Orin and others rightly questioned my use of the word “always” in connection with my statement that the use of the description “property” in the Copyright Wars is ”always” a political move. I overstated my assertion, and should have used a less absolute word. Thanks for the correction.
SK very much wants me to make ethical or moral arguments in support of my views, and questions why I haven’t. I don’t see why I should make such an argument. My approach is to view these issues as business issues, and that shouldn’t be surprising coming from someone like me who is in house at a corporation. I also think it appropriate in connection with copyright, which is an economic right. Moreover, the book is devoted to debunking efforts to disguise economic issues as moral issues. So, I respectfully decline the invitation.
Orin also asked, “isn’t property a form of government regulation, too? The government announces to market actors that it has picked one person or group that is allowed to control something, and that it will enforce efforts by that one person or group to exercise exclusive control against all other market actors.” I agree with this completely, and it is a great question how (in the sense of criteria) the government goes about picking the winners who will henceforth enjoy their new rights.
Since the Supreme Court’s 1834 opinion in Wheaton v. Peters, it has been established at the federal level that there are no common law copyright rights; all copyright is positive law. So how do you convince Congress to change the law in your favor? There are usually two elements to pulling off the trick: (1) you argue your claim is virtuous, and (2) you simultaneously argue that competing claims – those that want to keep the status quo — are not virtuous. Describing your opponent as a thief, trespasser, pirate, or a parasite evokes powerful negative reactions. But before the law says you own something, and much less as property, it cannot be said that those who act contrary to your wishes are thieves, trespassers, or scofflaws. If they were thieves or trespassers, you would sue them for thievery or trespass under existing law (I don’t think it is a crime to be a scofflaw though).
What sort of claims might be particularly virtuous? Those associated with property, given the veneration with which property is regarded, and that’s why I said use of the term property is (sometimes!) a political act. Here’s an example, again from Jack Valenti, the master of metaphors and copyright discourse. In 1982, during hearings on home taping by consumers using VCRs, Mr. Valenti testified:
“No matter the lengthy arguments made, no matter the charges and
the counter-charges, no matter the tumult and the shouting, reason–
the central theme which animates this entire debate: Creative property
owners must be accorded the same rights and protection resident in
all other property owners in the nation. That is the issue. That is the
question. And that is the rostrum on which this entire hearing and the
debates to follow must rest. “
Mr. Valenti’s purpose in seeking to equate “creative property” with “real property” was to shift the debate away from the actual legal principles governing the dispute (fair use and secondary liability) and away from the economics of the problem (did home taping harm legitimate markets that copyright owners should control) and toward a rhetorical ground from which he thought his clients could prevail. The idea that Congress could meaningfully decide whether to permit consumers to tape over-the-air broadcasts for time shifting purposes by reference to principles governing real estate was of course absurd.
Professor (later Judge) Benjamin Kaplan identified the same rhetorical fallacy in his 1967 Columbia Law School lectures, later published as “An Unhurried View of Copyright” :
“To say that copyright is ‘property,’ although a fundamentally unhistorical statement, would not be badly misdecriptive if one were prepared to acknowledge that there is property and property, with few if any legal consequences extending uniformly to all species and that in practice the lively questions ought to be whether certain consequences ought to attach to a given piece of property in given circumstances . . . but characterizations in grand terms . . . seems of little value: [W]e
may as well go directly to the policies actuating or justifying the particular determinations. “(Page 74).
In other words, skip the labels and figure out instead what conduct and
policies we seek to encourage or discourage. In the matter at hand for Mr. Valenti, it was home taping of free over-the-air broadcasts for time-shifting purposes, and Congress was greatly relieved when the Supreme Court two years later, by a 5–4 vote, decided that fair use and the staple article of commerce doctrine barred secondary liability for Sony’s manufacture and sale of the Betamax. In a blow to the “it’s our property and we can decide who can do what with it,” the Court held: “Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.” 464 U.S. 417, 448 (1984).
Reasoner says:
It seems to be rarely mentioned that authors are almost always in huge debt to those who came before them. Authors are often trained in schools at public expense. They learn styles from the example of other authors. Often their works are minor variations of previous ones. They stand on the shoulders of giants. Without those who came before, we would all be little more than cave men on our own. So it’s odd for an author to claim exclusive right to the fruits of the skills that they did not primarily create, but rather were given to them.
For the vast majority of works, the expected payoff comes in the first five years. For a few works, such as encyclopedias, a longer payoff, such as a couple decades may be needed. But after a few years, the copymonopoly impedes the cultural and technological progress of society. Impeding the progress of society kills people. People die from slowed medical progress or from reduced economic development or such. So when 95% of the income that will ever be generated from a work comes in the first five years of its release, how can it be justified to impede the progress of society by extending copymonopoly, when we know that people will die as a result, just to add a small insignificant fraction of income to the authors, who very likely have either got rich on it already, or will never make a profit on it anyway? Reasoner(Quote)
LTEC says:
I haven’t read your book, but here are some thoughts of my own on why “intellectual property” shouldn’t be thought of as property.
