Avatar:…If you set copyright periods too short, I don’t get any MASH, and that will make me quite sad.

I have always hated MASH. But I love Star Trek (the original show).

Do you recall a year or so back when someone with high end Computer Graphics software redid the special effects in an episode of Star Trek? All that cheesy business with models hanging from strings can be redone looking as good as a contemporary theatrical release. But I can’t buy a DVD of Star Trek without cheesy ’60s special effects. And that makes me quite sad.

In my view, the sweat of the furrowed brow is no less deserving of protection than the sweat of the bent back. The “protection” for either is unnatural and the motive for both is utility. Toil is toil.

But that is not what is being compared – the interesting distinction is between tangible property and intellectual property. Furthermore, the protection for the sweat of the bent back is completely natural – I agree to work for you, you pay me, and I take possession of that pay. Once I have it, it’s mine, and it doesn’t take a law to give me the right to it – it is natural. If you can get someone to pay you for the sweat of you furrowed brow, that payment likewise is yours, naturally.

Someone that feels it’s perfectly fine to appropriate the fruit of another man’s labor against his will and without compensation will never have the moral high ground no matter how circumlocutory their reasoning or how high they are able to aim their nose.

Notice how it takes the coercive force of government to prevent the former, while the latter can be prevented by the owner through his own actions. There really is a difference and that difference is not zero, no matter how many circumlocutions you go through.

The person with the furrowed brow is welcome to seek payment for his labor.

The government created monopoly on expression of ideas would be utterly anathema to freedom were it not for the purely utilitarian fact that some amount of that monopoly serves to increase the creation of those works. Hence the burden is on the creator to justify that government grant of a monopoly enforced by the coercive power of government. Today, in the US, it is obvious to most that corruption has caused the government to extend the copyright monopoly term far past its utilitarian value.

The result is harm to society, as the use of ideas is suppressed. There are millions of works that should be available for free, right now, online, except that the copyright automatically protects them – even if their owners don’t bother and don’t profit from it. Preserving that is hardly the moral high ground.

The extension of copyright beyond a reasonable period – perhaps varying by the type of work – should require a periodic fee, payed by the copyright owner. That way, 99.99% of copyrighted work would rightly end up in the public commons within a reasonable period of time.

How is Disney’s continued assault on expressions of Mickey Mouse providing social good?

I agree that the creation process is no different. Which is why it’s completely asinine to bring up the “nothing occurs in a vacuum” statement in relation to copyrights or patents as being somehow apart from material possessions. I might just as easily use that line as a rational for taking someone’s purse, since they didn’t procure it in a vacuum and its present contents are completely dependent on a countless number of outside factors that allowed that particular person to buy that particular purse and fill it with its particular particulars. My point is, a lot of the extraneous rationales people posit for the repeal or deform of intellectual property have no relation to its intangibility and could just as swiftly be applied to any property law.

“That’s extremely basic…”

Indeed. I don’t understand why you even bothered to mention it.

“It could be argued that it is unnatural to prevent the free distribution of ideas. Copyright, in the sense of natural law, is thus merely a construct.”

It could just as easily be argued that all laws and rights are unnatural and that so-called “natural law” is one of humanity’s greatest misnomers. It could just as easily be argued that taxes are unnatural or that the regulation governing monopolies arising out of the free market are unnatural. There is no right to privacy in nature. There is no right to liberty. The fact is, all of it is unnatural.

In my view, the sweat of the furrowed brow is no less deserving of protection than the sweat of the bent back. The “protection” for either is unnatural and the motive for both is utility. Toil is toil. Someone that feels it’s perfectly fine to appropriate the fruit of another man’s labor against his will and without compensation will never have the moral high ground no matter how circumlocutory their reasoning or how high they are able to aim their nose.

A tangible good can be owned by one, or shared. However, when it’s ownership is transferred, the previous owner(s) no longer has it.

A copyrighted good can, on the other hand, be copied. Same with patentable item. The copying does not deprive the original owner of the good.

That’s extremely basic, and is across all cultures except those that are too primitive, or are pretending, to not recognize the natural status of possession.

It could be argued that it is unnatural to prevent the free distribution of ideas. Copyright, in the sense of natural law, is thus merely a construct.

The net result: copyright is a law based on utilitarianism, not natural law. Hence it has a stated purpose in the Constitution, whereas a natural right would not.

