Harvard Newspaper Staff Apparently In Need Of A Lesson On Copyright Basics
from the don't-they-have-a-law-school-there? dept
Copycense points us to an editorial in the Harvard Crimson apparently supporting the MPAA's new demands to universities that they need to police their local networks to stop students from file sharing. The editorial has tons of problems -- starting with the fact that it ignores that the MPAA lied to get the law passed in the first place. But the editorial has much more serious problems, and makes you wonder what they're teaching students at Harvard these days. Let's focus on this paragraph:Our support for the MPAA's actions is based on our belief that the unauthorized downloading of music, movies, and television programs, although easy, is questionable at the most basic level. In our postindustrial economy, the protection of intellectual property rights is important for several reasons. First, these rights must be safeguarded in order to provide an incentive for innovation. Without any guarantee of legitimacy, entrepreneurs will have no motivation to create new intellectual property, as it could be stolen at any time.Really? Perhaps the student editors at the Crimson can take a walk over to the office of Felix Oberholzer-Gee, who is a professor at Harvard, and has done a nice study debunking almost everything the editors state above. The study shows that as intellectual property laws were ignored to a greater degree, the amount of creation actually increased. This might seem counterintuitive to the staff at the Crimson, but it's really not that complex if you think about how creation and innovation actually works. Most people create and innovate not to get "intellectual property" but because they want to create and get work out there, or because they have a general need to innovate. On top of that, creation and innovation are almost always part of an ongoing process that builds on the works of others. Ray Charles, famously, invented soul music by infringing on copyrights.
The motivation is not "intellectual property." The motivation may be a personal need. It may be money. It may be just a need to create/innovate. But none of that requires intellectual property. In fact, much of it is hindered by intellectual property that puts up toll booths on creation and innovation.
Claiming straight up that there is "no motivation" to create new works without protections is simply wrong and it's sad that a publication like the Harvard Crimson would make such false claims.
Second, at a broader level, intellectual property rights are important because each person has a fundamental right to enjoy the fruits of his or her mental labor. Intellectual entrepreneurship requires a broad societal commitment to the rule of law and the importance of private enterprise.Once again, the staff at the Crimson might benefit by taking a walk from their offices over to folks who actually know what they're talking about. I'm sure the folks at the Berkman Center can help out. US copyright law is not about "a fundamental right to enjoy the fruits of his or her mental labor." That's because no such right exists, fundamental or not. US intellectual property laws are about promoting the progress -- i.e., for the benefit of everyone, not to just allow someone to "enjoy the fruits of his or her mental labor." If the Crimson staff understood copyright law, they would be familiar with the Supreme Court's important ruling in Feist, where it directly rejects the entire idea that there's any "fundamental right" as described by the Crimson editors.
Or better yet, if the Crimson staff were aware of the historical basis of copyright law, they would know that for centuries the idea that you have a right to the fruits of your mental labor has long been rejected. From all the way back in 1791, when this issue was being debated in France, Jean Le Chapelier rejected this very notion, pointing out that it was fine for creators to capture some of the fruit of their labors, but by the very nature of content, the idea that they should capture all of it made little sense:
When an author has delivered his work to the public, when this work is in the hands of everyone, that all educated men know it, that they have seized all beauties it contains, that they have entrusted the happiest lines to their memory; it seems that from this moment, the writer has associated the public with his property, or rather he has transferred it entirely to it...The point isn't that a content creator should not be able to profit from their works, but claiming a "fundamental right" is misleading and wrong on two specific accounts: (1) It implies that any and all "fruit" should go to the content creator. Yet, as we know from basic economics, the natural "spillovers" are actually quite beneficial to society. (2) It suggests that the only way to capture some of that fruit is via protectionism in the form of intellectual property laws. But, as we've been showing for years, there are all sorts of ways to capture revenue from content creation or innovation without relying on intellectual property law. I'm all for content creators "enjoying the fruit" of their labors, but the way you do that is by having a good business model. That's separate from intellectual property.
For a university that has such wonderful economics and law professors, you would think that the staff would seek to understand this issue before putting forth such an editorial based on faulty assumptions.
