Comments

• Michael

  2012-01-14 01:25:40

  So let's get rid of IP protections... starting with killing the GPL and making all GPL code become public domain.
  
  What? That would be evil and wrong! The government has no right to step in and remove IP protections from companies and individuals who make products!
  
  There goes your argument! You want it both ways... full protection for OSS but no protections for others. Completely hypocritical.

• saulgoode

  2012-01-14 11:42:04

  The government has no right to step in and remove IP protections from companies and individuals who make products!

  This is incorrect. The government does have the right to revoke any monopolies that were initially granted by them. The right of the government to "remove IP protections" is no different from its right to, for example, revoke the grant that Detroit television station WXYZ has to broadcast between 174 and 180 MHz at 1000kW in southeastern Michigan. It is the government's prerogative to specify any terms, limitations, and conditions on the monopoly WXYZ may be granted to broadcast over the public airwaves.
  
  Likewise, it is the government's prerogative to emend, abrogate, or rescind any monopoly they have granted upon copying and distribution of so-called "intellectual property". Furthermore, it is not only the right of the government to do so, they have the obligation to do so if the granted monopoly does not serve the public's interest (Article 8 of the U.S. Constitution).
  
  "Intellectual property" is not an entitlement, it is government-granted monopoly toward a particular segment of society (artists, authors, musicians, programmers, etc) which encroaches on the rights of others in that society; just as the monopoly that WXYZ has been granted to broadcast TV (on certain frequencies in the Detroit area) encroaches on other people's rights to do likewise. In all such government grants the interest -- and justification -- lies in how society benefits, not the recipient of the grants.
  
  So, yes. The government does indeed have the authority to revoke the monopolistic prerogatives that permit Free Software programmers to place conditions upon certain activities with respect to their code -- indeed the government has the obligation to do so if it were determined that licenses such as the GPL are not in the public interest. However, I would argue that the GPL is hardly the place to "start" such curtailing of copyright grants; the GPL actually does a better job protecting society's interest than base copyright law itself and should better qualify as the last place visited.
  
  For what it's worth, I am not at all opposed to the imposition of copyright monopolies at the conceptual level, just as I am not opposed to other government granting of monopolies on TV/radio stations, power grids, water supplies, and timber harvesting. It is, after all, the very purpose to engage in such administration of such resources. But the only valid argument pertinent to determining the details of how, or whether, such monopolies should be granted is their potential for benefiting society. Any discussion premised upon concern over an entitlement of the grant recipient is entirely nugatory; no such entitlement exists.

• Michael

  2012-01-14 16:42:25

  The government has no right to step in and remove IP protections from companies and individuals who make products!

  This is incorrect. The government does have the right to revoke any monopolies that were initially granted by them. The right of the government to “remove IP protections” is no different from its right to, for example, revoke the grant that Detroit television station WXYZ has to broadcast between 174 and 180 MHz at 1000kW in southeastern Michigan. It is the government’s prerogative to specify any terms, limitations, and conditions on the monopoly WXYZ may be granted to broadcast over the public airwaves.

  When talking about a natural resource, I see your point. That spectrum was not invented or even discovered by that radio station. But if I make some code and decide I want to protect it with the GPL, the government should not be able to come in and take my code and make it be public domain. I should maintain control over the IP for at least some amount of time (IP protections have been extended to far, far too long in my view). Same thing with others and how they want to protect their IP: if company X comes into an industry and introduces a radically different idea that ends up being wildly successful, then while others will naturally be inspired by it and will modify their offerings, when it crosses the line to obvious plagiarism and theft of IP that should *not* be allowed. The challenge, of course, is deciding where to draw the line - and given that we are talking innovations, and thus things which are unknown, this is not easy.

  Likewise, it is the government’s prerogative to emend, abrogate, or rescind any monopoly they have granted upon copying and distribution of so-called “intellectual property”. Furthermore, it is not only the right of the government to do so, they have the obligation to do so if the granted monopoly does not serve the public’s interest (Article 8 of the U.S. Constitution).

  The U.S. Constitution has seven articles. And nowhere it in does not contain the word "monopoly" (not even in the Amendments).

  “Intellectual property” is not an entitlement, it is government-granted monopoly toward a particular segment of society (artists, authors, musicians, programmers, etc) which encroaches on the rights of others in that society; just as the monopoly that WXYZ has been granted to broadcast TV (on certain frequencies in the Detroit area) encroaches on other people’s rights to do likewise. In all such government grants the interest — and justification — lies in how society benefits, not the recipient of the grants.

  So you think the GPL supports government granted monopolies. Interesting. I suppose in some ways that is true: I have a "monopoly" on my house - I own it and you do not. But that is not really what the word "monopoly" means... so you are abusing and twisting language.

  So, yes. The government does indeed have the authority to revoke the monopolistic prerogatives that permit Free Software programmers to place conditions upon certain activities with respect to their code — indeed the government has the obligation to do so if it were determined that licenses such as the GPL are not in the public interest. However, I would argue that the GPL is hardly the place to “start” such curtailing of copyright grants; the GPL actually does a better job protecting society’s interest than base copyright law itself and should better qualify as the last place visited.

  Here we have a difference in philosophy:
  
  I say the government has no right to take what you own, except in rare circumstances such as eminent domain or evidence collection for certain crimes. You believe that what we own the government should be able to take from us at any time if doing so would benefit society.
  
  Fair enough?

  For what it’s worth, I am not at all opposed to the imposition of copyright monopolies at the conceptual level, just as I am not opposed to other government granting of monopolies on TV/radio stations, power grids, water supplies, and timber harvesting. It is, after all, the very purpose to engage in such administration of such resources. But the only valid argument pertinent to determining the details of how, or whether, such monopolies should be granted is their potential for benefiting society. Any discussion premised upon concern over an entitlement of the grant recipient is entirely nugatory; no such entitlement exists.

  Remember: we are not talking exclusive use of a public / natural resource, such as a water supply or radio spectrum - we are talking exclusive rights to our own property that we created. Not the raw materials to do so.

• saulgoode

  2012-01-15 02:48:30

  When talking about a natural resource, I see your point. That spectrum was not invented or even discovered by that radio station. But if I make some code and decide I want to protect it with the GPL, the government should not be able to come in and take my code and make it be public domain.

