[Harmon]

Originally Posted by Elfwreck

Thirty years of RPG experience here... lots of practice with "this particular rule exists for the sole purpose of making other rules make sense."

RPG?

I'm not sure what kind of difference there is between that "practical everyday" ownership, and legal ownership. If Honda starts selling clones of Toyotas, and the clones are ruled to be trademark & copyright infringement, the car owners won't be able to claim they don't have to pay to register them because they don't own the cars.

The difference consists in your ability to enforce your claimed right against others. But if you behave as if you own something, you will find out that, indeed, you do own it, for the purpose of being responsible for claims made against you.

You are looking for symmetry here, and there is none. If you claim to own something you don't, you get all the legal burdens, but not the legal benefits.

There are exceptions, such as the concept of "adverse possession." If you behave as if you own a piece of property (live in the house, pay the real estate taxes) and the real owner knows or should have known that you were doing so, and the real owner does nothing to assert his own claim within a certain time period, you will acquire ownership from him. Which suggests to me that in the case of infringing property, if the owner doesn't claim it, it can become yours - certainly when the copyright period expires, perhaps before.

There are situations where ownership is a liability, and I don't think the infringing status of the contents limit those liabilities. And I don't believe any court would rule "you have all the drawbacks of ownership, but not the benefits."

You are right, there are. But you are also wrong, they will. See above.

You can still own something if the law allows someone else to destroy it. You may not have full legal rights over it if its condition is basically illegal, but your ownership isn't transferred to whomever wishes to fix the core illegality.

For example: I have friends with bootleg movies on their hard drives. I can't appoint myself Avenger of Paramount, and delete those movies. And while Kindlers grant Amazon some rights by attaching to Whispernet, "delete any of my files you don't approve of" is not among those rights. (At least, that's not listed in the TOS.)

I don't disagree with that. I do disagree, however, that it follows that your friends are in a position to go to court and claim a remedy if you, in your capacity as Avenger of Paramount, delete the bootlegs. They are not in a position to claim that you have destroyed their property PLUS, in this situation, unlike the Rand situation, they have "unclean hands."

Like I said before, you can't look at these situations by starting with the idea that the Avenger, be it you or Amazon, has "no right." The claim of "right" is a defense against a previously proved claim of "wrong."

In other words, for purposes of argument I will grant that the Avenger has no right. It just doesn't matter, if the person claiming to be harmed can't prove that they had legitimate possession of the deleted ebook, such that they suffered harm by the act of deletion.

Where Kindle owners suffered harm was by the act of sale, when Amazon "sold" them a book they had no right to sell.

Now, it could be that the courts could decide that once an infringer has sold the pirated copy, actual ownership of the copy is transferred to the buyer. But that seems to me to not only contravene the spirit of the law, but in fact, it encourages piracy because it permits a knowing buyer of pirated property to go ahead and acquire it without fear of loss. So I doubt that a court is going to say that pirated property, sold to a third party, belongs to the third party.

I will say, though, that to the extent that the property is composed of infringing elements and non-infringing elements, and the one can be separated from the other, the buyer does own the non-infringing elements. Say that the infringing copy of Harry Potter was bound in jewel-encrusted gold binding. The buyer gets to keep the jewels.

No! Copyright law protects the distribution rights of the creator! Ownership of the physical products is granted at point of sale.

Section 202 does distinguish ownership of copyright from ownership of the material object, as you suggest.

On the other hand, sections 506(a) and 509, taken together, say that if the infringement involved rises to the level of a criminal offense, then the government can "seize and forfeit" the property, which means, basically, take them from the possessor without paying for them.

And as I said before, section 503 lets a court impound and destroy the property - again, without paying for them.

So where does this leave us? What I see is that the possessor of a property which is the embodiment of an infringed copyright has no claim to hold the property over and against the government, nor any claim to hold the property over and against the copyright owner who has invoked the jurisdiction of the court. So the question is does he have any property rights as against anyone else?

I don't see it, because the minute he goes into court, he has to say "Amazon deleted this ebook that was sold to me in contravention of the copyright statute, and I want you, the court, to make Amazon give it back to me."

Can you see the court saying "yep, Amazon, give him back the ebook you deleted?"

And let's suppose it's a physical book that Amazon somehow recovered from the buyer. Do you think that the court is going to tell Amazon to give the book back to the buyer? I don't. I think the court will impound it and order it destroyed.

All of that says to me, you don't own the book. You just possess it.

Your next objection illustrates that point:

So... if I don't have the right to make a bomb, and I make one anyway, I don't own it, and can't be held accountable for it?

Ownership has nothing to do with it. But possession does. All you have to do is consider a stolen bomb. You steal the bomb. You don't own it. But you do possess it and you bet you are accountable for it. No different than stealing a gun and killing someone with it. You won't be able to say "well, gee, officer, it's not my gun..."

I think we're using seriously different concepts of "ownership," here. I certainly don't agree that illegal content (of whatever sort) is not owned.

I think that the discussion involves enforceable legal rights. To me, that means being able to get a court to affirm your right to possession of property. If what you are trying to get possession of is some kind of "illegal content" you will find that the courts will not help you.

And yet, some forgeries of master paintings are considered valuable art pieces in themselves. You seem to be saying that either anyone could take them away at any time, and the purchaser would have no legal recourse.

Not the same thing. It is not illegal to forge art. It is illegal to forge art and sell it as original. If you own a piece of art that was forged, say, a nice "Vermeer" or "van Gogh," and it gets taken away or destroyed, of course you have recourse, because the fact that it is forged in no way means that someone other than you owns it. At the same time, you can only recover what it is worth as a piece of forgery, not as an original.

This is further muddied by derivative works, and other copyright infringements that aren't direct copies. Saying they belong to the original creator is ridiculous. (Does Salinger automatically own every copy of "Sixty Years Later: Coming Through the Rye" that may be brought to the US? Can he have them impounded at airports?)

I believe that what I said was that maybe the creator owns them. I'm confident that the creator can have them destroyed, and I'm pretty sure he can even if he has to go out to a thousand buyers and recover them, one at a time, and ask a court to destroy them.

If I am right about that - and it seems pretty clear from the statute - then I fail to see how any buyer "owns" them. It's possible that from a legal point of view, nobody owns them.

I think the nature of digital content makes it easy to treat as somehow different from a physical possession, because I certainly don't think Amazon would think they have the right to send agents to customer's doors to demand the return of physical books they'd discovered to be infringing.

No, but the copyright owner could ask the court to order Amazon to do so, and if the buyers didn't cooperate by returning the books, the court could order each separate buyer to cough up the book, or be held in contempt.

I remain of the opinion that in the Rand situation, Kindle owners have no recourse against Amazon for deletion of the infringing books, except to recover what they paid for the book. I'm not saying that the episode doesn't leave a bad taste, but it's a legal truism that "there is not a legal remedy for every wrong." This is one of those situations, in my view.