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Filed Under: copyright, harvard crimson, history
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Contradiction
Finally, more broadly speaking, we are excited by the move made by the entertainment industry as a whole toward embracing the Internet space. The provision of legal streaming media on websites like Hulu, Pandora, and Netflix all but eliminates the excuses of media pirates, who have argued for years that the entertainment industry is attempting to impose an outdated business model through obtrusive litigation. Although these moves are encouraging, however, we still see numerous opportunities for Internet Protocol-rights holders to expand in the Internet space, particularly in sports programming and back-catalogue access to popular television programs.
In the first part of the paragraph, the author states that the existance of some legal alternatives "eliminates the excuses of media pirates", but in the second part gives one of the two biggest examples of where these legal alternatives fall short. Protip for The Crimson writers: when acknowledging a counter argument, it's be usually a good idea to provide evidence why that argument is wrong, not to just provide just enough information that it undermines your own argument.
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Re: Contradiction
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Euphemism for "patent trolling"?
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Please read up:
http://web.archive.org/web/20040603092645/commons.somewhere.com/rre/2000/RRE.Al.Gore.and.the.In te1.html
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This is the practical reality that no copyright advocate wants to hear (except to lambast). A work belongs as much to the reader as to the writer. Art is communication. Unless you're only interested in talking to yourself (in which case you shouldn't publish your art...), your audience must be in full possession of your message. They need to take it and play with it, repeat it, remix it, re-examine it in order to understand it.
No created world exists solely in the mind of the creator. The audience creates with the creator - that's how the mind works. Nobody actually perceives a work exactly the same way the artistic perceives it or intended it to be perceived. We all have our own personal experiences and connotations and associations that going into it.
And when you grow up with a work or experience it a lot, it becomes a part of you. It's stuck in your head and becomes a part of your thinking. If that's not the actual definition of "intellectual property," I don't know what is.
But this all really just comes down to the basic point that if you're just into publishing artistic works for the money, you're in it for the wrong reasons. Of course a lot of the people I've heard advocating for stronger "intellectual property" laws are not actually artists. They're lawyers and politicians or someone else who perceives or actually has a vested interest in the stronger copyright laws.
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Well said. A quote for the ages.
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Whoops... fixing.
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"Put this in your paper or I'm not gonna pay for next semester"
Maybe the editor sent his "script" to a movie studio and is looking for some reciprocal love (they "buy" the script).
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You would rather replace them with your own faulty assumptions?
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Would you care to explain why you think Mike's assumptions are faulty? Or are you only comfortable with arbitrary contradiction without any support for your argument?
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If you work hard and creating something entirely new, you should have the rights to your work. Some people might use a term like "sweat of the brow" to accurately describe it to someone else, but it means something else to lawyers.
As is often the case, a game is played by taking a term used by a layman, which means something else in legal terms, and jumping all of it.
What is always missing from these discussions is an acceptance of the the concept that the US (and many western countries) are no longer producing as much physical product, and are not producing as much advancements in physical products, rather we produce what is panned here as "IP". We no longer figure out how to nail two things together, we figure out how to make better chemical coatings that allow the nails to grip longer or the wood to last longer. Those ideas, those concepts, are just as valid now as patents on physical products and processes were in the past.
So you can pee all over the concepts of "IP" if you like, but when you consider that it is much of what the US produces anymore, perhaps you can understand why it merits some protection. Sooner or later, the US could become a third world country, with no physical production and no remaining market price for the IP that has been taken and used elsewhere.
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Umm... a novel chemical compound is a physical product/process and would still be covered by a patent, not by a different field of IP. I think you are the one "peeing all over" the concepts...
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You do have the rights to your work. It's called copyright. But copyright is not a right to be paid, but to merely to control your work enough to act as an incentive to create to achieve the goal of promoting the progress.
Some people might use a term like "sweat of the brow" to accurately describe it to someone else, but it means something else to lawyers.
Even casual readers of TechDirt understand the legal the implications of "sweat of the brow" i.e. that the courts have held that you don't have an inherent right to be paid just because you've but effort into something.
What is always missing from these discussions is an acceptance of the the concept that the US (and many western countries) are no longer producing as much physical product
You must be reading a different web site than I am because this is the very foundation of most articles on TechDirt and the discussions thereof.
So you can pee all over the concepts of "IP" if you like, but when you consider that it is much of what the US produces anymore, perhaps you can understand why it merits some protection.
