Federal Court Rules Woman Must Pay As Much As $40,000 for 37 Songs She Downloaded At Age 14

We have continued to follow the outrageous expansion of copyright and trademark litigation (here and here and here), particularly the recording industry which is seeking crippling penalties for downloading song. Now, the industry has succeeded in nailing Whitney Harper who was between 14-16 years old when she downloaded 37 songs. The Court of Appeals increased the penalties against her — amounting to as much as $40,000.

While the parties agreed that she would be liable for $200 a song (under the “innocent” downloading figure), the industry said it would seek $750 if she challenged them on appeal.

Harper is now about to graduate from Texas Tech with a degree in business communications and the ruling may cause her to declare bankruptcy.

After intense lobbying from the industry, Congress has refused to do anything about these draconian penalties.

For the full story, click here.

63 thoughts on “Federal Court Rules Woman Must Pay As Much As $40,000 for 37 Songs She Downloaded At Age 14

  1. Under the Statute of Frauds or Anne could she have disaffirmed this implied contract as not a necessity? Would not the Statute of Limitations kicked in one year after he 18th Birth Date?

  2. “After intense lobbying from the industry, Congress has refused to do anything about these draconian penalties.”

    Congress dosen’t do anything about anything.

  3. In the UK things are even worse. One of my neighbors owns a small garage business and last year the “copyright police” walked into his garage and threatened to fine him £1200 for having the radio on. They then did the same to the hairdresser over the road.
    The excuse given was that customers and visitors could hear the music, which therefore counted as a public performance, which over here requires a license costing several hundred pounds.
    He really should have a large dog for these occasions.

  4. Why take the bankruptcy? As a student she is likely judgment proof. I would let it ride unless I found employment at which time I would make them an offer of $200.00 per song — take it or leave it. They’ve made their point.

  5. Thank you George Bush and the conservative movement for your court appointments. These are not only incompetent judges, but also faulty human beings. I don’t necessarily disagree with the concept of intellectual property rights, but we have seen in recent years the corporate rush to claim and enforce them even on natural genetic material. If this trend of corporate exceptional-ism continues, we will live in a world controlled in toto by corporations and run by a corporate oligarchy.

    When I was in law school, however briefly, I learned of something called equity. It was a common-law doctrine that could be applied to reverse the effects of a literal reading of the law that provided too harsh an outcome. These judges were so swept up in affirming the rights of their corporate masters that they lost sight of the fact that they were dealing with an actual human being.

  6. By the way seeing it on the RCC thread reminded me. The Grateful Dead and others have allowed free downloads for years and yet they still make money. Perhaps that is the difference between greed and artistry.

  7. Mike S.,

    If they are attenuated to an educational function then I think that they are free forum downloads. However, to attempt to make a profit then I think that this runs the risk of violations.

    Neil Young as great as he is has taken off of a number of site the ability to listen to his music for free. He does have a web site that you can listen to it for free as well as bing.

  8. For years and years the recording industry, and the lawyers associated with them, failed to grasp the impact of the internet on their business. Having lost the opportunity to make billions of dollars over those lost years for themselves and their clients, they now try to play “tough guys” hoping to collect a few retroactive thousand … anserine businessmen!

    Newspapers find themselves in exactly the same spot.

  9. I don’t understand how the activity of a minor can be held as a violation when she got old enough to become a valid defendant. If the activity in violation was committed when she was 14, wouldn’t her parents have had the legal liability?

    Even with an award of $40K, I doubt this did anything but help pay for the corporate counsel. This was all about making a point. The intent of the recording industry had to be to shock the public.

  10. mespo,

    Or any other person legally trained. Why did not they bring up the Statute of Frauds, unenforceable against a minor, if it was enforceable it must be in writing if over 500 per the UCC or the antiquated one the Statute of Anne or the current adaptation of the same.

  11. Duh,

    Dr. Freud, if you had read the main article it would have stated that the father was initially named in the law suit. I am unsure what happened to him but from the case it states

    “To ensure that each of the 544 audio files was a downloadable file, MediaSentry initiated a download of the entire group. The company captured screen shots showing all of the files that Harper was sharing. It also captured the metadata associated with each file, which included the name of the artist and song. This information allowed Plaintiffs to identify those sound recordings on which they held a copyright. MediaSentry fully downloaded six of the audio files from Harper’s “shared folder.” Subsequent discovery indicated that Harper had downloaded all of the files from the Internet to the computer without paying for them, and that she had not copied, or “ripped,” any of the songs from compact discs that she had bought legally.”

    Don’t we have some privacy violations in the case? Other peoples expectation of privacy? It was after all a “Home Computer”


  12. AY,

    I did not post as Dr. Freud. Wouldn’t it be easier to just ask?

