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]

The death of copyright

I am not sure that there’s any libertarian principle that objects to planned failure in DVDs, or that there’s any logical distinction in the comparative consumer rights between DVD rental and DVD self-destruction. For that matter I’m not sure that there’s a logical distinction between (the much maligned) software rental contracts and leasehold on real estate, not while there is Copyright protection, anyway.

I am sure, however, that a great many people of all stripes, including the most avowedly propertarian libertarians, hate the tendency in the entertainment and consumer software industries to enforce their intellectual property rights and create new, lesser rights in their products in which to sell licenses. I am also sure that Copyright is simply losing the minimal respect that is required for a law to be effective. That libertarians should be part of this too should tell us something. After all, we seem quite happy to take un-PC views on the side of big-oil, big-pharmacy, big-tobacco, big-corportate-bogeyman-of-the-week – and revel in how contrarian we seem, how opposed to the “idiotarian” received wisdom. Why not do we not support big-Hollywood too? Libertarians are generally a pretty law-abiding bunch and, to the extent that they are not, certainly don’t boast or casually recount their crimes against property in fora such as Samizdata. But admission of “intellectual property theft” somehow has no stigma. No doubt I will be answered by a clamour of Samizdatistas saying that they disapprove, but I know that many openly engage in filesharing. I am also firmly convinced that much of the support for Napster Inc. and their ilk (the “potential legal uses” defense) is in large part a rationalisation – believed to be true, insofar as it goes, but far from the main motivation for such voluble outrage in their defense.

So what does libertarian antipathy to these developments, and support for filesharing, tell us? I’ve been meaning to write about this for some time, so let’s test a few hypotheses.

  1. That when it touches their lives directly, Libertarian principles go out the window and short-term self-interest reigns.

    Not likely. DVDs, Napster/Kazaa/Gnutella and Microsoft Passport may affect libertarians directly. But so do schools, NHS services, and the London underground, as well as passive smoking, GM foods, and the family of asylum seekers moving into the B&B next door. This hypothesis doesn’t give a convincing explanation of why libertarians side with the “standardised concerned citizen” on intellectual property, while opposing the stereotype on so many other issues of equal personal relevence.

  2. Libertarians are luddites. Any change is seen as threatening.

    This hypothesis is laughable on the face of it. Most libertarians aren’t Extropians, but most do have broad sympathy with a watered-down version of that philosophy, while smiling benignly on its kookier limits. If a news story says that scientists have grown a replacement human arm in a jar, a potato that cures hemorrhoids, or built a car that drives itself, you can expect Samizdata to be full of rejoicing, not laden with predictions of woe.

    It is true that libertarians really do believe that government only ever makes things worse, and this is reflected in their instinctive reaction to just about any government initiative: any new policy is greeted with deep scepticism at best, even when it seems obvious to a neutral observer that had incumbent policy been the new one, and the change been in the other direction, libertarians would be roundly decrying the destruction of freedom and western civilisation.

    But the entertainment and software industries are not government bodies, they’re the “big business” libertarians usually revel in defending. Out goes all pretense that libertarians are just indulging their knee-jerk anti-government emotions. Something else is going on.

  3. Libertarians don’t like “rental” licenses, only full ownership. A variant on (2) above, but applied to specifically to business model instead of product.

    This hypothesis doesn’t explain why so many support or excuse Napster/Kazaa/Gnutella, which undermine sales of “proper” DVDs and software programs and are a major impetus behind short-life business models such as “pay-per-view” and software rental (OK, the rental payments don’t address filesharing specifically, but the new business model is designed to support constant updates and required real-time online access to the vendor’s infrastructure, which is a response to filesharing. Trust me on this).

    Anyway, if libertarians are happy to rent their homes, their cars and their space in the traffic jam, why would they object to paying each time they want to see “Sigorney Weaver kills yet more Aliens” or play Doom XXVII?

    Something else is going on.

  4. Libertarians want something for nothing.

    This hypothesis alleges that libertarians expect some other agency (the industry, government etc) to continue to provide entertainment goods without charge to the consumer. For the response read Chapter 1 in The Standard Manual of Libertarian Dogma, or check the index under TANSTAAFL.

So if none of the obvious hypotheses are convincing, perhaps there really is something different about what is happening in the entertainment and software industries that libertarians have intuited, but not yet fully described.

My theory is this:

Libertarians, in common with most other ordinary people, have finally decided that they don’t believe in Intellectual Property Rights.

There’s been an ongoing discussion about this in the more theoretical reaches of the libertarian world for many years now, and there have been adherents to both camps. But I’m not really talking about a reasoned defence: I’m talking about an emotional commitment.

Libertarians have an emotional commitment to property rights. They don’t just believe in them as a reasoned, pragmatic response to certain identified problems, they – WE – feel in our gut that property is good. It is morally right that you should own stuff, and that when you own it you should be be able to do with it as you choose. If someone tries to interfere with your stuff or take it for themselves then it is not just morally justified for you to defend it, but we’ll all have a sneaking admiration for you if you take the opportunity to convince the malefactor of the error of his ways while you’re about it.

All the rest – the empirical knowledge of the chaos of collectivism and the horrors of big-C Communism, the deep economic analysis of the price mechanism and the profit motive, the easily digestible stories of the “invisible hand” and the division of labour, and the highly indigestible praxeology of the Austrians and the intellectually respectable homegrown IEA — all of that, it just goes to support and reinforce and justify an emotional commitment to the concept pf Property, which we know, in our gut, to be right anyway.

Intellectual Property is qualitatively different to physical property (either land or chattels). If I take of your land or chattels then, to the extent that I have more, you have less.

True property is a zero-sum game – not in value terms (when I have 2 cabbages, I have one more than I will eat before it goes mouldy, and exchanging my second cabbage for your second chicken probably creates new value), but certainly so in terms of my possessions: if you take my second cabbage, I cannot give it to my neighbour for his dinner. Free exchange adds to the sum of human happiness, but it doesn’t break the Law of the Conservation of Energy. Misunderstanding what is and what is not a zero-sum gain when dealing in property (getting it precisely the wrong way around) is at the root of many failings of socialist economics.

Intellectual Property works the other way around. If I upload my copy of The Matrix to you, it doesn’t stop me then giving it to my neighbour, and his neighbour, and his neighbour, ad infinitum. Warner Bros doesn’t lose anything it can sell, at least not in the same way that they do if I pinch the DVD from the counter at Woolworths.

But Warner Bros does lose something. It loses a portion of the value of its product, which lies entirely in the extent to which it has a monopoly on supply. For all the arguments (frankly, excuses) about how “I wouldn’t buy it anyway” and “I buy more music when I can check if I like it by downloading the MP3 first”, in terms of Kant’s Categorical Imperative Warner Bros gets screwed: if everyone did the download, Warner Bros wouldn’t earn a dime.

Of course, the value of blacksmiths’ businesses went down when Henry Ford got going, so a loss in value to Warner Bros isn’t in itself necessarily a reason not to do it, indeed to suppose it does rather begs the question. But we shouldn’t pretend that they won’t lose out.

So, to recap, with traditional property you might create value by moving it from one person to another, but you will reduce their possessions; but with intellectual property you will reduce the rights-holder’s value and you will not reduce anyone’s possessions.

There’s a whole bunch of consequentialist complications with intellectual property industries (personally, I don’t see any real threat to making music, which any artist can now record and publish from his bedsit – but how a future movie blockbuster could possibly be made without IP protection is beyond me) – but let’s pass by all that and assume, for the sake of argument, that either human ingenuity will conquor all, or that the IP industries will go the way of Gothic cathedrals, or both, or (most likely) that something entirely unforeseeable would happen.

We’re still part-way through explaining why libertarians, of all people, seem to show no respect for Intellectual Property rights. Let’s look at what these rights actually are, which are under attack, how, and why:

  • Trademarks
  • the law of Confidence and Trade Secrets
  • “moral rights”
  • Patents
  • Design rights
  • Copyright
  • Trademarks

    Nobody much seems to have a big problem with these. They may seem just as “artificial” as any other IP right, but neither libertarians nor others are complaining that it is an infringment on my free speech that I cannot describe my own cocktail of fizzy sugars as “Coke”.

    Trademarks are an extension of the common law of passing off (the rule that you must not sell a thing by misrepresenting its provenence) which is in itself an expansion and clarification of rules against fraudulent dealing. Trademarks are an administrative convenience, which remove some of the defences to the common law of passing off, and create a irrebuttable presumption of guilt in certain circumstances, all with the intention of levelling the playing field in favour of the single target under attack from a swarm of fly-by-night imitators.

