b0rsuk
Level: Smiter

Rank Points: 489
Registered: 11-23-2003
IP: Logged

Techdirt has a very interesting serries of articles about so-called Intellectual Property. The article I link to is pretty short, but links to other such articles. All of them together resemble a pyramid built of bricks supporting each other.

If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

From the article:

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears.

Some other quotes. If you don't want to miss any context, use the link above.

However, when it comes to infinite resources, there's simply no need to worry about efficient allocation -- since anyone can have a copy. The purpose of copyright (and of patent law), then, wasn't the same as the purpose of property law. It has nothing to do with more efficient allocation of scarce resources. Instead, it's a government-granted incentive -- a subsidy -- to encourage the creation of new works. In other words, it was a case where the government believed there was a market failure. That is, they believed that without this incentive, certain intellectual works wouldn't be created -- and the tradeoff between locking up that idea and creating more content was one that was worthwhile. However, they always knew that it was a tradeoff -- which is not at all true for real property.

Healy comes out on the balanced side himself, suggesting that infringement is close enough to theft. He does so by comparing it to "theft of service" for cable companies, and noting that "you're still acquiring something of value without paying for it, and you're doing it without the seller's permission." This is a commonly used argument, and seems reasonable at a first pass, but I'd like to address why it's incorrect. Just because you acquire something of value for free (and without the original seller's permission) it doesn't automatically make it "theft." Let's run through some examples:

* I go to the pizza shop and they offer me a free soda with two slices. The soda has value, but I just got it for free, and did so without Coca-Cola granting permission. I don't think anyone would claim this is stealing or even wrong or immoral.
* My friend lets me borrow a book, which I read. The book has value. I got it for free, without the permission of the book author or publisher.
* I get on a train and pick up the newspaper that a passenger left behind. The newspaper has value. I got it for free, without the newspaper company granting permission. I don't think anyone would claim that's stealing.
* I go to the beach. The people sitting next to me are playing music on their stereo, that I can hear. The music has value, but I just got it for free, without the permission of the record label.
* I go see "Shakespeare in the Park." I get to see something of great value for free, without permission of William Shakespeare.
* Verizon sees that Sprint is going to announce an "all you can eat plan" and decides to introduce its own similar plan. Verizon got that idea for a bundle from Sprint for "free" and certainly without Sprint's permission. Yet, we call that competition, not stealing.

You can come up with your own examples. Now I'm sure people will start picking apart each of these examples. They'll say things like in the pizza/soda example, the pizza shop has implicit permission to resell the soda at any price they deem reasonable, since they paid for it in the first place. But, if that's the case, then we have another problem for those who claim that copyright is real property -- because the same thing isn't true with copyrighted material. Those who insist that copyright is the same as real property break their own rule by also insisting that they retain perpetual rights to the good, even after it's been sold. If copyright were like real property, after the creator sold it, the buyer could do whatever they want with it, including giving it out for free. Yet, it clearly is not like that. Coca-Cola sold soda to the pizza shop and the pizza shop can do whatever they want with it, including giving it out for free. So, if the entertainment industry wants to keep insisting that copyright is just like real property, and therefore infringement is theft, then they should also agree to let anyone who has bought their works do whatever they want with them, including give them away for free.

In fact, each "but, this is different because" explanation for the examples above can easily be turned around to prove the point that copyright is different than real property -- because it applies the same rules differently and deals with fundamentally different types of goods or services.
Thought-provoking ?

____________________________

http://www.gamasutra.com/features/20051128/adams_01.shtml

mrimer
Level: Legendary Smitemaster

Rank Points: 5058
Registered: 02-04-2003
IP: Logged

Thanks for the link, excerpts and discussion, b0rsuk. I like thinking on this topic. I agree with some concepts related here, but disagree with most examples and much of their accompanying argument. I'll provide my responses. Note I'm not taking the examples out of context, but am considering them within the scope of the discussion of your entire post.

b0rsuk wrote:
Just because you acquire something of value for free (and without the original seller's permission) it doesn't automatically make it "theft." Let's run through some examples:

* I go to the pizza shop and they offer me a free soda with two slices. The soda has value, but I just got it for free, and did so without Coca-Cola granting permission. I don't think anyone would claim this is stealing or even wrong or immoral.

