In the past few weeks I’ve set my mind to educating myself on IP. To a large extent I find myself agreeing with the argument put forth by Kinsella and Tucker, however there is one argument put forward by some Objectivists like Diana Hsieh that precludes me from comprehensively rejecting IP (at least in its form as copyright).
The argument goes that copyright-property does not restrict physical property-holders’ liberty, because before the “creator” produced the (say) song which was copyrighted, the song did not exist. Therefore the creator is not really restricting anybody’s property rights, because he or she really did create something that was not around before (i.e. it is in this case not a matter of simply re-arranging matter, like patents).
Intuitively this argument seems weak, thus I am having trouble articulating it.
So would I be able to record a song someone else holds a copyright for, and record it onto CDs and sell the CD’s? If the CDs are my property before I record the music onto them, are they not my property after I record that music on them? If you agree that they are still my property, then you reject the claim of copyright. If you don’t agree that they are my property, who’s property has it become and why?
Before responding, I need to explain where I am coming from since I am not a Libertarian and I believe that Objectivism is a bankrupt philosophy. First, the concept of copyright as possessing some sort of property right as we know it in the US came out of England is is formalized in the US through the Constitution. In fact, I don’t have a problem with copyright as originally envisioned for a limited time and to promote progress.
My problem with copyright today is that it has been bastardized to the point that it is perceived as a “legitimate” property right that serves as as a toll both for the content creator to extort a rent from the users. The whole argument today is that the copyright holder is somehow entitled to extort revenue form the user with ever more “innovative” methods and expanded “rights”..
In the discussion of property right, I am constantly astounded by the apparent “oversight” of many commenters that the purchaser of a product does not seem to acquire the property right to use the product. The sellers of content love to claim that they are only renting/leasing the product to you. This is a fiction, you bought it, you own it. It is your property. (PS this does not entitle you to sell copyright work to others, that is a right retained by the copyright holder.)
2.Copyright is being fragmented into a zillion property “rights” by the content creators. Look at DVD region coding and the claims that you can’t transfer a song from a CD to a computer. Just because a content creator created a piece of work does does not allow him to assert, post sale, control over the media. Where are your rights to the private property that you just bought. Furthermore, taken to the logical extreme, the content creator could say that you would only be allowed to have one listening experience at 3:00 AM on a Sunday when it is snowing in Honolulu.
Not only do the content creators assert property rights that they do not posses, but they also feel entitled to spy on you to assure that the content they created is only used in a manner that they have “authorized”. Violate those conditions, off to jail. This is akin to corporatism, where business can use the power of the State to enforce their business practices. I would hope that Libertarians would be opposed to this practice.
Ideas can not be copyrighted. I will tolerate copyright for ideas put into printed form for a limited time that furthers progress. But the copyright system needs to be either fixed or ended since it is depriving the consumer of their property rights to the content and the current system is simply being used as a toll-both to extort rent.
What is a “song”? Current copyright law is not restricted to a “song”. It can apply to an intro to a song. Why just an intro? Why not the letter A? If the sound to the letter A is copyrighted, then why can’t I buy it and force you and everyone else who ever uses it to pay me?
How do you measure this thing you call “furthers progress”? How do you measure everything that is lost because people are not able to improve upon an idea?
“Furthers progress” is quite open to interpretation. You could have the proverbial panel that decides whether a work would even be entitled to the copyright privilege. One of the failures with our existing approach to copyright is that we don’t even bother to evaluate whether a work would be entitled to copyright, it is simply granted contrary to the wording in the constitution.
I fail to understand what you mean by: “How do you measure everything that is lost because people are not able to improve upon an idea?” Everything we do is based on the works of others. What that means is that we should either abolish copyright or have it for a very short (limited) time so that we can build on the works of others.
Isn’t a song, just “simply re-arranging notes”, like patents?
They didn’t create the notes, the potential was always there - they merely discovered them, brought them to light first, or ordered them that way first… but none of which, gives them ownership of the notes - as far as I can see.
Someone else, on the other side of the world could have ordered the notes in a similar fashion, before or after this person “created” their song.
Wouldn’t the Objectivist or pro-IP libertarian reply the physical CD is your property, but you’ve nevertheless violated the song creator’s property rights by copying the song? I can imagine they would analogise a situation where you steal someone’s pen but then put it into your pencil case (hence you aggressed upon their property, but the pencil case is still your property).
And to pre-empt any responses suggesting that stealing a pencil removes the pencil whilst copying a song just doubles it, what if the song-creator, as the property-holder, simply wishes for the song not to be copied. So what? Who are we to say how he or she should use her property? (Of course, this potentially begs the question, assuming the creator holds property rights to the song, but I think it’s a reasonable rejoinder to the “it only doubles it” argument which I have no response to.
That’s an interesting point. I would like to know what pro-IP people think about this (if there are any are around on these forums, I’d love to hear from you). I can imagine a pro-IP libertarian replying with something along the lines of the letter “A” being simply a conceptualisation of a set of linguistic patterns inherent in a human’s nature (and so un-copyrightable), and that it is only when humans synthesise “song” out of these natural linguistic parts that copyright can be applied.
