Speak Out Against Copyright Holders Destroying True Property Rights

from the can-you-resell-your-stuff? dept

For a while now, we've been following a series of very scary court cases that could take away your ability to sell physical products you own, by using a bizarre interpretation of copyright law by the courts. You can click back on that link to read some of the background, but the short version is that courts are suggesting that if a physical product is manufactured outside the US, but anywhere on it includes something covered by copyright (an etching, content, software, etc.) then the entire product cannot be sold without permission from the copyright holder. The reasoning makes so little sense as to be unbelievable. Basically, it says that those products weren't made under US copyright law -- so they don't get "first sale" rights -- but they are still covered by copyright law, so selling them is copyright infringement.

This is nonsensical for any number of reasons. Unfortunately, the Supreme Court is about to hear the latest such case, after ending up with a split court the last time around. The reason it was split was because Justice Kagan recused herself, due to being involved in the case prior to becoming a Justice. Her involvement? Penning the filing of the US government against first sale rights. So it's very possible that she'll continue to retain that viewpoint on the court and basically kill off your ability to resell any good manufactured outside the US without permission. This is scary stuff.

While the issue is before the court, it's still important to get people to speak out about this. A few public interest groups have put together a petition site called You've Been Owned: Don't Let Copyright Trolls Steal Our Property Rights! and Citizens for Ownership Rights. The goal is to get the Obama administration to actually recommend preserving first sale rights (contrary to its earlier position). And, failing that, get Congress to change the laws to fix this problem which will drive many American manufacturers to move overseas. This is, of course, part of the real problem: the language of the statute is awkward in a way that lets the court come to a completely nonsensical and contradictory result.

What's important to recognize is that, for all the talk by copyright maximalists to falsely claim that copyright is no different than real property, and to insist we must "defend property rights" for copyright, here's a true case of property rights being under attack -- and it's because of an overly aggressive use of copyright. The idea that you don't actually own what you bought is an anathema to true property rights. That companies may be able to use copyright law to block you from selling used goods is a massive encroachment on individuals' property rights. If all those copyright maximalists truly believed in property rights (rather than the truth: that they support a government granted monopoly privilege that benefits themselves) they, too, would support this effort against the demolition of first sale rights.

Filed Under: first sale doctrine, property, resale, scotus

Court Says That Copying Code Is Not Really Theft Under The Law

from the deprived-of-use dept

We've been pointing out for a while that copyright is not property and that infringement is not theft. And yet... some people can't seem to let this go -- insisting that both claims are true. Of course, one retort from our side of the discussion is the simple fact that you don't see people who copy content being charged with "theft." However, in a case that received plenty of publicity involving a Goldman Sachs employee who had copied some code from the company, he was actually charged with theft. In response, however, a 2nd Circuit appeals court panel has said he was wrongfully charged, because code is not property. The court specifically cites the Dowling case, which we've discussed on many occasions, which makes clear that infringement is a different beast than theft.

The infringement of copyright in Dowling parallels Aleynikov’s theft of computer code. Although “[t]he infringer invades a statutorily defined province guaranteed to the copyright holder alone[,] . . . he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.” Id. at 217. Because Aleynikov did not “assume physical control” over anything when he took the source code, and because he did not thereby “deprive [Goldman] of its use,” Aleynikov did not violate the NSPA.

Of course, it's somewhat unfortunate that in a ruling in which the court finds that Aleynikov has been improperly charged with "theft" under the law... they still repeatedly refer to his actions as "theft." It's too bad they did not properly note that he copied the code, but still repeatedly claim he "stole" it, as they describe his actions in passing -- but when they discuss the actual legal aspect, they admit that there was no theft.

Separately, the court rejected the charges brought under the Economic Espionage Act, noting that the law he was charged under is limited to trade secrets concerning products used in commerce, and since the code in question was for internal use anyway, it did not qualify under the law.

To some extent (and then further in a concurring opinion written by one of the judges on the panel), the court seems to suggest that it doesn't necessarily like these results (this is less clear in the official opinion, but it appears to be what the panel is implying at times), but that the problem is how Congress wrote these particular statutes. It may be true that the laws are drafted poorly, but it's important that copying code is not seen as theft, because it is not theft. Still, the overall ruling here is good, though it could have been more complete.

