polygon
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response 172 of 206:
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Sep 26 01:41 UTC 2000 |
> Tell ya what, polygon. Since you're prepared to dismiss all of my
> sources and unwilling to provide anything beyond an "If I recall
> correctly...",
For crying out loud, I don't work in a law library, and I'm not interested
in always waiting to make a response until I have all kinds of reference
books handy. I *did* look up that definition earlier, and I'm sorry that
I had to use weasel words because I didn't have it word for word in front
of me. Now I do.
Larceny: Fenonious stealing, taking and carrying, leading, riding, or
driving away another's personal property, with intent to convert it or
to deprive owner thereof. The unlawful taking and carrying away of
property of another with intent to appropriate it to use inconsistent
with the latter's rights. Black's Law Dictionary, citing U.S. v.
Johnson, 433 F.2nd 1160.
There's more, but it refers constantly to "carrying away" and "personal
property".
The definition of Theft, admittedly, raises the possibility that
meaning is somewhat broader. It starts out by calling theft "A popular
name for larceny," but follows up with numerous legal definitions similar
to the above. It goes on to discuss things like swindling, embezzlement,
obtaining unauthorized control over property, and even "obtaining control
over property knowing the property to have been stolen by another," which
would cover my fencing example. And after the end of the main entry,
there is a separate subheading for "theft of services," which does suggest
that the word can be used in an intangible context.
> I'll make you a deal:
> Let's stop using the word "theft" entirely, both of us. As far as I can
> tell, there's universal acceptance of "larceny" and "infringement,"
> while legal sources differ as to whether "larceny" is a synonym of
> "theft" or a subset of "theft."
Agreed. That makes sense. You have a deal.
I should point out that, as far as I'm concerned, "infringement" is still
a pretty heavy-duty word. See the anecdote I posted a couple months ago
in Agora.
> So I'll take back all of my comments about "theft" if you'll stop making
> snarky comments about me being indifferent about the meanings of words
> and buying into the propaganda machine. I am suggesting a bilateral
> cessation of ad hominems in favor of mature discussion, and will
> practice a unilateral cessation.
That is also sensible. Agreed.
> The distinction with the boat makes sense now that I think about it. The
> relevant issue, as I understand it, is that the person who takes the
> boat returns it without ever having inconvenienced the rightful owner
> (or any sgent thereof). So that's what makes it not larceny, yes?
Right -- larceny involves the intent to deprive.
> I'm not sure about the relevance of the example. It's not like
> Napsterites are planning on deleting the tracks from their HDs once
> they're done listening to them (and, in listening to them, somehow
> saving the life of a drowning child).
Agreed here, too.
> The example was provided, I suppose, to give an example of an act of
> taking someone else's property that wasn't, properly speaking, larceny.
> Granted, then. Meant to question my claim that intent is irrelevant to
> the act of larceny (and, by extension, infringement). Not granted,
> because the element that makes taking the boat not larceny is because
> the boat is put back... if the boat were taken to save the drowning
> child, and then never returned, then (by my understanding, and polygon,
> do correct me if I'm wrong), the act is still larceny.
Technically the issue would be intent at the time of taking, but I won't
quibble. Even if there wasn't intent at the time of taking, the decision
to keep it would presumably be the requisite intent.
> That is, is a mugger not guilty of larceny if he mugs in order to feed
> his starving children? What makes the act larceny is that there is no
> intention to return the object that's taken... and that's where "intent"
> is relevant. What I meant earlier when I said that intent is irrelevant
> to [larceny and infringement] is that the person's INTENT -- that is,
> reason -- for taking the object doesn't mitigate whether it's illegal
> (although it obviously mitigates the extent of the punishment that's
> meted out).
Right, exactly -- intent matters, but motive doesn't.
> I was in a debate on software piracy in which one person argued that he
> wasn't guilty of infringement per se when he used a technically illegal
> copy of software if he fully intended to either delete the software
> after a self- imposed trial of 30 days or pay for the software in full.
> I suppose the same argument could be made by some users of Napster, as
> well... I've had friends borrow my CDs to test drive them while they
> decide whether to buy their own copy (by my understanding, a fully legal
> act, so long as it's a legal copy).
I'm not sure about that. That scenario may not even be technically legal,
but I can't say for sure.
> Personally, I still feel that infringement is infringement is
> infringement, and if there's anywhere the analogy between larceny and
> infringement breaks down, it's in the direction of making infringement a
> worse crime, because if you abscond with someone's boat, you can make
> reparations later by returning the boat, but if you allow 500,000
> Napsterites to copy your Metallica MP3, it's much harder to track down
> all of those people and make them delete their copies (and many of them
> have probably already given a dozen friends copies, and so on). The only
> reparation that can be made easily is to pay royalties (which is what
> the RIAA really wants anyway, money money money).
The only trouble with infringement being infringement being infringement
is that the law is complex and keeps changing (as does the market). A
Napsterite downloading a Metallica song is guilty of copyright
infringement, sure, but I'm a little troubled by some of the implications.
