How Copyright Can Be Viewed As Anti-Property
from the removing-rights dept
One of the regular discussions we get into around here is over the question of whether or not things like copyright and patents are really property. The IP lawyers who insist that it's just like property focus on a rather simplistic (and wholly inaccurate) explanation of why it is property: which is that if it's a bundle of rights that can be transferred, then it is property. But that's misleading. Because it mixes up a couple of key elements that make this definition quite inconvenient. The key among them is that those who hold IP rights rarely sell them (yes, it does happen, but it's a rare transaction when it does). Instead, they mostly license the rights. And that's rare with real property. Again, it does happen sometimes, but not very frequently -- and, when it does, it's always represented quite clearly as a rental or a lease rather than a purchase. It's not even thought of in the same framework. So, you have a major difference right there.And, in fact, there's a reasonable argument that when most of the transactions are licenses but are represented as purchases, it's actually very much against the basic principles of property, rather than for them. Martin points us to a fascinating and thoughtful writeup, by Nicklas Lundblad, originally written in Swedish, but the Google translation is quite readable, that discusses how the recent actions by Amazon to delete purchased George Orwell ebooks on the Kindle demonstrates just how anti-property "licensing" is (my own edit of part of the translation):
What is interesting with the time, however, is that it illustrates an example of a conflict that has not been seen very often - between the copyright and ownership of individual copies of a work which we have purchased legally. As noted in the article above, we would probably flinch [if someone] knocked on the door, courteously explained that the publisher who sold us the last part of Harry Potter no longer wants to provide a paper edition, and that therefore they had brought with him a little gasoline to burn up our copy . Most of us would probably shut the door again, put on a little coffee and [laugh]... [if anyone] would try their hand at this. But in the transition to the digital economy it will make it harder for us to protect our own space and our property, as more and more terminals are now sold [with what is] charmingly called a "kill switch". The iPhone will have, like the Kindle and other terminals: an opportunity to, at a distance, without our consent in the case (but we have certainly agreed to it in any agreement anywhere) change the content of the technologies we use.And that very fact is incredibly anti-property. The idea that something we believe we have legitimately purchased can suddenly be snatched away from us, at a distance, with no recourse is not property. It's the opposite of property. In the comments to our original post, someone pointed out that for all the copyright maximalists who like to refer to infringement as "theft," Amazon's deletion of 1984 was a lot closer to "theft" in that people who had purchased something suddenly found that it was gone. Poof. That is extremely anti-property, and anti-free market -- and that's a problem:
The original article goes on to note that while a contractual agreement is the cornerstone of the free market, a license agreement built on copyright is quite different. It's built with a very strong imbalance, backed up by government protectionism, that changes the free market structure. Lundblad notes:
The license is like a parody of a contract because the contract coordinating effect been eliminated from the outset by a law which gives one party all the bargaining power.While I have no doubt that this will upset and anger the folks who believe that copyright is absolutely 100% property, it's a rather compelling explanation of how copyright isn't just not like property, but in many ways is anti-property in that it violates some of the basic tenets of true property and true property rights.
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Filed Under: copyright, free market, licensing, property
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Group ownership rights
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Re: Group ownership rights
At least in Sweden there are laws that says that this is to lie to the customers (or at least distort information) in a way that is harmful to them.
So in theory I could sue any given record store here and say that they are fooling their customers to think that they own what they have payed for when they don't.
Oh, wait - I don't have to sue since it's against "criminal law" rather then "civil law", so I just have to report it!
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Define "property"
I think Amazon's recent actions are quite troubling, but I am not sure that it calls into question the concept of intellectual property, per se. Instead, it raises red flags about the way in which people enter IP transactions. To that end, I think the Federal Trade Commission should investigate the terms of sales and devise an appropriate means of regulating them. I think Jonathan Zittrain's piece in the NY Times today does a great job laying out the problems with cloud computing and the sort of regulations that can help consumers.
However, I am failing to see how any of this makes intellectual property decidedly "anti property."
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Re: Define "property"
Just what we need, more regulation.
(GOVERNMENT
If you think the problems we create are bad, just wait until you see our solutions.)
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Re: Re: Define "property"
(GOVERNMENT
If you think the problems we create are bad, just wait until you see our solutions.)"
Youngling, what we're dealing with ARE "the solutions."