Filed Under: copyright, dowling, property, theft
Companies: goldman sachs

Thinking Of Copyright As Property Is As Natural As Thinking Of Smells As Property

from the it-ain't-property dept

For many years we've explained why copyright isn't property. This debate flares up on a regular basis in various circles, and even here on the blog we just had the discussion all over again on my post about why copying isn't stealing. The comment thread on that post is already quite epic, with much of it getting into a semantic debate. And, while there is definitely a fair amount of circular talk, there are a number of really interesting and insightful points made in that (very long) discussion that are worth checking out. In the end, though, part of it is just a semantic debate. My point is merely that "property" has certain facets and "stealing" implies certain facets -- and when you're talking about copyright infringement, it matches some but not all of the key qualifications of property and theft. Pretending that the parts that match are sufficient simply means that you ignore the rather important parts that don't match.

But perhaps getting bogged down in semantics (even if they are important) is the wrong approach to getting past this debate.

As we were discussing those issues, Paul Graham published one of his typically thought-provoking essays in which he discusses how the definition of property is changing, such that copyright is no longer property. Whether or not you agree with the way he frames things, he does provide a a great parable that makes a strong point:

As a child I read a book of stories about a famous judge in eighteenth century Japan called Ooka Tadasuke. One of the cases he decided was brought by the owner of a food shop. A poor student who could afford only rice was eating his rice while enjoying the delicious cooking smells coming from the food shop. The owner wanted the student to pay for the smells he was enjoying. The student was stealing his smells!

This story often comes to mind when I hear the RIAA and MPAA accusing people of stealing music and movies.

It sounds ridiculous to us to treat smells as property. But I can imagine scenarios in which one could charge for smells. Imagine we were living on a moon base where we had to buy air by the liter. I could imagine air suppliers adding scents at an extra charge.

Here's the point. Even if you believe to your core that copyright is absolutely property in every sense of the word, and that copyright infringement is -- without question -- the absolute equivalent of stealing, to the "net native" generation, thinking of copyright in that manner is as unnatural as thinking about a smell as property. That's the key point in all of this. Argue semantics all you want. It's not going to matter to the generation of folks who grew up on the internet. No amount of "education" or semantic debate is going to convince them that copyright is property, just as no amount of education or debate is going to convince you that smells are property.

Given that, you have two simple choices:

1. Continue to argue that copyright is property.
2. Get on with your life and figure out how to thrive in a world where copyright isn't considered property.

Which one do you think is going to be more effective? Yeah, that's the point.

Filed Under: copyright, paul graham, property, smells

When We Copy, We Justify It; When Others Copy, We Vilify Them

from the everything-is-a-remix dept

We've written multiple times about Kirby Ferguson's excellent Everything is a Remix project that has produced three videos highlighting the problems and history of intellectual property and how copying and derivative works are a core element of culture and invention. He's now released the fourth and final installment in the series, and it's a great summary look at the general problems with intellectual property law today. The key theme is that the theory (treating ideas, inventions, content, etc. as a form of "property" -- in the minds of many copyright and patent system supporters) simply doesn't match up with reality (where almost everything is a derivative work of some sort). What the video does nicely is highlight the hypocrisy of it all. As he notes brilliantly, when we copy (and everyone does copy), we justify it. When others copy, however, suddenly we attack them and vilify them. A perfect recent example of this, by the way, was former NYT executive editor Bill Keller's bizarre defense of the NYT copying and posting a work covered by someone else's copyright, just days after his own column came out in support of greater legal enforcement of copyrights.

As he notes, this is psychologically understandable. It's all about "loss aversion." People feel a sense that they "own" something which they really do not -- and that's often boosted by the concepts of intellectual property that really spread the idea that you can, in fact, own an idea (and, yes, technically neither copyright nor patents apply directly to "ideas," but that's a nuance that most people fail to grasp when they see how content and inventions are considered "owned" under the laws of today).

