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All we need is "Love"?:
I saw the Beatles "Love" CD at Virgin Records and thought, "Just what I don't need, another Beatles anthology." Much as I loved the Beatles, thanks to my Ipod, I have grown very tired of their recordings. But when I saw this was a "remix," I decided to give it a try since I liked the Elvis remixes released a few years ago until I wore those out as well. What I did not realize is that this CD is not just remixed individual songs, but an entire 90+ minutes of remixed music. For example, one track might mix 3 drum riffs from different songs before starting a fourth song, play a portion of it before transitioning to two more excerpts. Two songs can be playing over each other simultaneously. An early acoustic version can meld into the full studio version. Reading the liner notes, I discovered that this was a sound track for a Cirque du Soleil show in Las Vegas called "Love" and was mixed by George Martin and his son Giles. As a result it all sounds fresh and new again. I recommend it. You can listen to samples of each track here (using the "listen" button at the bottom) but most of the samples are from the heart of the songs rather than the more interesting transitions and overlays so it is not indicative of why I like this CD.

But then I had a very different thought. We could be enjoying this sort of thing all the time with different artists, or multiple artists except for one thing: Intellectual (so-called) Property. How did this single CD come about? Turns out George Harrison was buddies with Guy Laliberté, one of Cirque's founders, and arranged permissions from the other principals after three years of negotiations. Otherwise we would not have this one remix. And we won't have any more unless lightning strikes.

IP is supposed to create incentives for innovation. Here, as elsewhere, it is suppressing innovation. I know the counter arguments: The Beatles songs would not exist in the first place if not for IP; nor would this mix. And they deserve recompense. And they should be able to control the quality of derivative uses lest the value of their property be diminished, etc. I know the drill.

I also know the responses. The Beatles would not have created music unless compensated untold millions? Cirque Du Soleil would not have need a sound track for their show? Unlikely. They would not have created music unless their decedents were made millionaires many times over? Hardly. They deserve to control all derivative uses? What about the writer of the poster on which "For The Benefit of Mr. Pike Kite" was based and his or her deserving descendants?

We won't settle this here. Suffice it to say that there is an enormous difference between tangible and intangible property rights. With tangible property you control your stuff. With intangible property you control other people's stuff. (For more tentative thoughts along this line see here (pdf).)

One problem with IP is the "P." Private property, of which I am a big fan, invites a right of unlimited exclusion, unlimited terms of ownership, rights to bequeath to one's heirs in perpetuity, and the dreaded accusation of THEFT. The Constitution does not use the term "property," but merely "exclusive right" for "limited times." Hardly how one would express a full-blown property right. If you really MUST have a legal subsidy for authors, composers and performers, unlike chefs and dress designers, there is no reason why copyrights, like patents, could not be for a 5 or 7 years nonrenewable term, after which a work is in the public domain. Probably 99% of all value to be gleaned by artists from all copyrights would be captured by these terms leaving the works to be exploited by others with creativity rather than by entertainment companies collecting rents. For another example of rent-seeking, see this post about the RIAA killing internet radio with royalties.

But most people reading this post already know all this and have chosen up sides on the IP debate. I cannot help that when I heard this wonderful Beatles remix my second thought was: "Love" is not all we need.

Update: I found the following video on Against Monopoly, a very interesting IP-skeptic blog that is well-worth checking out:




blackdoggerel (mail):
You're going to get inundated with comments about this, but maybe I'll be the first... it's "Being for the Benefit of Mr. Kite" -- not "Mr. Pike".
3.6.2007 5:53pm
blackdoggerel (mail):
And now for my non-snarky comment... One wonders, too, about the effects of modern IP law on blues and jazz, two genres that traditionally rely on "borrowing" from others' earlier works. How much "borrowing" can one engage in before you have to pay money for it, and does that stifle innovation in these two quintessentially "American" art forms?
3.6.2007 5:57pm
SB (www):
Some IP is harder to create than others. Should we treat copyrights on the Beatles' music the same way as copyrights on Microsoft's operating system? I think the problems with copyright term can be reconciled by considering that the system is inadequate for dealing, in blanket form, with all the works it protects.
3.6.2007 6:03pm
Hunter McDaniel (mail):
Count me on your side Randy. The whole purpose of the term Intellectual Property is to create a false metaphor.

Any government-granted monopoly - copyrights, taxi medallions, or the right to sell milk in California - has value to the the recipient, but that is not sufficient to make it a good analogue of physical property.
3.6.2007 6:06pm
Kate1999 (mail):
HMD: Isn't physical property a government-granted monopoly, too? Or are you some sort of a "natural law" theorist?

Black Doggerel: Do yo uhave any examples of IP blocking jazz musicians from copying styles and riffs from other jazz musicians?
3.6.2007 6:15pm
liberty (mail) (www):
Hunter McDaniel,

I find this a very interesting question though. I am not one of those whose mind is completely made up on this question. If I invent something - be it a flying machine or a novel or a medicine or a song - is it not my property? And if it is and I want to sell it in some form, just as if it were a job contract or a car rental, does not government have a role to enforce the sale or lease of the property given the difficulty of an outright sale? With a job or car rental, theivery would be easy without enforcement of property rights through contract law, since it isn't a one time sale. Similarly, my invention is not a one time sale. I can't simply sell my song once - unless one person buys the rights to it, and even then it must be enforced so that others don't record it and sell it on. You must sell "rights" to a song since its not a car -- that it isn't a perfect analogue of physical property is exactly why government has a role.

Its not so much a good or bad metaphor as it is a tricky question. What does it mean to have invented something? What does it mean to come up with an idea which is easy to replicate once it exists but which was difficult (and possibly very very costly) to crate for the first time? What kind of rights do we have over those kind of inventions?
3.6.2007 6:16pm
Kovarsky (mail):
Hunter,

I believe the entire idea of property as a "thing" - whether tangible or intangible - is now considered vulgar in academic circles. Property rights are really no more thand bundled use-specifications relating to every other person... etc. etc.
3.6.2007 6:17pm
Gregory Conen (mail):
But I think, SB, that even for the most difficult-to-create work, current IP law is rather restrictive. How long do things need to be protected? 20 years? Most non-artistic, non-scientific IP is nearly valueless after 20 years. The stuff that does retain its value is precisely the stuff which has considerable artistic or scientific value, ie exactly the stuff for which the argument for public access is strongest. The current more-or-less perpetual system is rather extreme.

The distinction between IP and standard property is generally that information is a non-rival good, which is to say that allowing someone else to access the good does not impair the utility I get from it at all. That's why the "theft" of IP rubs so many people the wrong way; if a rival good is stolen, the victim suffers from a loss of utility. If a non-rival good is stolen, the victim suffers no loss (except potential monopoly market power).

This is not to say that I disagree with the idea of copyrights. I'm quite familiar with the tragedy of the commons. I just feel that the current law errs way on the side of right holders.
3.6.2007 6:24pm
Bryan DB:
Randy,
Your complaint is not with the concept of IP, but with the lobbyists and congresspersons who keep jacking up the term of exclusive use for copyrights.
See also: The Mickey Mouse Act
3.6.2007 6:28pm
Just Dropping By (mail):
"Do you have any examples of IP blocking jazz musicians from copying styles and riffs from other jazz musicians?"

The Sixth Circuit has found that copying a mere three notes from an earlier musical work infringes copyright. See Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004). See also discussion here: williampatry.blogspot.com /2005/06/sixth-circuit-reaffirms-controversial .html (Take out the spaces to use the link).
3.6.2007 6:29pm
Matt DiMeo (mail):
Here's my solution to the infinite copyright problem (where the Disneys of the world continually lobby for further extensions of copyright):

Initial term of copyright to be 20 years (for non-registered copyrights, this is all you get).

Further five year extensions available for a fee that doubles for each renewal. So if it's a $100 fee for the first renewal, the second five years would cost $200 and the the third would cost $400 (...800, 1600, ....).

One year grace period on renewals, after which it goes into the public domain.

Terms to be limited to 200 years (to keep it constitutional).

This would:
* Guarantee that items of narrow interest or little commercial value would go into the public domain (I think the benefits there are obvious).

* Provide incentive to major content owners to continue to produce new IP, rather than "milking" their 50-year-old portfolios (promoting progress in the useful arts, as the paper says).

* Compensates creators fairly within their lifetimes.

All the numbers in the proposal are negotiable, as long as the fees grow exponentially.

Anyway, that's what I'd do for copyright, and probably patents as well, if I were dictator-for-life.

-m@
3.6.2007 6:30pm
Hunter McDaniel (mail):
Kate-
I'm not a theorist of any kind - but yes, I think that physical property rights strike most people as "natural", and that is why the holders of patents and copyrights want to refer to their rights as property, crowding under the umbrella of public sympathy for physical property.

liberty -
I'm not against copyrights in principle, just the notion of treating them as something more than a utilitarian bargain we make to incent creation.
3.6.2007 6:35pm
anonVCfan:
I agree with "Bryan DB." the problem isn't with copyright as such, but with the scope and duration of copyright. IP is a tradeoff between exclusivity rights and innovation. The argument here is that the innovators are being overcompensated.

Blame Congress for being bought by the MPAA
3.6.2007 6:43pm
Kate1999 (mail):
HMD,

Thanks very much for responding. At the same time, I'm not sure why it matters what most people think; I would guess that most people think patents and copyrights are pretty natural, too, as they have always known them to be around. To me, the more interesting question is whether physical property is also a government-granted monopoly. If so, then presumably we need to ask how much we really need physical property rights, too. Maybe we need strong physical property rights, but then maybe we don't.
3.6.2007 6:58pm
liberty (mail) (www):
"To me, the more interesting question is whether physical property is also a government-granted monopoly. If so, then presumably we need to ask how much we really need physical property rights, too. Maybe we need strong physical property rights, but then maybe we don't."

1. Its not a government granted monopoly any more than your right to your own life is a government granted monopoly.

2. They tried that, it was called communism, and it didn't work out too well.
3.6.2007 7:03pm
cmn (mail) (www):
I see the key question here as whether we need to give copyright owners the right to exclude as opposed to the right to share in profits from the exploitation of their works. Unlike physical property, IP is non-rivalrous; the right to exclude is not essential to its enjoyment. We could require the makers of derivative works like this remix to share the profits from their work with the owners of the original works they draw from without giving those owners the ability to squelch new expression.
3.6.2007 7:13pm
Dick King:
National Geographic used to sell boxed sets of CDs that bore the contents of all of the magazines since the Society was established. I wanted one, but they no longer sell them. I hoped they were coming out with a new one, so I waited patiently checking their site every so often, but eventually I called them. They claim that the rights situation with the various free-lance photographers was intractible, because the desire to make CDs wasn't forseen fifty years ago and tracking down these people was deemed impractical or impossible.

sobb!

-dk
3.6.2007 7:20pm
Sol (mail):
I'm with cmn, the trick is to figure out how how to properly handle derivative works so the original owner is compensated.

As for 5 or 7 years being long enough for copyright -- "Probably 99% of all value to be gleaned by artists from all copyrights would be captured by these terms" -- that's crazy talk. That might be the case for flash-in-the-pan artists, but it's not true for anyone who creates works of lasting value, whether popular or not.

