Not all rights need to be given; some are inherent. If you think that my right of free speech has been given to me, then may I ask, by whom was it given?

Well, copyright-style secondary liability wouldn't help anyway, since in the example, the third party fills the role of the direct infringer, so the liability would just come back on me, which wasn't what you wanted.

The best I could think of was unjust enrichment, but there'd need to be some real connection amongst the parties; AFAIK you cannot claim unjust enrichment against the entire world.

Oh, it wasn't desperate; it was quite casual. And I never said that free speech isn't an alienable right, at least to some extent. The very basis of copyright is that the people (via our servant, the government) willingly choose to forgo some part of their free speech right, in order to accomplish a socially beneficial purpose, viz. encouraging the creation and publication of original works which otherwise would not be created and published, with the goal of said works being free for all as fully and rapidly as possible. If I enter into a contract with you which demands secrecy on my part, I'm giving up some of my free speech right. But I cannot give that up for anyone else. If I publish the work, and then third parties republish it, I am certainly on the hook for breach, but the third parties never entered into the contract, never (by the terms of the hypo) created copyright law, thus never gave up their inherent rights in the work, and need not trace anything back to the creator, with whom they've had no contact anyway.

God knows, this was absolutely typical worldwide for a long time. The US made it its business for many years to pirate foreign authors, and when they complained, we cheekily suggested that they move here and become American citizens.

Your liberty wasn't violated. You have the right to speak or not, as you like. In the hypo, you did speak. That I didn't keep your secret didn't violate your liberty, only your trust.

And your property wasn't violated, since creative works are not capable of being property, mainly due to their non-rivalrous nature. Copies are property, but it was never part of the hypo that I gave away a tangible paper book that belonged to you. Copyrights are arguably property (though I don't think so), but in the hypo, they didn't exist, so the question is moot.

So while I wouldn't throw up my arms (this isn't a big enough deal to justify it), I would indeed say that there's been no violation of your liberty or property.

Don't confuse the actual lack of a right to compel you to share it with an imagined lack of a right to do what I please with it once I have gotten ahold of it.

What happens if I go back on my word and share it with others anyway? There's no privity, so they're not bound by the agreement. Your efforts to enforce it against them would be for naught. Now they've gotten access to your work, and they have a free speech right. If they publish it, they're within their rights to do so. I'll suffer a little for the breach, but breach of contract is far from the worst thing in the world.

Your post is full of errors -- misunderstanding the Copyright Act and the prima facie elements of an infringement action, failure to recognize the existence of a commons, your weird belief that you have to be aware of rights in specific things in order to merely passively possess them (being left property by long-lost relatives you didn't know you had is such a well-known concept that it's a cliche, for crying out loud!), and so forth -- but the main mistake you make is this:

You just don't believe that people have a natural right of free speech. Or of any other thing, for that matter. But it's a fact that we do, and this is widely recognized; you could do worse than to start by looking at the Declaration of Independence. Not all rights are of this sort -- copyright isn't, and due to its inherent conflict with free speech, never could be. But your refusal to accept that copyright is merely built on top of a more fundamental and universal right means that we really have nothing to say to one another. The standard model of copyright hinges upon this; rejecting it is like rejecting Kepler in order to stick with Ptolemy. And while I hope that no one finds you any more convincing than I do, I bear you no ill will and I hope you come to your senses soon.

I had no idea that Slashdot now had people posting from Bizarro World, but here you are.

Your theory of copyright is pretty awful. It not only fails to explain how copyright works in the real world, and how it has worked through history, which is what a good theory of copyright should do, but it's just plain offensive to boot.

Again, here is what is basically the standard theory:

Fundamentally, there is a natural right and ability of free speech, which all persons possess. This right encompasses both the creation of original work, as well as the verbatim repetition of others' work. Even in a state of nature, this exists. Obviously, if a work has yet to be created, it's not possible for someone other than the creator to make a copy of it; we cannot see into the future. And if a work is created but some other person never becomes aware of it, likewise, it's just not possible for them to make a copy of it; we are also not omniscient. That we suffer from these limits of knowledge doesn't mean that free speech does not exist. It just means that as a practical matter, it can be difficult to exercise.

