Intellectual Property in the Arts - How to enforce?

Economics Political Theory
1

I’m studying libertarianism, free market capitalism, etc. and so far, I’m loving it, it’s like a re-awakening to obvious things I knew but didn’t know.

One thing that bugs me lately is seeing libertarians, or some that call themselves objectivists and so on, basically trashing intellectual property rights. They say, if I have this right - that once the idea leaves your body, it’s a free for all. I can’t explain why yet, but I believe this to be wrong, and I’d like to hear some ideas on this issue. I mean, if an artist spends 6 weeks in an expensive studio crafting a masterpiece of recorded music, why should he NOT hold the rights to the master, not only as a physical piece of property but as intellectual property. Why can someone copy his song, and take his credit?

That’s one question. Then, assuming you are going to have IP rights, how do you enforce it? I’m against government force. I believe it just can’t be trusted. From my point of view, government is notihng but a corporation with a bunch of monopolies, the end result is murder, theft, genocide, and more. I don’t care what flag they wave.

But how do you enforce IP? Take music for example. The internet allows sharing. Perhaps the worst thing you could do is criminalise the end consumer, listening to music as crime is even more abhorrent to me than a free for all. So how to do it?

One side shoot to this question is this observation I made: it’s actually hard to find reliable sources of high quality music online where you can free download, without danger of viruses, malware, etc. It’s actually easier to go to itunes or another store and just buy the music at the prices they are at. When you look at who was distributing the main software that was used for piracy distribution - websites like cnet and others - you find that the same corporations who were lobbying for legislation like CISPA and SOPA were the ones who were the most aggressive in openly promoting pirated music. Seems like a bit of Hegalian dialectic going on there without any question (to say the least). Obviously to chill free speech online.

That said - when people are not induced, encouraged and facilitated with the means of pirating IP, particularly music and videos - they tend to buy it. I suspect also that a lot of piracy numbers as in “billions lost this year” are really fake - in other words, a lot of people who watch a pirated movie, or listen to a pirated piece of music in fact if they had not had free access to it, would never have bought it either because they never had any intent to pay for it and would have gone without. So, technically while it’s a lost intellectual right, it’s not a lost monetary unit.

BUT all THAT said, freely available pirated music DOES reduce the market value of legitimately sold music at some point, where there’s lots of free music available that’s a supply issue, and that will reduce demand, especially for not-free music - and reduces the money artists can recover for their work - and personally I think music is extremely important - it’s a shame we hardly have any music left due to music company monopolies whose growth and subsuming homogenising activity was only to my mind driven and facilitated by the crony capitalist system. So my question is finally WHAT is the best way to protect IP? Is it through technology? Can the free market develop a system, or sell to consumers via informing them, perhaps, a better system of music. To people who work in music and have any self respect, mp3’s and low quality formats like that are disgraceful. What happened to the audiophile industry of decades past? Can we get it back? People used to cherish their stereos, their listening environments. While it’s true that demand drives innovation, sometimes people don’t know they need something until you give it to them, then they can’t live without it. Steve Jobs said something like that. He was right.

I refuse to believe that music is a lost cause. I believe much of the situation with music today is in one form or another engineered - either through promotion of piracy of music so that there is a problem that can be pointed at and blamed, as in my example above - or when it comes to the fact that music is hardly anymore the political, emotional and spiritual catalyst, inspiration, and soul nourishing thing that it once was. That lyrics and musical content is dictated by monopolistic coroporate interests - that maintain monopolies becuase of the crony system that supports their festering presence.

I apologise if this is a bit of a disconnected rant of sorts, but if anyone can shed light on this topic, I’d be very grateful.

2

You are studying libertarianism, so what literature have you read on this sub-topic?

3

Recordings are not the main source of income for most musicians. Concerts and teaching tend to be the main source. It really annoys me when people start worrying about musicians because of recordings. It just has nothing to do with reality.

4

freely available pirated music DOES reduce the market value

You have no right to value. You only have right to phsyical integrity. As Walter Block notes, the value of your stuff is actually other people’s opinions of it. You have no right to that.

