Monday, 19 April 2010

Copying is theft [updated]

I commented on two local blogs recently on the subject of copyright—a hot issue, what with the latest round of the Anti-Counterfeiting Trade Agreement (ACTA) talks just having concluded in NZBoth blogs at which I commented posted the same saccharine piece of agit-prop declaring that “copying is not theft,” to which I replied, in essence:

    “Copy­ing is not theft,” you say?
    Well, if you’re copying someone else’s creations without permission, yes it is.
    My ideas are my prop­erty. Steal the form in which my ideas are expressed or made con­crete, and you’re a thief.
    Since creation is a livelihood for artists, writers and inventors, stealing the form in which their creations are made is theft of their intel­lec­tual prop­erty–which means a theft of their livelihood. And since intellectual property rights are at the heart of all prop­erty rights, the pop­ulist attack on intel­lec­tual prop­erty rights is just the latest and most fun­da­men­tal front in the attack on all prop­erty rights.
    Abol­ish­ing copy­right pro­tec­tion favours theft over thought.
    You say-or, at least, your saccharine ditty says, that no-one is worse off if copy­ing is allowed?
    Well yes, we all are. We are worse off by the lack of new ideas pro­duced and made con­crete in the form of a book, or a CD, or a patentable invention.
    With­out copy­right pro­tec­tion, you load the cost of pro­duc­tion onto musi­cians, writ­ers, artists and inven­tors, while all the ben­e­fits that would have and should have accrued to these pro­duc­ers go to instead to the thieves.
    Copy my new kind of bicy­cle with­out my per­mis­sion, for example, and you take away from me all the ben­e­fits I’d hoped to derive from the inven­tion of my new bicy­cle. Take away all the ben­e­fits that all the inven­tors of new bicy­cles hoped to derive from their inven­tion, and pretty soon you have no new types of bicycle at all–-and, if the process con­tin­ues across all fields of endeav­our, even­tu­ally no new inven­tions at all, and no more technological progress.
    Why would any­one con­tinue to pro­duce new music, write new books or invent new things under such a set-up? Why would any­one sup­port such a set-up–unless they wished them­selves to steal?
    Lud­wig von Mises explained this point:

[I]t is obvi­ous that hand­ing down knowl­edge to the ris­ing gen­er­a­tion and famil­iar­iz­ing the act­ing indi­vid­u­als with the amount of knowl­edge they need for the real­iza­tion of their plans require text­books, man­u­als, hand­books, and other non­fic­tion works. It is unlikely that peo­ple would under­take the labo­ri­ous task of writ­ing such pub­li­ca­tions if every­one were free to repro­duce them. This is still more man­i­fest in the field of tech­no­log­i­cal inven­tion and dis­cov­ery. The exten­sive exper­i­men­ta­tion nec­es­sary for such achieve­ments is often very expen­sive. It is very prob­a­ble that tech­no­log­i­cal progress would be seri­ously retarded if, for the inven­tor and for those who defray the expenses incurred by his exper­i­men­ta­tion, the results obtained were noth­ing but [gifting benefits to others while earning nothing oneself for one's creations].”

Make no mis­take, copy­ing with­out the per­mis­sion of the owner is theft–-no mat­ter how many sappy sugar-coated dit­ties you hear to the contrary.

So what’s wrong with what ACTA proposes?  Simply this:

The way ACTA proposes protecting intellectual property–by going through people’s bags, laptops and MP3 players at airports; by holding ISPs responsible for what their customers do; etc.–-is hardly in accordance with the principle of property rights they purport to be upholding.

That is the copywrong part of ACTA’s copyright proposals.  What is proposed violates the very principle they want to protect.


Unauthorized Copying said...

How about making a few copies of my music CDs just for backup, just in case originals get lost or stolen? Is this theft? Please explain if it is.

Eric Crampton said...

Strength of copyright protection has never been an absolute: it's varied in duration and scope over the years. There's a Laffer curve that operates in copyright as well: zero protection and fewer things will be produced, but too strong of protection and nothing is produced either. Let's take the extreme case over on the right tail of the distribution. Every musician using a chord must pay a royalty to whomever invented that chord, then must pay another royalty to whomever came up with the chord sequence they're using. Think much music gets produced under that regime? Nope. It's too costly to produce anything new.

Take it to blogs. Suppose copyright didn't just protect the expression of an idea, but also the idea itself. Would you ever post anything, given fear of being sued by someone who'd previously come up with some idea you'd thought was original to you? Would Landes and Posner sue me for basically restating their argument in the first paragraph?

If you grant those two cases, then the optimal degree of copyright isn't infinite. The optimal degree isn't zero either. I'm reasonably convinced that we've pushed too far to the right on this curve: the costs of copyright in impeding new creation, at current legal levels of protection, exceeds the benefit of higher returns for those things that are created. And, I'd argue this is mostly due to Disney who earns more off its back catalogue than out of new production. The period of protection is too long, harm is done by excessive protection on orphaned works, and insufficient scope is given to fair use.

I'd even put reasonable odds on that more creative activity would take place at zero copyright than at the current level of protection. Sure, even more at a reasonable level of copyright protection. But we're not far now from the point where the whole thing taken together does more harm than good.

Personally, I'd sooner see copyright abolished in favour of a solution through private contract where folks use creative commons to designate the strength of protection they'd like applied to their own works, but where also we'd deem the extant corpus of common culture (Grimm fairy tales, etc) only being available for commercial use if the folks making the film, book or whatever applied a duration of protection no greater than 20 years or so, helping to rejuvenate the commons from which they drew.

Barry said...

Copying your own things is not illegal until you sell or give those to others in which case you would be depriving the original copyright owner of revenue they should have got as the owner of the copyright.

You only bought it for your own personal use and that is all you can do with it. Any time you decide to allow other people the benefit of enjoying it through the use of copies you are violating copyright.