    The only serious complaints about trademarks I have heard recently have been complaints about Internet domain names being taken from protestors, who want to use a web site address containing the trademark to bad-mouth the company or its product (www.acmecorporationsucks.com). This is a marginal complaint about application, and does not constitute a serious attack on the principle of trademarks.

  • The law of confidence and Trade Secrets

    Another potential restraint upon “free speech”, this is your right to prevent your doctor telling the tabloids about your syphilis. It is also an employer’s right to expect his employee to get on with keep quiet while they fix a problem instead of scaring all the customers away. It is also his right to stop his employee revealing the Colonel’s Secret Recipe.

    Confidence is an extension of the law of contract: if I contract with you to keep schtum you should, and if we enter into a contractual relationship and I don’t explicitly enjoin your silence, then that expectation can sometimes be implied along with the expectation that you won’t spit in the soup you just served me.

    The law of confidence extends this to certain cases where the law doesn’t recognise an actual contract. Doctors, when providing free treatment, are a good case in point.

    Various whistleblower laws have been nibbling at the edges of the application of this principle, while new protections for “privacy” have been extending it slightly in other cases. Fundamentally, though, it is well founded and not under attack on principle.

  • Moral rights

    This is the right of an artist not to have his work altered after he’s sold it in a way that makes him look a fool or an incompetant. Alternatively, it’s the right of the artist to have his name taken off the work if it is so altered.

    Moral rights are not recognised in some legal jurisdictions, and in some where they are they can be contracted out of, which rather defeats the purpose.

    To the extent that they infringe on freedom of contract libertarian doctrine is opposed to moral rights. On the other hand, for a film studio to claim that Billy Writer was responsible for the absurd, sentimental mish-mash that made it through the production process is, in extremis, a serious slur on his reputation. And we do have libel laws for that sort of thing, so why not a particular legal right tailored for the particular situation but based on the same principle?

    However moral rights’ patchy implementation, even lesser enforcement, and the fact that they only really impinge on real artists and authors (and their employers and direct customers) means this is not a topic of widespread interest.

  • Patents

    Strictly speaking a patent is a precise description of how to build an object – and the monopoly right to build that exact widget, for a limited term.

    The American Founding Fathers said that this was for the advancement of science. Most people like the idea that James Dyson, back-bedroom inventor of colorful and powerful vacuum-cleaners, gets a decent crack at getting rich rather than losing out to copycat products from incumbent manufacturers like Hoover. Libertarians are well known for supporting drug patents in the face of criticisms that they price drugs out of the affordable range of patients who die when they don’t receive them. To quote the decidedly un-libertarian TV series The West Wing:

    Toby: The pills cost them 4 cents a unit to make.
    Josh: You know that’s not true. The second pill cost them 4 cents. The first pill cost them $400 million.

    The concept of patents is being criticised at the moment in three main areas: genome research and the like, software, and patents for business models.

    Genome research is alleged to be a discovery, not an invention: it is argued that not only does this mean it is not a “machine” legally capable of being patented, but also that while the suction-pump on a Dyson may be nifty there are other ways of getting dust of the carpet; whereas there is only one true set of bases in the 103rd gene on the 22nd chromosome, and “you can’t patent a fact”.

    Patents for software algorithms are attacked on the same basis. While software programs, like Microsoft Word, are protected by copyright, it is currently possible in some cases to obtain a patent from the US patent office for any conceivable implementation of a particular computation formula (algorithm). For example, compression algorithms: if you apply a particular set of calculations to a set of data, it is possible to compress that data so that it takes less disk space. GIF is an image format that describes an image on the screen containing 480,000 pixels each with any of 16million colours, for a total of 11,520,000 bits (or about 1.4Mb) compressed into a file of maybe 2,048,000 bits (or a much more faster download of 250kb). GIF depends on the LZW compression mechanism, which is an algorithm patented by Unisys. It doesn’t matter in what software language you rewrite that formula, Unisys are still asking for their patent license fees. Needless to say, some people say “Algorithm = formula = maths = truth = unpatentable”.

    Perhaps the most surprising patents have been for business models. Ebay has tried patenting online auctions, Amazon has patented its “One-Click” ordering, various different people have been awarded patents which, as reported to a laymen by a lay journalist, appear to grant them exclusive rights to any business mechanism characterised by my computer buying something from your computer without either of us being aware of the specific transaction. Keep checking the papers; this story will run and run.

  • Design rights

    Design rights are simply a cross between trademarks and patents: they protect the individuality of the look of your product. The distinctive shape of the Coca-Cola bottle, the green and gold of anything from Harrods (even if you call yourself Harold’s), the beaming furriness of a stuffed Bugs Bunny in any size or deportment, these things are all protected by design rights. And most everybody reckons it’s OK for the law to protect this, because only Coca-cola is Coke ™.

  • Copyright

    Despite much aggro in the world of patents, Copyright is where the action is.

    Rights holders are extending the utility of their rights both through technology and through aggressively-lobbied legislation. Copyright term protection has increased from 18 years to 30 years to 50 years to 70 years. The software industry has avoided the most product liability and fitness for purpose regulation by imposing “contractual license terms” on customers that depend, for their applicability, on the notion that you must copy software to your PC in order to run it, and so once you’ve bought the program disc you still need to contract for a license. Under the Digital Millenium Copyright Act, and the similar European Copyright Directive, you can’t even alter the protected item for your own use, e.g. making a DVD designed for Region 1 (USA) play in Region 2 (UK). And, of course, the music and movie and software industries are all trying to move to a pay-per use model, thereby capturing repeat payments from all those who don’t need yet another new wordprocessor for their personal letters and like the Beatles, not Ms Dynamite.

    Rights holder organisations have Congress, Parliament, the Council of Ministers, WIPO and the 9th Circuit (on both sides of the Atlantic) in the palm of their hand. Nonetheless, the RIAA, MPAA, SPA, MCPS, BSA and the rest of the alphabet soup are all running scared. How can this be?

    It’s because while companies that get even moderately successful at abusing other companies’ intellectual property rights make a nice easy target for a lawsuit, it is much, much harder to get gazillions of consumers to behave themselves if they don’t want to. Most of all, it’s because such mis-behaviour became so easy when everyone got on the Internet. Films are still very slow and painful to share; software is much easier, and has a longer payoff for the consumer who downloads it; but music – ah, music.

    Time was, you’d go to the music store and browse through stacks of vinyl; top 10 singles sold millions and album covers were works of art in their own right. Now, people start playing one track, think of another, find it, and can have it downloaded and ready to play while the first one’s still annoying the neighbours. The only thing stopping the Internet using public doing this freely is their personal belief that this is morally wrong. And, quite simply, people just don’t think that.

    Filesharing programs like Napster and Kazaa depend upon people giving away their music etc., while downloading new stuff from others. They get no direct benefit from doing so, indeed it might even slow down their own downloads, and some programs provide a simple switch to stop sharing your own stuff. The system appears to be open to an enormous free-rider problem, but it doesn’t actually seem to suffer at all.

    When upstanding citizens do something represensible normally they feel a twinge of guilt. If you park on a double-yellow line you don’t shop with a clear conscience, and it’s not just the fear of traffic wardens. Saving extreme anarchists, there’s a slight twinge when you lie on your tax return, however swiftly it is assuaged by the “free beer” bought with the little less of your hard-earned that’s going to Uncle Sam for division between starving indigents and middle-class holders of bureaucratic sinecures. Should an allegedly respectable citizen walk out of a shop ‘accidentally’ wearing the dress she tried on in the fitting room, she certainly won’t chat idly about her ‘bargain’ with her friends. Chances are, the guilt and shame will prevent the dress ever being worn at all.

    Filesharing is different. If you watch a file upload complete, you don’t feel a twinge of guilt that EMI have just lost a sale that was rightfully theirs to some unknown music-lover in Korea. You feel a sense of pride, of satisfaction that your taste in Country-Soul-Rap-Swing is not entirely without company, and you feel a sense of duty-discharged; you have done your bit to give back to the community that so kindly donated your 60Gb of wall-shaking, neighbour-deafening, environmental-health-officer taunting Mike Oldfield tracks.

Which brings me back to the Libertarians. Libertarians, though I love you dearly, can be some of the most self-righteous, morally censorious, dogmatic people I’ve ever come across. I know one who spent 10 months of unemployment steadfastly refusing to claim State benefits while her life savings drained away, and no attempt to persuade her that it was just a refund on her taxes shook her determination not to compromise her beliefs. I myself have some of these tendencies, and admit to being a little too quick to sneer at those who profess that taxation is theft from their government-grant-funded lecture halls. Yet card-carrying libertarians, myself included, just don’t connect online filesharing with that basic, raw, emotional commitment to the sanctity of property.

