Our Intellectual Property Laws Are Out of Control
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Do they serve that purpose well? Are there any unintended consequences?
Any and all comparisons to physical property and ownership laws is meaningless, copying and theft is not comparable in any way. Whoever says so needs to think it over a few more times or is willingly spreading propaganda.
Is it fair to call copyright "a monopoly on an idea"? If so, is that something that is reasonable? Monopolies are usually not considered to be something that promotes the general welfare of society ...
Is the patent system of today doing what is supposed to do?
Should we use IP-laws to maximize the usefulness of creativity and ingenuity of humans for the good of the common man or for the profits of corporations? Do these two goals sometimes conflict with each other? If so, do one take precedence over the other or how may the be balanced?
My opinion is that a complete overhaul of the entire system of IP-laws is in dear need. What do you think?
In a way, a copyright monopoly is far more morally justifiable than monopoly over land. Land in the US is stuff we stole from the American Indians. It was here before you were born and it will be here after you die. Why should you get a monopoly over a piece of the earth? With regards to a book or a song, you created that work. It did not exist before you. Your moral right to control it is much stronger.
As for "tangible" versus "intangible"--the set of things we call "intellectual property" are not coextensive with the set of intangible things which are called "property." Consider something like a "light and air" right, which is a property right but does not involve ownership of a physical thing. Or consider intangible rights like a vested legal claim, or assignable rights under a contract. We treat all these things under a common framework for the same reason UNIX treats everything as a "file"--it makes everything easier to deal with.
Sure it does. We're treating conceptual entities as physical objects that can be "stolen" (you wouldn't download a car would you?). We treat infinately reproducible entities as scarce resources that can be "pirated". The idea of IP is based on conflating the notions of copying and stealing, which I feel is a set-back for furthering the discussion. I understand IP is a legal invention not observable outside of a legal context, but the issue I see is using the notion of property to justify intillectual property.
Why not? The word property implies possession. So I ask, what should be considered property?
> certain assignable contractual rights are property, but are intangible, infinitely reproducible
I wouldn't argue that contractual rights should be considered property -- but I find it somewhat irrelevant considering it has no bearing on anyone outside of said agreement. Two people making a voluntary agreement is not the same as a chef demanding nation-wide royalties for copying his dish.
http://blog.ninapaley.com/2011/07/09/culture-is-anti-rivalro...
Monopolies, which are constructs in law to favor friends of rulers, are never morally justifiable.
Ironically, you play the opposite semantic game with the word "monopoly", whose technical meaning has already been clearly fleshed out upthread. If all "monopolies" are immoral, then you don't believe in property. Really, though, you're trying to repurpose that word for emotional impact instead of understanding; you mean it as "property rights asserted by people we don't like."
Is it possible to make a difference how copyright laws are applied to personal/private use and for organizations/corporations?
How is software and "culture" as in music/movies different?
If any, should we make that those distinctions visible in IP-laws?
Once you have shared the work it is not solely yours, others have limited claims on it too. That doesn't mean some exclusive controls on it for a limited time are not a valid balancing of the competing claims of the producer and the recipients of your cultural production.
In general, you could make a different analysis: Governments should licence monopolies over pieces of the earth to prevent the Tragedy of the Commons. And Because intellectual property does not have the economic property of rivalrousness (and may even be anti-rivalrous), the tragedy of the commons does not apply, and so the moral justification for monopoly licence does not trump the government's obligation to protect the freedom to do what you want with what you have.
IMHO that's a fair description of patents, but not copyright.
First reason: copyright doesn't give you a true monopoly, not in the same way that patents do. With a true monopoly over an idea, you can prevent other people from using the idea even if they came up with it independently. Patents do that, copyright doesn't.
Second, copyright - in theory, anyway - doesn't protect ideas, only a particular expression of an idea. (Again c.f. patents, which do protect ideas).
> Why do we have IP-laws? What are their purpose?
For copyright, Richard Posner (a US judge) wrote a good essay on the subject at http://cyber.law.harvard.edu/IPCoop/89land1.html .
http://www.candysdirt.com/2013/05/06/monday-morning-milliona...
Governments support IP rights because: 1) the idea that creators have a right to control their works is more popular than the idea that the public has certain rights to access "culture"; 2) industries dependent on IP create jobs.
A senator supports the MPAA companies versus downloaders because he can easily see that the MPAA companies are a source of a large number of jobs. It's as simple as that.
But it's the control over derivative works (http://en.wikipedia.org/wiki/Derivative_work) that copyright gives you that's more obviously suppressive. All of the uses of Mona Lisa would be derivative, if Da Vinci's estate still owned the "intellectual property". All of the uses of Grant Wood's "American Gothic" would be derivative.