Speaking as an independent software developer, a significant portion (probably somewhere between a quarter and a half) of my income is generated by software written 7 or 8 years ago. It's true there have been patches and improvements since then (and how would such a reform handle that?) but the bulk of the code is still quite old, still very useful to customers, and actually bringing in more money now than it did when originally written. And let me tell you, that was not an accident -- that continued income stream was an important part of my business plan when I started.

Oddly enough, a big inspiration for me were independent comic book creators like Dave Sim, for whom keeping his 20-year-old comics in print was an important part of his income....
3.6.2007 7:57pm
Kovarsky (mail):
cmn,

Unlike physical property, IP is non-rivalrous; the right to exclude is not essential to its enjoyment.

not to pick nits, but non-rivalrousness and non-excludability are distinct concepts. if a good is non-rivalrous then marginal consumption does not degrade the value of the asset. if a good is non-excludable then marginal exclusion is infintely costly. usually a public good is a good that exhibits both.
3.6.2007 8:00pm
vnehring (mail):
Two things:

1) If you have a surround (5.1) system, check out the DVD version of this. You'll like it even more.

2) The Beatles successfully stopped other folks from "remixing" their hits, only to -- ahem -- re-mix them themselves. Where does the line lie: The line betw re-mix and performance? The line betw re-mix and rip-off? Etc.
3.6.2007 8:03pm
David Hecht (mail):
"...are you some sort of a "natural law" theorist?"

You ask that like it's a bad thing.

Now here I am, commenting on a blog that is fairly libertarian in its bent, and so I would naively have supposed that we would all agree on the bedrock principle on which libertarianism is based: you own yourself.

If you own yourself, it follows that you own the product of your labor, both physical and intellectual. Ayn Rand herself regarded IP as the highest form of property, because it was produced by man's highest faculty, his brain.

If you own the product of your labor, it follows that you should be able to exchange it for the products of other peoples' labors. Furthermore, you shouldn't have to spend your time worrying about whether other people will steal it.

It's precisely to prevent this that governments exist (at least in most libertarian/contractarian writing that I am aware of): defend the country against aggression (protection of property on a national scale), prosecute criminals (protection of property on a group scale) and provide a just and equitable court system (protection of property on an individual scale).

Property rights are inherently monopolistic, and it's part of the government's responsibility to defend those monopolies. But there's nothing wrong with that: monopolies--especially in the IP area--have gotten a bad name largely because they have been abused, not because they are inherently wrong.
3.6.2007 8:09pm
Kate1999 (mail):
David,

So in your view, you naturally own your intellectual property rights as well as your physical property rights? Interesting.

Oh, and I have nothing against property rights; I like them because they work. But I've always found theorizing about their origins to be pretty lame: natural law is usually natural only to people who like it.
3.6.2007 8:15pm
Mike BUSL07 (mail):
Kate, are you then altogether rejecting the notion that there are natural rights?
3.6.2007 8:23pm
Steven:
Along these same lines, the Copyright Royalty Board has just issued a determination on royalties for webcast music. Suffice it to say, copyright owners won a decision that will have serious negative effects on Internet radio. A link to the decision is here. An explanation of the effect is here
3.6.2007 8:41pm
Kovarsky (mail):
which rights are "natural?"
3.6.2007 8:41pm
anonVCfan:
A reason there's an aversion to "natural rights"/"moral rights" theory in the IP field is that the constitution explicitly sets forth a utilitarian purpose for IP (copyrights and patents, anyway).

Under Article I of the Constitution, Congress has the power "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Against this backdrop, natural rights stuff is kinda lame. It's lame in its own right, but especially so in the context of a discussion of the direction federal statutory law should take.
3.6.2007 8:46pm
Hattio (mail):
I have to quibble with one thing. The notion that the Beatles songs would not exist except for IP. People have been making music for thousands of years. I would guess that IP has been around for a maximum of about 1,000 years (or less). Now, granted we probably have more and better music because of IP laws. But there are tons of great artists in all sorts of genres who don't worry much about copyright because, well, that genre isn't going to sell enough to worry about it. I think this is especially true with new fiddle tunes. They can be exceptionally popular, played by nearly every fiddler, and still not bring much of anything to the author. And all those who write fiddle tunes know that. And they still write fiddle tunes.
3.6.2007 8:53pm
Kovarsky (mail):
natural authorship is much more sweepingly embraced in european IP regimes than it is here (uh, I'm in the States, to clarify). those commenters that have noted that any intellectual property "right" embedded in the constitution is merely an instrumental right to maximise inventive/creative utility.

although it's worth pointing out that the anti-google earth/world/whatever people are coopting the natural rights rhetoric quite effectively.
3.6.2007 8:53pm
GMUSL 3L (mail):
Hattio, all you're saying is that where the market value of the work created is small (or of the overwhelming majority of works in a particular genre, such as fiddle tunes), there's much less to be gained by IP protection. That's obvious.
3.6.2007 8:58pm
Kovarsky (mail):
er, those commenters that have noted that are correct.
3.6.2007 9:03pm
Kovarsky (mail):
i think it's fair to say that humans produce expressive and inventive assets pursuant to a personal utility curve. the ability to exercise exclusive control and dominion over the use and alienation of that asset is a fairly independent variable in the production curve.

it strikes me as preposterous to say that you have a natural right to have the government enforce your exclusive control and dominion over anything, much less an intangible asset. the determination of what type of exclusivity to protect is a hopelessly circular question. does my "natural" derivative works right include "fair use" of the works for criticism? no? why not? unless you can give a philsophically satisfactory answer to a question like that, then you cannot explain a natural ownership theory of intangible assets.
3.6.2007 9:12pm
A2 Reader:
Off Topic:

Say, anyone know how to get this disc onto their iPod. My G5 doesn't even recognize the CD.

Thanks!
3.6.2007 9:35pm
Esquire:
I'm doing some research on this "IP as property" business...

The 1700s in England brought about the famous "literary property debates" during which it was hotly contested by the greatest economic, legal, and literary minds of the time whether or not man had the same divine right in the fruits of his "mental labor" as he was generally agreed to have in his physical labor. (The physicality argument was easily dispensed with, since trusts, etc., have no corporeal existence; likewise, the deprivation argument is meaningless, since no one suggests that a physical trespass becomes legal merely because the owner was not deprived of a use he would have otherwise utilized...)

In 1769, the King's Bench held in Millar v. Taylor that the Statute of Anne merely supplemented the common-law, natural-law property right to copyright. In 1774, the House of Lords overruled this in Donaldson v. Beckett (albeit only by one vote, as Lord Mansfield recused himself due to his prominent role in Millar!). There was actually a majority to affirm the natural-law status of "mental labor" rights, but also a (thin) majority to say that the their enforceability was curtailed by Parliament.

Of course, something along those lines would at least superficially appear to be what the founding fathers adopted in the US Constitution...although in a stark (and, I believe, rather persuasive) dissent to Wheaton v. Peters in 1834 (holding that all copyright protection must come from Congressional grant) Justice Thompson cited Blackstone, Justice Story, and James Madison (from Federalist 43) in arguing that the Millar rationale should still prevail in the US states (and thus, that the temporary, incentive-based federal system merely supplements a state-level *property* right; althought this was just for copyrights and not patents).

FWIW.
3.6.2007 9:55pm
Craig Oren (mail):
So, Randy, let me ask you an important question. You write that you have become tired of Beatles albums thanks to your ipod. I thought that Beatles music was unobtainable from ITunes. Do you have a different on-line source, or are you using music from your CDs?
3.6.2007 10:01pm
RandomizerStoleMyNic (mail):
For students of origins of copyright, I would point toEric Flint's editorialization of Macaulay on Copyright (since I like to refer people to the Baen Free Library when this discussion recurs.

As I wrote elsewhere:

If you want actual evidence of the impact on producers of free distribution over the web (rather than publishers "piracy" rhetoric) check out this account by Flint:


I think my hard figures demonstrate how absurd that claim ...(of lost sales)... is. It does not follow that simply because a copy is available for free that sales will therefore be hurt. In fact, they are more likely to be helped, for the simple reason that free copies-call them "samplers," if you will-are often the necessary inducement to convince people to buy something.

There's a different analogy which I think, in many ways, captures the reality even better. Anyone who has ever bought a car-new or used-knows perfectly well that one of the standard techniques used by a car salesman is to offer you the opportunity to take a "test drive." So far from being concerned that a test drive represents "lost mileage," car dealers know damn good and well that it's often the test drive which closes the sale.

Does it always? Of course not. Usually, in fact, people simply take the test drive and wind up walking away. Does the car dealer then start moaning about "lost sales," or whine about the mileage he's given up on a new car?

Hell, no. The dealer just shrugs his shoulders, writes it off to the inevitable overhead expense of his business, and offers the next customer a test drive. But if car dealers followed the moronic practices of most publishers (and, to the best of my knowledge, the entire music recording industry) they would sternly refuse to let anyone even sit in one of their cars-much less give it a test drive-unless they'd already paid for it.

3.6.2007 10:29pm
Randy Barnett (mail) (www):
Craig,

I am not sure why this is an "important question," but my Beatles music all comes from my CDs that were purchased to replace my LPs. I have never bought music from Itunes. I consider $.99 to be an outrageous price for a single song distributed electronically.
3.6.2007 10:37pm
Scott Scheule (mail):
[10:26:33 PM] Jay Goodman Tamboli says: Mr. Pike?

[10:28:08 PM] Scott says: http://volokh.com/posts/1173221206.shtml#194279

[10:31:24 PM] Jay Goodman Tamboli says: I still don't get it.

[10:32:00 PM] Scott says: The song is "For the Benefit of Mr. Kite." Calling it Mr. Pike, as Barnett did, is a major fo-pas.

[10:32:14 PM] Jay Goodman Tamboli says: Why? Just because he got it wrong?

[10:33:26 PM] Scott says: It would be like saying: "My favorite Beatles song is "I Want to Hold your Foot.""

[10:33:38 PM] Jay Goodman Tamboli says: *shrug*

[10:34:08 PM] Scott says: Blue Submarine.

[10:34:13 PM] Scott says: A Squid's Garden.

[10:34:17 PM] Scott says: A Week in the Life

[10:34:35 PM] Scott says: Sargeant Pepper's Lonely Kidneys Club Band.

[10:35:05 PM] Scott says: Hey Dude.

[10:36:14 PM] Scott says: Bluebird.

[10:36:20 PM] Scott says: Penny Avenue.

[10:36:44 PM] Scott says: While My Tubular Bells Gently Weep

[10:37:03 PM] Scott says: Happiness is a Warm Hot-Pocket

[10:37:29 PM] Scott says: The Long and Winding Long and Winding Thing

[10:37:47 PM] Scott says: Raspberry Fields

[10:38:00 PM] Scott says: Mrs. Madonna.

[10:41:04 PM] Scott says: I am the Manatee.

[10:41:34 PM] Scott says: Back in the UAE

[10:42:04 PM] Scott says: Golden Plumbers.

