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Patent vs. Copyright: Which is Worse?
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Patent vs. Copyright: Which is Worse?

There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding.1 The worst two by far are patent and copyright. Some say the patent system is worse than copyright, because most innovations are inevitable anyway and there is no independent inventor defense, whereas it’s unlikely someone else would independently write Romeo and Juliet (of course, Shakespeare had no copyright and he borrowed freely from previous stories, but let’s not let facts get in the way of the romanticized notion of copyright). This argument overlooks the fact that copyright prohibits not only literal copying but non-literal copying of “similar” aspects of the copyrighted work and also the making of derivative works.

Others think copyright is worse because it lasts longer, for example.

Over the years I have vacillated on this issue. But I am becoming convinced that copyright is worse than patent, for the following reasons:

Length. The patent term is about 17 years, while copyright usually lasts over 100 years (life of author plus 70 years).

Trends. Copyright law keeps getting worse,2 while patent law has been basically the same for a while now, and in fact has slightly improved–in recent years it’s more difficult to get injunctions; and the recent patent reform law, the America Invents Act, actually added a general prior commercial user defense, the first significant legislative improvement to patent law … ever.3

Taxation versus Censorship, the Police State, and Regulation of the Internet. The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition.4 So it basically acts like a tax. It’s bad, it impoverishes us, it slows things down. But it’s just another tax.

The copyright system, by contrast, besides imposing untold billions of cost on the economy, consumers, and artistic creation, and distorting the entire domain of creative works, is also being used as an excuse by the state to increase its surveillance, warrantless searches and seizures, punitive bans of people from the Internet without due process, censorship, cutting off websites accused of piracy, and control and regulation of the Internet and related technologies. As the Internet is one of the most significant tools ever to emerge to help people battle the state and communicate and learn and spread ideas, this is very chilling. In the name of stopping copyright piracy, the state is trying to squash mankind’s greatest anti-state weapon.5 Taxes are bad, but killing or restricting the Internet is just horrible. Copyright is worse.

Update/Related post: Where does IP Rank Among the Worst State Laws?

  1. The Mountain of IP Legislation. []
  2. The Ominous PROTECT IP Act and the End of Internet Freedom; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; ACTA, Executive Agreements, and the Bricker Amendment; As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change; US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns; SOPA and Section 1201: A Frightening Combination. []
  3. The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly. []
  4. Costs of the Patent System Revisited. []
  5. Copyright bill revives Internet ‘death penalty’; The Ominous PROTECT IP Act and the End of Internet Freedom; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; ACTA, Executive Agreements, and the Bricker Amendment; As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change; US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns; SOPA and Section 1201: A Frightening Combination. []
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{ 43 comments… add one }

  • Michael Kay November 5, 2011, 12:50 pm

    I think you might be right that copyright law does more harm than patent law, but I think that it also does less good. I’m not convinced patent law does any good at all; but copyright does enable quite a few of us to make a living that would not be possible without it. Patent law could be abolished tomorrow and few people other than patent lawyers would cry about it; if copyright law were abolished tomorrow, many of us would lose our livelihood (I produce software for a living – much of it open source, but all financed by license revenue). So, reform – yes, abolition – no.

    • Michael Kay November 5, 2011, 12:51 pm

      Sorry, where I said copyright does less good, I of course meant “more good”.

    • Stephan Kinsella November 5, 2011, 12:58 pm

      but this is not an argument. the “so” does not follow. Just b/c a given state policy allows you to “make a living” does not justify it. After all the patent law allows me as a patent lawyer to make a living. “So” it’s justified too!

      • Michael Kay November 5, 2011, 6:26 pm

        Fair point. To complete the argument, I need to prove (a) that as well as earning a livelihood, I and others in the same position are contributing positively to the economic (or other) good of society, and (b) that without copyright law to provide me with an income, I would not be able to do so. I am reasonably confident in my own mind that both are true, but I don’t think I’ll try to outline the full case here and now on a Saturday evening.

        • Scott Bieser November 5, 2011, 8:59 pm

          You will notice that little graphic in the right column that says “Your failed business model is not my problem.” Stephan simply doesn’t CARE whether artists, songwriters, or software programmers can earn a living doing the work they’re best at. We should all starve, or go to work selling insurance and pursue or creative work as a hobby.

        • Stephan Kinsella November 6, 2011, 7:17 am

          That would not complete the argument either, since it is not the purpose of law to adopt policies and foist them on society by force, so long as the policy “contributes positively to the economic good of society.” The purpose of law is to do justice: to protect property rights: to wield force only in response to aggression against these property rights.

          Bieser says:

          You will notice that little graphic in the right column that says “Your failed business model is not my problem.” Stephan simply doesn’t CARE whether artists, songwriters, or software programmers can earn a living doing the work they’re best at. We should all starve, or go to work selling insurance and pursue or creative work as a hobby.

