AFF's Doublethink

jhn — February 8, 2010 at 12:09 pm

I wouldn’t quote Helprin, who believes that copyright should exist forever, long after the death of the creator. Whatever arguments you want to make about intellectual “property,” I would submit that belief in perpetual terms, rewarding great-great-great-grandchildren for that which they did not do, is unreasonable.

If we never had copyright, it would seem as absurd and wrong to you as “theft” of copyrighted works seems to you today; you seem unable to step outside of your acculturation.

That is: in what way is copyright not a government-granted monopoly? It’s a series of regulations, with an economic purpose, that did not exist until the State magicked them up. There was no copyright until it was decided that there would be, just as there is no cap and trade until Congress creates it.

Or do you believe that there is some free-floating Correct Copyright Law that preexists any particular legislation, and it’s merely the job of government to correctly discern and codify it?

I don’t mean to be dismissive of that last theory, but believing in some sort of “rights” that exist outside of actually existing social norms and attitudes is just evading the question. And you can’t pretend that legislation and social norms don’t tend to snowball and reinforce each other.

jhn — February 8, 2010 at 12:28 pm

Also, you should consider whether there might be alternate means of rewarding creators. For example, give up on trying to collect money for each “copy,” and have creators rewarded by a fund, paid into from a surcharge on each internet connection, that monitors the popularity of works online?

The creation of government monopolies and maintaining artificial scarcity by limiting “copies” is not necessarily the best way to achieve the goals you profess. Nor is it the “free market” solution, when the government needs to step in and regulate the Internet ecosystem to kingdom come, in order to make it work.

There’s a way to ensure that creators can earn a living, and to promote the progress of arts, without criminalizing young people, and forcing ISPs and computer designers to build in restrictions that are contrary to their basic design.

Sonny Bunch — February 8, 2010 at 12:44 pm

Check your premises: Does Helprin actually believe that copyright should “exist forever” or until “long after the death of the creator”? Because they aren’t necessarily the same thing. If you’d read Digital Barbarism or past the headline of the NY Times piece that sparked it, you’d see that he doesn’t. I don’t necessarily agree with his argument that copyright should be treated like a hotel and passed down throughout the generations, but at that point it’s a matter of degrees: revoke copyright 70 years after death or 170 years after death?

jhn — February 8, 2010 at 1:02 pm

I’ve read both, admittedly last year, and he believes that copyright should exist “forever” in the same sense that property rights in land exist “forever.” Property rights in physical goods never expire. (That is, not really forever, but until the legal regime changes or until the property right is so divided among descendants that it practically no longer exists.) When you think through the consequences of this, the analogy is inapt; I can consolidate ownership of small parcels of land into one deed, but how would I do that with little bits and pieces of copyrights in various works? Should there be primogeniture in copyright to prevent fragmentation of title?

Helprin seems to be unable to distinguish between physical property rights and copyright. As Professor Pogge at Yale argues, intellectual property constitutes an infringement of my right to do with my physical property as I see fit. This might be justified, but there is a tension.

It breaks my heart that Helprin is such an oblivious rent-seeker, given how much I like his novels.

To put my cards on the table, I believe that if you are to have copyright, it should expire unless renewed for a nominal fee after 20 years (thus ensuring that only works still making money stay under copyright, and getting rid of the orphan works problem), and that most works should expire shortly after the death of the author, unless money from the works is necessary to support minor children, spouses, etc.

Josh Y — February 8, 2010 at 1:19 pm

Let me just briefly correct you on one of your faulty arguments – your assertion that copyright infringement is always a crime. Please read Chapter 5 of Title 17 of the U.S. Code. http://www.copyright.gov/title17/92chap5.htmlCopyright infringement is only a crime if it meets a certain threshold (See 17 U.S.C. Sec. 506). The kind of copyright infringement you’re referring to (uploading songs to the Internet) is usually civil infringement. That’s why the RIAA and MPAA bring lawsuits – it’s a civil action, not a criminal one, your analogy to Seinfeld notwithstanding. Please, please get your facts straight before you embarrass yourself any more.

