[conspire] Book Burning continues thanks to the Feds

Rick Moen rick at linuxmafia.com
Thu Mar 24 18:39:33 PDT 2011

Quoting Ruben Safir (ruben at mrbrklyn.com):

> Copyright under US law and under English Common Law is not property
> and it is only a matter of time that the Bern Convention is found
> unconstitutional.

I've already explained to you why it's totally _irrelevant_ whether you
are willing to apply the label 'property' to copyrights (or patents, or
trademarks, or trade secrets, or bonds, or stocks, or stock options, or
leaseholds, or fiat currency, or company scrip, or credit default swaps,
or mineral rights).  The relevant fact is that there are exclusive
rights under law (which is what sane people happen to call 'property', a
point I'll return to, below).  It is incontrovertible that Google's
now-failed settlement proposal would have given it special,
unprecedented, court-ordered, proprietary access to exploit other people's
rights for purposes of its own corporate profit -- other people who
weren't even part of the lawsuit.

You decided to ignore that relevant underlying facts, and try to sucker
me into a symbolic ideological battle over the word 'property'.

This is, of course, ritualised Internet combat at its worst, and is
one of the several ways you tend to make yourself obnoxious and somewhat
notorious on Internet mailing lists, Ruben.  By yammering on ideology,
and falling back on verbose preprepared talking points, you usually wear
most people down, and you walk away thinking you've impressed people,
after they merely got tired of arguing.

And, as my saying goes, 'It's easier than thinking.'  However, being the
sadistic bastard I am, I'm going to _force_ you to think.  Watch me.
This is at least a little reminiscent of the way it's done in law class.

_Despite_ your problem with the word 'property' being an irrelevant
side show by which you attempted to sidestep the entire point, I'm not
going to stand for that sort of ideological bullshit, either:

> Copyright under US law and under English Common Law is not property

Title 17, Chapter 106 of the United States Code is suddenly _not_
'US law'?

  106. Exclusive rights in copyrighted works

  Subject to sections 107 through 122, the owner of copyright under this
  title has the exclusive rights to do and to authorize any of the

  (1) to reproduce the copyrighted work in copies or phonorecords;

  (3) to distribute copies or phonorecords of the copyrighted work to
  the public by sale or other transfer of ownership, or by rental, lease,
  or lending;

  (5) in the case of literary, musical, dramatic, and choreographic
  works, pantomimes, and pictorial, graphic, or sculptural works,
  including the individual images of a motion picture or other audiovisual
  work, to display the copyrighted work publicly;

What, if not property, -=is=- an 'exclusive right' guaranteed by law?
Again, we'll get back to that point, but first, I have to blow up
another bullshit objection:

> It is a limited monopoly for the expressed purpose of assuring only a
> single purpose

No.  _Nothing_ in law requires that the exclusive rights be used for any
'single purpose'.   Constitution Article I, Section 8, Clause 8 states
a general _rationale_ for legal recognition of the general category of
legal concepts implemented separately as copyrights, patents,
trademarks, and trade secrets:  'promote the Progress of Science and
useful Arts'.  You will not be able to cite a single court decision or
statute where the courts or Congress said 'Hey, you can't have that
copyright ownership, because it doesn't promote the progress of science
and useful arts'.  You can't, because it doesn't happen.

Back to exclusive rights.

Let's consider a 10-year 10k municipal bond that my mother bought back
in 1982.  It's intangible, just like a copyright.  It's an exclusive
right, just like a copyright.  It exists for a limited time, just like
a copyright (Church of Scientology and the Sonny Bono Copyright
Extension Act permitting).  It is abstract and exists only because a
legal framework for that purpose permits it to, just like a copyright.
It can be sold, rented, and monetised in sundry ways, just like a

_It's a property_.  Why is it a property?  Because it acts like a
property.  In business law, we are taught that any property is 'a bundle
of rights'.  Even real estate is a bundle of rights.  That nice house in
Brooklyn?  You don't own the mineral rights, in all likelihood.  That
isn't in the bundle you own.  Maybe there's an encumbrance for a utility
line.  That was carved out of the bundle you own.  You have a bundle of
some rights; you don't have others.  They come attached to a long
retinue of woeful obligations, too.  

Life is complex, and there are also taxes.

> [Google scanned books 'largely out of print']

>> Sorry, this _doesn't even contradict_ what I said.
> Yes - but it was recognized by the court as a factor, Chin just didn't
> think it was important enough because he has his head up his tuchas,

You seem to be at some pains to ignore what I said.  Let me restate it:
The fact that the books Google scanned and republished on the Web under
proprietary terms without the copyright owners' permission included
out-of-print works, which you cited as an objection to what I said
upthread, _doesn't even contradict_ what I said in any way.