          It is irreelvant whether I “care” or not, as Stephan Kinsella’s personal values are not what the legitimacy of IP law hinges on. But as a matter of fact it is false. It is simply that it is not the purpose of law or the state’s function to ensure that programmers and artists can earn a living. It is not the role of law to make it easier for some people to make a profit in the face of competition, by outlawing that competition.

          Note that your (Mickael Kay’s) and Bieser’s comments here do not make the principled argument that artists etc. have a natural property right in these works. Instead you are both making implicitly utilitarian arguments about how the state ought to do such and such to encourage various results that it wants. Utilitarian arguments are morally bankrupt and methodologically incoherent (see Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views), but you would think a serious utilitarian would at least try to come up with evidence to support his claim. To show that the IP systems generate net social wealth, and that far exceeds the cost. But whenever this is tried, the opposite conclusion is what comes out.

          • Scott Bieser November 6, 2011, 6:07 pm

            I had thought the purpose of law, and of the notion of property, was to ensure that when people labor to create something, they may enjoy its fruits. But to you, this only applies to the creation of physical things. So, tough luck, artists and programmers.

          • Stephan Kinsella November 6, 2011, 6:19 pm

            Bieser:

            I had thought the purpose of law, and of the notion of property, was to ensure that when people labor to create something, they may enjoy its fruits.

            That is because you think in metaphors, like Rand too often did. Creation is not a source of rights, contra the confused Rand. Notice that you still provide no argument other than emotionalism and consequentialism.

          • Anonymous Coward November 9, 2011, 2:39 pm

            “I had thought the purpose of law, and of the notion of property, was to ensure that when people labor to create something, they may enjoy its fruits. But to you, this only applies to the creation of physical things. So, tough luck, artists and programmers.”

            Wow, where did you get that idea? Certainly not from the constitution (it states that the purpose is to promote the progress of the sciences and the useful arts) or from the founding fathers (if you read what they wrote, you’ll see that’s not its purpose).

  • Michael Kay November 6, 2011, 11:15 am

    Well, I’m obviously not going to convince you, but for the record, I think that both arguments based on natural justice and utilitarian arguments can be used to justify the state providing some kind of protection of the livelihood of those who devote their labour to the production of creative works. I’m not saying that the current copyright regime is the best way of achieving this; on the contrary, I am very well aware of its shortcomings; but I don’t think that abolition, with nothing to replace it, would produce a beneficial outcome. I think it is very much part of the role of the state to facilitate an economy in which those who provide value can be rewarded by those who benefit from it.

    • Stephan Kinsella November 6, 2011, 12:57 pm

      You’re not going to convice me by just making assertions or having half-baked, incomplete arguments. You seem not to realize that the burden is on you or how to go about satisfying it. You can’t just wave a few mainstream bromides around and think that solves the problem.

      You say you don’t “think that’ we should “abolish” copyright with “nothing to replace it”. This is nonsense. THe copyright system is manifestly unjust. Of course it should be abolished. Immediately. 100%. What “replaces” it is a more property-rights respecting system. After all you would not oppose abolition of slavery on the grounds that you first need to see what system will “replace” it. You stamp out evil! Period.

      The state is evil and unjust, but if and to the extent its laws are to be tolerated it is those that oppose aggression and protect property rights. If it does this it is of course “facilitat[ing] an economy in which those who provide value can be rewarded by those who benefit from it.” That is what the free market is about.

      Copyright law is utterly evil and a complete abomination, a travesty of justice, a statist institution that violates property rights and human freedom and liberty. There is not a single good thing about it. You are completely wrong. YOu have no argument that justifies this monstrosity,for there can be no argument for it.

  • Michael Kay November 6, 2011, 3:24 pm

    Thanks for putting your position so clearly on the table. Until now I always thought you were arguing quite rationally.

    • Scott Bieser November 6, 2011, 6:04 pm

      Kinsella’s idea of “property rights” excludes non-physical artifacts by definition. If property has to be physical, a song or a piece of software can’t be property, by definition. So the debate ends before it can begin.

      Since my bank account is not physical — it’s just a bunch of data in a computer somewhere, then it’s not really my property, either. Someone could go about copying my bank account all day long and so long as my original bank account is still there, Kinsella could have no principled objection. The economic distortions that would result from the resulting expansion of money/credit would simply not be Kinsella’s problem, because that’s a utilitarian issue, not a moral one.

      There are other things most of us think of as “property” which do not fit Kinsella’s definition: land titles (the land is physical but the title is an abstraction); my identity; my marriage, my mind. These things, to Kinsella are “uttely evil and a complete abomination, a travesty of justice, a statist institution, ” etc.

      But I think his use of the “Creative Communist” graphic on his website says it all.

      • Stephan Kinsella November 6, 2011, 6:32 pm

        Kinsella’s idea of “property rights” excludes non-physical artifacts by definition.