Yes, not all "derivative works" are worth it, but neither are most "original" works. 99% of everything is crap.
Copyright law is also used to suppress anything that the Rightsholder doesn't like: http://arstechnica.com/tech-policy/2013/03/gopro-can-fall-fr..., http://www.dailydot.com/business/dentist-bad-yelp-reviews-co... and many others.
This may indeed be an abuse of copyright law (copyfraud) but the laws are apparently intentionally written to allow this sort of thing. The practice is to not prosecute improper DMCA takedown notices, for example: http://www.techdirt.com/blog/?tag=copyfraud
So, yes, copyright per se doesn't tend to stifle free speech, but the concept of "intellectual property" gets used to get laws like DMCA passed, which are then promptly abused to censor people and their ideas. Moreover, the practice of lengthening copyright terms towards infinity keeps ideas out of the public domain, causing derivative works to not appear.
One more thing: Mickey Mouse Meets the Air Pirates. http://en.wikipedia.org/wiki/Air_Pirates If that ain't censorship, I don't know what is.
Neither of the examples you give really support that.
GoPro was about trademarks (and was hopeless anyway - it's not really the fault of trademark laws that someone can send a nastygram that's completely without legal merit, using 'trademark violation' as a scary magic word).
The dentist one was only worded in terms of copyright so that the dentist could use DMCA takedown notices. You could abolish copyright altogether, and that wouldn't stop a dodgy dentist putting a clause into their patient contract saying 'you can't post bad reviews' and suing people who do.
(Obviously it's bad that the DMCA is so easy to abuse, and the DMCA's flaws are well documented on hn - the point is, they're flaws in the DMCA, not in the concept of copyright).
Any particular instance of DMCA-based speech suppression is probably arguable. "Oh, that's just some crank getting riled up." You have to look at the DMCA as a system. The DMCA encourages notice and takedown, not notice and notice. The bias in copyright law as a whole is towards the rightsholder, so copyright law becomes an easy tool for abuse.
I do? I was approaching this thread as being about the correctness of IP rights as a concept. Again, I'm not disputing the defects of the DMCA, only the use of DMCA abuse to imply that the whole concept of copyright is inherently flawed. (As it happens, I don't even live in the US, so the DMCA doesn't apply to me).
> The bias in copyright law as a whole is towards the rightsholder
In its current US (and EU) implementations, sure. But unless you're saying the existence of copyright as a property right itself is the bias (in which case 'unbiased copyright law' would be an oxymoron), that's an implementation issue.
Property implies the idea or a certain implementation of creative work is yours for life (and possibly even beyond that). You can't have "property" and then expect others to use it and experiment with that. That's exactly why copyrights and patents were not created as another form of property, but merely as an incentive to create something.
Here is an anecdote about just how much language can affect perception:
http://en.wikipedia.org/wiki/Alfred_Korzybski#Anecdotes
One day, Korzybski was giving a lecture to a group of students, and he interrupted the lesson suddenly in order to retrieve a packet of biscuits, wrapped in white paper, from his briefcase. He muttered that he just had to eat something, and he asked the students on the seats in the front row if they would also like a biscuit. A few students took a biscuit. "Nice biscuit, don't you think," said Korzybski, while he took a second one. The students were chewing vigorously. Then he tore the white paper from the biscuits, in order to reveal the original packaging. On it was a big picture of a dog's head and the words "Dog Cookies." The students looked at the package, and were shocked. Two of them wanted to vomit, put their hands in front of their mouths, and ran out of the lecture hall to the toilet. "You see," Korzybski remarked, "I have just demonstrated that people don't just eat food, but also words, and that the taste of the former is often outdone by the taste of the latter."
There is no doubt language is frequently misused to further ideology. In fact, this is exactly what OP is doing. He's trying to redefine a universally understood term to fit his particular ideology ("IP is not property" or maybe "information should be free").
There are problems with current laws around IP, but redefining terms is not a way to fix them. Furthermore, most people would not agree with the extreme position that that OP is taking (no IP laws) either, so arguing for semantics is either detrimental, confusing or pointless.
I don't believe once published/played/performed the artist/creator has a total exclusive right over the material. The public, fans and anyone that hears or sees the work gain some right over it as it affects their mind and thoughts. This isn't to say that the artist immediately should lose all control and protection but that the people of the culture they put the work into also gain some rights to it. The balance is probably best struck by a duration of exclusive rights and then release although those exclusive rights themselves may have limits.
