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.
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.
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.
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.
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.
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.”
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.)
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.
Danny:
some info I found on copyrights and patents. the author agrees with you on some points and with me on others.
http://aynrandlexicon.com/lexicon/patents_and_copyrights.html
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.
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?”
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.
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
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.
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
monopolies.
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.
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.
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.
Danny Colligan,
You posited several very relevant historical counterpoints to Byron’s viewpoints regarding intellectual property; this is an interesting discussion.
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.”
http://www.gutenberg.org/cache/epub/148/pg148.html
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.
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.