From: Lee Daniel Crocker (lee@piclab.com)
Date: Tue Jun 18 2002 - 17:01:26 MDT
> (Mike Lorrey <mlorrey@datamann.com>):
> > If you want to perform a song you wrote, for example, this is a normal
> > service arrangement. You cover the costs of exclusion (renting a hall,
> > hiring ticket-takers and security, etc.), and then provide that service
> > to whoever pays. Now if I want to rent a hall, hire ticker takers, and
> > perform the same song with my own instruments and my own voice, the
> > only way you can restrain me is to claim a property right in the song
> > itself, not the performance. Clearly, the service model doesn't have
> > the result you want here, so it doesn't hold water.
>
> It sure does. How else would you have ever known of the song you wish to
> perform unless a) you wrote it yourself, or b) you either bought a
> copyrighted recording, or copyrighted sheet music, or a combination
> thereof. You were therefore provided a service by the original copyright
> holder, purchased under a commercial arrangement and in a form where the
> term "Copyright" was present on the product sold? It was your caveat
> emptor responsibility to inspect the item for any sale contract
> covenants/codocils/clauses, and to either accept the contract or refuse
> the sale.
I have no problem with contracts--but you and I both know that copyrights
and patents are not contracts. You've tried to argue this nonsense
before; you know it's not true, now stop it. If you want to argue that
a world where copyrights and patents /are/ private contracts would be a
good thing, that's fine--I'd even agree totally. But that's /not/ what
they are now. I didn't sign anything, ever. And I can in fact violate
plenty of copyrights without ever buying a copyrighted recording, book,
sheet music, or other medium for which it can be reasonably argued that
I consented by some implied means.
> Derivative works are allowed within the 'fair use' loopholes. I can
> write a satire song (like Wierd Al Yankovic does) using the entire score
> of another person's song. I can patent a device which combines two or
> more patented devices in a way not envisioned by the inventors of those
> other devices.
/Some/ derivative works like satire are fair use. That's an example of
why we certainly need loopholes like that if we have the law. But some
derivative works are still illegal, like translations, abridgements,
collections, and others. We could make more loopholes for those, but
the necessity of even a few should make one question whether the law
was a good idea in the first place. Patents are even more restrictive.
You can indeed patent a devie that combines earlier patents, but you
still can't make and sell the device without licenses from both (though
you do now have the slight bargaining position that they can't sell
your combination gadget without a license from you). In fact, that's
why a lot of big companies take out patents--not because they're of any
use in themselves, but they serve as bargaining chips for reciprocal
license agreements with other companies. Such "defensive patents" are
also evidence that the original idea was pretty bad to start with.
> Your ignorance of the law is showing, as well as your lack of reading
> comprehension. I never said you can't build AND SELL a patented device.
> I said that I can build any device ever patented, for my personal use
> and for the non-profit use of family and friends. I can sell any device
> with an expired patent.
That's true, but I still have yet to hear in any of this exchange a
rational reason for this restraint of trade.
> As for copyrights, there are laws describing what a copyright is, but
> that is separate from what I was describing. If I create a song, and
> copyright it, and then sell copies of that song *with* the notification
> attached or embedded in it that it was copyrighted and in what year and
> by whom, then any commercial transaction, i.e. a 'sale', of a copy will
> involve that copyright notification forming a part of the sale contract,
> and if that is the only written document involved in the transaction,
> then it has the weight of a written contract over a verbal one.
The copyright exists whether you claim it or not. Notificaton and
registration are both completely irrelevant and have been since the
Berne convention. Registration only allows you to sue for more money.
Like I said, I don't have much problem with shrink-wrap licenses and
other kinds of implied or understood contracts, although even those are
problematic when it comes to third parties. For example, what happens
if someone inherits your collection of tapes, which you have legally
made from albums you purchased and later lost? Your heir has never even
seen the albums, so how can he be bound to license terms that were
printed on them? What I have a problem with is (1) Restrictions imposed
by government fiat, and (2) restrictions that have not even a semblance
of rational basis, like protecting the copyrights of Walt Disney decades
after his death.
> [Speaking of China]
> Thus piracy creates a high barrier to entry in a market that can only be
> overcome by those with large capital resources. Ergo, piracy does not
> improve competition, it stifles it.
That's an interesting contention. I'm not sure I buy it, though. I
suspect that a "Mom and Pop" software company would have an advantage
because they have less investment to recoup. But of course one can
only say that lack of IP stifles competition if you define away selling
copies as competition, in other words, if you assume what you're trying
to prove. Without IP, mom & pop can compete with Microsoft by selling
Microsoft stuff, perhaps with some home-grown small improvements and
patches they've made (maybe bug fixes or customizations) and with their
own support contracts. Of course Microsoft would be less inclined to
invest in the production of something anyone could sell, but they too
would know the rules of the game ahead of time, and would only invest
where they thought they could make money under those rules.
> > I'm sure you'll respond that they would make more with IP. That might
> > be true. And farmers make more when the government subsidizes them too.
> > But that's no excuse for subsidies, and I don't buy it as an argument
> > for IP either.
>
> Farmers would make more when squatters are prevented from occupying
> their land (i.e. when environmentalists stopped telling them what they
> can and can't do with their land).