If you want to keep intellectual property as your own personal property in perpetuity you need to keep it in your own head or otherwise privately secured.
Trademark is not your property, trademark is a registration of who is who, so the government can punish people that are being funny and mislead costumers.
Happily the trademark regulating bodies are still more or less sane, and for example kicked Tim Langdell in the nuts for what he did.
Patents, are not your property either, your property is whatever you built (patents were not supposed to apply to software algorithms as the original laws were written :/), if you want to keep others from doing a copy of your product, actually you can do it like Coca-Cola did: Make it hard to copy, and hide its formula/blueprint/project in a safe.
Patents is a license to manufacture (and thus presumably sell and distribute) the product exclusively for some years, in exchange for you placing into public domain the details of how to create your product, so all humanity can create that product in the future (maybe if you get hit by a bus and cannot do it anymore, or your factory get hit by a meteor, and so on...)
Copyright is as the name says, the right of making copies, it is not supposed to be your property either, copyright when created it was not in the intention of the law authors that people would sell it around like if it was merchandise, back then copyright was created muddled and mixed with the concept of moral rights (that some countries later turned into law too).
The idea of copyright, at least in theory (the real reason for creation of copyright seemly was covert censorship), is that by ensuring the author can choose who can sell copies of his work for some years, he could be safe expending some years to create such work, and then as he sells this work though others, he has money ensured to create his next work and so on.
Mind you, copyright was NOT invented to stop common people from making copies of your work, in fact when it was made, many people were absolutely fine with that, copyright was made for example to stop the asshole behavior of a friend of Baldassare Castiglione, that took his borrowed manuscript, and not only made a copy for himself, but started to make so much copies, that Baldassare when he made a trip from Italy to Spain (when he started the trip that he left the book with his friend) upon arrival he was greeted by people saying that his book was awesome... (yes, he left the book in Italy and travelled to Spain, when he arrived on Spain, people on Spain had lots of copies of his still unfinished book made by a asshole friend in Italy)
To a lawyer, some bundle of rights is a 'property' right if it has a particular set of characteristics, such as being transferable and binding the world.
By the legal definition, patents, copyright, and trademarks are definitely (intangible) property rights. (Well, mostly: in the UK a few of the rights in copyright, known as 'moral rights', aren't property rights: they give you an action in tort only, and can't be transferred).
So e.g. you say "patents is a license to manufacture ... the product exclusively for some years". But this doesn't work. No kind of licence can give you the right to sue a third party: a licence can only stop you from being sued. (An 'exclusive' licence is just one where you the licensor has contracted not to grant a licence to anyone else). To sue a third party (who's made the product without a licence), you need the patent to give you a property right.
(IANAL).
Is this power unlimited in time and scope? No. But that is also true of physical and real property--which, depending on various factors, come with all sorts of restrictions, limitations, and regulations.
No it doesn't. There's more to property than fee simple absolute.
But i had a thought. If most of humanity's contemporary culture is put into public domain, won't it saturate the paid market? Why buy CD's if you have hundreds of thousands of quality music/movies/books and so on? It actually might be detrimental to higher forms of art, as i would wager that only mass pop would sell thanks to trends and such. Just a thought i had.
From a pop-cultural perspective the difference between twenty-year-old music and fifty- or hundred-year-old music isn't large. Too, many 'abandoned works' that are effectively available for free with the author's permission are even newer.
People read old books (which is a very good thing!) but most haven't stopped buying new media because of it.
Imagine all the quality study materials being in public domain. I would love it, but after a while it might crash the market completely. At least for non-cutting edge fields like advanced but still reasonable math or physics or mechanics.
I haven't really looked through all the available stuff, but most of it seems of little 'worth' to me. Old and hardly relevant to my interests. It might be cool to read 1912 book on aircraft propulsion, but it's just a odd thing to kill time with. 1999 (date chosen with regard to studies mentioned in some other comment thread) air propulsion book is mostly up to date, at least for studying.
I'd late here and my rambling might be a bit inconsistent. I'm not really arguing for either side, but I do find overbearing IP a nuisance. Just trying to cast a different light on the issue.
Sadly the copyright is abused badly (even "good-guy" Amazon self publish takes away 70% of money spent on one's book (that's the number I arrived at when I was looking through the rules).
It's hard to say if it doesn't have positive effect of culture, since before it's introduction art was funded mostly by state/exceptionally wealthy establishments.
What I'm getting at is that superficial modes of commerce are fleeting and culture isn't. Culture is as old as human nature.
