Copyright Lawyer: The Public Domain Goes Against Free Market Capitalism

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27 pointsvabole47 comments

Pure free market capitalism would be if I could buy your book the day it's released, make photocopies, and sell them outside the bookstore for cheaper.

Pure free market capitalism would let me make a fake Rolex. It would let me reverse-engineer an iPod and sell it with the label "iPod."

There are downsides to this, and that's why we have IP laws. But those laws are not free market capitalism; they are restraints on it.

I would call the Rolex/iPod examples fraud, wouldn't you? "Free market capitalism" is only rarely conflated with anarchy. (don't get me wrong, I agree that Intellectual Property is the opposite of "free market")

Do people who buy fake Rolexes think they are real, or fakes? If you go into a jewellery shop and spend a lot of money on a Rolex but it turns out to be fake, then sure, it's probably fraud. But if you buy one out on the street for 10 bucks, then I hardly think it's fraud. But these things are independent of the physical form of the thing sold; it comes down to the understanding of what is being sold, as in a contract of sale, implicit or explicit.

If you know it's a fake, then why does it matter what the label says?

To impress your peers, which is often the same reason you would buy the real item. That is why manufacturers of luxury and designer products try to conflate knockoffs and counterfeits in legislation.

More likely it would be trademark violation. After all, who is to decide what "Rolex" means, anyway?

Trademark is another form of IP.

Trademark is primarily consumer protection.

That might have been why it was created, but it's not how it's primarily used today, nor do I think it does that good a job combating "customer confusion". (Remember, even without Ubuntu calling their OS "Windows", Dell customers still sent back Ubuntu laptops complaining they thought they were getting Windows.) Just like copyrights and patents were created to encourage innovators to innovate and share with society--the goal was improving society--that original purpose is lost in the primary uses of IP laws today.

Absolutely. Today. But what I was getting at is if we were to hypothetically do away with IP, what he was claiming was a side effect doesn't seem to be one to me. It seems that if someone pretended to be selling a Rolex, and it was accepted that Rolexes were good, high quality watches produced by the Rolex company, they would be committing fraud.

Who gets to decide what any word means? Why is it special that it's a proper noun? If someone were going around claiming to be jeffool from HN, that'd be a clear case of fraud too, no?

These and many other rules comprise the "free market" as we know it.

A few rules establish an entire new market segment operating under "creative commons" or "copyleft" rules.

When I hear attacks on that system by companies external, all I perceive is chagrin. Petty jealousy, inability to compete.

When the pioneer goes out into the wilderness and establishes a farm, doing the hard work of removing stumps and planting a crop, he has added to the value of that land and deserves to have ownership recognized and protected.

The freedom of others to wander the wilderness, eating whatever they find is taken away. But it is reasonable to curtail it, because agriculture is very productive compared to the hunter gatherer approach. And it is just that the one that plants should be the one that gets to eat the results or trade it for the work of other people.

Its also reasonable that when it takes time and effort to develop a solution to a problem that the one solving it should be able to derive financial benefit from it.

If we don't want people to grow food, live in houses or build Disney Land, we should eliminate physical property rights. And if we don't want people to invent smart phones, cures for cancer and televisions, we should eliminate patents.

Why should we curtail the humans freedom to go anywhere they please? Or sell any device they decide to make?

For the very same reason that we recognize each other's rights to begin with. Because it is in our mutual self interest to do so.

I could just eat the people around me for dinner, but when I recognize their right to exist, to speak freely, to have property, a whole world of commerce and culture becomes possible. And that benefits me. In fact, my food is actually easier to get.

And so it is with intellectual property. Or should be. Whatever rules we use, they should be promoting our mutual well being.

> And if we don't want people to invent smart phones, cures for cancer and televisions, we should eliminate patents.

I reject this. Software, which is a component of all of the things you mention, didn't always have patents, and it flourished without them.

I think patents make sense when it is our mutual self interest to have them. If something is more abundant without them, then it makes no sense to patent that thing.

The statement you are rejecting was a general one. There can and should be exceptions based upon the evidence.

Which suggests we should actually vary the length of patents experimentally to obtain the evidence.

Even within the software realm, it makes sense that some things be patentable and others not.

For example, if you create translation software that requires a lot of resources to develop, patents probably makes sense.

But in other things, patents are an obstacle. For example, technologies that connect people and organizations that must be agreed upon to work and where establishing a common language is more valuable than could be obtained by simple adoption by an individual.

Think HTML and HTTP and TCP/IP. Similar technologies that were controlled by companies suffered because they were controlled by companies. Their attempts to charge a toll impaired adoption. The incentives lead companies to not connect, to differentiate and not agree.

So when people point to the Internet as an example of why government should be making technology choices, what they are really pointing to is an example of inappropriate patenting that could only be overcome by an entity with more interest in seeing the thing succeed than in charging a toll.

In other words, precisely the set of interests people would have if a patent did not apply in this situation.

I submit that "free market" and "capitalism" are antagonistic to one another and should never be mixed for they cannot co-exist. One is active enterprise, the other is non-productive gambling and usury. (And I know there are people ready to downvote me for that sentence, but put away your notions of Wall Street being "investors." Risk-taking VCs are, but not Wall Street.)