Nor is it just in “official” libertaria, like Samizdata. Check out Slashdot, one of the oldest blogs: produced by and for computer programmers and sysadmins, Slashdot participants have very strong libertarian tendencies. “In Soviet Russia…” has moved from comment title, to cliche, to joke, to the entire comment. A major topic category, “Your Rights Online” has its own editor promoting stories on Privacy – Echelon, Crypotography regulation, and Censorship, along with other well-worn Samizdata favourites. Read one of the daily stories on the RIAA/MPAA attacks on filesharing, and you’ll see many vigourous (well, loud) defenses of the right to share music, and the right to bear arms in case anyone tries to stop you. Sure, there’s a lot of talk about potentially legal uses of such software. There are those who claim they only use it for legal purposes – and a few even sound credible. The overall message remains clear: “I share music and stuff. I don’t apologise. Any organisation trying to prevent this is bad, and should be stopped”.

Mainstream media such as youth, culture and entertainment publications all recognise that filesharing is a fact of life and, with a bare nod to the sensibilities of their advertisers and their lawyers, accept it as guilt-free. Taken as a whole, we’re looking at the most widespread civil disobedience since the introduction of speed limits.

In conclusion, I believe that most people, and most libertarians, have decided in their hearts that they don’t believe in Intellectual Property Rights. They are willing to accept them as a pragmatic implementation of an aspect of the moral position also protected by the law of contract (confidence), of fraudulent passing off (trademarks and design rights), and of libel (moral rights). They like the idea of the madcap inventor having some protection from Big Bad Manufacturer, and are scared that no patents equals no R&D; equally, people dislike corporate behemoth carving out large and incomprehensible monopolies, especially over things that sound like true necessities or simple facts of nature. But since patents really only feature in the world of business there is little that most individuals care or can do about them anyway. However copyright doesn’t enjoy any of these defenses; there are no analogies with basic common law, and if ordinary citizens won’t wear it then Copyright is doomed. To believe and choose to respect Copyright, personally, deeply, emotionally, you have to truly believe that an idea can indeed be Property.

It is in the realm of Copyright where individuals, consumers, citizens are making their moral choice heard loud and clear. We can’t even be bothered to be mad as hell; we’re just not going to take it any more.

Tweet about this on TwitterShare on FacebookShare on TumblrShare on RedditShare on Google+Share on VKEmail this to someone

48 comments to The death of copyright

  • Your first sentence is very puzzling at best and annoying at worst. What makes you think that what I write has anything to do with libertarianism. I write about things I find interesting, creating opinions about them regardless of what the Book of Official Libertarian Principles says. Screw all -isms!

  • It might not be so much that we disbelieve in intellectual property rights (IPR), as that we’re tired of them. Allow me to explain.

    IPR are among the most difficult rights to defend, both in theory and in practice. The theoretical aspect of it isn’t terribly important to people’s behavior in the real world. What matters most is whether the defense of IPR is practical, in the sense that enforcing any law is practical — do the aggregate benefits of the law and its enforcement outweigh the aggregate costs?

    Because of the advance of technology, the little mammals who seek to subvert IPR are becoming next to impossible for the corporate tyrannosaurs to stop. The schemes put in place to attempt to stop it have most recently been uncertain of effect, while frequently imposing large negative side effects on the consumer. Last and probably least, the intellectual defense of IPR, an ongoing struggle, pits “big guys” (corporate content vendors) against “little guys” (consumers), which is always a wearying position to uphold.

    When a law is difficult to enforce and easy to break, when a significant percent of the populace (2% or more, according to some analysts) is willing to break it, and when enforcement efforts and techniques produce unintended consequences that engender resentment even among those who are inclined to observe the law, the law is one we’re likely better without. Alongside that, unenforceable laws weaken respect for all law.

    The theoretical case for IPR balances on a knife edge. The practical case for them is very weak, at least at this point on the technology curve. To me, this is consistent with libertarians’ indifferent allegiance to these rights.

  • Libertarians who use Kazaa and the other file-sharing systems are stealing.

    Its theft, it reduces the producers income. That few have any sympathy for record company profiteering or Elton John’s income is merely convenient.

    Realistically, its down to the recording industry to re-price its product. A penny-a-play music-on-demand system might be palatable. The recording industry has made “excessive” profits because of the technological and convenience obstacles that previously existed as obstacles to copying.

    David Bowie reckons that musicians will have to go back to entertaining paying live audiences and view their recorded music as freely distributed marketing material.

  • Samizdata Illuminatus

    Your first sentence is very puzzling at best and annoying at worst. What makes you think that what I write has anything to do with libertarianism.

    This was an article I’ve been planning to write for months, if not years. I just thought it was polite to tip a nod to the article that finally galvanised me into getting up and getting it written. No offense intended. And no need to get your Y-fronts in a twist.

  • ian mcdonald

    There is simply no need for anyone ,libertarian or not, to feel guilty about avoiding making a payment to someone whose services are no longer required in a transaction.

    What is happening here is simply greater market efficiency as technological advance removes an unecessary layer of “middle men”

    Until recently artists required record companies to produce, market and distribute their material.Now they don’t.

    Similarly consumers required those same record companies to sell them the artists’ output. Now they don’t.

    Consequently, the need for record companies is much reduced. They find this difficult to accept.
    They are just going to have to learn to live with it,as did bicycle makers and blacksmiths etc.etc.

    I agree with “Hypocritical Ipod Owner” about pricing etc.A new template will eventually be found.
    Blockbuster movies will continue to be made but remuneration to the artists and makers will arrive in different ways .Don’t ask me how ,I don’t know,but someone will find a way.

  • Tony H

    There seems to be a mistaken assumption that IPR is the province of big corporations, but the reason why libertarians should respect IPR as much as real estate is that an awful lot of us private individuals depend upon a commonly upheld defence of IPR too. As a freelance journalist & photographer, I will certainly seek legal redress against any rip-off artist who steals my pictures without payment or acknowledgement – and if that doesn’t work I’ll send some blokes round to break his f*****g legs. Yours in liberty…

  • I thought you were going to convince me that there is nothing contradictory about libertarians advocating file sharing, but you only told me that libertarians don’t THINK file sharing contradicts their principles. You argument seems to be thus, because we don’t feel guilty when we do it, we think its okay, which is tautological.

    I propose that our attachment to music can sometimes rival even love and sex in its power. We often don’t even bother to consult reason or morals, we just do it. We rationalize best those pleasures that we secretly know are wrong…

    And by the way I know plenty of people who feel guilty about file sharing. My brother dumped his entire Kazaa archive and deleted the program as a matter of reconciling himself to his principles.

    Also, music is not simply a fact or discovery. It is a unique production of specific human beings incorporating individual talents and experiences.

  • M. Simon

    HIO – David Bowie is correct. As were the Grateful Dead.

    Now all this might not be too bad or difficult to enforce if copyrights were actually of limited duration. In effect with the content providerrs owning the lawmakers copyright is forever. Just ask the Mouse.

    The funny thing is we went through all this with the vcr. The market for content actually became larger after the vcr.

  • T. Hartin

    Frankly, I don’t give a rat’s ass about musicians and record companies. If the record companies all go toes up and the musicians go back to playing for tips, that is fine by me.

    IP, as embodied in copyright, is more important than music. The difficulty with filesharing is that it cannot be confined to music. Once filesharing is permitted and copyright interred, everyone who traffics in intellectual property will be screwed. As good economists, we all know what happens to activities that no longer generate an economic return.

    People love to talk airily about the need for “new business models” that will accomodate filesharing. However, I have yet to hear of one that does not bottom out, to some degree, on some sort of right to exclude people from the IP at issue, which is to say, some form of property right that is incompatible with filesharing. I’m sorry, but I simply do not believe that you can build a knowledge and information economy by charging people only for “convenience.”

    The essay basically blows off copyright because most people can’t be bothered to understand or honor it. I’m not sure that ignorance, greed, and laziness should be the benchmarks for choosing which kinds of property we honor and which we don’t.

    Nor is IP and copyright as different in kind as the essay would have us believe. All property rights are, essentially, shared hallucinations. None of these rights have any concrete reality other than what we collectively agree to honor, whether they are rights in intangible property or rights in real estate. In this regard, all property rights are the same, and to believe that the property rights in tangible property are different in kind from property rights in IP is to confuse the difference in the subject of the right with the right itself.

    In the current mass production economy, does it really hurt Ford if I just drive off in one of their cars any more than it hurts Sony if I download one of their songs? Ford has plenty more cars to sell, and really its only loss, like Sony’s, is of a potential sale.

