Re-licensing

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Re: Re-licensing

Andrew Whitworth-2
On Fri, Jan 23, 2009 at 11:37 AM, Anthony <[hidden email]> wrote:

> On Fri, Jan 23, 2009 at 11:12 AM, Mike Godwin <[hidden email]> wrote:
>
>> I'm sorry, Thomas, but until people learn to use jurisprudential
>> concepts such as "moral rights" properly, I have a moral obligation to
>> point out where they are used mistakenly.
>
>
> You have a moral obligation?  I thought you dismissed morality as a
> religious belief for which there is no evidence in the physical world.
>
> Or is it merely the concept that we ought to give credit to authors that you
> deem to be religious in nature?

This discussion has descended far below the threshold of usefulness
now. If there's nothing else to talk about besides thinly-veiled ad
hominems and "I know more philosophy then you" mental masturbation,
could this discussion please go off-list?

--Andrew Whitworth

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Re: Re-licensing

Michael Bimmler
On Fri, Jan 23, 2009 at 5:54 PM, Andrew Whitworth <[hidden email]> wrote:

> On Fri, Jan 23, 2009 at 11:37 AM, Anthony <[hidden email]> wrote:
>> On Fri, Jan 23, 2009 at 11:12 AM, Mike Godwin <[hidden email]> wrote:
>>
>>> I'm sorry, Thomas, but until people learn to use jurisprudential
>>> concepts such as "moral rights" properly, I have a moral obligation to
>>> point out where they are used mistakenly.
>>
>>
>> You have a moral obligation?  I thought you dismissed morality as a
>> religious belief for which there is no evidence in the physical world.
>>
>> Or is it merely the concept that we ought to give credit to authors that you
>> deem to be religious in nature?
>
> This discussion has descended far below the threshold of usefulness
> now. If there's nothing else to talk about besides thinly-veiled ad
> hominems and "I know more philosophy then you" mental masturbation,
> could this discussion please go off-list?

Hear, hear.  I'm glad that I can respond to Andrew's post here,
because if I had been replying to either Thomas, Anthony or Mike the
following would have seemed to be directed at someone specifically,
which it is not:

Please Stop It.

This thread used to be on the "Re-licensing" issue, which is an issue
many people are interested it. Thus, you can't even bring up the usual
"Well, it's off-topic, but everyone can filter it out of their inbox
by a subject-filter" counter-argument, because many people actually
*do* care about the Re-licensing and do not intend at all to filter it
out of their inbox. What has happened, though, is that the thread has
first been hijacked by a discussion about "moral rights" and other
legal and philosophical concepts (which I myself found at least
interesting, if completely off-topic) and now, it has gone down to a
rather pathetic "I have studied philosophy, you have no clue." "I
don't need to have studied philosophy to have a clue." "I have studied
Mathematics and you are a bad philosopher" type of chat, which is an
absolute no-go.

Really, take it offlist. I hope I don't need to enforce this plea
because I'm not actually in the mood to do so.

Michael



--
Michael Bimmler
[hidden email]

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Re: Re-licensing

geni
In reply to this post by Erik Moeller-4
2009/1/23 Erik Moeller <[hidden email]>:
> A single URL could point to a list of all contributors for all
> articles.

Not under your proposal "attribution via reference to page histories
is acceptable if there are more than five authors."


> I do agree with you, Mike and others who have pointed out that we want
> to retain flexibility in application. I'm not arguing for absolutely
> rigid attribution requirements, and to the extent that the current
> proposal suggests that, it should be revised. I am, however, arguing
> for articulating principles and demonstrating them through guidelines
> and examples, so that there's no ambiguity about our general
> understanding of what we mean with reasonable applications.

What we mean? Err we didn't write the license or the laws that it
operates under. What we mean isn't relevant.


--
geni

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Re: Re-licensing

Mike Godwin-3
In reply to this post by Klaus Graf

Thomas Dalton writes:

>> I have a right to your house.   Oh, sure, it's not recognized by
>> anyone, but I promise I have it!
>
> Like I say, there's a world outside the legal profession. Just because
> something isn't recognised by the law doesn't mean it isn't recognised
> by anyone.