You want to get the government out of the equation? Abolish copyright.
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Re: Re: Re: Define "property"
It goes in there right after "more regulation."
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Re: Re: Re: Re: Define "property"
No, I got that. But I was... against... something...
Oh, frak it. I'm lost myself here.
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Re: Define "property"
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Re: Define "property"
2. Old and gnarly oak root for a club
3. Everything that falls out of the unsuspecting subjects pockets, after, hmm, one of them freak accidents of getting thumped in the head occurs when passing a dark alley (this is of course property by right of finders keepers).
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Re: Define "property"
The problems with Amazon's actions cannot in any case be addressed via regulation. The law is biased toward copyright holders and law enforcement (as are most judges) and no discussions of policy and principles to address questions of privacy are even taking place at the legislative level. Moreover, when legislators do begin to address the questions,one cannot expect anything like a satisfactory resolution. After all, it is legislators who gave us all the excesses of the Patriot Act, not to mention the Sonny Bono Copyright Extension Act and the DMCA.
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IP maximalists...
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Re: IP maximalists...
they want it both ways:
IP is real property, infringement is theft.
IP is not real property, so the doctrine of first sale does not apply.
conversely:
if IP is real property, then i can do what i want with IP that i have purchased, just like real property.
if IP is not real property, then it's not theft and the punishment for non-commercial infringement should be commensurate with the losses suffered.
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I believe ...
I agree that copyright is anti-property(based on "The license is like a parody of a contract .."), however I do not like the analogy of somebody showing up at the door with gasoline to burn the book. Given that if a police officer arrived at your door to tell you that a copy of something you had purchased had been an illegal copy most people would not laugh and would be willing to turn over their copy.
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Re: I believe ...
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Re: Re: I believe ...
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pfft
gimme a break..
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Licensing & Buying...
Interesting concept.
Incidentally, production and lease of equipment is very common in some fields. So none of that is property either.
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Re: Licensing & Buying...
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Re: Re: Licensing & Buying...
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Re: Re: Re: Licensing & Buying...
I'm guessing most of the people who had "their" copies of 1984 deleted would disagree.
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Re: Re: Re: Re: Licensing & Buying...
The books were "recalled", the clients were refunded, and in the interim, they likely all read and enjoyed the book. It's almost as good as getting it for free at a public library.
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Re: Re: Re: Re: Re: Licensing & Buying...
Yeah, those thieving public libraries, huh?
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Asset Forfeiture
You should take a very close look at state and Federal government Asset Forfeiture laws.
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Re: Asset Forfeiture
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Re: Re: Asset Forfeiture
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Re: Re: Re: Asset Forfeiture
In the process of setting those rights (contract law) there are mechanisms in place to revoke those rights.
You aren't buying anything, except a license.
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Re: Re: Re: Re: Asset Forfeiture
"Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use."
There are no restrictions, no caveats that would appear to allow Amazon to remove content from your Kindle under the circumstances that arose in the distribution of 1984 and Animal Farm.
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Re: Re: Re: Re: Re: Asset Forfeiture
"solely on the Device or as authorized by Amazon as part of the Service "
Now, go back to the terms of service, and read how Amazon grants authorization, and how it can be revoked or removed. You cannot take a single item in a terms and conditions and quote it without the other relevant parts of the text.
Nice try. Fail.
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anti-society
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Re: anti-society
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Re:
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Re:
The IDEA of a lens is not IP...strike two...
You could easily make the lenses without taking the original, the value was in the lenses, and there was no IP on the lenses...strike three...
three swings and three misses.
Also, note that Mike included patents in his list above, so he clearly was not thinking of "infinite goods," since the vast majority of patents are applicable to hardware. Note also that many, MANY patents are sold (tens of thousands, in fact), as evidenced by the MASSIVE assignment database at the USPTO...
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First, what makes IP like copyright and patent a species of property is not just that they are "a bundle of rights that can be transferred", but is that they are rights that can be asserted in rem (against the world) as opposed to in personum (against an individual). To mind, the fact that these rights are also alienable is secondary to that.