  • Doug Collins

    One of the earlier comments mentioned that we have already been through this with the VCR. That is correct. We also went through this even earlier with the printed book and the xerox machine.

    You don’t remember that one? That’s because it didn’t happen. There is no technical reason why it didn’t however. Only an economic one. Books have been priced low enough, mostly, to make the trouble of copying them not worthwhile. It’s easier and cheaper to buy a second copy if that’s what you want for yourself or to give away.

    I seem to remember that the first Star Trek movie was one of the first videotapes to be priced at $29.95, at a time when videos were either rented or sold at >$80. Had video prices not fallen, I think we would have seen widespread copying then – with a lack of guilt feelings. If books were routinely priced at $100-$200, I suspect the xerox machnes would be busy too.

    Perhaps the moral measurement that people are unconciously making is whether the IP rights holder is selling at a “fair” price or is using his proprietary position “unfairly”. If the only baker in a village suffering famine were to price his bread at outrageous levels, when no bread scarcity existed, most people, libertarians included, would find something wrong with his morals.

    (I add the last qualification -no bread scarcity- lest someone points out the desirable inhibition of high prices on hoarding… this is a hypothetical example, in a hypothetical starving village).

    Perhaps, in our culture, we feel information and art are somehow like bread. Everyone has a right of access to them – not for free, but for a “reasonable” price. When the price becomes unreasonable, then society suffers, for not only are libertarians affronted but, far worse, the barbarians are loosed.

  • M. Simon

    T. Hartin,

    The difference between the Ford and the bit pattern is the marginal cost to the producer. Ford may have $10K into the car while the marginal cost of the bit pattern is aproximately zero – less than the 1/1000th the cost of a sheet of copy paper.

    The way for the record companies to get album sales again is by selling large pretty album covers and the words to the music – i.e. they sell an experience not just the bits. The marginal value of the bits to the consumer is near zero.

  • Perhaps recorded music is a bit expensive?

    I bet far fewer people would be swapping files if a typical 16-song record cost forty US cents, for example.

  • Della

    In the very long article you state that libertarians seem to be against intellectual property rights. This is not correct, some libertarians are in the looter class, some are not, and I think it is doubly wrong to claim that most “ordinary people” have decided they don’t believe in intellectual property rights, this is not true, some are in the looter class most are not.

    Some people have just decided that “looting takes the waiting out of wanting”. Usually we call these sort of people thieves, but apparently some people have decided if it ain’t exactly the same as mugging granny it’s not stealing.

    You make a lot of arguments that it is divisible property, and that the utility to a single person is not removed by splitting the property (e.g. through copying), but a lot of physical propery shares this characteristic of splitability. However if the splitting goes far enough then the value of the property will be reduced to such an extent that it will become worthless, and so no new property of that class will be created anymore. So at the moment you can loot away copying your music feeling like a good litte communist, but if this carries on then the people are going to figure out that making music doesn’t make money and they will do something else with their lives, and all you file sharers will have nothing to share. Don’t tell me they are all making music for the love of the music, that’s a lie. They are making music with a hope of getting fame and fortune, something that won’t be possible if cyber-looting destroys their industry.

    Another common misconception I thought I would just blow away in passing is that the right to copy is not a goverment creation, it was recognised before the state became involved mostly to get thier greedy little hands on a valuable asset. It was at this time that they made intillectual property a limited time deal which I guess causes a lot of confusion in “libertarians” heads.

    In conclusion I think that a lot of so called “libertarians” have been reading cyber-communist literature and been taken in completely.

  • S. Weasel

    Heh. I believe in intellectual property rights (if not exactly current copyright law). I just don’t think that matters. It’s like arguing the right and wrongs of drug use. Argue it if you enjoy the process, but people are going to get high somehow no matter what you do.

    The only way to slow down the flow of illicit ones and zeroes coming down the pipe (whether it’s music, novels, or episodes of MST3K) is to regulate the hell out of the pipe (or the hardware on the users’ end).

    So…right, wrong or neutral…who’s up for another Prohibition or War on Drugs, with binary digits at the heart of it?

  • Della

    The only way to slow down the flow of illicit ones and zeroes coming down the pipe (whether it’s music, novels, or episodes of MST3K) is to regulate the hell out of the pipe (or the hardware on the users’ end).

    The biggest reason that this whole illicit copying problem exists is that no-one has made a serious effort to stamp it out, and some companies benifit from the trade. It would not be difficult to greatly reduce the amount of illicit copying. I have a 3 step plan:

    1) Track down where these things are hosted. The internet is not magic, things are traceable.
    2) Send some nice cops in shiny jackboots to kick down some doors and haul people off to jail. You may say that there are too many doors to kick down, but you don’t need to kick down them all, just enough to put the idea in peoples heads that file-swapping is going to get them in to trouble.
    3) Prosecute companies that knowingly aid and abet people in the performance of the crime of illicit copying. Some ISPs here have even advertised their service as a means to illicitly copy music, they can’t claim no knowledge of the problem.

    So…right, wrong or neutral…who’s up for another Prohibition or War on Drugs, with binary digits at the heart of it?

    Cutting down on illicit copying and the war on drugs are not even vaugly realted. Taking drugs is a victimless crime, illicit copying is a crime with a victim, just one that you can’t see at the time of the crime. The war on drugs aims to remove a highly prized product from the marketplace completely. The aim of cutting down on illicit copying is to ensure that there is a marketplace for music by reducing theft from the marketplace. People will still get to listen to the music they want, they’ll just have to pay something for it.

  • S. Weasel

    The biggest reason that this whole illicit copying problem exists is that no-one has made a serious effort to stamp it out

    You are utterly, totally, indescribably and unspeakably wrong.

  • veryretired

    The comparison between the file-sharing, intellectual property rights dilemna and drugs is very apt, but not for the reasons stated so far. It is interesting to me because the tone of the debate now is the same as the tone of the drug debate in the 1960’s, i.e., users of various drugs said “We know drugs are illegal, but that is all BS, and therefore we want to use as many as possible and screw the rules”. Now, as that generation ages into grandparenthood, the same people who scoffed at the drug laws then have for several years been unrelenting in their demand that their children be kept from using drugs, or even exposed to ads for cigs and alcohol. It will be interesting when the current generation of computer savvy, “I can burn a copy for free if I want to” is making a living and supporting a family on income from intellectual property. I can just imagine how many lawyers will be kept busy protecting the software, music, books, etc. of these same copiers when it is their ox that’s being gored. Of course, this does not apply to those whose sole creations in life are loud blasts of intestinal gasses, unless that talent is included in performance art. Might happen in Britain.

  • James Dixon

    > Track down where these things are hosted. The internet is not magic, things are traceable.

    So states someone who’s obviously never checked out Freenet (http://freenet.sourceforge.net/ for those interested).

    James Dixon

  • Della

    Track down where these things are hosted. The internet is not magic, things are traceable.

    So states someone who’s obviously never checked out Freenet.

    So states someone who has obviously never read the freenet FAQ:

    Most of the non-trivial attacks (advanced traffic analysis, compromising any given majority of the nodes, etc.) […] would probably be successful in identifying someone making requests on Freenet.[…]
    The anonymity that Freenet offers is really just obscurity

  • zack mollusc

    Let’s have IP right for everyone.
    Gimme a cent for every car that rolls off a production line because I figured out the wiring on the conveyor belt.
    Gimme a cent every time a postman goes along a route that I planned.
    What about the parts list that I drew up?
    The way of stacking the truck to get most in?
    The trick of loading the machine to make sure it doesn’t jam?
    The well placed piece of gaffer tape that stops the whole thing grinding to a halt?

    Most people do not get any residual income for their creative work, hence they have less respect for the IP rights of others.

  • The notion that the copyright law just doesn’t feel right, thus it might be right to violate it, doesn’t ring true to me.

    Let’s remind ourselves that the music we listen to doesn’t grow on trees, that we consume fruits of someone’s hard work for free.

    The technology removed the obstacles from stealing music. That’s why we’re stealing it. When I was in a Conservatory, earning just a few bucks from gigs, I used to buy 2-3 CDs a month. I used to play on the Charles Bridge with my cousin so that we could drink beer AND buy some new, exciting music from the proceedings.

    With an enormous p2p pool of music at hand, I haven’t bought a single CD in 4 years.

    Musicians, artists, writers, need economic returns for their work like everyone else. The technology is forcing them to look for new business models, and they’ll eventually find some. Instead of celebrating the death of copyright, let’s discuss how the market for music can be transformed so that both the producer and consumer get what they deserve.

