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Author Topic:   SOPA/PIPA and 'Intellectual Property'
crashfrog
Inactive Member


Message 46 of 303 (649229)
01-21-2012 3:52 PM
Reply to: Message 43 by Tangle
01-21-2012 3:32 PM


And it can't work at all for patents.

I just want to be clear, I'm neither opposed to patents nor to copyright protection. But they both need to be reformed to meet the original Constitutional intent - limited time monopolies meant to allow innovators to recoup the costs of development and research. The system we have now - where the trivial can be patented, where outcomes and not just processes can be patented, where you can get a patent on a gene and therefore hold monopoly control over any technologies that can be used to detect it (not just the ones you yourself developed), where copyrights extend into all perpetuity - is not a system that rewards innovation and creativity, it's one where those activities come with a hefty tax extracted by a small cartel of wealthy copyright owners.


This message is a reply to:
 Message 43 by Tangle, posted 01-21-2012 3:32 PM Tangle has responded

Replies to this message:
 Message 47 by Tangle, posted 01-21-2012 4:06 PM crashfrog has not yet responded

  
Tangle
Member
Posts: 2367
From: UK
Joined: 10-07-2011
Member Rating: 2.0


Message 47 of 303 (649230)
01-21-2012 4:06 PM
Reply to: Message 46 by crashfrog
01-21-2012 3:52 PM


crashfrog writes:

I just want to be clear, I'm neither opposed to patents nor to copyright protection. But they both need to be reformed to meet the original Constitutional intent

Your concerns are justified, over here in Europe, we look at the way you guys patent simple minded stuff then set legal armies out to enforce them and wince.

Edited by Tangle, : No reason given.


Life, don't talk to me about life - Marvin the Paranoid Android

This message is a reply to:
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Huntard
Member (Idle past 141 days)
Posts: 2854
From: Limburg, The Netherlands
Joined: 09-02-2008


Message 48 of 303 (649240)
01-21-2012 5:20 PM
Reply to: Message 44 by crashfrog
01-21-2012 3:39 PM


Re: Eleven Herbs and Spices
crashfrog writes:

It's basically the Amazon tax on their competitors and its a symptom of an "intellectual property" culture run amok.

Here's another one for you: Apple suing Samsung because they say Samsung is stealing their "slide to unlock" patent. First of all, the galaxy nexus is running Android, so they should be suing Google, second "slide to unlock" is patented? Jesus fucking Christ...


This message is a reply to:
 Message 44 by crashfrog, posted 01-21-2012 3:39 PM crashfrog has responded

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crashfrog
Inactive Member


Message 49 of 303 (649243)
01-21-2012 5:47 PM
Reply to: Message 48 by Huntard
01-21-2012 5:20 PM


Re: Eleven Herbs and Spices
Right, exactly. It's all about extortion and restraining your competitors.

Edited by crashfrog, : No reason given.


This message is a reply to:
 Message 48 by Huntard, posted 01-21-2012 5:20 PM Huntard has not yet responded

  
NoNukes
Member
Posts: 5343
From: Central NC USA
Joined: 08-13-2010
Member Rating: 1.4


Message 50 of 303 (649245)
01-21-2012 6:38 PM
Reply to: Message 42 by crashfrog
01-21-2012 3:32 PM


Come on. That's stupid. The notion that the Framers conceived of copyright as a way of setting up innovation-stimulating obstacles so that people would be challenged by having to find workarounds to legal impediments is risible. Is that what they're teaching in law school these days?

Not copyright law. That might be silly. I'm talking 'bout patent law.

I note that your argument is simply based on your own incredulity. You've given no reason for the founding fathers not to have thought of this particular spur to innovation. The fact is that the workaround theory does work. Attorneys are employed to help corporations find workarounds that allow avoiding royalties.

There are several mechanisms by which having a patent systems spurs innovation. The obvious one is the incentive from the monopoly. But there is also the fact that in order to get the patent, the inventor must fully disclose his idea rather than keep it secret. Even before the invention becomes public domain, others can use the published patent document to understand and improve on the invention.