Second, and more importantly, the entire argument is predicated on the assumption that individuals can assert property rights over the digital goods they have acquired (ie I bought the e-book, therefore I own it and can do what I want with it). This assumption appears to be based on one's expectations and experiences with tangible goods (specifically personal property like chattel). However, if, as Mike himself has suggested time and time again, digtal goods are infinite goods and are different from tangible goods, how can an individual assert property rights in it. Ironically, isn't this applying scarcity thinking to infinite goods?
Just like content owners can't have it both ways, neither can consumers...
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Re:
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Re:
The issue here is that this assumption does not come out of a vacuum. The content owners consistently refer to a content transaction as a "purchase" by the consumer. The word "purchase" is normally associated with the transfer of ownership so it is not unreasonable that your average consumer believes it is being used in this sense, but that is not what happens with content.
The content owners make no effort to make it clear that this actually has more in common with a rental than a purchase, but then of course it is in their interest to avoid clarifying this point - they benefit greatly by charging for "purchases" when they are only supplying "rentals" - a level of misrepresentation that in another time and place would be tantamount to fraud!
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its Scalias Court
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Convoluted And Contrived
For example, the fact that IP is rarely sold doesn't make it less property-like; it just means
The fact that IP is not like classical property does not make it "anti-property".
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tangible and intangible property
The problem of licensing versus sale is really a different question then that of the analogy with other kinds of property. It is certainly true that license transactions ought to be better labeled. Renters are seldom deceived into thinking they own the apartment, if for no other reason than that they must pay monthly rent. Owners of IP should be required to indicate more clearly when a transfer is a licensed transaction rather than a sale, and the copyright law probably needs to define more clearly when a sale has occurred, even if it is called a license.
When copyrighted material was always encased in a tangible medium, it was easy to understand the concept of sale, and the analogy with other types of property was clearer. We need a better understanding of how our rules apply or do not apply to genuinely intangible IP, but simply denying any analogy with tangible property is no more helpful than is clinging to that analogy after it has clearer broken down.
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so very circular
I've got songs from the '80s running through my head right now:
"Round and round. What goes around comes around; don't ask me why."
"Right round, baby, right round. Like a record, baby, right round, round, round."
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what if real property law was actually like current IP law
IP law focuses heavily on copyright and 'ownership of design' if you like. Imagine this was applied to the house that you own.
You want to build a new home. You would perhaps look at some display suites or engage a respectable firm to design and build your dream house. Most architects and developers copyright their designs for their range of homes.
If we were to apply IP like laws to this process then basically the firm that came up with the design would have complete control of their design. Just imagine if you wanted to renovate, extend or God forbid, sell you property for a profit.
Under IP like property law, to renovate you would be first required to seek permission from the firm to modify your house to ensure that you did not 'dilute the original design in case causing of harm to the idea or trademark of the original designer'. If you were lucky to get approval for your renovations you would be of course be charged a substantial fee for the priviliedge. If not you could be sued if you went ahead anyway.
Then when time comes to sell your home, any (or perhaps all) profit that you may have made would then have to be handed over to the design firm, after all, you are profiting from their idea are you not?
Current IP law is like property law? I think not.
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the CD and "the CD"
This is also why if someone nicks my BMW, I don't try to sue him for IP infringement, but for car theft.
Anything that is subject to exact copying of the original without the destruction or modification of the original necessarily must have a different set of rules governing it.
Intellectual property may have a similar name, but it is not part of the order of what we understand as "property". It is another animal altogether.
The loss incurred is anybody's guess, which is why the figures in NC infringement suits are so outrageously high.
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I just don't know what the fuss is. For a seemingly intelligent guy, you seem often enough to trip over your own logic.
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All "property" being a creature of law, copyright is accurately characterized as "100% property". Where the indignation bubbles to the surface here is the unshakable belief by some that only "scarcity", as defined by economics, is the sine qua non of "property". Of course, we do have in the midst of society persons who in my opinion take a more enlightened view.
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Property Taxes!
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Re: Property Taxes!
In addition, when patents are practiced the produced products are also taxed, and since there is supposedly a "monopoly rent" (gag me with a spoon for a term that is more of a joke than some people seem to think intellectual property is), then the tax on products sold with such "rents" are higher than on products without.
Trademarks are alse taxed at periodic intervals in addition to requiring evidence they are being used, otherwise the trademarks are handed back to the public domain.
Great suggestion. You should be glad it is already being implemented for trademarks and patents. I am insufficiently familiar with copyright to know what taxes it might face.
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