Posted by
ryuzaki0
on from the stuff-to-read dept.
Somnus writes "This
essay is as well-composed an argument I have seen opposing today's conception of copyrights and patents. "
Its long, but it looks good.
The problem here is that copyright holders already use contracts to attempt to strengthen their stranglehold on a product. You are correct that one could view copyright as simply a "standard contract". However, software companies routinely enclose license agreements that go far beyond the rights they would have under copyright. For example, prohibiting bechmarks or disclaiming warranties. The copyright holders seem to want the best of both worlds. They want to use contract to bind their "legitimate" users and copyright to bind everyone else. In fact, in the case of software the author can have various powers over the users via contract, patents, copyright, trademarks, and trade secrets! It's a wonder there's anything left over for the poor user.
What the US Constitution has to say
by
Frater+219
·
· Score: 3
If you accept the Constitution's argument, then copyright (in the U.S.) is not founded on a "natural right" but rather on what is known as a consequentialist argument. That is, the Constitution does not say "Copyright is granted because it is a natural right of authors to control their works" but rather "Copyright is granted for the purpose of promoting progress."
Given this argument, one can then argue that copyright and patent are only justified insofar as it actually does promote progress, and that in those cases where it inhibits progress, they are not Constitutionally justified.
Hence, if it could be proven in court that a particular granting of patent or copyright was inhibiting progress in the relevant field, it would not be unreasonable to overturn the patent or copyright, simply on the grounds of not being Constitutionally justified.
(Note that this assumes strict Constitutional constructionism, aka strict enumeration of powers -- the doctrine that the Constitution specifies the powers of the Federal government, and that the government has no legitimate powers which are not expressly granted to it. The last strict constructionist on the Supreme Court was Justice Hugo Black, many years ago, who actually had the daring to say that when the Constitution says "Congress shall make no law..." it actually means NO LAW.)
An interesting essay. It makes a statement that Intellectual Property rights are a 'monopoly priviledge granted by the government.' (Assuming for the sake of argument that monopolies are inherently bad things, and that governments can actually grant priviledges -- more accurately, the government restricts others.) If one believes that IP exists wholly as a government illusion, very well.
I am not sure I rather agree with the argument that information is universal. If everyone knew everything, we would not be in this situation, would we? Even if we make the assumption as given in the previous essay mentioned "Anarchism Triumphant", that all information can be reduced to some indefinitely long bitstream (i.e. just a number) there are far more uninteresting numbers than there are interesting ones. If creation is merely a process of discovering bitstreams/numbers, there is still an element of effort in that process -- if everyone could create (not the same as duplicate) any piece of IP trivially, then this would also not be an issue, but not everyone can. As far as the statement of "You cannot own information without owning other people." goes, that is rather stretching things. If I were to own a piece of IP, say, a piece of music, does this automatically give me total control over everyone who hears it? Ridiculous. Depending on the IP right stance taken, though, it might credit to me control over what they do with the IP they have received from me -- which is not the same thing as owning them completely.
I would argue that IP rights exist ultimately as an agreement between parties. As long as I have a right to NOT produce or communicate the ideas I have come up with, as long as I have some right to privacy, then I can choose when and to whom I speak to -- if I speak my mind to one person, that does not require me to speak to all! If I offer to a second party, "I will tell you of the IP I have thought of, if and only if you give your word you will not repeat or reproduce it to any one else without my explicit permission," that is the creation of IP rights in essence. The second party may choose to refuse to accept the conditions of the transaction, but should the second part accept, then they are bound ethically to respect the my IP rights as I have claimed them. If the second party breaks their word, then that is reprehensible -- if transaction was made as a legal contract, enforceable.
If a person pays money for a piece of music, writing, video, etc. that is marked "copyrighted" than that should be regarded as an implicit agreement, an implicit contract, to abide by the copyright laws. If one does not believe in IP rights, then one should, ethically, not purchase or use any copyrighted material! One may try to pursuade others to not use or make copyrighted material, or argue against the concept. It may very well be that IP rights are not 'rights' (i.e. inherent and/or universal,) but even if so, they are trivially fashioned out of mutual agreement between consenting parties, existing as a social construct, perhaps as a legal contract construct -- the only way to not have IP is to prevent people from making agreements between each other! The tyrrany that would prevent individuals or groups from doing such would be a sight to see indeed.
One may claim that if I have thought of a piece of IP, then I should not restrict distribution of it, as it is a universal (sic) thing. Fine -- you think of it for yourself then, if it universal -- you do not need someone else to tell you what you already know.