@PC: unfortunately, your arguments are not entirely accurate, even though i agree with your point.

Centuries before copyright existed, there were inventions and technological developments. Without copyright such inventions may slow but they would not stop. To think they would is to have no faith in the human race nor any appreciation of history.

Eric Crampton said...

@Unauthorized: It's theft in the US; format shifting is allowed here. An Objectivist, I'd figure, would say it's theft unless the CD publisher explicitly gave you permission to make the backup copy. I'd then wonder whether you needed separate permission to listen to the CD at home versus in the car versus at work, but then Peter would rightly call me snarky.

Eric Crampton said...

@Barry: Unfortunately, you're wrong. Lots of places make copying even for your own use illegal, either by making the copying programs illegal (check anti-circumvention provisions), or by forbidding format shifting.

A copyright absolutist could reasonably argue that copying a CD onto your computer deprives the struggling artist the revenue stream that would come from your buying a version of the CD for your house, a version of the CD for your car, another electronic version that would play on your computer, an upgraded electronic version that you'd have to buy later on when your software became obsolete, a different version as the ring-tone for your phone, and the rights to hum the music when you're in the shower (and a different set of rights to hum the tune while jogging). Because every single person buying the CD would otherwise have bought all those separate formats - possibly spending hundreds of dollars for each bundle of rights rather than just the $20 for the CD, and so format shifting is theft.

Barry said...

Yes you are correct Eric. It does depend on the details of the copyright restriction. I guess I was commenting on the specific situation that was mentioned of a CD and in the case of NZ only. Other countries have different restrictions as mentioned.

Peter Cresswell said...

@Eric: With all your Laffer Curves and "right tails," you seem to have missed the moral point, I'm afraid: that my ideas, in the form (and with the conditions) I choose to make them available for sale, are not yours to redistribute.

Peter Cresswell said...

@Barry, you said, "unfortunately, your arguments are not entirely accurate, even though i agree with your point. Centuries before copyright existed, there were inventions and technological developments...."

And for centuries those
inventions and technological developments fell by the wayside.

So what changed, you ask? Might I point you to the Industrial Revolution, Barry, that singular time in human history when, after centuries, human invention and technological development finally took off.

And the reason it finally took off--and took off first in Britain--was not that people hadn't invented things before, because they obviously had, but that they hadn't been brought to market before--but now they could be because with the development of property rights in the Enlightenment era, they could in the era of the Industrial Revolution. finally have property in the ideas (and applications of their ideas) that they did bring to market.

Eric Crampton said...

@PC: If you're making a moral argument, that's fine. If you're talking about effects on innovation, those are empirical claims and highly contestable.

Julian said...

@Eric, doesn't the industrial revolution, which was made possible by The Enlightenment as referred to by PC, provide pretty good empirical evidence of the effects on innovation when rights (including intellectual property rights) are protected.


dan said...

Personally I think IP (imaginary property :) is laughable.. akin to one 5 year old telling another that it cannot make a sand castle because "I thought of it first".

As for the industrial revolution, I would guess that there is probably more then just one factor that triggered triggered it.

LGM said...

The patents awarded to Watt and his partner Boulton were instrumental in delaying the development of the steam engine, and thus delayed the Industrial Revolution, by decades (+30 years). Rather than encourage innovation the Watt/Boulton patent worked to frustrate it. Interestingly, it was immediately after the House elected not to grant Watt & Boulton a further patent, or extension on existing patents, that there occurred the tremendous advance in steam engines, with all the research, development, technology, design, construction and exploitation of steam prime movers that is associated with the Industrial Revolution. As a result of the rapid advances in steam engineering post-Watt there were similar surges of innovation and improvment in related fields (materials, pumps, transmission, tooling, production machinery, chemistry, thermodynamics, hydraulics, valving, control and so on- once the power is available one can devise ways of directing it to productive use).

Post-Watt/Boulton patents, new manufacturers were able to enter the field without the legal system being employed to destroy them and their innovations (as had happened to Hornblower with his superior designs). New forms of engine were rapidly developed. Components could be tested and improved. Innovation was allowed in the art again after decades of stagnation. Innovation was allowed in the art after it had been so effectively forbidden. That it so rapidly occurred after the Watt/Boulton patents were extinguished was not coincidence.

"IP" protection had exactly the opposite effect on innovation than that which is popularly promoted.


Note: The moral case for "IP" is a different topic from that of "IP encourages innovation". Similarly the claim "intellectual property rights are at the heart of all prop­erty rights" is a separate topic from "IP encourages innovation." Each of thoese topics requires a case to be made on its own merits. Not a trivial undertaking by any means.


Eric Crampton said...

@julian, @pc: The industrial revolution caused by intellectual property protection. Interesting hypothesis, one I've not seen advanced anywhere in the existing economics literature. The more common explanations tend to revolve around Britain having had cheap coal and expensive labour at the time and a halfways reasonable rule of law (or at least compared to other places).

Again, didn't say that "no protection" is optimal. If we take a consequentialist perspective, then there's an optimal amount of protection, and we're likely beyond that point. If we're taking a moral line, that's someplace where I've no particular relative competence.

Peter Cresswell said...

@Eric: "If you're making a moral argument, that's fine. If you're talking about effects on innovation, those are empirical claims and highly contestable."

It's somewhat astonishing that you divorce the two.

If the discussion was about bank robbery, or the theft of people's kidneys--or the enforced transfer of people's corneas (which it is now medically possible to transplant))--would you immediately come up with a Laffer Curve showing how utility is maximised in these instances--while ignoring those for whom utility, livelihood and lifeblood isn't?

I'm afraid that truly does put the "micro" into the analysis.

Eric Crampton said...

@PC: Isn't there a bit of a difference between theft of someone's cornea, which leaves him with less cornea to use himself, and copying someone's album, which may (or may not) take away his opportunity to sell one album but certainly leaves him with as much album as he previously had?