Sonny Bunch — February 8, 2010 at 1:27 pm

jhn: I reread it this weekend; I can assure you that he goes to great lengths to say that he doesn’t think it should exist forever. I tend to agree with you, however, that he does think copyright should stay in force for far too long.

Josh: What I wrote: “Watch the beginning of a DVD sometime; there’s a warning from the FBI that any unauthorized reproduction, distribution, etc. of a movie is a crime punishable by up to five years in prison and/or a $250,000 fine.” I then linked to one such warning which states “Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted motion pictures, video tapes or video discs. Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to five years in prison and/or a $250,000 fine.”

I didn’t write that “copyright infringement is always a crime.” I was making the point that it is sometimes (perhaps even oftentimes) a crime, so the argument that it isn’t a criminal offense is false. Please, please get your facts straight before commenting.

deadzone — February 8, 2010 at 1:58 pm

Here’s the reality:

I totally get what you are saying when you apply it to physical goods such as someone who makes copies of a movie dvd or a music cd and sells them for a profit without permission. This is a legitimate problem that should be addressed with stiff penalties simply because this is, in fact, depriving the copyright holder of a sale.

How can this possibly be applied to a non-physical good though? Piracy, Filesharing, whatever you guys are calling it, it’s a moving target that is constantly evolving. It’s a near impossible task to fight this stuff and the collateral damage to the innocent has been very high up to this point.

There is no easy answer. I think that focus needs to be placed on stopping the physical side of this problem. I also think that instead of trying to stop the non-physical problem they need to develop viable alternatives that directly compete that offers something better that people would be willing to pay for.

YES, this means no DRM or any other draconian schemes that attempt to circumvent a consumers fair use rights.

deadzone — February 8, 2010 at 2:01 pm

I should also add that other than made-up numbers based on bogus facts, statistics, etc… written by the very people who stand to benefit the most, there is no real way to measure what the positive or negative impacts of Piracy are.

Sonny Bunch — February 8, 2010 at 2:03 pm

Deadzone: Hypothetical for you: The shady guy selling bootlegged DVDs on the street corner decides that he’s going to give away the pirated DVDs for free instead of selling them for $5. Is he still breaking the law? Is he only breaking the law if he gives one to a person who was planning on buying a copy?

Josh Y — February 8, 2010 at 2:17 pm

The thrust of your argument, though, is that pirating IP is, or should be, no different than stealing. I.e., your original post in which you assert unequivocally that Copyright. Is. Theft. You then go on to ridicule people who (correctly) point out that copyright infringement is not always a crime by telling them their point is “just false” and they should go watch a movie or Seinfeld episode with nary a mention that they are at least partially right about the fact that copyright infringement is not criminal unless it meets certain criteria. You created a strawman argument that “copyright infringement is always civil” that I don’t see anyone arguing. Here’s why it matters to your larger point: Theft is always a crime. Copyright infringement is not a crime, unless it exceeds certain thresholds, which most downloading and uploading does not, hence civil suits by the RIAA against college students and not criminal prosecutions by the government. All of this refutes your point that copyright infringement is no different than stealing, and that current law is designed to protect content producers at the expense of the public despite the obvious balance struck by the framers in the Constitution. It simply is not.

deadzone — February 8, 2010 at 3:00 pm

Sonny –

I have to say if there is no profit being made then I just don’t see a problem with it. I mean, isn’t that the main thrust of your argument that these people are illegally profiting in some way off of the works of others?

deadzone — February 8, 2010 at 3:04 pm

My main point again being that there is no obvious lost sale to the copyright owner. It’s simply a missed opportunity rather than a lost sale or theft.

As soon as some sort of measurable profit from the copies of the copyrighted works comes into play though, all bets are off.