(Note the above does not touch on patents, just copyright. Patents are not justified by the above as there is no implied contract between two simultaneous independent creators, or independent duplication.)
I've never really flamed before... and admittedly, the subject for this message is a bit harsh... but still.
The arguments he made... especially in the "ethical" section were poorly formulated, and lacked a basic understading of the bases of intellectual property.
The author opined that if he purchased a book, then he should have rights to reproduce and trade that work, because flow of information and knowledge cannot ethically be stopped. He missed the point that copyright does not affect free flow of knowledge, but of a specific adaptation of that knowledge. (e.g., If you buy a book full of telephone numbers and addresses, you cannot simply copy and sell that book, because it would be a violation of copyright. Not because the telephone numbers and addresses are copyrightable, but that specific organization of those phone numbers and addreses are. Thus you are allowed to sell lists of that information, just not in the same format or using the same method of organization.)
Again, the author opined that if he memorized a poem, and reproduced it from his memory with his own pen and paper, he should be able to publish and sell it. This is also absurd, where did he memorize the poem from? How would he have created it had the original poem not been published.. this is, of course, not his work.
Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts.
Again, with his preposterous sabre tooth tiger argument, patent law does not prevent an individual from building a patented device for his own personal use (like to levitate him out of the pit to save his life), it does however prevent a corporation from taking an years of research from someone who came up with a patented device, mass producing it, and using for its own profitable enterprise without a penny of gratutde to the researcher.
As for the examples given of Bach and shakespeare, there is the fair use doctrine. Shakespeare did not callously steal the story of romeo and juliet verbatim from the original author, he did however make fair use of the a general plot line and wrote his own prose to tell this story. This goes back to the idea of it's not the information that is copyrightable, but the adaptation of the information.
I've ranted long enough, I personally am against a lot of ip, I think software patents are stupid (for reasons I will not go into) and I think many corporations have taken patent law and copyright law a bit too far... but this article left me feeling like I wasted my time reading it, and although I spent more time than I should replying to it, maybe I'll save other peoples precious time by telling them not to bother with it.
I'm surprised that I haven't seen anyone mention the importance of distinguishing between the right to produce verbatim copies and the right to produce derivative works.
In short, I think "fair use" should be greatly extended, beyond the needs of reviewers and parody-writers to all derivative works.
Fanfic is copyright violation, but darkfic (extremely twisted parody) is not. Similarly, pornographers freely trample the wholesome images of family entertainment while honest artists are prevented from writing tasteful side-stories relating to events and characters which have become cultural icons. I once came across a parody of The Hobbit which was the most pathetic piece of literary tripe I've ever had the misfortune to glance at, but one of the most beatiful works of animation ever produced is incomplete despite the approval of the copyright owner (because of earlier contracts signed which were only possible due to the excessive powers given to the copyright holder; "enough rope to hang yourself").
Currently, copyright law discourages valid creative, though derivative, works which increase "mindshare" and thus marketability of the original work, and encourages unpleasant mockeries which are used as cheap hooks to attract buyers and reduce the value of the works they are derived from.
I would much rather see a general requirement for products to be labeled "unauthorized derivitive work of X." This would make it clear what is canonical to the storyline, and what is Joe X's take on the story.
Also, the specific exception of parody is not adequate to allow the creation of works that would otherwise never have permission granted (incidentally, I've heard more than one author praise a well-executed parody of his own work). Parody is not the only way to challenge the ideas set in a story. An unauthorized sequel might be the best way to express disagreement over the long-term consequences of the actions of the hero.
As a scientist, I can't let this pass without comment.
I think the important thing that the author has not done is consider the benefits of property laws. The key here is that without some kind of regulation on intellectual property, no one is going to want to share!!
The author gives the example of a levitation device which could prevent you from being eaten by tigers. He gives the scenario that you have learned about the device at a seminar he gave, but can not build the device to save yourself since he has a patent. There are some problems with this argument:
First, and most importantly, in the absence of patent laws, he, being a stingy bastard, would not have ever given a seminar. More likely, he would hoard his information.
Second, there is a reason that the death penalty does not apply to patent law violations. Under the circumstances where violating a patent law would save your life, I would hope you'd be clever enough to value your life over the fines you may be charged.