I'd even dispute you on the moral case. Innovation doesn't come sui generis: it builds on the prior body of existing work. The recent Alice in Wonderland movie was an excellent re-imagining of the tale which is now in the public domain, rights to Alice now expired. The film company will get to claim copyright over that movie for longer than Lewis Caroll got to claim rights over his book (copyright has extended over time); they drew from what's now the commons for private gain. Which is fine - laudable! But having a million years' protection on the new work, which couldn't exist without the commons, just isn't right. The commons ought to be replenished by the folks who draw from it; that's what happens when copyright expires on works in a reasonable time and when reasonable fair use provisions are in place.

Go read the Landes and Posner paper. Even from the perspective of folks creating new content, the optimal amount of protection is not infinite: otherwise, they would not be able to create anything.

Lyndon said...

Since creation is a livelihood for artists, writers and inventors, stealing the form in which their creations are made is theft of their intel­lec­tual prop­erty–which means a theft of their livelihood.

Apologies for not following the discussion or (probably) staying but this argument doesn't prove anything, least of all, I'd have thought, for someone like you.

If I might (amateurishly) play objectivist for a moment, people don't have a right to a livelihood. Or to be paid for something just because they happened to work very hard to do it.

I suspect the 'right to control your own ideas' would be equally non-objective. In practical terms it's obviously not absolute, and it seems to me contrary to the nature of information and communication.

I submit you need to make an actual argument in favour of this right existing.

And of course, 'theft' is when you take something and the person you took it from does not have it any more. I've thought about this and the closest common term I can find for IP violation is 'usurpation'.

Lyndon said...

Since I got a couplas minutes - further to the nature of idea...

To use your sweeping example of 'my ideas': once you've told someone what they are, they automatically, naturally and necessarily have a copy in their own head. In enforcing intellectual property on that you're demanding they not use something that they have, which sound at least as non-objective as anything that might be said on the other side.

It's not that I think this, so much. I just feel like you should.

(One can of course demand contract conditions prior to telling someone your idea, but that is not copyright)

Dinther said...

IP prohibits the application of new ideas. Just because someone has an idea does not mean nobody else can reach the same conclusion.

Ideas are always based on current knowledge. It is therefore logical that more than one person will reach the same idea/conclusion at the same time.

It the person that makes it to the patent office first more entitled to the rewards for that idea than the person that wants to try it out in his workshop first?

I work at the bleeding edge of IT technology in simulation systems. My ideas get patented by my clients all the time since I work on their projects. But the number of times patent lawyers get stuck because someone happened to think about some aspect of my solution before I did.

The whole thing is a ridiculous system of patent squatters.

I make a living of selling ideas and solutions. But ideas are cheap. They come by the dozen. I admire the business men who invest their capital to turn ideas into reality. This comes at great cost and risk. Prototyping, Market research, Production and sales channels and support structures.

Ideas ad based on existing ideas. They are cheap and worthless unless someone invests in them.

Once an investment is made on an idea it is no longer the idea that has value but the execution of that idea and how it led to a profitable product. This process comes through hard work and taking risks.

Patents, and the protection of empty ideas that never made a buck are stupid and hamper innovation.

Peter Cresswell said...

@Eric: Once again, Eric, you've managed to sidestep the issue of morality to go straight to (once again) evading the point-while creating several straw men in the space of only a few paragraphs.

The point is not how easy it might be to steal and distribute my work--or how many copies of my work I might be left with after the whole world and their third uncle chooses to copy it and distribute it to their friends--but whether or not you have any right to 'take' it at all in a form in which you don't have my permission, and how many buyers I will be left without if you do.

Further, no-one disputes that innovation doesn't come sui generis, but the straw man you're erecting here is a bizarrely dichotomous one: that all parts of all ideas should be protected for all time (as if that is what copyright protection is), or not at all.

But this is just silly. No advocate of copyright maintains this, as I'm sure you're perfectly aware.

Which is to say that our notion of copyright as expressed above is at best is a strawman.

A guitar chord is not able to be copyrighted (and nor should it be). A song is.

A line from Landes and Posner is not able to be copyrighted (and nor should it be). The book in which that line comes from, is. (And the concept of "fair use" allows us to quote from it, within reason.)

Copyright doesn't protect the the expression of an idea, it only (and properly) protects the form in which an idea is expressed.

And it doesn't protect discoveries, only inventions or new creations.

Which is to say again that your notion of copyright as expressed above is at best a strawman. And at worst (by reifying the present imperfect state of copyright and patent law, finding flaws in that, and arguing that those flaws require the wholesale rejection of the concept) it makes the perfect the enemy of the good.

@Lyndon: You say that "people don't have a right to a livelihood." That's true when formulated that way, since it sounds as if you demand that others provide it. But people certainly do have a right to the products of their livelihood--in this context, to the form in which they choose to present their ideas.

We each have the same right to what is ours--and since the fundamental reason for rights is to protect the moral space in which we each may produce (at minimum) our means of sustenance, then if I take that away I take the very food out of your mouth.

And to use your own sweeping straw man of what copying my ideas might look like, what is protected in copyright is not ideas as such. Copyright is simply protection for the material form in which my ideas take shape---"...what the patent or copyright protects [Ayn Rand points out] is not the physical object as such, but the idea which it embodies. By forbidding an unauthorised reproduction of the object, the law declares, in effect, that the physical labour of copying is not the source of the object's value; that the value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which has brought into existence."

Barry said...

@PC: Actually the OP did mention the economic outcomes for everyone from copyright or lack thereof and so Eric was fully entitled to answer that part of your post. He never tried to discuss the morality side.

Your OP did not make it clear that morality was your main point. If it was then you should reword it.

Eric did not present strawmen. He actually fleshed out your simple analysis of copyright by informing us all that it is in fact a contimuum rather than a binary choice. And whereas you were simplistically discussing having or not having it Eric went to a more enlightened discussion of arguing that on the continuum we may be too far to the right than is optimal.

