We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Forming an opinion about intellectual property

I have been on the fence about intellectual property for a long time. The suicide of Aaron Swartz set me thinking about it again.

The non-aggression principle allows the use of violence in defence of property. This is because if I spend an hour of my life mixing my labour with the land to make a widget, and then someone steals my widget, they have stolen an hour of my life. Some might say that if I spend an hour of my life on some intellectual pursuit then it is possible for someone to steal that hour of my life by stealing my ideas. Violence is then justified in response. But is that really what is going on?

Imagine I spend time writing a novel, print it on paper, then hand over the printed paper to Bob in exchange for money. Bob copies my novel out onto another piece of paper and sells it to Charlie. Clearly no theft has occurred; the state of my possessions is unchanged. If I devote a significant portion of my life to writing a novel because I hope to make a profit, and Bob makes so many copies that I am unable to, still no theft has occurred. I still have the original copy of the novel I wrote. What I have done is mix my labour with paper and ink to make some paper with a novel written on it. That it takes intellectual effort to make a novel that people want to read rather than paper scrawled with gibberish does not make Bob’s actions into theft.

Perhaps I can come to some agreement with Bob. I sell him my novel if he agrees not to make copies of it or let anyone else see it. If he does, I can attempt to punish him in some way appropriate to breaches of contract. When Bob shows my novel to Charlie and Charlie makes a copy of it, I can punish Bob. But I have made no agreement with Charlie, who can make copies with impunity.

If it is difficult to make copies of novels and only a few people can do it, I might be able to make a business selling paper copies because no-one who is able to will want to break agreements with me. But once someone invents a device that allows anyone to easily make copies, my profits will be affected. But still no theft has occurred. I can not resort to violence.

If I am clever I might invent some way to encrypt my novel and make sure it can only be viewed on devices registered to specific individuals all of whom have made agreements with me. But if David, who has made no agreement with me, examines the device, finds a flaw in it, and starts to make copies of my novel, still no theft has occurred. David is using his ingenuity to modify objects he already possesses.

Aaron Swartz copied scientific papers onto his computer. He did this by getting his computer to ask JSTOR’s computer to transmit them, and JSTOR’s computer did so. For this he faced 35 years in jail.

55 comments to Forming an opinion about intellectual property

  • Paul Marks

    I have no strong opinions about IP – but people should not cooperate with the American Federal “justice” system.

    As Rob points out – if it were not so brutal and disgusting, the Fed “Justice” system would be a farce.

  • Jaded Voluntaryist

    99.999% of the laws that lawyers make so much money from, and governments make so much misery from, could be replaced with a single sentence:

    “All contracts are binding and should contain agreed methods of restitution in the event of a default”

    This is true of IP issues as well as everything else.

    When I tried to write down the number of laws a country actually needs, I ran out of ideas somewhere in the teens. There are surprisingly few laws actually required for a civil society to function.

    By collapsing offences like rape into laws about assault, you could probably get the number under 10.

    A law so simple you don’t need a professional to explain it to you could only enhance the cause of justice. British law is currently so opaque as to be essentially non functional for Britons who do not have access to quality legal counsel. They have no defence at all.

  • Paul Marks

    Agreed JV.

    If there has to be state law – it should be a simple code that can be read in a (large print) small book.

    “But Paul the Common Law tradition” – it may have been good once but it is a pile of pants now.

    “But Paul the elected legislature” – having an bunch of politicians whose job it is to constantly try and add more laws and change existing ones, is barking mad.

  • Johnathan Pearce

    This might be of interest regarding intellectual property, a subject on which some libertarians take diametrically opposite views.

  • I’d not heard of the story of Aaron Schwartz, but it sounds terrible. His trial was on hacking and fraud charges though, not for infringement of anyone’s intellectual property. In your example, that corresponds better to Bob physically stealing your manuscript and then leaving it somewhere so that Charlie can borrow it any time he likes.

    Anyway, the justification for IP is not that it is morally wrong or unfair to copy. If it were, there would not be so many aspects of life where copying was positively allowed, or expiry dates for all forms of IP. The justification is simply that we as a society like to have the benefits of inventors, writers, artists, and so on, and the existence of IP makes the difference between it being worth the effort or not, for enough of them. Not all of them, granted, but enough of them.

  • Two points:

    1. To paraphrase Richard Stallman, there is no such thing as “intellectual property”. It is an ahistorical propaganda term. There is copyright, there are patents and there are trademarks.

    2. To play devil’s advocate: the statement “He did this by getting his computer to ask JSTOR’s computer to transmit them, and JSTOR’s computer did so.” is just reductionist and not helpful. It is akin to someone who who doesn’t like sports saying “football is just 22 grown men kicking a pig’s bladder around a field” or more relevantly saying of a cat burglar “he just put the right combination in the safe and it gave him the money”.

  • David C

    Tying the report of the suicide of a clearly talented but troubled person to a discussion of the rights and wrongs of IP is the sort of stunt we expect from low-life politicians. I expect better from Samizdata.