To answer your question, these things are generally not taught in law school because patent lawyers are a very small minority of all attorneys. None the less, these principles are found in the case law, and patent lawyers, who also happen to be engineers and scientists, encounter the principles at work in industry. That certainly been my experience.

The result of this is a PTO that - regardless of validity - grants patents like 5,443,036: Method of Exercising a Cat (with a laser pointer.)

I'm not going to defend every bad patent that the PTO issues. But I have worked as a patent examiner and as a patent attorney. During the one year that I worked in the PTO, I never allowed a single patent. Most of my peers in the art group I was in could relate a similar experience.

Then sorry, but you don't have the expertise that you claim to:

Really. Because I disagree with an article written by someone else, I have no expertise? Please. Let me provide a different perspective.

Patent examiners can force applicants through many rounds of examination during which the scope of a patent application becomes narrower and narrower. In the end, that narrowed patent claims may issue despite not being perfectly examined. After all, patent examiners are being asked to essentially prove a negative. If their search turns up a prior invention, the examiner can positively reject claims. But if nothing turns up in the search, the examiner can never provide an absolute assurance that there is no art to be found. It is the nature of the beast that examination is imperfect.

And it would be woefully inefficient to examine patents exhaustively in the PTO because the overwhelming majority of patents have no commercial value. Once a patent is identified as important, there are a number of techniques for invalidating the patent including re-examination in which the patent is returned to the patent office for a second look using art found by any interested party.

So the nonsense that PTO policy is to leave the work for the courts is both exaggeration, over simplification, and in the end just plain wrong. Further, Congress just this year expanded the possiblities for busting patents without going to court to do so.

Returning to the exercising the cat patent (and I can provide some even more humorous examples) I don't defend the issuance of the patent, let me suggest that the patent is harmless and has always been so. The patent holder never made a nickle enforcing his patent.

On the other hand, there have been several attempts to invalidate Amazon's one-click patent, and not a single attempts has achieved any meaningful change to the patent.

If I want to see Lethal Weapon 18, but I don't have the money to afford the ticket - or believe that the film has merit, but not so much as to justify a 9 dollar ticket; or own a copy of the film for my DVD player, but wish to view it instead on my laptop or iPhone; or own a digital copy of the film downloaded from iTunes, but wish to view it on my TV via my Xbox instead of via Apple's AppleTV device; or believe the film is of major cultural importance and wish to illustrate that in my film class with representative samples of the work - then who is MGM or Miramax or 20th Century Fox to tell me that I can't do any of those things?

Some of the things you question about might be legal under the law, while others of the things above might not. But I don't see why your right to own a free copy of a movie is any greater than the copyright holder's right to be paid for a copy.

Who has the right to tell you not to pinch up a loaf of bread, a pack of balogna and a beer from the supermarket when your family is hungry? Why shouldn't I be able to nibble grapes in the produce department just because I haven't the money to purchase them.

As a matter of fact, it's exactly illegal to lend out your movies. Like they say on the back:

Don't believe everything the copyright holder tells you. MPAA will also tell you that you cannot make those time shifting copies of TV shows that the Supreme Court said in Sony v. Betamax were perfectly legal. The RIAA will deny that you have the right to rip music for use in your MP3 player despite court decisons (Diamond v. Rio) that say that ripping is perfectly legal.

The truth about what you are allowed to do with a copy of a movie can be found in 17 USC 109 (first sale), and some additional freedoms can be found in 17 USC 107 (fair use). I believe there are some additional provisions for classroom use, but I don't routinely encounter those.

The short answer is that you have the right to sell, lease, and lend DVDs and any legally made copies of movies that you own. The rules for music are the same, and there are additional rights to make digital copies of music found in the statutes. On the other hand, the statutes do not allow leasing software without the copyright holders permission.

in doing so, violated the DMCA

Which provision of the DMCA is violated by loaning out a book or a DVD. (Hint: None). I suspect that you are referring to copyright law more generally.