You'll probably find this hard to believe but I think that Mike and indeed most readers of TechDirt would agree wholeheartedly that IP deservers "some" protection. But that's not the issue being discussed. It's whether IP deserves so much protection that it defeats the original purpose of IP. To use just one example, when boyscouts are sued for singing songs around a campfire, then IP protections have clearly gone too far.
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Actually wih the cost of computing and robotics falling. There is a trend for more manufacturing of small products to be done locally. With 3d printing coming of age and programs like MS robotics studio people are experimenting. I recently saw a small maker shop demo. Good food, great homebrew beer, and a machine that built a copy of itself with limited human intervention (fixing the positional screw ups). With machines like this, out sourcing to india or china will not make sense in 10 years. With the cost of labor going to zero, the cost of shipping will be the limiting factor.
You seem to be planning for a world where things don't change. But we are entering a phase of humanity where things are accelerating. Where internet time is slowly reaching out into the real world, speeding up development of new technologies.
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Patent is theft
> entirely new, you should have the rights
> to your work.
Exactly. Of course that should also be true if I am not the first person to "invent" something. The government should not allow some Megacorp or patent troll to shake me down for using the product of my own intellect.
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why don't you cite the entire phrase from the constitution
Of course the constitution's framers used the phrase "promote the progress of science and useful arts", but they then followed it with the phrase, " by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"
Sounds to me like you're dead wrong when you say there's "no right". It's smack dab in the center of the Constitution. The phrase "exclusive right" sure sounds like a right to me.
But you're not interested in things like this. Watch Mike go, gentle readers, he's about to tell me that I "don't get" the Constitution and my reading of the words "exclusive rights" has been debunked long ago.
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Re: why don't you cite the entire phrase from the constitution
A fundamental right is something we believe to be innate to all people and that a government can swear to defend. Copyrights are highly limited rights that the framers of the constitution explicitly noted were not natural, fundamental or innate in any way - they are granted by the government because of the belief that they will benefit society.
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Re: why don't you cite the entire phrase from the constitution
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Re: Re: why don't you cite the entire phrase from the constitution
All of the other rights are also limited by the whims of Congress too. You think you have a right to life? Hah. There's a thing called the draft and they can send you marching into a hail of machine gun fire. You think you have a right to liberty? Just spend five minutes talking to libertarian. You think you have a right to the "pursuit of happiness?" Ask someone convicted for smoking marijuana -- something they're still doing in CA.
The idea of a "fundamental right" is usually a rhetorical device tossed off by folks who want to suggest that no one would ever disagree with them. It's a game to put something out of bounds and pretend that the other person is an ogre for claiming something isn't fundamental. But often it's just a dream. For every person saying that there is some fundamental right to "peaceably assemble" there's someone else pretending that there's a fundamental right to medical privacy.
Take a look at the constitution. There's no section listing "fundamental rights". The so-called "Bill of Rights" is really a list of amendments that list some rights. F
Now I recognize that there's some ways that people spend time trying to figure out to which rights the 14th amendment applies. But again, the state only has to say that there's a compelling interest in denying that right. And then they have to be kind of fair about it.
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The rhetoric of devaluation.
Actually, no. Not at all.
One key element of "rights" is that THEY DON'T EXPIRE.
Call it a regrettable misuse of terms that allow for certain parties to muddle a number of issues together and confuse things terribly for their own selfish ends to the detriment of everyone else.
Despite the name, a copyright really isn't a right.
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Re: The rhetoric of devaluation.
Just try to sue someone for $150,000 for each time they violate your civil rights.
And remember that one of the standard complaints around these parts is that Congress keeps extending the term of copyfizbin. So you can't have it both ways. You can't jump up and down saying that copyfizbin isn't a right because it expires and then complain that it never expires.
For almost all extents and purposes, copyfizbin is much more powerful than the so-called fundamental rights. Even if the law upholds them, the damages are much smaller. And Congress or the courts are quite liable to just pull the rug out from under you as they did with the so-called fundamental right to form a contract.
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Re: Re: The rhetoric of devaluation.
Also, when debating a point it is customary to provide both facts (or at least assumptions) and an argument. In your case you provided several assumptions including: how much one is likely to win for having their rights violated, the likelihood of receiving money in a suit about fundamental rights vs. civil ones, and some assumptions about the judicial and legislative branches view of peoples rights.
No where did you state if this is a good or bad thing - the argument or conclusion portion of a debate.