Shouldn’t one be able to “own” something one has created?
Certainly not in general. In fact, the most important creations cannot be copyrighted or patented or owned. Nobody owns, or can own, the fundamental discoveries in physics that lie behind the transistor. No one can possess “E=MC^2″, the discovery that suggested that nuclear power is possible. There is an awful lot of un-owned fundamental biology behind pharmaceutical discoveries. Should Turing have owned the nonexistence of an algorithm for the halting problem? In case you think nonexistence is not important, most cryptography relies on the (as yet unproven) nonexistence of certain efficient algorithms.
Of course, there are plenty of creations that are entertaining or relatively trivial that can be owned, and it probably makes good economic sense to grant some kind of temporary ownership protection. I may be breaking the law if I sell a patented transistor, but I am no more stealing than when I use the fundamental physics behind it. LTEC(Quote)
Orin Kerr says:
Thanks for the thoughtful response, Bill. Orin Kerr(Quote)
jhubme_24 says:
isn’t this precisely the kind of question which philosophy (namely moral philosophy) should answer? which conduct should we seek to encourage? it is a normative question of our values. should we seek to have the individuals who create be protected by law when distributing that which they create? or, should we seek to have those who have not created benefit from the creator’s work with neither compensation nor recognition? if, to you, it is not an “either/or”, then by what standard do you base your particular “balance”? ultimately it is a philosophical (i.e. moral)question. of course, you can choose to hand-wave away any such label; but, it would not be to your position’s credit. jhubme_24(Quote)
PersonFromPorlock says:
Reasoner:
Or possibly midgets, but piled very deep. PersonFromPorlock(Quote)
Max Hailperin says:
Since Valenti’s 1982 testimony has now come up so many times, it is worth recalling a bit more of its historical context and content. This was not only before the Supreme Court’s Sony decision, but more specifically, after the Ninth Circuit decision that the Supreme Court was eventually to reverse. That is, at the time of the testimony, Sony was liable for contributory infringement. Valenti’s goal in the testimony was not merely to get Congress to reject a bill that would have rendered consumers’ home taping non-infringing. Rather, Valenti was arguing in favor of adopting a “compromise” bill that would have established a system of statutory licensing fees, in which manufacturers of VCRs and blank tapes would contribute towards a fund that flowed to the movie studios. A close analogy could be made to the later Audio Home Recording Act.
This fits into a broader pattern that I think deviates somewhat from the notion of established businesses fighting off creative destruction by new businesses. In cases like this, or radio stations playing musical compositions, or libraries’ copying journal articles for their patrons, we see a potential new revenue stream that does not particularly directly threaten the existing revenue stream. But the “content owners” say that since that potential new revenue stream is derived from “our property,” we ought to get a cut from it. (At risk of scaring Mr. Patry off from addressing this topic, I will mention that several of the Google controversies seem to fit this mold as well.)
This context also explains just how extraordinarily delicate Valenti’s rhetorical position was. He had to be careful not to excessively demonize the home copiers, such as his own son, at the same time as he had to insist that they were primary infringers, so as to extract royalties from the secondary infringers. Max Hailperin(Quote)
PeteP says:
“make ethical or moral arguments” vs “view these issues as business issues”.
That would seem to me to be saying, effectively, ‘Let’s not worry about what’s right or wrong, let’s just worry about the law’.
My aversion to this concept got me excused from jury duty during voire dire recently, when I told the judge I could not render a verdict which went against my conscience or that I felt was immoral. This pissed him off mightily, as he repeated that ‘I was to only be guided by what he said the law was, and nothing else’.
As I’ve mentioned here before, and in email to another blogger on this thread ( the esteemed Prof Kerr ), as a layman, I find this entire concept to be diametrically opposed to JUSTICE.
DOG knows, laws are created by politicians, who are often lawyers, and they are not exactly an estimable bunch, IMO. I think everyone here would agree that there are many bad laws on the books ( we might differ in what constitutets an example of them ), and yet lawyers ( and our system of ha-ha-justice) says ‘It is the law, you must follow the law’.
What ever happened to ‘right and wrong’ ? When did they fall by the wayside ? When did saying ‘I will try very hard to do what is right, and I will be guided by my conscience in doing so’ disqualify one from the judicial process ?
The ‘law’ is a false god, an idol set up by its accolytes to be worshipped. It is created not by people concerned with ‘doing the right thing’, but by career politicians paying back favors and buying votes. Then the entire system, created by their predecessors, enforces worship at that alter.
How can it be RIGHT ( for one example ) that if some 12 year old kid downloads a few songs, his family can be threatened with complete financial ruin ? I know it’s THE LAW, but is it RIGHT ? Is it MORAL ? PeteP(Quote)
devil's advocate says:
Bill,
While Orin let you off the hook, I think you, and maybe he given his acquiescence, miss the full import of his second question. If the maintenance of property is dependent upon the positive law, it becomes a utilitarian or consequentialist chit to be done with as government wishes. And it’s very invocation with regard to real property is “always political” as well.