Third, suppose you made a levitation device and saved your own life, then quickly destroyed that device. It is not likely that even a stingy bastard would go to the trouble of taking you to court, and, if he did, not likely that a jury would choose a large penalty. Even if the laws are not perfect, our legal system is developed so that every case can be considered individually.
My conclusion? Considered only in and of themselves, patent laws can easily be made out to be un-constitutional. To understand why they are necessary and fair, one must be willing to pursue the concept deeper than the surface that this article skims.
-- --
First post (by a female living in a state that begins with M and does not end in a vowel with a birthday that falls
Relevancy to GPL/FSF/OpenSource/etc.
by
fluffhead
·
· Score: 3
This seems like an excellent article to read, even if you are not a dyed-in-the-wool libertarian. Interestingly, it was apparently published in Autumn 1995, long before the current media splash. I especially enjoyed the author's explanation of why the gap in the Tolkien movies exists (I always wondered before why Bakshi didn't finish the whole LoTR series).
One might extend the basic argument against copyright and patent further in the Linux/*BSD/FSF/OSS sphere. ESR's essay on OSS development as a type of bragging rights competition or "gift culture" (at http://www.tuxedo.org/~esr/writings/homesteading/h omesteading.html comes to mind as an example. The basic tenet is that voluntary cooperation, in both the positive (contributions of code, etc.) and negative (boycotts of those who break the rules, anti-MS sentiment, etc.) senses, is the real basis for much of this phenomenon, as opposed to formal legalisms like those contained in the GPL. Although I certainly don't intend to slight RMS and the FSF for its attempts to use copyright law against itself, in order to formalize the hacker ethic. Perhaps this perspective will allay fears that the whole FSF/OSS model of development might collapse if the GPL were overturned in court, for instance.
P.S. IAAL (I am a Lawyer) but I don't practice - I still have my Texas bar card though. (Sysadmin work has been more fun/sane, plentiful, and almost as lucrative). Thus the following disclaimers apply:
Not Board Certified by the Texas Board of Legal Specialization. This is not intended as creating a lawyer-client relationship or providing any form of legal advice.
#include "disclaim.h"
--
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
May Be Stronger Libertarian Case FOR IP
by
werdna
·
· Score: 4
As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.
I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.
However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)
Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.
I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.
This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.
The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]
This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.
Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.
Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).
Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.
Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.
The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
Copyrights and Contract Law
by
AmJur2d
·
· Score: 3
Right now, if you infringe a copyright, you are subject to damages in tort, which (since infringement is generally an intentional tort) consists of all damages to the copyright holder which flow from your infringing activities. The law also allows statutory and punitive damages, as well as an award for fees and costs.
Suppose, however, in the absence of copyright, you sold your book to Joe Infringer with a restrictive contract that mirrors the current statutory rights of copyright law, and Joe Infringer breaches the contractual duty. You can sue him for your "expectation interest" in the contract: what you stood to gain by Joe's compliance with the contract terms. You cannot get any sort of punitive damages; Anglo-American law does not punish contract-breachers. The recovery will probably be less than what is currently available under the current statutory copyright law, and might be a lot less if the court elected to refuse to allow expectation interest and only gave reliance interest (which it might, because expectation interest is going to be highly speculative, and people will probably flinch at buying a book if the book purchase contract specified liquidated damages in the six figures for breach).
There is, however, a far more difficult problem: a legal concept called privity. When I sell you a thing, and place restrictions on your use of it, I am creating a contract with you. We are in privity of contract, and are mutually bound to abide by that contract. Now, suppose you then later sell that thing to someone else. Is the person you sell it to bound by our original contract? The answer, under contract law, is no; he and I are not in privity of contract. The answer under property law is more complex: If the original contract forms what is called a covenant than he and I may be in privity of estate, and the covenant might run to him. However, covenants are generally only applied to interests in real property; I am not aware of any application of covenants to personal (or intangible) property (although I haven't looked very hard).
Suppose, to get around this sticky problem, I put in a clause that you can't sell the book at all. This is called a restriction on alienation. For real property, the courts generally do not allow restrictions on alienation; if the court does the same in personal property, then you can't do this either. However, some restrictions on alienation are permissible, and a restriction that requires that you bind your buyer to the same contract terms that I bound you to might be permissible. Only a court can answer that question (this is all common law doctrine). Even so, in the case where you do transfer the book without meeting my conditions, we still have a problem with remedy; can I have the court rescind your sale, or do I merely get damages? Can I get an injunction against the your third-party purchaser to prevent him from making copies, even though he has no duty to not do so? What if he's already made copies? I could probably sue YOU for that, even if I can't sue him....