[10:42:31 PM] Scott says: I'm done.
3.6.2007 10:44pm
logicnazi (mail) (www):
I agree with cmn as well. I'm very disappointed with the IP debate as the notions of IP as property seem so firmly embedded in the public understanding that other schemes just aren't given a fair shot. People correctly intuit that these other schemes are somewhat arbitrary and imprecise ways to distribute money to content creators forgetting that just the same is true in the current scheme. Just because the property model gives clear cut rules on what the creator deserves doesn't mean his compensation is anywhere near the optimal level of incentive.

In particular I think we could easily come up with some system that allows derivative works to be made at whim with some process to split the process but it isn't considered because such a process would end up being wildly 'inexact.' However, this doesn't really matter. As long as it gets anywhere in the ballpark and excludes totally insignificant changes it would be fine.

Hecht,

I can't believe you invoked Ayn Rand to give an idea serious philosophical backing. Whatever you think of her general views on the proper organization of society and morality her more philosophical (as opposed to political/rhetorical) work was absolute crap. I mean she claims that her whole philosophy is true AS A MATTER OF LOGIC (derived from A=A) then goes on to make claims like the gold standard is the way money should be structured.

Frankly I think IP is inherently in tension with a Lockean type view of property rights like the one you seem to be advocating. If we start with the premise that you own your body and step from their to the conclusion that you own what you make with your hands we already see that IP is problematic.

IP is exactly the government stepping in and taking what I made with my hands because someone else made it first. Maybe if independent discovery was a valid defense even years after a patent was granted you could contort yourself enough to make IP consistent with owning the fruits of your labours. However, no principled natural rights theorist could approve of the government coming in and taking something I independently thought up and created because someone else filed a patent first. Besides most of the arguments for property in this context depend on the goods being rivalrous.

Sol, (5-7 years enough)

I think the amount of time that it takes an author to recover sufficient enumeration varies widely depending on the subject matter. This is why i strongly support different length patents/copyright for different fields. If you invent a new pharmaceutical it might take 5-7 years even to reach market while if you are patenting some improvement in the design of computer graphics cards it might be obsolete in 5-7 years.

It's totally absurd that books and computer programs get the same length of protection.

Also I would point out that the question should NOT be how long it takes the authors to get most of the money from the work but how long it takes them to get sufficentI money from the work. For instance really great music (Beatles, Elvis) makes huge amounts of money for many years but everything after the first 10 years for popular music is hardly needed to encourage musicians.
3.6.2007 10:54pm
Kovarsky (mail):
scott,

add "fo-pas."
3.6.2007 11:05pm
Redman:
How about you spot me the first 5 chapters of Gone With the Wind and let me take it from there?

Or maybe the first act of Macbeth?

I have no problem with an artist's right to prohibit sometone from taking his work and an editing machine and trying to turn it into something other than a rip off of his product.
3.6.2007 11:06pm
Kovarsky (mail):
Esquire,

The founders or an early court decision - I can't remember which right now - rejected the statute of anne natural rights gloss on intellectual property.
3.6.2007 11:07pm
Kovarsky (mail):
For beatles covers, I highly recommend the "ruby tuesday" cover on the children of men soundtrack, by franco battiato.

O, and redman - I don't know know whether you did this on purpose, with a wink, but your "first five chapters of gone with the wind" is the subject matter of the paradigmatic fair use - parody.
3.6.2007 11:10pm
David Hecht (mail):
"I can't believe you invoked Ayn Rand to give an idea serious philosophical backing."

Well, I was being part serious and part tongue-in-cheek.

Serious, in that the natural-rights view of IP (and of property rights in general) appears to be on all fours with the foundational principles of libertarianism (as previously discussed), so it seems odd to hear it dismissed in what is, after all, a libertarian-oriented forum.

Tongue-in-cheek in that, a fortiori, if one of libertarianism's most eloquent exponents explicitly says that IP is the highest form of property (you can look it up if you don't believe me), it makes it all the more difficult to dismiss as inconsistent with libertarianism.
3.6.2007 11:12pm
Earnest Iconoclast (mail) (www):
Rights to the ownership of physical property are natural (IMO) because I will physically stop you from taking them from me. People naturally keep their stuff and tend to not let others take it. Certainly a government and police and social customs make it easier to retain your stuff and help prevent thieves from stealing it, but this all supports the natural and necessary fact that stuff can only be used by one person at a time.

Intellectual "property" is naturally shared. If someone tells a story or sings a song, people will tend to remember and share it with others. Rather than suppor this natural behavior, the law and police prevent and block it.

That is a very big difference between physical property and intellectual "property".

Also, I would be more than happy to assign permanent copyright to someone who comes up with a work that is truly original and makes absolutely not reference to or takes nothing from any of the creator's experience or exposure to other works, culture, people or places around him, etc... As far as I can tell, every work out there is derivative to some extent. It may be derivative of the author's experiences in life or based on a person or place he knew or something similar. But all works are derivative to some extent.

EI
3.6.2007 11:42pm
Esquire:
Kovarsky,

Admittedly, Wheaton essentially brought the Donaldson doctrine to the US, which had held as of 1774 that the Statute of Anne effectively supplanted any kind of natural law copyright with the more incentive-driven system. (The full name for the SoA actually talked about "encouraging" learning, etc., which was hardly a concern of literary-property proponents.)

I was just pointing out, as a rather academic matter, that I find the Wheaton dissent pretty compelling in its argument that Lord Mansfield was actually *correct* in Millar (whose dissent, BTW, was later relied on in Donaldson -- and it contained significant fallacies), and also that Blackstone, Story, and Madison would have likely supported copyright as actual property. (Moreover, it has been suggested that Madison deliberately avoided the idea of "monopolies" in favor of "property" notions in Federalist 43 due to colonial distrust of state-granted and British-like practices.) But alas, it was all about two centuries ago and probably isn't going to change any time soon...
3.6.2007 11:47pm
SeaLawyer:
In regards to IP music is definitely something that people treat outside of the norm. I think this is largely do to the fact that people are used to hearing it for free on the radio and then the cost.

I consider $.99 to be an outrageous price for a single song distributed electronically.

Most don't want to spend $15 on CD for one good song. Then there is the I bought it I own it and will do with what I want with it.

Personally you will need to pay me to listen to anything from a boy band like the beatles.
3.6.2007 11:49pm
Esquire:
Earnest,

It's an interesting argument that all works are derivative to some extent. From what I've read thus far, the literary property debates explored that issue, and views ranged from one extreme (i.e., many works are created in a vacuum) to the other extreme (i.e., actual human creators are merely incidental to their own works!).

I'm not yet sufficiently versed in the philosophical fields necessary to fully analyze this, but I do find it a fascinating inquiry...
3.6.2007 11:52pm
Richard A. (mail):
As for the "Amen Break," I was in a band in New Jersey in 1965 and we got a drummer who had just moved up from Roanoke, Va., and he was already playing that beat. Who he stole it from, I have no idea. But the local drummers stole it from him.
3.7.2007 12:26am
Harvey Mosley (mail):
Several times I have had CDs stolen from my vehicles, from one or two up to about 75 at once. In the not so distant past I had to buy new CDs to replace the stolen music. Now, due to the fact that I buy the right to listen to the music, and not the music itself, and the easy availability of MP3s, I can just download the songs that were on the stolen CDs, right? If not, why not? (I mean without stealing them.)
3.7.2007 1:07am
GMUSL 3L (mail):
Randomizer/logicnazi/esquire,

See the Zoltek petition for Cert. (and the forthcoming Mossoff amicus brief, expanding on his historical research that he mentioned today on the "Are patents property?" panel) which includes a substantial number of 19th century patent cases, both in SCOTUS and lower federal courts, supporting the proposition that patents ARE property under the 5th amendment. These cases are, by the well, all still good law and have not been overturned or limited, though they have been ignored, most recently in Zoltek.
3.7.2007 1:23am
GMUSL 3L (mail):
Hey, I'm very skeptical of (c) in general, but it's incorrect to characterize IP as "monopolies". Anything and everything is a monopoly, depending on how you characterize the market. Thanks to the 13th Amendment, I have a monopoly on my own labor! I also have a monopoly on the use of my car, my computer, and the shower in my bathroom. But more seriously, the Supreme Court even recently recognized in Independent Ink that there is NO presumption of market power just from the existence of a patent, even with a tying arrangement. Moreover, referring to patents, in particular, as monopolies is fallacious -- unlike the Olde British Monopolies, a patent is not the right to DO anything -- nobody is being given the exclusive right to sell paper in Liverpool. The patent is the right to exclude (well, before eBay anyway) others, not an affirmative right to practice.

Indeed, I think it's that very same erroneous characterization, oft-repeated by the usually incorrect Stevens (and joined in patent cases by AMK and SGB) like his anti-patent wrong-on-antitrust predecessor, Justice Grand Dragon that's the root of the problem. Coupled with the movement from the per se rule (of illegality) in Antitrust cases, this characterization has allowed the contamination of the Supreme Court's patent jurisprudence, resulting in tearing down each and every bright line rule that the Federal Circuit tries to apply in favor of balancing tests and other "reasonable rules".
3.7.2007 1:32am
Kovarsky (mail):
I'm sorry GMUSL,

I completely lost your point in your torrent of ideologically loaded vitriol. I don't recall seeing justice stevens saying that on a recent patent case. Maybe he has.

As to the "brightline rules" in the Federal Circuit, I just wrote a treatise chapter on the Federal Circuit and I have no idea what you're talking about - is this a pattern with which I'm not familiar - what cases? It's impossible to glean from your remarks whether you're making an ideologically loaded remark about per se rules in antitrust, or patent misuse cases, or both.
3.7.2007 1:56am
Duffy Pratt (mail):
Kovarsky,

Ruby Tuesday was by the Stones, written by Richards and Jones.
3.7.2007 4:39am
giles martin (mail):
And there I was thinking that the CD was there to be enjoyed and not morally judged. Having spent three years in a studio working on the 'Love' album don't you think it's right to pay for it? Ok, I don't actually receive a royalty on the record, but I don't think music should be free just because it can be copied. The poster on Kite was the inspiration for the song, should the woman/man that causes heartbreak and has a song written about them claim rights over the lyrics?
3.7.2007 6:51am
giles martin (mail):
And there I was thinking that the CD was there to be enjoyed and not morally judged. Having spent three years in a studio working on the 'Love' album don't you think it's right to pay for it? Ok, I don't actually receive a royalty on the record, but I don't think music should be free just because it can be copied. The poster on Kite was the inspiration for the song, should the woman/man that causes heartbreak and has a song written about them claim rights over the lyrics?
3.7.2007 6:51am
Scott Scheule (mail):
Kovarsky,

Was that on the White Album?
3.7.2007 7:16am
American Psikhushka (mail) (www):
I find the drive to set up rights to physical property as justifiable but intellectual property as somehow objectionable ridiculous. For the most part physical goods are commodities. For those goods that contain intellectual property it is often the most valuable and indispensable input. Why would anyone think that they should have to pay the creator of physical goods, but magically not have to pay the creator of intellectual goods?
3.7.2007 8:54am
American Psikhushka (mail) (www):
Earnest-

Rights to the ownership of physical property are natural (IMO) because I will physically stop you from taking them from me.