Totally irrelevant, and of course I agree completely. Bringing up
stuff like this is just wasting time.
> [Public goods argument]
>
> This is a valid argument, although your derision at the end is countered
> by the fact that if a patent is crap, then nobody will bother to pirate
> it, so it's enforcement costs will be nil as well.
True, but administration still costs money, and there's the HUGE cost
of the straightjacket put of further innovations by the fact that companies
have to hire lawyers to sift through all the patents to make sure they
aren't violating any. That's just a subsidy for patent lawyers.
And I'm surprized you just blindly accept the argument anyway. Isn't
the "public goods" argument uniformly rejected by most libertarians for
everything else? I certainly reject it, as does Friedman and others.
> This is also valid, though your caveats are answered by the historical
> record, where cascade effects of technological development have only
> occured where there have been statutory IP protections.
Oh, you mean creative bursts like the Renaissance? Oh, wait, no IP
there. I assume you mean the American industrial revolution, but even
there that's a slim argument. The present state of copyright and
patent law is much more recent than most people think--we've had /some/
form of IP law since the early 1800s, but it didn't even apply to things
it applies to today (like music, for example), it was much more limited
in duration and scope (we didn't recognize international coprights, for
example, until much later, and we didn't sign the Berne convention until
1980). But even then, the argument is somewhat post hoc ergo propter hoc;
just because we happened to have some IP law during that time is little
reason to give it credit unless you have specific reasons to. Sometimes
there is specific reason not to: for example, the big Swiss and German
drug companies that lobby for stronger IP today were all created because
of a lack of IP--Bayer, Bristol-Meyers Squibb, and Ciba-Geigy all became
big companies by manufaturing drugs somebody else invented. Walt Disney
may have created Mickey Mouse, but Disney coroporation became a giant
from profits on movies based on public-domain stories like Snow White.
> IP is art, whether it is a gear design or an oil painting or a building
> blueprint. It has always been a moral principle that someone who copies
> another persons original works of art is nothing but a cheap
> counterfieter, lacking in imagination, inventiveness, trustworthiness
> and respectability. I am not surprised that these adjectives are so
> easily applied to the average napster user.
Actually, that's never been a moral principle until recently. The great
masters of painting and sculpture copied each other all the time--it was
always considered the normal state of affairs. Homage, collage, and
re-interpretation where quite respected. Even when copyright first
appeared in the Statute of Anne, it had nothing to do with any idea of the
author's moral desert (in fact it didn't even apply to the author, it
applied to the publisher)--it was merely a way to encourage publishers.
ALL art is derivative to some extent, but even outright copying has
always been a tradition. Shakespeare didn't create a single story, but
he did put the old stories in beautiful prose.
It often has been the case that /unskilled/ copies were looked down upon,
and /forgery/ and /plagiarism/ have been--but that's a separate issue.
Forgery and plagiarism are making false claims that a copy is original.
Copying is entirely different--it is making the true claim that a copy is
a copy, and selling it on that basis.
> Dissolution of IP by pirates and counterfieters propagandizing against
> IP is as much an erosion of liberty on the economic front as other
> subversive organizations and individuals try to erode liberty by sowing
> mistrust, fear, uncertainty, and doubt in individual political freedoms
> like speech, association, bearing arms, travel, etc.
That's just so far from any ration definition of "liberty" I can
imagine that it's laughable. IP is the erosion of liberty; it is
copyright which is an affront to free speech, and patents which are
an affront to free enterprise. "Liberty" is about being allowed to
do things, not about forbidding others to do things. Whether or not
it's a good diea to forbid some people to do things can be argued, but
calling that "liberty" is utter nonsense. Throwing unrelated concepts
into the word "liberty" cheapens the real meaning of the word.
> Just because 'most people' would benefit from eliminating IP doesn't
> make it right, it only illustrates that 'most people' are unoriginal,
> unimaginative, uninventive hangers on. The purpose of natural law is to
> exclude some liberties from public confiscation based on utilitarian,
> security, or other arguments. IP is no different than speech, bearing
> arms, or other individual rights that IMHO should be exclusive of
> confiscation by popular vote.
I actually agree with most of those words even though they're a bit
twisted around. I don't care either whether most people would benefit
from elimination of IP--I;m not a populist either, and I too believe
that right and wrong should not be subject to the whims of majority
rule. I reject IP law because it's morally wrong. I don't care one
way or the other who it benefits. But it restricts freedom, and freedom
is something I fight for. IP is the exact opposite of speech--IP is a
muzzle, preventing speech for the supposed utilitarian reason that it
encourages more of certain kinds of speech we want, i.e., "creative"
work. Whether that's a good bargain or not is debateable, but I totally
reject any attempt not to honestly call it what it is--a restriction on
freedom for for pragmatic reasons. I also reject pragmatism, but I'm
willing to listen to pragmatic arguments. I'm not willing to listen
to wholesale re-definition of simple terms like "liberty" to the point
of absurdity.
-- Lee Daniel Crocker <lee@piclab.com> <http://www.piclab.com/lee/> "All inventions or works of authorship original to me, herein and past, are placed irrevocably in the public domain, and may be used or modified for any purpose, without permission, attribution, or notification."--LDC
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