    I did read that the father had originally been named, but I was surprised that he was dropped. Can the daughter assume liability (in the case) ex post facto? I could see an agreement between the father and daughter to assume liability, but I just don’t see how she can assume legal liability for something she did as a minor.

    As far as MediaSentry goes, there is no privacy violation there. What they do is download what is being offered by the host, and then report the origin and metadata. It’s kind of like accepting free cookies, analyzing them, finding poison, and then prosecuting. It’s not like they broke into the family computer. The installed software (Kazaa) was saying “Here. Want some? They’re free”.

  13. I’m with Blouise. I blame it on industrial greed and stupidity on the part of the record industry. Times they are a changing and they are acting like someone not ready to drown unless they can take somebody with them to the bottom.

  14. Danny Colligan,
    Thank you for posting the link to your article. Not only was it excellently written, enormously informative, but it also was extremely persuasive as to the deleterious effects of the copyright concept/regulations. I would recommend it to anyone interested in the subject and I’ve added the site to my bookmarks.

  15. Danny Colligan:

    So a musician or a writer has no rights? They must labor for what? If their intellectual work has a price in the market of $10 by transmitting that work you are taking $10 from their pocket as surely as if you had been a pick pocket.

    How long does a piece of music or a book take to write? A day, a year? Why do you have a right to that persons life? You don’t, they do.

    The basic premise of your article is that rights don’t matter, if I want something I should be allowed to have it, that it took someone time and effort to create it is of no consequence. Their life doesn’t matter only me, what I want, now.

    By your logic every inventor, scientist, producer, writer, poet, painter, architect should just share with humanity their life’s work. You say you are talking about only copyright, you are not you are talking about work someone has done. Work takes time and this time is part of someones life. Why should a person work for free? I would call that slavery.

    If a poem is good or a song is good and people want to read or listen to them, why shouldn’t the author/composer receive money from each person who values the works enough to pay for them? Madison didn’t want people to have exclusive rights in perpetuity because he figured someone would create it eventually anyway, although that is a rather specious claim.

    Basically what you are promoting is the enslavement of an entire class of people, the ones who create. Is that fair to them? If they want to give the song to the world then that is their choice, it is theirs. It is not my choice and it certainly is not your choice.

    If you take your line of thinking to it’s logical conclusion you are promoting the elimination of all property rights. And why? Because all property no matter what kind has it’s roots in the creative and productive energy of a persons life. To make any product of a persons life not his own is to deny all of a persons productive energy. You enslave them pure and simple.

    Are you a slave master?

  16. Byron,
    Did you read Danny’s article where he addresses your points?
    Can you refute what he says with more than statements of your opinion. From a libertarian point of view I would think you would see some common ground. Particularly when it comes to internet privacy concerns.

  17. Mike:

    Privacy certainly, but I don’t think I have a right to down-load songs for free if they are copyrighted. I don’t own them. I have harped on my children about this till I am blue in the face. The younger generation doesn’t seem to understand that those songs are someones property and that property rights are the basis of our society.

    Anarchy, Mike, I tell you Anarchy.:)

  18. “Anarchy, Mike, I tell you Anarchy.”

    Isn’t that good since anarchy is just another name for libertarianism. Get government out of our lives. Don’t control the free market through regulation. The songwriters will find a free-market way to make money. Copyright is regulation controlling the free market. That’s bad isn’t it. What’s the harm?

  19. Mike:

    only problem is I don’t believe in anarchy and I think that some government is necessary for protection against those who would initiate force against us both internally and externally.

    You know how I do love the free market.:)

    Why don’t you like the FED. Resv.? You are pretty libertarian in your social views, you are for individual rights as well.

    Copyright regulation is protecting individual property and by extension the individual. It is not regulating the market. The market is made up of individuals, it is not some amorphic entity. So contrary to regulation, copyright protection is actually protecting the market. If I were a cynic I would say people who are against copyright protection are against individual rights and for totalitarianism. I would say they are totally against the founding ideals of our Republic. But since I am not a cynic I will say they have a right to their opinion and I just disagree.

  20. Byron,
    Just a bit of attempted petard hoisting. Seriously, did you read Danny’s article, he states the case far better than I can. My bottom line in this though is not about political positioning on the Left/Right continuum, or following someone’s idea of a party line. In the end I agree with Danny because the clear subtext of his message is that if this copyright trend continues the free Internet as we know it will be toast. Since I believe that a free Internet is humanity’s last best chance to reverse domination by a corporatist oligarchy, in balance I’m on the side of those who believe copyright monopoly is destructive and will in the end be destructive of any hope of a free market.