Nothing occurs in a vacuum, including the creation of tangible goods. So again, how does that make IP any different from physical property?

Your culture? Your ideas? Your history? None of those are “yours”. You are not the co-author of anything you didn’t personally author. To say otherwise, is the mother of all stretches.

Finally, comparing IP to building a dam on a river (a naturally occurring resource that took no individual effort to spring from the ether) is completely nonsensical and constitutes a rather obvious straw man.

1) Copyright is a tortured legal construct these days. We have pulled and stretched it to cover everything from the written word, to a photographed image, to a recorded muscial performance, to the construction of a software program. Also from a physical object (for example, a printed book) to the digital representation of that object (pure data, an ebook). Maybe we need a new legal instrument?

2) So far in this talk of morality and copyright very little has been said regarding the morality, or lack there of, in extending copyright and preventing the growth of the public domain. The authors of these creative works have used our culture, our ideas, our history to create these works, by not giving back to that culture aren’t they essentially stealing from us all? How is that moral? Creativity, like science does not occur in a vacuum. It builds on past achivements, understanding, and stories (for example, everything Disney has created). If a river runs past my house and I build a dam, or poison the water, is that moral?

PeteP: How about private property rights ? If I create something, you’re saying it doesn’t inherently belong to me ? How does anyone have any right(s) to the thing I created, beyond those I might choose to grant ?

This is one of the most common arguments in favor of intellectual property, but it is flawed in a very obvious way. Is it in general true for physical property that whatever you create belongs to you? The answer is no. In order for what you create to belong exclusively to you, every component of the thing you make must also belong exclusively to you. If you use components owned by your employer (either on or off the job), it doesn’t matter what you do with them, the result still belongs to your employer. If you co-own the component parts with someone else, they share in the ownership of the resulting thing, even if they had no part in constructing it.

The fact that most supporters of the notion that intellectual property = physical property miss this blindingly obvious fact demonstrates convincingly that even they (and that includes you) think of intellectual property as fundamentally different than physical property, operating under a completely different set of rules. Specifically, they miss the fact that intellectual property, like physical property, also consists of component parts assembled in a certain way. For intellectual property, these parts are other intellectual property created earlier, by someone else. This is very obviously true in the case of patents, but it is also true in the case of copyrighted works (perhaps trademarks are a bit less clear on this point); anyone who says that copyrighted works are 100% created by their “creator” is either not a creator (or art scholar), or has such an enormous ego they believe they are god, capable of creating something out of nothing.

The result of this is that incredibly few works of intellectual property can meet the burden of the creator owning all of the component parts. As such the creations cannot be considered the exclusive property of the creator by the very definition of property itself.

Even among utilitarianisms, many define ‘utility’ as human happiness, others as individual development, and [only] some as economic efficiency/wealth.

To claim that the last – and only it – is normatively neutral is to be trapped in one’s own paradigm.

Don’t discount that authors want that copyright in case they have a winner. They might not know that ahead of time, but they will know within a year or so. That is, I suspect that if copyright could be renewed after 5 years and again after 20 years, you’d see many more than 7% of the books whose copyrights were renewed after 5 years re-renewed after 20 years.

Chris NewmanHow about this scenario: A writes a first draft of a novel. B asks to read it, and A lets him. B takes it and mass publishes it verbatim without permission or compensation to A, making a million dollars and totally or largely preempting the market for A’s completed version. Even if you dislike copyright law, are you all really adamant that B has done nothing immoral? I submit that most people’s moral intuitions would say that he has.

That’s a simple breach of contract — you don’t need intellectual property rights law for that. Just have B sign a non-disclosure agreement with A before receiving the manuscript. This is common in business and it is an enforceable contract that does not rely on whether or not the information being shared is subject to intellectual property rights or not.

I chose the free downloading issue because that seems to be the most common violation of copyright law these days. It certainly is true that “I wouldn’t have paid for it anyway” can be a self-serving justification and that a moral rule against unauthorized downloading would lead to better social outcomes. The problem with this is that what is or is not subject to copyright is often arbitrary: data and databases are a legal gray area from what I can tell to pick one example. So we fall back on the idea that breaking copyright is wrong because it is illegal.

Aside from this, I didn’t say it was impossible to make a moral argument for copyright. Just that I haven’t seen a very compelling one and that it is a mistake to equate intellectual property with tangible property.

I want to known what the volume is in each category. There are millions of books published, but only thousands of motion pictures released.

