Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?
from the one-path dept
A few folks sent over Larry Downes excellent recent analysis of both Google's moves in China and its lawsuit with Viacom over YouTube. He notes that the key similarity in both stories is how property rights don't make much sense for information, and how using a traditional property analysis in both cases leaves you coming up short. Specifically, with China, he points to a lack of interest in a marketplace of ideas, and with Viacom the problem is that intent is never taken into account. That is, with traditional property analysis, "theft" is done to take something away from someone else for your own good. But in the case of people posting videos to YouTube, the opposite is the case. People are trying to better share Viacom content, to better promote it. As such, Downes wonders if there's room for an "intent" mechanism in judging certain actions, with a question of whether the use is "productive" or "destructive":Both these cases highlight why traditional property ideas don't fit well with information uses. What would work better? I present what I think is a more useful framework in the book, a view that is so far absent from the law of information. That framework would analyze information uses not under archaic laws of property but would rather weigh the use as being "productive" or "destructive" or both and determine if, on the whole, the net social value created by the use is positive. If so, it should not be treated as illegal, regardless of the law.Of course, there's nothing really new about this framework. In fact, with copyright at least, it takes us back to the Constitution -- which clearly set up copyright to "promote the progress of science and the useful arts" (science, really, when talking about copyright). And, thus, the founders intended for it to be judged on the standard of whether or not it "promoted the progress," which meshes nicely with Downes' "productive" use of information that "adds more value to information than it takes away." Unfortunately, over the years, the definitions and regulations around copyright have been taken hostage by those who seek to use it as a pure monopoly right that only benefits them, rather than "promoting the progress." The whole attempt to pretend it's "property" is a result of those efforts. Hopefully using a more reasonable framework will bring us back to a more useful way of dealing with these issues.
What do I mean? Since information can be used simultaneously by everyone and, after use, is still intact if not enhanced by the use, it's really unhelpful to think about information being "stolen" or, in the censorship context, of being "dangerous." Rather, the law should evaluate whether a use adds more value to information than it takes away. Information use that adds value (reviewing a movie) is productive and should be legal. A use that only takes value away (for example, identity theft and other forms of Internet fraud) is destructive and should be illegal. Uses that do both (copyright infringement in the service of promoting the underlying content) should be allowed if the net effect is positive.
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Filed Under: china, copyright, information, property rights
Companies: google, viacom
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Future Comedy
Guy 2: *hits Guy 1 with foam rubber motorcycle*
"You idiot! Ideas are not property, and therefore cannot be stolen."
Guy 1: "Ummm... 'elp 'elp I'm being repressed!...?"
(scene. fade to black)
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Re:
If it makes me money its Productive if it doesnt its destructive.
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What is clear about the Constitution
The legislation of the monopolies of copyright and patent that occurred several years later were nothing to do with this and entirely about enriching mass producers of copies of literary works and useful devices.
The Constitution did not set up copyright.
It should be considered strange that so many people keep on trying to assert that it did, as if recognising that it is not at all clear.
You should ask yourself this: if copyright is a legal privilege legislated after the Constitution, how could the Constitution stipulate the securing of a privilege that hadn't yet been legislated?
The Constitution cannot grant any rights, since charters cannot grant rights, and it certainly can't empower congress to grant rights (and didn't).
An author's exclusive right to their writings is a natural right and can thus be recognised by the constitution.
Copyright is a commercial privilege granted later, for the benefit of the press, and has no constitutional sanction (though someone did once suggest adding monopolies in literary works as an amendment).