    As someone being kept alive by the discoveries and ministrations of the Medical field, I’ve got a rooting interest in the prevention of a monopoly of ideas. There is already one beneficial drug that I simply can’t afford and I’ve got as good medical and pharmeceutical coverage as most anyone. It won’t kill me not to take it, but it will help me feel better. Trouble is it would cost me $456 a month and I can’t afford it even though my fixed income certainly is not impoverished.

    While I know you to be a compassionate human from your writing, where we differ is that I see the problems of the world in terms of their effect on average people and you see them macrocosmically.

  21. Mike:

    “While I know you to be a compassionate human from your writing, where we differ is that I see the problems of the world in terms of their effect on average people and you see them macrocosmically.”

    I try to look at things conceptually. I am of the opinion that by dismissing copyright law we are reducing individual freedom. In the end a reduction/elimination of individual freedom will bring about a controlled Internet, it will not keep it free.

    You cannot willy nilly usurp individual rights, taking a piece here and a piece there. Eventually you end up in the place you fear and you will wonder why and the answer will be – I did not think “macro-cosmically”, i.e. conceptually.

    When you protect individual rights you protect society. Society is nothing more than a group of individuals, you diminish their rights at the risk of society as a whole. We saw that in Nazi Germany and Communist Russia.

  22. Mike,

    Thanks for the praise. I’m glad you enjoyed the article. (Feel free to forward it to other interested folks because right now the article is languishing in obscurity:) )


    Like Mike says, please read my article. I address all of the points you are making. (In particular, read the section ‘Copyright infringement is not “stealing” nor “theft” nor “piracy.”‘) After you read the article, if you want, feel free to contact me. I am very open to feedback about my work.

    Interesting you bring up communism in your last post. Richard Stallman remarked once that copyright enforcement is closer to communism than copyright abolition is because copyright enforcement requires perfect monitoring of all copying machines, as authoritarian communism did.

    Anyways, if you are a fan of libertarianism, then perhaps you respect the opinion of John Gilmore, who I quote in my article.

    I think that after thinking considering the issue, you will see that physical property, like chairs and cars, is very different from information.

  23. Danny:

    “I think that after thinking considering the issue, you will see that physical property, like chairs and cars, is very different from information.”

    This is where you make your fundamental error. There is no difference and for the reasons I stated above. It all comes from individual creative effort.

    I think you need to rethink your position, mine is the correct one. Whenever the individual is not protected you end up with a dictatorship. Elimination of copyright law is a diminution of individual freedom.

  24. Byron,
    You surprise me. not with your views but with your resistance to a least reading the man’s article. I vouch for the fact that is thoughtful and well-written. You may well disagree with it but perhaps it might give you insight into where this side is coming from.

  25. Mike:

    Ok, I read it. I disagree even more now than I did when I only had read about a third of it. It goes beyond even Marx, at least he [Marx] was willing to grant labor their just compensation.

    It may indeed be well written but it is not well thought out, how can you condone the usurpation of an individual’s rights by saying if we don’t individual rights will be compromised? A person has a right to his work which is property which is an extension of his life.

    I believe Cicero said government is for the protection of property. By not protecting property in the form of copyrights you are nullifying government’s proper function and descending into Anarchy. It is a bad idea to indulge someone’s immediate gratification at the cost of individual liberty.

    Maybe the 95 year law needs to be changed back to 15 or 20, but beyond that I fundamentally disagree with his argument for the reasons stated in previous posts. There are also ways to charge that wont make everyone a law breaker. If I was an artist I would just make money in concert and on the sales of T-shirts and other paraphernalia during concerts. Business models will change but copyright protection should remain. It all goes back to the productive and creative energy of individuals and their right to benefit from their work. All other arguments for or against are smoke and mirrors.

    Does an individual have a right to life and property or does he not? If he does not then we are all slaves to the great collective, society. But as I said above society is comprised of individuals and when the individual is not held in high esteem the result is Nazi Germany or Soviet Russia. An elimination of copyright protection is one more step down that road.

  26. Byron:

    “I think you need to rethink your position, mine is the correct one.”

    Well, I guess that settles it, then:)

    I think what you’re misunderstanding is that copyright, like any other government policy* — whether it be patents, highway speeding laws or alcohol prohibition — is not a right. It’s a decision that a country comes to, ideally via a careful weighing of the costs and benefits. Copyright law was given, it has changed over the years, and it surely can be taken away. The question becomes: do we, as a society, feel that we want to abolish copyright? I believe the answer to this question is yes.

    * Aside from a handful of inalienable individual rights enshrined (at least in the Untited States) in the Bill of Rights. Notice that copyright, a government-granted monopoly, is not one of these.

    “Elimination of copyright law is a diminution of individual freedom.”

    You’ve got this exactly backwards. Copyright law enforcement _reduces_ individual freedom. Because of copyright law, you can not do the following things with, say, software: modify it, run it, study it and distribute it. Clearly these are restrictions on what you can do that are brought about via copyright.