For example, I can go to the library and make a photocopy from a book for
my own use, take home the copy, use it to my heart's content, and that's
not infringement, it's fair use. Indeed, I could copy an entire book,
and indeed, I have done so, and if it's for me to use at home, it's still
fair use. If the RIAA manages to "get" Napster, might that have
implications for personal-use library photocopying? What's the difference
between making a copy of a song from a public source, and making a copy of
a book from a public library, that one should be punishable, and the other
protected?
On the other hand, if I take just a few chapters of the same book, make
ten copies, and distribute it to my class, without permission, then I
would probably be infringing (though some argue that it makes a difference
whether someone is making a profit on the deal). This is more or less the
case that Kinko's lost.
> Also, with the "test drive" issue (both for software and music), there
> are enough resources out there that if a company seriously wants to
> allow users to "test drive" their software or music, they will. If they
> choose not to allow that to happen, that's their moral (and currently,
> legal) right, since they came up with it in the first place.
Right, I think. I admit that I'm not very interested in the "test drive"
issue.
> Issues like mandatory licensing and Napster go against the philosophy
> this country was founded on. Mandatory licensing, for instance, says
> that, while the creator of art should be compensated for that art, the
> art itself belongs to the culture, not the creator. That's simply not
> true.
I'm not sure I agree with that fully. Not that I'm advocating any
mandatory anything.
> The spirit of intellectual property law (at least, before the lawyers
> mucked it up in all directions) is that the creator can decide whether
> to give the art to the culture, or to hoard it.
The pre-1976 U.S. copyright law was that if you published it, it reverted
to the public domain in either 28 or 56 years depending on whether you
renewed the copyright. If you didn't publish it, the copyright was yours
forever. So, sure, you could create something and hoard it, but you
couldn't publish it and then withdraw it and hold it back forever.
The new copyright law covers both published and unpublished work. Though
at any given time, copyrights are scheduled to expire, as soon as that
date approaches for any works, WIPO and Congress extend the term of
copyrights to prevent anything from slipping into the public domain.
This is contrary to the Constitution, which gives Congress the power "To
promote the Progress of Science and useful Arts, by securing for LIMITED
TIMES (emphasis added) to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries."
> While the most moral course is to release it for sufficient compensation
> to make a decent living (or for no compensation when a decent living can
> be made elsewhere), it's a personal moral choice, and as immoral as it
> may be to hoard cultural artifacts and demand excessive compensation for
> them, it's also immoral to force your own morality upon someone else by
> acting in a way that's indifferent to them.
But society makes moral judgements all the time, and enacts them into law.
Not everybody agrees. Too bad.
I do kind of sympathize with your riff on the unrepetant Napsterites, and
I suppose it serves them right if they're arrested. However, my contempt
for them is blunted by my view that the RIAA and its allies are advocating
(and have already successfully enacted some) subtle but far-reaching legal
changes that will be a disaster for society and the culture. In other
words, the RIAA really is, if not literally evil, certainly bad enough
that I won't be cheering for their legal victories.
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brighn
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response 173 of 206:
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Sep 26 03:12 UTC 2000 |
But society makes moral judgements all the time, and enacts them into law.
Not everybody agrees. Too bad.
--
Which is why I prefer to talk about ethics rather than law. Too many laws are
morally abhorrent to me. I follow them (for the most part) because I recognize
it as a cost of living in a civil society. *shrug* And because there are
enough laws in this country that *are* good, and because this country is one
of the better ones on the planet right now.
For the bit about the RIAA, I find it sad anytime one agency has so much power
in an industry that it can dictate matters of law. The movies have the MPAA,
the comics have the Code, music has the RIAA, and so on... if you're not "in"
with the governing body, you can be leveraged out of serious distribution.
And I don't question that the RIAA exploits its power... the speed of the
spread of the Tipper Sticker is anexcellent example. (I also find it sad that
every major entertainment industry has allowed the government to strong arm
it into setting up "voluntary" rating systems that are now being enforced
nearly with the force of law in increasing jurisdictions -- I understand that
it's not technically *illegal* to let a 16 year old into an R-rated movie,
but movie theaters act as if it is. (I find this especially sad because I
think voluntary ratings ARE a good idea, but only if they remain as parental
guides, rather than replacing parental judgment, which is what has happened.))
Anyway, all that aside. It's an issue of, Does the RIAA's amoral or immoral
behavior justify infringing them, and in so doing injuring artist who are
genuinely trying to protect their copyrights? I've said it before, I'll say
it again -- Most of RIAA's biggest interests arent art, they're commercial
tripe, and as such, the concept of protecting the artists and the creativity
is bunk. An industry that gav us Samantha Fox, Milli Vanilli, and NSync isn't
really all that interested in the foundations of artistry and creative growth.
I'm not sure if photocopying an entire book from the library *is* entirely
fair use. Legally, it may be (but I thought it wasn't). Morally, I don't feel
it is, unless (and pay attention here, McNally) the work is otherwise
unavailable (hear that, McNally?). Most of the photocopied books that I have
are out-of-print (the rest were made at a time when I just couldn't afford
another $50 academic press book).
Other odds and ends --
Thank you for providing the source. As a lawyer, you demand precise use of
words with precise legal definitions; as an academic, I stress the importance
of actual citation. Not that I always do it myself. ;}
Motive is clearly the word I meant. My mistake, and sorry it caused so much
confusion.
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