Sure, no one would consider it stealing, but this comparison doesn't make sense. As you point out, Cola-Cola does grant permission for people to redistribute or resell their drinks any way they want to, as long as the product was bought from them in the first place. I would assume the pizza shop is purchasing the soda they are in turn giving away for free. If there's a theft here, it would be the pizza shop to blame, not the customer they redistribute it to.

* My friend lets me borrow a book, which I read. The book has value. I got it for free, without the permission of the book author or publisher.

This is inaccurate: Licensing terms by publishers typically *do* allow for trade, resale, borrowing, etc. Case in point: Public libraries. Are we saying that government-run public libraries are doing something illegal or unethical by purchasing books and letting people borrow them against the will of the publishers? Absolutely not. However: certain publications (e.g. technical or scientific journals) might be released with more restrictive licensing terms in place.

* I get on a train and pick up the newspaper that a passenger left behind. The newspaper has value. I got it for free, without the newspaper company granting permission. I don't think anyone would claim that's stealing.

Right. However, someone already bought the newspaper, and what they choose to do with it after the sale is their own business (with some limitations I go into below).

* I go to the beach. The people sitting next to me are playing music on their stereo, that I can hear. The music has value, but I just got it for free, without the permission of the record label.

Music is generally allowed to be played in public without licensing, as long as it's not part of some particular venue. This is according to, and not in spite of, the licensing terms. Further instance: public radio -- acquires license to play music over public airwaves. Once they have the license, it doesn't matter how many people receive the radio signal, because it is in accordance with the music owner's distribution terms.

* I go see "Shakespeare in the Park." I get to see something of great value for free, without permission of William Shakespeare.

True, but governments impose arbitrary limitations on copyright. If no one living today owns the rights to Shakespeare's works, then anyone is free to reenact them without receiving permission from anybody. Whether government has the right to regulate copyrights in such fashion is up to philosophical and possibly ethical debate, but while this is the law, it is certainly legal.

* Verizon sees that Sprint is going to announce an "all you can eat plan" and decides to introduce its own similar plan. Verizon got that idea for a bundle from Sprint for "free" and certainly without Sprint's permission. Yet, we call that competition, not stealing.

I'm not educated enough to respond to this.

...They'll say things like in the pizza/soda example, the pizza shop has implicit permission to resell the soda at any price they deem reasonable, since they paid for it in the first place. But, if that's the case,

Yes, that's the case.

...then we have another problem for those who claim that copyright is real property -- because the same thing isn't true with copyrighted material.

This may be so, but putting up strawman arguments doesn't further this discussion at all. Let's talk about related, not disparate instances.

Those who insist that copyright is the same as real property break their own rule by also insisting that they retain perpetual rights to the good, even after it's been sold. If copyright were like real property, after the creator sold it, the buyer could do whatever they want with it, including giving it out for free. Yet, it clearly is not like that.

The creator doesn't retain rights to the "good", e.g. a physical disc with some media imprinted on it -- they retain more intangible rights, like licensing their creation for use how they choose.

EX: When I buy a CD/DVD, I'm not buying the good that the creator owns, such as distribution and licensing rights. I'm merely buying a physical disc, along with a license to use that good in a particular fashion. When I buy the disc, it is something the seller gave away to me, and I in turn am allowed to give away, since it is generally permissible to resell/trade/give away the physical disc and the license to use it, according to the original terms. BUT -- I was never given the right to use the media in any form I choose in the first place.

I agree this is not like physical property rights. The reason I see here for this is that it is impossible for physical property to be manipulated in the same fashion as intangible ownership, such as to distribute or sell a creation according to how I choose.