        It’s not “by definition”.

        In fact you, Rand, and other supposed libertarians all agree that there are property rights in physical scarce goods. It’s just that you want to “also” grant “other” rights in “intangible” things. Hmm, sounds a lot like the socialists who want to grant a right to education, food, housing, employment. Hey, let’s just have more rights, if rights are so good!

        If property has to be physical, a song or a piece of software can’t be property, by definition. So the debate ends before it can begin.

        Funny how you faux-anti-materialists want to enFORCE your little IP rights against our physical property–our bodies, our bank accounts. If you don’t want to get down in the trenches then why don’t you just en”force” your little IP rights up in your ethereal IP realm, and leave us living physical mortals the hell alone?

        Since my bank account is not physical — it’s just a bunch of data in a computer somewhere, then it’s not really my property, either.

        This is a strawman argument. Most of your fellow objectivists believe in fractional-reserve banking–Stallman et al.–but Rothbardians realize it’s a ponzi scheme. In our free society you would have property in the gold you stored in a warehouse. So what “data” are you talking about?

        Someone could go about copying my bank account all day long and so long as my original bank account is still there, Kinsella could have no principled objection.

        True, I don’t care if someone “copies” my “bank account”. But if they use fraud to take my property, that is a type of theft. For example if you find a way to duplicate my house key and use it to come into my house and take my stuff, you are committing trespass and theft. Copying things was just his means.

        The economic distortions that would result from the resulting expansion of money/credit would simply not be Kinsella’s problem, because that’s a utilitarian issue, not a moral one.

        You have no idea what you are talking about.

        There are other things most of us think of as “property” which do not fit Kinsella’s definition: land titles (the land is physical but the title is an abstraction); my identity; my marriage, my mind. These things, to Kinsella are “uttely evil and a complete abomination, a travesty of justice, a statist institution, ” etc.

        You are talking nonsense. A marriage is not evil. It is a relationship between two people. Title is not an “abstraction”; it is a way of identifying who have the right to control a given resource. Etc et.c Notice that you have no clear argument. Just emotivist hand-waving. I have yet to see from any of you guys a clear definition of property, much less intellectual property, or any attempt to justify it. All you hear is “well the big bad Kinsella doesn’t want the state to protect the current artists’ monopolies.” Wow, good argument!

        But I think his use of the “Creative Communist” graphic on his website says it all.

    • Stephan Kinsella November 6, 2011, 6:20 pm

      Unlike your side, who is never clear about anything. My arguments are quite rational as I am fighting state incursions into property rights. Which you have been bamboozled into thinking you support.

      • Crosbie Fitch November 8, 2011, 2:34 am

        Given that copyright is unnatural, Queen Anne’s restoration of the monopolies the Stationers’ Company was sorely missing since 1695 (nothing to do with enabling Shakespeare to be paid for his work), we should probably steer clear of unnatural concepts in our arguments against it, especially supernatural ones such as ‘evil’. Even if you mean ‘unethical’, the use of ‘evil’ is easily cited as a descent into irrationality.

        Indeed, natural rights are defined by the physical world (property being delimited by physical boundaries about the physical body of the individual). It takes a church or state to grant privileges over the use of colours, designs, poems, etc.

        That copyright supporters cannot conceive of a mechanism by which a writer can exchange their work for their readers’ money (as opposed to selling a state granted monopoly to a printer) doesn’t mean such a mechanism cannot exist – nor that such a failure of imagination sanctions the continuation of an 18th century anachronism and instrument of injustice.

        • Michael Kay November 8, 2011, 2:52 am

          Well, I class myself as a “copyright reformer” rather than “copyright supporter” or “copyright abolitionist”. I can indeed “conceive of a mechanism by which a writer can exchange their work for their readers’ money” without the protection of copyright; but it would be expensive and inconvenient for both producers and consumers, so hardly a good step forward from the current regime. It would also lack one of the benefits of the copyright regime, which is that it leaks; without the leakiness one would need complex systems of differential pricing, and one would never reach the audience who have no money to pay for the product, but plenty of ability to return value by popularising it.

          • Crosbie Fitch November 8, 2011, 5:25 am

            Michael, I suspect you’re still confusing the copy with the work. An author’s work is their writing. A printer’s work is making copies of it.

            If copies can be made by anyone for nothing then a printer will find the bottom has fallen out of their market. It is only printers who are in real trouble in terms of commercial viability. Unlike printers, authors (those with readers interested to read their writing, as opposed to printers interested to exploit its monopoly) remain able to exchange their work in a free market.

            A free market, in which copyright is abolished (or all but), is one in which copies have a price in line with their free market value, e.g. cost of materials. Authors sell their writing. Printers sell copies of it (if there’s a market, e.g. paper, vinyl or acetate copies).

            It is a pity that so many people have been hoodwinked by the press into believing that copyright enables authors to sell their writing – as opposed to enabling the press to sell copies that cost nothing to make at well-above-cost prices.