    The above are the four freedoms that Richard Stallman articulated many years ago, and his Free Software movement is the intellectual ancestor of the Free Culture movement. http://www.gnu.org/philosophy/free-sw.html

  27. Byron,
    When a drug company develops a cure for a given disease via genetic means and they then claim the genetics as intellectual property for 95 years, I would hate to have further research dependent on their monopoly rights. That doesn’t sound like a free market to me. Also how come the Grateful Dead are so rich, even after Jerry Garcia’s death and you can download their songs for free. Answer: They use a better business model, isn’t that what your free market is about. When government grants individuals or companies monopolies, that is not the free market. Allowing a government to pick and choose between the bestowing of monopoly powers is a quicker way towards the slavery you decry.

  28. Byron,
    Furthermore, are you aware that Red Rice Yeast, an over the counter, non-prescription medication, had until 2007 the same ability to lower cholesterol that Lipitor, Crestor and all the other statins had? The difference was it was about one fifth the cost. At the behest of the drug companies the various makers of Red Rice Yeast were ordered by the FDA to remove the statin-like ingredient it contained. This was even though Red Rice Yeast contained this chemical prior to statins coming on the market. The drug companies “intellectual properties” were retained and the statin drugs are hugely high priced in the US.
    This is free market economics, or is it robbery. What would Ayn Rand think about it. You can’t have it both ways or your opinions become muddled. That by the way why I’ve constantly haranguing you that there is no free market and that’s the way the corporate world wants it.

  29. Mike/Danny:

    so what you are saying is that if I write a computer program it is not mine? And that anyone gets to use it to make a profit?

    Intellectual property is property, what do you think a patent is?
    You mention cars, planes, etc. where do you think they come from? The ether? No people design them before they come into existence. They are merely thoughts on paper or 0’s and 1’s in a computer. Their existence is based on human activity.

    I have read that you cannot patent genes and anyway patents are only in effect for 17 years I believe.

    As I said above 95 years is probably too long but people need some amount of time for the exclusive rights to benefit from their work.

    I don’t see how a government can grant you a monopoly on work you created, it is your work you are entitled to it. So what you are saying is that no one has a right to their own work and that government owns all the work that anyone does and then “lets” them use it?

    This is a bad idea on a number of different levels, this would be a negation of individual rights. Free shit may sound good and I have from time to time thought about downloading free music but I don’t because I don’t own it. Respect for property rights are a necessity for a civilized society.

    The next thing you will be promoting is taking land from people because it is necessary to keep people from breaking zoning laws.

  30. Mike:

    The red rice yeast example is not an example of a free market. It is yet another example of Fascism. Do you actually think I agree with shit like that? I dont. Business and government have no business being in bed together.

    By the way celery also lowers blood pressure and was used as a medicine in the middle ages. It does work I tried it. My blood pressure is usually about 125-130/80. I ate about 6 stalks of celery about 2 hours before a doctors visit and it was down to about 117/80.

  31. Mike:

    I want a free market and that is why I want a free market. Let these mother fers actually have to compete sans the heavy hand of government.

    If I had had the office, I would have told the Pharma companies to go get a life and that a natural compound found in yeast cannot be patented. Because it was not man made. However there ought to be some sort of protection for companies that spend years searching for different natural compounds to allow them to recoup some costs.

    Although who do you give the rights to? The Amazonian witch doctors who have been using the medicine for a 1,000 years or the drug company that “found” it?

  32. Byron,

    If you write a computer program and release it to the world, then yes, I think that it is unreasonable to expect everyone restrain themselves in doing what they would ordinarily do (distribute the program to others, for example) merely for your financial gain (especially in light of all the problems that go along with copyright that I discuss in my article). If you don’t want people sharing your information, then don’t release it. No one is forcing you to.

    Intellectual property is not property. The fact that “intellectual property” has “property” in its name is simply an unfortunate semantic coincidence (actually, probably not a coincidence, because the people that created the term profit from the position that you are taking — that is, that intellectual property is the same as physical property). The two really have very little to do with each other.

    If you doubt me, try to perfectly and instantaneously replicate a physical object (say, a chair) across the world over a computer network for essentially zero cost. If you can, perhaps you should contact your local physics department — I’m sure they’d be interested in your breakthrough results.

  33. Danny:

    At some point every object made by man was a conceptual idea. From the first wheel to the Space Shuttle, it began as someones idea. If I have an idea that I can patent, copyright, etc. I can eventually make money with that idea, assuming of course I have an idea that someone else thinks is worth paying money for.

    You do not yet understand the nature of productive creativity nor do you understand individual rights. If you did you would not be proposing the elimination of copyrights.