All should be exempt in the sense that you should not be required to pay the author of a work simply because you experienced it

Again, copyright law does not prevent you from reading a book without permission or viewing a movie without permission. I read books in Barnes and Nobles all the time. If book publishers and authors don't like that, their recourse is to make things more difficult for B&N, but they cannot use copyright law to do the dirty work.

Edited by NoNukes, : No reason given.

Edited by NoNukes, : No reason given.

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. Thoreau: Civil Disobedience (1846)

This message is a reply to:
 Message 42 by crashfrog, posted 01-21-2012 3:32 PM crashfrog has responded

Replies to this message:
 Message 55 by crashfrog, posted 01-22-2012 8:21 AM NoNukes has responded

    
NoNukes
Member
Posts: 5343
From: Central NC USA
Joined: 08-13-2010
Member Rating: 1.4


Message 51 of 303 (649246)
01-21-2012 6:52 PM
Reply to: Message 42 by crashfrog
01-21-2012 3:32 PM


And yet, of the patents granted by the U.S. Patent and Trademark Office (PTO) that are subsequently litigated, 40% are declared invalid in court...

Let's look at this stat just a bit.

In a legal dispute, rational parties evaluate their positions before litigating. Most disputes settle, and we should expect that cases where the patents are indisputably valid or invalid don't get litigated.

In fact, only the close cases get litigated to the point where a patent is upheld or found invalid. A forty percent invalidation rate sounds just about right.

quote:
More fundamentally, patent examiners are rewarded for processing applications and the easiest way to clear a file is to approve a patent

This is a falsehood of creationist level scope. I will describe the examiner incentive system for examining patents.

Examiners receive credits known as "counts" for carrying out examination functions, and each examiner must earn on average an assigned number of counts per 40 hours of examination. Under performing examiners are subject to being fired.

So an examiner is paid for accomplishing any activity that produces a count, and fired for performing too few count producing activities,

When a patent application lands on an examiner's desk the examiner initially expends considerable effort reading and learning to understand an application. No counts are earned from these activities. Accordingly, an examiner will want to wring as many counts from each application as possible; clearing the application from his desk means that the examiner must replace that application in is queue with a new application.

The examiner then searches to see if the patent application describes a new and non-obvious advance over existing technology. The examiner could allow the patent application after the first search which will clear the patent from the examiner's desk and give a count. But such actions are very rare.

1. Allowance are reviewed with considerable scrutiny.
2. The examiner must now read and understand a new application.

Or the examiner could reject the claims in an non-final office action which also yields a count.

The examiner would end the office action with rejections to the applicant. The applicant will most likely attempt to overcome the rejection. If the examiner maintains the rejection despite the applicants argument, the examiner makes his rejection final. There is no count for this, but if the applicant requests to continue prosecution, the examiner gets a count for request, which starts the process back to the beginning, and the examiner can earn a second count for a new non-final rejection. So by rejecting, three counts are wrung from the same application.

It should be clear that it is in the examiner's interest to reject claims rather than to issue a patent. US examiners are not penalized for keeping an old application on their desks.

The PTO has modified the count system since I left to give less than a full count for the second and third rounds of prosecution, but it should be pretty clear that examiners are indeed rewarded for rejecting claims.

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. Thoreau: Civil Disobedience (1846)

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NoNukes
Member
Posts: 5343
From: Central NC USA
Joined: 08-13-2010
Member Rating: 1.4


Message 52 of 303 (649249)
01-21-2012 7:05 PM
Reply to: Message 44 by crashfrog
01-21-2012 3:39 PM


Re: Eleven Herbs and Spices
Amazon didn't "invest" or "research" or do anything else to merit the "One-Click" patent; they just realized that they were the first to file for a patent on it. There's no redeeming public interest in Amazon's government-granted monopoly of "Buy Me Now" buttons on e-commerce webpages and there's no "workaround" because the patent encompasses any and all methods to achieve the same result. It's basically the Amazon tax on their competitors and its a symptom of an "intellectual property" culture run amok.