So if I drug you and render you unconscious its OK to take your property or violate your other physical property rights?

Intellectual "property" is naturally shared. If someone tells a story or sings a song, people will tend to remember and share it with others. Rather than suppor this natural behavior, the law and police prevent and block it.

Actually they don't. They usually only stop you when you are trying to get paid for a story or song that someone else created, or are mass producing copies of stories or songs that prevent the creator from selling what they created. You could probably go down to a busy corner in any city and sing yourself hoarse singing Beatles songs with no copyright action. Or talk yourself hoarse repeating Richard Pryor stand-up routines. You aren't selling someone else's material or significantly preventing them from selling it, so no one is likely to take action against you.

Also, I would be more than happy to assign permanent copyright to someone who comes up with a work that is truly original and makes absolutely not reference to or takes nothing from any of the creator's experience or exposure to other works, culture, people or places around him, etc... As far as I can tell, every work out there is derivative to some extent. It may be derivative of the author's experiences in life or based on a person or place he knew or something similar. But all works are derivative to some extent.

This isn't a defense. The act of creation is still creation. Everyone has access to these other influences but the ones that are talented creatively are able to arrange them in manner that is subjectively valuable. If these shared influences, experiences, etc. were such a significant factor in the creation of intellectual property it wouldn't be valuable, because everyone would be able to do it and it would become commoditized.

Your argument reminds me of these bitter greedy teachers that claim they should be compensated for the earnings of their students. It's funny because they made the decision to be teachers and usually brag about how commendable they are for this and then complain about their earnings.
3.7.2007 9:17am
Just Dropping By (mail):
"Why would anyone think that they should have to pay the creator of physical goods, but magically not have to pay the creator of intellectual goods?"

Are you genuinely that thick? The distinction is that physical goods are finite whereas most IP can be perfectly replicated without harm to the original. If I make a widget and then you take it from me, I don't have a widget. If I write a song and you copy down the words so you can sing it later yourself, I still have the original lyrics/score to be able to sing it again myself. The justification for IP royalities is ultimately nothing more than a dressed up Labor Theory of Value when you look at it closely.
3.7.2007 9:20am
American Psikhushka (mail) (www):
logicnazi-

Also I would point out that the question should NOT be how long it takes the authors to get most of the money from the work but how long it takes them to get sufficentI money from the work. For instance really great music (Beatles, Elvis) makes huge amounts of money for many years but everything after the first 10 years for popular music is hardly needed to encourage musicians.

This is blatant Marxism/communism. "From each according to their ability, to each according to their needs." Who decides what is "sufficient" to reward musicians for creating value? You? The Minister of Culture? The Commisar of Thrash Metal?

The musicians create the value, therefore it is their property and they decide when, how, and for how much it is sold. Just like any other property or intellectual property.
3.7.2007 9:26am
American Psikhushka (mail) (www):
Just Dropping By-

Are you genuinely that thick?

No - you are.

The distinction is that physical goods are finite whereas most IP can be perfectly replicated without harm to the original. If I make a widget and then you take it from me, I don't have a widget. If I write a song and you copy down the words so you can sing it later yourself, I still have the original lyrics/score to be able to sing it again myself.

Nonsense. If you sell the song you can directly damage or destroy my ability to sell the song myself. You are taking money from me, just as concretely as you would when taking a widget from me.

The justification for IP royalities is ultimately nothing more than a dressed up Labor Theory of Value when you look at it closely.

Incorrect. The theory behind IP royalties is firmly rooted in the Subjective Theory of Value. If the market finds my songs subjectively valuable you have no right taking them to sell yourself - you're a simple thief. Write your own songs.
3.7.2007 9:34am
Spartacus (www):
"her more philosophical . . . work was absolute crap. I mean she claims that her whole philosophy is true AS A MATTER OF LOGIC (derived from A=A) then goes on to make claims like the gold standard is the way money should be structured"

Yet, you offer no actual rebuttal of either her logic or the gold standard. Oh, I forgot, AR's "crappiness" is just obvious, so why bring logic into it.
3.7.2007 9:43am
anonVCfan:
Lee, there's an article by John Thomas called Formalism at the Federal Circuit (or something similar--the details escape me at the moment) that makes a pretty good argument for the notion that the CAFC generally prefers rules to standards. I assume GMU3L was referring to eBay (rule that patentee is presumptively entitled to an injunction if he wins struck down in favor of a 4-factor test), Festo (rule that prosecution history estoppel forecloses resort to the doctrine of equivalents struck down in favor of a rule that phe *sometimes* forecloses resort to the doctrine of equivalents), and a few other cases.

I don't think GMUSL3L's rhetoric is a very intelligent characterization of the Supreme Court's cases w/r/t the CAFC, but there is some basis for it.
3.7.2007 10:07am
Kovarsky (mail):
re: ruby tuesday. huge brainfart. it's a couple songs away on the soundtrack from bring on the lucie, which isn't a beatles song either (lennon solo), but that's the reason...
3.7.2007 10:28am
Kovarsky (mail):
AnonVCFan-

O I think that's true (CAFC prefers rules), but I thought he was talking about the antitrust cases. Other than the per se rule on market power, I can't think of any off the top of my head.

The CAFC has a ton of cases that impose bizarre jurisdictional and substantive prophylaxes. I think the consensus has been that the Supreme Court, over the last several decades, has not taken on enough of these decisions, not that it's taken up too little. That's why the Court has taken patent cases more frequently over the last two terms or so.
3.7.2007 10:39am
pmen:
One of Lessig's more interesting points, and this connects in my mind with both the "proper duration" and the "tangible/intangible" arguments above, is that the reality is that there is an _enormous_ quantity of material out there that is still protected but about which no one cares. This is sort of illustrated by the video on the post, which is about an obscure piece of a 60's trivia b side that no one would remember but for the accident of its having a clean piece of rhythm track that the early rap DJs used (mainly, I'm guessing, from convenience) and later DJs became obsessed with, all a quarter of a century or more after the single was released.

It's as if, to apply the physical property analogy, we had entire cities full of abandoned lots, which no one dares to occupy for fear that the original owner might show up some day. This is _usable_ property (again, the video illustrates this, but see also the post about the National Geographic cd, above, and also an article recently in Atlantic about the use in a painting of an iconic image from a photograph of the Sandinista revolution) that is being left unused. Leaving aside the whole natural rights issue, which I see frankly as less of an intellectual issue than a matter of conscience, is this what we want from our property regime?

Cui bono?

Ok, really bad pun. I forget Lessig's statistics, and it may be that they should not be taken entirely at face value, because he is a partisan in this, but I can tell you, as someone who has spent an inordinate amount of my life randomly wandering around the obscure shelves in university libraries, that the vast bulk of material that is under protection in the realm of printed works is not material that anyone has made any money from in a very long time.

I personally think that the answer is a shorter period of protection than what is currently in place and be done with it. I am not quite convinced by the arguments put forth by no copyright partisans, who want us to believe that doing away with copyright entirely will lead to more great art and more opportunities for making money of off that art at the same time. But the current scheme provides for a ridiculously long period of protection.
3.7.2007 10:40am
anonVCfan:
Maybe. I read your (Kovarsky) comment more closely than I read the other one. I'm not sure what you mean by "bizarre jurisdictional and substantive prophylaxes," though.
3.7.2007 10:53am
JosephSlater (mail):
First, thanks to RB for pointing out a recording that I'm going to try to check out.

Second, this far in, and no mention of the routine use of clips of other songs in rap and hip-hop over the past twenty years? Or the popularity of "mash-ups" (mixing songs by different artists together)? The most popular of those involves the Beatles: the "Gray Album," Dangermouse's combination of Jay-Z's "the Black Album" with the Beatles' "The White Album." It's now hard to get because of copyright concerns.

And in brief response to some other posts: "While My Tubular Bells Gently Weep" is especially good for this thread (I liked "I am the Manatee" too); 99 cents doesn't strike me as outrageous, but I'm old enough to remember buying 45 RPM "singles" for a buck back in the 1970s; and Ayn Rand's idiocy is, in fact, self-evident.
3.7.2007 10:55am
Kovarsky (mail):
AnonVCfan,

I had MedImmune in mind as a most-recent example. Using article III standing to dodge a discretionary decision under the Declaratory Judgments act. Licensee estoppel isn't included in the supreme court opinion, but that's another (substantive) prophylaxis that basically imposes the same bar that the federal circuit's article III standing rule (jurisdictional) imposed.
3.7.2007 11:03am
Randy Barnett (mail) (www):
While not an "objectivist" myself, I strongly reject the term "idiocy" to describe Ayn Rand's writings. Whether she was as great a thinker as some of her admirers think is beside the point. I post this to prevent this thread from descending into a flame war over the merits of Rand, and will delete all further comments on this topic or, if that becomes too much hassle, just close comments.
3.7.2007 11:11am
Acksiom (mail) (www):
Tech-manual Writer

Mean Mister WD-40

Drive My Zone

Lucy in the Sky with Pretzels

I Saw Her Standing Around


Heh. Fun.


On to more serious things, though. First of all, to return to fundamentals, who owns my DNA information, and especially my reproductive codings? I didn't even 'create' it; my parents did.

Second of all, characterizations of 'monopolization!' puzzle me. The State isn't restricting and regulating creation of competetive IP, nor is it meaningflly preventing Citizens from placing their own (non-contracted) IP in the public trust.

Third of all, following from 2nd(B), why not simply maintain the current strict basis as the default, and allow those who so wish to publish/release/etc. by and under partial and particular restrictions, such as in and to the varying means and degrees established for the 'Creative Commons' movement?
3.7.2007 11:22am
Kovarsky (mail):
acksiom,

why the strict default? just because? it seems you're assuming the answer to the question. strict defaults don't always make sense; if your'e not a natural rights person (i'm not), it depends on utilitarian calculations about (1) the incentives the exclusionary rights provide and (2) the utility of the asset and (3) the costs relative costs of flipping out of the various defaults.

for example, if we don't think there's high utility to marginal exclusive uses - such as parody (quintessential fair use) - i don't see why the default rights in the derivative asset should vest in the creator of the original one.

you still have to define how far authorship rights go before you can, by "default," vest them.
3.7.2007 11:48am
American Psikhushka (mail) (www):
pmen-

...is that the reality is that there is an _enormous_ quantity of material out there that is still protected but about which no one cares.

But if as you say "no one cares" why should there be a drive to remove protection? The protection is in place because of the exceptions - the IP that is old but still valuable.

It's as if, to apply the physical property analogy, we had entire cities full of abandoned lots, which no one dares to occupy for fear that the original owner might show up some day. This is _usable_ property (again, the video illustrates this, but see also the post about the National Geographic cd, above, and also an article recently in Atlantic about the use in a painting of an iconic image from a photograph of the Sandinista revolution) that is being left unused.

IP isn't my field, and maybe these already exist, but perhaps there should be contingent use agreements. For example, if I use a sample from your old song and my song is successful I get a portion of the profits if it is profitable. (Of course the original right holder would have to watch the accounting in case someone is inflating expenses and claiming the venture wasn't "profitable".) That way new or unknown artists could arrange to pay for the use of material if their venture is successful.