I found Eric's points very insightful.

LGM said...


"And it [copyright] doesn't protect discoveries, only inventions or new creations."

Copyright is in general silent on inventions. Inventions fall into the realm of patents. That's understandable, as the two deal with different classes of IP.

The term of patents and copyright is different. You get 20 years for patents so long as you pay the renewal fees and make best efforts to commercially progress the subject of your patent. Also you need to aggressively defend it against infringement and various claims, else it can be rendered unenforceable. If you are dealing with pharmaceuticals your patent can go for an extra 5 years in the USA. Some other jurisdictions also allow the extension. Copyright lasts for the life of the creator plus up to 70 years depending on jurisdiction. Why this is- different reasons, arbitrary mostly.

It may be possible to copyright a chord. There has been some discussion about whether a chord known as a "Steely Dan" (after the musicians) is copyright. Stay tuned!


Anyone here use the patent databases? Well worth visiting.

The US Patent & Trademark Office is at

I usually use the quick search or the number search functions. Full text images and forward citations are available.

European Patent Office is at

This also has images of the actual documents and full citation. This site covers world-wide filings and applications (not just the European and USA jurisdictions, you get Japan, China, Canada, NZ, Oz etc.)

Both these have search engines which are good enough for casual use but don't trust them for a clearance search or for an exhaustive review of your art.


Paul Walker said...

Copyright/patents are not the perfect answer to giving incentives for innovation, as Jean Tirole points out, but what's better?:

"Consider the patent system. It has long been recognized that patents are an inefficient method for providing incentives for innovation since they confer monopoly power on their holders. Information being a public good, it would be ex post socially optimal to award a prize to the innovator and to disseminate the innovation at a low fee. Yet the patent system has proved to be an unexpectedly robust institution. That no one has come up with a superior alternative is presumably due to the fact that, first, it is difficult to describe in advance the parameters that determine the social value of an innovation and therefore the prize to be paid to the inventor, and, second, that we do not trust a system in which a judge or arbitrator would determine ex post the social value of the innovation (perhaps because we are worried that the judge might be incompetent or would have low incentives to become informed, or else would collude with the inventor to overstate the value of the innovation or with the government to understate it). A patent system has the definite advantage of not relying on such ex ante or ex post descriptions (although the definition of the breadth of a patent does)." (Jean Tirole, "Incomplete Contracts: Where Do We Stand?" Econometrica, Vol. 67, No. 4 (Jul., 1999), pp. 741-781.)

Peter Cresswell said...

"Copyright is in general silent on inventions. Inventions fall into the realm of patents...."

Oops. My mistake. Writing too hastily.

LGM said...


It appears Tirole's approach to innovation relies upon its "social value". Hence, socially valuable innovations would be awarded patents (or prize of some sort) as reward to the inventor for the value he confers upon society with his device.

Two points.

1/. Such a scheme is immoral, impractical and completely unworkable (to his credit Tirole admits to some of this). You can guarantee his system would be awash with corruption right from the get go. It offers no valid defense for the notion of IP and IP protection. It'd be a huge rortfest.

2/. The only valid defense of IP would necessarily rely on IP being properly identified as private property in the first instance. If that can be accomplished, then a validation for the position could be attempted. There are several potential approaches. PC has mentioned a moral defense. There is also an Individual Rights argument.

It is doubltful any defense proceding with a "social value" (whatever that might happen to be) argument would EVER provide a useful valid defense for IP. For a start there are no such things as collective rights. Society has no rights to anything.

Tirole is comitting grave error.


Real Capitalist said...

Copying is not theft, and imaginary "property" stands opposed to property rights and free market capitalism itself. It's evil garbage dressed up in capitalist jargon.

See e.g. Stefan Kinsella "Against Intellectual Property" and Boldrin and Levine "Against Intellectual Monopoly".

Peter Cresswell said...

@Real Capitalist: Your so-called "real capitalism," sir, is nothing but a self-serving justification for theft, and a confession of ignorance of from whence property rights even derive.

Your Mr Kinsella is a disgrace to the name of Ludwig von Mises, under whose banner the Kinsella peddles his muck.

Eric Crampton said...

@PC: I've largely avoided the moral argument because I don't reckon that either of us are coming at morality from any particular position of expertise. Whatever moral positions I have, I work hard to beat into submission when I'm giving a straight economic argument; I can then bring back the moral part afterwards. I know something more than other folks about economics and the economic literature, so I stick to that as I hopefully then can inform.

To the extent that I'd make a moral argument, it would be that it is wrong to build on ideas that are in the commons without replenishing that commons. It's the Lockean proviso applied to IP: leave the commons with as much and as good as you've taken. Perhaps only with delay - the duration of copyright - but eventually the commons needs replenishing.

I wasn't erecting strawmen: I was pointing out that there are two ends of a continuum of protection.

At one end, everything has absolute protection and nothing new can ever be created because everything somehow builds on a prior idea.

At the other end, there is zero protection and fewer things are created as it's difficult to recoup the fixed costs of creation. In between there are all kinds of options for copyright.

We have lots of ways of deciding among those options.

One way is "what level of protection maximizes the sum of consumer and producer surplus over a long time horizon?" That level of protection would be a fair bit lower than current levels. Another is "What level of protection would a new artist prefer, given that he bears the costs of protection when he's trying to create new works but also enjoys returns from protecting what he's created?", which also would yield less protection than at present. Copyright is completely wrecking a lot of new musical innovation in remix: the Grey Album was a startling new idea that had no end of trouble due to copyright.

Your preferred one seems to be "Is copyright consistent with an Objectivist view of morality, and what level of protection is most consistent with that view of morality?" Which might be interesting for Objectivists to sort out among themselves, but isn't particularly interesting as a policy or economic question.

I tend to aim at a point somewhere between my first two options.