5

The enforcement issue is not the worst thing about IP but you brought it up. It is not my responsibility to enforce or protect your private property rights. Intellectual property is particularly bad at this as the point to intellectual property is to disperse the IP and then dump the very expensive enforcement onto parties who have no interest in the property. If I am trying to prevent my home from being robbed then I have to be the first line of security with locks, lights, a security system, weapons, etc. With IP the holder does not protect their property at all, in the case of music they may put it on the internet for the world to test. Then the IP holder only pays a minute fraction of the expense of enforcement. The govenrment that uses force to steal from everybody else then acts as the agent (At its own discression) of the IP holder.

The worst issues in the concept of Intellectual Property are in order: First, IP is not scarce. Property rights exist to handle the distribution of scarce things. When a book or disk or idea is made and placed for the world to see then it is not scarce because many (Billions of people) can possess the item at the same time. Second, IP is a grant of privilege that enables the holder to use government force to restrict what others can do with their own property. If someone makes a song and I play it in a coffee shop with my equipment that holder can sue for damages or use damages as a threat to keep me from playing the song. Third, Other party use of an idea, art work, etc does not harm the person or property of the maker.

6

“You are studying libertarianism, so what literature have you read on this sub-topic?”

Oh I should clarify and point out that I say that with good degree of humility… it might have appeared somehow authoratative. I say studying, I mean I am studying it, not anywhere, or with anyone. I’ve read a number of books from Ayn Rand to Ron Paul, Mises, Hazlet and so on. But I’m not studying at a university or anything. This is my own interest in life. :slight_smile: Also when I say libertairanism I mean that broadly: I am studying libertarianism, free market capitalism, and ultimately I would have to say that my opinions and positions on all things are undetermined as of yet. All I know is to put it basically, I believe in consent, liberty, non-violence except in self defence, voluntary contracts, and logic and rationale - the rest I’m working on.

7

Wheylous: But then if I harvest a ton of wheat and you steal half a ton and sell it down the road?

8

Bogart, I don’t disagree with you on those points, it’s impractical and like you point out, the worst of it is that it’s discretionary.

So what can be done to protect a movie, a piece of music. Put another way how would good movies and music be made in a free market in a way that was profitable for the makers?

9

Read “Against Intellectual Property” by Stephen Kinsella for an explanation on why IP is illegitimate. It’s available free on mises.org in PDF and audiobook format. It’s not super long at all. Also, others are correct in pointing out that copyrights do not help artists out as much as they do record label corporations. Artists make their money from live performances.

10

The difference between wheat and an idea is scarcity. If someone takes the wheat, you no longer have it. If someone has your song, you still have your song. This issue of scarcity is what defines whether something can legitimately be considered property or not.

It would be fraud for me to copy your soy and pass it off as if I wrote it. And the fraud would be between the person I sold to and myself.

11

Thanks, I’ll look into it. Unlike Autolykos, I have the problem of actually trying to translate libertarian ideals into a working legal code :\ I’m sure there must be better answers out there to my challenges that remain consistent with a free society.

For others looking for the book.

12

It doesn’t work with book writers. There’s no such thing as a ‘book performance’ for instance.

13

Go right ahead and prove that I’ve never actually tried doing that - or eat your words.

By the way, just what do you mean by “working legal code”? Answering that question will require you to first explain just what you mean by “legal code” in general.

14

It’s been clear that you’re only interested in theory and not specific implementation, or are so completely dogmatic about certain principles that when I’ve questioned how X could be implemented as policy and suggested your statement would be little solace to actual people in X situation, you said, coldly, you didn’t care what they thought.

"It is now clear that there will have to be a legal code in the libertarian society. How? How can there be a legal code, a system of law without a government to promulgate it, an appointed system of judges, or a legislature to vote on statutes? To begin with, is a legal code consistent with libertarian principles? To answer the last question first, it should be clear that a legal code is necessary to lay down precise guidelines for the private courts.