I can be skeptical of Valenti pushing the point without conceding the distinction you appear to draw between a normative respect for real property and the sense that copyright is simply economic regulation with the ‘he that giveth’ character.
For that matter, the invocation of “rights” is always political, and our discourse is replete with ignorance of the negative and positive aspect of such rights. And real property is regularly relegated to secondary status even as positive rights to health care or education are diligently pursued (really and necessarily in direct contravention of property rights).
And in this context, the Constitution actually makes the political decision by declaring the exclusivity of authors and inventors to be a “right”.
Exclusivity is a predominate characteristic of real property, and whether one imagines the intellectual variety to arise differently, i.e. reputedly to defy any sense of just acquisition from nature or existential character outside the positive law, the use of the language of property — including the purportedly objectionable terms with moral connotation such as thieves, pirates, etc — has always seemed appropriate to me even confronted with reasoned (if not reasonable) philosophical objections such as yours.
At root you’re saying you are not sure you believe in real property. Given the fact that government has exceedingly the same view, and I think this contrary to, constitutional guarantees, natural and positive law, the normative understanding of the founders, as well as to utilitarian or consequentialist outcome oriented philosophy, I must respectfully dissent, as I have from the works of the equally brilliant Tom Palmer on this subject.
Simply because such analogy offers cover for factions such as Valenti’s in defining derivative activities or extending the terms of copyright, shame on the level of debate. While a real right should circumscribe the invasion of others as well as government intrusion they are not absoulte propositions — see, e.g., yelling fire in the theater of campaign finance.
Many states have open property cultures in which it is expected that hunters and hikers may walk over open land, private or not. For better or worse — different discussion, probably a thread on the privitization of nature by Jon Adler somehwere — wildlife is a commons meaning the hunter could generally take a deer from private property in such circumstances — subject of course to the states sometime misguided regulations on the subject. So the property exclusivity is qualified. Yet, if the same person cut a tree it would be right to call them a thief. So the concepts aren’t absolute, they don’t fail to develop their own locally normative understanding of boundaries which are other than lines on a map. While some may bring absolutist talk to that table, its persuasiveness rests in the cradle of custom, law and practice.
Brian
Brian devil’s advocate(Quote)
sk says:
“SK very much wants me to make ethical or moral arguments in support of my views, and questions why I haven’t. I don’t see why I should make such an argument.”
Because otherwise you aren’t saying anything.
One can summarize your views: copyright exists to benefit society. One can summarize my views*: copyright exists to benefit the creator of the copyrighted work.
Without an argument for or against either view, they are simply assertions-neither is ‘stronger’ than the other, and there is no reason to believe one or the other.
Note that your preferred tactic-hermaneutic analysis of ‘copyright for creator’ proponents-does not support your own view (‘copyright for society’)-it merely points out weaknesses or flaws in the other guy’s (Valenti) rhetoric (and NOT the weaknesses or flaws in the other guy’s base beliefs).
Analogy: 1) I believe torture is always wrong. 2) You believe torture is sometimes acceptable. I am, on record, saying that ‘torture is wrong because when you do it, demons are freed from hell to haunt the unborn and old farmhouses throughout the land.’
You are free to point out the silliness of my statement. You are also free to point out the self-interest or utility of my words (‘using such language demonizes his opponents, and sets the rhetorical norm’-they same type of analysis you have been doing for three or four posts’).
But pointing out the silliness of my statement doesn’t make my view (torture is wrong) incorrect, and nor does it make your view (torture is sometimes acceptable) correct! It merely points out the silliness of my (Valenti’s) statement. Discussions about the correctness or incorrectness of either of our views would require a moral or ethical discussion (why is torture wrong or not wrong? Under what circumstances? By whom? For who’s benefit? etc etc etc-everything that goes into a value-laden discussion). Without it, we are merely talking about particular and relatively unimportant sentences (my demon statement, or Valenti’s Boston Strangler statement).
Here’s an example from this post.
“Mr. Valenti’s purpose in seeking to equate “creative property” with “real property” was to shift the debate away from the actual legal principles governing the dispute (fair use and secondary liability) and away from the economics of the problem (did home taping harm legitimate markets that copyright owners should control) and toward a rhetorical ground from which he thought his clients could prevail.”
This may very well be an accurate analysis of Valenti’s views and purpose. But that doesn’t make his guiding principle (‘Copyright is for the creator’) wrong, nor you guiding principle (‘Copyright is for economic benefit of society’) right.
I get the sense that you are under the impression that merely by pointing out the rhetorical tricks of your opponent, you have defeated their value-based argument. But you haven’t-you have merely pointed out the rhetorical tricks of your opponent. To defeat the value-based argument, you’ve got to make a value based argument of your own-which you see no reason to do.
“SK very much wants me to make ethical or moral arguments in support of my views, and questions why I haven’t. I don’t see why I should make such an argument. My approach is to view these issues as business issues, and that shouldn’t be surprising coming from someone like me who is in house at a corporation. I also think it appropriate in connection with copyright, which is an economic right.”
Here’s the point. In the above quote, your most significant statement is the bolded sentence (assuming I know how to use ‘bold’ properly). I counter “I think it is inappropriate in connection with copyright, which is not an economic, but a moral right.”
