Notes: Copyright

I once participated in a debate about copyright issues, taking the position that copyright is an illegitimate concept. I prepared the following notes prior to the debate.

Opening Points

• Historically founded on governmental systems of control
• Enforcement requires the interference in an otherwise free market
• Utilitarian arguments supporting copyright need to meet a burden of proof
• People have been creating works of art since forever, no reason to think that they will suddenly stop now
• Incentives of copyright don’t work, because money doesn’t guarantee creative quality
• The enforcement in protecting an intangible causes tangible harm (jail, extradition, home invasion, confiscation, restricted freedoms)
• Copying and duplication are not equivalent to theft, stealing, piracy (sinking of ships), or infringement (derivative knock-offs and rip-offs)
• English language has no word for “theft through the act of duplication/copying”, but does have a word for things that don’t replicate — “dead”.
• Obscurity is a bigger threat to most artists than unrestricted copying

Fundamentals

• def copyright: the right of an artist/creator to prevent other people from using their own (physical) property to duplicate the artist’s work. Is a right of monopoly, not of property.
• No need for property rights in information, because knowledge is non-rivalrous
• Influences
  • Moral rights of the author who created the work
  • Economic rights of the benefactor who paid for a copy to be made
  • Physical property rights of the individual owning a copy
  • Soverign’s right to censor and regulate the distribution/printing industry

History

• Manual copying. System of control over scribes
• Stationer’s Company in 1557. (censorship: prevent heretical publications)
• Statute of Anne 1710. (broader focus: protect the reading public, continued production of literature, advancement and spread of education, pragmatic right to (re-)print, balance between authors, booksellers, and public)

Alternatives

• The creator-endorsed mark
• Patronage system
• Serialized releases
• Paid performance/venue, tours

Counter-examples, The world without

• (from Boldin and Levine) fashion, food recipe and appearance, automobile sculptural design, furniture, magic tricks, hairdos, open source software, database, tattoos, jokes, fireworks, game rules, perfume scents, mutual fund composition

Resources

• Center for the Study of Innovative Freedom
• Against Intellectual Monopoly by Boldin and Levine
• Without Intellectual Property at the Mises wiki

Countering Pro-IP arguments

• Argument by Creation. Creation is not a source of ownership, only a source of wealth. You own the work, because you already owned the inputs. Creation involves the re-arrangement of physical property. In contrast, homesteading (appropriation) is about first one to emborder and use.
• Argument by Scarcity. Good ideas may be scarce (rare) but they are not rivalrous (exclusivity of use).
• Argument by Ability. We can treat works as property, but so what? We could also treat humans as property and choose not to. Also, treating intangible patterns as property contaminates physical property law, it opens the temptation to move from “fair use” to “fair trespass”.
• Argument by Limitation. All property rights get limited anyway (I can’t shoot my bullet at your body). But the limitation on the shooter is based on sanctity of the target’s property. It’s the action (trigger pull) that’s limited, not the property (gun could be borrowed). Actions employ scarce means (property), actions are limited because of property rights.
• Argument by Balance. We should balance innovation and IP vs. free speech. YouTube has 29hrs of video each minute, I’m not willing to give that up for 20 hrs of big budget film each year. Should we have to find just the right amount of stifling that will promote production!! Intervention in the market (short term monopoly grant) is clearly non-libertarian. The public benefits are unproven, so the burden of proof lies with the proponent of IP.
• Argument by Authority. The Constitution authorizes it, but doesn’t obligate it (wasn’t actually enacted until a year after ratification). Stated purpose “to promote progress of science and the arts” still without evidence. I also don’t care about the back-room deals of politicians 200 years ago. Even the Founders knew it wasn’t a natural right, but a government grant. Other things authorized by the constitution are terrible (slavery, taxes, eminent domain, etc).
• Argument by Moderation of Liberty. Liberty is not our only value. rephrase: we need rights not only in scarce resources, but also others. But the enforcement requires physical force against physical property, causing real, measurable harm. What if we were to restrict intellectual property enforcement to the ‘intangible realm’.
• Argument by Contract. Yes people can enter into copyright restrictions via contract, but that wouldn’t be adopted at large, it wouldn’t bind 3rd parties, it only follows on first sale, existing version would set damages too high (millions) driving customers away (preferencing them toward pirate goods, setting damages too low and customers would ignore it or collection would be too expensive, the hassle of tracking infringement is cost prohibitive and invasive of customer privacy, there is no low cost mechanism of tracking/propagating ownership.
• Argument by Due Income. The labor theory of value is bunk, and profit is an unnatural temporary aberration in the free market, it attracts competition. You don’t own the value of what you produce, only it’s physical integrity. The value is market-based and exists only in the minds of others.
• Argument by Utilitarian Maximization.
  • Methodological problem: value is ordinal, not cardinal. (von Mises) Value is not a substance, thing, or measurable quantity, it appears only in choice among ends. Utilitarianism mistakenly wants to add up all values and shift them around. Moral Problem
  • Moral problem: It is unethical to take from the rich and give to the poor, even if the total valuation indicates global good.
  • Evidence problem: proposal for government intervention requires proof of global benefit
• Argument by Misplaced Question. How would artists get paid? Counter-ask, who would pick the cotton? The question is not an argument, and the artist’s lack of a business model/plan is not my problem. The customer owns his money until parting with it, the creator/artist has no ownership claim over future uncertain revenue.
• Argument by Accusation. You’re a freeloader that wants everything for free. First, that’s not necessarily true (c.f. benefactor model). Second, the benefit of a free market is abundance at low prices.
• Argument by Complicity. But you’ve benefited from copyright! First, I benefited against my will. Second, my status as a forced hypocrite doesn’t invalidate stance against IP. Copyright lawyers (and cancer doctors) exist because of bad things.
• Argument by Plagiarism. What if I published your work under my name? That’s a case of fraud or plagiarism, not an infringement on copyright.
• Argument by Language. It’s my idea, I own it. She’s my wife, I own her.
• Argument by Industrial Need. Industries that use IP are profitable and it’s essential for their business. So also is crime essential for the profit of the mafia. The correlation of profit with copyright is not necessarily causative, many industries are profitable without IP law (c.f. Bolrin and Levine). Perhaps they need IP to survive, because they are at a competitive disadvantage (skewed market protects big players).

Questions

• What natural rights have an expiration date?
• Through what mechanism do we establish the cutoff time?
• Should we treat non-rivalrous as we treat rivalrous ones?
• How does my act of making a copy/duplicate destroy/infringe/trespass your use of your copy/property?
• What am I stealing when I make a copy/duplicate?
• Is it possible for a society without government to have copyright law? How would it originate?
• Can you cite one study that demonstrates a net benefit to copyright. (costs clear: administration, legal fees, liberty) Papers showing an increase in the applications/use are not convincing, as many would apply for a license to steal.
• The same government that outlaws monopoly (antitrust law) also authorizes them? How to resolve the inconsistency?
• Can you enforce copyright without committing aggression against physical beings/goods?
• Physical property employs boundaries (locks, fences) to indicate theft, what about stories+songs?
• Supposing that I wanted to divest my work of copyright, how would that happen? Currently no way to do it, the Berne Convention prohibits the US from revising copyright to permit it.