…It then becomes necessary to have a legal code which would be generally accepted, and which the courts would pledge themselves to follow. The legal code, simply, would insist on the libertarian principle of no aggression against person or property, define property rights in accordance with libertarian principle, set up rules of evidence (such as currently apply) in deciding who are the wrongdoers in any dispute, and set up a code of maximum punishment for any particular crime. Within the framework of such a code, the particular courts would compete on the most efficient procedures, and the market would then decide whether judges, juries, etc., are the most efficient methods of providing judicial services.

  • Murray N. Rothbard (2012-08-16 12:47:05-07:00). For A New Liberty (Kindle Locations 4196-4206). Ludwig von Mises Institue. Kindle Edition."

I refer you to Rothbard and the rest of that chapter for the rest.

15

While there aren’t book performances, there are book readings and discussions. The author could make money this way. Also, the author could, if working through a publisher, sell the book for a price, and the publisher would decide how to make a profit. Like with music, I believe if prices came down, many would actually pay. Like a penny for a song, a dollar for a book, in digital format of course. This idea applies to painters as well. They could do live paintings (a copy of an original) or discussions of their paintings, or could sell the original to a “publisher.”

The simple fact is, people are not going to be willing to pay $15 for a CD that costs penny to manufacture when it can be digitally copied so cheaply. The same goes for pictures and text. These artists need to adapt.

16

GAH!!!

Writers have various means to earning money as writers. Selling hard copies of their. Selling digital copies of their work. Selling first right of publication to a publisher. Teaching at colleges. Teaching at high schools. Private tutoring. Teaching workshops. Book readings. Book signings. Lectures. Work as a critic. Freelance writing.

Of course, there are more options if they are screenwriters or playwrights. They can work as a salaried writer at a movie studio. They can work freelance and sell their ideas and scripts to movie studios. Playwrights can collaborate with specific directors in putting on new shows. Until someone can copy the show, they essentially have a natural monopoly on the show. And it would take quite a long time to copy the show.

Most people will do some combination of the methods mentioned above. Many of what I listed are already practiced by both new and established writers. For instance, Orson Scott Card regularly holds workshops and teaches (or he certainly used to). This is in addition to selling a ton of books. And he has also sold the rights to Ender’s Game to a movie studio. Without copyright, any movie studio could make an Ender’s Game movie, but that doesn’t mean they would have the author’s blessing. And to fans, that can mean a lot. And if a studio decides to invest in making a movie without the author’s permission, you can almost be sure that another studio would seek out the author in order to get his permission. They might even hire him as a writer for the movie.

17

I am a recording artist / composer. I don’t do concerts, I’m not a live performer, and I don’t teach, what I do can’t really be taught. What I do is sell my work and the only way my work is able to be sold is if it’s protected as an idea that nobody else can just arbitrarily copy and produce. How do I fit? Before you dismiss music as just a performance, consider the work and expertise that goes into a recording. It’s not just poking some microphones in the direction of something and hitting record, anymore than creating a car is as simply as attaching two wheels a seat and an engine to make a car. If there is no IP, nobody will pay me for my compositions. I may write one particularly fantastic piece of music in my life, for example, a lightening bolt moment that millions of people love to hear - for which I invested 30 years previously and 20 after in the quest to find. And that’s a free for all?

18

@gotlucky: you overestimate people in that respect. Yes, in a properous politically interested society of the future, your argument may hold up, but today? Today nobody cares if the writer is stiffed, they care if the movie was entertaining. There will be some who boycott the film, they will be a small minority.

How does a recording artist practically today sell music he has recorded for people to enjoy in their homes and not have the precedent established that his efforts are essentially worthless and a free-for-all? Say for example I don’t want to prostitute myself into a public figure, which is what one has to do to sell music when the recording itself is just a leaflet inviting you to join the cult of so-and-so.

Just asking.

19

You watch the Harry Potter films? I think they sucked, but some had their moments (they did pack the supporting cast with amazing actors). But Rowling wasn’t really involved with it. She sold the rights and that was it. After seeing the crap that came out, I would be totally surprised if there was not someone who would have liked to have done a TV miniseries for each book, but of course he could not because it would be illegal. Just look at how Marvel remade the Hulk and Spider-Man in just a few years. Then there are the Batman remakes. Bond remakes. The Bourne Legacy. Etc.