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if we people pay you
this is why COPYRIGHT is supposed to be a limited time
and why your supposed to get a few bucks to keep up being smart and doing nice stuff ratehr then being lazy and living off stuff and not creating
case in point
other then heros for sci fi what have we
doctor who ( same old same old really for kids)
stargate universe ( just a rehash of stargate on a space ship nothing new )
and worst fo the lot is "V"
a remake of an awful tv show with sexy women ( yea thats only reason anyone ever watched it seriously )
so take out all the good looking women make the leader look bald and ugly , and make the fbi the heros again so you get that cops are the good guys propoganda....
no originality and slowly we are seeing why they want ATCA so bad cause they know once its all done they wont have to do nohting for years and just spill out a few more suvivor eps a day
UGH
as to money
my dad whom every one says is very smart business guy( went from a piece a blank land his mother left him, living in a tent , building a home and then selling up to better and better )said to me "son if i can get ten percent on anyhting i invest in i think its not only good its enough"
that last part is the key, when you want more and more and more and more, your just wanting too much
SERIOUSLY
what does the american copyright term as it stands RIGHT NOW do for any of the american people
WHAT does 50 year terms in Canada do for any citizen of Canada?
ANSWER IT DAMMIT. THEY CANT, they get a lawyer over here who will start going poor actor and poor musician.
YEA thats why they can hire people like lawyers ....i see another scam is all it is and its replacing the real estate scam is all.
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Re: What is clear about the Constitution
"To 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."
Copyright and patent protections had long existed in the UK at the time of writing the constitution.
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Damages
This way, if infringement causes no net harm to the copyright holder, that holder can get, at most, $1 in nominal damages.
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Re: What is clear about the Constitution
You have it completely backwards. The Constitution gives Congress the right to create copyright and patent law, but only for the purpose of promoting progress.
The author of that Article was Thomas Jefferson, who was a former patent officer. Here's what he had to say about "the individual's (pre-existing, natural) exclusive right":
- From a letter by Thomas Jefferson to Isaac McPherson
If that's tl;dr, here's the gist: Ideas are not property. There is no such thing as a "natural right" to your ideas.
If you disagree with this, then you disagree with the very idea of copyrights.
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Re: Re: What is clear about the Constitution
In any case, the Constitution made no reference to British legislation.
It is only today that 'right' is more familiar to people as an abbreviation of 'legally granted right' (privilege), than 'natural right' as was the meaning used by framers of the Constitution in the 18th century.
So, 'exclusive right' refers to a natural right of the individual, not one granted by legislation (the constitution gave no power to congress to grant privileges).
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Re: Re: Re: What is clear about the Constitution
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Re: Re: Re: Re: What is clear about the Constitution
Copyright is all about me having the power to prohibit you from making further copies of the copy I've given you - a monopoly. However, the constitution said nothing about this monopoly, only about the individual's natural exclusive right.
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Re: Re: Re: Re: Re: What is clear about the Constitution
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Re: Re: What is clear about the Constitution
Ideas may well not be property, but they can be owned by those who have them (you cannot have my idea unless I give it to you). Intellectual works (fixed in a physical medium) are property however, and individuals have a natural exclusive right to their intellectual work, their intellectual property. What they don't naturally have is the power to prevent competitors purchasing their work and then producing further copies - people do not naturally have reproduction monopolies such as copyright or patent.
So, yes, I do disagree with copyright, as with any other state granted monopoly. I am a copyright abolitionist.
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Re: Re: What is clear about the Constitution
The section on the "Copyright clause" is here:
http://press-pubs.uchicago.edu/founders/tocs/a1_8_8.html
Of particular interest is the Wheaton v. Peters case. Here's an excerpt:
Emphasis mine.
This only applies to the United States, of course. The French concept of "droit d'auteur" is closer to a "natural rights" doctrine, particularly in the area of moral rights.
But looking at the history of copyright laws in other countries (e.g. pre-revolutionary France, England prior to the Statute of Anne), most of those "copyrights" were rights granted by the government to publish works at all. In other words, they were a tool for government censorship.
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Re: Re: Re: Re: Re: Re: What is clear about the Constitution
If you read Jefferson's explanation again you might notice a difference between 'ownership' and 'property'.
