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>If the government takes your land and gives it to the public to build a new road, the Constitution says you have to be compensated. If the government takes you

>If the government takes your land and gives it to the public to build a new road, the Constitution says you have to be compensated. If the government takes your standard and gives it to the public to build a new law, it seems like the same conclusion should apply. The situations are different. In the case of eminent domain the individual(s) lose physical access to their property, whereas with a standard, no damage is done to the individual(s)' ability to use it, as only copies are being made.

dragonwriter 10y ago
Both in practice and Constitutionally, eminent domain and the associated right of compensation applies to property generally (including both real and personal property, and, in the latter case, both tangible and intangible personal property.)
- jsprogrammer 10y ago
  Publishing a copy is not taking. Taking would be something like declaring exclusive use over the work (taking the copyright itself). Publishing a copy of something that already exists is an independent action that doesn't affect copyright holders' use of their property.
  - dragonwriter 10y ago
    > Publishing a copy is not taking. "Property", whether real, tangible personal, or intangible personal, is a legal power to exclude others from certain actions with reference to some thing. Limiting some part of that exclusive power while leaving the owner title to the property and with the rest of the exclusive rights is still a taking of property, so even if what the government did with regard to copyrights was less extensive than actually seizing the copyright, it would still be a taking (similar to using eminent domain to take an easement or right-of-way, leaving the owner of land the title.)
  - nicerobot 10y ago
    I see it as taking the copyright holder's control over their material, not taking the material itself. In other words, if someone publishes your works for free that you would otherwise charge for access, they haven't taken your work, they've taken your control over the access to it.
- wahern 10y ago
  While eminent domain is a rule in property law, that's not the same thing as saying that it applies to property generally. Copyrights and patents are regulatory property. They're created by government, and what rights such property entails are defined entirely by the government. All "property" is conceptually fictional, but government is effectively restricted from, for example, redefining the meaning of real property in a way that subverts constitutional protections against takings. I don't know what the law is in this area, or even if it's settled, but I can easily imagine a scenario where the courts say that if a government implicitly or explicitly changes the rights that attach to _their_ grant of regulatory property, that such a change is not a taking (i.e. expropriation of property) for which the constitution requires compensation. The opposite is certainly allowed. For example, SCOTUS has said (at least in dicta, if not in binding rule) that Congress can put back under copyright material that already fell into the public domain, even though other people have already relied upon it. Generally, when discussing regulatory property and regulatory takings, the courts assume there are implied limitations to your rights such that merely because the government restricts your property rights causing you financial hardship, it doesn't necessarily follow that there was a taking of property. This is why zoning laws passed after you purchased your house can be enforced without the government being forced to pay you. When the first American zoning laws were passed and challenged in court, SCOTUS said that zoning restrictions weren't per se a taking because it was always implied that real property rights were subject to implied restrictions related to public health & safety. (Common law nuisance was used to support the argument, but crucially a nuisance is a manifest injury, whereas zoning laws are typically speculative at best, and in hindsight usually ineffective and even counterproductive. Forcing governments to internalize the cost of poor policy decisions is precisely the function of requiring just compensation, yet zoning laws are unfortunately permitted to subvert that dynamic.) Implied limitations are especially numerous and broad in the context of regulatory property. The courts could easily say that grants of copyright come with implied reservations to the government; and that the government reserved the right to limit the grant, ex post facto, for the public benefit, such as when material is incorporated into a public law.
