5 ms·

Stephan Kinsella makes a great case that the only reason we have a concept of "Fair Use" is that copyright law is so moronic that people would revolt if they di

• brookst 4y ago
  Ugh, it's always depressing to see people whose whole worldview depends on treating the law as a programming language. They put so much effort into building these elaborate arguments, and they are oblivious to the embarrassment everyone else feels for them. > If I can make "Fair Use" of your book, why not your bed or your house? Maybe because copyright is intended to encourage creative works by guaranteeing a theoretically-temporary monopoly on investment, and that guarantee is provided by the government, which has a competing interest in ensuring that people are educated and free to comment on any and everything, without being required to buy them for the privilege of commenting. So fair use is a compromise that says that exclusive right to distribute and profit has an exception for, among other things, commentary, education, and derivative works. Despite the imaginings of idealists, none of this is coming from a place of platonic ideals about what property means. Therefore it should be totally unsurprising when there are logical inconsistencies between how we treat e.g. a Brittney Spears song and, say, your house. Because... they are different.
  • jamiek88 4y ago
    Yea and IP is a colloquialism anyway for copyright, trademarks, patents, and trade secrets there isn’t a specific amendment or common law of ‘ideas are same as houses’ just an imaginary gotcha to a mistaken interpretation.
    • brookst 4y ago
      Yep. It's like people who think they've had an epiphany that says something about physics when they discover that the things Americans call "shock absorbers" do not, in fact, absorb shocks.
      • Dylan16807 4y ago
        > the things Americans call "shock absorbers" do not, in fact, absorb shocks. ?? "A shock absorber or damper is a mechanical or hydraulic device designed to absorb and damp shock impulses."
        • brookst 4y ago
          Springs are what absorb impacts. Shocks, or hydraulic dampeners, are what keep you from bouncing on the springs forever after hitting a bump. They're a system, but a car with dead shocks will still absorb bumps without transmitting to the cabin, it will just make you seasick.
          • Dylan16807 4y ago
            You're using a strange and overly narrow definition of 'absorb'. The springs and dampers are both taking in the kinetic energy. And only one of them does it permanently, and it's not the springs. I'd rather drive a car with (pressurized) shocks and no springs than drive a car with near-ideal springs and no shocks. I bet the former would absorb bumps much better than the latter.
  • breck 4y ago
    You are uninformed on the topic. I suggest watching some Stephan Kinsella videos.
• lewhoo 4y ago
  "If I can make "Fair Use" of your book, why not your bed or your house?" I don't buy this. These kind of ridiculous parallels come from the assumption that it is ok to equate a book, a bed and a house for the purpose of the argument.
  • nemo44x 4y ago
    It's such a bizarre argument I'm not even sure how they logically got there. A bed and a house are physical things. A song is an idea. We literally call it "intellectual property".
    • kmeisthax 4y ago
      The argument isn't that we should start allowing people to make fair use of your bed, the argument is that we shouldn't use the phrase "intellectual property", because no other property right is this permissive with unauthorized use and exploitation. The rhetorical technique Stephan is using is reductio ad absurdum, or "reducing to the absurd."
      • lewhoo 4y ago
        Except maybe public property which is arguably even more permissive ?
        • Dylan16807 4y ago
          That's because "property" normally implies private property, so adding the word "public" inverts it. It's not merely another category of "property". Public IP is called the public domain, and is the most permissive of all.
          • lewhoo 4y ago
            I'm not so sure about that. Public property is a category of property assigned typically to a defined community. For example, citizens of Russia don't have the rights to use at least some of the public property means of USA and so on.
• kmeisthax 4y ago
  This argument is mildly ahistoric. It's moreso that artists would revolt if it wasn't watered down a bit - the people as a whole didn't really pay much attention to copyright until way after fair use was a thing. Fair use was legislated from the bench. The Supreme Court had a case[0] in which someone had paraphrased someone else's biography on George Washington in a "change it a little so the teacher doesn't catch on" kind of way. They needed a reason to explain why this particular rephrasing could be infringing copyright, without expanding the scope of copyright as to trample upon the First Amendment. So they invented the concept of separability of copyright, derivative works, and fair use in the same court opinion. They basically said "yes, it's infringement to only take part of a work, unless that would impede upon free speech, and here's the factors for where we draw the line between the two." For the record, this court opinion is so old that the biographers in question could have interviewed people who actually served alongside George Washington. Fair use was entirely a creature of case law until the 1976 Copyright Act codified it - and the four factors in that act are taken directly from that case. People wouldn't start caring about copyright law until the 80s and 90s, when technology started giving people the practical means to violate copyright law. At this point fair use was already well established. Furthermore, there are countries that do not have fair use[1] and they did not revolt against copyright earlier than we did. The inciting incident for people revolting is just the fact that copyright is in the way. I entirely agree with the idea that fair use undercuts the nomenclature of calling copyright a property right. Though I wonder what Stephan Kinsella thinks of things like UK right-of-way laws, which actually did[2] let you make a 'fair use' of private land you don't own. [0] https://en.wikipedia.org/wiki/Folsom_v._Marsh https://en.wikipedia.org/wiki/Folsom_v._Marsh [1] Fair use (and it's sister concept of fair dealing) is actually very much an Anglosphere concept! Of course, the EU has exceptions to copyright that amount to the same thing, except they're entirely defined by legislation, since many of the EU's countries are civil law regimes (i.e. precedent is called jurisprudence and we don't treat it with the same regard). Japan is said to not have fair use in the actual sense of it actually being illegal to review a creative work without permission; I imagine this is moreso because nobody is actually willing to sue to censor a review. [2] The reason why this existed was because, among other things, there was no central database of right-of-way and legally-recognized paths could be centuries old. Recently they actually put a cut-off date on new right-of-way paths and created an actual database of them, which ends the fair-use-like murkiness they once had.