I'm not sure what your point is. I can agree that Amazon did not set out to make patentable technology, but they did spend effort developing their solution.

But in any event, not every patent spurs innovation. But I wouldn't try to defend the patent system on that basis.

In fact, I'm not really defending the system at all. I'm just pointing out some problems with the description of the system as I see it being discussed here.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. Thoreau: Civil Disobedience (1846)

This message is a reply to:
 Message 44 by crashfrog, posted 01-21-2012 3:39 PM crashfrog has responded

Replies to this message:
 Message 56 by crashfrog, posted 01-22-2012 8:23 AM NoNukes has acknowledged this reply

    
RAZD
Member
Posts: 15890
From: the other end of the sidewalk
Joined: 03-14-2004
Member Rating: 1.9


Message 53 of 303 (649264)
01-21-2012 9:18 PM
Reply to: Message 40 by NoNukes
01-21-2012 2:49 PM


Re: two types?
Hi NoNukes,

Names are not protected by copyright. And trademark law cannot be employed to prevent you from naming your child. Your fears are groundless.

It's not fear, it's the fact that trademark\copyrights reach ridiculous extremes.

The point is the naming of a company should be no different than naming a child - there are other ways to differentiate your identity.

I used to work for Bendix in the '70's ...

http://www.bendix.com/...support/trademarks/trademarks_2.jsp

quote:

You will notice that the trademarked items are names for parts, Bendix parts.

This would be utterly unworkable in many situations. Do you want to pay everytime the advanced contrast circuit kicks on in your television set.

That would be as silly as paying a royalty every time you sang someone else's song.

No, what I am advocating is payment based on the building of the TV using the circuit: if the circuit improves the TV then the designer of the circuit (and other parts of the TV) should have some recognition, not unlike the interest on a loan. Companies making the TVs would be the ones to make those payments on the loan of the intellectual property they are using.

Enjoy.

Edited by Zen Deist, : /

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Edited by Zen Deist, : ...


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This message is a reply to:
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Replies to this message:
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NoNukes
Member
Posts: 5343
From: Central NC USA
Joined: 08-13-2010
Member Rating: 1.4


Message 54 of 303 (649270)
01-21-2012 10:08 PM
Reply to: Message 53 by RAZD
01-21-2012 9:18 PM


Re: two types?
It's not fear, it's the fact that trademark\copyrights reach ridiculous extremes.

Nevertheless, you fear something that the law does not allow. Further, with regard to trademarks, you haven't described an extreme. Yes it is possible that companies in different industries might employ the same mark. There used to be Delta Airlines and Delta Faucets. Apple computers, and Apple recording company.

The point is the naming of a company should be no different than naming a child - there are other ways to differentiate your identity.

Trademarks are not company names. Trademarks are names given to products. It may happen that a company and product have the same name or substantially the same name.

I don't believe that is anyone's interest to prevent companies from having sole control of their trademarks. The purpose of a trademark is to identify goods and services in commerce for the benefit of both consumer and producer. If you spend zillions of dollars on promoting Coca Cola, why should Pepsi be able to appropriate that good will be applying Coca Cola to their product. And why do we want to confuse customers.

If the circuit improves the TV then the designer of the circuit (and other parts of the TV) should have some recognition, not unlike the interest on a loan.

How would this differ from a royalty on TVs containing the circuit?

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. Thoreau: Civil Disobedience (1846)

This message is a reply to:
 Message 53 by RAZD, posted 01-21-2012 9:18 PM RAZD has acknowledged this reply

    
crashfrog
Inactive Member


(1)
Message 55 of 303 (649286)
01-22-2012 8:21 AM
Reply to: Message 50 by NoNukes
01-21-2012 6:38 PM


I'm talking 'bout patent law.

Then you're being no less stupid.

Attorneys are employed to help corporations find workarounds that allow avoiding royalties.

When Apple figures out a way to cheaply manufacture capacitive touch screens, that's an innovation of the arts and sciences that, eventually, makes smartphones usable enough and cheap enough to be put in the hands of a lot more people. We (for varying definitions of "we") all benefit.