    I personally like the idea of “cutting the middleman” mentioned higher up, and expect something going on in this direction.

  • Johnathan

    I work for a large corporation in the media sector that would be utterly destroyed without some form of copyright law.

    I agree with the tone of the original post that it is indeed a bit odd to see self-proclaimed libertarians cheerfully raining over IP rights.

    But like some other folk in this thread have noted, if it becomes nigh-impossible to police IP economically, then such laws will disintegrate anyway. Sorry, that sounds defeatist but that is also reality.

  • dave fordwych

    This is a difficult one to write but I want to try it out anyway.Is it not at least possible that the ambivalence of many of us on this issue is related to the perception that most of those who benefit financially from intellectual property rights tend to be from those whom we might call “the enemy”.

    It is I would say unarguable, that many of those most prominent in the entertainment industry are Idiotarians or at the very least have Idiotarian sympathies.I have never downloaded free music or dvd’s and I can see the inherent socialism in the concept, but the thought that I’d be depriving say the Dixie Chicks or Madonna of a few extra dollars which are rightfully theirs would not be a reason to stop if the occasion arose.This may be illogical, simplistic and inconsistent and I may be unique in thinking like this, but I suspect not.

  • greifer

    “utterly destroyed without some version of copyright law”.

    and so what? Does someone Deserve to have their job ensured forever? their industry legislated into existence?

    that’s communism, not a free market.

    but let’s talk economics. economics is based on SCARCITY. that is, if everything could exist for free, and you never had to choose between limited resources, there would be no economics.

    The market value for something is based on SCARCITY. The notion of a PRICE is based on SCARCITY. the notion of property rights is based on the belief that the individual expends effort to choose between competing products his raw materials can be turned into, and that said raw materials can’t meet all needs, therefore, there needs to be a. a mechanism for stewardship by him (which is better for society as a whole) and a mechanism for stewardship for him (which is better for him). therefore, property rights give the person who has to make those economic choices more value, and more opportunity to do the best he can with it–thereby giving him the OPPORTUNITY for profit, and the society more of what it needs, given its limited resources.

    digital bits have no such limitations. Bits are not scarce. Digital goods, therefore, are not scarce. Therefore, they have no price, because they never degrade, ever. so you want to LEGISLATE a price? you want to create an artificial scarcity? that requires govt intervention at a level of fascism/communism/central planning that would make samizdats the only form of communications.

    now, do you believe that the effort spent creating said goods is really a limited resource? Property rights are about limited resources, and turning those resources into things that produce the highest value, as dictated by the market. They are about ownership of the raw materials that makes the good, because each good requires more of the raw material. Copyright is about ownership of what makes the good–and at that point, the good is then infinite, and requires no more of said raw material. it *isn’t* the same.

    you wish to make a system that pays artists? Then they should agree not to release their art until they receive enough financial contributions. How will they get around this bootstrapping process, so there is demand? by releasing things for free, originally. this is not so different than how publishing houses work now.

  • Della

    and so what? Does someone Deserve to have their job ensured forever? their industry legislated into existence?

    that’s communism, not a free market.

    I’m off to loot the local mall. If the police come and arrest me I will complain that the mall owners have a failed buisness model since it is so easy to steal from them, and that by using cops to enforce their property rights they are communists trying to legislate their industry into existance.

    digital bits have no such limitations. Bits are not scarce. Digital goods, therefore, are not scarce.

    The elements that physical goods are made of are far more common than digital bits. I have estimated that the earth is made up of about 599 thousand, quadrillion, quadrillion, quadrillion atoms, and that’s a lot of atoms. There’s really no shortage of atoms, therefore why should the makers of physical goods claim there is some sort of scarcity of physical goods? They are just made up of atoms after all, which are ten a penny, well not ten, maybe about 1×1023 per penny.

    Evidently they teach neither economics nor how to use a shift key at MIT.

  • S. Weasel

    The comparison to the war on drugs wasn’t a moral one, it was a technical one. It doesn’t matter if filesharing is pure and victimless, has a thousand screaming victims, or makes baby jesus cry…copying is too easy and the ‘borders’ are too porous to make any crackdown effective, no matter how punitive. Remember the beginning of the war on drugs, when drug the theory was that taking out the small-time users would put a stop to it once and for all? How well has that worked out?

    It wasn’t worthwile to us to Xerox books, because there was enormous labor involved in copying a book page by page, then collating and binding it…for five bucks we could just buy the damned thing. It was worth it to the russians, though, since they didn’t have a ready source of supply. That’s what samizdat was, after all – books orignally published in the west, smuggled in and xeroxed. Supply and demand.

    P2P, freenet, cds-and-sneakernet…it’s WAY too damned easy to copy and distribute digital information. A hell of a lot easier than smuggling drugs. And, yes, just about anything is traceable if you try hard enough. But, once again, it’s a lot easier to find a drug smuggler than a digit smuggler, and what’s our track record?

    If the stakes are that millions share files and dozens go to jail, many people will cheerfully take those odds.

  • Julian Morrison

    IP is not property. Only matter is property.

    IP is antithetical to property – if you have IP, you have to weaken physical property enough to allow IP “owners” to control your media devices.

    IP is in conflict with the facts of physics. As technology improves, the ability of the ordinary person to copy information (and later, using nanotech, the form of physical objects) will also improve. IP then requires ever increasing intrusive supervision to prevent ordinary people from making copies. if copying a rolex is as easy as pushing a button, you need a policeman watching every button – or to give up IP.

    The only reasons given for the existence of IP are failiures of creative imagination. The proper solution is not to enforce an increasingly tyrannical pseudo property, but rather to think up new ways to create content for profit.

    This is by no means impossible. For example, I could have downloaded a movie, but I went to watch the cinema. Why? Because I prefer the big screen and the good sound and picture quality, and the whole cinema atmosphere. This is also why cinema has survived videos and DVDs.

  • Dave Fordwych you are not alone! That is exactly how I feel about the whole argument.

    On an intellectual level, I am forced to defend copyright as a manifestation of property rights. However, at an emotional level, because copyright proceeds fund so many leftie causes, I am sorely tempted to stick it to the bastards!

  • Della

    IP is not property. Only matter is property.

    Suppose I have a form of nanotechnology that can copy a human. I capture a copy of the molecular pattern that is Julian Morrison using some form of remote sensing, I make a new copy of Julian Morrison using my own atoms, I call him Julian-1. I never tell Julian-1 that he is not the original Julian, I slowly torture him to death. Do you have any problem with this?

  • S. Weasel

    And everyone backed away from Della on the Group W bench…

  • This might turn into a flamewar soon, but before that, I want to point out that:

    1. Capitalism revolves around private property. Law and state ensures that your property stays yours. Without ownership, there is either communism or anarchy,
    2. Intellectual property should be protected as well as your house. In this knowledge economy, ideas are more and more important for one’s success. That’s why we see MORE IP protection.

    Those who ADVOCATE violating IPR advocate social change, which turns products of intellectual labor into public domain, no-ownership commodity.

    It scares the hell out of me watching people calling themselves “libertarians”, and yet denying one of the basic principles of a capitalistic, free-market philosophy.

  • Andy Duncan

    I think you might be alright to say some libertarians don’t believe in IP rights, but not all libertarians.

    I’ve co-written a book for O’Reilly Press, Perl for Oracle DBAs, which details a product (Perl), which is given away freely by its owner Larry Wall, and Oracle, a product which is fiercely defended by its owner, Larry Ellison. I have no problem with either position.

    Larry Wall earns respect and gratitude for his incredible computer language, and Larry Ellison earns cash dollars for his incredible (though increasingly complex) database.

    I’m happy to pay Larry I respect, and Larry II dollars, for their products, because they both enrich my life.

    Everybody gets paid, even though Perl is financially free.

    I seem to recall it was Hayek who asked why somebody should get paid forever, for having a good idea, when they benefitted immensely from being the first to have that idea. But as an author who earns Royalties on my book, for the year of my life it took me to write this fine product, if anybody gets hold of a software copy from an illicit source, without paying O’Reilly the stipulated fee, then I am going to be mighty pissed off about it. That’s stealing from me, my wife, and my children, as I see it; and I may, in certain circumstances, be unable to prevent this theft, but I am not going to condone it.

    If however, after a “reasonable” period, the book becomes freely available, then I’m not going to lose any sleep over it, especially as under (I think) British Law, that reasonable period is 50 years after my death.