        • Michael Kay November 8, 2011, 5:46 am

          Crosbie (in response to your second post, which for some reason has no REPLY button), I’m not really interested in what happens as far as physical goods are concerned (books, records) – I see no pressing need for legislative change in that area. I’m primarily concerned with digital goods where the cost of copying has declined to zero. (That doesn’t mean the author is the only one who create value, of course. One can argue about how much value publishers add, but it’s not zero.)

          • Crosbie Fitch November 8, 2011, 1:11 pm

            Michael, it doesn’t matter whether stories are written as lines of ink on parchment or as zeroes and ones on aluminium backed acetate, they remain intellectual works fixed in a physical medium and are still as physically exchangeable for money as a material work fixed in a physical medium, such as a vase or basket. The only difference copyright makes is that manufacturers of copies can sue competitors for making illicit copies of authors’ stories, but not for making illicit copies of weavers’ baskets.

            However, copyright isn’t needed to enable an author to exchange their writing for money just as it isn’t needed to enable a weaver to exchange their weaving for money. Don’t confuse a printer’s exploitation of a monopoly with an author’s exchange of their intellectual work for money.

            Copyright is only needed by those who have become dependent upon the ability to make something for a penny and sell it for a dollar (because they can prohibit anyone else selling it – for more or less). As you note, when copies can be made by all (not just a few printers) and for next to nothing (not a few dollars) then printers (manufacturers of copies) are going to find their profits crash. Moreover, the massive overheads their monopoly enabled profits have traditionally supported are going to render them as viable as a dinosaur in a vacuum. This won’t stop what remains of their colossal power from being unleashed against their new competitor – the people.

            So, there are two struggles going on. The dinosaurs are trampling innocent children as they demand that these vermin cease disrespecting their monopoly. And the authors who would have been expected to sell their state granted monopolies to these dinosaurs are now struggling to reconnect with their true customers – the people in their audience who will pay them money to write.

            Lobbying with big money by big corporations one the one hand, and piecemeal steps by peasants on the other. Corporate state vs the people – immortal pythons vs infinite mice.

            Copyright supporters are so busy betting on Godzilla, they lose sight of the little people. So obsequiously trying to figure out how to stop the proletariat eroding the aristocrats’ 18th century privileges, that they fail to see that the plebs are already exchanging their work for money – without surrendering their liberty.

            The inability to understand why copyright is grossly uneconomic is due to a memeological illusion* – that by prohibiting competition you reward/spur/obtain productivity that wouldn’t otherwise occur (and this plays right into the hands of the charlatan monopolists who rely upon the illusion to sanction their lucrative ‘old rope’ businesses).

            * A notion so widely endorsed and appealing it is received uncritically and accepted as self-evident, e.g. geocentricity.

  • Scott Bieser November 6, 2011, 6:52 pm

    You can’t hear what you refuse to listen to.

  • Scott Bieser November 8, 2011, 10:33 pm

    Copyright is only needed by those who have become dependent upon the ability to make something for a penny and sell it for a dollar

    This statement betrays ignorance of the publishing business as it exists today. There are a LOT of fingers in the pie that is a book’s purchase price — author royalties (usually 8 percent but sometimes more), printing costs (printers don’t buy copyrights, they are hirelings of the publishers) typically 15 percent (higher for small press runs, lower for large ones), shippers who move the books from the printers to the distributors, the distributors themselves, and the retailers who typically get 40 percent of the cover price. Of all of these, only the author and publisher have anything to do with the copyright.

    Publishing is a risky and competitive business. Publishers have to guess how well a book will sell before ordering a print run, placing advertising and doing promotional activities, and hoping for the best. Recent reports indicate 75 percent of all fiction books that are printed by the major publishing houses never get sold to customers. They are returned from the retailer to the publisher, and pulped. (With “mass market” paperbacks, the retailers rip the covers off the books, throw away the insides, and return only the covers to the publisher for credit against the next order.) The publishers survive on the profits of a small percentage of their titles which turn out to be highly successful.

    If copyright were to go away tomorrow, the publishers could not hope for sufficient profits from highly successful titles to cover their losses on the failures because it is the successful ones that would get “pirated” by rival publishers, who could sell them for less because they’re not paying author royalties. And mid-list authors could never hope for income beyond their royalty advances, as in from movie options or derivative works, because there’d be no reason movie producers or anyone else would pay authors for the rights since authors would not have rights to sell or license.

    In the 19th Century, German authors could make a living without copyright protection because the technology of the day gave first publishers a considerable time-advantage over rivals — it would take at least a few weeks to identify a strong-selling book, and several more for the rivals to type-set and print their own versions. In effect, the best-selling German authors enjoyed a de-facto copyright lasting about 3 months on average. And the middling-sellers found that their middling obscurity served to insulate them to a large extent from piracy.