I want to know what period is covered – and whether the numbers were consistent across that period, or changed substantially.

I want a breakdown of those percentages for each type of work by importance. What percentage of bestselling books had copyright renewed? I don’t think it would be right to deny extension of copyrights on major best-sellers because the copyrights on the much larger number of hack romances or pseudonymous p0rn0 novels were allowed to lapse.

Another question is what protection authors have against altered versions of their works being published – bowdlerized editions, or in the case of non-fiction, with content rewritten to further someone’s agenda.

For instance, suppose a new edition of Mark Twain’s The Innocents Abroad appeared, with text interpolated into the chapters on the Holy Land which describes numerous flourishing Arab villages – or Jewish settlements.

Under present law, the holder of the copyright (if any) could sue to suppress the altered edition. If copyright is truncated as some suggest, what constrain remains?

As for “free downloading,” I make no blanket assertion as to its morality one way or another. But I think the lady doth protest a bit much in asserting righteously that there is absolutely no moral issue there. I think a lot of people do a lot of self serving rationalizing when they say they “never would have paid for” things they download. That may in fact be true some of the time, but once you get into the habit of downloading whatever you want I don’t believe that you continue to make those distinctions scrupulously. I don’t think most habitual downloaders can honestly say that they never download things that in fact they would have paid for if there were no P2P. And even if you can, you have no basis for thinking the same is true of the numerous other people to whom you are making the same works available.

Chris Newman: One can view all property regimes as essentially utilitarian constructs–the fact of rivalness merely tells us why it is that in order to maximize utility, it is useful to assign and protect rights to exclude others from the possession of tangible assets.

You certainly can do that. But the moral dimension comes from the fact that, as John Locke pointed out, being denied the right to tangible property is the same as being denied the fruits of my labor. Not so in the case of intellectual property: if I download music that I never would have paid for, there is no material harm. The artist is not being denied the fruits of his labor since the music is non-rival in consumption nor is he losing income since I wouldn’t have paid money for it if the free download option was not available.

There are lots arguments to be made about why free downloading should be a tort or a crime but there doesn’t seem to be a strong moral argument.

In the case of tangible property, you could make the argument that there is no moral right to the fruits of your labor. I think this violates most people’s moral intuitions, though.

Your point about tangible property being rival is well taken, but I don’t see that it justifies placing property rights in tangible assets on a higher moral plane than intellectual property rights. One can view all property regimes as essentially utilitarian constructs–the fact of rivalness merely tells us why it is that in order to maximize utility, it is useful to assign and protect rights to exclude others from the possession of tangible assets. Otherwise people will attempt to make conflicting uses of resources, leading both to physical conflict and wasteful tragedy of the commons. But that doesn’t necessarily lead to the conclusion that these rights to exclude have any moral standing, does it? Or if it does, then it’s not clear to me why IP rights don’t enjoy similar moral standing for similar reasons. The utilitarian story in favor of IP rights is somewhat different, but not fundamentally so. It is still a story about avoiding a form of tragedy of the commons, in which certain kinds of productive investments are not made because no one is able to internalize the benefits from doing so. It seems to me that both regimes do have a moral dimension, and that in each case it stems from a Lockean notion that once you have invested labor to create something of value with which to further your existence, it is wrong for someone else to deprive you of that value through appropriation. Again, I’m not claiming that absolutely any unauthorized use of someone’s IP should necessarily count as immoral appropriation. But I think some clearly does. By the same token, not all unauthorized uses of someone else’s tangible property actually harm the owner, and no-one really believes them all to be immoral. But some do, and are.

Like the fish that’s unaware of the water it swims un, we often operate under the illusion that the ideas we know and believe simply and obviously are, and we don’t think of them as having qualities like moral positions, cultural biases, etc. that we ascribe to the ideas of others.

But it ain’t so. Even the idea that economics should be important to people or a society is fraught with moral ideas. The Hamilton/Jefferson debate was a moral debate, a discussion about what should be the nature of the new society’s social morality.

How about private property rights ? If I create something, you’re saying it doesn’t inherently belong to me ? How does anyone have any right(s) to the thing I created, beyond those I might choose to grant ?

Private property rights to physical goods exist because physical goods are rivalrous. Person A and Person B cannot simultaneously possess the same piece of physical property.

Intellectual property is the opposite. To quote Jefferson, “He who receives ideas from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me.” If you could magically duplicate and multiply physical property, would you need any property rights? Thus, we use a completely different regime of rights for ideas than physical property.