    That might seem silly for a technical book, which will be out of date well before then, but I’m currently writing a novel (probably a very bad one), which might, if I’m extremely lucky, still be in print years after my death. And I want all of those potential revenues to go to my family, as I will have earned them (if the damn thing ever gets published 🙂

    Any reduction in income from the creation of software, novels, videos, films, etc, decreases the incentive to create said stuff in the first place. So I am no Hayekian on copyright. As the removal of IP rights, will, I believe remove most of the effort to create new things in the first place. I’m with Rand on this one, and her fierce defence of Hank Rearden’s right to be the only possessor of Rearden Metal.

    I’m happy for people to freely give things away, as per Larry Wall, because he has chosen to be paid in “respect”. But to force people to give things away is a socialist/anarchist outrage, and will create a regressing society with little, or no, innovation; for which we’ll all suffer in the long run. Witness the current massive disincentives on drugs companies to research new life-saving drugs, because of campaigns of idiots on the Guardian, and in Channel 4 News, to make them give away their current AIDS products. Great for relieving the symptoms of current AIDS sufferers, but will a cure ever get researched now? I doubt it. If ever it does, it will be years after it could’ve been discovered because of this intolerance of people to respect IP rights.

    I know I would not have written Perl for Oracle DBAs if nice Mr Tim O’Reilly had asked me to do it for free, without royalties. I have to eat, and so does my family. OK, so I’m sure the world would have survived if this particular book had never seen the light of day, but those people who’ve paid over $30 dollars to buy this book, of which I only receive a miniscule part, obviously thought it was worth having, and I hope it has improved their lives in some small way.

    But I am not sacrificing my life on the altar of altruism. If somebody wants a book on Perl and Oracle, for “free”, let them write it; I won’t try to stop them. I’ve got more important things to do. I live in a material world, and I and my family need materials to live. All I have to generate these materials is my (alleged) ability to write, teach and develop software. Nothing I do to generate these materials is manual, everything is in the mind (or on the hard disk). Therefore I currently exist because of Intellectual Property rights. Without them, I may as well get that job in B&Q, which I know awaits me at some point, telling people where to get their bathroom fittings.

    Or I may as well never have left the motorway service station where I used to clear tables, make prawn cocktails, and fry chips. Sod that, for a game of soldiers.

    I say LONG LIVE INTELLECTUAL PROPERTY RIGHTS!!!

  • T. Hartin

    “IP is not property. Only matter is property.”

    This is wrong. “Property” is a social construct of great utilitarian value, nothing more. Property consists of a bundle of rights, including the fundamental right to exclude others. Those rights are not material, they are immaterial. These rights may attach to either material objects or immaterial concepts.

    Many things made of matter are not property (the sun, for example). Many intangible things are property (intellectual property – you may not like the fact that it is property, but it is by any current definition, so denying that it is by claiming it is not material is assuming your conclusion).

    The only overlap between “matter” and “property” is incidental.

    As to the marginal cost to Ford of driving off in one of their cars making this theft different in kind than the filesharing one of Sony’s tunes, I beg to differ. For one thing, the marginal cost of a single car is about as immaterial to Ford’s economic viability as the marginal cost to Sony. Ford doesn’t care about the marginal cost of any one of their cars – hell, they destroy hundreds if not thousands of the damn things every year in safety tests. What matters to Ford is what matters to Sony – the lost sale.

    I would be very leery of stating that no property rights exist if the marginal cost of the thing you are taking drops below a certain point. That point can, of course, be moved up to a level you might not like. More fundamentally, some kinds of material property have no marginal cost. What, pray tell, is the marginal cost of real estate?

  • Brian Micklethwait

    I have only recently looked at all these comments, and maybe I missed it, but I haven’t seen any reference to CONTRACT. Surely this is the basis of “intellectual property”. It doesn’t matter whether YOU (or Murray Rothbard or whoever) think that IP makes sense. If two contracting parties agreed to behave as if it did, then libertarianism surely means respecting and upholding that arrangement, doesn’t it?

    You part with a copy of your piece of writing or music, and build into this a CONTRACT (the capitals are for emphasis merely – not because I think everybody else in this debate is stupid) that the person you sell the copy to won’t copy it or lend it for copying to a third or fourth or three thousandth or four thousandth party.

    But, I have to say that if your contract is a huge clutch of prayers that the other guys will all behave themselves despite the fact that no power on earth can make them behave without turning the world into a huge police state, then … well, maybe, you should have thought of a different kind of contract.

    I remember when I first used to boot up dBase II (?!?!) about a thousand years ago. Before it got to the dos dot, it said something like:

    “dBase II is the property of the Micromegawhoosit Corporation of Cupertino California. You MUSN’T COPY IT. It’s tremendously good stuff, and you CAN copy it BUT YOU MUSN’T. If you do we will do such things, what they are yet we know not, but they shall be the terrors of the earth (King Lear).”

    What would we say about a person who left a pile of gold bars in Trafalgar Square protected only by a big sign saying “Gold bars: Please Do Not Steal”? Maybe we’d say he was quite within his legal rights, and that the people who would quickly remove the gold bricks would be criminals. And we’d be right, I guess.

    The rule I followed, rightly or wrongly, was that if I made regular and repeated and profitable use of a programme I would pay for it fair and square, partly because it seemed right, and partly because I didn’t want to be inhibited about telling people that I used it to do paid work with.

    Having already bought dBase II with my Osbourne (?!?!?!?!?!) I wasn’t going to pay for it again for my brand new PC, especially as I didn’t make that much use of it.

    Changing the subject somewhat, speaking as a classical CD freak I can’t help noticing that classical CDs have recently done a rather sudden downward price lurch for all but the most extremely recently issued products (which accordingly are still a bit hard to borrow). Whereas “full price” CDs really did used to stay full price for several years, now the Important Issues tend to drop a fiver within about two months. This suggests to me that whatever the morals of the situation, Big Business is facing the inevitable, and realises that it now competes with computer copiers, just as publishers compete with photocopiers.

    Those with money to burn, and with no time to be faffing about borrowing and copying, pay nearly twenty quid for that new CD that they really want. These are the people who earn more in two minutes than they can save in half and hour by getting embroiled in borrowing/copying. The rest of us either do borrow it, or else wait for the price to come down, which it will, fast.

    My conscience feels better doing the latter, but the price I pay is definitely influenced now by the existence of lots of copiers. There’s a real atmosphere of “fire sale” in HMV Oxford Street just now. Last week I got all the Beethoven String Quartets, in a very decent set of performances, for fifteen quid, which is under two quid per CD. Don’t tell me that deal would have been available before CD copiers started being owned by every other PC owner on earth.

    By the way, living in a big city probably influences things. In Little Piddling Under The Wold, I should imagine that the price of a new CD remains high for quite some while. Harder to borrow there. This is part of why I like living in London.

    However, I do agree with all those who say that this leaves a bad taste in the mouth, if you are a libertarian, and I sympathise with those who say that all this is caving in to barbarism, although personally I think that business has always caved in to barbarism in this sort of way. For the truth is that only some contracts can be upheld. Tough, but there it is.

    I don’t suppose this helps much, but I feel BETTER NOW THANKYOU.

  • zack mollusc

    Hmm..
    I can sample myself belching using my pc, then decide to sell this recording for £1,000,000,000 a go.
    If my evil twin then allows uploads via Gnukazpster I can claim to be losing billions of pounds of revenue a minute due to those pesky kids.
    Maybe I will get some sympathy as a struggling artiste and taken to dinner by the Guardian or Della.

    If anyone else wants to use my idea, please give me £1,000,000 first.

  • In reference to the classical CD prices vs. pop music prices:

    I work at a book and music store. What I have learned is that classical CDs do not have to pay copyright to the author (because he’s been dead for centuries) but that, more importantly, many of the PERFORMERS aren’t paid for the CD. Take a look at who is listed as the orchestra on most ultra-cheap CDs and you’ll find that it overwhelmingly tends to be out of country, and most often from Eastern Europe, and an orchestra you probably won’t recognize. It’s a big shame, but the companies who produce these recordings do not pay royalties to these orchestras because they’ve found loopholes in international copyright law.

    Now, the pop music prices are definitely out of line, as is proved by the fact that I can purchase a concert DVD for less than the cost of the concert CD set.

  • Scott Pedersen

    Intellectual property rights and real property rights are not the same. They may both be based on abstract and intangible principles and agreements, however the principles on which they depend are antithetical. Intellectual property depends on a world where you own something yet you don’t. You may buy a CD, but the recording company wants to retain the right to tell you what to do with it. It would not be unlike Ford selling you a car, then telling you where to drive, who you can share rides with, and what kind of gas to use. Any attempt by Ford to do that would obviously be nonsense. It’s my car and I can share rides with whomever I like. Similarly, when I purchase a CD, it is real property and I should be able to do with it as I please, either keeping it, sharing it, or giving it away.