  • Rob Fisher (Surrey)

    Charles Pooter: the purpose of my “reductionism” if that is what it is, is to strip away rhetoric and figure out what is actually going on. For the purpose of making laws, football probably should be treated as if it was just 22 grown men kicking a ball.

    patently: there’s nothing physical about it. According to my second link the documents were on a web server. That’s why I described it in the way that Charles Pooter took issue with.

    David C: no stunt intended.

  • Simon Jester

    @David C: Would you have deemed it a “stunt” if you read an article linking the death of Alan Turing to British laws on homosexuality in the 1950s?

  • Lee Moore

    From the link – “Aaron wrote a handful of basic python scripts that first discovered the URLs of journal articles and then used curl to request them.” This means absolutely nothing to me, but I infer that he did various computery things that ordinary users of the service would not need to do in order to use the service normally. I have seen elsewhere various reports that indicate that he knew he was using the service in a way that the providers did not intend, including hiding in cupboards, and indeed using the very open MIT access instead of the one at his own institution. Anyway, the point for today is not whether he knowingly did something that was outside the terms of use, but whether if he had done so, that is a proper subject of interest for the criminal law.

    Because it’s computery, it’s difficult to think up analogies from the real world, but I’ll have ago. No one’s physical property was diminished. The server with all the stuff on it still exists , and though a few electrons may have skimmed round it in an unauthorised fashion, that’s not akin to stealing a valuable Greek urn, it’s akin to stroking it but leaving it undamaged. So the first question is – if you own some physical property, and you let people stroke it for a fee, but someone works out a way to stroke your property without paying you (eg walking into your garden and stroking your unicorn statue, while you’re away on holiday) is that something that the criminal law should take notice of ?

    The second question is the idea of a “theft of services.” If I build a theatre, and hire actors, put on a play and charge for admission, what is the position of a chap who works out that he can climb up round the back of the theatre, open the unlocked window (but without damaging it) and from there nip down the back stairs and join the throng in the bar, before the performance. Is the fact that he’s got in without damaging anything OK ? Or does the fact that he knows that he does not have my permission to be there, and he does not have my permission to watch the show for free make him culpable ? Would it make any difference if he also had to engage in a little subterfuge ? eg suppose he knows there’ll be a ticket check, but all he needs is a little orange ticket and he can buy a book of them for 5 cents round the corner (cos that’s where I get mine.) So he can get round the ticket check OK, but without damaging any of my physical property. How hard do I have to try to exclude him before his behaviour becomes criminal ? Is anything he does OK, so long as my physical property is undamaged (and not prevented from being used by me) ? I’m quite happy to accept that if I build an open air theatre, and he climbs up onto his own roof and watches the show with his own binoculars, that’s just him using his own property. But if I take the trouble to enclose my show in my own building and take steps to exclude non payers, then what’s the deal ? (Anyone who doesn’t like the analogy of him physically being on my property can adjust it in one of two ways – (a) he sends his own video cam mounted on a little drone into the theatre and tapes the show, while all along he stays in his own house or (b) he tells one of my usherettes (untruthfully) that I have asked him to ask her to tape the show on this video camera which he hands over to the usherette – would she please tape the show and give him back the camera and the tape afterwords (ie his videocamera is now on my premises with the full consent of my servant, and the show is actually taped by my own servant – all he’s done is a little lying.)

    I’m not asking what the law is, just what it should be from a libertarian perspective.

  • Lee Moore

    re Turing – some doubt thrown on the suicide theory :

    http://www.bbc.co.uk/news/science-environment-18561092

  • The guy was a burglar because he covertly broke into someone’s network, so although I am agnostic on the IP issue, I am not very sympathetic regarding the guy who topped himself regardless of the undeniable ghastliness of the US ‘justice’ system. I agree with Charles Pooter’s remark that it is a bit like saying of a cat burglar “he just put the right combination in the safe and it gave him the money”.

    This bloke should indeed have been prosecuted for in effect “breaking and entering”, and IP issues are neither here nor there.

  • Robert

    On Schwartz, the main complaint seems to be that the prosecution was heavy handed. What he did was illegal, but threatening him with up to 35 years in jail was disproportionate. This is a common part of the US plea bargain system – threaten the accused with lengthy sentences so they plead guilty, saving the cost of a court case – which seems like a practice open to abuse.

    On intellectual property, if Brian makes money selling Anna’s book, without being honest about who wrote it, he’s deceiving his customers. If he tells people he’s the author, or even just deliberately implies it, he’s obtaining money by deception, a form of theft, since most people would have paid less had they known.

    Whether this should be a criminal or a civil matter is a different question, but it is pretty clearly not desirable behaviour.

    Some may say Caveat Emptor, let the buyer beware. That sounds good, but the due diligence it makes necessary adds to transaction costs, the main thing (after government interference) that stops the free market working perfectly. Increased transaction costs are not a good thing.

  • DOuglas2

    He started by just requesting turning the handle and opening the door. JSTOR decided he was unwelcome and started locking the door.
    He understood locks, and was able to determine a key pattern and cut that would unlock the lock and open the door, and continued his quest.
    JSTOR saw that someone was unlocking the locks, and changed to a lock provider with controlled key pattern distribution.

    I’m not sure of the analogy between a door lock and hiding a computer in a closet so that it can be part of a wired network. Is that like hiding in someone’s attic when you are afraid that your access to their house might be ended?