Which one of us is correct? What reason does anyone have for accepting your view over mine? None whatsoever. You have made no argument in favor of your statement, and I have made no argument in favor of mine. They are simply two mutually exclusive assertions. If I accept your assertion, I can accept everything you have written (about Valenti’s silly statement, about how to consider society’s advantage when considering appropriate copyright protections, about how it is unjust that copyright can be extended for 20 years with a $10 fee, etc etc).
If I accept my assertion, however, there is no reason to accept any of your statements, in any of your posts, as reasonable (ex: if my creative property is my own, why would I have to pay $10 to keep it for another 20 years? I don’t have to pay $10 to keep my computer after I’ve bought it-why copyright?).
There have been several ‘moral’ statements, both agreeing with you and disagreeing with you, in the comments of your posts (one guy said something to the effect that ‘don’t creators have a right to the product of their labor?’ another commentor agrees with you pretty vigorously). There are ‘moral’ arguments being made. But as long as you refuse to address or make them, your whole project is irrelevant. It may be of historical interest to analyze what Valenti said, and why he said it, and what tricks he was up to. But it has no bearing on what should** be done with regards to copyright in the future, which is the point of your whole project.
Sk
*for the sake of argument, I believe copyright exists to benefit the creator. In fact, I don’t have particularly strong views one way or the other.
**note that in discussing what ‘should’ be done with copyright, you are making value statements, by definition. When you argue that you “don’t see why you should make a value argument,” you are really stating that you see no reason to back up your ethical views. sk(Quote)
PLR says:
Around the time of Plato and Aristotle. PLR(Quote)
Fub says:
Thought experiment:
States can, and do, impose property tax on both real and personal property. The state, not the owner, gets benefit of the presumption that its appraisal of the property’s value is correct.
If a copyright is property, can a government impose a property tax on copyright holdings?
Since any property right in a copyright is a creature of federal constitutional, statutory and case law, what (besides political will) would prevent the federal government from permitting states to impose property tax upon copyright holdings of its residents?
If states did impose property tax upon copyright holdings, could the tax exceed the federal fee for copyright registration renewal? Fub(Quote)
Bruce Boyden says:
I’m not sure why it should be significant that lobbyists use colorful rhetoric. If copyright is in any way different from any other subject of legislation, what you need to show is not that a few people use colorful rhetoric occasionally, but that the entire ideology supporting the enterprise is warped somehow. A few quotes from congressional testimony won’t do that. What you need to show, I think, is that there are significant actual legal consequences from such rhetoric.
I don’t think Valenti’s 1982 testimony shows that. Congress didn’t act on any of the bills it was considering, including H.R. 5705, which Valenti supported. Indeed, the MPAA’s support of that bill is not even consistent with property absolutism, since it permitted home taping and sale of recorders in return for a levy (at a time when the 9th Circuit had held the sale of VCRs infringing). And the majority of the Supreme Court doesn’t seem to have been influenced by a property absolutist argument either in 1984. So the evidence that property absolutism explains anything significant about copyright law seems sketchy, at best. Bruce Boyden(Quote)
Ryan Waxx says:
I’m thinking that the Bill Patry’s intended audience was those people who are both intelligent and informed enough about copyright issues to recognize that moralistic arguments in the style of Valenti are standard fare among the defenders of copyright status quo, and are honest enough to admit it.
So perhaps he isn’t speaking to you. Ryan Waxx(Quote)
ChrisTS says:
sk:
note that in discussing what ’should’ be done with copyright, you are making value statements, by definition. When you argue that you “don’t see why you should make a value argument,” you are really stating that you see no reason to back up your ethical views.
I agree. The background political morality is present, whether we allow it surface or not. On such morality holds that economic efficiency is the ultimate (perhaps, sole) value that the state legitimately promotes. Other such moralities argue for other values to be promoted as well.
Either way, they are all political moralities, and they all are grounded in theories of value and legitmacy. ChrisTS(Quote)
Bruce Boyden says:
Ryan, other than being insulting, do you have some sort of response to my comment? Bruce Boyden(Quote)
MJT says:
“The government announces to market actors that it has picked one person or group that is allowed to control something, and that it will enforce efforts by that one person or group to exercise exclusive control against all other market actors”
I find this phrasing nonsensical. It suggests that there could be a set of “market actors” in the absence of, or ex ante, a property regime — that is incomprehensible and puts the cart before the horse. A market is a market in property, by defintion. Thus, a market only forms after stable property rules have formed. It also implies that there is a government in force at the same time as property rules are first “announced”, which is totally inaccurate historically. Historically, individual claims to exclude others from property arose well before anything remotely approaching a government. Rather, government in the Western tradition at least first consisted simply of the edicts promulgated by those who established their claims most successfully, often by force, and then over the last few centuries developed to manage conflicts between the most successful groups of claimants. MJT(Quote)
American Psikhushka says:
Good thing this discussion was continued, I missed commenting on the earlier thread.