PeteP: “The only Constitutional justification for copyright (or patent) protection is encouraging further creativity and innovation.”How about private property rights ? If I create something, you’re saying it doesn’t inherently belong to me ? How does anyone have any right(s) to the thing I created, beyond those I might choose to grant ?

This and another commenter’s point along the same lines were what I had in mind in my initial comment on the other thread, where I raised the ‘moral considerations’ question.

It may be one of our purposes to promote creative activity, but why should the government have any hand in protecting my creative activity – thus restricting others – unless I have some meaningful claim to that protection?

Perhaps we do not want to call this a moral right? To me it seems to be as much a moral right as there is to any other product of labor. Perhaps more so, in that it is largely a result of my mental or artistic efforts, rather than a matter of my putting my body to work on resources that might be encumbered by the rights claims of others.

By the way, I thought the comment about being a mere academic was snotty and dumb.

Law vs morality.

Yes it is immoral to do things that are legal and it is moral to do thousands of things that are illegal (money laundering, tax evasion, raping the planet, converting domestic price-controlled gasoline to world-market-priced gasoline, smuggling, etc.).

You can’t burn in hell for all eternity for any of the above (notwithstanding recent Vatican pronouncements on drugs and taxes).

Unlawful copying isn’t theft because there is no “taking and asportation of the personal property of another with intent to permanently deprive him of same.”

If I buy a cd and put it in my computer and make a copy not for personal use, none of the elements of (common law) theft are present.

Copyright is a purely statutory crime.

Chris Newman: … By instituting a copyright regime, … Arguably it does, however, create a moral obligation

Now that is a strange turnaround. The discussion was about the question whether moral obligation is the basis for copyright protection, but you are claiming that copyright protection is the basis for a moral obligation. Interesting.

pct: … tension between trademark and copyright rights …

Your question is on the face of it off-topic, but I rather think that you have instead brought to light (in my eyes) one of the major weaknesses of the “moral obligation is the basis for IP protection/IP is property” argument: if my poem is property, and my invention is property, and my trademark is property, and on that basis they deserve protection in law, then why on earth are the protections so arbitrarily different? If I own a car and a house, the law doesn’t protect one in a radically different way than the other, and the “moral basis” argument gives no logical reason whatsoever that there should be such radical differences in the protections allowed to copyrighted works, trademarks, and patented inventions. The “utility to society” basis for these laws, on the other hand, practically requires such fundamental differences in protection.

The patent lives 20 years after applying for the patent (plus any PTO caused term extensions)
17 years after issue was the old system.

I wasn’t aware that they had finally adapted the international rule.

The old one, for nit picking sake :-), was 17 years from grant, the new 20 years from application.

Those who had registrations and responded would be given the option to keep their registration in force, free of charge, or to forfeit it for some modest amount, say $100.

The result would be a vast increase in the public domain. Probably, 70% or more would not respond an lose their copyright. I also suspect that most of those who responded would take the money, rather than keep their registration in force. So, perhaps only 15% of registered copyrights might remain in the private domain and probably less than 1% of unregistered copyrights would stay in the private domain.

The cost of the program and the compensation payments would be modest. In round numbers there are 600,000 U.S. copyright registrations per year. Perhaps 90,000 per year would seek compensation in lieu of continued registration, at a cost of $9 million. The total cost of the program would easily be under $1 billion, and would be offset in part from a rise in registration fees from unregistered copyright holders.

The number of registered copyrights more than 28 years old that are still in force might be reduced to well under 1,000,000.

Lior:
For another difference, a “cover version” of a song (an essential form of modern music) is a derivative work, limited by copyright.On the other hand, selling a variation on a patented device is legal, in fact encouraged by the patent system.

I’m not sure this difference is as great as you make it out to be. A “variation” on a patented device is legal only if it both omits some limitation recited in the patent claim, and falls outside the doctrine of equivalents. So there are plenty of “variations” that would still be infringing, and hence “derivative works” based on patented inventions are still limited by patent law. On the other hand, when you talk about a “cover version” of a song, I think you mean a recording that incorporates all or virtually all of the musical elements that characterize a copyrighted musical composition. It is possible to make a recording that was in some sense “derived” from a copyrighted composition, but that is nevertheless so dissimilar to the original that it would not be found to infringe. So in either field there is an abstractly defined core of protected elements, surrounded by a penumbra of less definitely defined elements that are substantially similar enough to be infringing.