  Consider what you are asserting in the sentence: if the government shouldn't be able to do it now then by what logic should they be able to do it twenty years? Or seventy? If it is truly your property, should it not remain yours to exploit as you (and your heirs) wish in perpetuity?
  
  

  The U.S. Constitution has seven articles. And nowhere it in does not contain the word "monopoly" (not even in the Amendments).

  A mistake on my part. It is Article I, Section 8 of the Constitution which empowers Congress to "... secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;".
  
  An exclusive right to something -- whether a physical object, a resource, or an activity -- is nothing other than a monopoly on that thing. If only you are permitted to exploit it, then you monopolize its exploitation.
  
  And to reiterate the point I was originally making, the power of Congress to grant this "exclusive Right" is not unconditional -- the Constitutional authority mandates that the granted monopoly be purposed to "promote the Progress of Science and useful Arts". Congress does not have the authority to grant exclusive rights to WXYZ just because they want to "reward" the shareholders of WXYZ, nor do they have the authority to reward the authors of copyrighted content merely to "reward" or benefit the creator. The overarching consequent of the monopoly grant must be premised on the beneficial furtherance of science and the useful arts.
  
  

  Here we have a difference in philosophy:
  
  I say the government has no right to take what you own, except in rare circumstances such as eminent domain or evidence collection for certain crimes. You believe that what we own the government should be able to take from us at any time if doing so would benefit society.
  
  Fair enough?

  No, I do not think you've correctly identified where are disagreement lies. I believe in what you say and am also opposed to government authority to seize privately owned property.
  
  Our differences stem (to my assessment) from your calling "property" that which is not in actuality property; or more directly, inconsistencies between our views in what "ownership" of property comprises.
  
  If I give, or sell, some real property to you, barring any pre-established agreements between us, then I no longer "own" that property and have no say in what you are to do with it. By the same token (were there no copyright law in existence), were I to give you a book I had written, I should have no say in what you do with that book. This is the natural state of property.
  
  However, copyright encroaches upon the "natural state" and, in effect, imposes a de facto, pre-established agreement to the ownership transfer of that book (indeed to all ownership transfers of instances of copyrighted works). This to my mind is the way the copyright regime should be viewed -- we can then productively engage in discussion suitable about the terms and conditions of the pre-established agreement, recognizing the Constitutional limitations upon the degree of Congressional authority available.
  
  With your view of copyright as an ownership entitlement presumably being the "natural state" of things, there are just too many inconsistencies to expect any productive discussion to ensue -- e.g., reconciling your statement that "IP protections have been extended to far, far too long in my view" with the idea of copyrights being "owned property" which is a natural entitlement of the creator.
  
  

  Remember: we are not talking exclusive use of a public / natural resource, such as a water supply or radio spectrum – we are talking exclusive rights to our own property that we created. Not the raw materials to do so.

  I agree that there is some degree of disjunction in the comparison to airwave broadcasting, but the similarities are significant in considering the issue of government encroaching upon the natural state of things (whereby anybody could broadcast whenever and wherever) in an effort to benefit the public.
  
  As I've stated, I am not at all opposed to the concept of copyright. Properly considering it as a pre-established "sales contract" governing the transfer of ownership of copyrighted works, having certain rights by default exclusively retained by the author greatly simplifies the ability of authors and creators to market their work (without resorting to explicit contractual agreements with each and every recipient of the work), and I would recognize that this offers an incentive for the authors to publish their work (it also obviates the legal intricacies of enforcing those agreements under contract law). These are, to my mind, ways in which government institution of copyright law can benefit the public being governed.
  
  Nonetheless, the copyright regime as it currently stands is in dire need of reform, with which you apparently would agree. However, your present viewpoints of copyright as "exclusive rights to our own property" does not provide any guidance on identifying and addressing the necessary issues in reforming the law because your starting premise is that copyright ownership is the natural state of the rights being discussed. How can one ever hope to analyze the merit of a law, or to contrive its scope and authority, if one starts by presuming the law itself is the natural state of things? No, it is only by first examining how things would transpire without the law altogether that such an analysis take place, and your viewpoint of copyright fails in this regard.

• Michael

  2012-01-15 18:50:58

  When talking about a natural resource, I see your point. That spectrum was not invented or even discovered by that radio station. But if I make some code and decide I want to protect it with the GPL, the government should not be able to come in and take my code and make it be public domain.

  Consider what you are asserting in the sentence: if the government shouldn’t be able to do it now then by what logic should they be able to do it twenty years? Or seventy? If it is truly your property, should it not remain yours to exploit as you (and your heirs) wish in perpetuity?

  I can see the case for that argument, but I see it as being similar to eminent domain: there comes a time when social needs outweigh your rights... but your idea that this time should be immediate is completely wrong in my view. I also think from a practical point of view it is very hard to enforce such rights in perpetuity... so there is a pragmatic side, too

  It is Article I, Section 8 of the Constitution which empowers Congress to “… secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”. An exclusive right to something — whether a physical object, a resource, or an activity — is nothing other than a monopoly on that thing. If only you are permitted to exploit it, then you monopolize its exploitation.

  Well, if it is yours, you have rights to it that I do not. Makes sense to me.

  And to reiterate the point I was originally making, the power of Congress to grant this “exclusive Right” is not unconditional — the Constitutional authority mandates that the granted monopoly be purposed to “promote the Progress of Science and useful Arts“. Congress does not have the authority to grant exclusive rights to WXYZ just because they want to “reward” the shareholders of WXYZ, nor do they have the authority to reward the authors of copyrighted content merely to “reward” or benefit the creator. The overarching consequent of the monopoly grant must be premised on the beneficial furtherance of science and the useful arts.

  If you know you will have rights to your own work then you are more likely to do that work. Sure. I think this applies to pretty much all IP. Then, of course, those rights can be sold or traded, so the originator gets the benefit of whatever they are paid and the recipient gets the IP rights.

  Here we have a difference in philosophy: I say the government has no right to take what you own, except in rare circumstances such as eminent domain or evidence collection for certain crimes. You believe that what we own the government should be able to take from us at any time if doing so would benefit society. Fair enough?

  No, I do not think you’ve correctly identified where are disagreement lies. I believe in what you say and am also opposed to government authority to seize privately owned property.

  But you do not extend that to *all* property, only physical, is that correct? You put IP in a separate category and say that a person should lose rights to his own property there, unless he can show it is a benefit to society for him to keep his own property. But why should you have to prove to me that your property (and your use of it?) benefits me in order for you to keep your own property?