    I am guessing you are between 25 and 30. I think you mean well but you are severely misguided.

    Sec. 44. From all which it is evident, that though the things of Nature are given in common, yet Man (by being Master of himself, and Proprietor of his own Person, and the Actions or Labour of it) had still in himself the great Foundation of Property; and that which made up the great part of what he applyed [sic.] to the Support or Comfort of his being, when Invention and Arts had improved the conveniencies of Life, was perfectly his own, and did not belong in common to others.

    John Locke
    Two Treatises of Government

    It takes a lot of work to get to this point, it took humanity 50,000 years to develop enough to have one of our own write the Declaration of Independence. Individual rights and property rights are not easy to understand given the example of most of human history. You are taking us backward while thinking you are doing something good for society. If the individual suffers at the benefit of society, society loses.

  34. Byron,

    “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

    Replace “idea” with “information” and you basically have my argument. Are you going to argue that Thomas Jefferson was “severely misguided” or “reducing individual freedom”?

  35. Danny:

    Good try, Jefferson was talking about the power of ideas to change men. I. E. “Life, Liberty,. . . Individual Rights, Property Rights, in general philosophical, political and religious ideas.

    He was not talking about intellectual property, patents or copyrights. And by the way the Founders read a great deal of John Locke and his “ideas” are part of the fabric of our Republic.

  36. Byron,

    Actually, Jefferson was quite clearly talking about “intellectual property.” Here’s the entire letter, for context: http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

    Or if that isn’t explicit enough, perhaps I can quote another Framer, Benjamin Franklin: “[Someone else] was so pleas’d with the construction of this stove, as described in it, that he offered to give me a patent for the sole vending of them for a term of years; but I declin’d it from a principle which has ever weighed with me on such occasions, viz., That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.”

    It’s quite clear that the founders of the country were thinking about “Intellectual Property” even back then, and at least these two (and I’m sure you agree Jefferson and Franklin were not marginal characters) came out on the side of no “intellectual property.” So I think it’s a dubious claim that the “fabric of our Republic” will unravel if copyright is eliminated if some of the primary weavers supported that position in the first place.

  37. Danny Colligan,

    You posited several very relevant historical counterpoints to Byron’s viewpoints regarding intellectual property; this is an interesting discussion.

  38. Danny:

    Benjamin Franklin was willing to do it voluntarilly. He was not being forced to do it. As I said above if you want to give it to the world, it is your idea to dispose of it how you see fit. Someone else may not want to. It is not your decision to force someone to give something they create to society, it is theirs.

    “Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility . . .”

    Jefferson from your same letter.

  39. Danny:

    Why is intellectual property any different from tangible property? Tangible property was at one time intellectual property.

    Also Madison and Jefferson agreed to let people have patents and copyrights for a certain period of time. I dont disagree with that and think you are right in saying that 95 years is too long a time. But in my opinion a person is intitled to their work whether it be intellectual or physical.

    Even physical work is the product of a persons mind. I have to know how to use an ax or a saw or a hammer and I have to know what I am building-a toy, a home, a fence. I get paid for each toy I make, what is the difference between each song or each book that is sold. By your thinking I should make 100 toys and be paid once for the prototype.

  40. Byron,

    The Jefferson quote that you have in your post is saying something that should be banal by now. Namely, that it is the choice of a society whether or not these monopolies are given out (read the rest of the sentence you quote if you don’t believe me). Later in the letter, he calls these monopolies “embarrassment[s].” He also notes that “it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.” That’s hardly a passionate argument for doling out distribution

    You are correct in saying that neither Jefferson nor Franklin take the extreme position that I do. Franklin opposes them as a matter of personal principle, as you point out, but doesn’t seem to offer any policy prescriptions. Jefferson is a member of the patent board, but seems to be coming to grips with how convoluted and contradictory the patent policies are. He does provide hints, however, that he doesn’t seem to favor the current system. Plus, he offers some fundamental insights about ideas (the candle analogy).

    The question is not whether every physical invention begins as an idea; of course it does. The question is whether it is a good public policy decision for you to come up with an idea, tell it to someone else, and then bring in the government to demand that they not act based on the idea that you told them.

    Just out of curiosity, what reason do you have for saying that 95 years is too long of a time for a monopoly on distribution? 95 is as arbitrary a number as any other, in my opinion.

    As far as your “toy” reasoning goes, I think you are again confusing physical goods and information. Physical goods exhibit scarcity and information does not. Of course I don’t think that if you make 100 dolls that you should only be paid the price of one doll for all of them — that’s silly. Like any other physical object you would probably sell and get paid for them quid pro quo. However, if we are not talking about a toy but about information, there is no scarcity: an additional copy can be made at zero cost by anyone. So if you release any information out to the public, then yes, it seems quite odd to call the government in to mandate that no one spread that information further without consulting you first.