Michael F. Martin: The interesting arguments about the effectiveness of IP are not over the marginal costs and benefits of term extension.Transactions costs are diminishing over time anyway, so overextension isn’t as pernicious.The interesting arguments are about the kind and magnitude of the opportunity costs of not having IP at all.Without a fair competition for reward and recognition, how many artists, authors, and inventors would play another game?

I can’t follow the argument here. The loss in term extension has nothing to do with transaction costs. It has to do with the loss to the public domain. Disney can make “Little Mermaid” cartoons because copyright in the book has expired, but they’d like to forbid anyone from ever writing “Lion King”
books even if new takes on the story would be valuable.

Regarding your fear for the livelihood of artists, for nearly all of history all professional musicians made money from public performances and from personal employment (as performers and as teachers lessons). Publication income was very limited yet it didn’t stop their creativity. Only the elite few made significant money from selling sheet music. I don’t see why today’s artists would stop performing just because the price of CDs would drop.

By the way, “IP” is a very misleading term — patents and copyrights (artists/authors vs. inventors) are different beasts which require different analysis. The basic idea of limited monopoly is the same, but the actual monopolies are very different. Especially in modern times this is very important: the cost of duplicating a copyrighted work is rapidly dropping. The cost of building patented-protected devices is not — these are physical objects that need to be manufactured. These changes have a large effect on the costs and benefits of the granted monopolies.

For another difference, a “cover version” of a song (an essential form of modern music) is a derivative work, limited by copyright. On the other hand, selling a variation on a patented device is legal, in fact encouraged by the patent system.

Michael F. Martin: Without a fair competition for reward and recognition, how many artists, authors, and inventors would play another game?

Since artists, authors, and inventors existed before IP law did, it’s safe to say that the answer to your question is “not all of them.” The ongoing innovation in the designer-clothing industry, which has no IP protection, is further proof.

Certainly, you get more of what you subsidize, and getting rid of IP law might lead some people to give up on professional creation. On the other hand, getting rid of IP law would open up vast opportunities for creative derivative work which is currently illegal or impractical, so the volume of innovation might not decrease at all or might even increase.

Against Intellectual Monopoly analyzes this question and concludes that even in the pharmaceutical industry, the textbook case for modern IP law, patents stifle more innovation than they encourage.

Curt Fischer: I don’t completely agree, but nonetheless let’s grant your assertions arguendo. It is clear that as of today, the record companies have the law on their side, amoral as it may be, when they sue college students who illegally distribute music on campus networks. I have a hard time understanding how it is moral for anyone who believes in the rule of law to say that it is immoral to enforce the law, at least when the law in question is not held to be immoral, but rather simply amoral.

Under a libertarian ethical system, it is immoral to violate anyone’s natural rights of liberty and property except in self-defense or retribution for their violation of someone else’s natural rights. For example, wearing a pink shirt does not violate anyone else’s natural rights, so it would be immoral to mug me for wearing a pink shirt. Under this theory, it is immoral to pass or enforce a law against wearing pink shirts, and fining me for my sartorial choices would be nothing more than that same immoral mugging under color of law.

If the moral status of unlicensed copying in a pre-legal society is equivalent to wearing a pink shirt, then it is immoral (not amoral) to pass or enforce laws against it: such laws represent an unjust threat of violence against people who are committing no moral wrong.

John Moore:Patents in the US expire after 17 years, and are not renewable.

The patent lives 20 years after applying for the patent (plus any PTO caused term extensions)
17 years after issue was the old system.
Not that that changes the point of your post, just nit picking.

And they purchased Congress lock stock and barrel, most especially Orrin Hatch ( who was bought off with a recording contract, seeing as he fancies himself a composer / singer ), and got the DMCA in return.

Utter insanity ! $150,000 per copy of a 99 cent ( at best ) song ??? Purest highway robbery, by the finest politicians money can buy.

How SCOTUS sustains this, I don’t know.

I don’t completely agree, but nonetheless let’s grant your assertions arguendo. It is clear that as of today, the record companies have the law on their side, amoral as it may be, when they sue college students who illegally distribute music on campus networks. I have a hard time understanding how it is moral for anyone who believes in the rule of law to say that it is immoral to enforce the law, at least when the law in question is not held to be immoral, but rather simply amoral.