I never said wholesale rejection of copyright. I did say that current levels of protection may be so far out of whack that we'd be better off with no protection, but there is a level of copyright protection, lower than current levels, that's preferable to either the status quo or zero protection. For me, that ideal point is a mix of Creative Commons with a restriction on the strictness of protection that can be applied to works that have drawn on the commons.

Eric Crampton said...

My moral questions for you, Peter:

Why is copying a song theft but copying a riff not theft? If copying a riff isn't theft in making a new song, why is it theft if you use that riff as your ringtone in your cell phone without permission? What makes the bright line distinction between theft and not theft? I'm a "continuum and balancing" guy rather than a bright-line guy on this stuff, so I don't need these cut-points. But you seem to. Explain them.

Lyndon said...

the fundamental reason for rights is to protect the moral space in which we each may produce (at minimum) our means of sustenance

But it does not follow that, because someone presently does happen to get paid for something, they have a right to payment for it. Perhaps they Should be doing something else for sustenance, or doing it differently. That is rather the point at issue.

Looking at the people arguing, they just don't accept your premise; so either the argument shifts to that level you just keep asserting at each other. So I note the new links above, and again apologise for being lazy and not looking.

I won't dispute Rand's description of the law, but if she exends that to universal moral facts then her theory of value gets a bit fraught.

Real Capitalist said...

Kinsella is right and you are wrong. Oh well. You can lead a horse to water but you can't make him drink.

Imaginary "property" is a cancer eating at the capitalist system. Copying is not theft, and no amount of mendacious verbosity will make it so.

Lyndon said...

Further to the 'ideas' thing, I mention it because it's the simplest form of information - which I'd say best defines the 'form' the created thing and the copy have in common.

I won't say information wants to be free. But if you think there's a right to control information once it's on the loose, that right is surely not a natural one.

Anyway, I Eric has a point above about the riffs. It's a check of whether you *actually* treat copyright like other rights. Was DPF morally wrong - perhap forgivably, but still wrong - to quote you without securing permission in his post linking here? Were you wrong to quote Rand above?

Peter Cresswell said...

@Eric: Eric, it's impossible even to form an informed position on intellectual property rights without first understanding how property rights themselves are derived.

And it's impossible to form an informed position on how property rights are derived without understanding that rights themselves, which recognise and protect the moral space in which we act, are the link between "the moral code of a man and the legal code of a society."

Which is to say that it's impossible to form an informed view on any rights--let alone the specific rights in question--without holding a moral position.

Which you do. You're implicitly holding to a utilitarian position that ten men can beggar their neighbour if it's good for those ten.

The point being that by simply leaping to the amoral position that you claim to hold, what you're doing by placing yourself in the implicit position of economic planner, is granting yourself the explicit right to distribute the property of other people.

Which, as I said earlier, is essentially no different to drawing up plans to distribute the proceeds of bank robbery--or, if we extend the principle, to the proceeds of nationalisation.

I have no problem at all with producers voluntarily giving up whatever rights they like by registering with the Creative Commons crowd--if producers themselves favour that for their own work, then more power to them--but it's not for you or me to insist, by law, that they must.

I grant you that the abolition of copyrights and patents (or implementing "a level of copyright protection, lower than current levels," which is to say a partial abolition) would give you a temporary increase in productivity.

But I agree with George Reisman, following Ludwig von Mises, in seeing that increase as only temporary, and leading very quickly to “a monopoly of the dull and incompetent,” and with it a diminution of supply and and rise in prices:

It is true that at any given time, taking for granted the existence of the most recent batch of improvements, introduced in the expectation that those responsible would benefit from them, it might be possible to achieve a temporary acceleration in the increase in the supply of goods and services by abolishing patents and copyrights. Such a temporary increase would be comparable in its ultimate significance to the abolition of the property rights of any other group of producers, such as storekeepers and manufacturers, and allowing mobs to sack their stores and warehouses. A very short-lived gain would be followed by a permanent loss of future supplies—in this case, further new inventions and new ideas.
- George Reisman, ‘Patents and Copyrights, Trademarks and Brandnames, Not Monopolies,’ in his book 'Capitalism'

Peter Cresswell said...

@Eric: BTW: I do not agree at all with "the Lockean Proviso" that producers are obligated to "replenish the commons." Unfortunately, while much of Locke's work on property rights is magnificent, his labour-theory of property rights has as many flaws as David Ricardo and Adam Smith's labour-theory of value.

An enrepreneurial basis for property rights is far stronger, recognising essentially that the creator brings into the world a new value, and is therefore entitled to rights in that new value he has brought into the world.

“Since human effort creates the value that any object possesses—since individuals are responsible for all of a thing’s value—it is appropriate to recognise property rights belonging to the individuals who generate the relevant value. If a person is entitled to act to promote her own eudaimonia and through her actions creates something that is valuable to her, we have no grounds for denying her right to that product.”
- Tara Smith, 'Moral Rights & Political Freedom'

Eric Crampton said...

@PC: I could be with you on the moral side IF the entrepreneur bringing new ideas into the world were doing so sui generis. But if he's building on the unprotected works of others, then he's earning rents based on their prior discoveries without giving others the opportunity to do the same. If Blues Traveler appropriates the chord sequence from Pachelbel without compensating Pachelbel's heirs, but then asserts that it has a fundamental creative moral right to anything ever that flows from "Hook", that's just not right.

It just isn't right that movie producers now can basically remix Alice in Wonderland but then forbid anybody else from remixing their remix for a period of time that grows ever longer as Hollywood lobbies more; the de facto rule now seems to be that no film created since 1928 can ever enter into the public domain as the duration of copyright will just be extended whenever 1928 seems likely to fall into the public domain.

And this is why the moral argument is pointless. I'm more of a pragmatist/intuitionist/pluralist and you're an Objectivist, and we'll just keep talking past each other on the moral case.

But I still want to know: why should the creator of a riff or hook get no protection but the creator of a song get full moral protection? How does your morality tell you at what point the creative act is sufficiently fulfilled that the product is given protection?