    But modern technology has changed that. A printed book can be scanned, copy-edited, and re-published on the Internet in under 48 hours. The first-to-market advantage disappears. And so, if a story from an unknown author working with a smaller publisher becomes popular, they will find that for every paying reader, there will be 50-75 non-paying readers on the Internet.* And without copyright, a movie producer can make his movie without giving the author so much as the time of day. Although, the movie producer in turn will face the same 50:1 (or higher) odds against getting paid by viewers.

    * Based on the experience of myself and many others using the “give it away free on the Internet and hope they’ll buy a printed copy” model. The average ratio of purchases to free-Internet audience for books is 1.5 percent. Some authors, with particularly devoted followings, can realize up to 5 percent.

    • Stephan Kinsella November 9, 2011, 7:34 am

      Scott, as an author who has published many for-profit books (e.g. legal treatises with Oxford or West) as well as many books and articles for low/no proft (e.g. for avocational or passion reasons–much like the time you’ve put in to posting comments here, for free; or other reasons (reputation etc.))– I tend to agree with a good deal of your response to Crosbie. However, even if you are right about the difficulties of artists making money in a copyright free world, that does not justify state grants of monopoly privilege at all.

      In today’s world artists rely on the copyright model but in a free society they would not be able to do this, and thus we can expect other models to emerge. I suggest you take a look at http://wiki.mises.org/wiki/Without_Intellectual_Property

      and also http://www.stephankinsella.com/2010/07/examples-of-ways-content-creators-can-profit-without-intellectual-property/

      and

      http://blog.mises.org/14823/funding-for-creation-and-innovation-in-an-ip-free-world/

      There are lots of reasons to write a novel (say). Maybe it’s not for monetary profit. Or maybe it is. Imagine for example Rowling had written the first two Potter books and they were wildly popular. she sold them but soon faced competition so her profit eroded (like any free market activity). So then she puts the word out to her legion of fans that as soon as she has a million fans promise $10 each for novel 3, she’ll release it. And so on.

      She coudl also use the creator-endorsed mark to get some cross-promotional deals wtih toy makers, etc.

      And suppose someone were to make a movie based on the book. You might have 3 or4 movies being made. One of the producers pays Rowling a couple million bucks to consult on the film and to endorse it. He figures he’ll be the most popular of the various film versions, as fans would rather go see the “official” version that Rowling herself consulted on and endorsed. And so on. There are lots of ways to imagine using your artistic skills and output to get money, opportunities, speaking gigs, teaching jobs, and so on.

    • Laurel L. Russwurm November 12, 2011, 11:59 am

      This comment “betrays ignorance of the publishing business as it exists today.” What you describe was the world before advances in technology and distribution became inexpensive enough to allow independents to easily and inexpensively self publish.

      Today, the cleverer publishers are not gambling with ginormous print runs, but rather are themselves making use of excellent POD technology.

      And *still* not treating fairly with their writers. 8%. Hah.

      Which is why more and more writers are moving into self publishing. Because we can.

  • Crosbie Fitch November 9, 2011, 2:32 am

    Scott, consider that it doesn’t betray ignorance, but attempts to explain as simply and as succinctly as possible why an industry fat on monopoly profits cannot continue without a monopoly (and will probably resort to violence in a futile attempt to retain it). Yes, the pie is big and there are many fingers in it, but that a monopoly feeds so many reliant upon it does not sanction it.

    Your final paragraphs betray your inability to conceive of intellectual work being exchanged in a free market. You still appear to imagine the sale of novels in terms of copies (paperbacks) and the sale of movies in terms of copies (DVDs). The market for copies can only continue AT COST, and that’s at the cost of making copies, not at the cost of keeping a fat printing industry afloat. And please note, that’s the market for COPIES. The market for intellectual work is unaffected by the reduction in price of copies. Writing a novel, or making a movie is not the same as making a copy of it. My dog can operate my photocopier, but he can’t write novels.

    In the not too distant future the copyright engendered confusion between writing and copies of it will evaporate. If you want a copy you will make it yourself or pay a printer to make one out of paper or acetate. It will be recognised as ridiculous to pay an author for a copy because they are not experts in the manufacture of copies. Similarly, it will be recognised as ridiculous to pay a printer to write a novel because they are not experts in the writing of novels.

    You can see what is obvious. You can see what I can see, but you are blinded by the glamour of copyright indoctrination not to see it. I’m not insulting you, I’m trying to point out that when you pull the scales of copyright from your eyes you will see, recognise, understand, and comprehend why the inexorable dissolution of copyright is not a tragedy for intellectual workers, but the end of monopoly profits for a traditional publishing industry grown fat upon them.

    • Scott Bieser November 9, 2011, 4:28 pm

      Please explain why anyone would pay me to draw a comic-book, without the prospect of being able to sell copies of it for profit, whether those copies are paper or electronic. Or how I could support myself drawing a comic-book directly for the public, when readers expect to get it for free.