The video then talks about the continued expansion of copyright laws, and the more nefarious effort to continue to ratchet things up through trade agreements like ACTA and TPP. But he also points out that this is somewhat ironic, since in its early years, the US refused to sign similar trade agreements, and was a "pirate nation" that ignored copyrights from around the globe.

The video doesn't just cover copyrights, but digs into patents as well -- with specific attention paid to broad software patents that do little to contribute any knowledge to the world, but instead take broad concepts and seek to lock them up for the purpose of suing and trying to extract settlements from those actually creating and innovating.

From there he breaks out the original purpose of both copyrights and patents under the US system. In both cases, they were about benefiting the public: to encourage learning or to promote the progress of "useful" arts (inventions). But when the laws fail to do that, then we should see the system as broken and seek to remedy it.

All in all, Ferguson's series is a great introduction to many of the issues we cover around here. I don't fully agree with everything in all of the videos -- and the latest one has a slight undertone suggesting that capitalism and markets in and of themselves are bad (which I think is conflating a few different issues). But overall the videos are fantastic -- and in terms of production quality, it seems like each one in the series is better than the previous one. He keeps maturing as a video maker, which is cool to see. Ferguson is now moving on to a new project, called This is Not a Conspiracy Theory, for which he's raising funds on Kickstarter, so check it out.

Filed Under: copying, copyright, everything is a remix, intellectual property, kirby ferguson, loss avoidance, patents, property, remix

Joe Biden: There's No Reason To Treat Intellectual Property Any Different Than Tangible Property

from the really-now? dept

Ah, Joe Biden. Is there nothing about intellectual property that he can't get wrong? Variety has an interview with the Vice President on intellectual property issues, and while there's nothing new, it's like a compendium of wrong or misleading statements. It's no wonder the entertainment industry so loves him. There's no lie or misrepresentation he won't repeat. It starts out with a doozy. Nearly every thing he says in the following paragraph is wrong or a misrepresentation:

"Look, piracy is outright theft," Biden said. "People are out there blatantly stealing from Americans -- stealing their ideas and robbing us of America's creative energies. There's no reason why we should treat intellectual property any different than tangible property."

First, "piracy" is not "outright theft." Infringement and theft are two different things. You would think that someone in Biden's position would know the basics. Second, "ideas" are not protectable under US intellectual property law. Expression can be copyrighted and inventions can be patented. Ideas cannot be. That Biden thinks they can be... is immensely troubling. Third, how do you "rob" one of energy? I'm beginning to think that Biden doesn't know what the word "steal" means. Fourth, if this was "robbing us of America's creative energies," wouldn't we be seeing significantly less output and significantly less revenue? Instead, we're seeing both greater output and greater revenue. True, a few legacy companies within the wider industry are struggling to adapt, but that's not the same thing. Fifth, there are tons of reasons why copyrights and patents should and are treated differently than tangible property. Is Biden really suggesting that we should have infinite copyright and patents that do not expire and do not go into the public domain? Because that appears to be what he's saying, and that's blatantly unconstitutional. The Constitution says "for limited times" for a reason. Does Biden not know this?

He is quick to say that he considers it more than a problem of just the entertainment industry. "When our military is sold counterfeit equipment that is faulty, it affects our national security. And when cancer patients are sold fake cancer drugs that contain no medicine, it affects public health. These are serious issues for the American people."

Biden may be even worse than John Morton at this conflation game. Yes, we agree that counterfeit military equipment and fake drugs are dangerous. No one denies that. The problem, which everyone keeps pointing out and which neither Biden nor Morton seem to want to respond to, is that they're using those small and specific problems to then justify massive legal changes that have nothing to do with those legitimate problems.

"Virtually every American company that manufactures something is getting killed by counterfeiters: clothing, software, jewelry, tires," Biden said. "If an American company has been successful at developing an idea, it's likely getting stolen."

Getting killed? Really? Hyperbole much, Joe? First of all, counterfeiting is a separate issue than copyright or patents, and isn't really an "intellectual property" issue, but a fraud issue. Anyway, when you look at the actual statistics (not the made up ones by the industry) you learn that counterfeiting really isn't nearly as big a problem as people make it out to be, and it's certainly not "killing" most American businesses. Yes, it is impacting a few businesses at the margin, but multiple studies have shown that people who buy counterfeits are not taking business away from the original company, but are doing it aspirationally, with the intention of buying the real product when they can.