Eric Crampton said...

And, if reducing protection from current levels is morally wrong, why were the levels of protection that were in place when both Mises and Rand wrote their seminal works morally abhorrent?

Paul Walker said...

"It is doubltful any defense proceding with a "social value" (whatever that might happen to be) argument would EVER provide a useful valid defense for IP. For a start there are no such things as collective rights. Society has no rights to anything."

Social value = sum of individual values. As an approximation just take the sum of consumer and producer surplus.

Peter Cresswell said...

@Eric: " he's building on the unprotected works of others, then he's earning rents based on their prior discoveries..."

No, he's earning his living by standing on the shoulders of prior innovation. Something I thought you supported.

(Just to say, however, that it would be wrong to think of expired copyrights or patents reverting to "public doman" or becoming "public property"--as Rand points out they cease to exist qua property; or in Menger's terminology they essentially become a "free good" instead of an "economic good".)

On this point, see Greg Perkins argument explaining why work should not be protected in perpetuity--i.e., why it properly becomes a "free good" after a certain period of time.

Regarding your question about a hook, or a riff, or a series of notes, I'd suggest that to discuss that sort of borderline issue while there's still substantial disagreement abut where our capital cities are located is a trifle premature.

However, given that a melody is "a connected series of notes sounding in succession" I would say that the minimum form of recognition would be not be for isolated notes, but for enough notes in a recognisable and distinctive form sufficient to form a melody.

And the level of protection would (and I believe does) recognise just how much value that melody contributes to a song.

If it's the primary hook to the Chiffon's 'She's So Fine,' for example, it would wrong to use that without attribution as the primary hook in a song called, say 'My Sweet Lord.'

But if the melody is just recitative or filler, I believe contemporary copyright law does (and should) recognise it as such.

Barry said...

Sorry PC but Eric is right and you are wrong. You cannot argue for the 'moral right' of current copyright regimes when it actually systematically ignores the rights of much of the knowledge used in those discoveries.

Your assertion that previous knowledge used in a new piece of IP could be valued by how much it contributes to the final product is also incorrect. Copyright is a monopoly right accorded to the holder and as such they can charge whatever they like for their piece of IP to be used.

Eric is quite right that firstly your moral stance is nothing but selective vision looking at only those in the current time and ignoring those who contributed to the knowledge used before this.

You purport to give more rights to someone who does something now that someone who did something 20 years ago. I didn't know that property rights were different based on time?

It is like the Maori issue where you think everyone should have equal rights now but conveniently ignore the elephant in the room that Maori never had equal rights for their culture or language for more than 100 years and still have not had redress for this.

But in your opinion in happened in the past and therefore those people do not have property rights.

The world is not as black and white as your simplistic analysis makes out.

Eric is right IP laws sit on a continuum and there can be healthy debate about where on this continuum is best. Taking a misguided moral stance which favours people in the present day only is niave and wrong because IP laws cen never 100% be perfect with regard to balancing property rights and innovation - it is a matter of what can be put up with against what is achieved.

Peter Cresswell said...

Well, Barry, I refer you again to Greg Perkins explanation of why copyrights and patents aren't and shouldn't be protected in perpetuity.

The link appears in an update the original article, and it's that argument I rely on.

Eric Crampton said...

From Perkins, quoting Rand: "By the very nature of the right on which intellectual property is based -- a man's right to the product of his mind -- that right ends with him." That's rather less than "life plus 50 years", isn't it?

Bit odd to call reductions in the term of copyright theft on Randian grounds if even Rand argued that the term ought expire with the author.

Peter Cresswell said...

@Eric: It's not possible to say everything in one article--or in one short quote.

In almost the next paragraph from which Perkins quotes, Rand continues the point being made:

"Since intellectual property rights cannot be exercised in perpetuity, the question of their time limit is an enormously complex issue. If they were restricted to the originator's life-span, it would destroy their value by making long-term contractual agreements impossible: if an inventor died a month after his invention were placed on the market, it could ruin the manufacturer who may have invested a fortune in its production. Under such conditions, investors would be unable to take a long-range risk; the more revolutionary or important an invention, the less would be its chance of finding financial backers. Therefore, the law has to define a period of time which would protect the rights and interests of all those involved.

"In the case of copyrights, the most rational solution is Great Britain's Copyright Act of 1911, which established the copyright of books, paintings, movies, etc. for the lifetime of the author and fifty years thereafter.

"In the case of patents, the issue is much more complex....

I trust you understand that the last comment didn't exhaust her discussion of patents.

And BTW, I have no idea what point you were making earlier when you talked about "the levels of protection that were in place when both Mises and Rand wrote their seminal works" being "morally abhorrent"? Who suggested they were?

Barry said...

Sorry PC but you are infringing on an inventors property rights if you tell them how long they can own their property idea for.

Not all creators of intellectual property would be happy to reliquish their property with no recourse after a period of time.

You are therefore taking from them for the use of others after this time without compensation which some would regard as....stealing. A definite infringement of property rights.

So there is no moral high ground for you or anyone to stand on. Which Eric has been at pains to show you since his first post.

There is a clash of rights of the person who wants to use an idea or piece of knowledge and the person who claims to have invented it.

Some say that all knowledege already existed and that people merely find it but do not discover it. In this case there is a "moral" argument for no IP laws at all.

Others can go too far and claim that as Eric said the person who discovers something can claim ownership of that and claim rent from anyone or exclude others from using it.

The first side of no IP laws might violate peoples assertion that an idea belongs to them. The second would violate someones assertion that ideas and knowledge belong to no-one so they have a right to use anything they like as long as it doesn't prevent another person from also using it.

Who is right? Who is wrong? It is a philisophical question and there can never be a situation when everyone is completely happy.

You cannot argue that one position is fairer than another because it creates more economic growth because fairness is not measured in $.