Perhaps in situations like the National Geographic one you could come to an agreement with the majority of the photographers and set up accounts to set aside the compensation for the photographers that can't be found.

Leaving aside the whole natural rights issue, which I see frankly as less of an intellectual issue than a matter of conscience, is this what we want from our property regime?

I disagree that this is an issue of conscience rather than an intellectual one. There are major economic and policy ramifications. It is certainly a matter of property rights. And it is certainly beneficial for a society to reward the actual creators of innovation, technology, art, music, design, etc. rather than those that would like to use their property without paying for it.

...as someone who has spent an inordinate amount of my life randomly wandering around the obscure shelves in university libraries, that the vast bulk of material that is under protection in the realm of printed works is not material that anyone has made any money from in a very long time.

As I mentioned above, the protection is in place for the exceptions that are still valuable. And note that this could change - fads and tastes are cyclical, writers and musicians are "rediscovered" or have a resurgance, etc.

But the current scheme provides for a ridiculously long period of protection.

But it isn't ridiculous for the intellectual property that has created tremendous amounts of value. And its for these that the protection periods need to be the longest, because they are still relevant, entertaining, etc. long after they were created - perhaps as long as there is human society. In the case of less valuable works the rights should be fairly easily purchased at a fairly low price because as you said no one has made money off them in quite some time. So while I see some of your point, I don't see the major problem with long protection periods.
3.7.2007 12:05pm
Shannon Love (mail) (www):
I request that you stop using my name in the title of your blog postings or you will hear from my lawyers.

Shannon Love
3.7.2007 12:11pm
Kovarsky (mail):
American Psikhushka,

Strong protection is still in place because the interests that benefit from it are very concentrated, and the interests that are disadvantaged by it are very dispersed. It's a public choice theory explanation, not a utilitarian one.
3.7.2007 12:15pm
GMUSL 3L (mail):
That's what I get for late-night posting.

My argument is that using the word "monopoly" to incorrectly describe patents has given additional intellectual ammunition to the relatively anti-patent members of SCOTUS in the form of the general direction of antitrust jurisprudence.

The use of this word allows them to import a rule-of-reason-like concept into patent law, instead of keeping it in antitrust law, because if patents *are* monopolies, then why not use antitrust concepts? This, I was trying to argue, is why SCOTUS has been striking down FedCir's bright line rules, which are very close to per se rules (though not of illegality), in favor of balancing tests and standards, which are akin to the rule of reason. This mirrors the general trend in antitrust jurisprudence from wide application of per se rules towards a more economically sophisticated use of the law, which allows more use of the rule of reason.

My point about the definition of monopoly depending how broadly you want to characterize the market, as well as SCOTUS ruling that patents do not automatically confer market power (which certainly undercuts the point that they're monopolies), still stand.
3.7.2007 12:29pm
American Psikhushka (mail) (www):
Acksiom-

First of all, to return to fundamentals, who owns my DNA information, and especially my reproductive codings? I didn't even 'create' it; my parents did.

I'm not sure of the state of the law on this, but from a libertarian and most logical interpretations - you do. They are part of your body and you own your body, so you own them. Your parents didn't "create" them any more than they created their own DNA. Your parents don't own you or your property, they don't have any valid claim to your DNA codes. Although they probably do own their respective sperm, eggs, non-implanted embryos, etc. - they don't own you when you are born. (Some think they do - see the case of abusers that prostitute their children, steal from them if they have substantial assets, etc. But those people are criminals and tortfeasors.)

Third of all, following from 2nd(B), why not simply maintain the current strict basis as the default, and allow those who so wish to publish/release/etc. by and under partial and particular restrictions, such as in and to the varying means and degrees established for the 'Creative Commons' movement?

My take on this: Because people like to take other people's property, play with other people's property, and tell other people what to do. Take communists/collectivists, for example. Nothing is stopping them from getting a bunch of like-minded people, saving their own money up (not other people's), buying some land, drawing up some agreements, and forming their own commune. But the thing is that is not enough - for them taking other people's property, telling them how to live their lives, telling them what to do, etc. seem to be a major part of their attraction to the ideology, if not the main part.
3.7.2007 12:30pm
American Psikhushka (mail) (www):
Kovarsky-

Strong protection is still in place because the interests that benefit from it are very concentrated, and the interests that are disadvantaged by it are very dispersed. It's a public choice theory explanation, not a utilitarian one.

Not necessarily. Just because an interest is concentrated doesn't mean it is wrong. The slaveholders were a concentrated interest that was wrong. But if you started a punk band in your garage and suddenly became wildly successful I don't think you would be arguing about your intellectual property rights. It's possible you might, but I think a majority, probably a large majority, of successful musicians agree with the current structure.

And re: public choice theory how does the current intellectual property structure conflict with public interest? Who is disadvantaged?
3.7.2007 12:43pm
Hunter McDaniel (mail):
Psikhushka-
It's not that no one wants to use these orphan works (in which case they would have zero value), it's that the transaction costs of dealing with the IP protection these works still carry dwarfs their value. Am I going to hire a lawyer to get permission to quote five pages from an out-of-print book on my website? Probably not. Am I going to risk it anyway and rely on the fair-use defense? Not if I belong to an institution with deep pockets.

The problem with our current IP regime is that it "doesn't scale well". It worked, sort of, when technical barriers caused creation to be concentrated in a few large entities who had working relationships with all the other publishers and studios and had permanent legal staff. Now that technology has reduced or eliminated those technical barriers, thoee same entities want to use the cost of dealing with IP as a barrier to shut out competitors.

Eliminating IP altogether would be a jump into the unknown, but the way IP is being misused today makes that an option at least worth considering.
3.7.2007 12:46pm
Kovarsky (mail):
American Psikhushka,

Of course just because an interest is concentrated doesn't mean that the outcome is wrong. But it does provide an alternative explanation for why strong protection endures in the face of strong utilitarian arguments against it. It is as consistent with the statuts quo rules as is the utilitarian explanation.

Re:the punk band. I don't think whether self-interested musicians agree with the current structure is the litmus test to whether the current IP regime is "right" or "desirable." First, if you reject a natural rights theory (which leaves no real analytic room for discussion) the question is what is in society's best interest. Second, I'm not sure whether "most" musicians agree with you. Metallica does. Jay-Z doesn't. EMI does. Chuck-D doesn't. Some of the reasons are philanthropic, involving the public's right to access certain assets, but some of them are self-interested - strong copyright protection obstructs things like the grey album, i.e. follow-on creation.

Also, re: who is disadvantaged. The public is disadvanted because, while not a monopoly, exclusive rights to intangible assets often allow authors to charge supra-competitive prices for access and use thereof. Whenever a supra-competitive price is charged, the public "loses" in the form of dead-weight loss. The reason we tolerate dead weight loss at any given time is that the supra-competitive pricing ability is what we rely on to incent innovation/creation in the first place. Copyright law seeks to minimize the differnce between the content provider's expected return on the work and the fixed cost of creation, so as both to minimize the dead-weight loss and to retain suffiicent incentives to produce the expressive asset.
3.7.2007 12:56pm
Steve Rosenbach (www):
"...Here, as elsewhere, it is suppressing innovation..."

Don't you mean, "Here, There, and Everywhere, it is suppressing innovation..."?

Excellent discussion.

Here is my dream - I would like to be able to buy CD's, mp3's or whatever that contain the individual *Tracks* of Beatles songs from either the master tape or even from various recording sessions. Then I'd buy some software that would let me fade in/out any track I wanted, just like we see George Martin do again and again in "Beatles Anthology".

I'd like to study how various parts were done (say, John Lennon's vocals on a given song) or maybe even make my own mixes.

Meanwhile, don't forget The Rutles! http://www.rutles.org/
3.7.2007 12:58pm
GMUSL 3L (mail):
Hunter, trademarks and patents don't scale well?

No, I think that the problem is with copyright not scaling well because it's much more difficult to trace the chain of title, and because the various sticks in the bundle we call (c) are much more likely to be separated than those in Trademark (which is invalid if it's a "naked assignment") or Patent. Moreover, Patents and Trademarks must be examined, whereas Copyright occurs automatically, and does not even require registration to take effect (though as I noted earlier, most remedies require registration as a prerequisite to bringing suit).

You're using a very broad brush in treating all IP as one entity, when they're very, very different.
3.7.2007 1:27pm
Mark Field (mail):

While not an "objectivist" myself, I strongly reject the term "idiocy" to describe Ayn Rand's writings. Whether she was as great a thinker as some of her admirers think is beside the point. I post this to prevent this thread from descending into a flame war over the merits of Rand, and will delete all further comments on this topic or, if that becomes too much hassle, just close comments.


I can understand that you don't want to this thread to divert onto another topic. I don't understand your objection to the use of the term "idiocy" when used to describe someone who not only is not a poster here, and thus can't be personally insulted, but isn't even alive. Such terms are common on these threads. In this very one, for example, there's a post above in which one poster asks another "are you really this thick?". That's more offensive, surely, than describing Ayn Rand as "idiotic", yet nobody has suggested deleting that post or closing the thread, nor should they.

I assume that it's clear that this post says nothing substantive about Rand, but is limited to the issue of when and how posts should be censored. A generally libertarian blog certainly should encourage a robust debate.
3.7.2007 1:35pm
Toby:

It's possible you might, but I think a majority, probably a large majority, of successful musicians agree with the current structure

Many feel that the distincion is a rent-seeking one, more swamped by recording studios than by musicians. Many new groups feel that RIAA serves to prevent them from getting theiur music heard unless they go through the small channels controlled by the traditional distributions market.


Most of the music I have bought in the last 10 years has been following listeing to an internet station, or to some music downloaded by a friend by BIT Torrent and then sahrd at a party. WHen someone says "That is Great" or "Remember That!" someone is quikly on-line and ordering a CD for a friend.

With the internet radios being shut down, my music purchases will almost certainly plummet. Again. And the RIAA will, somehow, blame anything other than their old busines model - enforced by large donations to congress.

Soon, as the old movie says, mentioing many things will b illegal, including any use of the letter "Z".
3.7.2007 2:23pm
C Bowman (www):
Hi Randy,

In your article Reds in Suits, which you link to here, you write as an aside,

I believe the cumulative success of those legal challenges more than anything else is what caused the collapse of the technology sector that will not revive completely until the jackboot of IP law is off its neck.


Are you aware of any writings that discuss this point further?
3.7.2007 2:43pm
Tom Cross (mail) (www):
Does American Psikhushka oppose the fair use defense? Should it be illegal to sample a copyrighted work in the context of artistic criticism, as the attached YouTube video does? Should it be illegal to take a photograph of a building without permission from the architect? If the architectural beauty of the building contributes the beauty of the photo, has the photographer stolen from the architect? Does copyright maximalism not impede freedom of speech and thought, as the copyright holders are equiped to prevent the dissemination of ideas that derive from their own? Ultimately, if there is a conflict between freedom of thought and exclusive property rights, which interest should dominate in a free society?