Besides, if we're really saying that copying ideas and passing them off as your own is "theft" and should be punished the same as "theft" of tangible goods, shouldn't Joe Biden be in jail? After all, he's a notorious plagiarist, who didn't just copy the words of another politician, but copied his life story, claiming things that happened to this other politician happened to him, when they had not. So, if anyone knows "stealing ideas" and "counterfeits," it should be Biden.

Biden then moves on to what he believes is part of the solution:

"I think the entertainment industry would agree that they have done a poor job in making their case and need to do better," Biden said. "I mean, they have some of the brightest and most creative people working for them."

"They should be able to come up with an intelligent, original and effective public education campaign targeting this issue. To be honest, I am not certain they have dedicated the appropriate resources to this, and I hope they will."

Or, perhaps, it's just that multiple studies have shown that this is not an education issue, and the more propaganda that the industry puts out, the less people respect copyright laws. I mean, we're talking about Hollywood. Does anyone really believe that they don't have the ability to create compelling content? The problem is not the content, it's the underlying idea which people just aren't buying. You can create propaganda all you want. You just can't make people believe it if they know, deeply, that it's false.

"Kids are taught that it is not right to steal a lollipop from the corner store," he said. "They also need to understand that it is equally wrong to knowingly steal a movie or a song from the Internet."

Yeah, the industry has been making that a part of the "education campaign" for decades. How's that been going? The problem is that children aren't stupid. And they can recognize that there's a pretty big difference in stealing a lollipop from the corner store (in which case the store no longer has a lollipop to sell) and in sharing a song or a movie with a friend, in which everyone gets greater enjoyment.

Biden doesn't buy the idea that Hollywood's effort to increase enforcement is merely to protect dying businesses.

"The fact is, media companies have already taken significant steps to adapt their business models to keep up with changes in how we watch movies and listen to music," Biden said. "Content is being offered to consumers in a variety of different ways that make it easy and cost-effective for people to access legal material. Anyone who does not understand this should simply talk with one of my grandkids."

Oh come on! The media companies' "significant steps" all came kicking and screaming, often with lawsuits and attempts to use pliant politicians like Biden to pass laws to outlaw the innovations they eventually come to rely on. This is the same industry that tried to outlaw the VCR and the MP3 player. Significant steps? Yeah, only after being pushed by innovators and consumers. In fact, many of those significant steps were taken because of infringement, which showed what consumers really wanted.

Biden said he sees a shift in China, where piracy is rampant and where Hollywood has long struggled to gain cooperation from the government to address the problem. He said South Korea's strengthened intellectual property laws have led to the "Korean Wave" in entertainment across Asia, and "China's leaders understand this."

And here, Biden is simply lying. The Korean Wave of entertainment across Asia started way before the US (at the entertainment industry's behest) pressured Korea into implementing draconian new copyright laws in 2009. Creative labels like JYP had sprung up years earlier, and the company's founder, JY Park, has stated in interviews that it was, in part, the widespread infringement online that drove him to push his artists into alternative business models that took them across Asia, where they make a ton of money. The idea that it was these laws is simply a lie, and is clear from the timing. Korean artists like Rain and Wonder Girls were known across Asia long before those changes were made. In fact, even the term "Korean Wave" which Biden refers to, was given to Korean cultural exports in 1999, a full ten years before Korea put in place new copyright laws. And, during those intervening 10 years, South Korea had the highest rate of broadband penetration, and some of the highest rates of copyright infringement online as well. And yet, the Korean Wave still happened.

Shouldn't the "reporters" at Variety point some of this stuff out in response? Or do they just parrot the Hollywood line and ignore facts? Either way, why is Biden allowed to blatantly lie or misrepresent all of these things?