You say "Once I read the idea", however, there are vital steps between me writing my idea down and you reading the paper. I have a natural exclusive right to the paper and the idea written upon it. It's remains my property until I decide to sell or give it to you. You can neither read it, copy it, nor use it until that point.
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Re: Re: Re: What is clear about the Constitution
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Re: Re: Re: What is clear about the Constitution
Some people are highly wedded to the idea that copyright is recognised as a natural right by the constitution, rather than simply being the privilege of a monopoly, subsequently granted (unconstitutionally).
Moral rights mostly concern the natural right to truth (against its impairment), so I have far less of a problem with them, but they still get corrupted by proprietary notions induced by copyright.
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Re: Re: Re: What is clear about the Constitution
Here in the U.S. the answer is, "none." This is for a simple reason: once you communicate your idea to another person, it's now that person's idea as well, and that person has an equal right to the ideas in his head.
So, the "right" granted in the Constitution is not a right to the idea, but the right to reproduce that idea in a specific form.
Like I said, the idea of "moral rights" in European law is significantly different (e.g. publishers don't have these rights at all, only authors, and those rights are permanent and non-transferrable). If U.S. copyright law was based on this concept, I'd have a lot less of a problem with it (though there would still be problems).
This highlights a huge issue in the public discussion on copyrights. The average Joe thinks copyright is this "moral right," and it's not. Labels and studios exploit this confusion to their advantage, talking about "pirates" trampling on the moral rights of authors and artists, when in fact copyright has nothing to do with moral rights.
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Re: Re: Re: Re: What is clear about the Constitution
It is privileges that interfere with our rights. Patent interferes with our natural right to implement any design we may think of.
AGAIN: the Constitution grants no rights.
Copyright and patent are legislative acts occuring several years after the Constitution, that by dint of power congress assumed (unconstitutionally) grant privileges to EXCLUDE others from reproducing a literary work or a design.
It's not too difficult to get from a 'privilege to exclude' to a 'legal right to exclude' to a legally granted 'exclusive right', and consequently to pretend that the 'exclusive right' just legislated is the same exclusive right recognised by the constitution (because the words match). And even to come up with a disgracefully flaky conjecture that the Framers must have been thinking of an 'exclusive right yet to be granted' rather than the exclusive right individuals are imbued with by nature. Because, obviously, a monopoly is far more lucrative to those hoping for the best possible interpretation and the Framers were big fans of monopolies - as everyone knows [sarcasm].
Yes, it's disappointing how many people think copyright is about preventing copying qua plagiarism rather than copying qua reproduction.
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Rights
The patent and copyrights granted in the Constitution are legal rights, not a natural rights. (Much as labels and studios would like to believe otherwise.)
The question is whether copyright should be a natural right, like free speech. Something inherently possessed by the artist or author, which cannot be transferred to publishers (even by choice). The French notion of "moral rights" says this it should.
But - and I cannot stress this enough - the authors of the Constitution did not consider it a natural right. Neither did the rest of the world, at the time.
You can argue that they were wrong, of course. There are good points to be made on both sides of that argument.
But it is by no means obvious or self-evident. And in most countries outside of Europe, it is not the law.
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Re: Rights
Who owns the "moral rights" to a movie? If you're the movie's editor, what ideas do you have the "right" to control? What about the lighting director?
Morally speaking, who should own the image of a trademark - the company, or the graphic designer?
Traditionally, these have fallen under the idea of a "work for hire." But if you do believe that copyright is a natural right, then a "work for hire" would always be a violation of your rights.
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Hi TAM.
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Re: Rights
I really don't know why you're so keen to continually assert that the privileges of patent and copyright are granted in the constitution. They are not. Even you recognise they are 'legal', so at least recognise that they are products of subsequent legislative acts. The Constitution makes no mention of them.