But when lawyers "innovate" ways to obfuscate the fact that they're patenting the trivial, or when lawyers "innovate" baroque new legal theories to help them avoid patent extortion, the only people that helps are the lawyers. The cause of the arts and sciences is not advanced in any way. The billion or so dollars a year Apple and Google and Microsoft all have to spend hiring better lawyers than their competitors is a Red Queen's Race that drives up the cost of technology. All those billions of dollars they spend to make sure they're not out-lawyered by the other guys are billions they can't spend on improving the technology they produce. It's deadweight loss, a massive transfer of wealth from electronics consumers to the "legal class."

I get it - you're exactly the kind of lawyer I'm talking about, so you naturally don't want to believe that when you go to work every day you're making the world a worse place. But you are. And you have to know that your self-serving notion that you somehow challenge the innovators by putting up meaningless legal obstacles and participating in patent extortion sounds really, really fucking stupid.

But I have worked as a patent examiner and as a patent attorney. During the one year that I worked in the PTO, I never allowed a single patent.

Maybe that's why it was only for a year.

Sorry but I'm not impressed by your anecdata. Somebody at the PTO is approving these invalid patents and its almost certainly because we've arranged the financial interests of the PTO in order to produce that outcome.

After all, patent examiners are being asked to essentially prove a negative.

No, they're being asked to do their job. And they clearly are not. How could they, with only 16 hours on average to judge the legitimacy of a patent application?

The patent holder never made a nickle enforcing his patent.

No, because he submitted that patent to demonstrate the absurdity of the US patent system. Point made, I think. You apparently have even more examples but somehow, you don't think that indicates a broken system that needs to be reformed. Amazing.

Who has the right to tell you not to pinch up a loaf of bread, a pack of balogna and a beer from the supermarket when your family is hungry?

The shop owner who will be materially deprived of the bread, the bologna, and the beer if I take them. But making a copy of a movie I never intend to purchase deprives nobody of anything they were ever going to get. Again, that's why it's not stealing - if I take your loaf of bread, you have one less loaf of bread. You're made poorer by the value of exactly one loaf of bread which you no longer have.

But my copy of Lethal Weapon 18 doesn't deprive MGM/Miramax/Fox of anything. They still have just as many copies to sell as they did before.

But I don't see why your right to own a free copy of a movie is any greater than the copyright holder's right to be paid for a copy.

There is no "copyright holder right to be paid for a copy." MGM has no right to force people to buy copies of their movies. They can only try to convince people in the marketplace that Lethal Weapon 18 on DVD is worth 18 dollars. They have no right to demand that everybody else agree that it is. And the stores that stock Lethal Weapon 18 on DVD certainly have a right to prevent people from walking in and shoplifting them, because someone who takes a DVD deprives them of one DVD to sell. But no store has a right to sue its customers because they decide to shop somewhere else with a lower price. Nobody is entitled to a sale.

Which provision of the DMCA is violated by loaning out a book or a DVD.

Specifically in the case of a DVD, when you loan it to a friend who then plays it on their DVD player, the process of which naturally necessitates that the DVD be decoded, you're violating the DMCA's anti-circumvention provisions because you're circumventing copy protection in order to violate copyright. Fair use is a positive defense: you violate copyright, but under circumstances that the government has determined can't be the basis of a copyright suit against you. But there's no DMCA provision that allows you to circumvent copy protection to violate copyright for fair use purposes.

You can certainly lend your DVD to your friend without fear of reprisal from MGM, but as soon as he watches it, you've both violated the law. You'd think a lawyer would know that.


This message is a reply to:
 Message 50 by NoNukes, posted 01-21-2012 6:38 PM NoNukes has responded

Replies to this message:
 Message 57 by Tangle, posted 01-22-2012 8:39 AM crashfrog has responded
 Message 61 by NoNukes, posted 01-22-2012 9:56 AM crashfrog has responded

  
crashfrog
Inactive Member


(1)
Message 56 of 303 (649287)
01-22-2012 8:23 AM
Reply to: Message 52 by NoNukes
01-21-2012 7:05 PM


Re: Eleven Herbs and Spices
I'm not sure what your point is.