The history showed that many works when going into public domain generated a brand new active market. As an example, the work from Freud has been recently put in the public domain (in Europe, it means only that the patrimonial rights are expected but the effect are somehow similar to put the works in the public domain). The first day you could find in all the book-stores many new publications from his works included annotated version or commented version. All the editors knew it was a good opportunity and a brand new market of works based on previous Freud work. Before the work was closed by the right holders and no real economic activities... So I still don't get the point of that lawyer.

Sorry, a small typo: s/expected/expired/

Isn't the whole idea of the government taking action against people for marketing goods against free market capitalism?

Well, yes, so we can assume that when this guy said "free-market" he meant more like "polite market, where everyone knows their place, and your place is to GIVE ME MONEY".

Er, why would this be a problem?

Free markets are one of the better ways of distributing scarce resources in the majority of situations.

Capitalism is one of the better ways to promote efficient use of scarce resources.

If something isn't scarce, there's no need for either of these.

These ideas are reminiscent of the ideas of Andrew Joseph Galambos, who believed that one retained intellectual property rights indefinitely. (Reportedly, he believed that Thomas Paine coined the word "liberty" and put a nickel in a box every time he used the word so that he could pay Paine's descendants for royalties.)

http://en.wikipedia.org/wiki/Andrew_Joseph_Galambos

I know it's popular to hate lawyers here but enough is enough=> Entertainment Industry Lawyer: The Public Domain Goes Against Free Market Capitalism

Copyright is not bad. It has gotten out of hand, but the principle is good. Limited (again, it isn't really anymore, but it should be) protection. Just like if you built a car, created a drug, or manufactured any other widget and someone stole it after you expended the time and effort or production (yes, I know this example has flaws; sweat of the brow etc.)

Lawyers also are not universally bad. Though I agree with you there are many I cannot stand. There are dirty cops, crooked politicians, cheating mechanics, lazy doctors and stuck up IT guys and yes, even annoying hackers.

You want to bash copyright, fine. You want to bash lawyers, fine. Just don't make blanket statements. A lot of us are on your side.

Lawyer for the entertainment industry != copyright lawyer.

In my best Han Solo, "sorry about the mess."

You may want to re-examine your position that copyright is not bad. There's really not a lot of evidence that any "intellectual property" is good, where "good" is something like pareto efficiency. Any sort of "intellectual property" at all, when enforced by the government, is probably a drag on the economic system.

You could start your re-examination with "Against Intellectual Monopoly", http://levine.sscnet.ucla.edu/general/intellectual/against.h... especially chapter 6.

Personally, it appears to me that a combination of regulatory capture and legislative capture has enabled a few large corporations to define "intellectual property" in such a way that what used to be accepted as inalienable rights of US citizens are widely suppressed. And that's going way, way too far.

There is a conflict between civil liberties and continuation of pre-existing copyright systems when copying becomes easier. Is it better to have a copyright system or a free society?

I believe it actually comes down to this at the limit, most particularly for cultural media.

http://www.copyright.gov/docs/sound/comments/reply/20110224-...

This is all I could find from him from the Copyright Office's documents. [1] He does not appear to be talking about things entering the public domain at all. I don't think hearsay of hearsay of one of 84 people talking at a meeting is much to go on.

[1] http://www.copyright.gov/docs/sound/

On a lighter note -- somebody's got serious sense of humour there: http://www.ivanhoffman.com/awards.html

(that's part of the website of the lawyer in question, as linked to from Techdirt)

Is RIAA now trying to outlaw the public domain or something?

If you think about the internet in terms of democratizing publishing and making more works available to the public. Add in the increased availability of consumers to monetize the content along with self-serve advertising such as AdSense / AdWords. With these advances in place it makes sense that copyright should be shortened because it allows creators to be compensated more quickly.

If you contrast works like the Dan Brown's 'Davinci Code' compared to Mary Shelly's 'Frankenstein' it would stand to reason that Dan Brown was able to be remunerated for his efforts much more quickly than Mary Shelly thus the purpose of copyright can be full filled much more quickly and should be shortened in order to make more works available to the public. Which is the stated goal of copyright.

Can't argue with that. 'Course, geniuses like this particular copyright lawyer would note that laws prohibiting strip mining Yosemite "go against free market capitalism" too. More limits on "free market capitalism" will thankfully continue to elevate us a bit above what amounts to the brainless economics and political philosophies of cancer cells.

Actually, it's just wrong. Copyright is an artificial, state-enforced restriction on competition. In a free market, people should be able to compete.

Property law is an artificial, state-enforced restriction on competition. In a free market, people should be able to compete.

Intellectual Property is a concept that tries to put ownership on ideas/abstract concepts. How does one 'own' and idea? In the physical sense, one can 'own' a physical object through possession.

In what sense do you own a physical object, and how is it fundamentally different than having the copyrights to a work? What's stopping me from taking the object from you? The same entity that's stopping me from copying and selling a book that you wrote.