Coca-Cola sold soda to the pizza shop and the pizza shop can do whatever they want with it, including giving it out for free. So, if the entertainment industry wants to keep insisting that copyright is just like real property, and therefore infringement is theft, then they should also agree to let anyone who has bought their works do whatever they want with them, including give them away for free.

On the surface, that seems a conceivable conclusion. However, I don't think they're claiming "theft" of physical property, but instead theft of a service or a license.

In fact, each "but, this is different because" explanation for the examples above can easily be turned around to prove the point that copyright is different than real property -- because it applies the same rules differently and deals with fundamentally different types of goods or services.

Yes, I agree with you these are different.

____________________________
Gandalf? Yes... That's what they used to call me.
Gandalf the Grey. That was my name.
I am Gandalf the White.
And I come back to you now at the turn of the tide.

---

[Last edited by mrimer at 03-09-2008 08:32 PM]

coppro
Level: Smitemaster
Rank Points: 1308
Registered: 11-24-2005
IP: Logged

Copyright is very different from patents, which are very different from trademarks.

Copyright represents your ownership of a text, music, or picture that you have created (or video, or other similar work). Ideas are not covered by copyright law - those are patents. A copyright represents the creator's rights over his works, and his rights not to have other people use them unfairly. The big issue with copyright in the digital world is that unlike real property, on does not lose possession of a computer file when it is distributed. With a book, it is not easy for someone to copy a book and distribute a hard copy. But it's very easy to take a copy of a CD and transmit it over the internet. This is the fundamental ddebate that copyright users/holders have had - copyright users insist that 'They don't believe in imaginary property', but the problem is not with the concept itself. Our society would not be an enjoyable one where any text you created could be used by anyone else without permission. Imagine if you wrote a book, then someone else published the book without your permission, and made millions of the book that you wrote. You wouldn't appreciate it much, would you?

The problem as I see it, is that the regulators generally don't undersand the fundamental issues, and they don't realize that you can fix things by sticking even bigger penalties on them. When the automobile arrived, if lawmakers just made them illegal because they upset carriages on the road, and then as the they became more popular, people would have complained, because the were clearly superior to any existing technology. Lawmakers, and copyright holders (no names here), need to realize that you cannot expect to regulate copyright infringement over the internet. As a result, different rules need to evolve. The proposed internet tariff in Canada is an example. by charging everyone for the general infringement and making downloading material legal.

There is also a growing issue with patents, but I don't think that this is really a discussion about IP in general, but more an issue of copyrights. But it's important to realize that it is not your (or anyone's) right to have music/videos/software for free.

Mattcrampy
Level: Smitemaster

Rank Points: 2388
Registered: 05-29-2003
IP: Logged

There is also the funpark that is trademarks, which actually seem to work pretty well for its stated purpose, for a commercial entity to be able to own its identity, however they choose to define that identity.

I have nothing else to add, partly because I'm expecting our badger to flip out at the sign that people think copyright, while probably abused these days, is still a good idea. It is a complicated question, however: creators don't normally get the luxury of truly owning their work once it is consumed by others (as any critic will tell you, what the author intends with a work is not necessarily what the audience sees), while at the same time they probably have a greater claim on it than the rest of society does (it is never fun for a creator to discover that one's creation has taken on a life of its own and started smoking and drinking behind the sports shed). But the question then gets fuzzier when we consider that derivative works (say, the Garfield remixes that turn up from time to time - the most popular one at the moment is one that photoshops Garfield out of the strip) affect the original work, and that most art is built on the backs of previous creations (someone invented the guitar, and someone invented DROD's distant ancestor, Daleks/Robots) and the whole thing gets awfully confusing.

And I haven't even talked about artists getting fairly recompensed for their creations yet.

I think it's telling, though, that not only can creators build a career based on giving away distribution rights, but how many viral videos out there are clever commercials or snippets of television shows that cut off before their true identity's revealed. Your fans will defend you to the death, but there's also a lot of people out there who are selfish sunsabiches, only interested in you as far as they can exploit your work.

____________________________
What do you call an elephant at the North Pole?