SK very much wants me to make ethical or moral arguments in support of my views, and questions why I haven’t. I don’t see why I should make such an argument. My approach is to view these issues as business issues, and that shouldn’t be surprising coming from someone like me who is in house at a corporation. I also think it appropriate in connection with copyright, which is an economic right. Moreover, the book is devoted to debunking efforts to disguise economic issues as moral issues.
You’re already raising moral issues.
By opposing intellectual property you’re saying that the public should have access to other people’s creative work. This is essentially a collectivist, socialist, etc. argument. Why should the public be able to profit from someone else’s creative work? If you grow a bushel of corn on your property do they get that as well? How about the untaxed portion of your paycheck?
Also in your last paragraph you state that we should “skip the labels and figure out instead what conduct and policies we seek to encourage or discourage”. Why should this stop at creative or intellectual work? Shouldn’t we determine whether you should be growing beans on your property instead of corn? Should we encourage you to be a schoolteacher instead of an attorney? Again these are collectivist/etc. arguments, and they certainly have a moral component, grounded in the collective “we”.
Orin also asked, “isn’t property a form of government regulation, too? The government announces to market actors that it has picked one person or group that is allowed to control something, and that it will enforce efforts by that one person or group to exercise exclusive control against all other market actors.” I agree with this completely, and it is a great question how (in the sense of criteria) the government goes about picking the winners who will henceforth enjoy their new rights.
Roughly, I view intellectual property as a sort of creative or intellectual homesteading. For example once someone has created Star Trek they have tilled the earth and labored in the fields and the creators deserve to profit from it. That doesn’t prevent you from creating a Star Wars or a Battlestar Galactica. In my opinion the analysis should always begin with “why do you need to take someone else’s work?” Or more concretely “Why do you have to take someone else’s work on Star Trek, why can’t you invent your own, say Buck Rogers?” Someone should always have to explain why they should get to take someone else’s ideas and creative work without permission and profit from it. American Psikhushka(Quote)
American Psikhushka says:
I wanted to comment on some of the points raised earlier in the discussion:
A lot of emphasis was placed on intellectual property being compared to physical property, but it was always in the context of royalty, landed gentry, entrenched interests, etc. — images that suggested physical property owned without merit or labor. In this regard they were essentially Marxist arguments. Why not compare intellectual property to the physical property owned by the small farmer, who labors for his own benefit? This is more closely the case, since one doesn’t “inherit” new intellectual property, the individual creates it.
And related to this point, who do you think will “win” if copyright law were done away with? If you have the most money already, you are most likely to be the one to profit from any intellectual property. So there is little or no “creative destruction”, no American dream of someone building a better mousetrap, etc. No “four young guys from Birmingham making it big”, because a big record company is going to release the same songs the next week at a cheaper price with wider distribution, etc. No young small companies are going to replace the big old ones, because the big old ones are just going to steal their unprotected intellectual property and just get richer and more entrenched.
The logical result of the collectivist anti-copyright theories is for the economics of intellectual property creation and invention to get less equitable and egalitarian. It actually hurts the individual and small independent creators — the backyard inventor, the part time writer, the garage band, the garage tech company, etc. Right now the big record company has to make a record deal to get a band’s songs, without intellectual property law they wouldn’t even have to do that. American Psikhushka(Quote)
American Psikhushka says:
Reasoner–
So when 95% of the income that will ever be generated from a work comes in the first five years of its release, how can it be justified to impede the progress of society by extending copymonopoly, when we know that people will die as a result, just to add a small insignificant fraction of income to the authors, who very likely have either got rich on it already, or will never make a profit on it anyway?
Because there are always the outliers and special cases. For example something like “Gone With the Wind” that becomes a classic. Or something that falls into obscurity and is later revived — a creator shouldn’t be penalized because their work wasn’t recognized or fell through the cracks at first. In my opinion it comes down to value creation — those who create great value deserve to profit from it. Should a bodice-ripping pulp romance novel really get the same treatment as J. K. Rowling’s books, which are likely to be childrens’ literature classics for a long time to come? The current law may indeed grant protection for too long a period, but issues like these certainly need to be taken into account when one is proposing changes to it. American Psikhushka(Quote)
N2K says:
No. Arguing that copyright is an exclusive right created by positive law rather than a property right is not an argument that the public should have “access” to the creative work. The author can chose whether to make the creative work available to the public (e.g., publish it). Nothing forces any author to publish or otherwise publicly disclose his or her creative work.
Rather than being a collectivist or socialist argument, it is an argument that starts from the premise that any member of the public should have the liberty to do as they please (e.g., perform or copy the creative work to the extent they are exposed to it). Extending this liberty to the public in no way diminishes the author’s ability to perform or create copies of the creative work himself, though it does of course make it less likely that the author will make the creative work available in a manner that permits the public to copy it.
The contrast with the bushell of corn in your example is readily apparent. My “liberty” to bash you over the head and take your bushell of corn is restricted because that deprives you of enjoyment of the corn. Allowing me to perform the song you wrote and made public does not affect your ability to perform the song.