    The reason the record company’s actions aren’t dismissed as nonsense the way Ford’s hypothetical actions would be, the part of this issue that really has everyone’s panties in a bunch, is that I can give away that CD yet retain a copy for myself, which I cannot do with a car. The record company has not just sold me a piece of physical property in the shape of a CD, they have also sold me the means to manufacture more, given some easily available tools.

    The central argument in favor of intellectual property seems to be the loss of the author’s potential and theoretical profits; that copying CDs is wrong because the artist and record company are deprived of money they might have made otherwise. The copying of a CD has been likened to the theft of a car from Ford’s factory, or looting at a mall. This is patently bogus. A more apt comparison would be to a situation where I had started manufacturing replicas of Ford’s cars and giving them away for free. Should I be stopped in my car making enterprise simply because Ford would make more money? I think most of us would agree that using laws and government to compel the halt of production simply because some company would make more money without competition is completely opposed to the fundamentals of capitalism and a free market.

    As long as people have a desire for art, books, and music, their creators will continue to exist in some form. However, if the system as we know it today become economically infeasible, it won’t be the first time a market has vanished or been radically altered because of a change in technology. This, in of itself, does not make an argument for intellectual property or against copying. Sure, Ford might make more money if carpooling was forbidden, but the argument that a particular group might make more money if the situation was different carries no weight.

  • Matt

    Zack, any chance of uploading your belch samples again? I’ve been searching for hours and just getting ‘more sources needed’. I did manage to dl a cracking video of Della torturing the replicant Julian Morrison-1 though, maybe you should be careful when accepting that dinner invite…

  • Della

    What would we say about a person who left a pile of gold bars in Trafalgar Square protected only by a big sign saying “Gold bars: Please Do Not Steal”? Maybe we’d say he was quite within his legal rights, and that the people who would quickly remove the gold bricks would be criminals. And we’d be right, I guess.

    You act like it is completely unreasonable that people would expect high value stuff to remain unstolen. There is a Ferrari/Masserati/Porsche dealership a couple of miles from me. They park their Ferraris, Masseratis, and Porches outside, the last time I checked it out there weren’t crowds of people stealing the cars. I think that is also disingenuous to compare bars of gold, which I think are worth about $60,000 to music which is sold for £15. You are not so broke that you cannot spend £15, so why do you steal instead?

    Having already bought dBase II with my Osbourne (?!?!?!?!?!) I wasn’t going to pay for it again for my brand new PC, especially as I didn’t make that much use of it.

    You could equally argue that you buy one orange of a shopkeeper, but just take them after that, because you’re not going to pay for another orange which is just the same as the original because you’ve already paid for that.

  • T. Hartin

    Scott –

    The reason that intellectual property is so often hedged about with restrictions is because it is licensed, not sold outright, when it is made available to the public. You don’t really own intellectual property bought at retail, you license it. The reason is that if you own it, you can make and sell copies of it. This is not a problem with cars, which is why they are sold outright. If you lease a car from Ford (or Avis), you will sign a lease agreement that does indeed limit what you can do with it.

    As to the CD that you purchase, you are quite free to sell it or give it away. What you are not free to do is copy the contents and sell or give them away. The reason is to prevent you from taking customers from the copyright holder, without having entered into an appropriate agreement with them.

  • Della

    You may buy a CD, but the recording company wants to retain the right to tell you what to do with it. It would not be unlike Ford selling you a car, then telling you where to drive, who you can share rides with, and what kind of gas to use. Any attempt by Ford to do that would obviously be nonsense. It’s my car and I can share rides with whomever I like. Similarly, when I purchase a CD, it is real property and I should be able to do with it as I please, either keeping it, sharing it, or giving it away.

    OK.
    1. If you read your car’s manual you will find they do tell you what kind of fuel to put in it.
    2. Buying ordinary property with conditions attached is actually very common, a lot of pieces of land and houses have conditions in the purchase contract that state what you can and cannot do with the property. You must obey the rules that are set down in the purchase agreement. These sorts of things have existed for a very long time and in no way contradict libertarianism. If you are not happy with the conditions attached to a piece of property don’t buy the property.

    I think most of us would agree that using laws and government to compel the halt of production simply because some company would make more money without competition is completely opposed to the fundamentals of capitalism and a free market.

    That is not the scenario though, the people who own the rights to various pieces of music are not trying to stop other people making any more music to compete with them, what they are trying to stop is people ripping them off and using their own stolen products to compete with them.

    As long as people have a desire for art, books, and music, their creators will continue to exist in some form.

    Well since you’re not planning on paying them, so I guess that they would exist as skeletons, or half-remembered figures in history.

    This, in of itself, does not make an argument for intellectual property or against copying. Sure, Ford might make more money if carpooling was forbidden, but the argument that a particular group might make more money if the situation was different carries no weight.

    In the 1850s slavery was legal in the south of the USA, the slave owners stole the labor of the slaves and in return gave them just enough to survive. Would you have said at the time that the argument that the slaves might make more money if the situation was different carried no weight?

    Before you dismiss that scenario as hopelessly outdated please note that slavery still exists in many parts of the world.

  • Della

    Hmm..
    I can sample myself belching using my pc, then decide to sell this recording for £1,000,000,000 a go.
    If my evil twin then allows uploads via Gnukazpster I can claim to be losing billions of pounds of revenue a minute due to those pesky kids.

    You could certainly make a composition and try to sell it for a billion pounds. If your evil twin released it on a network known for distributing stolen compositions you could sue the twin, the distributor and perhaps anyone who downloaded it knowing it was a stolen composition. At the time it came to court the judge would have to determine both whether your evil twin, the distributors and any people who downloaded it knowing it was a stolen composition were responsable for the theft of your composition. If the case were proven the judge would move on to determine the level of damage that could have been said to have been done to you. These damages would probably be significantly less than a billion pounds since the court would probably determine given the nature of the composition and the price of the composition you would have been unlikley to sell it.

  • Scott Pedersen

    1. If you read your car’s manual you will find they do tell you what kind of fuel to put in it.

    True enough. However, I am not in any way compelled to follow those directions, they are just suggestions from the manufacturer.

    2. Buying ordinary property with conditions attached is actually very common, a lot of pieces of land and houses have conditions in the purchase contract that state what you can and cannot do with the property. You must obey the rules that are set down in the purchase agreement. These sorts of things have existed for a very long time and in no way contradict libertarianism. If you are not happy with the conditions attached to a piece of property don’t buy the property.

    Again, true enough. Common doesn’t mean justified though. Also, most restrictions against the use of property are fairly reasonable and limited in scope. Usually, the restrictions have to do with how your property interacts with the property around it, right of access for driveways, underground pipes, and such. The restrictions do not typically give the seller any control over the property after he has relinquished ownership. Once the property is in the hands of the buyer, it is his to do with as he pleases. I would generally be opposed to any property use restrictions beyond what is necessary to co-exist with the neighbors, as I am opposed to the concept of intellectual property.

    In the 1850s slavery was legal in the south of the USA, the slave owners stole the labor of the slaves and in return gave them just enough to survive. Would you have said at the time that the argument that the slaves might make more money if the situation was different carried no weight?

    Yes, I suppose I would. That slaves would make more money after being freed is not a compelling argument. Similarly, how much money the owners could make is not a compelling argument for keeping slavery. Instead, I would argue that freedom is an intrinsic good. Thus, a person denying another person their freedom in the form of slavery is evil and should be stopped. The potential profit in one side or the other doesn’t enter into it at all.

    Furthermore, the idea of copyright violations as tantamount to theft of labor or real property is invalid. Nothing has actually been taken from the holder of intellectual property. The only thing they have been deprived of is perhaps the opportunity to sell access to that information in the future, and thus a devaluation of said intellectual property. If you are willing to consider depriving someone of hypothetical future earnings as theft, then there are a whole host of other activities that could be considered theft by the same argument. Just as every time somebody copies a CD is devalues the CD, similarly every time somebody sells a share of stock in company X it devalues any shares of that stock I may hold, thus decreasing my future earnings. Every car Ford produces devalues my car by increasing the supply, and every car they sell deprives me of a customer. The development of a new process may make my company’s product obsolete, but I can hardly sue the inventor for harming my bottom line. This is exactly the situation the record companies find themselves in. They want to stop file trading, not because it is taking away any of their property, but rather because it is a new situation that renders their old product obsolete and of little value.