  Our differences stem (to my assessment) from your calling “property” that which is not in actuality property; or more directly, inconsistencies between our views in what “ownership” of property comprises.

  Do you accept that if you write some code and protect your IP with the GPL that people who use your code should follow the GPL? If you do then you are agreeing it is your property and that you get to set the parameters of use. If not, then would you want to see all GPL code put into the public domain where IP rights are completely removed?

  If I give, or sell, some real property to you, barring any pre-established agreements between us, then I no longer “own” that property and have no say in what you are to do with it. By the same token (were there no copyright law in existence), were I to give you a book I had written, I should have no say in what you do with that book. This is the natural state of property.

  The "natural state"? No... property is whatever we, as people, define. There is no "natural state" of property - it is not a property of nature, it is a man-made artificial construct. When a molecule loses an electron to another, we do not think it terms or property rights. When a wild animal takes the food - or even the life - of another animal, while we might feel bad for the "loser", we do not think in terms of property rights - accept perhaps in terms of our own pets. No, there is no "natural state" of property - property is a man-made idea, the idea that what you have earned or has been given to you is yours and that, for the most part, you are the one who has rights to it. These rights (property rights) are not absolute - there are times when we see societal needs overriding personal property rights. I am very strong in favor of personal rights - I believe in freedom for individuals. As you note, there are people who might be even more extreme on this than I am - people who are against eminent domain completely or who think there should be no taxes or who believe all IP rights should be forever. But, still, while there may be people more extreme than I am, you are on the opposite extreme, at least in terms of some property rights. You believe people have an obligation to show why their ownership and control of their own property (that which they have earned, created, discovered, or had given to them by another) is in the interest of society. In other words, you believe these things, in their proper state, should be communal property unless a person can show why personal ownership benefits the community. You support, for this type of property, Communist ideals. Now I know that the word "Communist" is an emotionally charged word for some - but I assure you I am not putting you down for you Communist ideals (in this area) nor am I saying you agree with all Communist ideals (you do not seem to agree with them in terms of other forms of property). Now to make a bit of a jump: many who believe as you do claim they believe as they do because they support the concept of "freedom". But it is support for freedom of the state, or freedom of society, and *not* freedom of the individual. I also support the idea of freedom, but I focus on freedom of the individual over freedom of the state / society. And I agree that there are limits to this freedom. Assuming you fit into that group, we both support freedom, we just define it a bit differently and our focus is different. Neither of us believes all property should be communal nor do we believe in the rights to personal property being absolute. From what we have discussed, though, I focus more on individual rights and you on communal rights. Fair enough this time? :) If not, of course, I am open to corrections.

  As I’ve stated, I am not at all opposed to the concept of copyright. Properly considering it as a pre-established “sales contract” governing the transfer of ownership of copyrighted works, having certain rights by default exclusively retained by the author greatly simplifies the ability of authors and creators to market their work (without resorting to explicit contractual agreements with each and every recipient of the work), and I would recognize that this offers an incentive for the authors to publish their work (it also obviates the legal intricacies of enforcing those agreements under contract law). These are, to my mind, ways in which government institution of copyright law can benefit the public being governed.

  And thus you do not believe in pure Communism in terms of IP. OK. So when I speak of your "Communist ideals" in terms of IP, they are not extreme, just as I am not in favor of "pure" personal rights - we each see places where the "other" side (personal or societal) overrides our general views.

  Nonetheless, the copyright regime as it currently stands is in dire need of reform, with which you apparently would agree.

  Absolutely... and I do not have all the answers.

  However, your present viewpoints of copyright as “exclusive rights to our own property” does not provide any guidance on identifying and addressing the necessary issues in reforming the law because your starting premise is that copyright ownership is the natural state of the rights being discussed. How can one ever hope to analyze the merit of a law, or to contrive its scope and authority, if one starts by presuming the law itself is the natural state of things? No, it is only by first examining how things would transpire without the law altogether that such an analysis take place, and your viewpoint of copyright fails in this regard.

  The natural state is to completely give up on the idea of property... I think instead we should focus on what we think is right and fair for both the individual and society. Where to draw the line, however, is not easy.

• saulgoode

  2012-01-16 06:45:34

  But you do not extend that to *all* property, only physical, is that correct? You put IP in a separate category and say that a person should lose rights to his own property there, unless he can show it is a benefit to society for him to keep his own property. But I AM extending that (government seizure of property), or at least I am not asserting any particular exception for "intellectual property". I am, if you will, the one who is treating "intellectual property" as "real property"; you are the one who would have exceptional measures taken in its treatment.
  
  If I give you an apple ("real property") then that apple is now yours to do with what you will. Of course, we could come to some sort of understanding before I give you the apple that you, by taking the apple, agree to somesuch as 1) paying me a dollar, 2) not selling the apple to anyone else, 3) not making a pie out of it, 4) not planting the seeds, or n) whatever conditions we both come to agree upon. But if I don't bother to specify any pre-conditions, or to get your consent to them, then by default you are free to do any of those things.
  
  Now let's say I wrote a poem and give it to you. I would treat the transaction in a similar light. The default transaction is that you then are free to do with that poem, the "property" that has been given to you by me, whatever you want. The poem is "my property" to do with as I please up until the point that I give it to you. If I wish to retain any control over what you might do with that poem then such stipulations should need to be specified before you receive the poem.
  
  Now if you are skeptical that what I just described is the real nature of "intellectual property", consider that the preceding paragraph is an entirely accurate description of how my sharing a poem (story, song, etc) with you is treated under current copyright law -- IF I did not write the poem down on paper, or record it on a tape, or otherwise "fixate it in a permanent medium" before sharing it with anybody. If I merely recited the poem to you, having never made a tangible copy of its "creativeness", then there is no copyright protection extended to it.
  
  How can that be? By your reasoning the poem is my property, both before and after I've shared it with you. Why is the government letting you "steal" my property? If my poetic creation is my property, it should not matter whether I've committed it to paper. I created it, it's mine; and I should be able to tell everybody else what they can and cannot do with it. Yet that is not what the law says. The law isn't recognizing my poetic creation as "property", nor is the government protecting it.
  
  

  The "natural state"? No… property is whatever we, as people, define. There is no "natural state" of property – it is not a property of nature, it is a man-made artificial construct.