  - dragonwriter 10y ago
    > Copyright and patents are regulatory property. They're created by government, and what rights that property entails is defined entirely by the government. All "property" is conceptually fictional, but government is effectively restricted from, for example, redefining the meaning of real property in a way that subverts constitutional protections against takings. This, and your whole post, make a very good and interesting point. There is definitely a potential distinction (and, AFAIK, no clear case law on it) here, but I think the distinction is less in regulatory property vs. other property classes and more in the fact that copyright and patent are temporary property. I don't think there is anything that clearly stops new, government-issued property grants (whether of real property or otherwise) from being limited in a way which would permit some later conditional reversion to government use -- the limitation would be part of the property granted ab initio and thus there would be no taking -- but existing property rights cannot be curtailed in favor of the government without compensation. A retroactive change to existing grants even of regulatory property like copyrights and patents that amounts essentially to an early termination (and making something covered by such an exclusive right freely and publicly available would be essentially an early termination) would seem to me to still be a compensable taking, though I will agree that I haven't seen any cases of this being litigated and there is potentially tension between Article I power to grant (and define the scope of) the exclusive rights and the Fifth Amendment takings clause here that makes it somewhat murky.
throwanem 10y ago
This keeps cropping up and I keep wondering why. It's as though people who make this argument fail to consider the possibility that someone should be able to earn a living off the product of thought and effort - as though the only way to produce value out of intellectual effort should be by selling it for wages, and never by using it to invent new capital which is itself of value. Oddly, it also seems like a lot of the time, people who advance such an argument seem also inclined to think it should, at the very least, be possible for workers to own the means of production. Are intellectual workers excepted? Is this contradiction just one that hasn't been noticed and given the consideration it deserves? Is there something about the workers, or the work, which makes the cases not parallel?
- nitrogen 10y ago
  This keeps cropping up and I keep wondering why. It seems that people reading arguments against the current state of copyright law can't help but conflate numerous unrelated arguments from different people. It seems they think that, because they earned a profit for a while, they have a right to the same profit in the same way indefinitely. It seems they think everyone is out to get them, that anyone who disagrees must be a closet communist who wants to steal their life's work. It seems they never acknowledge the nuances of the present discussion, such as scale of the work (dozens vs. millions of copies), purpose of the work (entertainment vs. productivity vs. legal enforcement), or the true motivation for their opponents' arguments (poverty vs. selfishness vs. wanting to read the law they are forced to obey vs. convenience vs. a reasoned consideration of the long term effects of cultural hegemony).
  - hsod 10y ago
    > can't help but conflate numerous unrelated arguments from different people. This is exactly how I would describe your comment, far more than the one you replied to. The comment you replied to attacks a single argument-- that relieving people of IP rights is not the same as relieving them of physical property.
    - throwanem 10y ago

