearing.
I assure you, it’s not what anyone else is saying. But it’s very hard to say things in enough different ways that it will get through.
Good luck with the baby punching. 😉
…someone who can sell 100 million copies within the copyright time limit will receive greater compensation than someone who can only sell that many copies over a longer time frame, but once the time is up, we are essentially saying “you’ve made enough money out of this, now you should give it away,” no?
This is an interesting point, at least for me, because I was thinking earier about artists who create material that is groundbreaking and ahead of its time, see almost no revenue from it, but eventually create great value for generations to come. Van Gogh comes to mind.
I’m sure russell, being a jazz enthusiast, can attest to the existence of extremely talented musicians, in both the technical and creative senses, who will never sell enough of their music to match, let’s say, Justin Bieber’s earnings to date. (The commercial market place, for them, is a rocky place where their seed can find no purchase.) Years later, someone picks up a hook or an interesting rhythm some relatively obscure jazz artist made up, puts in in a pop song and makes millions.
I’m not too sure where to go with this in terms of copyright, but I thought it was interesting.
russell: No, we’re saying the time period during which your monopoly lasts is over. It has nothing to do with how much money you make.
Well neither does the number of copies, unless you’re assuming everyone has to sell their songs (for example) for exactly the same price.
And the “monopoly” is part of what people on this thread object to, or at least the extent of it, but even you agree the monopoly should be limited. So part of the question is: how? A time limit probably makes the most sense for a variety of reasons, ISTM, but that doesn’t mean a “sold-copy” limit wouldn’t be viable.
I think russell’s issue isn’t so much what could change a lot in a few decades so much as the reality of right-this-second.
Thank you.
Slarti: I think russell’s issue isn’t so much what could change a lot in a few decades so much as the reality of right-this-second. Be here now, man.
I think that’s at least part of what’s animating people arguing with russell, the current copyright regime (at least in the US, but AFAIK most other places in the developed world) is horribly oppressive, and so you get this backlash of people questioning the foundation of copyright, whereas if copyrights lasted 25 years, we wouldn’t be having this argument.
It’s almost like Roe v. Wade (I kid! I kid!)
I think that’s at least part of what’s animating people arguing with russell, the current copyright regime (at least in the US, but AFAIK most other places in the developed world) is horribly oppressive
Yes, I for one am certainly talking about the here and now.
It is, after all, in the here-and-now that prohibitions on non-commercial sharing are constituting a huge (and growing) dead-weight loss to society as a whole.
And, the point that got me into the latter half in the first place, it’s certainly relevant to the here-and-now to observe that copyright is indeed not a “natural right”, just a scheme (arguably the only practical one, but still) we currently use to accomplish a particular purpose.
(Which further implies that controlling copying and sharing is not in-and-of-itself morally obligatory, just a (possibly) necessary cost we’ll have to live with. Which some took objection to.)
Except when you’re talking about instantly acquiring all the skills of a skilled doctor or lawyer. Or when you’re talking about some hypothetical system that might more equitably, in some notionally objective way, reallocate cash flow to artists from consumers.
From this reader’s point of view, jack, you’re talking about many, many things outside of our current reality. It’s fine that you have issues with the way copyright works currently, but a complete toss-out of the current rules is NOT in the works, here and now.
Sort of OT: Spider Robinson wrote a short story years ago regarding the necessity of limiting copyright, but not of doing away with it altogether.
Except when you’re talking about instantly acquiring all the skills of a skilled doctor or lawyer.
No, that was an analogy to the current state of affairs re: copyright, where technology change has similarly spiked need/interest to discuss reforms.
It’s fine that you have issues with the way copyright works currently, but a complete toss-out of the current rules is NOT in the works, here and now.
On the level of actual proposals, I have nowhere suggested tossing out the current rules entirely. Only some (relatively) small modifications to adjust them to a changing reality.
OTOH, I have presented a lot of counterfactuals, to illustrate the problems with some of the flawed arguments some have made about why we have the current system, or how it works.
Is the difference really so hard to understand?
I find Bob Lefsetz to be one of the more thoughtful thinkers on the copyright / piracy / SOPA-PIPA issue as regards music.
NB: I’m not looking to spark this thread back up, I just got this piece yesterday via email and thought folks might find it of interest.
Yes. Those are things that are contrary to current reality, no?
Presented in a what-if-we-did-this fashion, sometimes.
Why we have the current system is not completely unimportant, but it is kind of beside the point that: this is what we have, and it will take a nontrivial amount of work and produce a nontrivial amount of change (along with nontrivial potential hardship) to move it to a different place.
These counterfactuals and assorted other rhetorics are wrapped up in a package of just-lay-back-and-enjoy-it. This may not be your intended communication, but this is the flavor that is coming across to me, and (by their reactions) others are seeing something simlarly objectionable. I don’t have the skin-in-the-game that russell and (IIRC) Phil do, so it hasn’t spun me up emotionally quite so much. Just noting how it’s showing up on this side of the screen, is all.
As always, the mileage of others may vary.
Just noting how it’s showing up on this side of the screen, is all.
Yeah, I appreciate that. I wasn’t completely unaware that what was showing up on that side wasn’t quite what I thought I was putting through on this side. The…volume of posts reflected my failed attempts to get the point through in slightly different ways, hoping one might be clear enough.
Speaking in general, I do think it’s pretty important to talk about the whys sometimes. Maybe not so much why we have the whole system, but certainly what the basis for Feature X may be (where Feature X is something that may plausibly be on the table for reform). At least it is when the “other side” is advocating strongly for Feature X on what (appears to me to be) a rather thin basis. And it’s hard to do that without hypotheticals, or analogies to equivalent contexts where the reasoning is less “obvious”.
I’d also object a little bit to the idea (which may not be quite what you’re saying) that only things we judge relatively politically tractable can be on the discussion table. Sometimes part of the hard work of political change is to introduce some far out views so that the horizons of what is “politically tractable” can expand a bit. (Not that I necessarily did a great job of that here.)