  41. Danny:

    the 95 years, I think, was taken from a quote on your website.

    Lets take my toy analogy for a minute. Lets say it cost $1,000 dollars to develop a toy and make one copy of it, the prototype. I have figured out a way to reproduce those toys for $0.10 each. But the market value of the toy is $100.00 because everyone wants one. Should I be forced to give those toys away? The mechanism of production doesn’t matter, the cost of reproduction does not matter. All of those things are immaterial.

    What does matter is that it took individual effort to develop the toy, manufacture and bring it to market. Whether the toy is a tangible object or 1’s and 0’s on a computer is beside the point. A person has a right to his work.

    A patent is not a monopoly, as there may be more than one product that does the same thing. For example a shovel and a hoe can both weed a garden. Or you can fish using a spinning reel or a fly reel. Products compete against different products that do or can be used for the same thing.

    As far as scarcity of information, where does that information come from? I doubt a PhD candidate would agree on information not being scarce. She may have labored for 2 years to develop a new idea or a new technology that is worth millions of dollars to someone. Why are you entitled to it and for free? All information has it’s genesis in the spark of thought in an individual mind.

    Just because something is intangible does not mean it does not have value.

    Not everyone can compose or write or invent, you want to reward those who cannot at the expense of those who can. “From each according to his ability, to each according to his need”. That is what you are proposing. It is knowledge redistribution. Taking from those who can and giving to those who cannot. Since the cants are in the majority you will probably win your battle, but it will be at the expense of the individual. Our government was developed to protect the minority from the tyranny of the majority. When the individual is at the mercy of the majority you no longer have government but Anarchy. Your proposal is another step in that direction.

  42. Byron,

    I know that the current copyright term is 95 years in some cases. I am asking why _you_ think that 95 years is “too long a time.” What reason do you have for thinking that? Why not 94 years? 96? 0 (my preference)? Infinity? If “intellectual property” and physical property are not dissimilar, as you claim, then do you also advocate expiration dates on physical property rights?

    Well your toy example gets away from anything relevant to this argument (since it has nothing to do with information), but I’ll indulge you. In a perfectly competitive market, the price would drop to the marginal cost of production, 10 cents (not 100 dollars… I’m not sure why that is the “market price”).

    Perhaps you mean that demand is heavy and supply is light and therefore the price is $100? Well, putting aside that other firms would likely soon enter the market of this lucrative business (with a profit margin of $99.90 per unit), let’s ask why the price is a nonzero number. It is $100 because there is a finite supply — toys can only roll off of the assembly line so fast and there’s only one supplier.

    So let’s bring this thread of reasoning back into the argument. Information does not share the same economic properties that I described above. In particular, there is an infinite supply. Since a toy does not exhibit this property, let’s use the example of a song, which can be encoded in a stream of 1’s and 0’s (that is, it is information). The first person that obtains this song (or any other person that has a copy) can replicate it infinitely if anyone else cares to request it. There is no marginal cost (as opposed to the toy example, where you would need to pay for parts, labor, distribution, etc.) to making an additional copy. Therefore, in a competitive market, the cost drops to 0 because even though demand may be finite, supply is infinite — scarcity does not exist.

    The only way that this pattern can be stopped is what copyright holders today are doing. Namely, cooping the government to make sure that there isn’t a competitive market. They want to ensure that there is a monopoly over, say, distribution of The Little Mermaid. By ensuring that Disney is the only supplier, the government allows Disney to continue to make money off of selling copies in perpetuity.

    Sorry to contradict you, but a patent _is_ a monopoly. To clarify, let’s use the example of James Watt. After he filed for a patent on the steam engine, no one else could sell any variant of a steam engine without coming to him and getting his blessing (usually in exchange for a hefty sum). Why? Because the government granted him a monopoly, for a limited time, for distributing steam engines — that is, a patent. If you want more information on this specific case, please see “Against Intellectual Monopoly” by Boldrin and Levine. But keep in mind my article is about copyrights, not patents, two very different things.

    You are correct that all information must come into origin from somewhere, PhD dissertation or otherwise. You ask the question “Why are you entitled to it and for free?” First of all, this is the natural state of affairs without any government granted monopolies on distribution. Second of all, if a creator does not want me to have her information she can keep it to herself and that’s quite within her rights to do. Third, the government’s criminalization of people giving information to each other brings along a variety of negative consequences which I outline in my article.

    “Just because something is intangible does not mean it does not have value.”

    I agree. But when you say “value” I bet that you mean “exclusive financial exploitation of that intangible by the creator.” When I agree with this statement I am both talking about value that is not strictly financial (but can be) and also value that is not strictly the creator’s (but can be).