Filed Under: copyright, counterfeits, intellectual property, joe biden, patents, property, trademark

If Copyright Is 'Property' Why Aren't People Outraged When The Gov't Seizes Content From The Public?

from the property? dept

Michael Scott points us to an interesting analysis of a recent academic paper exploring (yet again) the issue of whether or not patents and copyright should be viewed as property. I won't go into the specific arguments of the paper itself (take a look to read about it, if you'd like), but one key point did strike me as quite interesting:

Professor Fagundes argues that property rhetoric currently is understood through the lens of "ownership" discourse, which understands "property" to mean private rights that are good against the world. Exhibit A for this thesis is the very different public reactions to the Supreme Court's rulings in Kelo and Eldred. In each case, the Court held that the constitution did not protect members of the public from elected officials transferring their rights to another private party. Certain groups were outraged by the Kelo result because, in their view, the Court had fundamentally disregarded specific private owner's property rights. By contrast, the Act at issue in Eldred "took not just from the original plaintiff Eric Eldred, but from every member of the public the entitlement to use expired copyrighted materials for another twenty years." (P. 655.) This transfer, however, was greeted with a public yawn because it was not seen as a transfer of public property into private hands.

If you're not familiar with the two cases (and you should be), Kelo was the Supreme Court case that ruled it was okay for eminent domain to be used by the government to take land away from a landowner and hand it to a private developer. This got a lot of people quite upset about the government overstepping its bounds. Eldred, of course, argued effectively the same thing, in claiming that copyright extension transferred "property" from the public to private interests by blocking it from entering the public domain. While it's worth noting that the Supreme Court seems somewhat consistent on the rulings, it certainly is notable that the folks who got upset by Kelo didn't get as upset by Eldred (yes, some of us were quite upset by Eldred, but it didn't get nearly the same widespread reaction).

It could be that, in general, most people simply don't, implicitly, view copyright as property. Or, it could be that many people don't quite understand copyright issues. I think a bigger issue might just be that most people simply don't understand the importance and value of the public domain. So, without realizing what they're losing, they don't recognize that works failing to move into the public domain is a bad thing.

Filed Under: copyright, eldred, government, kelo, property, public domain

Should Superhero Superpowers Be Considered Property?

from the the-debate-is-on dept

We've had many, many debates around here over the question of whether or not "intellectual property" is actually property. So it seems like many of you might enjoy this article, sent in by johnjac, where some attorneys with way too much free time on their hands discuss whether or not superpowers possessed by super heroes should be considered property or not. I will give you just this short snippet as a taste, which I assume will make you rush over to read the whole thing:

If Superman uses the power of a blue sun to bestow superpowers on another person, is that a taxable asset transfer?  Who would want to try to collect?

If two superheroes marry, share a power, then later divorce, could one be forced to give up the power during the division of assets?  Does it matter who had the power originally?  Even though the shared power may be a non-rival good, one of the two superheroes may still have a claim to exclusivity.  Perhaps the power is a trademark ability of one character, or maybe they signed a superhero pre-nuptial agreement that determined the disposition of any shared abilities.

If one superhero lends a power to another (or to a normal person), does that superhero have an implied right to its return?  In other words, is a bailment created?  I think the answer here is yes.

Enjoy.

Filed Under: copyright, intellectual property, law, property, superheroes, superpowers

Just Calling Something Property, Doesn't Make It Property

from the good-points dept

For years, we've pointed out how rather insidious it is to refer to copyright and patents as "property," as it leads to those who support traditional property rights to default to supporting these government-granted monopoly privileges as if they were property. Stewart Baker, over at the Volokh Conspiracy, does a nice job suggesting that some folks' brains seem to shut off once they see something called "property," even when it has little that makes it "property." He's specifically addressing conservatives and libertarians, but on this debate, I think the traditional labels don't really apply. I've seen liberal/progressives argue on exactly the same lines. For better or for worse, copyright/patent debates don't seem to fall along traditional political lines. Considering that most of the American political spectrum (despite what you might hear...) does believe in basic property rights, calling copyright "property" gets lots of people to agree that it must be important to support, without having them think through the details:

Viewed up close, copyright bears little resemblance to the kinds of property that conservatives value. Instead, it looks like a constantly expanding government program run for the benefit of a noisy, well-organized interest group -- like Superfund, say, or dairy subsidies, except that the benefits go not to endangered homeowners or hardworking farmers but to the likes of Barbra Streisand and Eminem.