There are many good arguments against copyright law, but that copyright is somehow fundamentally different than property law is not one of them.

Property rights and copy rights are different beasts. Unlike theft of property, copying does not disenfranchise the originator of his asset.

I find Thomas Jeffersons quote instructive: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." http://movingtofreedom.org/2006/10/06/thomas-jefferson-on-pa...

This is why the term intellectual property is not, in my mind, the right term and one can even argue that it has the word 'property' to get us thinking along the lines of 'physical property'. Theft vs. copying.

You are making the mistake of thinking that copy right is somehow the right to own your own book, say. If you think that then of course somebody copying and distributing it doesn't take your book away. Copy rights protect your ability to sell your book, not to own a physical copy of your book. Somebody else who is copying and distributing your book does hamper your ability to sell your book. Copy right protects your ability to use your intellectual property (again, NOT a particular copy of that intellectual property), just like property rights protect your ability to use your physical property.

I am not making any such mistake.

I fully grasp that copyright is applied to an idea. You assign the term intellectual property to it.

I can copy a wine making recipe without dispossessing you of the ability to make wine. The process is still in your head. This process is an idea. I cannot steal a bottle of wine and still leave you in possession of it. The bottle of wine is property.

The copyright process attempts to provide short term protection to 'ideas' to reward inventors by dissuading copying (penalties). That does not suddenly convert the 'idea' to 'property', since any copying that happens, still does not dispossess the inventor of the idea. In assigning copyright the market has tagged the 'idea' as removed from the public domain for a short period. The natural order is restored when the period of protection ends and the idea falls back into public domain.

To come back to the reason for my original post... and repeating myself... Copying a copyrighted item does not dispossess the owner of the underlying asset. A property theft does dispossess the owner of the underlying asset. That is a significant difference.

That's the same straw-man I already answered. I repeat, when you copy and distribute, you don't rid the maker of the recipe from the ability to make wine, you rid him of the ability to sell the recipe.

I can see what you're getting at with natural order. You are saying that he didn't have the ability to sell his recipe in the first place, because in a 'natural world' (i.e. without special enforcement by the government) he wouldn't be able to do that in the first place.

What do you think the world was like centuries ago? If I'm stronger than you, I can take your axe. THAT is the natural world. You could argue that that's bad, since previously he owned the axe and now he doesn't. In the same way that you argue that the recipe maker didn't have the ability to sell his recipe in the first place without law enforcement, I argue that the axe wasn't his in the first place without law enforcement. He never really had this axe, because I was always strong enough to take it from him.

But all of this is completely beside the point. We don't make laws because they are right or wrong. We make laws from an utilitarian perspective: do they improve the world? If you want to successfully argue against copyright law, you have to argue that these laws make the world a worse place.

  > you rid him of the ability to sell the recipe.

Copyright controls the ability to copy/distribute. It says nothing about selling. Are you going to tell me that if I copy a movie, I've deprived Hollywood of the ability to sell that movie? Are they not still able to sell DVDs in parallel with the operation of The Pirate Bay? "rid him of the ability to sell" seems rather strong language for an issue that's more nuanced that you seem to want to admit to.

Selling is the most important intended use case for copy right, just like using is the most important intended use case for property right.

If you copy and distribute a movie, then yes you are depriving Hollywood of some of its ability to sell the movie. Of course not all of it, just like I don't rid you of your use of your car if I steal it for one day and then put it back.

It's easy. You write some text, then you own a number representing the text (probably a number between 10^2400 and 10^240000) and all encodings of that number (some of which might be as small as 10^120). Now whenever you see anyone else using that number or any encoding of that number without giving you money, you tell them to give you money, and if they don't you get the government to threaten to kidnap them or steal their money if they don't give you money. However, if you pick a number around 7, I don't think you'll be able to pull it off.

In the same way, owning a physical object is ridiculous. Quantum mechanically, you can't tell the difference between an electron in your object and an electron somewhere else. So you end up owning an particular arrangement of electrons and protons, not the electrons and protons themselves. We can then apply the same reductio ad absurdum by examining somebody who claims to own a very small object, say a single electron.

The sensible way to define property is defining it by those cases where the state protects your rights to it. One defines intellectual property in exactly the same way.

Right. What I'm saying is less like an assertion that you can't own an idea and more like an explanation of how you go about owning ideas (but mostly ideas that are bigger than 7). I suppose my opinion is pretty easy to guess, though...

Anti-trust law is an artificial, state-enforced restriction on competition. In a free market, people should be able to compete.

Wait, tell me how a writer having a Copyright on his, say, crime fiction book prevents any other writer from doing his or her own crime fiction book and competing? This I need to hear.

If a publisher pays a writer some money to license the writer's copyright, then the publisher can print and sell copies of the books. But if a different publisher can do a better job, customers might buy that other publisher's nicer books, and the writer might not get any money. Or, more likely, another publisher makes the books cheaper and everyone buys those. The customers are still getting the same text, maybe an exact duplicate of the licensed copies, but without copyright the original author might not get any money at all.

That is life. When I rent an apartment, I lock out all others who competed for it.

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