Subject: Re: Thought crimes
From: "Jonathan S. Shapiro" <>
Date: Mon, 25 Dec 2000 20:08:07 -0500

[Mark, Marc: This is a response to something on the Free Software Business
mailing list, but I thought you might wish to see it.]

> > The model for modern copyright law was the Copyright Act of 1709, 8 Ann.
> > 19), which was fundamentally an anti-monopoly law. Modern copyright is
> > on *preventing* monopolies of exactly the kind that the content
> > manufacturers are trying to establish.
> Could you elaborate on these two sentences ?

Rather than try to elaborate on something I don't know all that much about,
perhaps it would be better to point you to a reasonable source:

I found this to be entertaining and educational reading.

The upshot of it, however, is that the 1709 act provided a limited monopoly
to a publisher, and that this monopoly had a time limit. The act was based
on the anti-monopoly act of 1624, but even the anti-monopoly act made a
specific exemption allowing publishers to retain a monopoly. This did not
expire until 1694, when the censorship laws expired.

> > I hear people argue "company X has a *right* to
> > make a reasonable profit on their inventions." Similarly, we are hearing
> > that "company Y has a *right* to make a profit on their video,
recording, or
> > what have you. These are reasonable arguments, but they have very little
> > do with copyright or patent.
> they are not even reasonable argument ... well they have every right
> to make a profit, but a patent is a monopoly...  It is about preventing
> others from making a profit, even if they invested too.

You seem to be arguing that patent effectively deprives the "second place"
developer of their investment. I had not considered this point, and in some
cases it is clear that you are right.

I find that it is rarely helpful to start a dialog by informing the other
party that they are unreasonable. Also, I think you are focusing on my side
comment about patents. I stuck the side comment in there to broaden the
audience for the patent debate, but it wasn't the focal point of my posting
and I may not have handled it as well as I might have.

The desire to make a profit on a new work is not unreasonable at all. It is
quite reasonable for a person to say "I put a lot of work into X and I want
some return for that". It is equally reasonable for them to collect their
works together under a corporation in order to concentrate capital for the
purpose of achieving this goal.

The problem, in the end, is not that copyright or patent are irrational
ideas. The problem is that neither is holding up well against the stresses,
tensions, and changes of the digital age. For copyright, the essence of the
problem is that copying can no longer be prevented, and that John Q. Public
has not yet internalized this fact.

> > Perhaps, before we agree too readily that either change is reasonable,
> > should stop to examine the history of repression and bloodshed that has
> > surrounded similarly repressive laws in the past.
> could you elaborate on that too ... what repression and bloodshed are
> you referring to ?

Try typing "starre chamber" or "star chamber" into your favorite search
engine. But see in particular

accusations of treason against archbishops were not things to take lightly
in 1590.