      • Stephan Kinsella November 9, 2011, 4:33 pm

        I can venture guesses, but as Leonard Read would say: “I don’t know.” So what? Is it the purpose of law to make sure Scott Bieser can easily find a business model to sell comic book art?

      • Crosbie Fitch November 10, 2011, 9:59 am

        Presumably people would pay you to draw a comic book because they like your work and are confident you would produce further good work in exchange for their commission. There may be some printers who might be short of new material to print and sell copies of. It depends on the market place as to who will be your biggest customers.

        I think the only people who expect you to work for nothing are copyright supporting printers who claim this is your fate without the privilege they’re so eager to retain.

        Readers don’t expect you to work for free, they expect to be free to share and build upon the work you have given or sold to them, just as people expect to be free to share and build upon Shakespeare’s work.

        I expect to be free to share and build upon Stephan Kinsella’s blog posts. I’d also expect to be free to share and build upon any articles I might pay him to write for me. I certainly don’t expect him to write for me for free. No doubt if enough of us club together we could share in commissioning Stephan to write something erudite for us, e.g. “Intellectual Work in a Free Market”? Naturally, we’d expect to be free to print and share or sell copies of this ad infinitum, whether hardback or e-book – without having to pay Stephan a penny.

        This is the difference between paying someone to write and enjoying one’s natural right to copy a book one has purchased – a natural right annulled by Queen Anne in 1709. In 1708 people were free to make copies of an author’s published works. In 1710 they weren’t.

        Abolishing copyright means restoring our cultural liberty and a free market in intellectual work. It doesn’t mean writers cannot be paid to write.

    • Scott Bieser November 9, 2011, 4:33 pm

      Intellectual work cannot be exchanged without some form of IP because exchange involves property and there would be no property to be exchanged.

      • Stephan Kinsella November 9, 2011, 4:35 pm

        so what? not all contracts are exchagnes in the legal sense. If I pay you $100 to paint my fence then there is not an excahgne of title. There is only a one-way payment: title to my $100 transfers conditionally: upon your performing an action. the action triggers the one-way transfer. It does not mean you “own” your action. Just that we can arrange our affairs so that I can make a payment to you hinge on your performing an action, so as to induce you to do it!

        • Scott Bieser November 9, 2011, 4:39 pm

          Performing an action requires use of my body, which you have acknowledged elsewhere, is my property. Denying ownership of my intellectual work is the same as denying my ownership of my body, or more specifically, of my mind.

          Titles are not exchanged, but if I paint your fence you are renting, for a while, my body and my mind. Without IP, I have nothing to rent out.

          • Scott Bieser November 9, 2011, 4:45 pm

            Well, okay, I still have my body and mind. But this means that I could only survive as an artist by making custom works for wealthy patrons, who pay me for my services. So we go back to the Middle Ages, where the only art available for ordinary people is what gets commissioned by the elites for popular consumption, to serve the elite’s purposes.

          • Stephan Kinsella November 9, 2011, 4:46 pm

            Performing an action requires use of my body, which you have acknowledged elsewhere, is my property.

            Right.

            Denying ownership of my intellectual work is the same as denying my ownership of my body, or more specifically, of my mind.

            Not it’s not “the same” and asserting it does not make it so. This is the central fallacy of you guys. You conflate things, you double count, you over use metaphors, you use sloppy language and concepts.

            Titles are not exchanged, but if I paint your fence you are renting, for a while, my body and my mind.

            Not really. This is just a way to classify it economically. If you paint my fence then you are doing what I want done. I don’t “rent” your “mind”. Sloppy sloppy.

          • Stephan Kinsella November 9, 2011, 4:48 pm

            Scott: “Well, okay, I still have my body and mind. But this means that I could only survive as an artist by making custom works for wealthy patrons, who pay me for my services. So we go back to the Middle Ages, where the only art available for ordinary people is what gets commissioned by the elites for popular consumption, to serve the elite’s purposes.”

            And now you are back to consequentialism. I think your imagination is stunted, but in any case, this is not a principled argument. “We can’t abolish state grants of monopoly privilege because that would be like going back to the Middle Ages. And everyone konws that we can’t go back to the Middle Ages. So there.”

      • Crosbie Fitch November 10, 2011, 10:34 am

        Scott, you are quite right to observe that “Intellectual work cannot be exchanged without some form of IP because exchange involves property and there would be no property to be exchanged”, but ONLY if you don’t conflate IP with the privileges of copyright and patent.

        An author has a natural exclusive right to their writings and this has been long recognised, however this just means they have a right (a natural power) to exclude others (would be burglars) from taking or copying their work in their private possession (from which others are excluded). It doesn’t mean they can somehow exclude others from their own possessions, i.e. from works the author has already given or sold to others. You cannot copy a play that Shakespeare has not yet published – because you don’t have the play in your possession to copy. However, you are naturally at liberty to transcribe the play when it is performed in the auditorium in front of you.