    You say that the elimination of copyright will bring about anarchy. Then I suppose that you must also think that before the invention of copyright, society was also quite anarchic, and that the introduction of copyright law quelled the unruly masses. This is clearly false. Also, you must think that times and places in which copyrights were not enforced (say, 19th century America where the copyrights of English authors were not enforced) were similarly anarchic. Also false. Again, if you want a good discussion of these issues, please see “Against Intellectual Monopoly.” Or, if you want a summary of the history of copyright, please see: http://questioncopyright.org/promise

  43. Danny:

    “Well, putting aside that other firms would likely soon enter the market of this lucrative business (with a profit margin of $99.90 per unit)”

    Not if I have a patent, I get to recoup my initial costs for a certain period.

    “Sorry to contradict you, but a patent _is_ a monopoly.”

    False, a patent is not a monopoly for the simple reason that there are other competing products. I will concede that in a given time period you may have a “monopoly”, like your steam engine example. But there are now many different methods of transportation each competing with one another.

    “They want to ensure that there is a monopoly over, say, distribution of The Little Mermaid. By ensuring that Disney is the only supplier, the government allows Disney to continue to make money off of selling copies in perpetuity.”

    The Little Mermaid is Disney’s property, they created it. They should get the benefit. But it is not a monopoly, they are competing with many different children’s videos for market share.

    “But when you say “value” I bet that you mean “exclusive financial exploitation of that intangible by the creator.””

    So making a buck off your own energy and intellect is exploitation, not in my world, we call that industriousness and ambition. Some people want to do well in life, if they do it with hard work and integrity it is not “exploitation”. I would say preventing them to realize a reward from their hard work is exploitation.

    “You say that the elimination of copyright will bring about anarchy. Then I suppose that you must also think that before the invention of copyright, society was also quite anarchic, and that the introduction of copyright law quelled the unruly masses.”

    I dont know when copyrights were first invented but I find it interesting that they were incorporated into our founding documents. The reason being, the United States is probably the only country in human history to recognize the individual right of a human being to exist for nothing other than himself. Your copyright elimination wants to make some men slaves to other men. I would call the tyranny of the majority Anarchy.

    You either believe in individual rights or you do not. This idea does not promote an individual’s right to his own life and the product of his energies, whether intellectual or physical.

  44. Byron,

    “Not if I have a patent, I get to recoup my initial costs for a certain period.”

    This is exactly the point. Patents destroy any possibility of a competitive market.

    “False, a patent is not a monopoly for the simple reason that there are other competing products.”

    Again, the very definition of a patent proves you incorrect. See the James Watt story for an example. There can’t be competing products because of the patent. Sure, others can produce other types of engines, but no one else can produce anything similar to a steam engine. Hence, a monopoly on financial exploitation of the steam engine idea.

    For copyrights, the same holds. No one can produce The Little Mermaid except for Disney. Sure, others can distribute other movies, but no one else can distribute this particular one. Hence, a monopoly on distribution of The Little Mermaid.

    “Some people want to do well in life, if they do it with hard work and integrity it is not “exploitation””

    I’m not using “exploitation” in the “the capitalist pigs are exploiting the poor workers” sense. It is merely a technical term that means that no one else besides the creator can enjoy the same financial benefits from the invention by virtue of the patent.

    “I dont know when copyrights were first invented…”

    If you read the link I had in my previous post, you will find out. I think if you do a little research you will find that they are certainly not correlated with the liberation of humanity. Quite the opposite: they were created as a tool of censorship and oppression. Here is the link again: http://questioncopyright.org/promise

    I noticed you didn’t answer my question in my previous post, I would like your opinion on it:

    “I know that the current copyright term is 95 years in some cases. I am asking why _you_ think that 95 years is “too long a time.” What reason do you have for thinking that? Why not 94 years? 96? 0 (my preference)? Infinity? If “intellectual property” and physical property are not dissimilar, as you claim, then do you also advocate expiration dates on physical property rights?”

  45. Danny:

    I read that article and in my mind it comes down to a persons rights to do what they want with something they created.

    And maybe intellectual property should belong to the inventor and his heirs in perpetuity. After all land can be handed down so why not intellectual material.

    I have no problem with people giving away anything they want, it is theirs. They have a right to dispose of it as they see fit. But you don’t have the right to tell someone that doesn’t think that way to give up his rights.

    It is pretty simple, you either believe in individual rights or you don’t. If you don’t fine, but don’t make the rest of us that do abandon our rights and force us to “share” when we have no desire to follow the admonition of our kindergarten teachers.

  46. Danny,

    As often as Byron misinterprets individual rights as applied to capitalism, I will have to side with him. But only on a technicality. You presented a fine case for your assertion. However, we must really address patent as discrete from copyright as the “down stream” negative anti-competitive effects of both manifest differently.