  I think there does exist a natural concept of "property" and that the "man-made artificial construct" to which you refer is not that which creates property, but that which deals with how society treats the retention, disposition, and transfer of ownership rights for property. In other words, society makes laws about the ownership of property, but it does not make property -- even a lawless society has property, it is just a matter of its ownership being dictated by "might makes right".
  
  I do not even particularly object to the concept of treating an artistic creation as "property" -- and remain generally opposed to government seizure of citizens' property -- but then to be consistent one should necessary treat that creative work in a "property-like" fashion. If the creation is "property" then when it is passed from one person to another, and the person should be receiving that "property" -- if he is not, then it is not really "property". Ironically, it is copyright law which is not treating "intellectual property" as real property.

  But why should you have to prove to me that your property (and your use of it?) benefits me in order for you to keep your own property?

  As long as I keep my property to myself, I completely agree. But if the "man-made artificial construct" which we call law is to intervene and declare that when I give it to you, I retain it, then that intervention needs to be justified as producing a societal benefit because this is a deviation from both the lawful and the lawless laws of property (just as government confiscation of property by means of "imminent domain" need be justified).

• Michael

  2012-01-16 07:32:52

  But you do not extend that to *all* property, only physical, is that correct? You put IP in a separate category and say that a person should lose rights to his own property there, unless he can show it is a benefit to society for him to keep his own property.

  
  
  But I AM extending that (government seizure of property), or at least I am not asserting any particular exception for “intellectual property”. I am, if you will, the one who is treating “intellectual property” as “real property”; you are the one who would have exceptional measures taken in its treatment.

  How so? Did you not say that one should lose their IP unless it can be shown it helps the community (and if not the IP becomes communally owned)?

  If I give you an apple (“real property”) then that apple is now yours to do with what you will. Of course, we could come to some sort of understanding before I give you the apple that you, by taking the apple, agree to somesuch as 1) paying me a dollar, 2) not selling the apple to anyone else, 3) not making a pie out of it, 4) not planting the seeds, or n) whatever conditions we both come to agree upon. But if I don’t bother to specify any pre-conditions, or to get your consent to them, then by default you are free to do any of those things.

  I would mostly agree and even extend it to say some conditions would not be reasonable and can even be ignored after the sale (you cannot sign away rights).

  Now let’s say I wrote a poem and give it to you. I would treat the transaction in a similar light. The default transaction is that you then are free to do with that poem, the “property” that has been given to you by me, whatever you want. The poem is “my property” to do with as I please up until the point that I give it to you. If I wish to retain any control over what you might do with that poem then such stipulations should need to be specified before you receive the poem.

  Agreed. I have worked this way: made products of the mind I have been paid to make and not retained IP control over them. OK.

  Now if you are skeptical that what I just described is the real nature of “intellectual property”, consider that the preceding paragraph is an entirely accurate description of how my sharing a poem (story, song, etc) with you is treated under current copyright law — IF I did not write the poem down on paper, or record it on a tape, or otherwise “fixate it in a permanent medium” before sharing it with anybody. If I merely recited the poem to you, having never made a tangible copy of its “creativeness”, then there is no copyright protection extended to it.

  There is no reason to artificially differentiate it from my sending it to you in an email and my reciting it to you over the phone for you to write down. That is assuming we are talking about the poem and not a *performance* of the poem. Those can be different IP entities.

  How can that be? By your reasoning the poem is my property, both before and after I’ve shared it with you. Why is the government letting you “steal” my property? If my poetic creation is my property, it should not matter whether I’ve committed it to paper. I created it, it’s mine; and I should be able to tell everybody else what they can and cannot do with it. Yet that is not what the law says. The law isn’t recognizing my poetic creation as “property”, nor is the government protecting it.

  I am focusing on what I think is moral and right - we have already agreed the laws are not always right. In my view, your higher Communistic views are immoral. In your views, my greater focus on personal rights is immoral.

  The “natural state”? No… property is whatever we, as people, define. There is no “natural state” of property – it is not a property of nature, it is a man-made artificial construct.

  I think there does exist a natural concept of “property” and that the “man-made artificial construct” to which you refer is not that which creates property, but that which deals with how society treats the retention, disposition, and transfer of ownership rights for property. In other words, society makes laws about the ownership of property, but it does not make property — even a lawless society has property, it is just a matter of its ownership being dictated by “might makes right”.

  We can project our own views of property on others, but different cultures see it very differently. There is nothing "natural" about it (nor, really, about what is right or wrong, though there is stronger consensus on that).

  I do not even particularly object to the concept of treating an artistic creation as “property” — and remain generally opposed to government seizure of citizens’ property — but then to be consistent one should necessary treat that creative work in a “property-like” fashion. If the creation is “property” then when it is passed from one person to another, and the person should be receiving that “property” — if he is not, then it is not really “property”. Ironically, it is copyright law which is not treating “intellectual property” as real property.

  You can license your property, for example, many people rent or lease cars. They control the property but do not own it. I can write a book or a program and you can use it under my permission, but you cannot copy it nor alter it and sell the alterations. It would be absurd and illegal for me to get a copy of the Harry Potter series and change the names and a number of other details, but keep the story and the narration largely unchanged and sell it as my own. With that said, if I was writing a book I could not help but be inspired by what I read - and if I see a type of literature change and become popular I might want to join that movement. There is not an easy line to draw from being inspired by another's work and plagiarizing that work.

  But why should you have to prove to me that your property (and your use of it?) benefits me in order for you to keep your own property?

  As long as I keep my property to myself, I completely agree.

  But if you license it to me with restrictions then you have to prove that it benefits me for you to license it to me and not just give it to me - or it becomes a part of the public domain? That is a bit silly in my view! I do not agree with such a Communist ideal (though, I admit, after some time has passed I generally agree... so I am not an extremist in being against that view).

  But if the “man-made artificial construct” which we call law is to intervene and declare that when I give it to you, I retain it, then that intervention needs to be justified as producing a societal benefit because this is a deviation from both the lawful and the lawless laws of property (just as government confiscation of property by means of “imminent domain” need be justified).

  So if you loan me your car and I can prove I have a greater need for it, or perhaps prove it would serve society better to put your car in a share-pool, then you think this is what should be done? How about your house? There are many people without houses - what if someone argues that society would be better off if you had to share your house with the less fortunate: you must let a homeless family move in with you. How is this different?