It looks like Superfund in other ways, too. Copyright is a trial lawyer's dream -- a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. ... It's asbestos litigation for the Internet age.

Conservatives -- and especially libertarians -- seem like a cheap date on this issue. You'd think libertarians would have been in the forefront of objecting to governmental intrusions into our lives at the behest of a special interest -- let alone the creation of a new class of quasicriminals, defined as more or less everyone who entered high school after 1996, who can be investigated and prosecuted whenever the government or some member of industry decides that they are too troublesome.

Where it gets fun is that Baker points out that you could pull the same trick elsewhere, by calling other non-property things property. For example, he tries to explain how property rights supporters could be taught to like the TSA's security procedures if we just noticed the "property rights" inherent in the discussion:

Come to think of it, maybe I can persuade readers here that TSA's new enhanced security measures are just fine -- as long as we enforce the rules by giving all the passengers on the plane a "property" right not to travel with people who refuse body imaging and enhanced patdowns. Instead of relying on oppressive government regulation, we’d just let the passengers collect millions in "statutory damages" from noncompliant travelers.

And that's kind of the point. You can create all kinds of fake "property rights," if you want to distract from what's actually going on. But it doesn't make the underlying issue property.

Filed Under: copyright, language, property, property rights

Would Copyright Work Better If It Was Treated More Like Property?

from the um,-no dept

Lawyer Terry Hart, who we linked to last month for his discussion about whether or not it was okay to call infringement theft has now written another piece arguing that those of us who point out that copyright is not property may also be making a mistake. Specifically, he points to a recent paper by Christopher Newman, which suggests that the problem might be that we don't treat copyright enough like property, and that if we treated it even more like property, many of the problems with copyright law, specifically in the area of derivative works, would be more efficiently handled. In many ways, Newman's paper is quite similar to the argument of Bessen and Meurer in the patent realm. Their research details how much the patent system is hindering innovation, and they chalk up the problem to the fact that patents are not enough like property, in that the boundaries are not clearly defined. Newman appears to take a similar position, with a few more specifics having to do with copyright.

At a first glance, there is definitely something compelling about this argument (in both the patent and copyright realms). The lack of clear boundaries in either is, certainly, part of the problem because it allows the copyright and patent holders to try to expand their ability to exclude well beyond what many people feel is reasonable or economically justifiable. So, the argument goes, if the boundaries could be more properly calibrated, and clearly stated, it would do away with the worst abuses of each system.

In the end, though, I find neither argument convincing. Both are predicated on the idea that property rights, when properly defined with clear boundaries, lead to the more efficient allocation of resources. This is, of course, the fundamental rationale behind economics and property rights. The problem? They leave out an important condition: property rights are about the efficient allocation of resources in the presence of scarcity. The real reason for property rights was to handle the allocation of scarce resources. And, in fact, property rights do a pretty efficient job of that. The problem is that when the resource isn't scarce, allocation is not the problem any more. Putting property rights on non-scarce items doesn't make it more efficient, it makes it less efficient. It's telling, then, that Newman's paper makes no mention of either abundance or scarcity.

That's not to say the analysis provided in both Newman's paper or Bessen and Meurer's book isn't interesting and worth reading, but the fundamental error of not recognizing the different fundamental issues when dealing with scarce goods and abundant goods means that the solutions presented in each seem to be answering the wrong question, set up by a faulty assumption concerning the nature of property rights.

The reason that we point out that copyright and patents should not be considered property is not because we believe, as Hart implies, that thinking that way only papers over the problems of copyright, but that, fundamentally, copyright and property rights serve exceptionally different purposes. Could clearer boundaries improve things at the margin? Perhaps, though I doubt how effective it can really be. But, focusing on property rights as a "solution" is tackling the wrong problem. We don't need more efficient allocation of creativity -- it can already be allocated perfectly efficiently, since you can never run out of a particular (digital) work. So aiming for a better property rights regime, by definition, can only serve to limit that efficient allocation and make it less efficient.