    I stipulate that both areas of law need serious reform and share your disdain for current patent practices in particular. But I think you are remiss if you don’t consider that the concepts in their base form, e.g. patents to protect innovation and copyright to protect IP. They do retain utility in that they assure the creators get some share of the fruits of their labors before the knock off artists come along for the ride. But the forms, much like corporations, are often abused. One only has to know about patent trolls like SCO or the manipulation of drug prices to see that. I submit that patent and copyright are simply tools. And like all tools capable of proper use and reformation as much as they are capable of misuse and distortion.

  47. Byron,

    Copyrights and patents sound great on paper. So it is no surprise that someone (Ayn Rand in this case) would argue for them a priori. However, we do have the evidence of many years of experience both with and without copyright. It is when one looks at historical evidence of the pros and cons of “intellectual property” that the scales tilt in favor of eliminating it. So it’s really hard to take seriously an argument, such as hers, that doesn’t take these facts into account.

    For a response to the “Why don’t we have infinite copyright terms?” (an opinion article in the New York Times three years ago actually proposed this ludicrous idea), see: http://wiki.lessig.org/index.php/Against_perpetual_copyright
    (Also note that Lessig and his wiki minions are not in favor of copyright elimination, so this article takes more of a moderate stance than mine.)

  48. BIL,

    Thank you for pointing out that copyright and patent are completely separate issues. My article is exclusively about copyright and it’s unfortunate that arguments about copyright eventually take this “Well what about patents?” tangent.

    I think your position that patents and copyrights would be fine if people stopped abusing them is misguided. In terms of copyrights, I address this specific response in my article: http://questioncopyright.org/what_we_lose_when_we_embrace_copyright#tweak There are just too many problems that would persist even with the most enlightened reforms of copyright law. If you haven’t read my article yet, I’d be interested in your opinion after you have (especially since you’ve been watching the debate on this thread play out).

    For why your position is misguided in response to patents, please see “Against Intellectual Monopoly,” which is written by two economists and mostly about patents: http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

    Here is one quote (from page 32 of the PDF):

    “[The knock-off artist] argument may sound smart and “oh-so-commonsense” right when you hear it the first time — but pause for a minute, and you will realize it makes no business sense. Picking only winners means waiting until it is clear who is a winner. Well, try it: try getting somewhere by imitating the leaders only after you are certain they are the leaders. Try ruining the poor pop star by pirating her tunes only once you are certain they are big hits! Excuse us, we thought that “being a hit” meant “having sold millions of copies.” Try competing in a real industry by imitating the winners only when they have already won and you have left them plenty of time to make huge profits, establish and consolidate their position — and probably not leaving much of a market for you — the sleek imitator.”

  49. Danny:

    she is arguing from a conceptual standpoint, namely that of individual rights and the Lockean concept of human beings having a right to their productive energy.

    You have no compelling a posteriori evidence to refute copyright law. The article you posted above about the history is more an indictment of government intervention than anything.

  50. Byron,

    “she is arguing from a conceptual standpoint, namely that of individual rights and the Lockean concept of human beings having a right to their productive energy.”

    As are you.

    “You have no compelling a posteriori evidence to refute copyright law. ”

    Well, that’s what my article was all about.

    I’m going to have to end our discussion here because we keep going in circles. Thanks for your opinions.

  51. Danny:

    Thanks for the information about this movement, I was unaware of it prior to your posting. I have learned a great deal and appreciate your comments which have furthered my understanding.

    As far as circular arguments are concerned, you are right. I stated my case in the first post. What else is there to say about this? It boils down to “you believe man has a right to his productive efforts or you don’t”. It is a 0 or a 1. There is no in between and all that I read [the links you provided] was an attempt to rationalize the taking of individual rights by a group of people who do not respect private property.

  52. Danny and Byron,
    Thank you for the very enlightening exchange. I stayed out of it because I thought you both were doing a great job of staing the opposing positions. My support on this issue goes with Danny, but Byron you’d have guessed that already knowing me, but the posts from both sides were informative in making up my own mind on a topic i’ve given little thought to. This represents the best of what we do here at Professor Turley’s blog.

  53. Mike S:

    where are you? Are you having too much fun in “sunny” Florida to hang out a little?

    I hope all is well with you and the family.

    I need to get “swatted” down, my capitalistic tendencies are running wild without you around:)

  54. […] of damages the law calls for ends up disproportionate to the problem they are supposed to address. Jonathan Turley writes at Res Ipsa Loquitor about a woman ordered to pay $40,000 for 37 songs she do…. On the other hand, sometimes the damages the law calls for are too low to be any sort of effective […]

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