• saulgoode

  2012-01-16 18:11:34

  Did you not say that one should lose their IP unless it can be shown it helps the community (and if not the IP becomes communally owned)?

  No, I did not say that. I said that if they give their property to somebody then the recipient receives ownership. In the case of creative expression, this giving does not result in the creator losing any rights because he is still has it -- I can give my poem to you and yet I still possess the ability to give it to someone else.
  
  Copyright is not about protecting any rights of the person who creates the work, it is about abrogating the rights everybody else.
  
  

  There is no reason to artificially differentiate it from my sending it to you in an email and my reciting it to you over the phone for you to write down.

  So you are saying that copyright law as it currently exists is unreasonable (at least we can agree on that). Because under the law there is no copyright protection afforded until the work is recorded in some tangible manner. If you tell me a poem you've written, sing me a new song, or relate an improvisational story then they are NOT protected by copyright law (Title 17, ۤ 102 "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression").
  
  

  I am focusing on what I think is moral and right – we have already agreed the laws are not always right. In my view, your higher Communistic views are immoral. In your views, my greater focus on personal rights is immoral.

  You are NOT focused upon personal rights because the way that copyright law works is to take away the rights of everybody but the author. The rights of the author are not affected by copyright law one way or the other -- I have the right to give you my poem and then still have the right to go and give it to someone else. I can turn it a song, or even make a movie out of it; nothing that you do after receiving my poem takes away any of my rights to do anything that I couldn't do before giving the poem to someone us. So if your moral focus is upon "personal rights" and you don't approve of rights being taken away from people, then your professed morality should stand in opposition to copyright law.
  
  

  You can license your property, for example, many people rent or lease cars.

  And have you ever rented a house, a car, a golf cart, ... anything ... without first signing some sort of contract? That is an important distinction from a transfer of ownership through giving or selling. When we buy or are given a copyrighted work, we don't actually own it -- the government has intervened and imposed an automatic, pre-established "sales contract" which restricts the rights of the buyer in a manner very similar to how leases or rental agreements work. (This is in fact how you treat the subject with the remainder of your response, so I'll consider those points already addressed.)
  
  This is to what I was referring earlier: copyright law should be considered a pre-negotiated sales contract, or perhaps more aptly a rental contract since the buyer actually acquires very few ownership rights. The problem is that the vast majority of the population was not involved in the negotiations and are growing increasingly dissatisfied with the terms of the agreement -- and well they should be.
  
  If the lobbyists of Hollywood and TIn Pan Alley are to be believed and "piracy" is running rampant, this should serve as a clear indication of that dissatisfaction and that it is time to renegotiate the contract -- not that government should be unilaterally cracking down on the people whose rights have been taken away.

• Michael

  2012-01-16 18:43:57

  Did you not say that one should lose their IP unless it can be shown it helps the community (and if not the IP becomes communally owned)?

  No, I did not say that.

  You claimed ownership of your own property (in the case of IP) was a "government-granted monopoly" and claimed it "encroaches on the rights of others". You than said the "justification" for the ownership "lies in how society benefits". This is one of the key areas where we disagree. I do not beleive anyone should have to justify to others why they should maintain rights over their own property! I disagree that one has to show "how society benefits" in order to keep the "monopoly" control over ones own property.

  I said that if they give their property to somebody then the recipient receives ownership.

  Sure: if I turn over IP rights to you then you have the IP rights. Not me. I do not think that is in contention!

  In the case of creative expression, this giving does not result in the creator losing any rights because he is still has it — I can give my poem to you and yet I still possess the ability to give it to someone else.

  Wait: are you saying you give me a copy of the poem but maintain IP rights or are you saying you give me the IP rights to the poem? If the latter, no, once you have given up your IP rights (your property), it is no longer yours. It sounds like you are confusing giving a copy of a poem (a physical item) with the granting of IP rights (a non-physical item).

  Copyright is not about protecting any rights of the person who creates the work, it is about abrogating the rights everybody else.

  Where did you get *that* from? I mean, sure, one could say that the ownership of my house is not about giving me rights to my house but about abrogating everyone else's "rights" to my house, but that is just a bizarre way to look at things in my view. Comes down to if you focus on communal rights (Communist ideals) or personal rights (Capitalist ideals). I do the latter, you do the former (at least in the case of IP).

  So you are saying that copyright law as it currently exists is unreasonable (at least we can agree on that).

  Yes. I think many of the IP laws we now have are absurd, inconsistent, and poorly developed / designed.

  You are NOT focused upon personal rights because the way that copyright law works is to take away the rights of everybody but the author. The rights of the author are not affected by copyright law one way or the other — I have the right to give you my poem and then still have the right to go and give it to someone else. I can turn it a song, or even make a movie out of it; nothing that you do after receiving my poem takes away any of my rights to do anything that I couldn’t do before giving the poem to someone us. So if your moral focus is upon “personal rights” and you don’t approve of rights being taken away from people, then your professed morality should stand in opposition to copyright law.

  This is backwards. If I make a widget it is *mine* and you have *no* rights to it. Even if I let you borrow it or license it, you do not gain *ownership* rights. Saying so is not in any way abotu taking your rights away! It does not matter if the "widget" is physical or not (though I grant that with the non-physical "widgets" there are differences and, for example, it makes sense to have a limit of time).

  You can license your property, for example, many people rent or lease cars.

  And have you ever rented a house, a car, a golf cart, … anything … without first signing some sort of contract?

  I have most certainly borrowed items without a written and signed contract! Heck, when I go to the bank I often borrow their pens without them asking me to sign anything. Heck, when I went to buy a car a number of years ago the salesman let me test drive any car I wanted - without a contract of any sort or even getting a copy of my license. I sometimes walk at a mall and use their kids area - without any form of writen contract. In each of these cases there are implied rules (contracts) which are defined by law (and, really, by social norms). With IP there can be an implied contract (codified by law). I have no problem with that. I think it makes sense for IP owners to define what these rights are... of course.

  That is an important distinction from a transfer of ownership through giving or selling. When we buy or are given a copyrighted work, we don’t actually own it — the government has intervened and imposed an automatic, pre-established “sales contract” which restricts the rights of the buyer in a manner very similar to how leases or rental agreements work. (This is in fact how you treat the subject with the remainder of your response, so I’ll consider those points already addressed.)