It would be kind of like debating slavery buy saying "There used to be slaves." My only logical response would be "And that was bad. What is your point?"
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Re: Re: Re: why don't you cite the entire phrase from the constitution
How long has this draft thing lasted? Were we arguably in an emergency situation? Was it short-lived?
How long does copyright last? Is it reasonable to consider that two lifetimes is "limited" within the context of the creative life of a creator and his/her peers?
There are a lot of gray areas and potentially conflicting sections of the Constitution where a balance must be struck, or where it might take a while before the boundaries are confirmed or adjusted by the court.
Acceptable copyright boundaries within the era of digitalization are still be in flux. How many times do staunch supporters of copyright violate it themselves? Obviously, when its strongest supporters have so many problems adhering to it, something is wrong.
http://en.wikipedia.org/wiki/Conscientious_objector
"From 1941 to 1947 nearly 12,000 draftees,[38] unwilling to do any type of military service, performed work of national importance in 152 CPS camps throughout the United States and Puerto Rico."
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Re: why don't you cite the entire phrase from the constitution
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Re: why don't you cite the entire phrase from the constitution
That's right, so if progress is not being promoted, Congress does not have the right. That was a conditioned statement. It says that something is possible if something else is satisfied.
There is no direct Constitutional support (and plenty against) to suggest that these monopolies are legal if they don't promote the progress.
Congress can't make something promote the progress by decree. What would you think of the following fictional Congressional Power? "The Congress shall have Power [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right" of all first-born Children not yet claimed and living within a one-mile Radius of their primary Residence.
Simply, these first-born ownership actions don't promote the progress. We can assume the document is twisted, or we can salvage it by interpreting the "to promote the progress" as a criteria that only if met results in Congress having a certain power but not otherwise.
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Lets break this down to the most simple terms possible ...
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Re: Lets break this down to the most simple terms possible ...
One of the things it's designed to do is prevent parasites that contribute nothing to society from leeching off the backs of those that do.
Sound familiar?
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Re: Re: Lets break this down to the most simple terms possible ...
Hah! The USA was "the China" of the second half of 19th century. We were the copiers that had all the Europeans in a frazzle because we were "stealing" their stuff. We adapted European technology, and those adaptions laid the framework for many more new innovations.
In case you didn't notice, the second half of 19th century is when we built our economic base with which we dominated in the 20th century.
The Europeans have been striving to tighten IP for the past century. During that same period, their innovation stagnated and they are no longer the dynamic leaders of the world economic engine. Europe remains solid, but not dominant.
Do you think those to facts are merely accidentally correlated?
Watch what happens. China and India will do to us what we did to the Europeans, and we are leaving the door wide open for them by hamstringing our entrepreneurial innovators with lawsuits and the fear of lawsuits.
Aggressive IP has shown itself to be all about current dominant players in the economy seeking to solidify their position, and in so doing, they close off competition from new startups that would have innovated. Aggressive IP is about controlling competition. Its about preserving oligopoly and monopoly.
BTW, my family has been in America since the 1630's.
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Re: Re: Re: Lets break this down to the most simple terms possible ...
I hate to break the news, but during the time period in question persons within the US were quite adept at holding their own against any of their foreign counterparts.
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Presumptuous Corporate Shills
> before your family was probably in this country.
That's funny.
My family was here when New York was still called New Amsterdam.
It's dubious even now to claim that "creative ownership" is the foundation of the nation. If anything, it is the commonly accessable pool of "creative capital" that is the foundation of our current material progress.
Your ideas are exactly backwards.
Creative capital is just as important as financial capital and those men that wrote our Constitution originally understood that.
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Spewed my lunch on my laptop
Second, at a broader level, intellectual property rights are important because each person has a fundamental right to enjoy the fruits of his or her mental labor. Intellectual entrepreneurship requires a broad societal commitment to the rule of law and the importance of private enterprise.
Is the same nonsense that I have gotten 3 times from Sen Hatch's office when I write to complain about COICA.
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I think you're confusing the "means" and the "ends". Even looking at the full quote, it's obvious that the end goal is to "promote the progress" and that the "exclusive right" is merely the means by which this goal is met. You're making the same mistake that the ambassador to the UN made when she said that copyright was more important than development. It's putting the cart before the horse.