So you recognize my right to your house?  Cool!  Where is it? When can  
I get the keys?

> Where do you think laws come from? Do you think they appear from
> nowhere? They are created by politicians (and sometimes judges) based
> on moral values. Those moral values imply certain moral rights whether
> they are written down in statute (or case law) or not.

Oh, so you're creating a special Thomas Daltonian definition of the  
word "moral rights." Cool!

>> Do you understand what the term "term of art" means?
>
> Honestly? No, I'd have to look it up. However, I don't need to know
> fancy lawyer speak to understand the concept of morality.

So you're under the impression that "term of art" is "fancy lawyer  
speak"?

>> By the way, most members of the legal profession are not students of
>> the philosophy of law. It is your misfortune that, in me, you have
>> come across someone who is. I'm not disqualified from pointing out
>> philosophical mistakes merely because I can hang out a shingle.
>
> Well, maybe when you progress a little further in your studies you'll
> actually know something about the subject. I'm a mathematician, I am
> well trained in logic and reasoned argument.

This underscores your problem, perhaps. Many mathematicians are under  
the impression that reasoning from first principles is a substitute  
for actually doing the necessary reading and learning. The notion that  
one can argue without knowledge of the relevant facts is one that is  
common, all by no means universal, among my friends who are  
mathematicians.

>  While I may
> not be an expert on the relevant facts, I can follow an argument and
> see if it makes sense, and yours rarely do.

I can understand why arguments based on reading you have not done and  
facts you do not have wouldn't make sense to you. I'll make allowances.


--Mike




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Re: Re-licensing

Mike Godwin-3
In reply to this post by Klaus Graf

Anthony writes:

> Maybe you could explain the etymology of that term for us, Mike.  
> Your last
> paragraph seems to imply that you understand it.

Thanks.  But surely you don't expect me to tutor you on "moral rights"  
jurisprudence when the materials you need are widely available  
elsewhere.

> In any case, how do you propose that we can continue in a way that  
> doesn't
> confuse you with sentences like "moral rights are a type of moral  
> rights"?

I don't feel confused -- it seems to me quite clear where you've gone  
wrong.

>>> There is a fundamental difference between a right
>>> granted by law and a pre-existing right recognised by law.
>>
>> Is this difference based on anything in the physical world?
>>
> Sure, it's based on whether or not the jurisdiction recognizes the  
> right.

Oh, you're using "fundamental" in a way I wasn't expecting. I thought  
you meant to be understood as saying that the "pre-existing right" had  
an independent existence, outside of jurisprudence.


>> It's true that religious beliefs don't have great force in Western
>> courtrooms. I dismiss this particular religious belief not because
>> it's irrelevant in a courtroom, however, but because there is no
>> evidence in the physical world that this difference exists.
>>
>
> In what way is the concept of moral rights a religious belief?

It's invisible, unanalyzable, and an article of faith among believers.

>> Thomas, you may believe that the longstanding debate between  
>> natural law and positivists has been resolved in favor of the  
>> former, but
>> there's no sign that this is true with regard to copyright.
>
> You could have saved us a lot of time by saying that instead of  
> pretending
> you didn't know what I was talking about.

I actually didn't know what you were talking about, since you use  
language so imprecisely.

>> If what
>> you were saying were widely accepted, it would be odd that "moral
>> rights" obtain as to copyright/creative expression but not as to
>> things like property ownership and personal liberty.
>
> That would be odd if it were true.  But it isn't.  Theft and slavery  
> are
> morally wrong, in addition to (and regardless of) being illegal.

I happen to agree that they are morally wrong, but not as a function  
of natural-rights jurisprudence. I don't, however, believe abridgement  
of rights in copyright is morally wrong (although of course I don't  
approve of it).   There's a distinction between malum prohibitum and  
malum in se.


>> I have a right to your house.   Oh, sure, it's not recognized by
>> anyone, but I promise I have it!
>>
>
> Why would you call it *my* house, then?

Convention.

> In any case, moral rights are recognized by many people, just not
> indisputably under Florida law.