  You can sell (or give away) your IP. Again, you are confusing the physical item with the IP. When I buy a book I have certain rights with the book, but I do not have (nor should I have) all IP rights. I cannot print and sell my own copies of the Harry Potter series, modified or not. I might own copies of the book (physicial items) but I do not own the IP for the story!

  This is to what I was referring earlier: copyright law should be considered a pre-negotiated sales contract, or perhaps more aptly a rental contract since the buyer actually acquires very few ownership rights. The problem is that the vast majority of the population was not involved in the negotiations and are growing increasingly dissatisfied with the terms of the agreement — and well they should be.

  I largely agree with this. At the same time, the IP owner should be able to set a wide variety of conditions for the "pre-negotiated sales contract"... and that "sales contract" should include sakes of the physical item (say a book or DVD) and a non-sales *licensing* contract of the story or music or whatever (the IP).

  If the lobbyists of Hollywood and TIn Pan Alley are to be believed and “piracy” is running rampant, this should serve as a clear indication of that dissatisfaction and that it is time to renegotiate the contract — not that government should be unilaterally cracking down on the people whose rights have been taken away.

  While I agree that the rights of the IP holders are being somewhat trampled on, the technology has made it so amazingly easy they are fighting a losing battle. They need to find a new business paradigm... Apple has been doing a good job with the music industry showing how non-DRM music can be sold for a profit. The same thing can be done with videos (though the issues are a bit different). Heck, I sell a DVD filled with 4+ hours of non-DRM videos... and I merely ask people to respect my IP and not copy the DVD for others. I happily help people copy the DVD contents to their own computer or make a backup of it (the exact same thing it would take to illegally hand out copies). I am sure I lose some sales to piracy, but so be it...

• saulgoode

  2012-01-16 20:44:57

  We have apparently nested too far, so the following is not a "top-level" response but addresses a nested comment from "Michael".
  
  

  Wait: are you saying you give me a copy of the poem but maintain IP rights or are you saying you give me the IP rights to the poem? If the latter, no, once you have given up your IP rights (your property), it is no longer yours. It sounds like you are confusing giving a copy of a poem (a physical item) with the granting of IP rights (a non-physical item).

  But I've already explained that, unless a "physical copy" is made, there is no IP protection. I've requested that you address how that reconciles with your view. Yes, I agree there is confusion, but it is not on my part.
  
  

  Where did you get *that* from? I mean, sure, one could say that the ownership of my house is not about giving me rights to my house but about abrogating everyone else’s "rights" to my house, but that is just a bizarre way to look at things in my view.

  Yet that is the reality of the legalities of the situation.
  
  

  This is backwards. If I make a widget it is *mine* and you have *no* rights to it. Even if I let you borrow it or license it, you do not gain *ownership* rights.

  If you lend or lease something than fine, but we are not talking about that. Both those activities entail an agreement between the recipient and the provider, otherwise providing someone with something, by default, transfers the right of the receiver to avail himself of that thing.
  
  

  I have most certainly borrowed items without a written and signed contract! Heck, when I go to the bank I often borrow their pens without them asking me to sign anything. Heck, when I went to buy a car a number of years ago the salesman let me test drive any car I wanted – without a contract of any sort or even getting a copy of my license.

  And all of these examples are premised upon the provider of property actually losing their rights to avail themselves of the use of that property should you not return it. No such loss takes place in the case of creative expression (or "intellectual property" as you are wont to call it).
  
  

  I sometimes walk at a mall and use their kids area – without any form of writen contract.

  And I should expect that you would be somewhat upset if, without any forewarning being offered, the owner of that property were to demand that you pay him for that usage.
  
  

  In each of these cases there are implied rules (contracts) which are defined by law (and, really, by social norms). With IP there can be an implied contract (codified by law). I have no problem with that. I think it makes sense for IP owners to define what these rights are… of course.

  I agree with this; indeed it was the point I've been endeavoring to get across. Copyright is not an "entitlement" -- it is a "contract" -- and it is only in viewing it as a contract that we can hope to determine what the most mutually beneficial terms of that contract might be.
  
  

  I largely agree with this. At the same time, the IP owner should be able to set a wide variety of conditions for the "pre-negotiated sales contract"… and that "sales contract" should include sakes of the physical item (say a book or DVD) and a non-sales *licensing* contract of the story or music or whatever (the IP).

  I am pleased to see that we are converging towards some degree of agreement. All of property law -- whether real property or intellectual property -- is premised upon the retention/transfer of rights to that property which occurs when recipients of the property gain access to it. The more traditional view of property is that when it is transferred from one individual to another, the former no longer has allowance of those rights. Many in the anti-copyright crowd would not recognize something as being "property" without this criteria of "scarcity" being met; I do not disagree with them but, just as with the issue of "entitlement" (or labeling viewpoints as being "communistic" or "nationalistic"), I do not feel it is productive to reasoned discussion.
  
  

  While I agree that the rights of the IP holders are being somewhat trampled on, the technology has made it so amazingly easy they are fighting a losing battle.

  Now this is where I feel the distinction lies between your view and mine. I would not term the problem as being the rights of the IP holder being trampled upon, but that the potential for them to profit from those rights is being weakened. If I give my poem to you (for some sort of compensation), while I still retain all ownership rights to that poem, I am not going to be able to market that poem to same extent as I would otherwise -- I am now in competition with you with regard to marketing that poem. If I were a savvy entrepreneur (and living in a world where copyright law does not exist), I should have you agree to not offering the poem to anyone else; and I should make that a pre-condition of the sale. Such a sales contract would greatly benefit my potential for profiting from poem; and provide me incentive to write even more poems (should that potential ever actually be realized).
  
  Now government has recognized this incentive, and enacted (copyright) law to promote it, and historically this has not been to great cost to society. However, just as you assert that "the technology has made it so amazingly easy" to trample upon this potential of the IP rightsholder to profit from an exclusive right to market "his property", the potential for society to benefit from unencumbered proliferation of that "property" is exponentially being constricted -- precisely because of the same technology.
  
  We have reached a point where, with copyrights permeating basically every aspect of human culture that has occurred in the last century (other than the written word, virtually everything that has been "fixated in a medium" in the last hundred years falls under copyright), it is incumbent to ask what the potential might be if some of that might be liberated such that it can be exploited to the fullest extent possible given the possibilities offered by this technology which has, by your own words, made it so "amazingly easy" to disseminate creativity, information, and knowledge? I'm not saying copyright should be abolished, but don't you think it is time to actually more towards allowing society to progress and letting the human race evolve?