Patents are, of course, different, but the same basic questions arise. Just last week a researcher was forced to pull a presentation from a computer security conference because the vendor that makes the product being analyzed claimed that the researcher must have violated their patents in making the devices used in the analysis and may be inducing others to violate those patents by presenting his results. Read here.

Freedom of thought, or intellectual property maximalism. Choose one.
3.7.2007 3:02pm
GMUSL 3L (mail):
"was forced"? Interesting choice of words, particularly without a court order, injunction, or TRO.

I think a more accurate way to describe it was that the researcher, once appraised of his conduct, CHOSE to pull his presentation based on his own B=PL calculation. While that strongly undercuts your point, the distinction between force and choice, between property rules and liability rules, should not be ignored.
3.7.2007 3:15pm
GMUSL 3L (mail):
Tom, here's some answers:
1. Probably not.
2. I doubt it is -- see Campbell v. Acuff Rose, 510 U.S. 569 (1994).
3. It's pretty clearly not -- look at the statutes. That being said, taking pictures of the architect's own renderings, plans might not be. Look at the fair use factors -- non-commercial use is much less problematic.
4. No -- the architect doesn't own the right to view the building, as is blindingly obvious from even a cursory look at the statutes.
5. No, no, no no no. This demonstrates a blinding ignorance of copyright. Copyright protects expression, NOT idea. It's one of the first things you learn in a copyright class. Moreover, copyright only protects that expression from unauthorized... COPYING. Independent creation of the same expression is fine.
6. There isn't, but property rights underlie all the others. What use is freedom of the press if government can just take all the printing presses, or can use zoning laws to bar them entirely?
3.7.2007 3:31pm
Kovarsky (mail):
GMUSL3L,

"No no no no" you. Of course the objective is to protect expression and not the idea. And yes that's the first thing you learn in copyright, but you spend the rest of the time learning about how hard it is for the doctrine to distinguish the two, and how aggressive protection of copyrightable expression functionally allows creators to lock up the ideas underneath it.

You seem to be confused about what is "independent creation" and a cognitive fact of human nature, that most or all ideas derive from a combination of others.
3.7.2007 4:18pm
Tom Cross (mail) (www):
GMUS3L: With regard to the first four questions, I know these things are legal. I'm asking American Psikhushka, and other copyright maximalists/natural rights theorists whether they think they OUGHT to be legal.

With regard to question 5, if the expression of my idea requires the incorporation of the expression of your copyright, in part or in whole, or the implementation of your patent, than you have the means to prevent me from creating and distributing my work if you object to it's message or purpose. It is obvious that this can interfere with my ability to express myself, which clearly impacts my freedom of thought. Read More.

Your assertion that my point is "strongly undercut" by the fact that the researcher "CHOSE" to pull his presentation after receiving threats from the patent holder makes absolutely no sense to me.
1. If I presented you with a contract and then put a gun to your head and informed you that you could decide whether or not to sign it, but if you chose not to you might open yourself up to being shot, would you ultimately see your decision as voluntary or would feel that you were forced?
2. If this patent case were to go to trial, who would have won?
3. When people decide not to do something that is illegal because it is illegal, is it your position that the impact of those decisions has no bearing on the reasonableness of the law, and discussion of the impact of laws must be strickly constrained to circumstances in which people did commit the crime in question and were charged?!

The fact is that Pptent laws prevent most people in most contexts from assessing scientific questions that patent holders do not want assessed. There is a common law experiemental use exemption that has been whittled down by the federal courts to the point where it is hard to imagine a real world scenario in which it would apply. It certainly does not apply to universities and commercial research institutes. Like it or not, this actually does negatively impact freedom of thought and the progress of science in a substantial way.
3.7.2007 4:19pm
cmn (mail) (www):
Psikhushka: I'm curious as to your views on the following questions:

1) Suppose you write a successful novel, and afterwards I write an unauthorized sequel to it. On the cover I make very clear that this sequel is not by you, that it represents my unauthorized ideas as to how the story you started should continue. Furthermore, I send you royalties on the profits from my sequel in an amount that corresponds exactly to the proportion of the material contained in it that constitutes the use of your ideas as opposed to the addition of my own. Do you think that I have violated your rights? If so, can you articulate the nature of the right that I have violated? And assuming my sequel has artistic merit, isn't there harm (to me, and to potential readers) in allowing you to prevent me from publishing it?

2) Unbeknownst to me, you arrived at the same idea and obtained a patent for the same machine about a week before I got mine working. I continue to use my machine without paying you anything. Do you think that I have violated your rights?
3.7.2007 4:32pm
GMUSL 3L (mail):
1. Holding a gun to somebody's head is a clear threat of force. More importantly, you don't have the right to hold a gun to somebody's head to force them to sign a contract. Your analogy would be much more apt if were discussing the issue of finding an inadvertent trespasser on your property, holding a gun to his head and telling him to get the hell off your property right now.

2. I have absolutely no idea -- and for that matter, neither do you. Neither of us has read the patent, or even seen a complaint. Any statement about this would be merely wild speculation. The only thing we CAN conclude is that the researcher thought the odds of a suit would not be in his favor.

3. I'm not really sure what you're asking here.

The fact is that Pptent [sic.] laws prevent most people in most contexts from assessing scientific questions that patent holders do not want assessed.

This couldn't be less correct. I'll grant that there are a small minority of instances in which some people use patents to prevent scientific research, but it's hardly "most people" in "most contexts" -- typically, it's been the anti-biotech crowd, who wants to win the race to invent to shut down genetic engineering and other biotech cases. One of the human cloning researchers was on record as saying that he wanted to get a patent to PREVENT human research. Most infringers are not using the patent for scientific curiousity or to answer scientific questions. Moreover, with the sovereign immunity granted through the aegis of the states, researchers at state universities and research institutions CAN use the patents to answer scientific questions. With the enormous expense of patent litigation, it is simply not worth the expense to litigate in most cases against non-commercial infringers, because the recovery will greatly exceed the costs of litigation.

There is a common law experiemental use exemption that has been whittled down by the federal courts to the point where it is hard to imagine a real world scenario in which it would apply.
Not according to the many patent law classes I've taken. Yes, there is an experimental use exception, but to quote Inigo Montoya in the Princess Bride "You keep using that word. I do not think it means what you think it means." Experimental Use is an exception related to the prior art effect of one's own activities, not to the de minimis curiousity-satisfying uses of others. I'd love to see some actual case law in support of your contention.

It certainly does not apply to universities, (wrong, for state universities) and commercial research institutes. Like it or not, this actually does negatively impact freedom of thought and the progress of science in a substantial way.

You're fundamentally confusing freedom of thought with freedom of action. Nobody's stopping anybody from THINKING anything. They're being stopped from DOING something.
3.7.2007 4:48pm
Kovarsky (mail):
cmn,

1) this is the whole problem with talking about "rights." you've identified a scenario that turns more on the remedy. the question you pose is effectively whether the original creator would be entitled to receive damages/compulsory license royalties. that's a different question from whether or not he has a "right" in the sense that he can injunct the follow-on author from writing.

2) this is also a bad example, for many of the same reasons as specified above. yes, actually, you would technically be practicing his patented machine and yes, you would be liable under the patent laws. but liabile how? you could be injuncted from using the machine, but the default damage measure is lost profits and, in some cases, a reasonable royalty. if you weren't selling your machine or an output of it, then you would have infringed his patent right in the sense that you would be liable under the statute, but not in the sense that you would pay a meaningful penalty.
3.7.2007 4:48pm
GMUSL 3L (mail):
I meant that the costs of litigation will greatly exceed the recovery (which should have been obvious).
3.7.2007 4:50pm
cmn (mail) (www):
Kovarsky:

Yes, I understand the distinction between rivalrousness and excludability. Despite the vocabulary, I wasn't really trying to do a public goods analysis. Rather, I was arguing that there is a meaningful distinction between physical property and intellectual property in that with the former, the ability to enjoy the use of it depends on the right to exclude. I can't enjoy the use of my land or my car or my body if you can also use those things at will. Because the types of goods that are the subject of patent and copyright protection are non-rivalrous, they can be enjoyed by all and sundry without the need to exclude anyone.

The public good problem, of course, is whether these goods will be produced without giving creators the right to exclude. The point of granting the right to exclude is to enable the creator to charge a price, thus incentivizing creation. This creates the possibility of inefficiencies due either to prohibitive transaction costs (e.g., trying to assemble all the rights to the Beatles' works when you're not George Harrison), or holdout (e.g., copyright holder refusing to allow creation of derivative works because she doesn't approve of them--ala Roarke). One solution is to protect the IP holder's rights by liability rather than property rules--i.e., through compulsory licensing of some sort or another. I see two main possible lines of objection to this move:

1) If you believe in a strong notion of creators' moral rights in their creations, you will object to the first hypo I posed to Psikhushka above on the ground that regardless of monetary compensation, we have somehow violated a creators' rights by using his creation in a way of which he does not approve. I think that notion needs some justification if it is to fly, thus my query to Psikhushka.

2) A more compelling objection for those of us who tend to be free marketeers is why would we want a market for IP rights in which government is setting the prices? Based on what? Is it possible to have meaningful bargaining without the ultimate right to exclude? This is tricky, but I think the answer may be yes.
3.7.2007 5:06pm
cmn (mail) (www):
I see Kovarsky and I have crossed posts, as my last one was a response to his much earlier one.
3.7.2007 5:08pm
Kovarsky (mail):
GMUSL3L,

Holding a gun to somebody's head is a clear threat of force. More importantly, you don't have the right to hold a gun to somebody's head to force them to sign a contract. Your analogy would be much more apt if were discussing the issue of finding an inadvertent trespasser on your property, holding a gun to his head and telling him to get the hell off your property right now.

Actually, the analogy is holding a gun to the head of a person using what they believe is a public access easement, and you believe is your property. You are incorrect on this point to the extent that you are seeking to demonstrate that the threat of litigation did not affect his behavior. Your point seems to be that the threat is justified, but that just begs the question, doesn't it?
3.7.2007 5:09pm
cmn (mail) (www):
In response to Kovarsky's last post (which hopefully will still be his last by the time I'm done typing):

You're a lawyer; Psikhushka's not. I used the term "rights" because he is arguing from a natural rights perspective, not a legal one. I'm trying to explore his moral intuitions about these problems to see where their edges are.
3.7.2007 5:12pm
Kovarsky (mail):
cmn,

(1) If you believe in a strong notion of creators' moral rights in their creations, you will object to the first hypo I posed to Psikhushka above on the ground that regardless of monetary compensation, we have somehow violated a creators' rights by using his creation in a way of which he does not approve. I think that notion needs some justification if it is to fly, thus my query to Psikhushka.

I don't believe in moral rights or, more precisely (1) I think it's besides the point to talk about them because our Constitution doesn't authorize Congress to intellectual property on that basis and (2) that's a good thing because natural rights theories are generally awful.

2) A more compelling objection for those of us who tend to be free marketeers is why would we want a market for IP rights in which government is setting the prices? Based on what? Is it possible to have meaningful bargaining without the ultimate right to exclude? This is tricky, but I think the answer may be yes.