    Once again I’ll point out the world of fashion as an example where lack of copyright hasn’t stopped the existence of large profitable design houses.

  • Rob Fisher (Surrey)

    Lee More: I think it’s trespass if he enters the building. But if he films the performance from his own property through an open window it’s your fault for letting the photons escape into his camera.

    In the same way, if I put my novel on a web server, and arrange for it to be served up if someone visits http://robfisher.net/my_novel.html and someone figures out the URL… Not a place for criminal law. Web servers serve the URLs they are asked for. There’s no point getting into what my intentions were; the behaviour of the web server is written down in the Apache source code and the HTTP standard. Effectively, someone is asking politely for my novel and I am saying, OK, here it is, no strings attached.

    Using Python and curl to do this is no different from using a web browser or any other software.

  • Using Python and curl to do this is no different from using a web browser or any other software.

    Which is a bit like saying if your locks are not good enough on your house’s door, it is not really trespass if someone uses a more sophisticated method to unlock said door so they can come inside and poke around. And if they find some money sitting on a table once they have entered, is the owner really saying “OK, here it is, no strings attached”? Really?

    The mere fact someone has not triple dead bolted a door does not change the fact when someone comes uninvited onto your private property, they are trespassing. And if they take property they find after trespassing, they are a thief against whom the violence of law should be used. Even if you leave the door unlocked and open, this may be very unwise but it does not mean you lose title to the private property in question.

  • llamas

    I am very sorry that Aaron Swartz felt compelled to make away with himself as he did. Shame on the US prosecutor for hounding him to this extreme.

    However, I agree that his case is a poor jumping-off point to a discussion about IP (which we may take as shorthand for patent and copyright).

    While Swartz may well have infringed the copyright of the owners of the documents he copied, that is not what he was prosecuted for, because you can’t be prosecuted for copyright infringement, because it’s not a crime – it’s a tort. It is already a civil/contract matter.

    He was prosecuted for his illicit and unapproved entry/access into the systems where he made his copies. A good physical analogy would be that he illegally entered a library with a photocopier strapped to his back, and commenced to copying the books. He was not prosecuted for copying the books, because that is not a crime – he was prosecuted for the illicit and unapproved entry.

    Now, the legislature has created a special class of crime in these cases, which you might call ‘crimes committed in contemplation or furtherance of a copyright/patent infringement’, and attached heavy penalties to them – much heavier than for the same offence committed for another reason. Swartz’s acts, if he had committed them for any other reason, or no reason, might have not even risen to the level of a criminal trespass. But that doesn’t change the fact that the crimes he was charged with had nothing to do with the actual acts of copyright infringement which he committed (let’s stipulate that he did do these things, just to save me from typing ‘allegedly’ another 463 times).

    Let’s be crystal-clear – if you infringe copyright, or a patent, without committing any other offense in doing so, you will never hear from the FBI, or the Federal prosecutor, or indeed from any law-enforcement agency at all. These acts are simply not within their remit. The task of enforcing those IP rights falls to their owner, and if anyone comes after you, it will be him – with a suit in Federal court, either for damages, or for a restraining injunction, or both. To be sure, you will have to comply with the orders and process of the court, and you may well get into trouble with the court if you do not – but that is no different than if you were sued for the breach of any other contract.

    Patents and copyrights are nothing more than a special class of contract between individuals that is created by the Federal government, as mandated by the empowering clause of the Constitution. But that is the end of their power – to create the contract. The Feds are not empowered to enforce that contract and there is no statutory sanction that they can apply to anyone that breaks it. In fact, the only statutory sanctions the Feds have in patent matters are applied exclusively against the applicant for or holder of the monopoly contract they create. The Feds have no power to act against anyone who infringes on a patent – but they do have powers to act against (for example) a patent applicant who knowingly makes false statement. For that (in theory), you can go to the Federal clink (USC 18:1001).

    Now, having that clearly understood – and it’s suprising how many people do not understand the true nature of patent and copyright and the position of the Federal government – we can talk about forming an opinion about intellectual property. Many people say that it should be a contract matter, overlooking the fact that it already is. It’s just a special kind of contract.

    Discuss.

    llater,

    llamas

    Full disclosure – llamas is the inventor of a suprisingly-large number of US patents, so has a non-impartial interest in matters of intellectual property. I worked my synapses to the bone to conceive the things that I patented, and I take an extremely-dim view of jokers who swan around saying, ‘well, there’s no physical property, and I didn’t use violence, so there’s no reason why I can’t copy and sell what you devised for my own profit’. Just because you didn’t carry anything physical away, or take it by force, doesn’t make it any the less theft.

  • Paul Marks

    The issue of IP is quite different from the fact that the American Federal “justice” system is savage and unfair.

    The two things must not become confused.

  • Jaded Voluntaryist

    Indeed Paul.

    The problem with modern intellectual property law is that is places burdens on people with whom you have no contract. So if you patent a “greeble”, and I quite independently invent an identical “greeble” and you get to hear about it, you can sue my ass off. I don’t think that can be considered just.

    The only way I could see anything like IP working in a minarchist/libertarian society would be in a greatly scaled back form which deals with agreements between individuals.