Florida law? I thought we were talking about copyright.

> I see, so you *were* being intentionally obtuse.  To try to teach me  
> a lesson.  I have to admit I'm glad that's what it was.  To have to  
> conclude
> that you were a complete dolt would have been much more shocking  
> than the
> conclusion that you're a troll.
>
> And I did learn a lesson.  I learned about your ignorance of right and
> wrong, and got a glimpse of the nihilism it stems from.

You seem confused here. Sometimes you want to attribute ignorance to  
me, and sometimes you think I'm intentionally pretending to be  
ignorant in order to teach you a lesson.  I don't think you can  
consistently hold both views with regard to the same subject matter.

Next time you should reflect a little and review your posting before  
you hit the Send button.


--Mike





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Re: Re-licensing

Nathan Awrich
All this comparing, ahem, brain sizes is very interesting - but ultimately
not useful, and detrimental to the ideal tone and purpose of this list.

Nathan
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Re: Re-licensing

Mike Godwin-3
In reply to this post by Klaus Graf

Michael Bimmler writes:

> Please Stop It.

Sure, Michael.

I confess it sometimes amuses me to argue with trolls, but I have no  
interest in continuing to argue publicly when it ceases to amuse  
anyone else but me.

My apologies. I'll try to keep things more in hand in the future.


--Mike



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Re: Re-licensing

George William Herbert
In reply to this post by Thomas Dalton
On Fri, Jan 23, 2009 at 8:22 AM, Thomas Dalton <[hidden email]>wrote:

> > I'm sorry, Thomas, but until people learn to use jurisprudential
> > concepts such as "moral rights" properly, I have a moral obligation to
> > point out where they are used mistakenly.  This is not a question of
> > "the world outside the legal profession" (and, indeed, if you were a
> > member of the legal profession -- or a philosopher -- you wouldn't
> > make the mistake of supposing this).  Philosophy of law is accessible
> > to people who aren't lawyers -- even you. But it's clear that the word
> > "moral rights" is being thrown around here by people who are only
> > casually familiar with the concept. When you have actually given some
> > study to jurisprudential philosophers (see, e.g., H.L.A. Hart and Lon
> > Fuller) and can offer some more sophisticated philosophical analysis
> > than you offer here, I will be able to take your pronunciamentos more
> > seriously.
>
> Where do you think laws come from? Do you think they appear from
> nowhere? They are created by politicians (and sometimes judges) based
> on moral values. Those moral values imply certain moral rights whether
> they are written down in statute (or case law) or not.
>

Used relative to copyright law, the term unambiguously means what Mike is
saying, the rights that Europe (and others) have assigned to actual authors
distinct from copyright owners etc.

The specific term as used in copyright law (as Mike says, a "term of the
art" in that field) has no legal utility in the United States, as those
rights in question are not acknowledged by US copyright law or precedent.

This is a discussion about copyright law and licenses under / related to it,
is it not?  And not philosophy writ large?


There was a slight danger in the Foundation chosing to hire Mike as counsel,
that he has a long-established tendency to poke fun at people ( cf. Godwin's
Law, and more long painful Usenet discussions from 20 plus years ago than I
care to remember at the moment...).  This is going over rather badly with
some people's sense of moral indignation over licensing and copyright
issues.


--
-george william herbert
[hidden email]
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Re: Re-licensing

Thomas Dalton
2009/1/23 George Herbert <[hidden email]>:
> This is a discussion about copyright law and licenses under / related to it,
> is it not?  And not philosophy writ large?

It was, I think we drifted a little off-topic.

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Re: Re-licensing

Mike Godwin-3
In reply to this post by Klaus Graf

George Herbert writes:

> There was a slight danger in the Foundation chosing to hire Mike as  
> counsel,
> that he has a long-established tendency to poke fun at people ( cf.  
> Godwin's
> Law, and more long painful Usenet discussions from 20 plus years ago  
> than I
> care to remember at the moment...).  This is going over rather badly  
> with
> some people's sense of moral indignation over licensing and copyright
> issues.

I confess it is a vice, although better for my liver than alcohol or  
cocaine.