Of course, if Congress repealed the Copyright Act (the Constitution states that “Congress shall have the power” secure exclsuive rights to authors and inventors, it does not mandate such protection), you may very well decide not to disclose your song to me (whether by publishing it or otherwise) or to disclose it to me only if I sign a contract agreeing not to perform or copy it myself. That is of course why it is a good policy for the government to restrict my liberty by granting you a monopoly to exclude others from performing or copying the song (or exercising the other rights covered by copyright).
The whole point of the “copyright wars” is whether the government-created monopoly that is copyright strikes an appropriate balance. N2K(Quote)
devil's advocate says:
N2K
this would only be so if one accepted that copyright or the values it expresses have no legitimacy independent of positive law and policy.
I can’t think of a more normative concept independent of the positive law than that you own what you create. The notion of the marginal cost (or lack thereof) of additional consumption is more of a red herring with regard to that fundamental proposition than calling free riding musical consumers pirates at least in my book if not in Bill’s
brian devil’s advocate(Quote)
David Sanger says:
Bill :: As a working photographer, having read and reviewed your book, I have to admit your presentation on the use of the term “property” is illuminating. As a thought-exercise it is sobering to look at each of my photographs and realize that each one will be in the public domain within 130 years, if not sooner, whereas my house and land will have passed to my heirs and their heirs.
However, even if the discussion is solely on economic grounds, as I hope it can be, there is still the question of how to properly structure a system for individual authors in the internet environment when as Jane Ginsburg (pdf) says:
and again Sir Hugh Laddie:
David Sanger(Quote)
Bill Patry says:
Hi David, thanks for reading and reviewing the book. I have no doubt your photographs will have a far longer economic life than my works, but don’t you think 130 years of protection is quite enough? I am so happy you quoted my dear friend, the late and great Sir Hugh Laddie. Have you read his 2007 University College, London lecture “The Insatiable Appetite for Intellectual Property”? Sir Hugh was a magical person: fair, blunt, charming, and always curious and ready to re-examine things. I miss him very much. Bill Patry(Quote)
Reasoner says:
American Psikhushka wrote:
You seem to have missed my main point. The vast majority of the value of a work comes from those who came before the author, so the author doesn’t deserve to profit exclusively for something he didn’t primarily create. I’m not advocating the elimination of copymonopoly. I’m only advocating it be limited to something like 5, 10, or 15 years. Like congress originally established shortly after being allowed to by the constitution. If 15 years was long enough then, it’s probably too long in these faster paced modern times. Authors will get the large majority of the rewards they deserve in the first few years.
Probably the vast majority of works never make a profit at all. Of the ones that do make a profit, probably the vast majority of the profit comes in the first few years. But for that tiny tiny minority of works that only make a good profit many years later, you would support a law that significantly hinders the progress of humanity, and would therefore truly result in the deaths of people, all to reward an author who isn’t even primarily responsible for the value of his work. That’s not an ethical position, that’s an unethical position. Reasoner(Quote)
American Psikhushka says:
N2K–
No. Arguing that copyright is an exclusive right created by positive law rather than a property right is not an argument that the public should have “access” to the creative work. The author can chose whether to make the creative work available to the public (e.g., publish it). Nothing forces any author to publish or otherwise publicly disclose his or her creative work.
Let’s be clear that the only reason intellectual property is being discussed is because there is money to be made. Generally most creators don’t even bother to take any kind of action unless the ability to make money from their intellectual property is being effected. Perhaps I should have been more clear on that. Of course someone usually has to release, publish, expose, etc. a creation or invention to make a profit.
Rather than being a collectivist or socialist argument, it is an argument that starts from the premise that any member of the public should have the liberty to do as they please (e.g., perform or copy the creative work to the extent they are exposed to it). Extending this liberty to the public in no way diminishes the author’s ability to perform or create copies of the creative work himself, though it does of course make it less likely that the author will make the creative work available in a manner that permits the public to copy it.
Now we’re getting somewhere. At the point where a creator sells or publishes a creation those opposing copyright are arguing that the public should then have unfettered access to profit from someone else’s work. That’s a collectivist, etc. argument. (Again, no one usually cares about public uses that don’t have an economic impact.) American Psikhushka(Quote)
American Psikhushka says:
Reasoner–
You seem to have missed my main point. The vast majority of the value of a work comes from those who came before the author, so the author doesn’t deserve to profit exclusively for something he didn’t primarily create.
Well in this area things can quickly be reduced to absurdities. There’s the old saw that everything in art is about sex and/or death. From there you have the common plots that most modern stories share with one or more passages from the Bible, Greek drama, Shakespeare, etc. Issues like this have pretty effectively been sussed out in the current copyright law. Sure, “No Country For Old Men” shares a lot of plot points with the old westerns, but I don’t think one can credibly claim that it derives the vast majority of its value from them. There’s “nothing new under the sun”, but what came before certainly can be arranged in novel and interesting ways to create valuable new works.
But for that tiny tiny minority of works that only make a good profit many years later, you would support a law that significantly hinders the progress of humanity, and would therefore truly result in the deaths of people, all to reward an author who isn’t even primarily responsible for the value of his work. That’s not an ethical position, that’s an unethical position.