Filed Under: copyright, markets, property

Is Intellectual Property A Violation Of Real Property?

from the thinking-this-through dept

While there was a recent argument being made (weakly) that all property is intellectual property, reader Kerry Kaye recently pointed out a discussion of the opposite point of view, saying that intellectual property is actually a violation of the concept of real property. I have to admit that, while I had hoped to find the article compelling, I actually found it to be lacking in substance. At points it seems to go around in circles without clearly making a point. You could, potentially, make a case that intellectual property tries to limit what you can do directly with the output of your own mind, and that is antithetical to the concept that you have the right to make use of the output of your own brain -- which could violated basic property rights, depending on your definition of property rights. In fact, this is the part that I find most troubling about intellectual property laws (especially patents): that it effectively tells you that even if you come up with something entirely on your own, others can stop you from making use of those ideas.

Perhaps a much more compelling (though, I'm sure not to strong believers in intellectual property) discussion on a similar topic is a recent piece by Vedad Krehic, (pointed out by Michael Scott) that discusses how intellectual property laws turn IP holders against their own customers. In it, he makes a similar, but much clearer argument like the one above:

If a friend, however, lends me a music CD and if I then make a copy, so that I can listen to the music without having to borrow the disc again in the future, nobody is harmed. It is possible that I could, for example, have made an agreement or contract with him when I borrowed the disc stating that I cannot copy it. If I were to do it anyway, I'd be in violation of a private agreement. If not, who is harmed by my act of duplication? I used my own tangible property (CD drive, computer, and hard drive or blank CD) to fashion a duplicate of the data on the CD. The original CD is still my friend's property. I return it to him, and while he is no better or worse off than he was before, I am now better off. The imprint of the music on my tangible property makes that property marginally worth more to me, as I can enjoy its use to a greater extent than previously.

Was anyone harmed at any point here?

Yes -- if you choose to believe the consumer entertainment industry. They claim there was a third party here that was being harmed. Can you see the third party? There was me, and there was my friend. There was my property and that of my friend. I don't see the third party anywhere in that process. I suppose my friend could have been in a contract with the person or organization he purchased the CD from not to copy it, but I wouldn't have been bound by that contract. Either way, I did nothing wrong.

And this is where the trouble comes in for intellectual property versus real property:

Can anyone please explain to me how someone can be a just owner of something, yet not be allowed to exercise his or her ownership rights over it? He can throw rancid tomatoes at the painting, but not duplicate the pattern that makes the painting a painting, rather than just canvas and paint? Or, to use a different type of copyrightable pattern, how can someone own their own brain yet not own the part of it containing a song they memorized?

The logical conclusion is that the natural right of property and the idea of copyright, and of intellectual property in general, are fundamentally incompatible and conflict sharply. You cannot own something and have someone else dictate to you what you can and cannot do with it, without that being an element voluntarily arrived at through contract. In absence of a contract, the dictating party is initiating aggression against the just owner of an item. Intellectual property is an assault on tangible property.

And that's the problem that we keep pointing out around here that troubles us so much. There are many -- especially in copyright debates -- who insist that those who don't agree with copyright law should just avoid supporting those who do. But they ignore how copyright law is used, regularly, to limit what should be fundamental property rights of individuals to do as they please to products they legally purchased.

In fact, Krehic then takes this further, and notes that much of the entertainment industry's troubles today may be traced back to the fact that it has aggressively tried to use copyright law to stop people from doing what they want with their own property, and it's that mistake (which they keep compounding) that has resulted in customers defecting, rather than any issue of "piracy." Again, it's easy to predict that intellectual property supporters will scoff at this and dismiss it as ridiculous, but there is growing evidence to support this position. As we've seen over and over again, content creators who learn to embrace file sharing and the power of new technologies, while connecting with fans, and providing a smarter business model, have been thriving. It's not piracy that's causing harm, it's bad business model choices, and many of those bad business model choices are driven by an over-reliance on the "crutch" that intellectual property provides, which gives firms the ability to take away property rights from individuals.

Filed Under: copyright, intellectual property, property