    Atomic Zombie provide a good example of how this could work. When you purchase the plans you agree not to redistribute them, and yet they manage to make money selling an “idea” by virtue of a loyal customer base and good word of mouth. They are highly regarded in the home bike builder movement.

  • llamas

    JV wrote:

    ‘The problem with modern intellectual property law is that is places burdens on people with whom you have no contract. So if you patent a “greeble”, and I quite independently invent an identical “greeble” and you get to hear about it, you can sue my ass off. I don’t think that can be considered just.’

    Not so. If you can prove you invented the greeble before I did, you can have the patent invalidated and be home free.

    No, I’m joking, of course. The US system has always embraced this principle of natural justice – the first-to-invent has the right to the benefits of the invention, regardless of who patented it – but naturally, something so proper and orderly is too much for the Congress to tolerate and they are busy changing the law to the iniquitous European notion of first-to-file – which will create the situations you describe. Thank the Congress for this act of inquity, a pay-off to big corporate donors. It flies in the face of the clear and unambiguous wording of the Constitution. Amoral scum.

    But I’m not personally invested in this issue, heavens, no. :-)

    On a separate point, allowing the defence of ‘independent’ invention creates nothing more or less than a thieves’ charter.

    You wrote :

    ‘The problem with modern intellectual property law is that it places burdens on people with whom you have no contract. ‘

    I know what you mean, but it is not quite true. You do have (effectively) a contract with the owner of a patent or copyright – it is a special contract, a limited monopoly created by the Feds, and it was not entered into specifically and voluntarily by you, but rather was created from the Constitution and the powers it creates. You may well argue that a contract that you did not knowingly and voluntarily enter into does not bind you, and I have some sympathy with that viewpoint – all I can say is that I feel that this is a case where the imposition of a general contractual obligation in favour of one individual is the least-worst solution to a very knotty property problem. Bless their hearts, it’s the one thing the Feds actually do quite well, or at least, until this scandalous perversion of the law was put into effect.

    You might as well argue that you are not constrained from taking the property of another who has left it lying around where you can pick it up, because you do not have a specific contract with the owner wherein you agreed not to take that specific piece of property. Not every matter of human interaction is amenable to the simplicity of volntray contract, not should it be. This is one place where the pure and unsullied perfection of Libertarian principles stumbles on an unfortunate outcropping of reality.

    llater,

    llamas

  • Jaded Voluntaryist

    That’s all well and good Llamas, but if in the pursuit of fairness to inventors we end up criminalising entirely innocent parties I think we have to ask ourselves if this is something we really want government to be involved in.

    It seems simpler and less open to abuse to place the onus of protecting their property on the owner as it is in other areas. They can use whatever means they please, be it end user agreements or DRM or whatever, but nothing can make it just to hold a person accountable to a contract they didn’t consent to or even know to exist.

    If a Idaho mountain man goes into his metal shop and makes up some Greebles which he invented by himself to sell by the roadside, he should owe Greebles International™ nothing, since he has no agreement with them and indeed has never heard of them. To say otherwise is to say the government has the right to regulate what a man does in the privacy of his own metal shop, and that is I think a very dangerous precedent.

  • PeterT

    I agree with llamas that there is no real distinction between physical and intellectual property. In both cases its theft causes a loss to the owner.

    However, the level of rights abuse that is necessary to effectively police intellectual property crime is unacceptable. This is I one reason for why the punishments for IP crime can be so severe; to tilt the risk benefit calculation of the would-be criminal.

    The punishment must also fit the severity of the crime. I certainly do not think life time in jail is appropriate for an intellectual property crime or for that matter a breaking and entering crime or a combination of both. Neither do most people; especially the young. There is no way a representative jury of the people would have given this chap a 35 year sentence. Unreasonable laws are not respected. They also undermine the legitimacy of those who make the laws.

    Unfortunately those who rely on IP to make their living must accept lower income or else change their occupation. This is tough on those who made their education and career decisions some time ago. But the alternative is the infringement on the liberty of everybody else.

    There is a related issue which is that of net neutrality. I don’t understand this well so please bear with me. I believe what those who advocate net neutrality do NOT want is an internet where those who provide the infrastructure have a greater say on content and charging models.

    It seems to me that there is no reason why a fully private internet, where the infrastructure providers do have say on content and what goes on could solve quite a lot of copyright theft problems.

    While I accept the “just because its private doesn’t mean its ok” argument, I suspect there could be enough competition to provide a diversity of supply models, and liberty and privacy themselves may attract a premium.

    Networks are given value by their content, and surely there must be some way of having this flow back to the creators of the content? Anybody know why this doesn’t seem to be happening? Or is it?

  • llamas

    JV – two points. You wrote:

    ‘That’s all well and good Llamas, but if in the pursuit of fairness to inventors we end up criminalising entirely innocent parties . . .’

    Note (as decribed) that patent and copyright infringement are not criminal matters, and so nobody is criminalized. And they may very well be ‘entirely innocent parties’, as you suggest – but on the other hand, they may be powerful and amoral entities who set out to deliberately screw over an inventor for profit. For an example, see the case of Robert Kearns.

    It’s been my experience that very few parties to any patent dispute have entirely clean hands.