--Mike





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Re: Re-licensing

Anthony-73
In reply to this post by George William Herbert
On Fri, Jan 23, 2009 at 5:13 PM, George Herbert <[hidden email]>wrote:

> Used relative to copyright law, the term unambiguously means what Mike is
> saying, the rights that Europe (and others) have assigned to actual authors
> distinct from copyright owners etc.
>

If you look at the context in which I used the term "moral rights", I think
you will agree that I used the term properly to mean rights which are not
based on social conventions.

Mike said "(I ask for the "legal distinction" because you are articulating
your concern in terms of what you purport to be violations of your legal
rights.)"

I replied: "Actually, I'm purporting them to be violations of my moral
rights."
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Re: Re-licensing

Ray Saintonge
In reply to this post by George William Herbert
George Herbert wrote:
> Used relative to copyright law, the term unambiguously means what Mike is
> saying, the rights that Europe (and others) have assigned to actual authors
> distinct from copyright owners etc.
>
> The specific term as used in copyright law (as Mike says, a "term of the
> art" in that field) has no legal utility in the United States, as those
> rights in question are not acknowledged by US copyright law or precedent.
>  
It is acknowledged in section 106A, but that seems to have been added
more as a form of lip-service to international treaties.  At the same
time US law seems to be at pains to make sure that it has no meaningful
legal effect.

Ec

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Re: Re-licensing

Ray Saintonge
In reply to this post by Anthony-73
Anthony wrote:
> Actually, the difference is quite relevant in a courtroom, especially when
> dealing with constitutional issues.  That's why I find it nearly impossible
> to believe that Mike doesn't understand this.  How in the world can you
> defend people's constitutional rights if you think they're made up out of
> nowhere?  Why defend free speech if it's just a couple words some guys made
> up and wrote down on paper?  The very nature of the legal system in the
> United States of America is based upon natural rights.  "We hold these
> truths to be self-evident".  Self-evident.  Not created by congressmen.
It was not created by congressmen because there were no congressmen
before the US Constitution was written.

The fact that they "held" their opinions to be self-evident does not
make their opinions universal. Your self-serving comment is on a par
with saying that God exists because the Bible says so.

Ec

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Re: Re-licensing

Ray Saintonge
In reply to this post by Anthony-73
Anthony wrote:
> Maybe you could explain the etymology of that term for us, Mike.  Your last
> paragraph seems to imply that you understand it.
>  

Per Eric Partridge's "Origins," both words are Latin in origin.  "Moral"
is from "mores" the plural of "mos" indicating "a way of carrying
oneself, hence especially of behaving; a custom as determined by usage,
not by law."  "Morose" is from the same source. "Right" derives from
"rex" meaning "the king"; it took a king to set things straight.  Is
there something "natural" in that?
>> It's true that religious beliefs don't have great force in Western
>> courtrooms. I dismiss this particular religious belief not because
>> it's irrelevant in a courtroom, however, but because there is no
>> evidence in the physical world that this difference exists.
>>    
> In what way is the concept of moral rights a religious belief?
>  
U.S. courts still have witnesses who swear to tell the truth, "So help
me God," with one hand on the Bible; this only shows that the separation
of church and state is far from perfect.  The concept of larger moral
rights (rather than those associated with copyrights) is religious
because it is based on faith alone.
> That would be odd if it were true. But it isn't. Theft and slavery are
> morally wrong, in addition to (and regardless of) being illegal.
Theft has been quite consistently viewed as wrong throughout history,
with possible exemptions for kings.

To say this of slavery, however, in the US context, would be to say that
Christian slave-owners before the Emancipation Proclamation were all
immoral.

Ec

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Re: Re-licensing

Ray Saintonge
In reply to this post by Thomas Dalton
Thomas Dalton wrote:
> Where do you think laws come from? Do you think they appear from
> nowhere? They are created by politicians (and sometimes judges) based
> on moral values. Those moral values imply certain moral rights whether
> they are written down in statute (or case law) or not.
>
>  
 From politicians, Yes. But more as matters of expediency, lobbying, and
helping one's friends.  I would avoid making a general imputation of
motives based in moral values to politicians.