Sonny Bunch — February 8, 2010 at 3:51 pm

Josh: Where’s the strawman? You wrote to “briefly correct one of [my] faulty arguments — [my] assertion that copyright infringement is always a crime.” Emp. mine. As I pointed out in a followup comment, I never wrote that “copyright infringement is always a crime.”

deadzone: The person who is profiting in that case is the person who is accepting the stolen (or, if you prefer, pirated) goods without paying for them. Plus, the law makes no mention of “profit.” Again, read that warning from the FBI: In the case of movies, at least, the concern is of “unauthorized distribution,” not “unauthorized distribution with intent for the unauthorized distributor to profit.” I’ll point again to my Snickers analogy: Not everyone who takes the free, stolen Snickers was going to have bought a Snickers in the first place. But enough paying customers will be dissuaded from paying that the effect will certainly be felt. Just because the lost sale isn’t “obvious” doesn’t mean that sales haven’t been lost.

Josh Y — February 8, 2010 at 4:29 pm

Twice. The first time is when you say “Piracy. Is. Stealing.” No doubt about it – stealing is a crime. But copyright infringement is not always (or even usually) a crime. To equate the two is to make the argument that infringement, like stealing, is a crime.

The second time is when you attempt to refute the argument that “Piracy isn’t a crime, it’s a civil matter!” in the above post by saying the argument is “just false” and providing examples where copyright infringement is criminal. You don’t acknowledge that copyright infringement can be civil at all, except in response to my comment, or that it carries dramatically different penalties than theft or other criminal acts.

The bottom line is that both your original post and this follow-up post contribute to misinformation about what copyright infringement is under the law. That’s what prompted me to write and engage in a debate on the Internet (never a smart move).

Sonny Bunch — February 8, 2010 at 4:47 pm

Josh: There are a variety of definitions of stealing. I was operating under either “to take or appropriate without right or leave and with intent to keep or make use of wrongfully” or this one “to take surreptitiously or without permission.” Take your pick. I would argue that intellectual property infringement falls under both. http://www.merriam-webster.com/dictionary/stealing

Perhaps I should have amended it to “Piracy isn’t always a crime, it’s a civil matter!” The point was people were arguing in the comments of that first post that piracy is a civil matter, not a criminal matter. As I wrote, that is “just false”: There are a number of circumstances under which piracy is in fact a criminal offense. Either way, I never wrote that all piracy all the time is solely a criminal matter, not a civil one.

deadzone — February 8, 2010 at 4:51 pm

So is it okay for me to give someone a copy of something I LEGALLY purchased? For example, I burn a CD of some songs that I just purchased legally from i-Tunes and then give it to people.

This is theft and a crime for what reason? I gave them money for goods, now it’s up to me as to what I do with it regardless of whether I delete it, copy it, give it away etc…

This is the disconnect I think. They don’t have control of what happens to the copy after it’s sold and make no mistake, it is just a copy, they retain the original work and all copyrights associated with it. I think they want to control the content in this manner but it’s simply not feasible.

I say just move on and make the decision to compete directly and create viable alternatives that allow the consumer to get what they want how they want it for a reasonable price without restrictions.

Seriously, we are talking about unlimited goods with hardly any distribution costs. How hard can it be to monetize this?

Sonny Bunch — February 8, 2010 at 5:05 pm

There’s probably some sort of fair use exemption for mix tapes and the like, but if you bought a CD and then copied it and gave copies to your 20 best friends, each of whom then bought one CD and copied it for the same 20 people, etc. so you could all listen to 20 great CDs for the price of one, I’d say that’s certainly stealing — even if you’d all purchased the originating 20 albums legally, even if not all 20 people would have purchased all 20 albums.

Josh Y — February 8, 2010 at 5:08 pm

All right, I can’t resist posting a few more comments on your other arguments. It’s probably pointless, because I think your primary method of “refuting” these points is to set up straw men then knock them down, but I’ll try:

1. “Copyright is a “monopoly” or a “subsidy” granted by the state.” You say: “This argument is the easiest to knock down because it’s based on a total misunderstanding of what the words “monopoly,” “tax” and “subsidy” mean.” and then you quote Mark Helprin. Here, you have your own interpretation of what “monopoly” means, sourced from a conservative author who believes copyright should exist forever. But, as the Second Circuit put it: “The copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.” Computer Assocs. Int’l, 1992 U.S. App. LEXIS 14305 at *3 (2d Cir. 1992). Even if you disagree with critics (and courts) about what “monopoly” means, you can’t simply dismiss the fact that the historical purpose of copyright law is to create a balance between the rights of authors and the public interest. And you can’t argue that commenters are wrong or misguided in saying that copyright is a monopoly.