Another problem would deal with theft; if someone steals your copy and then makes copies en masse, who do I sue? You? Was it your fault that it was stolen? Do I sue you and let you bring in the thief as a third-party defendant on a derivative liability theory?
What about if you merely lose the book, or abandon it? Would you like to be potentially liable to a publisher for millions of dollars of damages because you left your copy of Virtual Light on the bus by accident? Hell, anyone who buys a book will have to buy "bookowner's insurance" too.
Of course, we'd end up passing legislation to prevent these problems. And that legislation would probably end up looking a whole hell of a lot like copyright law. Fancy that.
Slashdot Mirror
The problem here is that copyright holders already use contracts to attempt to strengthen their stranglehold on a product. You are correct that one could view copyright as simply a "standard contract". However, software companies routinely enclose license agreements that go far beyond the rights they would have under copyright. For example, prohibiting bechmarks or disclaiming warranties. The copyright holders seem to want the best of both worlds. They want to use contract to bind their "legitimate" users and copyright to bind everyone else. In fact, in the case of software the author can have various powers over the users via contract, patents, copyright, trademarks, and trade secrets! It's a wonder there's anything left over for the poor user.
If you accept the Constitution's argument, then copyright (in the U.S.) is not founded on a "natural right" but rather on what is known as a consequentialist argument. That is, the Constitution does not say "Copyright is granted because it is a natural right of authors to control their works" but rather "Copyright is granted for the purpose of promoting progress."
Given this argument, one can then argue that copyright and patent are only justified insofar as it actually does promote progress, and that in those cases where it inhibits progress, they are not Constitutionally justified.
Hence, if it could be proven in court that a particular granting of patent or copyright was inhibiting progress in the relevant field, it would not be unreasonable to overturn the patent or copyright, simply on the grounds of not being Constitutionally justified.
(Note that this assumes strict Constitutional constructionism, aka strict enumeration of powers -- the doctrine that the Constitution specifies the powers of the Federal government, and that the government has no legitimate powers which are not expressly granted to it. The last strict constructionist on the Supreme Court was Justice Hugo Black, many years ago, who actually had the daring to say that when the Constitution says "Congress shall make no law..." it actually means NO LAW.)
An interesting essay. It makes a statement that Intellectual Property rights are a 'monopoly priviledge granted by the government.' (Assuming for the sake of argument that monopolies are inherently bad things, and that governments can actually grant priviledges -- more accurately, the government restricts others.) If one believes that IP exists wholly as a government illusion, very well.
I am not sure I rather agree with the argument that information is universal. If everyone knew everything, we would not be in this situation, would we? Even if we make the assumption as given in the previous essay mentioned "Anarchism Triumphant", that all information can be reduced to some indefinitely long bitstream (i.e. just a number) there are far more uninteresting numbers than there are interesting ones. If creation is merely a process of discovering bitstreams/numbers, there is still an element of effort in that process -- if everyone could create (not the same as duplicate) any piece of IP trivially, then this would also not be an issue, but not everyone can. As far as the statement of "You cannot own information without owning other people." goes, that is rather stretching things. If I were to own a piece of IP, say, a piece of music, does this automatically give me total control over everyone who hears it? Ridiculous. Depending on the IP right stance taken, though, it might credit to me control over what they do with the IP they have received from me -- which is not the same thing as owning them completely.
I would argue that IP rights exist ultimately as an agreement between parties. As long as I have a right to NOT produce or communicate the ideas I have come up with, as long as I have some right to privacy, then I can choose when and to whom I speak to -- if I speak my mind to one person, that does not require me to speak to all! If I offer to a second party, "I will tell you of the IP I have thought of, if and only if you give your word you will not repeat or reproduce it to any one else without my explicit permission," that is the creation of IP rights in essence. The second party may choose to refuse to accept the conditions of the transaction, but should the second part accept, then they are bound ethically to respect the my IP rights as I have claimed them. If the second party breaks their word, then that is reprehensible -- if transaction was made as a legal contract, enforceable.
If a person pays money for a piece of music, writing, video, etc. that is marked "copyrighted" than that should be regarded as an implicit agreement, an implicit contract, to abide by the copyright laws. If one does not believe in IP rights, then one should, ethically, not purchase or use any copyrighted material! One may try to pursuade others to not use or make copyrighted material, or argue against the concept. It may very well be that IP rights are not 'rights' (i.e. inherent and/or universal,) but even if so, they are trivially fashioned out of mutual agreement between consenting parties, existing as a social construct, perhaps as a legal contract construct -- the only way to not have IP is to prevent people from making agreements between each other! The tyrrany that would prevent individuals or groups from doing such would be a sight to see indeed.