On top of this, for various reasons which throughout history have ranged from political oppression to commercial concerns, organized groups of people have used their power (which as power usually does, boils down to the threat and use of physical force) to infringe on this right, both silencing people and using threats to deter (or 'chill') others from speaking out in the first place. These infringements upon speech often take the form of laws, and one such law is copyright law. In more modern eras, with more enlightened people, we recognize that in order to live together in a stable and mutually beneficial society, that we must willingly limit our own rights, and so modern copyright law involves the people creating and enforcing limits they've chosen for themselves, on themselves, for the benefit of themselves. They do so through governments which, in order to legitimately exercise power, must have the consent of the governed.

Does the author have any rights to control the speech of others that inherently exist merely by virtue of creating a work, absent the involvement of the state? No. He can make it practically difficult for others to exercise their rights, for example by not sharing it with them, but this is no different from making it exactly as practically difficult for others by not creating the work to begin with, and it's just nonsensical to say that authors have copyrights on the works they never made because they never made them. Copyrights then, must come from the state, and as the state (if it's legitimate) must derive its power from its people, copyright ultimately originates from the people who suffer it, not from those who enjoy it.

Copyright law presently consists of the state (on behalf of the people) granting to an author of a work the right to use certain powers of the state against those who exercise their free speech rights in certain ways in relation to the work. The statutory language confirms this -- the Copyright Act grants authors exclusive rights, i.e. rights to exclude others, in the work. But it only grants certain specific rights, such as copying, and distribution. Other rights, such as the right to read a work, or the right to privately perform a work, it doesn't ever grant to the author at all. And all of the rights that the law does grant to the author are shot full of holes -- limits on their applicability, which vary in size. And the author can't do a damn thing about it, other than to give up what we have deigned to grant him. He cannot take more (save by convincing us to give him more). And better still, this grant of rights from the public, to the author, is temporary. It expires when we say it does, whether the author is happy about it or not. And the statutory language confirms this as well -- when a copyright expires, not a single right is conferred upon the public. Yet such works are in the public domain, free for all to use; how can this be? Simply because the expiration of copyright is the dissolution of the infringement upon the public's underlying free speech right. When the author loses his right to stop the public from doing things, the public can go about their business and do things they've always had the right to do, and now no one can get in their way.

Show me where this transfer of rights occurs in the Act. Quote the exact language and cite the section in which the author transfers rights to the public as you claim.

Want to try to explain Bobbs-Merrill then? In that case, which predates the codification of the First Sale Doctrine, a copyright holder published books which contained express language limiting the right of the public to resell copies on the basis of copyright. The Supreme Court found that the copyright holder had no such right. If publication were a license to the world by the copyright holder, surely express language by that party should be able to modify the license. But it didn't.

My theory provides a simple explanation: Free speech (together with personal property law) includes reselling copies of works which a member of the public has purchased. The author was never granted a right to control that. Therefore, the author couldn't control that, no matter how much he protested to the contrary.

No.

No, that is not what I said, and no, you are wrong.

No, it doesn't impose a single limitation on the creator's rights. The creator cannot turn his copyright against himself; only against others. He already had the right to make copies of his work, to distribute them, to prepare derivatives, etc. In a state of nature he could do those things, so copyright is clearly not giving him any affirmative rights to do things. All it gives him is a negative right to stop other people from doing things. He may have to fulfill certain conditions to get, keep, and exercise the copyright, but these are not limitations on his rights.

No, not always. There are free speech maximalists, like Supreme Court Justices Black and Douglas. And it's a very attractive position to take, frankly.

Copyright is not real property law; it is not a fee simple.

The natural position of A and B is that copyright doesn't exist, but that a free speech right does, and that A can use B's work freely, provided that he has somehow acquired access to it. (Obviously A cannot rightfully force B to create a work, or to reveal it to A, etc.) Copyright is an artificial limit imposed on A's free speech. It works like a negative easement; B doesn't gain any rights to do things that he didn't already have, but instead gains the right to prohibit other people from exercising their natural rights.