Ec

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Re: Re-licensing (OT)

Jussi-Ville Heiskanen
In reply to this post by Ray Saintonge
Ray Saintonge wrote:
> Anthony wrote:
>  

>> That would be odd if it were true. But it isn't. Theft and slavery are
>> morally wrong, in addition to (and regardless of) being illegal.
>>    
> Theft has been quite consistently viewed as wrong throughout history,
> with possible exemptions for kings.
>
>  

(Off-topic)

Or as authorized by the state by letters of marque or
other instruments of the kind. Most prominently the
case with state sponsored piracy.


Yours,

Jussi-Ville Heiskanen


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Re: Re-licensing

Jussi-Ville Heiskanen
In reply to this post by Erik Moeller-4
By way of top-posting a brief preamble, let me apologize
if someone thinks it tacky to reply to a week old posting,
but I personally needed to reflect a bit before my precise
position has clarified on some issues, which I do want
to address.

Erik Moeller wrote:


> Flexible and vague clauses can work well when you're dealing with
> issues with few stakeholders who all have a shared and tacit
> understanding of what they want to accomplish. By definition, massive
> collaboration isn't such a situation: any one of hundreds or thousands
> of contributors to a document can behave unreasonably, interpreting
> rules to the detriment of others. The distributed ownership of
> copyright to a single work is an example of what Michael Heller calls
> 'gridlock' or an 'anticommons'. Ironically, even with free content
> licenses, the gridlock effects of copyright can still come into play.
>
>  
I think the problem I have with this is the view that wikipedia
is merely a massive collaboration. It certainly is that too, but
we certainly have not shied away from also importing works
from already published sources, while their licensing has
been compatible. If it is your intention to indicate a radical
shift that would forever prevent this practice, and require
that all content be composed on-site, it would be useful if
you came right out and said so, so we could all address this
issue head on.

But there is a real problem of saying that those who have
created such material under a compatible license, have
also implicitly agreed with site terms of use.

> I believe it's our obligation to give our reusers protection from
> being hassled by people insisting on heavy attribution requirements,
> and to create consistency in reuse guidelines. Really, WMF and its
> chapters can hardly develop partnerships with content reusers if we
> can't give clarity on what's required of them. A great deal of free
> information reuse may not be happening because of fear, uncertainty
> and doubt. I would much rather remove all doubt that our content is
> free to be reused without onerous restrictions.
>
>  

Well, I think it would be really bad if WMF and its chapters
willfully mislead their partners on what was legally required
to allow reuse in the maximum of jurisdictions that are
compatible with the base licensing, never mind what site
terms of use say.

It is a simple inescapable fact that international laws on
Intellectual Property are complex, and it is because of
this that the Creative Commons accommodate multiple
jurisdictions interoperability as far as possible. If it
were the case that WMF in the interest of claiming to
"clarify" issues, when they in fact will cloud the real
complexity by expressing a false simplicity, where none
obtains; well, in my personal opinion, that would not be
all that useful.

Terms of use can require things beyond the licensing,
I suppose, such as waiving rights, in jurisdictions
where that can be done (I believe in Canada you can
waive moral rights for instance), or contractually agree
to not pursue some rights, even though they theoretically
are still yours, but that still leaves jurisdictions where
moral rights are inalienable, and the conundrum of
content not created under site terms of use, but
merely imported under a license which would be
compatible with the license our content would be
under, but not under any reasonable understanding
of the terms of use further requirements to rescind
some rights that are not impinged upon by the
license itself.


Yours,

Jussi-Ville Heiskanen




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Re: Re-licensing

Mike Godwin-3
In reply to this post by Klaus Graf

Anthony writes:

>> Actually, the difference is quite relevant in a courtroom,  
>> especially when
>> dealing with constitutional issues.  That's why I find it nearly  
>> impossible
>> to believe that Mike doesn't understand this.  How in the world can  
>> you
>> defend people's constitutional rights if you think they're made up  
>> out of
>> nowhere?  Why defend free speech if it's just a couple words some  
>> guys made
>> up and wrote down on paper?  The very nature of the legal system in  
>> the
>> United States of America is based upon natural rights.  "We hold  
>> these
>> truths to be self-evident".  Self-evident.  Not created by  
>> congressmen.