dragonwriter 10y ago

Both in practice and Constitutionally, eminent domain and the associated right of compensation applies to property generally (including both real and personal property, and, in the latter case, both tangible and intangible personal property.)

jsprogrammer 10y ago
Publishing a copy is not taking. Taking would be something like declaring exclusive use over the work (taking the copyright itself). Publishing a copy of something that already exists is an independent action that doesn't affect copyright holders' use of their property.
- dragonwriter 10y ago
  > Publishing a copy is not taking. "Property", whether real, tangible personal, or intangible personal, is a legal power to exclude others from certain actions with reference to some thing. Limiting some part of that exclusive power while leaving the owner title to the property and with the rest of the exclusive rights is still a taking of property, so even if what the government did with regard to copyrights was less extensive than actually seizing the copyright, it would still be a taking (similar to using eminent domain to take an easement or right-of-way, leaving the owner of land the title.)
- nicerobot 10y ago
  I see it as taking the copyright holder's control over their material, not taking the material itself. In other words, if someone publishes your works for free that you would otherwise charge for access, they haven't taken your work, they've taken your control over the access to it.
wahern 10y ago
While eminent domain is a rule in property law, that's not the same thing as saying that it applies to property generally. Copyrights and patents are regulatory property. They're created by government, and what rights such property entails are defined entirely by the government. All "property" is conceptually fictional, but government is effectively restricted from, for example, redefining the meaning of real property in a way that subverts constitutional protections against takings. I don't know what the law is in this area, or even if it's settled, but I can easily imagine a scenario where the courts say that if a government implicitly or explicitly changes the rights that attach to _their_ grant of regulatory property, that such a change is not a taking (i.e. expropriation of property) for which the constitution requires compensation. The opposite is certainly allowed. For example, SCOTUS has said (at least in dicta, if not in binding rule) that Congress can put back under copyright material that already fell into the public domain, even though other people have already relied upon it. Generally, when discussing regulatory property and regulatory takings, the courts assume there are implied limitations to your rights such that merely because the government restricts your property rights causing you financial hardship, it doesn't necessarily follow that there was a taking of property. This is why zoning laws passed after you purchased your house can be enforced without the government being forced to pay you. When the first American zoning laws were passed and challenged in court, SCOTUS said that zoning restrictions weren't per se a taking because it was always implied that real property rights were subject to implied restrictions related to public health & safety. (Common law nuisance was used to support the argument, but crucially a nuisance is a manifest injury, whereas zoning laws are typically speculative at best, and in hindsight usually ineffective and even counterproductive. Forcing governments to internalize the cost of poor policy decisions is precisely the function of requiring just compensation, yet zoning laws are unfortunately permitted to subvert that dynamic.) Implied limitations are especially numerous and broad in the context of regulatory property. The courts could easily say that grants of copyright come with implied reservations to the government; and that the government reserved the right to limit the grant, ex post facto, for the public benefit, such as when material is incorporated into a public law.
- dragonwriter 10y ago
  > Copyright and patents are regulatory property. They're created by government, and what rights that property entails is defined entirely by the government. All "property" is conceptually fictional, but government is effectively restricted from, for example, redefining the meaning of real property in a way that subverts constitutional protections against takings. This, and your whole post, make a very good and interesting point. There is definitely a potential distinction (and, AFAIK, no clear case law on it) here, but I think the distinction is less in regulatory property vs. other property classes and more in the fact that copyright and patent are temporary property. I don't think there is anything that clearly stops new, government-issued property grants (whether of real property or otherwise) from being limited in a way which would permit some later conditional reversion to government use -- the limitation would be part of the property granted ab initio and thus there would be no taking -- but existing property rights cannot be curtailed in favor of the government without compensation. A retroactive change to existing grants even of regulatory property like copyrights and patents that amounts essentially to an early termination (and making something covered by such an exclusive right freely and publicly available would be essentially an early termination) would seem to me to still be a compensable taking, though I will agree that I haven't seen any cases of this being litigated and there is potentially tension between Article I power to grant (and define the scope of) the exclusive rights and the Fifth Amendment takings clause here that makes it somewhat murky.

throwanem 10y ago

This keeps cropping up and I keep wondering why. It's as though people who make this argument fail to consider the possibility that someone should be able to earn a living off the product of thought and effort - as though the only way to produce value out of intellectual effort should be by selling it for wages, and never by using it to invent new capital which is itself of value. Oddly, it also seems like a lot of the time, people who advance such an argument seem also inclined to think it should, at the very least, be possible for workers to own the means of production. Are intellectual workers excepted? Is this contradiction just one that hasn't been noticed and given the consideration it deserves? Is there something about the workers, or the work, which makes the cases not parallel?

nitrogen 10y ago
This keeps cropping up and I keep wondering why. It seems that people reading arguments against the current state of copyright law can't help but conflate numerous unrelated arguments from different people. It seems they think that, because they earned a profit for a while, they have a right to the same profit in the same way indefinitely. It seems they think everyone is out to get them, that anyone who disagrees must be a closet communist who wants to steal their life's work. It seems they never acknowledge the nuances of the present discussion, such as scale of the work (dozens vs. millions of copies), purpose of the work (entertainment vs. productivity vs. legal enforcement), or the true motivation for their opponents' arguments (poverty vs. selfishness vs. wanting to read the law they are forced to obey vs. convenience vs. a reasoned consideration of the long term effects of cultural hegemony).
- hsod 10y ago
  > can't help but conflate numerous unrelated arguments from different people. This is exactly how I would describe your comment, far more than the one you replied to. The comment you replied to attacks a single argument-- that relieving people of IP rights is not the same as relieving them of physical property.
  - throwanem 10y ago