But the copyright holder does not gain absolute power over the work; instead he granted only a handful of specific rights that together comprise copyright. Most of them, the main ones, can be found at 17 USC 106. And they're subject to a number of exceptions and limitations, most of which can be found at 17 USC 107-122. So Member of the Public A has quite a lot of rights with respect to Copyright Holder B's copyrighted work, even despite copyright limiting some of A's rights. And thus, not every use of B's work requires a license. In fact, only those uses which happen to fall under copyright, and where there is no applicable exception to copyright, require a license.

So if I want to read a book which I don't own, haven't paid money for, but have lawful access to, I can, even if the copyright holder is opposed to it and has not granted me license to do so. If I want to make a copy of that book, or make a derivative work based upon that book, and there is an applicable exception to copyright that I can use, I can do it, even if the copyright holder is opposed to it and has not granted me a license to do it. And if I want to distribute them, and again, there is no right in the bundle of rights that together comprise copyright that the copyright holder can use to stop me, I can go right on ahead, steamrolling over his vociferous opposition, and ignoring the lack of a license.

The statute doesn't grant me the right to do those things, instead it doesn't grant the copyright holder the right to forbid them. And I'm sure you know the bedrock principle that everything which is not forbidden is allowed.

That, and most of your post, would only make sense in a world where there was no fundamental right of free speech which is the foundation upon which the edifice of copyright stands. Feel free to live there, if you like, but I'm not so keen on going there.

But not all software is distributed this way. Not all software uses installers, and not all software that does use an installer uses it as an access control mechanism (it may use it as a way of installing and configuring the software in a way suitable for the computer in use).

So you haven't tried anything, and you're all out of ideas? Every movement for legal reform started with one person, or disorganized but similarly situated individuals. Just start working at it, and be patient.

If it helps, check out the WIPO Treaty for Sharing Accessible Formats of Copyrighted Works for Persons Who are Blind or Have other Reading Disabilities. The same studios hate it, even though it would not materially change existing US law (which already provides for helping the blind to use works) and pretty much everyone else finds it unobjectionable. It's a small step toward copyright reform, but it is a step in the right direction.

Yes, yes, we're still stuck with 1201 et seq. But of course, 1201 prohibits decrypting the installer, not running the software, which is still permitted under 117, not that you'd have much luck. I don't think that this undercuts the general discussion about the lack of necessity for end user licenses everywhere, though if you'd like to discuss the necessity for greater consumer protection and the concordant need for abolishing that whole chapter, by all means, let's.

And then there was Vault v. Quaid, in which the 5th Cir. said that the N.D. Ill. was making things up in Atari and declined to follow that precedent. Besides, ROM may be more durable than magnetic media (that was their argument -- ROM chips were reliable enough that it didn't need to be backed up), but it is not bulletproof. I've killed ICs with an accidental static charge before, and they're susceptible to radiation (both external cosmic rays, plus internally generated alpha radiation), etc. And other forms of ROM, like optical media can be scratched or shatter, sometimes due to defects in the drive or disc, for which the user certainly shouldn't have to bear the cost of replacement due to a narrow reading prohibiting a backup. Atari wasn't well decided.

Regarding audiovisual works which are also software, I don't recall anything indicating that 117 isn't applicable, but I'd love to see a cite if you have one.

If you haven't, you should really take a look at the recent Kirtsaeng v. John Wiley & Sons opinion. The gist is that section 109 substantially trumps 602. Not in every case, but 602 is weaker than had heretofore been known.

There are ways of distributing software without using the Internet. Shocking, I know, but tangible media is perfectly viable.

And in any case, the downloading alone -- if we're downloading -- is all that needs to be covered by an implied or express license.

Doesn't matter what I think. Copyright is a strict liability statute. If the copyright holder put it there, it doesn't matter if I think I'm pirating it or not; it's legal. Likewise, if I download it from the official Bieber website, but it was put there unlawfully, it doesn't matter whether I think I'm acting legally or not; it's infringing. Indeed, even if I take every possible reasonable precaution -- even if I take every possible precaution, reasonable or not -- it all comes down to what the uploader does. My mens rea is not relevant.