Fairness is measured in people's minds as to whether their rights are being upheld as much as they would like.

There is no position on the continuum of 100%IP or no-IP which does not result in millions of people being potentially aggrieved at a perceived loss of property rights.

Neither you nor anyone has the right to tell someone how long an idea remains their own property as this is simply an arbitrary claim.

Eric Crampton said...

@PC: Thanks; I didn't have a copy of the Rand original handy, just the big cited.

You'd stated that reduction in the term or scope of copyright amounted to theft. So the current levels must be the morally right ones, no? Rand and Mises wrote under US copyright, which was shorter prior to 1976 than it is now.

Peter Cresswell said...

@Eric, you said, "You'd stated that reduction in the term or scope of copyright amounted to theft."

Well, no. I'd suggested the precise term and scope be determined not by Laffer Curves and the like, but by principle--just as it was, for the most part, when the likes of Great Britain's Copyright Act of 1911, was established.

However, with rapidly changing technologies, and today's war between "IP expansionists" and "IP Abolitionists" rapidly shifting the goalposts of ignorance, determining the precise term and scope for new technologies would first require re-learning, or re-stating those principles.

However, there is one principle that even economists should understand: that the implicit ideas which are taken for granted in economic analysis be made explicit, and are undersood and defended.

Economics is not value-free--it rests, for example, on implicit assumptions of the value of property rights and contracts.

Capital markets, for example, cannot function successfuly without contract law and firm property rights. And neither can intellectual property. The implicit assumption that economic analysis (the drawing up of Laffer Curves, for example) takes place in that context should (I suggest) be made explicit.

On this, I recommend Tom Bethell who, writing in his book 'The Noblest Triumph: Property & Prosperity Through the Ages,' says:

"Economic analysis is like a suspension bridge. It can have all the fancy engineering you want, but at some point it must reach down to the sold rock of law and secure political institutions... Economc outcomes are thought to be satisfactorily explained by economic data. Growth is a function of 'capital formation' for example. But capital is a highly derivative abstraction, a mere cable on the suspension bridge. Is the whole structure embedded in the sold foundations of secure proprty rights, enforceable contracts, and independent judicial system? Until very recently, economists have paid little attenton to these questions. Perhaps the old name political economyshould be restored...

"My thesis, then, is that ... we put law back in its proper place, antecedent to economy, and make legal relations the true bedrock upon which the bridge of economic analysis must be placed..."

Peter Cresswell said...

@Barry, you said, "There is a clash of rights of the person who wants to use an idea or piece of knowledge and the person who claims to have invented it."

There is no more a "clash of rights" in that case than there is between a home-owner and a burglar who wishes to strip his house bare.

Your notion is frankly nonsensical.

Greg said...

My ideas are my prop­erty.

Oh, please. What tripe! If you want to keep your ideas to yourself, you're free to do so. Nobody's "stealing" from you if they don't take anything from you.

LGM said...


The Objectivist position is not that ideas are claimed as property, rather the manifestation of them is. That is, they determine the nature or attributes of an entity that an individual "brings into being" (or if you prefer, a specific arrangement of real entity/ies caused by an individual's conscious planned actions).

The distinction is important in understanding the disagreement between pro-IP Objectivists and anti-IP Libertarians.

BTW not all Libertarians are anti-IP, but some of them are.


LGM said...


It is astonishing that you can post so much on so many topics about which you remain so ignorant.

Please, do some serious research and acquaint yourself with, at least, the basics of a topic BEFORE POSTING.


Peter Cresswell said...

@Greg: "Nobody's "stealing" from you if they don't take anything from you"

Well, yes you are. You're robbing me of the earnings I would have made without your parasitism.

Greg said...

In the case of copyrights, the most rational solution is Great Britain's Copyright Act of 1911, which established the copyright of books, paintings, movies, etc. for the lifetime of the author and fifty years thereafter.

Why? Why is "fifty years thereafter" so much more rational than "forty-nine years thereafter", or "twenty years thereafter", or "six hundred and thirty two years thereafter"? (And if so, why is the life of the author plus fifty years more rational than just fifty years from the date of authorship, regardless of the author's lifespan?)

Greg said...

Well, yes you are. You're robbing me of the earnings I would have made without your parasitism.

Two points: (1) you have no way of knowing that, and (2) whatever earnings you might have made, if any, are not yours until you've actually earned them -- if someone chooses not to give his money to you, but rather to do something else with it, you have no right to complain: it isn't yours.

If you open a pizza joint, you might be taking some of the earnings that Pizza Hutt/Dominos/etc., might have made if you hadn't opened -- that doesn't mean you're robbing them of those "earnings"!!

Peter Cresswell said...

@Greg: If youi sell or distribute a million copies of my musical monstrosities on CD, against my will, it doesn't take a genius to work out that without me a) you wouldn't have made any amount of money at all without the value my musical meanderings added to your bland disc, and b) that a fair number of that million represents sales and/or customers from which (and from whom) I might have expected to earn a dollar.

To earn a dollar for my work. Not yours.

Barry said...

Actually PC is nonsensical because he compares someone taking tangible items from someone house to someone who uses knowledge for the development of other new ideas or to make money.

What is non-sensical is that PC believes that the person who wrote the song is fully entitled to claim all benefits for their songs while not having to pay anything for the use of the piano, musical theories and other pre-existing melodies that influenced that music.

PC still cannot let go of the non-sensical nature of an argument that says that people have property only for a period of time and only if they create something now. If someone created something years ago then PC arbitrarily (see nonsensically) decides that this is no longer the peoperty of the inventer whereas within a certain period of time it belongs to them.

I think my car is mine until I sell it.

Why are my ideas only mine for 20 years?

And if they ARE mine for longer why does PC continually evade the HUGE flaw in his argument that he is defending only a few of the people who actually have property rights and conveniently ignores the past and the work that they have basically STOLEN (using PC's terminology) to create their work.