There is no 'should' about making privileges into rights, because a privilege is a product of man made law, whereas a right is a law of nature (to be protected by a government empowered by its people). One can make a privilege non-transferable as in droit de suite, but this doesn't make it a natural right.
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Re: Re: Rights
Truth is also not a matter of control/power. You cannot have a privilege to decide who wrote something (without violating the natural right to truth). An author may be considered to be likely as the most concerned with the veracity of their authorship, but all those interested in someone's writing are also concerned not to be deceived as to a work's authorship.
Trademark is another kettle of fish (a registry for the purposes of disambiguating authorship), one we can go into another day.
I think we've agreed that copyright is a privilege. Copyright is fundamentally a violation of the individual's natural right to liberty since it derogates from the individual's liberty to share and build upon mankind's culture, to tell or sing the stories and songs they hear, and modify them. Copyright is so called because it suspends from the public their right to copy, to reserve this as a privilege for the exploitation of the press.
What remains is that you persist in supporting the received delusion that the Constitution granted the privileges of the monopolies of copyright and patent - instead of simply recognising the individual's natural exclusive right to their intellectual works and the need for this to be secured.
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Re: Re: Re: Re: What is clear about the Constitution
You're sort of right. The constitution only allows copyright as a monopoly privilege and does not view copyright as a natural right.
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Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution
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Re: Re: Re: Re: Re: What is clear about the Constitution
I concede that MANY people believe that it's CLEAR that it does so, but none of these people tend to do more than cite the clause (that congress should have power to secure an individual's exclusive right).
There's a bit missing in the leap of interpretation from that clause to the inference that the Constitution empowers congress to grant monopolies in literary works.
I don't dispute that there are utilitarian arguments for granting monopolies in literary works, and those were no doubt used to persuade copyright's legislation, but the problem is inferring Constitutional sanction for it that doesn't actually exist.
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Re: Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution
Thus I can permit you into my house to look at my etchings, where if you did so without my permission you'd be violating my right to privacy. However, I cannot grant you the right to violate my privacy since my privacy is inalienable and I cannot part with it (even by contract). Thus I can permit a TV crew into my home, but I cannot sell them the right to enter it. I can sell/vacate my home such that it is no longer my private residence, but then that's not granting any right.
Copyright is only perceived as a 'natural state of affairs' because people have become used to it (it was established in the 18th century). No doubt the children of plantation owners found slavery a natural state of affairs too.
What the Internet is revealing to more and more people every day is that copyright is not at all a natural state of affairs - but that the liberty to share and build upon mankind's culture is.
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Re: Re: Re: Re: Re: Re: What is clear about the Constitution
"Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."
We can debate whether it's a good idea or not, but it seems that this limited monopoly was intended.
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Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution
You evidently also want to believe the Framers thought granting monopolies was a good idea, though for some strange reason they didn't express this thought in the Constitution.
You can either take the Constitution literally, as an empowerment of Congress to secure an individual's natural exclusive right, OR you can ignore what it says, and simply believe that despite no clear statement, the Framers intended Congress to have the power to grant monopolies in literary works.
Why the latter approach is so popular I can only explain as evidence of how seductive monopolies are to those who would exploit them. People need to believe that their privileges have some greater sanction than simply commercial expedience and legislative concession, e.g. "If we can persuade ourselves the Framers thought monopolies were a good idea, well, they must be. It was good they were legislated, and we can carry on suing kids for file-sharing without losing any sleep over it".
I'll leave you with this snippet I've copied(!) from Wikipedia:
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Re: Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution
[I admit that despite some of these comments above and an earlier one you addressed to me at the againstmonopoly.org site, I still was not sure.]
I posted a reply here http://www.digitalproductions.co.uk/index.php?id=177&commented=1#c000388
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According to the US Constitution (and many authors), generally, freedom of expression would be considered a good thing.
Most scientists can usually weigh in on what promotes science.
I think most people agree that monopolies are undesirable, as would be trying to legislate scarcity where none exists.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution
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