To the extent that free marketeers' objections to government are rooted in the principle that governments muck-up socially efficient allocations of resources (utilitarian) in the name of fairness (distribution), that objection doesn't work with IP, because there's a market failure in "ideas" if the government doesn't offer a quid pro quo for placing them in the public domain. It's not clear to me how the free marketeer objection (no or paper-thin rights) works in anything but a temporally static model. But that time-static assumption does not reflect what most of us consider to be the economic reality of producing and consuming ideas.
3.7.2007 5:17pm
GMUSL 3L (mail):
Lee, my point wasn't that the threat of litigation didn't change his behavior (which, btw, I never said). My point was that it wasn't FORCED.
3.7.2007 5:31pm
GMUSL 3L (mail):
Actually, an even more appropriate analogy would be a variable toll for the potential-trespasser's use, to be determined ex post in court if it turns out that there was not in fact a public access easement and that the toll-charger did own the property in question. This works much better than the loss of life implied by a gun to the head.
3.7.2007 5:36pm
Kovarsky (mail):
But but the threat of lawsuit correlates positively with the strenght of patent law. If patent infringement created infinite liability, the mere threat of infringement would be enough to deter use of the contested asset. Relaxing the obviously-impossible infinite penalty assumption, at unreasonably high levels of enforcement the mere threat of an infringement suit would be pretty coercive.
3.7.2007 5:37pm
GMUSL 3L (mail):
But you and I both know that patent law does not create infinite liability. There's no "infinite liability" measure of damages. One person's "reasonable royalty" or the "lost profits" of that use will be minimal, and almost certainly not worth litigating but for personal animus, which would only cost the patentee gobs of money and risk opening the patent to invalidity and/or unenforceability challenges.

If we had patent damages jurisprudence that allowed insanely high liability (like, say, the copyright statutory damages in the FBI warnings on videos) then I think it would be more of a problem. But there aren't statutory damages for patent infringement -- they're always tailored to the market realities of the infringing use, and I find it hard to believe that we'd ever get the hypothetical you're proposing.
3.7.2007 5:52pm
Tom Cross (mail) (www):
GMUSL3L, in your version of my analogy would you conclude that your trespasser left the property entirely by choice?

The fundamental point I'm raising is that overzealous intellectual property rights can interfere with people's ability to think and express themselves.
This couldn't be less correct.
I provided you with a real world example that occured a week ago. If you are looking for case law, here it is. I do not know if State Universities can claim immunity, but even if true that would be an exception that proves the rule. Entities that are not the government cannot use such an immunity in order to pursue a question that involves a patented device. Ergo their freedom of inquiry is constrained.

You're fundamentally confusing freedom of thought with freedom of action. Nobody's stopping anybody from THINKING anything. They're being stopped from DOING something.

You are oversimplifying things. If I want to assess a question, such as "how difficult is it to clone HID RFID access cards" I'm going to need to make a HID access card reader in order to assess that question. The action of making that access card reader might be prohibited by HID through the exercise of their patent. Therefore, it is impossible for me to answer the question. The area of inquiry is closed to me. My freedom of thought is constrained.

Focusing on the particular fact that what I am prohibited from doing is making a device rather than the overall impact of that fact, which is that I cannot determine the answer to a question, is like saying "I didn't kill him, I just pushed him off a cliff, its the ground that killed him." I know, another analogy, but I don't seem to be getting this across.

You can't buy that Negativland song referenced from the previous post. You can't download it for free from their website. Its simply not available through any legitimate means. Its an act of expression that has been denied to them and to everyone by these rules. However you want to color it, the simple fact remains that this is a contribution to culture that has been effectively removed from play.
3.7.2007 6:06pm
Tom Cross (mail) (www):
Actually, an even more appropriate analogy would be a variable toll for the potential-trespasser's use.

It must be observed that the "variable toll" also includes the possibility that the toll collector may totally deny users the ability to use the easement based on personal whim.
One person's "reasonable royalty" or the "lost profits" of that use will be minimal, and almost certainly not worth litigating but for personal animus, which would only cost the patentee gobs of money and risk opening the patent to invalidity and/or unenforceability challenges.

What often happens is that there is little risk and relatively little cost for the patent enforcer because the enforcee doesn't have the money to spend years in court making invalidity or unenforceability challenges. The real results often boil down to who has the deeper pockets.
3.7.2007 6:14pm
American Psikhushka (mail) (www):
FYI - I'm not dodging the discussion, I will reply later on tonight.
3.7.2007 7:30pm
GMUSL 3L (mail):
Tom, the Madey case preserved the common law experimental use defense, but restricted to it to areas where the "experimental use" was actually experimental -- i.e., limited "strictly to work with no significant commercial component or effect", or where the use is " solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry"

In Madey, that was NOT the case. Instead, the court found that the University was not practicing the patent just to figure out what Madey was doing, but was instead practicing the patent "business objectives, including educating and enlightening students and faculty participating in these projects. These projects also serve, for example, to increase the status of the institution and lure lucrative research grants, students and faculty."

The common law experimental use exception, is alive and well. It's just limited to ACTUAL scientific or philosophical curiosity, not, as in the Madey case, allowing other researchers to use it for their own papers or grant applications.

You're also misconstruing my real property analogy. If it's an easement, there is no toll (analogously, it's in the public domain). If there is NO easement, then the owner can charge an ex ante toll of a contractually-agreed price, or can get an ex post determination of "lost profits" or "reasonable royalties", both of which are likely to be small under the situation you posit. Moreover, the patent owner's ability to actually exclude has been sharply curtailed. Have you even read the eBay decision? z4 v. Microsoft? Injunctions are now the relatively rare exception, not the rule.

While there may be little risk for the patentee, given the amount that patent lawyers charge, really anything more than a cease-and-desist letter is going to exceed the potential profits from litigation in your example. There may not be a cost to the patentee in terms of a realistic invalidity or unenforceability challenge from a single individual, but there will certainly be a massive cost in attorney's fees, which even if they're court-awarded, will probably greatly exceed the individual's ability to pay. Patent litigation is really, really expensive.

Regarding the songs, the fact of life is that even for unpatented things, the market doesn't always supply what each and every individual wants. You can't always get a car with the exact options package you want. Hell, even for cable, with minimal transaction costs, we're still stuck in channel packages, so I can't save money by getting rid of the women's channels. Sellers have a nearly unequivocal right to sell what they want, but they're typically responsive if there's enough demand.
3.7.2007 8:12pm
Tom Cross (mail) (www):
The common law experimental use exception, is alive and well.

Don't be silly. It is alive and well only if you are independently wealthy and you can fund your own projects and you don't tell anyone that you did what you did and you have absolutely no use for the results whatsoever.

In order for the results of your research to actually benefit society you have to publish those results somehow. Clearly, unless you publish the result anonymously, your work could improve your reputation. So in our legal fantasy we have some sort of academic journal that accepts totally anonymous submissions... Perhaps even a conference where all the participants wear ski masks. And even that might not be sufficient, as this Judge included educating and enlightening students and faculty as a benefit which precludes the use of the exemption. Clearly speaking at the ski mask conference would educate and enlighten people. Perhaps that is crossing the line!

I did not say that there was no more common law experimental use exemption. I said that it is hard to imagine a real world scenario in which it would apply. And it is. The reality is that the people in our society who engage in science attend conferences, publish results, and often they also educate students. The reality is that answering big questions is usually very expensive and time consuming and it requires funding and resources. That is the real world. Patent holders have the ability to prevent those people from asking questions that they do not want answered. Our societies ability to assess those question is, in reality, constrained. This exemption is only alive and well on paper.

Do intellectual property maximalist/natural rights theorists agree with the fact that injuctions are rare? It seems the philosophy is based on the idea that the creator of the work ought to have a permanent injuction right.

With regard to your comment about the market not always providing the products that I want, you sound like Marie Antoinette. And, of course, you conceed my point. Ideas and Art are removed from play by these rules. Are the things we loose unimportant to the progress of science and the useful arts? Are you under the impression that the products favored by the market, such as, say, Britney Spears, are more important to the long term progress of art than oddities like Negativland that few people pay attention to? If that is your perspective, I assure you that it is deeply wrong.
3.7.2007 9:55pm
American Psikhushka (mail) (www):
Hunter-

Am I going to hire a lawyer to get permission to quote five pages from an out-of-print book on my website? Probably not. Am I going to risk it anyway and rely on the fair-use defense? Not if I belong to an institution with deep pockets.

Not to nitpick, but if your organization has deep pockets won't you have in-house counsel or a firm on retainer?

And one would think that an enterprising writer could get around using five straight pages of text from a single source. Can't one mix in analysis and one's own thoughts and cite the source, making it much more likely to be considered "fair use"?

The problem with our current IP regime is that it "doesn't scale well". It worked, sort of, when technical barriers caused creation to be concentrated in a few large entities who had working relationships with all the other publishers and studios and had permanent legal staff. Now that technology has reduced or eliminated those technical barriers, thoee same entities want to use the cost of dealing with IP as a barrier to shut out competitors.

I just don't see much evidence of this kind of hampering. What are the big studios and publishers keeping from the public? And if it is that bad, perhaps the smaller independent studios and publishers could form an association to even the playing field.
3.8.2007 12:17am
American Psikhushka (mail) (www):
Kovarsky-

But it does provide an alternative explanation for why strong protection endures in the face of strong utilitarian arguments against it. It is as consistent with the statuts quo rules as is the utilitarian explanation.

I don't see that many strong arguments against strong protection. Are you saying that because a non-Beatle can't re-mix Beatles music and get paid for it without permission that this is some kind of jackbooted corporate opression?

Re:the punk band. I don't think whether self-interested musicians agree with the current structure is the litmus test to whether the current IP regime is "right" or "desirable."

Well seeing as how we are talking about their property and whether their property rights should be weakened or limited I disagree. They are one of the main stakeholders. Its like talking about taking the driveway away from all blue-colored houses and claiming that the self-interested blue house owners shouldn't be listened to.

First, if you reject a natural rights theory (which leaves no real analytic room for discussion) the question is what is in society's best interest.

Eh, you're approaching collectivism here. People will always have less of a problem taking other people's property and redistributing it rather than their own. I mean think of other competitive areas in commerce. What do you think pizza shops would say if you told them they had to give their competitors their recipes? Or some of their customers?

Second, I'm not sure whether "most" musicians agree with you. Metallica does. Jay-Z doesn't. EMI does. Chuck-D doesn't. Some of the reasons are philanthropic, involving the public's right to access certain assets, but some of them are self-interested - strong copyright protection obstructs things like the grey album, i.e. follow-on creation.

Those aren't great examples because the focus is on sampling and mash-ups. I think the tune might change if Cristal started using Jay-Z's material in one of their ads without paying. Or if a subsidiary of Halliburton was using Public Enemy material. And as another poster mentioned, if certain artists don't believe in strong protection, they can simply grant the rights to their material to anyone who asks.