Hollywood does not mind doing remakes if the studios think they can make money off of them. Do you think that all authors are okay or happy with the outcomes of the movie adaptations? If the fans can be so unhappy, I bet you the authors can be too, even if they don’t publicy say so (after all, $$$ is involved). If the author had such a good idea when it came to the novel, you can be sure that they know what they want the film adaptation to look like. Not all authors are suited for writing the screenplay, but that doesn’t mean that they cannot be hired to give their input.

Basically, if a movie adaptation came out and the author was unhappy with it, he can approach another studio and say he wants to work with them on making a better version. Even if he did that for free, it would still give him a ton of publicity, and that will help his book sales. But if his book were popular enough that people would be willing to see a better version of the movie, then studios would certainly be willing to pay the author to have him at least consult.

If it wasn’t popular enough, then it wasn’t popular enough.

What is so special about your music that it can’t be performed live? I’m a classical musician, and I don’t have to have a minimum wage side job. I perform and teach, and I have great hours. Even the most established classical musicians typically do many of what I already mentioned. It is so ridiculously rare for a classical musician to be limited to even one type of performance for income. For example, take the most famous modern classical musician: Yo-Yo Ma. He is the most recorded living classical musician. But guess what? The majority of his income is from performing concerts. Seriously. He makes up to $70,000 for some concerts. Just. One. Concert.

No living classical musician makes his living from recordings alone. Period.

But there are plenty of other successful classical musicians. Forget the soloists, let’s look at the top 10 orchestras. Did you know that a section cellist in the BSO makes $128,000 a year? That’s without overtime. Yes, they get overtime on top of that. But guess what? Not only do these musicans perform in the BSO, they also teach. Some teach privately, some teach at the local colleges: BU’s CFA, NEC, Longy, and BoCo. Not only do they teach and perform in the BSO, but some also perform as soloists and in chamber groups. Some give masterclasses.

Okay, so on top of a really fucking nice salary, they have all sorts of additional income from the sources I mentioned. Okay, but there are only 10 orchestras in the US that pay nice salaries (the BSO is maybe the highest paying, but the other 9 are nothing to sneeze at). Well, like I said, most perform or teach. This can be done completely privately or at a school, whether it is a public school, private school, college, or a private music school. They also perform. There are plenty of freelance gigs, whether it is union work or even something like playing at weddings.

20

In the case of books, your argument requires that the existing or similar IP laws be in place. Otherwise the studio would not need to buy the rights or royalties from the author, but could just make the movie. When the author sells the rights presumably she is handing creative control over to the studio. In the case of those movies, they actually voluntary (we’re told) consulted her, but that was a very rare case because of the huge popularity among fans of her books and of her celebrity as an author. That is a rare case and not exactly commonplace. How many people even know that the author of the Bourne series was Robert Ludlum, not many.

As to music, you presume, strangly, that I am a classical musician. I’m not actually. I hear you in regards to concerts, they can make money - understood. But a concert and a recorded album as a piece of art in and of itself (which I believe i"m not the only one to appreciate) are not the same thing. Why do some vocalists use a $10,000 Sony microphone for their vocal performances, but a $100 to maybe $500 microphone at the live venue. Because you can’t hear the difference, for one reason, (as well there are technical reasons besides). Classical musicians often think in terms of notes, phrases and pieces. But a recording artist will hear things very differently. And you may not care for that, and that’s fine. But you can’t compare the recording of Michael Jackson’s Billie Jean (that’s the one that comes to mind right now) or other milestone recordings which are classics of engineering and production not only of performance to any of his live concerts, which were another thing, in terms of the sound quality. If I want to “see” a performer, I’ll dial up their live show, or their music video. But If I want to enjoy their artistry in recording music - which is a highly detailed art - I listen to the CD or HD DVD / BluRay, with the TV/screen off.