    You then wrote:

    ‘If a Idaho mountain man goes into his metal shop and makes up some Greebles which he invented by himself to sell by the roadside, he should owe Greebles International™ nothing, since he has no agreement with them and indeed has never heard of them. To say otherwise is to say the government has the right to regulate what a man does in the privacy of his own metal shop, and that is I think a very dangerous precedent.’

    Well, there is some contradiction there – the IMM is not simply making greebles, but selling them to the public, so it is no longer something he is doing in the privacy of his own shop.

    However, I agree that there is the potential for danger there, and it needs to be watched carefully.

    Now, that being so – what do you suggest as an alternative? Bear in mind that patent or copyright infringement rarely involves IMM making a single infringing specimen, but large manufacturers making things for large profits. This is sespecially true in cases where the marginal costs are trivial, such as music and software piracy. What do you suggest?

    llater,

    llamas

  • Jaded Voluntaryist

    I suggest restricting the law to penalising those who have demonstrably violated confidentiality agreements or EULA’s. In cases where this cannot be demonstrated it should not be a matter for the courts.

    Companies should take appropriate measures to secure their intellectual property in response to the obvious hazards this creates.

    Although this would not be without its problems, this approach would also create benefits. Without the artificial intellectual safe harbours created by IP law, innovators would be compelled to keep doing just that – innovating. Since IP could at best be protected for a few years at best, there would be no time for resting on one’s laurels.

  • llamas

    JV wrote:

    ‘Companies should take appropriate measures to secure their intellectual property in response to the obvious hazards this creates.’

    All right, I’ll stop laughing now, and bite on the offered worm:

    Here’s an example.

    The last US Patent issued to me was for a novel electro-mechanical mechanism used in (a consumer-like product that many of you see every day). It provides a desired function in a way that reduces product cost and complexity, when compared to prior art. The examiner obviously agreed that it was ‘new, novel and unobvious’, because examination established that nothing like it had ever been made known previously.

    You can take my word for it that it is actually an incredibly elegant and un-obvious solution. My employer was panting for it (because of the cost savings) and put it into production on the first day that the lawyers said he could. He paid me an absorbent bonus for the work, because it stands to save him a bunch of money and make our product more-attractive.

    Now, it involves no materials or methods which can be kept a secret. It uses materials and components which any skilled mechanical engineer would recognize or deduce, simply by looking at the invention and watching it work. It cannot really be hidden, because the way it functions is integral to the parts of the construction that are visible to the user. It cannot be covered or secured from view, and therefore, from understanding – else it is useless for the purpose for which it is made..

    Now, you tell me – what ‘appropriate measures’ could I take to ‘secure’ this invention?

    And if it’s hard for me – what ‘appropriate measures’ can a writer, or a composer of music take to ‘secure’ their property?

    You wrote:

    ‘Without the artificial intellectual safe harbours created by IP law, innovators would be compelled to keep doing just that – innovating.’

    Real-world experience suggests the exact opposite – that without the safe harbours created by IP law, innovators will simply cease to innovate because there is no ability to profit by their innovation. When you run the risk that your total sales will be 1 unit – the one needed to copy your invention and market it without having to pay for the investment it took to create – why would you bother?

    If Edison had not had the ability to patent the light bulb, he would never have bothered to start working on developing it. The device has such obvious utility, and such an amazing attraction, and yet is so simple to replicate, that it would have been copied within days of its first sale, and there is nothing he could have done to ‘secure’ his innovation from copying. Any competent chemist could have figured it out in hours, from a single example.

    So all this talk of ‘appropriate measures’ is just balderdash – the perfection of principles stubbing it’s toe on a nasty outcrop of reality.

    Exits, still laughing . . . . .

    llater,

    llamas

  • Jaded Voluntaryist

    Well I guess 5000 years of recorded human history and progress was just a blip. Without the protection of IP, why did man ever bother doing anything at all? Many have made the observation that prior to the advent of copyright, artists were more productive, not less.

    Look at the output of Mozart or Shostakovich compared with any modern musician. They weren’t selling a patented, copyrighted, IPified product. They were selling “something new from Mozart”, and that’s what people came to see. Modern popular musicians on the other hand have a couple of late nights in the studio, and then they milk it for 6-9 months while sitting on the beach. It could be argued that IP in this case stifles and impoverishes the outcome.

    There are benefits to be derived from creating something the world has never seen before, and they are not contingent on the attached right to sue me into the next century for trying to copy your awesome idea.

  • llamas

    Oh, dear. Suggest you go and study the history of copyright law.

    English statute copyright law is at least 300 years old, and Royal grants of copyright almost 200 years older than that. Venice was granting enforceable copyrights in the late 15th century.

    Shostakovitch’s original works (on the printed page, at least) were certainly protected by copyright law.

    There has been more invented, written, published and devised in the last century than in all of human history prior. Some days in our modern world produce more innovation that entire centuries of prior human history. This idea of an idyllic past filled with innovation and artistic creativity is completely at odds with actual history.

    Comparisons with the world of 5000 years ago are simply fatuous. If you would like to return to those conditions, be my guest – I’ll stick here, even if it means I can’t steal somebody else’s work and sell it for a profit.

