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"Thanks for your response"

Happy to have a rational debate.

"We need fair exchange. Producing copyright works costs just like producing food or goods. Unless you give food, drink, shelter, etc., free to artisans then you can't demand their work to be free. Quid pro quo."

I agree. That's why I leave a tip for good service, after I have eaten. The difference between selling groceries and waiting on tables is that in the former there is a tangible item with an intrinsic value to which the law of exclusion strictly applies. The latter has an intangible and subjective value behind it, and the law of exclusion is as flexible as a wet noodle. The thing about the Internet is that it's all subjective and intangible, making the gratuity model vastly more appropriate. That doesn't make intangible work valueless, it just changes the business model. We have never seen such an expansive gratuity-based business opportunity as the Internet before. I can also understand how that might be a bitter thing to admit if one prefers, or depends on, the law of exclusion. (Of course, it is also possible to "inflict" the law of exclusion on netizens with laws such as copyright, the CFAA, etc, but that it's not the clear moral high road.)

"having your IP address is looking at your property from afar, logging in to your SSH and taking your files is picking the lock (or swinging the gate open) and walking in and taking something."

No, they are both just network traffic. Their effects and potential for damages are not, which we even seem to agree on. I'm saying that the conversation should be explicitly about damages though, and not indirectly about regulating access/copying.

"you are authorised by active assent not by failure to prevent access."

In the world of tangible goods with intrinsic values yes, on the Internet, not as obviously, if at all. If you already buy into the copying = theft equivalence/analogy, you might be more inclined to believe that. However, IMHO, there is no such thing as trespass against information, and any trespass or damages against me should be firmly anchored in the land of the real.

"If you truly hold the position you're espousing then presumably if someone takes money from you you'd consider it 'authorised' because you failed to prevent them?"

No, we have laws against theft. What I'm disagreeing with is the unspoken copying <-> theft equivalence. It may also be a pedantic truism, but "copyright infringement" and copying generally are semantically and functionally different from "theft." (Copying: 1+1=2; theft: 1-1=0.) IMHO, it's not necessary to presume that copies themselves need to be restricted on top of the criminal ends (damages, theft of value, etc). In the case of copyright, the case for damages is hypothetical. I'm not saying that's strictly invalid, just that it's not strictly valid either, and so should be taken with more than a few grains of salt.

>It may also be a pedantic truism, but "copyright infringement" and copying generally are semantically and functionally different from "theft." //

Not a pedantic truism by any stretch. Yes I absolutely agree, the tort of copyright infringement is nowhere near the crime of theft. I'd be happy to go with an approximation of "actual damages" in respect of copyright infringement but computer access is about more than just copyright infringement.

We come back, looking at the tort alone in the aaronsw case, to the quid pro quo - JSTOR were potentially set to lose a majority of their income if their entire back catalogue was released for free. On an actual damages basis this tort is huge.

>any trespass or damages against me should be firmly anchored in the land of the real. //

Information is as real as money.


"Information is as real as money."

Certainly, however, information can be "held"/known by an arbitrary number of people at any single point in time, whereas money can only ever be held by a single person at a single point in time. That changes the nature of that reality. Value, and therefore damages, are simply not as concrete as is implied by the property analogy.

"On an actual damages basis this tort is huge."

That's for the courts to decide, and the public to rightly question as well.


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