That’s hardly the case. Intellectual property is licensed all the time. The fact that someone wants to use it proves that it has value. Why should a creator provide that to someone else for free? And if a particular creation hasn’t turned a profit for some time that makes it all the more likely that the creator will be willing to license it.
I’m not advocating the elimination of copymonopoly. I’m only advocating it be limited to something like 5, 10, or 15 years. Like congress originally established shortly after being allowed to by the constitution. If 15 years was long enough then, it’s probably too long in these faster paced modern times. Authors will get the large majority of the rewards they deserve in the first few years.
That still doesn’t reward the creators that create immense amounts of value over long periods. Then there’s the cases of creators whose works languish for decades before being discovered or rediscovered. The market should decide what a creator “deserves”, not bureaucrats, politicians, etc. American Psikhushka(Quote)
devil's advocate says:
Reasoner
Do you consider real property deeds to be geomonoplys for the sake of public discourse? If the argument is about the language of property one must understand that it is a two way street?
I think your temporal targets are way off, morally, which is an aspect of the economic incentive. This sense of twiddling the knobs, a little short, a little longer to get the most economic return from original creators while allowing derivative artists to move in as quickly as economically feasible ignores a normative respect for the personalty of which creative effort is a direct extension.
But, for this same reason I think the 130 years of automatonic extension beyond the expiration of the personalty is as right out, morally speaking, as the counting to 5 with the holy hand grenade. I think our natural moral commitment to copyright arises from an instinctive understanding of the personalty extending over the creative work and not simply over the decision to make it public at which point it enters the intellectual commons. This understanding, moreso the Jack Valenti standing astride the VCR and shouting “pirates” animates a stong support for copyright, but how strong and how extensive.
Dave Sanger
For the most part, I think the creative sense of belonging and personal ownership of a work relates to the living legacy of the creator. That doesn’t mean I don’t believe the financial, and perhaps memorial legacy, ought have no hereditary quality. I’m not really concerned that the corporate ‘inheritors’ of Walt Disney like to keep exclusively selling hats with big ears and would try to supress widespread distribution of pornographic depictions of mickey and minnie. But I think that example shouldn’t drive any automatic aspects of copyright law.
But in the Dave’s example, in the vast majority of families for some time now it is not at all likely that your house will have passed to your heirs heirs. It’s probably been sold. In some circumstances families do consider the manor to be a fixture of the legacy such that the family will work not to part with it. Of course the economic legacy does pass to subsequent generations, and the end of copyright at death would somewhat frustrate that possibility.
My inclination, in service of the societal and not legal institution, is that a duty of care to effect such extensions ought to befall the heirs. I haven’t extensively considered the required showing, but I don’t think the bar need be very high. But as to absent or expired authors or artists and assumption of the work entering the commons serves the most practical argument I’ve seen for opposing strong self-executing copyright and extensions — that works orphaned in one way or another are forbade to world without a regularized way of preservation.
Perhaps an author or heir might be offered the chance to recapture a portion of the financial interest in an orphaned work based on a higher but not insurmountable bar that attends simple extension in non-orphaned fashion as I propose above.
I didn’t follow the ‘Wind done gone’ case extensively — other than to hear the author on PBS radio surprise the interviewer by saying something to the effect that her father was a racist. So I can’t say when the debate boils down not to money but control over the cultural legacy of a work precisely where I’d come down. I’m not suggesting this is fully formed, but I continue to dissent from those who see the character of copyright as one of positive law only.
It may be they can point to Montesquieu or Madison or English common law for the proposition that there was no such thing under the rule of law as intellectual property outside the monarchical fiat or the constitutional grant to Congress to weave it of whole cloth. But, as a cultural matter, whether one traces from the founding or before I believe the incidents of intellectual labor to be afforded a proprietary propriety ante-Valenti.
Brian devil’s advocate(Quote)
N2K says:
No. I’m arguing that allowing anyone to copy the work is the natural state of things (i.e., put another way, there is no basis in natural law for the copyright owner to be compensated — if he doesn’t want to accept that people can copy and profit from his work, then don’t share it) and that prohibiting anyone from using or otherwise profiting from someone else’s work is a governmental intervention.
I recognize that, subject to appropriate limitations, such intervention is a good and useful governmental policy. It promotes the arts and sciences by making it possible to widely share creative works (without relying upon a cumbersome and unscalable system of individual contracts with each recipient). However, I still believe that copyright is best expressed as a governmental intervention as opposed a property right — and thus the weighing of the appropriate amount of protection to be conferred to authors is to be evaluated with the burden on the proponents of conferring/expanding copyright to establish how the rights granted advance this policy rather than the perspective of authors starting with absolute right that are being “taken away” by the government.
Mr. Patry has probably expressed this notion of copyright as a governmental program more clearly in his most recent posting.