It is a common mistake to confuse the Declaration of Independence  
(which Anthony quotes above), which uses the rhetoric of natural  
rights, with the U.S. Constitution, which does not use that rhetoric.  
The first was published in 1776; the second was completed in 1787,  
with the Bill of Rights added in 1791. The reason for the addition of  
the Bill of Rights was precisely that the Framers and the voters came  
to believe that no concept of "natural rights" was adequate to  
guarantee protection of things like "the freedom of speech," even  
under a government of limited and specified powers.

Of course, any historically informed reading of the Declaration of  
Independence can see that its natural-rights rhetoric can be  
understand in ways that are consistent with the explicit creation of  
rights in the Constitution. To wit, we may be said to have the general  
natural right to create our own specific Constitutionally and legally  
guaranteed rights. (This is more or less what the Declaration of  
Independence says.)

But it's quite clear that the Declaration of Independence, standing  
alone, has no legal force. It's a rhetorical document, not a legal  
one, which may be why Anthony prefers quoting the Declaration to  
quoting the Constitution (in whose Amendments "the freedom of speech"  
is guaranteed). It should be noted that the Constitution does not even  
grant rights to Authors and Inventors. What it does, expressly, is  
give Congress the power to create such rights (without specifying what  
those rights might be). It would clearly be constitutional for  
Congress to change rights in copyright, or even remove them. Such a  
change is not the sort of thing that can be understood by any naive  
natural-rights theory of copyright.

Trying to cite the Declaration of Independence as the basis for your  
legal defense in a criminal case -- "Hey, I was just exercising my  
right to resist a bad king!"  -- is a good way to guarantee going to  
jail.


--Mike





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Re: Re-licensing

Mike Godwin-3
In reply to this post by Klaus Graf

Anthony writes:

>> Why defend free speech if it's just a couple words some guys made
>> up and wrote down on paper?  The very nature of the legal system in  
>> the
>> United States of America is based upon natural rights.  "We hold  
>> these
>> truths to be self-evident".  Self-evident.  Not created by  
>> congressmen.

In an effort to add some light rather than heat, let me say this in  
response:

It is a common mistake to confuse the Declaration of Independence  
(quoted above), which uses the rhetoric of natural rights, with the  
U.S. Constitution, which does not use that rhetoric. The first was  
published in 1776; the second was completed in 1787, with the Bill of  
Rights added in 1791. The reason for the addition of the Bill of  
Rights was precisely that the Framers and the voters came to believe  
that no concept of "natural rights" was adequate to guarantee  
protection of things like "the freedom of speech," even under a  
government of limited and specified powers.

The Declaration of Independence is not part of "the legal system in  
the United States of America." It's a rhetorical document, not a legal  
one.

Of course, any historically informed reading of the Declaration of  
Independence can see that its natural-rights rhetoric can be  
understand in ways that are consistent with the explicit creation of  
rights in the Constitution. To wit, we may be said to have the general  
natural right to create our own specific Constitutionally and legally  
guaranteed rights. (This is more or less what the Declaration of  
Independence says.
But it's quite clear that the Declaration of Independence, standing  
alone, has no legal force.)

  It should be noted that the Constitution does not even grant rights  
to Authors and Inventors. What it does, expressly, is give Congress  
the power to create such rights (without specifying what those rights  
might be). It would clearly be constitutional for Congress to change  
rights in copyright, or even remove them. Such a change is not the  
sort of thing that can be understood by any natural-rights theory of  
copyright.


--Mike





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Re: Re-licensing

Ray Saintonge
In reply to this post by Mike Godwin-3
Mike Godwin wrote:
> Trying to cite the Declaration of Independence as the basis for your  
> legal defense in a criminal case -- "Hey, I was just exercising my  
> right to resist a bad king!"  -- is a good way to guarantee going to  
> jail.
>
>  

So much for the right to bear arms!  :-)

Ec

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