2. “You’re an idiot for arguing that there’s no difference between the intent of copyright in the days of the founders and the purpose of copyright law today.” You cite the Sonny Bono Copyright Extension Act, the DMCA, and other legislation to argue that there has been a “clear shift” towards protecting the rights of authors. I don’t disagree that Congress has recently passed a series of laws favoring copyright holders, but that doesn’t mean the fundamental purpose of copyright law – to balance those rights with the public good – has been eviscerated. It doesn’t mean that IP is now the same as physical property, or should be treated the same way. And it certainly doesn’t mean that copyright infringement is just like stealing.

3. “Quit calling it theft! You’re not depriving anyone of their property!” You argue that this definition of property is too limited and that the music industry has been in decline. On your first point, see #2 – IP is not physical property, it is a bundle of rights granted to a content producer. One of those rights is the exclusive distribution of the copyrighted work. Therefore, technically, you are not depriving anyone of a physical object when you illegally give away a copyrighted work or sell it for your own profit; instead, you are cannibalizing the profits that person would have made because of his/her exclusive right to distribute the work. On your second point, I agree, but studies are mixed on what harm piracy has inflicted on the music business. The music industry says it’s huge. And, yeah, their profits are down from the 90s CD-buying bonanza. But as someone who spent nearly all of my spare summer job earnings as a teenager buying $20 CDs at monopolistic prices (see http://www.nytimes.com/2000/05/11/business/5-music-companies-settle-federal-case-on-cd-price-fixing.html?pagewanted=1), I can’t say I feel too terribly for the record industry. If it ever reaches the point where music creation is stifled because people can’t make a living any more, we’ll have a problem. But we’re a long, long way from there.

Josh Y — February 8, 2010 at 5:21 pm

On “stealing” – you can define it however you want, I guess. But it seems to me like one of those MPAA previews they show before movies showing someone stealing a purse, jacking into a car with a crowbar, and then downloading a movie on the Internet. It says something like “You wouldn’t steal a car, would you?” and ends with your same argument that Piracy. Is. Stealing.

Found it: http://www.youtube.com/watch?v=GH5LPqp9Irs

If you define “stealing” to be the moral equivalent of doing all those things, fine. But it’s certainly not the legal equivalent of those things, and I think that’s where the problem and the misinformation lies. Our courts don’t treat it the same thing, most people don’t look at it as the same thing, and our Constitution doesn’t view it as the same thing either. So whenever I see someone making the argument that it is the same thing, it gets my hackles up.

Sonny Bunch — February 8, 2010 at 5:53 pm

I am never going to get work done ever again. Taking your points from last to first:

3. I have little to no pity for the people who complain about having been made to pay “too much” for CDs in the past and use that as a justification for their stealing now. It’s like going to Morton’s, deciding that no cut of beef is worth paying $50 for — especially when it only cost $15 or so wholesale! — and walking out on the tab “on principle.” You don’t get to decide how much a business charges for their product. If you don’t like it, you go without. You don’t steal it. To use another, perhaps more apt example: You don’t say “At $10, a movie ticket costs too much. Therefore I am going to sneak into the movie theater and not pay for a ticket. It’s not stealing because I’m not depriving the studios of anything because I wouldn’t pay that much money for one of their overpriced extravaganzas.”

2. So you don’t deny that there’s been a shift in favor of the rights of copyright holders due to acts of Congress that have been upheld by the Courts, yet I’m still incorrect in saying that “copyright law” has “evolved.” Again, I find this complaint baffling. (And, for the record, I already admitted giving short shrift to the balance between the rights of copyright holders and the advancement of the arts. I just think it’s clear that the balance have moved much closer to the rights of artists than that of the advancement of the arts.)