Perhaps your references to socialism/collectivism are intended in a manner to describe the philosphy. However, in terms of ordinarily understood political meanings, those advancing arguments for limiting the scope of copyright are in fact arguing for less governmental intervention. It’s pretty rich for the proponents of increased governmental intervention through the expansion of copyright laws to label the proponents of more limited governmental intervention as “socialist” or “collectivist.” N2K(Quote)
David Sanger says:
Actually Bill I was not suggesting that the term was not long enough. Length of copyright is not an issue for photographers, and as far as I can tell they did not actively advocate for the extensions.
From an economic perspective, though, in the online world copyright is much less effective as an incentive for individual photographers
1. There seems to be no effective way to prevent copying images online. Even though most online copying may be for personal use, there are also clearly commercial infringements and it is difficult and time-consuming to distinguish between them.
2. There is no effective way to maintain attribution. Identifying metadata is too easily removed, accidentally or on purpose. Even legitimate buyers often cannot find the copyright holder.
3. The cost of resolving small disputes in Federal Court is prohibitive.
4. International online infringements are likewise nearly impossible to pursue except in large cases.
Lastly, perhaps not related to copyright, there is an oversupply of imagery on the market now which has reduced the prospect of recovering investment in a stock photography shoot to such an extent that many photographers now cannot justify the expense.
I would be very interested to hear from you what you think might be more effective incentives for individual authors. David Sanger(Quote)
devil's advocate says:
N2K
Of course that is true for the incidents that we accord real property. The natural state of things is that you can go anywhere you want and use anything you find there. Until someone puts up castle wall and has knights patrolling it to keep you out.
But to save the inefficency of everyone’s home being a feudal keep our theoretically minarchist society has conceived of filing bits of paper down at town hall that save you all that trouble.
That’s not the natural way of things either, it is a custom that has evolved to keep us from having to wear armor all the time (except in Chicago where it is still recommended).
If you tell me you have an analogously disdainful take on real property, I would think your argument consistent.
Brian devil’s advocate(Quote)
devil's advocate says:
Dave
Dave,
No one said copyright was easy to enforce. Try getting the police to do something about the 16 year old juvenile deliquents up the street who cut through your yard. Properly, they have other priorities and it still falls to you to try various forms of behavior management. Likewise the law actually provides for Adverse Possession, that someone can have your property simply by using it openly and notoriously for time periods that vary by state. The real property regime is no more absolute or absolutely enforced.
So you have options coordinate with but not necessarily dependent on copyright. You could post low resolution versions of your photographs and then sell high quality prints that couldn’t be made from the low res versions. You could sell high res versions to magazines that you could monitor for violations of the license. They can print high quality versions and post low res and you’re in the same place.
Just because high levels of government enforcement of these guarantees against the least level of incursion is neither feasible nor desirable in the case of real or intellectual property, and because various personal strategies and technologies might allow easier vindication, is not an argument against the government recognition which in the event of violation can, according to the cost benefit calculus of the property owner, be litigated as a civil undertaking, or in particularly egregious circumstances taken up by law enforcement.
I totally deplore the idea of the United States government investing any resources in vindicating contracts that drug companies have made with countries that employ price controls. If their deal with the foreign entity is that the drugs may not be sold back into the United States, and they are, their recourse is under their contract, not to dragoon the gendarmes of these united states as pinkerton’s.
Brian devil’s advocate(Quote)
American Psikhushka says:
N2K–
No. I’m arguing that allowing anyone to copy the work is the natural state of things (i.e., put another way, there is no basis in natural law for the copyright owner to be compensated...
I think the ability to profit from one’s own work is one of the fundamentals of natural law or natural rights. Sure there is the oral tradition and group storytelling in mankind’s past, but where individual rights, trade and the laws governing it have developed customs, practices, and laws ensuring that the individual is able to profit from one’s labor have also developed.
– if he doesn’t want to accept that people can copy and profit from his work, then don’t share it)
Essentially a circular collectivist argument, since we are talking about intellectual property in a commercial context. To profit one must release it, at which point you argue that the public must be allowed to take it and then commercialize it.
However, I still believe that copyright is best expressed as a governmental intervention as opposed a property right...
Not quite. Copyright actions are brought by one private party against another under the framework of the law, more like other private party versus private party tort actions than government intervention. More like a system of solving disputes between market participants. (which could be handled by a private arbitration/etc. system if one wants to discuss libertarian doctrine)
It’s pretty rich for the proponents of increased governmental intervention through the expansion of copyright laws to label the proponents of more limited governmental intervention as “socialist” or “collectivist.”
Not at all. It’s not exactly direct government intervention when we’re talking about trade disputes where actions to enforce them are initiated solely by private parties.
And the label of “collectivist” is certainly appropriate for initiatives allowing the public to appropriate and profit from the labor and ingenuity of private actors. “Socialist” may be a little more arguable, but we are discussing the public redistribution of property and labor. American Psikhushka(Quote)
David Sanger says:
Both of these are indeed standard practices, and yes copyright enforcement is never easy, but it seems to have become significantly less cost-effective in the digital era, particularly for photographs online.
My question is what modifications to the regime might make copyright more effective in compensating individual authors for their production costs. David Sanger(Quote)