One may claim that if I have thought of a piece of IP, then I should not restrict distribution of it, as it is a universal (sic) thing. Fine -- you think of it for yourself then, if it universal -- you do not need someone else to tell you what you already know.
(Note the above does not touch on patents, just copyright. Patents are not justified by the above as there is no implied contract between two simultaneous independent creators, or independent duplication.)
I've never really flamed before... and admittedly, the subject for this message is a bit harsh... but still.
- --
The arguments he made... especially in the "ethical" section were poorly formulated, and lacked a basic understading of the bases of intellectual property.
The author opined that if he purchased a book, then he should have rights to reproduce and trade that work, because flow of information and knowledge cannot ethically be stopped. He missed the point that copyright does not affect free flow of knowledge, but of a specific adaptation of that knowledge. (e.g., If you buy a book full of telephone numbers and addresses, you cannot simply copy and sell that book, because it would be a violation of copyright. Not because the telephone numbers and addresses are copyrightable, but that specific organization of those phone numbers and addreses are. Thus you are allowed to sell lists of that information, just not in the same format or using the same method of organization.)
Again, the author opined that if he memorized a poem, and reproduced it from his memory with his own pen and paper, he should be able to publish and sell it. This is also absurd, where did he memorize the poem from? How would he have created it had the original poem not been published.. this is, of course, not his work.
Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts.
Again, with his preposterous sabre tooth tiger argument, patent law does not prevent an individual from building a patented device for his own personal use (like to levitate him out of the pit to save his life), it does however prevent a corporation from taking an years of research from someone who came up with a patented device, mass producing it, and using for its own profitable enterprise without a penny of gratutde to the researcher.
As for the examples given of Bach and shakespeare, there is the fair use doctrine. Shakespeare did not callously steal the story of romeo and juliet verbatim from the original author, he did however make fair use of the a general plot line and wrote his own prose to tell this story. This goes back to the idea of it's not the information that is copyrightable, but the adaptation of the information.
I've ranted long enough, I personally am against a lot of ip, I think software patents are stupid (for reasons I will not go into) and I think many corporations have taken patent law and copyright law a bit too far... but this article left me feeling like I wasted my time reading it, and although I spent more time than I should replying to it, maybe I'll save other peoples precious time by telling them not to bother with it.
-----------------------------------------------
"BadTimes will make you fall in love with a penguin" - Laika
(note: this only concerns copyright)
I'm surprised that I haven't seen anyone mention the importance of distinguishing between the right to produce verbatim copies and the right to produce derivative works.
In short, I think "fair use" should be greatly extended, beyond the needs of reviewers and parody-writers to all derivative works.
Fanfic is copyright violation, but darkfic (extremely twisted parody) is not. Similarly, pornographers freely trample the wholesome images of family entertainment while honest artists are prevented from writing tasteful side-stories relating to events and characters which have become cultural icons. I once came across a parody of The Hobbit which was the most pathetic piece of literary tripe I've ever had the misfortune to glance at, but one of the most beatiful works of animation ever produced is incomplete despite the approval of the copyright owner (because of earlier contracts signed which were only possible due to the excessive powers given to the copyright holder; "enough rope to hang yourself").
Currently, copyright law discourages valid creative, though derivative, works which increase "mindshare" and thus marketability of the original work, and encourages unpleasant mockeries which are used as cheap hooks to attract buyers and reduce the value of the works they are derived from.
I would much rather see a general requirement for products to be labeled "unauthorized derivitive work of X." This would make it clear what is canonical to the storyline, and what is Joe X's take on the story.
Also, the specific exception of parody is not adequate to allow the creation of works that would otherwise never have permission granted (incidentally, I've heard more than one author praise a well-executed parody of his own work). Parody is not the only way to challenge the ideas set in a story. An unauthorized sequel might be the best way to express disagreement over the long-term consequences of the actions of the hero.
I think the important thing that the author has not done is consider the benefits of property laws. The key here is that without some kind of regulation on intellectual property, no one is going to want to share!!