Newspapers and their hold on the local ad market were swept away in a few years. But writing hasn't died. Why should anyone pervert the concept of owning and controlling a computer just to prevent the RIAA model of a recording industry and the Hollywood model of movies from dying?
That's a bit like laws to preserve 6 lane roads and big box stores because they should be a permanent part of the landscape.
But newspapers are still exactly the same as they were, stuffed with ads. They might not have dominance, but haven't really changed.
And I didn't say anything about keeping RIAA or locked down systems. I don't own a game console and never will. I find Android too locked down for my tastes, if that explains anything.
It's true that selfish efforts to fight back changes are pathetic and must be stopped, but abolishing patents/copyright completely would just cause massive depression. I don't like how companies are abusing it through breaking your own stuff so you buy new stuff or replacement parts, but that's their business model. The underlying issue is that the corporate culture requires such behaviour, how else wouod you pay an army of managers and the board-horde?
That's a strange brew of alarmism. What commerce would actually stop if copyright and patent terms were, say, returned to the original Copyright Act terms?
"But on the copyright side, explain to me why personal computer jailbreaking tools should be readily available?"
This is about control over the computers we buy, which is becoming more and more important. The purpose of the DMCA anti-circumvention clause is to remove control from the users or owners of computers, and put it in the hands of the manufacturers and their well-connected "partners." It says that you must have permission from someone else to run software or read files, or even to use printer cartridges.
The politicians who passed the DMCA were not merely naive; they were blinded by their own conservative worldview. They had no understanding of individual computer users writing their own programs, of software being distributed freely on the Internet, of sharing computing resources, etc. In their minds, people use their computers to access information stored on servers, or to consume entertainment sold to them by others, and everything must happen with the permission of someone else. It is the same mindset that leads people to say things of the form, "Well that XBox was not intended for you to run GNU/Linux on it, so stop complaining!"
Individual computer users creating their own programs is a very specific group of people. Consider for a moment that devices aren't really made for nerd programmers. They are made for average people.
As a technology nerd, of course I want the freedom to modify and develop stuff, without restrictions, on my devices.
As a family member though, I'm not convinced that my non-technical parents, grandparents, siblings and so on really need root-level access to their hardware. Software can easily get screwed up. For the same reason, IT departments frequently take away admin rights from employees. This is rarely tyrannical, but just meant to keep things running smoothly without having to reinstall the OS every six weeks.
Already we are seeing with the Android "freedom" model a lot more malware than the "closed" Apple model. Sure, there is a trade-off there of ceding some device control to Apple, but at the end of the day, the benefits are quite significant.
So at least for me, I am willing to give up some control, if it means that I don't have to be plagued by technical support calls from my non-technical family members.
My point was that our representatives did not have a concept of anyone doing that unless it was part of their job (with a corporation). The idea of some kid hacking out the next big thing in their dorm room was (and likely remains) foreign to most of our politicians.
"So at least for me, I am willing to give up some control, if it means that I don't have to be plagued by technical support calls from my non-technical family members."
Except that you'll still be plagued by your less-technically-literate friends and family members. A few months ago, my mother called to ask me how she could copy a movie from a DVD to her new, locked-down tablet. I also received calls for help when she got a new cable TV receiver that would not work with her 720p TV because of HDCP. Such is the reality of the world of built-in restrictions and computers that are designed to fight their users.
This is lamentable, for sure. But, at least products exist, ready to go and on the shelf, that would work and are interoperable. Consider for a moment in a world of maximum freedom (without "Intellectual Property" at all), no one could really profit making this kind of stuff, and it wouldn't exist at all. What would be left? DIY?
So instead the moms of the world should buy all the parts for an HTPC, assemble it, and then read up in the MythTV wiki how to make it all work? Is that really a better future?
Standards are a separate issue. We manage to have standards for things like screws, nuts, bolts, and even connector head shapes for electronics.
Electronics manufacturers made plenty of money in a world of analog standards; they make plenty in a world of digital standards too, and would continue to make plenty of money in the absence of HDCP. Electronics manufacturers and entertainment companies became some of the most powerful corporations in the country before the DMCA was passed.
This is completely orthogonal to the issue. Opposing the DMCA does not preclude device manufacturers from implementing access restriction technologies. For most people the Apple App Store could function basically the same with or without the DMCA. The crux of the issue is whether circumventing these technologies should be illegal.
I don't think it should be.
You don't think the Apple App Store has more and better software available due to reduced copyright infringement on that platform?
The world started free and open. You have to provide and prove (and reprove as world/technology changes) a very good reason to encumber it. IMO, "So I can make more money" is not a very good reason.