• Michael

  2012-01-16 21:46:05

  Wait: are you saying you give me a copy of the poem but maintain IP rights or are you saying you give me the IP rights to the poem? If the latter, no, once you have given up your IP rights (your property), it is no longer yours. It sounds like you are confusing giving a copy of a poem (a physical item) with the granting of IP rights (a non-physical item).

  But I’ve already explained that, unless a “physical copy” is made, there is no IP protection. I’ve requested that you address how that reconciles with your view. Yes, I agree there is confusion, but it is not on my part.

  I disagree with your premise. I do not believe one has to make a "physical copy" or do *anything* else to "earn" their own property. Again, keep in mind I am discussing what I think *should* be, not what the laws are now (we both agree the laws are done poorly).

  This is backwards. If I make a widget it is *mine* and you have *no* rights to it. Even if I let you borrow it or license it, you do not gain *ownership* rights.

  If you lend or lease something than fine, but we are not talking about that.

  So you are talking about selling someone not just, say, a song but the IP rights to the song. In that case there is no lease or license (or need not be, anyway). You then own the song and can do with it as you please - put it in the public domain, allow the Chipmunks to sing it and release it, whatever. It is your IP. Again, we need to be clear about if we mean selling you rights to use the song for your personal listening vs. selling you the full IP rights.

  And all of these examples are premised upon the provider of property actually losing their rights to avail themselves of the use of that property should you not return it. No such loss takes place in the case of creative expression (or “intellectual property” as you are wont to call it).

  If we are talking about no loss of property, then we are *not* talking about transferring the IP rights. Above you were. Again: you go back and forth. Even if I share the IP rights with you, so you have the right to have the Chipmunks record and release the song and so do I, I still no longer have the full IP rights.

  I sometimes walk at a mall and use their kids area – without any form of writen contract.

  And I should expect that you would be somewhat upset if, without any forewarning being offered, the owner of that property were to demand that you pay him for that usage.

  I would also be upset if someone ran up and punched me in the nose - but let us stay on the topic.

  I agree with this; indeed it was the point I’ve been endeavoring to get across. Copyright is not an “entitlement” — it is a “contract” — and it is only in viewing it as a contract that we can hope to determine what the most mutually beneficial terms of that contract might be.

  Right. My IP is my property, but you can use it as I license you to (the contract). This means if I sell you the rights to use my software, I need not sell you the rights to the code, to share it, etc.

  I largely agree with this. At the same time, the IP owner should be able to set a wide variety of conditions for the “pre-negotiated sales contract”… and that “sales contract” should include sakes of the physical item (say a book or DVD) and a non-sales *licensing* contract of the story or music or whatever (the IP).

  I am pleased to see that we are converging towards some degree of agreement. All of property law — whether real property or intellectual property — is premised upon the retention/transfer of rights to that property which occurs when recipients of the property gain access to it. The more traditional view of property is that when it is transferred from one individual to another, the former no longer has allowance of those rights.

  Right. But not if they are merely leasing / loaning / allowing others to make use of the property.

  Many in the anti-copyright crowd would not recognize something as being “property” without this criteria of “scarcity” being met; I do not disagree with them but, just as with the issue of “entitlement” (or labeling viewpoints as being “communistic” or “nationalistic”), I do not feel it is productive to reasoned discussion.

  Scarcity might come into play as to what we think is a reasonable way for others to use your property, but it should not affect what *is* your property.

  While I agree that the rights of the IP holders are being somewhat trampled on, the technology has made it so amazingly easy they are fighting a losing battle.

  Now this is where I feel the distinction lies between your view and mine. I would not term the problem as being the rights of the IP holder being trampled upon, but that the potential for them to profit from those rights is being weakened. If I give my poem to you (for some sort of compensation), while I still retain all ownership rights to that poem, I am not going to be able to market that poem to same extent as I would otherwise — I am now in competition with you with regard to marketing that poem.

  That is if you not only give me a copy of the poem but *also* give me rights to share it. If you do not, and if I do, then I am going against our agreement and you should be compensated. I do not have any rights to your property that you do not give me.

  If I were a savvy entrepreneur (and living in a world where copyright law does not exist), I should have you agree to not offering the poem to anyone else; and I should make that a pre-condition of the sale. Such a sales contract would greatly benefit my potential for profiting from poem; and provide me incentive to write even more poems (should that potential ever actually be realized).

  And such a contract should just be assumed - I mean, really, signing a contract for every book or CD or DVD you buy? That would get silly *real* fast.

  Now government has recognized this incentive, and enacted (copyright) law to promote it, and historically this has not been to great cost to society. However, just as you assert that “the technology has made it so amazingly easy” to trample upon this potential of the IP rightsholder to profit from an exclusive right to market “his property”, the potential for society to benefit from unencumbered proliferation of that “property” is exponentially being constricted — precisely because of the same technology.

  Potential for society to benefit? Are you going back to the idea that I have to prove there is a benefit for society for me to keep my property?

  We have reached a point where, with copyrights permeating basically every aspect of human culture that has occurred in the last century (other than the written word, virtually everything that has been “fixated in a medium” in the last hundred years falls under copyright), it is incumbent to ask what the potential might be if some of that might be liberated such that it can be exploited to the fullest extent possible given the possibilities offered by this technology which has, by your own words, made it so “amazingly easy” to disseminate creativity, information, and knowledge? I’m not saying copyright should be abolished, but don’t you think it is time to actually more towards allowing society to progress and letting the human race evolve?

  I do not see moving toward communal ownership of private property as a good direction for "evolution".

• saulgoode

  2012-01-16 22:45:01

  That is if you not only give me a copy of the poem but *also* give me rights to share it. If you do not, and if I do, then I am going against our agreement and you should be compensated. I do not have any rights to your property that you do not give me.

  But I've "given" you the poem; I've provided you with the words, in their proper sequence. What else is there? You've concocted this intangible concept of there being some "property" beyond the words of the poem which is of some "intellectual" nature. The property is the words of the poem, arrange into a particular sequence. If I convey that property to you -- that is to say, I provide to you the words ordered in my own distinctive sequence -- then I have given you all of the "property" that I have invested in that poem. You have already admitted as much when you accept that it does not matter whether I've committed the poem to paper.
  