There is at least an implied license to download (thus making a copy) the material in order to view it, on such a site, it could be argued. It isn't a far leap to say that based on the nature of the site and the lack of any conduct or express language to the contrary, that there is an implied license to download the software generally, at which point the downloader now owns a copy.

I never said it released it into the public domain, and I'm not sure you could do that implicitly. Where did you eve come up with that?

Provided that you own a copy of the source code, modifying and compiling it in order to run it is not infringing per the Copyright Act; no implicit license is needed for that. The implicit license is needed for downloading the source code lawfully, prior to any compiling taking place. I've pointed others to it, but please check out 17 USC 117.

Making full fledged derivatives beyond that is an issue for which a license or some other solution would be needed, however.

No, a license is essentially a promise not to sue for what would otherwise be an infringement. But copyright law doesn't give the copyright holder any rights over mere use of a work, particularly in the case of copies of software which are owned by third parties. There's no right there which a license can be based upon. The old Bobbs-Merrill case, which helped establish first sale over a century ago, is a good example -- the book publisher claimed that people who bought the book could not resell it for less than a price set by the publisher, on the grounds that to do otherwise would infringe. The Supreme Court said that copyright simply didn't apply (as opposed to there being a license), and that having sold the copy, the publisher had no power to impose terms.

Even today, typical software licenses for end users are usually seen as having to be conditions of the sale itself (that is, the rightsholder refuses to sell unless you agree to a bunch of terms) rather than some requirement of the law.

As a blanket statement that is just not true. Here's the language from section 117(a):

And recall of course that this doesn't apply to the copyright holder, who obviously cannot infringe against himself. It refers instead to the owner of a tangible object in which the work has been fixed, such as an optical disc or flash drive.

This is the sort of thing I was talking about when I said that te prevalence of pointless software licensing is having bad effects in that a lot of people wind up with bad folk beliefs about copyright. Provided that you have lawful access to a copy, you do not need a license to read a book, nor to listen to a sound recording, nor to watch an audiovisual work, and if you own a copy, you do not need a license to run, backup, or make necessary modifications (for the purpose of running it) to software. It's sad and a matter of serious concern that people think they don't have rights which they have got.

A copy, as defined in US copyright law (see 17 USC 101) is a tangible object in which the work is fixed. If the copyright holder puts the software on an optical disc, let's say, that disc would be a lawfully made copy. No license is needed to buy the copy, just as no license is needed to buy a paper book, or a disc containing music or video. Nor is any license needed to resell the copy to someone else. No license would be needed to make additional copies, or to modify those copies, if done in the course of using the software. No license would be needed to make backups, either.

There are only two common situations where software licensing is relevant to an end user: 1) making certain copies whether as a site license or downloading (thus making a new copy at the receiving end) instead of physically distributing one tangible copy per machine, and; 2) making a derivative version of the software beyond what's needed to run it. Everything else is handled just fine under the Copyright Act with no need for a license.

Software licensing to end users as we know it is largely unnecessary, and a source of bad habits and bad folk beliefs. It's usually not something that should be encouraged.

In the United States, that's not at all true.

Software can be released without any license at all (there is no obligation that it be licensed), and can be used by anyone who uses a lawfully made copy. This use includes modifying it for compatibility purposes, making copies necessary for running it (eg copying it into RAM), and making backups. Check out 17 USC 106, 109, and in particular 117 on this.

Additionally, it's entirely possible and extremely commonplace for copyright holders to create implicit licenses through their conduct, which are perfectly valid and reliable (except for exclusive licenses, which are not at issue here). For the copyright holder to put a piece of software on a public server from which third parties ordinarily download software, without any other action, at the very least gives rise to a good argument that there is an implies license for people to download it, and it probably does give rise to such a license in actuality.

The Lisa did.

However from what I've heard (I have no firsthand experience with the Lisa, unfortunately) it was designed to be very easy to open up and repair or upgrade.