That patents should not be awarded to extremely trivial inventions, or be issued so broadly that a single patent covers all possible solutions to the same problem. The One-Click patent is an example of both, and the fact that it has survived almost all challenge is further evidence of a patent system in need of reform.


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 Message 52 by NoNukes, posted 01-21-2012 7:05 PM NoNukes has acknowledged this reply

Replies to this message:
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Tangle
Member
Posts: 2367
From: UK
Joined: 10-07-2011
Member Rating: 2.0


Message 57 of 303 (649290)
01-22-2012 8:39 AM
Reply to: Message 55 by crashfrog
01-22-2012 8:21 AM


crashfrog writes:

There is no "copyright holder right to be paid for a copy." MGM has no right to force people to buy copies of their movies. They can only try to convince people in the marketplace that Lethal Weapon 18 on DVD is worth 18 dollars.

The obvious problem you have with this argument is that if MGM's output could be legally copied and easily distributed for free, they would sell only one copy and everyone would get it for nothing. Economic theory tells us that the demand for a free good is infinite. This means that MGM no longer exists and Lethal Weapon 18 never gets made.

Edited by Tangle, : No reason given.


Life, don't talk to me about life - Marvin the Paranoid Android

This message is a reply to:
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Tangle
Member
Posts: 2367
From: UK
Joined: 10-07-2011
Member Rating: 2.0


Message 58 of 303 (649293)
01-22-2012 8:50 AM
Reply to: Message 56 by crashfrog
01-22-2012 8:23 AM


Re: Eleven Herbs and Spices
crashfrog writes:

I'm not sure what your point is.
That patents should not be awarded to extremely trivial inventions, or be issued so broadly that a single patent covers all possible solutions to the same problem. The One-Click patent is an example of both, and the fact that it has survived almost all challenge is further evidence of a patent system in need of reform.

Couldn't agree more - this seems to be more a problem in US than elsewhere though.


Life, don't talk to me about life - Marvin the Paranoid Android

This message is a reply to:
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crashfrog
Inactive Member


(1)
Message 59 of 303 (649294)
01-22-2012 9:04 AM
Reply to: Message 57 by Tangle
01-22-2012 8:39 AM


The obvious problem you have with this argument is that if MGM's output could be legally copied and easily distributed for free, they would sell only one copy and everyone would get it for nothing.

Why would that be the case? Evidence abounds that they would sell no less copies than they would under our system of legally-binding anti-consumer DRM.

People want to patronize the artists they enjoy. The system we have now actually punishes them for doing so. How does that make any sense at all?

Economic theory tells us that the demand for a free good is infinite.

Economic theory also tells us that an infinite good will be free. But even in a world where its no problem to make a copy of an MP3, diversity and novelty are still things people value, things which are limited, and for which people are willing to pay. Thinking of artists as people who produce copies of digital files is exactly the wrong way to think about art, music, and literature. Artists are people who produce something new, and "newness" is no more an infinite resource in a freer world than it is in ours, and so people will pay for it.


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Huntard
Member (Idle past 141 days)
Posts: 2854
From: Limburg, The Netherlands
Joined: 09-02-2008


(1)
Message 60 of 303 (649299)
01-22-2012 9:45 AM
Reply to: Message 57 by Tangle
01-22-2012 8:39 AM


Tangle writes:

The obvious problem you have with this argument is that if MGM's output could be legally copied and easily distributed for free, they would sell only one copy and everyone would get it for nothing.

But distributing and obtaining free copies is already incredibly easy, and yet people still go to theatres and still buy dvds. If you are trying to argue that the only reason people do this is because it is illegal to get these free copies, I'd like to point out that in my country, it is perfectly legal to download movies and music, and yet, people still go to the theatres and still buy dvds here as well. In fact, the theatres never made more money than they did last year in a country where it is legal to download movies.
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