  

  That is if you not only give me a copy of the poem but *also* give me rights to share it.

  See above. (Note: I am disappointed that you are reticent to discuss this aspect in greater depth as it is the crux of the debate.)
  
  

  And such a contract should just be assumed ...

  Why?! When you purchase a plot of land, should it just be assumed that you own the airspace above it, extending infinitely out into outer space? Because this was the viewpoint up until 1946 when the US Supreme Court finally recognized that advancements in the technology of aviation made it untenable -- i.e., too costly to the progress of mankind -- to continue the age-old doctrine of "property" which would require that any corn farmer in Podunk could sue airlines for "trespassing".
  
  The assumptions of copyright may have been acceptable in the past, but no longer. The cost to society of the government saying "you can't make a copy" to each and every citizen in the world -- except the person who created the original instance -- in the past was not that onerous. Making copies was expensive and demanded considerable investment. At the time it was quite reasonable to protect the interests of those who invested in the technology required to produce such copies economically. Such is no longer the case; it is virtually zero-cost for any poet, song writer, or author to have his works distributed throughout the world. So please explain why society should continue to provide billions of dollars in subsidy to those who are mired in the old technology of printing out creative expression on pieces of paper or plastic when distribution of that creativity and knowledge is now effectively free? Are you so blindered in your view that you don't see this as waste of humanity's resources?
  
  Well, I am not. You are an anachronism, a relic of the past. I have no doubt -- regardless of whatever million-dollar infringement convictions or whatever transitory, misguided anti-technology laws enacted -- that within a decade or two, the current copyright regime will be viewed in the same ridiculous light as expecting airplanes to stop and pay a toll every time they cross a property line would be today

• Michael

  2012-01-17 00:02:14

  That is if you not only give me a copy of the poem but *also* give me rights to share it. If you do not, and if I do, then I am going against our agreement and you should be compensated. I do not have any rights to your property that you do not give me.

  But I’ve “given” you the poem; I’ve provided you with the words, in their proper sequence. What else is there?

  The IP rights to the poem. As I have noted, you keep confusing the two concepts. If you give me a poem there are two broad categories of what this can mean:
  
  You have given me a poem as one might give someone a book. You can read it and enjoy it and even include it in your personal library. You can read it to others and even let others read it, but you cannot claim ownership of the IP. You cannot, for example, sell the rights to a publisher to have them sell it for your benefit (in the original or altered state). You can, of course, be inspired by it and write similar poetry, but you cannot plagiarize it. This is how it works with most books you buy right now... you are buying the book, not the IP that allowed the book to be created / generated. You can also give me the rights to a poem or book. Then you can do with it as you want: turn it into a movie, alter it, record it in chipmunk voice and sell it for a profit. You own the IP.
  
  These are very different things. So when you say you give me a poem you need to specify which you mean. In general, the first is assumed unless you specify the second (and, in reality, there can be all sorts of nuances in both).

  You’ve concocted this intangible concept of there being some “property” beyond the words of the poem which is of some “intellectual” nature.

  Well, the very idea of "property" is "concocted" and "intangible". The items covered by property rights may or may not be tangible, but the concept of "property" never is... you cannot show me natural "property" because it is a man-made concept.

  The property is the words of the poem, arrange into a particular sequence. If I convey that property to you — that is to say, I provide to you the words ordered in my own distinctive sequence — then I have given you all of the “property” that I have invested in that poem. You have already admitted as much when you accept that it does not matter whether I’ve committed the poem to paper.

  When you say you have given me the poem you are not specifying what you mean... see above.

  That is if you not only give me a copy of the poem but *also* give me rights to share it.

  See above. (Note: I am disappointed that you are reticent to discuss this aspect in greater depth as it is the crux of the debate.)

  I am happy to discuss any aspect of this in greater depth.

  And such a contract should just be assumed …

  Why?!

  If I let you stay at my house for the night, it should be assumed you will respect my rights. I should not have to include everything in a written contract. I do not see why this would be in question (not that it is not wise to include such a contract for a house, but for every book and CD and DVD you buy... that is just silly!)

  When you purchase a plot of land, should it just be assumed that you own the airspace above it, extending infinitely out into outer space? Because this was the viewpoint up until 1946 when the US Supreme Court finally recognized that advancements in the technology of aviation made it untenable — i.e., too costly to the progress of mankind — to continue the age-old doctrine of “property” which would require that any corn farmer in Podunk could sue airlines for “trespassing”.

  I have no opinion on the side issue of how high your air space should extend.

  The assumptions of copyright may have been acceptable in the past, but no longer. The cost to society of the government saying “you can’t make a copy” to each and every citizen in the world — except the person who created the original instance — in the past was not that onerous.

  So no IP protections at all? No more Hollywood movies or novels or medicines? That just seems insane. It not only is not a benefit to society (though one might argue the absence of Hollywood might be such... <grin>), it makes no sense to demand people show their use of their own property is more important than the use by society... to just assume eminent domain takes over in all cases of IP. I simply have no sympathy for such communal ownership of my property (I do not support Communism, even if restricted to just IP).

  Making copies was expensive and demanded considerable investment. At the time it was quite reasonable to protect the interests of those who invested in the technology required to produce such copies economically. Such is no longer the case; it is virtually zero-cost for any poet, song writer, or author to have his works distributed throughout the world. So please explain why society should continue to provide billions of dollars in subsidy to those who are mired in the old technology of printing out creative expression on pieces of paper or plastic when distribution of that creativity and knowledge is now effectively free? Are you so blindered in your view that you don’t see this as waste of humanity’s resources?

  Movies, programs, music, etc. all cost money to make and take time to make. I do not see why this is even in question. The whole idea that because it is easier and cheaper to infringe on anthers' rights we should just give up on trying to protect rights at all is bizarre in my book.

  Well, I am not. You are an anachronism, a relic of the past. I have no doubt — regardless of whatever million-dollar infringement convictions or whatever transitory, misguided anti-technology laws enacted — that within a decade or two, the current copyright regime will be viewed in the same ridiculous light as expecting airplanes to stop and pay a toll every time they cross a property line would be today

  I agree the laws need to change... I just do not think they should change to accept communal ownership (Communism) of all IP. Then again, I also do not Bellevue in unfettered Capitalism.