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Originally Posted by Ralph Sir Edward
And what is a copyright but a CONTRACT? Which was my original point. A contract between a creator and a government, which both grants and enforces the contract!
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It's a CONTRACT that our governments, since the 1500's,
define as property. That's the difference, Ralph. You simply
disagree with the concept--which is your right.
But your disagreement doesn't change the law, and how each is construed.
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A copyright is no more property than a bond is a property. Either both are or they aren't.
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Sorry, them's the laws.
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Please show me, in functional description the difference. Not verbal terminology, which has been used sloppily for centuries, but actual functional differences.
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"Functional differences" aren't actually the point. Contracts, for all intents and purposes,
are the functional basis of almost ALL law. Real Property rights and privileges, personalty, etc., are all based on contract law, when you get right down to it.
An "instrument" generally almost always deals with
a right to payment. A bond, a stock, a mortgage, etc. An instrument may or may
not be the result of a contract. If John sells me a bond, and he defaults on it, I may, or may not, have a right to try to collect on it. A copyright, in and of itself, carries no right of payment, no promise therefor. It's simply the PROPERTY which can subsequently be licensed to someone else--for a right to payment. That's the biggest difference, between your two examples. The bond is not, itself, the property which is subsequently sold or licensed or mortgaged, for money--it's the promise. The copyright IS the property, not the promise. See?
By the same logic that you used ("A copyright is no more property than a bond is a property. Either both are or they aren't."), just because a mortgage deals with real property in its contract, and your marriage has a contract, a marriage is a real estate deal! Oh, wait...that's not right! :-)
- Marriage is, actually, nothing more than a contract. That contract does not give you property rights (in this day and age) over your spouse. The other party to the contract (the state, BTW) doesn't get property rights over YOU.
- A mortgage contract, while not conveying direct property rights, allows the mortgage lender to take the property in the event of default. That default is defined by the Promissory Note, which is another element of the contract. (And so is a Deed, etc., etc. etc.)
- A copyright enables the person who holds it to license the creative property, and collect royalties therefrom.
- All are different "types" of contracts, basically. That doesn't make them the same thing.
Is your marriage the same property right, as a copyright? As your mortgage? No? Can you assign your wife or SO, to someone else, willy-nilly? No? But, wait, that's a CONTRACT! That makes it the same as a mortgage, right?
No, it doesn't. (This is why laypeople really need attorneys when they start to deal with legal constructs...)
A contract is
nothing more than an agreement by and among two or more people to do, or NOT DO, a specific thing. That's it. Contracts can be conditional, they can be certain; they can be consensual, or real. They can be constructive, or divisible or indivisible. Express and implied. Gratuitous or onerous...there's a thing called a "quasi-contract." Need I go on?
The essential parts of a contract are that the parties have to be competent; there's a subject of the contract, the agreement, and legal consideration. There's also the "mutuality of obligations," which means that both parties have to be obliged to perform a given task or thing, and those things need to be somewhat equivalent, (for example, a bank gives gives you X dollars, and the home that you get is of an approximate value thereto, for example).
Just because financial instruments represent one type of contract, and the "contract" between a copyright holder and the State another (an implied contract, in fact, as opposed to a "real" contract, which is what real property contracts are...) doesn't make them the same thing, legally or in practice. As I pointed out, marriage is a contract; a deed is a contract (of purchase of real property), a muni bond is a contract, and so on. They're not the same thing--and neither does it mean that a bond and copyright are the same thing. Or not the same thing.
Hitch