Such a huge flaw in such a simplistic argument.

It is the same flaw PC has when deciding that Maoris have no redress against government for wrongs committed 150 years ago whereas he would expect to get redress for wrongs committed against him 30 years ago.

I have never heard of anyone anywhere putting a time limit on someones human rights...until now.

I think PC is creating a whole new philosophy of time limits. Pity that is only PC's idea and everyone else can see that it is just silly since the time limits PC sets suit only himself and his arguments. They are arbitrary limits of time that infringe on other peoples rights. But since when was PC insterested in other peoples' rights?

Peter Cresswell said...

@Barry: "If someone created something years ago then PC arbitrarily (see nonsensically) decides that this is no longer the peoperty of the inventer whereas within a certain period of time it belongs to them."

Wel, no. I've provided the arguments for you. It seems you just can't read them.

Barry said...

Actually PC you didn't provide the arguments. You said that the term of patents is set. You gave no reason for this which is based on property rights of individuals.

That is because everyone else knows that Patent terms were always set in order for the economic benefit of the community. If it was up to the owner of the idea or patent then they could set their own limit.

In terms of scientific discoveries these are not covered by patent. This is also decided arbitrarily by making the distinction between an invention and a discovery.

But a discovery of a new scientific principal or law by one person is from their mind is it not? I thought you supported people having ownership of their throughts?

If someone makes a word then aren't you stealing if you say it without paying them money?

You haven't thought of these things because you have hardly actually thought about any of this. Which is why your analysis is so full of holes that you gloss over.

Peter Cresswell said...

@Barry: You're now just wasting everybody's time. This, for instance--"In terms of scientific discoveries these are not covered by patent. This is also decided arbitrarily by making the distinction between an invention and a discovery."

If you really do think the distinction between invention and discovery is "arbitrary," (i.e., "without foundation; random or capricious") then you're an idiot.

And if you don't reall think that, you're a troll.

Either respond intelligently, or not at all.

MarkT said...

@PC: My money's on troll.

Eric Crampton said...

@PC: I'd thought you'd said someplace that advocating reductions in the term of copyright was a form of theft; if I had that wrong, apologies.

I agree that there's a difference between economic rents and "standing on the shoulders". The former, I'd argue, is what happens when you deny others the opportunity to stand on your shoulders when you've stood on the shoulders of others.

I'm still not clear on the finer details of the morally informed version of copyright: what would be the exact duration of copyright across different forms of media, what would constitute fair use exemptions, and to what extent could individuals contract around the default via Creative Commons? Once those finer details are there, how do we set up mechanisms to prevent malicious use of copyright or patent trolls?

Just because I think current IP law is broken doesn't mean I don't think there could be a desirable version. And I might even put my hand up for your preferred version over the status quo, if I knew more of its finer details. Much of current law was set up to deliver rents to folks who owned existing IP, not to protect or enhance the interests of new creators. That hurts new innovators and new creators, making it harder for them to innovate and invent. I'd really like to see less defense of the status quo against abolitionists and more promotion of a workable alternative.

Barry said...

Unfortunately for PC he cannot answer question in the post but rather pleases himself to worry about semantics.

It is sad that you have not even read a little about this subject matter. Take this for example:

Patentable inventions must — under conventional patent law — be new, useful and involve an ‘inventive step’. In contrast, it is generally accepted that utilising something that already exists in nature is a ‘discovery’, and is therefore not patentable.

Or is it? In the field of biotechnology, as the achievements of genetic engineering and gene sequencing have broadened the range of potentially patentable subject-matter, the dividing line between invention and discovery has become increasingly difficult to determine.

Since the 1980s, it has become increasingly common for micro-organisms, plants and animals to be patented, as have cell lines and even DNA sequences. Of these, it is the patenting of genes and gene fragments that appears to challenge one of the most fundamental tenets of patent law: the novelty requirement."

The distinction between discovery and invention rests in a distinction between previously existing knowledge and that which is created by a person. This is a fundamental question in philosophy as to whether all knowledge existed separate of man and he simply discovers it or whether man creates the knowledge that is generally accepted.

To draw a line between these extremes is arbitrary because something which one man says he created could be argued by another to be something he has a right to because it existed before that man discovered it.

You think one way PC but other people thinkg differently. Eric presented these extremes to you but you clearly still do not understand them.

The extreme of everything being patentable is the 100% IP side and the side of everything being a pre-existing knowledge waiting to be discovered lays with the No-IP side.

The answer as Eric told you long ago was somewhere in the middle. But you still cannot see that where government or the community sets this line between IP or No IP is arbitrary in terms of morality or Philosophy. It might be not arbitrary in terms of economics because certain types of IP regime might be better for innovation.

But in terms of morality (whiuch was your stated main point) the distinction between discovery and invention and therefore the type of IP regime is arbitrary because to people who's rights are infringed there is no logical reason you can present to them for why some piece should be protected by IP or not. If you are infringing their rights in their eyes then you are infringing their rights in their eyes. Wherever you define something as protected or not based on an IP regime will inevitably take away some peoples' perceived rights to that property (either to use or stop others from using it) and your explanation to that person for why their rights should be infringed is simply arbitrary - which means you cannot give them any reason which accords with a logical reason for doing that.

That is why you are wrong.

Anonymous said...

Fact is, artists who release work on creative commons still make a living... even free things have fans, fans buy merchandise.

Artists who do NOT release work on creative commons tend to make most of their money in frivolous lawsuits... many of which are against children.

I'm not against copyright... I AM against any copyright which forbids poor people the opportunity to see a movie, or hear a song.

Music and movies that are not released on the creative commons are very expensive. They have to be very expensive if the artists are going to pocket hundreds of billions of dollars a year in some cases... just millions in other cases.

Millions, oh me, oh my, we make millions, we're gonna starve if one CD is copied.

Anonymous said...

here's a video about piracy i saw online.