The author gives the example of a levitation device which could prevent you from being eaten by tigers. He gives the scenario that you have learned about the device at a seminar he gave, but can not build the device to save yourself since he has a patent. There are some problems with this argument:
My conclusion? Considered only in and of themselves, patent laws can easily be made out to be un-constitutional. To understand why they are necessary and fair, one must be willing to pursue the concept deeper than the surface that this article skims.
-- First post (by a female living in a state that begins with M and does not end in a vowel with a birthday that falls
This seems like an excellent article to read, even if you are not a dyed-in-the-wool libertarian. Interestingly, it was apparently published in Autumn 1995, long before the current media splash. I especially enjoyed the author's explanation of why the gap in the Tolkien movies exists (I always wondered before why Bakshi didn't finish the whole LoTR series).
h omesteading.html comes to mind as an example. The basic tenet is that voluntary cooperation, in both the positive (contributions of code, etc.) and negative (boycotts of those who break the rules, anti-MS sentiment, etc.) senses, is the real basis for much of this phenomenon, as opposed to formal legalisms like those contained in the GPL. Although I certainly don't intend to slight RMS and the FSF for its attempts to use copyright law against itself, in order to formalize the hacker ethic. Perhaps this perspective will allay fears that the whole FSF/OSS model of development might collapse if the GPL were overturned in court, for instance.
One might extend the basic argument against copyright and patent further in the Linux/*BSD/FSF/OSS sphere. ESR's essay on OSS development as a type of bragging rights competition or "gift culture" (at http://www.tuxedo.org/~esr/writings/homesteading/
P.S. IAAL (I am a Lawyer) but I don't practice - I still have my Texas bar card though. (Sysadmin work has been more fun/sane, plentiful, and almost as lucrative). Thus the following disclaimers apply:
Not Board Certified by the Texas Board of Legal Specialization. This is not intended as creating a lawyer-client relationship or providing any form of legal advice.
#include "disclaim.h"
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.
I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.
However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)
Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.
I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.
This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.
The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]
This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.
Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.
Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).
Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.
Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.
The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
Suppose, however, in the absence of copyright, you sold your book to Joe Infringer with a restrictive contract that mirrors the current statutory rights of copyright law, and Joe Infringer breaches the contractual duty. You can sue him for your "expectation interest" in the contract: what you stood to gain by Joe's compliance with the contract terms. You cannot get any sort of punitive damages; Anglo-American law does not punish contract-breachers. The recovery will probably be less than what is currently available under the current statutory copyright law, and might be a lot less if the court elected to refuse to allow expectation interest and only gave reliance interest (which it might, because expectation interest is going to be highly speculative, and people will probably flinch at buying a book if the book purchase contract specified liquidated damages in the six figures for breach).
There is, however, a far more difficult problem: a legal concept called privity. When I sell you a thing, and place restrictions on your use of it, I am creating a contract with you. We are in privity of contract, and are mutually bound to abide by that contract. Now, suppose you then later sell that thing to someone else. Is the person you sell it to bound by our original contract? The answer, under contract law, is no; he and I are not in privity of contract. The answer under property law is more complex: If the original contract forms what is called a covenant than he and I may be in privity of estate, and the covenant might run to him. However, covenants are generally only applied to interests in real property; I am not aware of any application of covenants to personal (or intangible) property (although I haven't looked very hard).
Suppose, to get around this sticky problem, I put in a clause that you can't sell the book at all. This is called a restriction on alienation. For real property, the courts generally do not allow restrictions on alienation; if the court does the same in personal property, then you can't do this either. However, some restrictions on alienation are permissible, and a restriction that requires that you bind your buyer to the same contract terms that I bound you to might be permissible. Only a court can answer that question (this is all common law doctrine). Even so, in the case where you do transfer the book without meeting my conditions, we still have a problem with remedy; can I have the court rescind your sale, or do I merely get damages? Can I get an injunction against the your third-party purchaser to prevent him from making copies, even though he has no duty to not do so? What if he's already made copies? I could probably sue YOU for that, even if I can't sue him....
Another problem would deal with theft; if someone steals your copy and then makes copies en masse, who do I sue? You? Was it your fault that it was stolen? Do I sue you and let you bring in the thief as a third-party defendant on a derivative liability theory?
What about if you merely lose the book, or abandon it? Would you like to be potentially liable to a publisher for millions of dollars of damages because you left your copy of Virtual Light on the bus by accident? Hell, anyone who buys a book will have to buy "bookowner's insurance" too.
Of course, we'd end up passing legislation to prevent these problems. And that legislation would probably end up looking a whole hell of a lot like copyright law. Fancy that.