Stop Digital Piracy the DVD Way

In which Jack Valenti argues:

Simply put, theft is theft, whether one pilfers a videocassette from a Blockbuster store, or distributes bootleg software or "knock-off" Pentium chips, or downloads a movie from the Web without any compensation to its creators.

Save that there is a big difference between a legislative grant of privilege like copyright and a common law crime like theft. As some of us learned in Law1 "Theft is the taking and asportation of the personal property of another with intent to permanently deprive him of same."

Assume that I buy a copy of Lee Greenwood's CD American Patriot, take it to my home, burn a copy on my personal computer, and leave both disks in my computer's two drives. I (may) have committed an offense against the Copyright Act. But is it theft?

1. Taking -- No taking. The original CD and the copy have not undergone any change in posession. I posessed them before the crime and I posess them now.

2. Asportation -- No asportation. The original CD and the copy have not been moved anywhere. They are in the exact same location they were before I committed the copyright offense.

3. Personal property -- The only personal property in the room at the time of the offense -- the computer, the CD, and the CD-R -- is mine.

4. Intent to deprive -- No one has been deprived of anything that they previously posessed so I must have lacked intent to deprive.

Hence no crime of theft.

Theft is malum in se. Wrong in itself.

Copyright violation is classic malum prohibitum. Wrong because prohibited. No moral turpitude attaches.

What's the difference? Well you won't be sent to hell for a malum prohibitum crime. It's not wrong, just illegal.

So those 55 million felons who used Napster don't have to worry about the fires of eternal damnation.

Latest Harry Potter Novel Delayed

LONDON (AP) - Fans eagerly awaiting what happens next to Harry Potter (news - web sites) probably will have to wait until next year.

The fifth installment in the wildly successful series of novels about the teen-age wizard and his friends had been expected to fly into stores this summer, but a spokeswoman for J.K. Rowling said Thursday that the author is unlikely to finish writing before the end of the year.
...
The first, "Harry Potter and the Philosopher's Stone," published in the United States as "Harry Potter and the Sorcerer's Stone," came out in 1997. The next three followed at the rate of one a year.

So here we have an example of massive cash infusions secured by copyright protection reducing creativity. As history's putatively highest paid author, J.K. Rowling takes more than two years to crank out a novel. As a humble "dole mom" she was a much faster writer. The Supreme Court please note.

Copyright can hurt.

Two articles appearing on the front page of two major national newspapers on Monday 06 May 2002.

U.S. Says It Will Not Support International Criminal Court

In which the New York Times tells us that President Bush has decided to cancel Clinton's signature on the Internetional Criminal Court treaty.

It has been preceeded by and will be followed by much weeping and wailing about US isolationism and so forth.

In the course of this blather, we are told over and over again that individual Americans don't have to worry about being hauled before the ICC for crimes like, say, racist writings.

Meanwhile, a Somali living in Sweden is declared a terrorist financier by the US and the UN and finds his money and his life frozen. It can't happen here, can it?

Crackdown on Terrorism Financing Ties Hands of Businessman in Sweden

Eugene Volokh on the present value of the Sonny Bono Copyright Extension

I also argue that the prospective portion of the Act, which lengthens protection for works that will be created in the future, is unconstitutional, though less clearly so. My contention here is that the extra 20 years tacked on to the tail end of a work's life won't give anyone any meaningful extra incentive to create; the discounted value of that protection is so small as to be meaningless. But I realize that that's a tougher argument to make.

The Sonny Bono Copyright Extension Act tacked 20 years onto a copyright which already lasted 50 years after the creator's death. So Volokh's argument is that the present value of this future income stream is too tiny to justify copyright (which must be justified because it restricts 1st Amendment rights).

So what difference in income does this extra 20 years make? Assume that the average creator creates his work at (the average age of) 40 and dies at (the average age of) 80. He used to get 40+50 years of protection (40 living and 50 dead). Thanks to Sonny he now gets 40+70=110 years of protection.

Note that I had to use 5 decimal places otherwise the difference at 10% discount was less than one cent.

Also be sure to note that the percent increases in income thanks to Sonny are spread out over 20 years (after the creator has been dead for 50) and are less than 1% for most discount rates.

An economist would also note that the value of income received after death would be further discounted for most people given that they can't spend it.

Eugene Volokh solicits proposed constitutional amendments.

CONSTITUTIONAL AMENDMENT: Here's a completely unrealistic but possibly amusing thought experiment -- imagine that you had the superpower to add one amendment to the U.S. Constitution. (Let's call you Amendmentman or Non-Article-V-Woman.) What would it be?

Sky's the limit, no? But remember: All you're doing is adding the amendment; then you're walking away. The amendment will be interpreted and enforced (or ignored) through the normal political process. An amendment saying, for instance, that "All politicians shall be honest and focused on the best interests of the nation" will therefore mean nothing, because it will be entirely unenforceable.

The amendment will also be repealable through the normal process...

So, you want us to design a "Magic Bullet" constitutional amendment.


Actually designing such an animal would take more time than the normal
Blog cycle.


It would have to be really tricky with some kind of stinger buried in it
which would both discourage repeal and weaken the Party of Government.


Ayn Rand had one of her characters drafting an economic derugulation
amendment at the end of Atlas Shrugged. Something like "Congress shall
make no law restricting freedom of enterprise..."


The Liberty Amendment has long been popular in "anti-government"
circles.


Ron Paul introduces it every session. It outlaws the federal income tax
and tries to enforce the 9th and 10th Amendments by restricting
government activities to those specified in the Constitution.


http://thomas.loc.gov/cgi-bin/query/z?c107:H.J.RES.45:


In "The Moon is a Harsh Mistress" Heinlein proposed a bi-cameral
legislature with one house solely charged with repealing laws.


In "Utopia, Ltd" Gilbert and Sullivan decided that the perfect form of
government was "dictatorship moderated by dynamite". Rule was by an
absolute dictator moderated by the existence of two "Public Exploders"
who's job it was to blow him up if he got out of line. They in turn
were restrained by the fact that if one blew up the dictator, he had to
become the dictator in turn.


My mother thinks that repeal of the 19th Amendment would do the trick.
That would actually help but the legislatures would probably restore
female suffrage before its absence had time to work.


I would say that in order to do any good, the Amendment would have to
be:


1) Simple and limited (to discourage judges from misinterpretation).


2) Of widespread impact to maximize the damage and make repeal harder.


Taxes would seem to fit the bill. A broad tax measure would give plenty
of people the incentive to take advanntage of the amendment and sabotage
repeal.


Off the top of my head and working at Blog speed, I would think that a
repeal of tax withholding (Milton Friedman's unfortunate gift to the
Internal Revenue Code) would do the most good.


If all withholding (federal and state; income and FICA) for tax purposes
was banned, then the populace would be forced to write big checks once a
year to their rulers (many of which would bounce). This might serve to
educate them on the size of government and its personal impact on their
lives. Tax administration would also become much harder.


DCF