    ‘There are benefits to be derived from creating something the world has never seen before . . . ‘ Indeed. And the only way to keep creating such things is to protect those benefits – and not to give them away to all comers. Destroy the motive to innovate, and you destroy innovation. If you grow corn, and nothing prevents anybody from walking up to your silo and tapping as much as they want – how long will you continue to grow corn?

    I note you have no answers to my real-world examples. Come back when you do.

    llater,

    llamas

  • Jaded Voluntaryist

    If you grow corn, and nothing prevents anybody from walking up to your silo and tapping as much as they want – how long will you continue to grow corn?

    Ideas aren’t corn.

    If you have a good mind and can think, but occasionally lesser men copy your ideas, do you simply stop thinking?

    Virtually every successful thinker of the modern age will have faced this very dilemma while in high school. Most of them did not simply give up on trying.

    There are tangible benefits to be had from creating new things without necessarily getting to dine out on a single idea for the rest of your life. You gain those things for your own personal use. You get prestige. You establish a reputation as a person who can create such things, a skills base people are willing to pay for. And you gain a degree of power over your invention because you know it better than anyone, and can anticipate problems and visualise opportunities creating by this new thing.

    Just because once something is out in the open it is hard to protect does not mean people will stop trying to get an edge. R&D and initial production runs are already closely guarded secrets in industry. A company that shows itself able to continually innovate will leave its competitors forever playing catchup unless they try and do likewise.

  • Paul Marks

    The big manufacturing power is going to be China.

    And China does not care about our copyrights and patents.

    Oh it may execute a few violators now and then (as a PR stunt) – but only because bigger operators are producing the stuff.

    So – defenders of IP.

    Invent technological ways of defending your property – if you rely on patents and copyrights you are sunk.

  • Paul Marks

    I suspect that people are going to have to be a lot more secretive in future.

    There is a story (I do not know if it is true) that the Hittites kept the secret of iron making for centuries.

    “How do you make that stuff”.

    “If I tell you – you, and everyone else, will be able to make it to”.

  • Jaded Voluntaryist

    Don’t know about that one Paul, but the Indians did such a good job of concealing the techniques required to make Wootz steel that when the last person who knew how died sometime prior to the 19th century, the technique was completely lost.

    Experimental archaeologists are still trying to figure out how to reproduce it. And since they don’t know how to make Wootz steel, they’ve also lost the technique for making Damascus steel which was derived from it.

    Some of the Ancient materials technology was surprisingly advanced.

  • Paul, China already is the big manufacturing power – has been for a couple of decades now. This is not about manufacturing, this is about inventing and designing – things that for the most part are not being done in China, at least not on the scale that manufacturing is done. The reason that inventing and designing are not being done in China on a large-enough scale may well be what Llamas is getting at – or maybe not.

    I agree with Llamas that inventors – and creators in general – should be able to protect the products of their creativity in order to benefit from them. However, I am far from certain that the existing government-sanctioned schemes are the optimal way to do this, and that they do not harm those same creators in the long run. I think that JV has it right in this regard, and that the best way (and ‘best’ does not mean ‘perfect’) to do this is through various contracts tailored to various products. That, and creators using various technologies to protect their ideas from theft. In fact, such technologies can grow into a whole new field where creative people may play with their ideas and benefit from them – i.e. sell them.

  • Paul Marks

    Yes Alisa – the Chinese (at the moment) are not designing much.

    But they are making stuff – so if people want to protect their IP they had better find technological ways of doing it.

    Patents and copyrights will not do the job.

  • Paul Marks

    JV – I was ignorant of the Wootz steel matter.

    And we can not make real Damascus steel?

    Ouch.

  • Paul: of course. I should not comment when tired.

  • Perry: As stated, I was playing Devil’s advocate. Copyright is not analogous to physical property. Llamas: fuck your constitution and the horse it rode in on. It has no more bearing on ethics or morality than the rules of snakes and ladders.

  • Steven

    However, the level of rights abuse that is necessary to effectively police intellectual property crime is unacceptable. This is I one reason for why the punishments for IP crime can be so severe; to tilt the risk benefit calculation of the would-be criminal.

    The punishment must also fit the severity of the crime. I certainly do not think life time in jail is appropriate for an intellectual property crime or for that matter a breaking and entering crime or a combination of both. Neither do most people; especially the young. There is no way a representative jury of the people would have given this chap a 35 year sentence. Unreasonable laws are not respected. They also undermine the legitimacy of those who make the laws.

    Theft is theft, no? Does it matter if the thief steals my car or the intellectual work I sell? If I am a musician and make my money selling my music, when someone distributes my music for free to 1 million of his closest friends to enjoy, I’m losing out on sales. He’s stealing my customers from me by giving them my work without me ending up with money in my pocket.

    Now, if I recognize that my music on the web is a great advertising opportunity, or if I see that I can get new fans who enjoy my music and then want to go to my show or buy more of my music, then that’s great so long as it is my decision to make. Some kid who puts my entire catalog online at PirateBay or something is depriving me of that decision. Someone who has no stake in my business is making that decision for me. It can be to the tune of millions of dollars in some cases. Why shouldn’t someone stealing millions of dollars from someone’s wallet be sent to prison for decades?