        An author’s works in their private possession are naturally their intellectual property, and this remains the case without copyright. However, when the author exchanges a work for money (or gives it away) then the purchasing recipient is naturally at liberty to do what they want with it. But note that no liberty is denied anyone by such a transaction. The author surrenders no liberty when they deliver the fruits of their labour in exchange for money. Only the privilege of copyright annuls the right of all recipients to copy a covered work – even the author (as many naive authors are surprised to discover).

        Some libertarians think that ‘IP’ is far too polluted a term to admit as having any useful meaning in discussions concerning the nature of intellectual work (in a world without privileges that abridge our cultural and technological liberty). However, as long as you don’t confuse state granted monopolies with ‘property’ then intellectual works as physically discrete objects do constitute property, and so can be exchanged, but it is so extremely tempting for the copyright indoctrinated to collapse all indistinguishably similar works into a single abstract object with a single supernatural owner, that ‘property’ when applied to intellectual works may cause more confusion than clarity.

    • Scott Bieser November 9, 2011, 4:35 pm

      Yeah, yeah, “your failed business model is not my problem.” That ranks right up there with “let them eat cake.”

  • JMark315 November 9, 2011, 1:55 pm

    Well…borrowing thematic material is not infringement, but is pretty common among artists. (Unless of course, you are George Harrison and you employ a very common 2 chord pop progression that is somewhat similar to another very common 2 chord pop progression…but first you have to be George Harrison).

    And…Shakespeare made the bulk of his living as a theatre producer and actor, splitting the proceeds of the house with the owners of the Globe and his player troupe. His publishing income was modest. In the late 1500’s printing technology was expensive, and time consuming, therefore a barrier to those who might otherwise wish to copy any printed work…though not many could actually read in those days.

    Was Will a better actor/ entrepreneur than author? I don’t know for sure…since I never saw him. But his plays survive…and those are pretty good. It seems would deserve to make a handsome profit on the exploitation of his work

    So what is the point in invoking the ghost of the Bard?

    Do laws arise in proportion to the ability and proclivity of those who are able to break laws?

    • Crosbie Fitch November 10, 2011, 2:27 pm

      Authors such as Shakespeare demonstrated it was possible to write great works without the pleasure of negotiating licenses from the estates of those writers who came before them in order to produce derivative works thereof, and without similarly needing the power to enable themselves and their descendants to prohibit others from sharing or building upon their published works. It was a very simple and natural process of reading, learning, and regurgitating what one had learnt into writing for others to read. This process is primordial and is the one mankind has enjoyed since we learnt to leave permanent marks on stone. One enjoyed as a right of all until Queen Anne was persuaded to make it into a privilege of a few in 1709.

      Laws arise in proportion to the ability and proclivity of those who are able to make them, i.e. the corrupt – not those naifs who discover their liberty has been abridged, that it is prohibited for them to sing copyright protected songs in a supermarket.

      Eventually, the people have to remedy the instruments of injustice that are created to exploit them. Unfortunately, the privileged usually offer a tadette of resistance…

      • Michael Kay November 11, 2011, 2:57 am

        In Shakespeare’s day, people attending his plays didn’t bring video cameras, and people didn’t scan his manuscripts and put copies on the internet. Arguing that what worked in his day should work in ours is absurd: as absurd as arguments based on the infallibility of the founding fathers of the USA.

        Polemic about ‘injustice’ isn’t helpful here. The state can take rights away from readers and give them to authors, or it can take rights away from authors and give them to readers. Either way, someone will feel unfairly treated. We can all take different views of what is fair: it’s unfair to stop someone whistling a tune in the street, it’s unfair for someone to sell my blog on Amazon without letting me share in the proceeds. Defining what is fair and what isn’t is what this should all be about.

        And while I’m back here: Stephan, please treat your audience with more respect. Holding different views from yours doesn’t make one an idiot.

        • Crosbie Fitch November 11, 2011, 7:58 am

          Michael, nature defines our rights, not the state.

          The state is certainly powerful enough to annul the recognition of any of our rights from the law, even to redefine particular ethnic groups as sub-human and fit only for exile, forced labour or extermination, but that the state is powerful enough to annul certain liberties from all in order to reserve them for a few doesn’t make this abrogation ‘just as fair as not doing it’ – and redefining privileges as rights doesn’t actually make them rights.

          Our liberty is innate. We have it even if the state refuses to recognise it. We can indeed sing another’s song or whistle another’s tune, no matter that the state decrees it to be subject to the permission of the copyright holder. Even today, kids are sharing music and movies, as we used to share folksong and folktales for the last half million years – until Queen Anne annulled this liberty to grant it as a privilege for exploitation by her Stationers’ Company.