Also, re: who is disadvantaged. The public is disadvanted because, while not a monopoly, exclusive rights to intangible assets often allow authors to charge supra-competitive prices for access and use thereof. Whenever a supra-competitive price is charged, the public "loses" in the form of dead-weight loss. The reason we tolerate dead weight loss at any given time is that the supra-competitive pricing ability is what we rely on to incent innovation/creation in the first place. Copyright law seeks to minimize the differnce between the content provider's expected return on the work and the fixed cost of creation, so as both to minimize the dead-weight loss and to retain suffiicent incentives to produce the expressive asset.

Let me preface this by stating that I haven't done any coursework in intellectual property law. (I have a law degree but I'm not a practicing attorney.)

Now that aside, the relationship you seem to be describing above seems to be approaching the issue from a socialist or collectivist standpoint. "Supra-competitive"? The market decides prices. Sellers can set prices at which no one will buy the product, but that is still market action at work. And with the term "dead weight loss", how is the public losing if a creator sets prices "too high"? Either people buy it or they don't. If they don't buy it the public spends the money elsewhere, possibly on material that was more reasonably priced. You may say "but no one got to enjoy the material", but that is neither here nor there. The public subjectively valued the material and decided it wasn't worth the price being charged. The only party taking any loss is the creator setting prices too high. It's like saying that the public takes a loss anytime any product piles up unsold.

So libertarians will have a number of problems with that model. First, the model seems to assume that planners should set prices in this market, otherwise sellers may charge "supra-competitive" prices. Then the model claims that the public is at a loss if property is unsold, when this is actually market action at work. And finally the model seeks to force sales by setting prices, which violates the creator's property and contract rights. Not very free market at all, if you're in to that kind of thing.
3.8.2007 1:23am
American Psikhushka (mail) (www):
Toby-

Many feel that the distincion is a rent-seeking one, more swamped by recording studios than by musicians. Many new groups feel that RIAA serves to prevent them from getting theiur music heard unless they go through the small channels controlled by the traditional distributions market.

I see what you mean, but I don't think going after the rights on the creator's end is the solution. Granted what you describe might amount to controlling distribution by getting control of the creator's rights, but I think no matter what solutions are proposed the creator's rights should be ironclad. You create the value, it is your property.
3.8.2007 1:38am
American Psikhushka (mail) (www):
Tom Cross-

(Let me preface again: Don't have any coursework in IP.)

Fair use: No, I don't oppose the "fair use" defense. Of course that involves an analysis of the economic impact of the use, as I argued earlier in the thread.

Artistic criticism: If its actual artistic criticism, meets fair use tests, not otherwise illegal, etc. I don't have a problem with it.

Building Photo: No, I don't think the photographer needs permission. I don't know what the actual law on this is, though.

Beauty of the Building...: No, you can take bad or ugly pictures of beautiful things, so there is still some art, creation, etc. involved. Again, I don't know what the law on this is either.

Impede Freedom of Thought?: No, I don't think it does. Because fair use doctrine protects discussion, criticism, analysis, etc.

IP vs Freedom of Thought: I don't think its either/or here. Fair use doctrine provides for a lot of freedom of thought, criticism, etc.

As far as your example goes, the people doing the presentation seemed to be going into detail about how to violate the vendor's security. Not only could this put their product at risk, it could also put their customer's security at risk and expose them to tremendous liability. So I don't think their request was that outlandish.
3.8.2007 2:05am
American Psikhushka (mail) (www):
cmn-

1) Novel Sequel: Yes, I think this does violate the original writer's rights. The sequel could be exceedingly bad and alienate the audience or hurt the author's reputation, regardless of how clear the sequel author makes it that he is the author. It could also prevent or impede the original author from selling his own sequel. So the sequel could have a significant economic impact on the original author. And no, I don't think it harms the new sequel writer's rights. He doesn't have the right to use another's work for the basis or origin of his own without permission.

2) It depends on the kind of machine. If its something that provides a service that is directly sold to the public, like a different kind of roller coaster, there may be a significant economic impact and therefore could be a violation. If it is a more efficient widget-maker this is more of an indirect competitive advantage and likely results in less economic impact, therefore it is less likely to be a violation. This is a difficult example, because it is highly dependant on the facts.
3.8.2007 2:31am
cmn (mail) (www):
Thanks for responding, AP. Let's delve into the first hypo a bit more:

I assume you don't think that authors have a freestanding right not to have their audiences alienated, reputations hurt, or incomes impacted. If instead of writing a sequel, one were to write a critical essay arguing that the author's work was crap, and this directly caused all the negative effects you fear an unauthorized sequel might cause, you wouldn't think the author's rights were violated, would you?

Or perhaps you would. After all, the author of the critical essay would certainly "use another's work for the basis or origin of his own." Wouldn't it?
3.8.2007 2:40am
American Psikhushka (mail) (www):
cmn-

You're a lawyer; Psikhushka's not. I used the term "rights" because he is arguing from a natural rights perspective, not a legal one. I'm trying to explore his moral intuitions about these problems to see where their edges are.

I have a law degree, I just have no coursework in intellectual property. I do not practice.
3.8.2007 2:45am
cmn (mail) (www):
Here's a question for hardcore copyright mavens out there.

Why exactly would anyone need permission to do remixes of Beatles tracks in the U.S., given that federal copyright law doesn't protect sound recordings published before February 15, 1972?

Anyone have any experience with the state law regimes that still protect sound recordings made before that date?
3.8.2007 2:45am
American Psikhushka (mail) (www):
cmn-

I assume you don't think that authors have a freestanding right not to have their audiences alienated, reputations hurt, or incomes impacted.

Well they do to an extent. There are causes of action for defamation, libel, slander, tortious interference, etc. This could involve the work if it was involved in one of those.

If instead of writing a sequel, one were to write a critical essay arguing that the author's work was crap, and this directly caused all the negative effects you fear an unauthorized sequel might cause, you wouldn't think the author's rights were violated, would you?

No, this would likely be protected under fair use and possibly free speech doctrines. If it met those tests and wasn't tortious in any other way the author's rights wouldn't be violated.

Or perhaps you would. After all, the author of the critical essay would certainly "use another's work for the basis or origin of his own." Wouldn't it?

No, the critical essay would be a criticism protected under fair use doctrine. It wouldn't be the basis of another creative work as in your original hypothetical.

And as I mentioned the sequel even if clearly marked could prevent or impede the original author's ability to sell his own sequel.
3.8.2007 3:09am
Tom Cross (mail) (www):
AP:
The people doing the presentation seemed to be going into detail about how to violate the vendor's security. Not only could this put their product at risk, it could also put their customer's security at risk and expose them to tremendous liability. So I don't think their request was that outlandish.

1. If the vendor liked the research there obviously wouldn't be a problem. You don't fire off threats of lawsuits at people you support. Interesting edge cases don't usually arise in the mainstream. (Ask the ACLU why they "defend Neo-Nazis").

2. The question of responsible disclosure of security information is an interesting discussion but its tangent to the matter at hand, and deep one at that. The short story is that people demonstrating this security flaw did not create it, they discovered it and reproduced it. They are not putting the product or the customers at risk. The product and the customers are already at risk. By demonstrating the issue they inform the customers about the risk, which enables them to mitigate it.

2. Regardless of where you fall on point one... Even if they don't like the research or YOU don't like the research, and you think its reasonable that they "request" (I beleive the word they used was "demand") that the research not be presented, the question is whether they have an *intellectual property right* to prevent the research from occuring. I think that if patent holders can leverage their intellectual property to prevent the exploration of factual questions that they don't wish to see explored, then clearly you have IP rights being used to constrain scientific inquiry. Freedom of thought must nessecarily extend to thought that you don't like. Otherwise it doesn't exist at all.
Fair use doctrine provides for a lot of freedom of thought, criticism, etc.

That is does. The question is how do you square fair use doctrine with the notion that ideas are the absolute property of their creator? It seems clear that there are other interests being served here in addition to property rights. Once you allow that, you must ask where the lines ought to be drawn.
3.8.2007 3:23am
cmn (mail) (www):
AP:

We're going a bit in circles here. Are we discussing what the state of present copyright doctrine is, or what it should be? I thought the latter. Assuming that the critical essay does not cross the line into defamation, the question is why should it be fair use, or protected free speech, while the sequel is not?
3.8.2007 3:25am
Tom Cross (mail) (www):
Sorry, I added an additional point to that and didn't renumber the rest of the post correctly.
3.8.2007 3:27am
Kovarsky (mail):
cmn,

Why exactly would anyone need permission to do remixes of Beatles tracks in the U.S., given that federal copyright law doesn't protect sound recordings published before February 15, 1972?

the reason is that copyright covers 2 elements of a song - the physical recording (the ability to put a sound on a record) and the composition (or "publishing" rights). the post-1972 right involves the former, but not the latter. copyright ownership still attaches to all the compositions created pre-1972.
3.8.2007 11:54am
American Psikhushka (mail) (www):
cmn-

We're going a bit in circles here. Are we discussing what the state of present copyright doctrine is, or what it should be? I thought the latter. Assuming that the critical essay does not cross the line into defamation, the question is why should it be fair use, or protected free speech, while the sequel is not?

We are discussing opinions of how it should be. But I can see why criticism is protected but sequels or other works containing the same characters might now be. Protecting criticism protects the freedom of speech and freedom of thought mentioned elsewhere in the thread. Other works could damage the author economically and don't have as much merit as freedom of thought because you are taking someone else's creative work and using it to create their own creative work. The division between the two is how a creator's work is protected while still allowing the public to dicuss, debate, and criticize those thoughts.
3.8.2007 1:20pm
cmn (mail) (www):
I was assuming the compulsory license would apply for the publishing rights, but I see now from the statute that it doesn't apply when you're copying a preexisting sound recording.
3.8.2007 3:47pm
American Psikhushka (mail) (www):
Tom Cross-

1. If the vendor liked the research there obviously wouldn't be a problem. You don't fire off threats of lawsuits at people you support. Interesting edge cases don't usually arise in the mainstream.

Well whether or not they like the research it does effect the viability of their product, the security of their customers, and their liability.

2. The question of responsible disclosure of security information is an interesting discussion but its tangent to the matter at hand, and deep one at that. The short story is that people demonstrating this security flaw did not create it, they discovered it and reproduced it. They are not putting the product or the customers at risk. The product and the customers are already at risk. By demonstrating the issue they inform the customers about the risk, which enables them to mitigate it.

The researchers didn't create it, but they are publishing it and describing how to do it, which greatly increases the chances that potential security violators know about the flaw and are equiped to exploit it. This does increase the risks.

3. Regardless of where you fall on point one... Even if they don't like the research or YOU don't like the research, and you think its reasonable that they "request" (I beleive the word they used was "demand") that the research not be presented, the question is whether they have an *intellectual property right* to prevent the research from occuring. I think that if patent holders can leverage their intellectual property to prevent the exploration of factual questions that they don't wish to see explored, then clearly you have IP rights being used to constrain scientific inquiry. Freedom of thought must nessecarily extend to thought that you don't like. Otherwise it doesn't exist at all.

It depends on the vendor's motivation and goals in this case. If it's just to delay the presentation until they can fix the flaw and make sure their customers are protected, that's justifiable. If it is to try to perpetually prevent any discourse on their product, that is much more objectionable from a "freedom of thought" perspective.
3.8.2007 6:12pm