Sounds to me like you're dead wrong when you say there's "no right". It's smack dab in the center of the Constitution. The phrase "exclusive right" sure sounds like a right to me.
Again, you're confusing two different concepts. Yes, with copyright, you have the exclusive right to copy your work. But that's not what Mike is talking about. He's saying that you don't have an inherent right to be compesated for your work. The two are very different things. It's like the right to pursue happiness. The constitution doesn't guarantee happiness, just the right to pursue happiness. Copyright is the right to pursue profits, not the right to profits.
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Before anyone jumps all over this statement, I don't this means that an employer shouldn't pay an employee for a fair day's labor. But in that case, there is a specific legal arrangement in place. But say, I go out into my back yard and pick up a huge stone from one side and move it to the other side and repeat this all day. Do I deserve to be paid? No. Just because you perform some work, the "sweat of the brow", it doesn't inherently mean that you should be paid. It just so happens that, up until the Internet was invented, big media companies were able to get paid by selling physical items. But here's the key, this was just a business model, not a legal contract between the producers and the consumers. For example, just because you made $16 for twenty years by selling shiny plastic discs doesn't mean that you have some universal right to make that same amount for the rest of eternity. Do I think that artists should be able to earn a living? Sure I do. But not at the expense of the original goal of promoting the progress.
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Frankly, I find it refreshing that there are apparently some at Harvard who do not tow the economic/legal party line.
I personally have never met an inventor or author who set out to create "intellectual property". Rather, they all set out to create a thing, be it an original work of authorship or an invention. At the same time I have met only a very few authors and inventors having such a streak of social charity that labored long and hard specifically to give their work product to the world for others to do with it as those others saw fit.
The vast majority created things that they hoped would be favorably received by others and provide to them the opportunity to earn some income. The law exists to provide such an opportunity, as well as bring some measure of stability to the market such that investment decisions can be facilitated by an established set of ground rules.
Is this law necessary in all instances? Of course not, and it would be wrong to suggest otherwise. It does not, however, necessarily follow that there are no instances where these laws have a beneficial effect for both the author/inventor and the public at large.
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In the context of legal discussions around intellectual property, the term "sweat of the brow" is associated with court cases that have found that you do not have an inherent right to be paid just because you put effort into something. It does not mean that that there aren't situations where work deserves pay, such as being an employee of a company or contracting with a company. But these cases are related to a specific legal agreement. The employer pays the employee because that's what is written in the employment contract, not because the employee showed up one day and started working and demanded a check at the end of the week.
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In 1790 originality was not a consideration, though doubtless many works covered by that law did exhibit original expression. Only much later was it engrafted by judicial decree into the body law we operate under today.
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Re: Open Source
I think you've lead a rather sheltered life. Might be fun to get out there and meet some of these folks.
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Misguided notions of exclusion.
There is no need or benefit of shrouding these things with a level of "ownership" that interferes with these ideas being recreated independently or even explicitly copied. Although patents are such a legal minefield that they have lost any and all value as "documentation".
Every bit of "intellectual property" granted to an author or inventor needs to be weighed against the negative social and economic consequences of that grant. It's not all good. The idea that the consequences of "intellectual property" are all positive is just unsupportable wishful thinking.
There is great harm too. Infact, there are an number of notable "innovations" and "innovators" that would have been sabotaged by more aggressive "creative property" enforcement.
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The old industries refuse to die and plead for distorting, protectionist solutions. In their distress, they distort the minds of young scholars.
Old business model, old tactics. No industry dies peacefully. IP will survive. Authors and their success do not depend on rusty marketers.
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;)
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Capturing the full value of what one creates
Now, of course not everyone supports antitrust laws, but probably many of those who support extensive fiddling with the market as with the copyright laws of today do, so I think the argument could work on them.
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Re: Capturing the full value of what one creates
Internet piracy isn't a "natural spill over", it is a bucket brigade emptying out the IP pool as fast as they can.
Chinese companies taking an American patent product and reproducing it with a slightly different name on it is not natural spill over, it's a high pressure pump with it's hose deep in the IP pool.
Natural spillover isn't replication or theft. It is at most "inspired by" or some other nice way of saying "I saw something like this, so I made my own from scratch".
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The Point of the matter.
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Again yeah right
Creativity and innovation have nothing much to do with mindless copying.
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