    The point I’m trying to make is that there are an infinite variety of situations where different people could accrue differing amounts of profit. I do not consider the fact that one group will profit more in one situation over another to be adequate reason to use law and government to compel the more profitable situation. Sure, some people make more money in a world with intellectual property laws, but fattening the wallets of recording companies and performing artists is not adequate justification for those laws. It is not the place of government to use laws to create a profitable market where none exists naturally. Instead, the burden is on the artists and recording companies to take whatever products they have and find a way to profit from them in the market that already exists.

  • Ted Schuerzinger

    I wonder if the lack of respect for intellectual property rights has anything to do with the perception that the rights are being abused by many of the larger rights-holders. It used to be here in the States that copyrights were “life + 50” (50 years after the death of the individual holder) or 75 years (in cases where there isn’t an individual holder), but that was changed to “life + 70” or 95 years in large part because Disney were concerned about Mickey Mouse’s entry into the public domain (which would have happened in 2003 had the copyright law not been changed). And you can bet that in 15 years time, we’re going to have another chorus of whining about how copyright needs to be extended. (Note: I’m not a lawyer, and certainly not an expert in the history of IP. How long were the first US copyrights?)

    By the same token, the entertainment companies whined and moaned that VCRs would lead to massive IP losses for them, when it turned out the opposite was true — a whole new market for videos of old movies was created. True, this doesn’t affect whether the companies are right about the issue of computerized file-sharing leading to theft. But I’d think it does have an effect on people’s respect for copyrights — people will be more likely to think the entertainment companies are fighting for a bad cause.

    One thing that isn’t commonly mentioned is that there’s almost an ex post facto aspect to the most recent US copyright law — some things which had entered the public domain were taken out of it. I can specifically recall images of Edvard Munch’s The Scream (anybody else remember coffee mugs, T-shirts, and the like with this image on it being sold here in the States?), and the movie It’s a Wonderful Life. It seems to me that this is not a particularly good thing to do, and can only lead to a lessening of respect for copyright and other forms of IP.

  • its jake

    The issue with file-sharing is that a valuable service, being the ability to download movies and music, is not being provided by the copyright holders. This lack of supply does nothing to demand for the service. Thus, the demand is met through file-sharing services.

    If Hollywood and the RIAA were to offer their products for download at a reasonable price, based on the laws of supply and demand, then the quality of service, reliability, and breadth of products offered would cause users to uninstall all of those fileshare products if the price was right.

    Trying to increase copyright law enforcement when the breaches are due to author negligence in obeying market forces is like subsidizing an entire industry. It will prevent innovation and simultaneously raise prices, as it has so clearly done in the intellectual property arena.

  • Samizdata Illuminatus

    Brian:

    Copyright doesn’t really have anything to do with contract, however much software license “agreements” would try and persuade you otherwise.

    If you sell me one of your classical music CDs second-hand, I really haven’t entered into any kind of agreement with Sony at all, express or implied. And you might be perfectly content for me to do things with it that Sony object to. Copyright law enjoins me not to duplicate the CD; contract law is silent on the point.

    One thing that Scott touched on that deserves further comment is that copyright holders are increasingly restricting how you may use their product. Originally their “license agreements” simply said that you were forbidden from copying (which statute said anyway) and that you gave up your rights to sue them if the product was shoddy.

    Try actually reading a software license someday: you can shell out hundreds of thousands of pounds on a database software license and the only rights you have to sue (e.g. Oracle) is if the shiny plastic disk is broken. In which case they’ll give you a new shiny plastic disk. If the database software scrambles your data and makes the screen flash until your monitor explodes – hey, we’ll fix that in version 10.

    Since the software industry has got away with that unchallenged for so long – and partly because this dubious practise is now sanctioned by new legislation – rights holders are placing new restrictions on what you can and can’t do.

    – You can’t play a DVD bought in America on a player in the UK, or vice-versa.

    – Most PCs come with Microsoft software pre-installed. Selling that software second-hand with the PCs is forbidden, even if you don’t keep a copy.

    – You must not play DVDs on your PC if you use Linux.

    – You must not import video games from Japan for your X-Box. If you modify your X-Box so it can play imported games, Microsoft will cripple it when you connect to their online gaming network.

    – You can’t play certain music CDs on your computer at all.

    – Legal MP3 music downloads from music publishers are “licensed” for a single device: if you want to play it on your PC and on your car stereo you must pay twice; only playing on one at once – or even deleting it from the other – is not good enough.

    – No you absolutely cannot lend an Adobe e-book to a friend, like you do with paper ones. Not even if you destroy your own copy.

    None of these restrictions are really a voluntary agreement with the manufacturer: I’m not buying from the manufacturer. Indeed, in the case of Microsoft software (for certain) and others (I am confident), the manufacturer absolutely refuses to deal with an end-user directly, under any circumstances, because that would give the end-user rights too.

    While an “authorised dealer” will certainly impose the conditions the manufacturer demands be imposed, this is not true of the person selling 2nd-hand in Loot or eBay. Even if that vendor is breaking their own agreement, contract law says take it up with them, not me, the 2nd-hand customer.

    But none of this really helps answer the question of whether copyright is a true property right, any more than those libertarians above who say that they’d starve/have to work in B&Q without it. I’m just pointing out that de jure rights are increasing as fast as de facto ones are shrinking.

    Oh, and Della points out that “the right to copy is not a goverment creation, it was recognised before the state became involved”. Quite correct. Copyright is not the “right to copy”, it’s the right to prevent other people copying. And that is quite definitely a legal/state/government invention.

    Also, Della, with regard to your assertion that some tangible property is as “divisible” as intellectual property: if my careful and lengthy attempts to distinguish between ‘possession’ and ‘value’ (and differing the implications of each) were not sufficient to prove to you that IP is qualitatively different to tangible property (whether or not this is a relevent distinction), then I’m afraid I’ve reached the limits of my powers of explanation.

  • Ralph Phelan

    Ted, Scott and Samizdata Illuminatus have hit on an important issue.

    Looking into my own heart, I find that on a purely emotional level I am far more willing to stick it to a movie studio or record company than to a print publisher, and even less so to a patent holder. I think my feelings are related to this:

    Rights holders are extending the utility of their rights both through technology and through aggressively-lobbied legislation. Copyright term protection has increased from 18 years to 30 years to 50 years to 70 years. The software industry has avoided the most product liability and fitness for purpose regulation by imposing “contractual license terms” on customers that depend, for their applicability, on the notion that you must copy software to your PC in order to run it, and so once you’ve bought the program disc you still need to contract for a license. Under the Digital Millenium Copyright Act, and the similar European Copyright Directive, you can’t even alter the protected item for your own use, e.g. making a DVD designed for Region 1 (USA) play in Region 2 (UK). And, of course, the music and movie and software industries are all trying to move to a pay-per use model, thereby capturing repeat payments from all those who don’t need yet another new wordprocessor for their personal letters and like the Beatles, not Ms Dynamite.

    Rights holder organisations have Congress, Parliament, the Council of Ministers, WIPO and the 9th Circuit (on both sides of the Atlantic) in the palm of their hand….

    If they were still asking for just the traditional (in the USA)18 year monopoly and allowing me to make use of their wares however I chose once purchased, I might care about the interests of copyright holders.

    But instead I see copyright holders as being in the business of government-mediated theft, with the entertainment industry being the most egregious offender. So screw ’em!

    Intellectually, I know that Alexander Hamilton’s 18 years is not obviously more “right” than Sonny Bono’s 95 years. But emotionally, it’s Alexander Hamilton vs. Sonny Bono, dammit! Who would you side with?

    I suppose mine is more of a “conservative” reaction than a “libertarian” one, given its basis in my resentment of the overturning of traditional rights and privileges The only “libertarian” justification for my position is that the constant changing of the rules to benefit certain players is a wrongful attack on the rights of everyone else.

    So is committing piracy justified as a way to punish the folks who gave us the DMCA?

  • PR

    Your argument fails from a post/ante perspective.

    You are evaluating the “value” of intellectual property from the position after it has been created. Your argument is a popular one: it’s already been made-one more copy is easy/cheap/insignificant.

    But that is the entirely wrong position from which to analyze the value of IP.

    You must instead analyze the value of IP from the position *prior to* its creation. The key factor: What incentive is there for me or my company to invest capital to produce or invent this IP?

    From this perspective, without an incentive to create an enforceable property right in which to protect my IP, I either will not create it, or I will keep it secret as long as possible. Both results do nothing to advance the sciences and arts.

    While certain copyright extensions are laughable, our society has, and hopefully will continue to, value the great risks artists and inventors take in creating IP and bringing it to market. As a society we reward this risk with a copyright or a patent.

    The freeloader is a pathetic animal. Let him create, just once, an article of value. And in the same laws he once detested and fought to tear down will he find his refuge.