          This is not a matter of fairness. It’s a matter of right. And it’s a bone of contention between the privileged immortal publishing corporations and the people.

          Perhaps check out what Wikipedia has to say about the rights of man:

          Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

          It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few… They… consequently are instruments of injustice.

          The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

        • Stephan Kinsella November 11, 2011, 7:59 am

          In Shakespeare’s day, people attending his plays didn’t bring video cameras, and people didn’t scan his manuscripts and put copies on the internet. Arguing that what worked in his day should work in ours is absurd: as absurd as arguments based on the infallibility of the founding fathers of the USA.

          So….. when copyright was enacted, say 1710 with the Statute of Anne, or 1790 in the US — copyright was not yet justified, since there were no videocameras, photocopiers, laser printers, etc. in existence yet? So we should not have enacted copyright law until the 1980s?

          Polemic about ‘injustice’ isn’t helpful here.

          Sure it is. What are we talking about here other than justice–that is, what laws should exist or not; what laws are justified? Of course we are talking justice. Some of us are just conscious and aware of this, and don’t mind making this connection explicit. I don’t mind, for example, because I actually have a coherent and consistent set of principles about justice. You cannot escape appealing to some principles of or conception of justice either, even if you don’t want to make it explicit or defend it. What people often do is keep it implicit precisely to avoid having to explicate and defend their normative assumptions. So they implicitly rely on intuitions, bromides, sayings, rules of thumb, ideas commonly accepted by the masses or taught to us in government schools, and so on.

          The state can take rights away from readers and give them to authors, or it can take rights away from authors and give them to readers. Either way, someone will feel unfairly treated.

          This is utter nonsense. First, whether someone “feels” unfairly treated has nothing to do with the justice of a given state law or policy. You could make the same argument about any evil law, such as laws banning pornography or establishing an official religion. After all if the state does not have these laws, then moral majority biddies might feel treated unfairly by having to live in a society where people are free to be heathens or to read pornography.

          When the state does not enact a copyright law you cannot characterize this as taking away “rights” from “authors” and “giving” them to readers. This is nonsense. You are making a relativist claim here, or even an incoherent one. Relativist in that you seem to thing rights are arbitrary and positivist; whatever the state says is where rights come from. Incoherent in that you seem to think both authors and readers have these incompatible rights, rights that contradict each other; so the poor state is in a dilemma: it has to hurt someone, since it can’t protect both author and reader rights at the same time. What a load of utter confusion.

          You cannot say the state law — rather, lack of (copyright) law — “takes away” authors’ rights unless you first establish that authors do in fact have a natural right in the intangible patterns of artistic works they create. So once again, all this handwaving and confusion is a smokescreen for what IP advocates routinely engage in: question begging. IP is justified because if you don’t have copyright law, it’s taking away rights of authors. What rights? Why, copyright. So because they have a natural right to copyright (another way of sayign: they should have copyright protection), then the state should have copryight law. Got that? What an impressive argument: the state should have copyright law because authors should have their copyright protected. Wow!

          We can all take different views of what is fair: it’s unfair to stop someone whistling a tune in the street, it’s unfair for someone to sell my blog on Amazon without letting me share in the proceeds. Defining what is fair and what isn’t is what this should all be about.

          It is not about what is “fair” it is about the just way to assign property rights, who should have a legally recognized right to control scarce resources, and the corresponding view as to when force used against others is permissible. And we here already agree that the owner of a scarce resource is the first user, or his assignee/transferee in title. We already agree to this. Or would you deny it? If I homestead some land, and other resources like metal and wood, and construct a printing press on my own property, we all agree that I own these resources. And implied in this very concept of ownership is that you own your scarce resources, and that we are all permitted to use these things in any way we see fit–the only thing we are not permitted to do is to perform actions that use others’ resources without their permission–that is, that invade their property, that commit trespass.

          No one in civilized debate can deny these basic property principles. I doubt you will. So that we can take it as a basic normative standard that we all agree to. We can take this as a starting point. And then, all that remains is for me to simply observe that these IP rights are simply incompatible with these basic property norms. The copyright you want to grant to authors is a disguised way of giving authors partial property rights in property already owned by others–e.g. in their printing press. You can now use force of the state courts to order me not to print a certain pattern of words on my own property. That means you have a veto right over certain uses of my own property. That is called a negative servitude in property law–it’s a property rights. The copyright law simply grants to outsiders property rights in resources already owned by others. That’s theft. It’s redistribution of wealth. IT’s wrong. It’s incompatible with property rights–with the property rights we already all agree to. So your advocacy of copyright is simply inconsistent with your own (necessary) advocacy of property rights in scarce resources. The inconsistency, the illogic, is yours.

          And while I’m back here: Stephan, please treat your audience with more respect. Holding different views from yours doesn’t make one an idiot.

          You are advocating theft. That’s worse than being an idiot, in my view.

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