    (That said, I do hope that the suits who run the RIAA and MPAA have long and slow horrible deaths from terminal cases of butt herpes. They aren’t suing for the artists who they supposedly represent and who get screwed, but rather to line their own pockets.)

    Unfortunately those who rely on IP to make their living must accept lower income or else change their occupation. This is tough on those who made their education and career decisions some time ago. But the alternative is the infringement on the liberty of everybody else.

    If I’m a musician or author or filmmaker or what have you, how is it an infringement on someone’s liberty to want to protect what is mine by demanding theives end up in prison? If it was a person who kicked in the door of the local bookstore and was physically handing out copies of a book, there would be no discussion on prison beaing earned, so why is electronic rights to IP so much different?

  • Rich Rostrom

    Aaron Swartz was a very clever young man who decided that JSTOR’s documents should be made freely available to the public. JSTOR didn’t agree, so Swartz in his superior wisdom decided to overrule them. The documents weren’t his to publish, but he imagined that his superior wisdom entitled him to do so.

    He broke the law to do it, and was caught. Like a lot of overprivileged people immersed in left-wing thinking, he was sure that his “idealism” and “civil disobedience” were a get-out-of-jail-free card.

    He was utterly stunned to find out otherwise, and couldn’t deal with it.

    He was offered a deal – plead guilty to the charges and serve no more than six months. He was warned that if the case went to trial, and he was convicted, the prosecutors would seek a sentence of seven to eight years. Thirty-five years was the maximum possible sentence if convicted on all counts, and maximum sentences are almost never imposed.

    There are genuine cases of prosecutorial overreach. This isn’t one of them.

  • Paul Marks

    Alisa – then I should never comment at all (being both tired – and bad tempered).

    The late Enoch Powell summed it up well….

    “Each morning, when I wake up, I feel terrible – I believe that I am dangeriously ill and think of calling a doctor… Then I remember that I am 80 years of age.”

  • Rob Fisher (Surrey)

    Rich Rostrum wrote: “He broke the law…He was offered a deal – plead guilty to the charges and serve no more than six months.”

    And I’m arguing that the law is an ass. That six months is just the result of plea bargaining, hardly rule of law.

    Perry de Haviland wrote: “a bit like saying if your locks are not good enough on your house’s door, it is not really trespass”

    I don’t see that there are necessarily locks, doors or a house. If you connect a web server to a network it will behave according to RFC 2616. Asking it for a document according to that protocol is a polite request.

  • Jaded Voluntaryist

    Although (now I’m playing devil’s advocate) JSTOR make no secret of the fact that they want you to pay for articles.

    Even if he was able to access them using nothing more than a “polite request”, he was still committing a crime of dishonesty. He used a University subscription intended for individual researchers to try and download their entire archive with the intent of then giving it away and driving JSTOR out of business.

    To continue your metaphor, it would be akin to walking into a store with your company account card, waiting till the owner wasn’t looking and then politely asking the slightly dim stock boy to charge the entire contents of the store to your company and then load it onto your truck.

    Now I’m quite willing to entertain discussions about everything that is wrong with the academic journal system. I agree it is deeply flawed and corrupt. But given the law as it stands, there is no question that what Swarz did was wilfully dishonest and illegal.

    In academia there is a lot of healthy rebellion against the puritanism of the journals. It is very common for researchers to post .pdfs of their own published articles on their own websites so that anyone can download them. Since they still own copyright on the article, but the journal owns the copyright on that particular typesetting and printing, it is something of a grey area that the journals have chosen not to pursue. Academics do this because it increases their citation rate.

    For people in the know it is already fairly simple to bypass the journal pay walls when you need to. What was to be gained by trying to violate every single copyright JSTOR owned at the same time?

    It seems like egotistical grandstanding that backfired spectacularly.

  • This is not Devil’s Advocacy, but rather entirely on the side of the angels, JV. Theft as a concept has nothing to do with the physical, and everything to do with the philosophical. It has nothing to do with bricks, doors, windows or locks. It has everything to do with the simple idea of consent.

  • Paul Marks

    I detest the whole system of plea bargaining – not do I believe it is “needed in the modern world” (which is the standard excuse for it).

    Only a few years ago the practice of plea bargaining was still unknown in Germany – was the Federal Republic of Germany not part of the “modern world”?

  • Steven

    I can see the untility in the plea bargin. Someone is caught red handed, everyone knows they are going to prison because they were caught red handed, so why not allow the criminal to confess for a lighter sentence just to keep the courts from being backlogged worse than they already are (and save the taxpayers a few bucks in the process)? Still, I’m not thrilled with the shotgun approach that prosecutors use of charging a defendant with everything under the sun and then hoping the wrongly accused with plea down just to inflate stats.

  • R7 Rocket

    If those scientific papers are privately funded, then Aaron Swartz is a thief. If they are publicly funded by taxpayer dollars, then Aaron Swartz has already paid for them with his taxes. Tax subsidized scientific papers should not be behind paywalls.