(Again, for the record, I also think that people misunderstand the founders’ views on copyright. http://thomas.loc.gov/home/fedpapers/fed_43.html

As Madison points out, the right of authors to hold their copyright was a matter of common law. But I haven’t the time or the inclination to go into that fully right now. Just food for thought.)

1. I’ll again refer to Helprin on the matter of monopoly: “In the figurative sense of exclusive control, copyright is a monopoly, but to label it as such is meaningless, as it is no more a monopoly than the monopoly anyone exercises over his labor, or the monopoly anyone enjoys in regard to his property, or the monopoly someone might have over the sale of a watermelon he grew in his garden. In fact, my copyright is less a monopoly than my physicians’ monopoly on his labor because whereas my copyright expires, the practice he may leave to his heirs or assigns (he built a practice, I wrote books) does not. The concepts, ideas, methods and means within a copyright are free for anyone to appropriate, whereas no one is free to appropriate the labor of a laborer. My work can be excerpted at will according to the doctrine of fair use.”

Emphasis mine on that last part, because it’s the key: If Helprin actually had a monopoly he could quash any attempts to use his ideas, his thoughts, his words. Furthermore, a monopoly suggests some sort of barrier to entry or a blow to competition. But there is no barrier to entry in the book market from Helprin. All he’s arguing for is an inability for you to take his work and make it your own or take his work without rewarding his labors. As Helprin writes, this is no more a monopoly than that exercised by the French Fry Chef at Mickey Ds when he asks that he be paid for his work.

Huck Finne — February 8, 2010 at 5:53 pm

I’m not too interested in explaining why copyright violation is not theft. Just like I accept that copyright violation is illegal despite my civil disobedience ignoring it, all supporters of intellectual property law in the US must accept the interpretation of law by the Supreme Court. In Dowling v. United States six of the nine justices clearly stated that copyright infringement, while not legal, is not theft.

Although Sonny has difficulty with the Constitution, where is clearly states that the only reason Congress is permitted to enact copyright and patent laws is the common good, the Supreme Court gets to decide what the law is and isn’t. Thus, copyright infringement is not theft.

Huck Finne — February 8, 2010 at 6:05 pm

Sonny,

Do you know about the idea of rivalry in economics? In your poor arguments that intellectual property is not state granted monopoly you conflate a series of rivalrous goods, such as watermelons and an individual’s labor, with the non-rivalrous good of text.

IP enforcement is the state, either directly via criminal law or indirectly by providing courts for civil redress, adding excludability to a nonrivalous good.

Just because the state hasn’t given me a monopoly on books doesn’t mean they haven’t given me a monopoly on my writing. You may think it’s good of the state to give me a monopoly on my writing, but it’s a monopoly nonetheless. For example, J.K. Rowling has a monopoly on Harry Potter granted to her by several states in their jurisdiction.

Josh Y — February 8, 2010 at 6:08 pm

Just briefly:

3. I’m not advocating that anyone break the law because of past injustices or that copyrighted works should be free. I’m just saying that it’s insulting when organizations like the RIAA take the moral high ground about how copyright infringement is just like stealing, having previously engaged in real, honest-to-god anticompetitive, monopolistic practices.

2. I agree that Congress is has stretched the term and scope of copyright at the behest of Hollywood and other interest groups. No doubt about it. But they haven’t yet turned copyright law into what you say it is, which is something that exists only to benefit rights-holders. It’s a long way from life plus 70 to perpetual copyright.

1. I’m not sure what you’re arguing here, but my point was that copyright is a bundle of rights, all of which grant the creator (or assignee) a limited monopoly over certain aspects of the work. I.e., nobody else can sell, distribute, or profit from it.

Anyway, back to work. Thanks for the good discussion.

Albert T. — February 9, 2010 at 4:43 pm

“I would still argue that the purpose of copyright law is different from the theoretical idea of what copyright is, and that its main purpose to punish those who violate intellectual property, but that’s all semantics.”

I like that you stick to your argument blind to all facts, counterpoints, or reason. In all honesty you should probably decide on either arguing for copyright from a moral perspective or a legal perspective, because your attempts to do one or the other as it suits you come across as slimy.