It's irrelevant, and in fact you were basically repeating what _I_
said as if it were an -objection- to what I had said.

_Who_ here is having a problem distinguishing his punim from his tuchis,
Ruben?  I don't think it's just Judge Chin, bubeleh.

>> Untrue unless you mean 'and thereby commit copyright violation and
>> risk owing huge damages'.
> They are lazy.  Anyone can scan it.  There is no copyright violation
> in scanning it no matter how much twittle-bots wanted the court to
> bring Google to bankrupcy because they had the nerve to scan whole
> libaries for the first time, which until now had no public access.

Again, Title 17, Chapter 106 of the United States Code is suddenly _not_
'US law'?

> And a lot of those works, it turned out, ended up being lost Jewish
> Religious works, such as the Sifri.

The Sifre I'm aware of (and of course I have roughly bupkes in the
way of yeshiva bucher credentials, other than my goyisher kopf),
including the lost ones, date form the Talmudic era, and thus are beyond
the reach of even the late Congressman Bono's bought-and-paid-for

If someone wrote some sort of midrash in the 20th Century based on the
extant two Sifre (on Bamidbar = Numbers and Devarim = Deuteronomy), then
the 'patch' would be under copyright.  I hesitate to suggest promoting
'free culture' licensing ideas to the dossim, as they're probably way
ahead of me on that.  (You tell me.  I'm just the blond gentile agnostic 
guy with the Lutheran ancestors.  ;->  )

>>> Law that thinks about this as "property" needs to be reversed and
>>> google should start to lobby for a change in the law.
>> Maybe yes, maybe no, but completely irrelevant to present discussion.
> It is essential to the current discussion.  Google's approach to this
> has been naive.

{choke}  In what universe has Google's legal team ever been naive?

They tried an amazingly cheeky land-grab in _their own interest_ -- not
because they're angels trying to get greater rights for anyone else
(which in fact THEY DIDN'T).  It might have worked, at least until
challenged in higher courts.

>> Finally, I notice you have so far disregarded my other serious
>> points, e.g., the summary jettisoning in the now-rejected settlement
>> of antitrust concerns, censorship protection, and privacy.  Sorry to
>> see that.
> The only antitrust that concerns me is the one there publishers
> prevent the publics access to information.

Then, you weren't paying attention.  The now-rejected settlement
would have given Google, Inc. privileged access to other people's
copyrights, privileged and arbitrary rights to users' private access
data, and give them a near-total lock on Internet search.

>> [1] History's first recorded instance of two-factor authentication:
>> Sefer Shoftim 12:5-6.  Fortunately, I have an excellent Gileadic
>> accent.
> I'll look into it.

I'm afraid this was just my deadpan Scandinavian sense of humour.

  And the Gileadites took the passages of Jordan before the Ephraimites:
  and it was so, that when those Ephraimites which were escaped said, "Let
  me go over"; that the men of Gilead said unto him, "Art thou an
  Ephraimite?"  If he said, "Nay"; Then said they unto him, Say now
  "Shibboleth": and he said "Sibboleth": for he could not frame
  to pronounce it right. Then they took him, and slew him at the
  passages of Jordan: and there fell at that time of the
  Ephraimites forty and two thousand.

The tribe of Ephraim had a problem pronouncing the letter shin ('sh'),
which they pronounced identically with samekh ('s').  So, they got
put to the sword on account of failing two-factor authentication:
the password 'shibboleth' = stem, stalk (thus, something you have)
plus the politically correct accent (thus, something you are).

> But under current Copyright, the Gemora could [not have] even come
> into existence

Had it arisen under the current Berne-oriented copyright regime, the
Gemara would have required license from Yehuda ha-Nasi (or heirs
thereof).  ;->

> Technically speaking all the copyrighted works do go to the government
> when they are registered, hence the LOC.

No.  As someone else has pointed out, the Library of Congress's
Copyright Office is merely a place where one may optionally register
one's copyright assertion by filling out a form and submitting a $35
fee.  The benefit is that the copyright owner has now, in the eyes of
the law, carried out constructive notice of his/her copyright to any
infringers.  Thus, if the owner ever sues, he/she can collect statutory
damages plus attorney's fees.  Without registration, the owner can sue
only to enjoin further infringement, and for proven actual damages.

Rick Moen               "If you watch Black Swan backwards, it's a movie about 
rick at linuxmafia.com     a psychotic girl who benefits from ballet therapy."
McQ!  (4x80)                                           -- knnth_dh

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