Perhaps this is a stretch, but I’m playing devil’s advocate to try and get a water-tight understanding of both sides of the debate.
Again, fair point. But what about someone’s specific vocal track? That’s unique, and surely not any sort of re-arrangement. Could that be justly copyrighted?
What about someones specific writing style? That’s unique. But much like writing, which uses letters, singing uses notes.
You can own the physical piece of paper that contains the writing, or the physical CD that contains the notes - but you cannot own the notes, or letters themselves, nor the patternsthey form and ‘create’.
When someone photo copy’s a piece of paper - then there has been no theft. The origional still exists with the owner and now there is a copy. Same goes for music files. The only real claim for Music companies or book publishers is if a non-disclosure agreement has been broken. But they have to prove that person broke it, and when it comes to the world wide web and the internet - that’s basically impossible. But more importantly, when it is shared, like P2P - those people getting a copy, never made an agreement to non-disclose or anything like that, and thus there would be no basis for prosecution.
And this proverbial panel would be neutral how? And it’s determination of what “further progress” is would be relevant how?
I was thinking of patents. I should ask, how do you measure what is lost because people have to pay much more than the market would normally demand? For example, paying $15 for a CD is way more expensive than getting it for free on the internet and buying a writable CD for fifty cents.
Why can’t you? You came up with that arrangement. You can say a certain song is yours. There is no reason to suggest that no one at all came up with the song. The CD is not what is being bought as much as the song. You’re paying for the song. A song is intellectual in nature, you can’t touch a song. So there is nothing invalid about intellectual property. What may be invalid is enforcement of it in certain ways. Just like there are invalid ways of enforcing physical property rights. A writing “style” would not be a valid form of intellectual property since it is an aesthetic evaluation something that exists; you cannot own calculus or the fact that the earth orbits the sun. Only something that a person creates by the process of using their mind can be property. An individual creates a song, so they can claim to own a song.
Just like a copyright, no? Also it would be more accurate to say fraud occurred.
It’d be difficult. So?
I suppose, but the person who copied it in the first place should be open for prosecution. I would think that since the original copier violated a contract (what else would a copyright be?), that all the other people have no valid claim on the copies they received.
If I hear a song and remember it, there is a copy of that song in my mind. Has my mind committed copyright infringement?
We can’t claim exclusive ownership to patterns because the way we define what’s copyright-able is arbitrary. Isn’t it correct to say that an arrangement of notes is music, only because we recognize it as music through aesthetic evaluation?
“You can say a certain song is yours.” …I can claim plenty of things as my property, but that doesn’t make it so.
“A song is intellectual in nature, you can’t touch a song. So there is nothing invalid about intellectual property.” …this is working of Ayn Rand’s definition of what property is. I assume the part about not being able to touch it isn’t part of what defines something as property. So I’ll assume it’s the intellectual part. Does that make my analysis IP? If I’m the first person to have a certain feeling, can I copyright it?
The problem here is taking “IP is property” as an axiom. Once it isn’t taken as an axiom, it becomes apparent that it is not property.
What fraud? He copied the paper. Copying paper isn’t fraud.
No, because the only time infringement could occur is when you do some action with this knowledge you now know. If you decide to distribute the song without permission, or say the song is your creation, there would be infringement.
You know what a song is as well as I do. It is a specific sound pattern created by and made possible by the composer. The point is you don’t discover a song. You create a song. How what is copyright-able is arbitrary I simply don’t understand. It is the product of one’s mind that isn’t physical in nature and whose value is not physical. A book in particular. Yes, what you said is how you identify what is music. But a song is the product of an individual’s mind, not of reality. Objective facts about reality cannot be owned. A song isn’t an objective fact.
Poor wording on my part. You can say a certain song is yours because you created it. No one owned it previously, either.
I’m not taking it as an axiom. You’d have to show me property is not the product of an individual’s mind. The song is a product of your mind, and it can be demonstrated to be created by a person. All property is the product of an individual’s mind. Even physical. The only differences are legal implications.
Well we’re getting too far ahead here, probably. I was assuming there would have been a copyright involved and the original writer didn’t want his work copied. To copy would be to violate a contract that is the copyright.
Please be more explicit in how you define property. As far as I know, property to you is just something you mixed your labor in; nothing more.
“If I’m the first person to have a certain feeling, can I copyright it?”
I don’t even know how to respond to that. You can’t “create” feelings. I hope I’ve made it clear that property is the product of an individual’s mind. If that isn’t property, I want to know why and what the correct definition of property is.
Nope, for the reason that it cannot be transferred to another person, since it is not physical in nature. That’s why I ask for your definition of property, since I don’t understand why property can only be physical. Although property certainly must be put into a form before you can claim anything was created. You’d have to write your book in some form (on paper, a text document, etc). Otherwise, it simply wouldn’t exist. But the product is also the content. Not only the pages.