  • Steven

    Which is a main point in the argument for Open Access. Why should it cost thousands and thousands per year in subscriptions and licences when the only thing the journals are supplying in the typesetting, the editing, and printing? They aren’t writing the papers (in some cases the scientist writing has to pay for the article to be published), they aren’t writing the grant proposals, they aren’t refereing or reviewing the articles, they aren’t even allowing reprint rights to the scientists writing in some instances. Not to mention the whole “scientific discoveries should be made available to everyone in the world” angle that science has.

    However, the journals have two things in their favor. 1) They can claim, and rightly so, that the money the journal brings in pays for these conferences and that the organizations, who typically own the journals, depend on. Normally the journal and access is part of the dues and the money charged for access is charged to non-members like libraries which do provide those texts to anyone who walks in the front door.

    2) With some journals, there is a ton of prestige attached to being published in a particular journal. Having a paper publish in Nature, or Science, or JAMA, or the Lancet is a big deal. Papers in the big journals are the most cutting edge research and/or paprdigm shifting papers. Not having those kind of major journals might mean that majorly important papers get lost in the shuffle and noticed by almost no one, but the ego question comes into play. Scientists aren’t in it for the money, but having multiple publications at that level might be the difference between getting funding or not getting funding based on track record (or getting tenure or recognition for one’s facility).

    Personally, I’m angling towards Open Access, but maybe a slightly modified version like giving the journals exclusivity rights for a year or something and then allowing the work to become open to everyone. There’s a pretty good (and short!) video about the issue from PHD Comics https://www.youtube.com/watch?v=L5rVH1KGBCY

  • Sceptical Antagonist

    @R7

    Very astute. Well done, that man.

    @all

    I’m surprised no-one has mentioned WikiLeaks in the context of all this; or is that a dirty word these days?

  • Paul

    Steven:

    Theft is theft, no? Does it matter if the thief steals my car or the intellectual work I sell?

    Yes, it does matter. If somebody takes a car, or a book or a CD, it is theft because you no longer have that item. If somebody copies your idea, it is not theft, because you still have everything you started with.

    If I am a musician and make my money selling my music, when someone distributes my music for free to 1 million of his closest friends to enjoy, I’m losing out on sales.

    That you are losing out on sales is an assumption on your part. Those 1 million people may not have bothered acquiring your music had it not been free.

    He’s stealing my customers from me by giving them my work without me ending up with money in my pocket.

    You don’t own your customers. Customers are people and we have long since rejected the idea that people can be property. In any case, they are not your customers, merely potential customers.

    If I’m a musician or author or filmmaker or what have you, how is it an infringement on someone’s liberty to want to protect what is mine by demanding theives end up in prison?

    Because what you want to be considered yours can only become yours by violating the liberty of others. It’s akin to arguing that there’s nothing wrong with slavery, because you own your slaves.

    If it was a person who kicked in the door of the local bookstore and was physically handing out copies of a book, there would be no discussion on prison beaing earned, so why is electronic rights to IP so much different?

    As per the explanation given above.

  • I can see the untility in the plea bargin.

    Well, of course – there’s a reason it was invented in the first place: utility.

    Still, I’m not thrilled with the shotgun approach that prosecutors use of charging a defendant with everything under the sun and then hoping the wrongly accused with plea down just to inflate stats.

    Of course – that’s what happens when we only concern ourselves with immediate utility, and disregard long-term consequences, including the unforeseen ones.

  • R7’s point is indeed well-taken.

  • admin

    In other news:

    “Thank you for calling Soverain technical support,” says Wolanyck, if you press option 2. “If you are a current customer and have a tech support question, please call us at 1-888-884-4432, or e-mail us at support @soverain.com.” That number, like the “customer support” number on Soverain’s contact page, has been disconnected.

    Soverain isn’t in the e-commerce business; it’s in the higher-margin business of filing patent lawsuits against e-commerce companies. And it’s been quite successful until now. The company’s plan to extract a patent tax of about one percent of revenue from a huge swath of online retailers was snuffed out last week by Newegg and its lawyers, who won an appeal ruling [PDF] that invalidates the three patents Soverain used to spark a vast patent war.

  • Paul Marks

    On the Apple versus Samsung patent laws.

    One of the Samsung lawyers to Californian court (pointless Samsung even appearing in California where the courts are so biased, but….)…..

    “What Apple is really trying to do is patent or copyright a rectangular box with rounded corners”.

    Perhaps unfair – I do not know the details.

    But I do know that, in the end, such companies as Apple are going to have to compete on PRICE and QUALITY – not on how many court judgements they can get.

  • Surellin

    ” I can attempt to punish him in some way appropriate to breaches of contract”. I’m not certain that employing the coercive power of government to imprison him or take his property in restitution is so very different from personal violence. That being said, the whole IP discussion is a muddle and I have very little fully formed opinion for one side or the other.

  • Rob Fisher (Surrey)

    Surellin: I’m not sure either how contract enforcement fits in with the non-aggression principle. But I imagine it might involve everyone agreeing what the restitution will be when the contract is signed.

  • Jaded Voluntaryist

    Surellin: I’m not sure either how contract enforcement fits in with the non-aggression principle. But I imagine it might involve everyone agreeing what the restitution will be when the contract is signed.

    I.e. see comment #2 in this thread ;-)