In the case of piracy-as-in-copyright-infringement, the copyright holder still has the legal "right" (privilege) to restrict copies being made. That right may have been violated by the seller - but the right has not been "wrested away" from the copyright holder by the "pirate" copier-seller - if it had been, then the copier-seller would now be the holder of the right to restrict copies being made. Obvious nonsense, and not the position under the law. It CAN happen that someone is wrongfully holds the copyright to someone else's work, but it is relatively rare.

The "full enforcement" of copyright law is not intolerable because of penalties affecting too many people, but because it would *require* the surveillance of all interpersonal communications.

Thus, we see "copyright" joining "terrorism" and "child porn" as an EXCUSE for the construction of a police state. Now, you guys might yet get away with that in America or China, but the memory of WWII, Nazism and the USSR is still too strong in Europe for it to be tolerated.

This is why Ian Clarke wrote, in the Freenet project FAQ:
http://freenetproject.org/philosophy.html

"Of course much of Freenet's publicity has centered around the issue of copyright, and thus I will speak to it briefly. The core problem with copyright is that enforcement of it requires monitoring of communications, and you cannot be guaranteed free speech if someone is monitoring everything you say. This is important, most people fail to see or address this point when debating the issue of copyright, so let me make it clear:

You cannot guarantee freedom of speech and enforce copyright law

It is for this reason that Freenet, a system designed to protect Freedom of Speech, must prevent enforcement of copyright. "

I don't usually comment on comments, but I will chime in here.

My intent was to discuss what one could infer about copyright--or not--from the bare fact that a black market in copyrighted goods exists. To make that clearer, I might have written that piracy and suchlike "purport" to transfer the rights to the buyer or made some other slight fiddle to the language. The discussion isn't intended to deal with *every* possible distinction between physical and intellectual goods, which we've discussed at length elsewhere; it was rather to deal the characteristics of black markets and to distinguish a) from b) type markets. Further distinctions are of course possible but not necessarily interesting.

To clarify further, the hypotheticals about total enforcement are helpful in clarifying our sense of how the underlying rights mesh with our sense of fairness, under any logically possible system of enforcement. Tying the hypothetical to what you think one system of enforcement would look like is going to cause one to miss the point of the thought experiment. Pretty much completely. A law professor's nightmare.

(As an aside, the assumption that total enforcement of copyright would entail a police state seems to be a jumping the gun a bit. I don't see that this follows at all. It's one possible scenario, but as most enforcement of copyright seems to belong the civil as opposed to the criminal realm, it doesn't seem particularly likely. Second, we'd better hope that the link between a police state and sharing information online is a tenuous one, as whenever one ventures online, one is little more than a data point to others regardless of what is being enforced or not enforced).

(Finally, the peculiar assurance of some Europeans that their assorted regulatory regimes insulate them from becoming a police state is worth noting. It is unclear to me how states that control labor markets, education, health care, and that for the most part, project enormous unfunded liabilities going forward due to social security and other projects are in any way insulating themselves from devolving into tyranny. Have you had your laptop inspected to make sure you aren't taking work home from the office lately? Tried to ask if there are alternative treatments for your dying child's cancer treatment in Germany?).