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The 'intellectual property' oxymoron (cat-v.org)
115 points by yannis on July 3, 2011 | hide | past | favorite | 131 comments



What I consider to be intellectual property is between my ears - it is my intellect and my property.

I have an arrangement with my employer to rent my intellect for nominally 8 hours per day. What that arrangement produces are artifacts (ink on paper, magnetic domains on disk drives, charge on floating gates) of my intellect. My employer owns those artifacts, but not the intellect that created them.

Companies can talk all they want about their "intellectual property", but their property is artifacts, and artifacts are not intelligent. Artifacts cannot generate new, novel, artifacts. When a company uses the term "intellectual property," that is offensive to me because the company is denigrating my intellect by equating it to inanimate artifacts.

The uncomfortable truth (for companies) that they have forgotten or chosen to ignore is that the intelligence part of their company is not their property. The intelligence walks out the door every evening.


IP is a catch-all term for a variety of legal situations (patents, copyright, trade secrets, even non-compete). Your comment is a very nice legal theory, but I don't know if the courts decide things this way in every case.


That's a very interesting, and strong way to view it — however, I feel like this is still not going to solve the main issue:

Yes, my intellect is my property, and it's going to stay that way. But my intellect needs to feed on — artifacts. If I see something I find interesting, I want to see how it's done. Not for the purpose of copying it, and appropriating it, but for the purpose of learning from it; feeding my intellect is the way I can keep it alive. I cannot generate new, novel artifacts, without old ones to feed my curiosity, and my ability.

Here's the thing: the companies want to own those artifacts, and I want to freely peruse them. It would be one thing to just be able to rent them from companies, but in the case of closed source, that is not possible. Intellectual artifacts become inaccessible.


I think you're being overly picky about wording. Intellect creates intellectual artifacts, just as a mason puts down masonry. If such an intellectual artifact happens to be property then it is intellectual property.


A basic roundup of ethical problems for IP:

* Conflict with fundamental personal liberty: Mill's idea that we have unrestricted liberty except to the extent that it injures someone else, is fairly standard. But IP conflicts with that, yet IP is not fundamental, not grounded in physical fact. (See Koepsell: http://www.hxa.name/articles/content/ethical-case-against-ip...)

* Cannot be justified on the basis of harm: One could justify rights by showing that lack of them causes harm to those denied. But IP represents no physical relation where any harm could be rendered. (See Wilson: http://www.ucl.ac.uk/~rehbjgs/docs/could-there-be-a-right.pd...)

* Does not make complete sense as a generalised rule: The idea that a moral rule is generalisable, as a critical feature, is also standard (probably more so). But if everyone owned IP equally much there is no advantage, and everyone would be better off freely sharing copies. (And indeed, what do we seem to see amongst similarly large corporations? They buy big patent portfolios and agree, or tacitly accept, truces between them.)


None of these are ethical problems if you accept the premise that the author of a work is entitled to be remunerated for the production of said work, and can contract (exclusively, for a period of time) with a publisher for the distribution of said work.

Put another way: you may (or may not) be old enough to remember when an American paperback company, Ace books, produced and sold paperback copies of Tolkien's "Lord of the Rings" without paying Tolkien for the rights (and in direct competition with Houghton Mifflin, to whom Tolkien had contracted).

Are you prepared to argue that Ace did Tolkien no harm?


> if you accept the premise that the author of a work is entitled to be remunerated for the production of said work

That is not the premise, that is the matter in question.

If it is simply assumed as the answer, nothing has been said.

As to the idea of harm here, it is not in the actions or materials themselves. It depends on assuming the particular law is the baseline, and then saying without that the person would be worse-off. That is effectively saying: people can make a living in a particular way because of the rule, and we have the rule because people can make a living in a particular way from it. This is a circular fallacy. It cannot be justified by itself.

Why is IP justified? -- as a rational argument, in terms more basic than the question itself . . . (having looked around a bit, there seems to be only one half-decent/plausible one: the standard economic one -- which is not really an ethical argument (and conspicuously lacks actual evidence anyway))


> Why is IP justified?

From an economic point of view, by trying to prevent something like the tragedy of the commons.

Since everyone can make copies if there is no ownership, the majority of authors have no incentive to make their works public. And since authors can figure this out before starting to work, there's less production of works than beneficial.

In other words: Nobody would have spend the money to make movies like Lords of the Rings, or whatever you fancy.

The free market argument applies in a world with ownership, too: Those who paid the price for a work are assumed to be better off, otherwise they wouldn't have agreed to the bargain. If they would want works without ownership, they can always assemble, throw their money into one pot, and have works made for them.

Since they don't do this, an average, the incentive of having works with no ownership can't be that great.

You got to admit that every author is the possessor of his work, even in a world without ownership, since he possesses the first copy. So, the question is: How can you make him publish his copy?


> In other words: Nobody would have spend the money to make movies like Lords of the Rings, or whatever you fancy.

Sure. Like how nobody would write encyclopedia articles, operating systems, fiction, manuals, textbooks, etc, for free.


Ethically it simply comes down to giving credit where credit is due.

If you discuss a new idea that you have spent time formulating with a co-worker that is good for the company and the co-worker presents this idea to your common boss as their own and receive a promotion for it, is this ethically wrong?


Yes, that is wrong -- it seems covered by the ethics of lying/truth-telling (from Kant, it is contradictory: if lying were a universal rule, it would destroy the possibility of communication in general).

But IP is about more than just clear attribution. And clear attribution is not dependent on IP -- we can have it without the other IP features. So a justification of attribution is not sufficient to support IP too.


You haven't explained how they are different, what is the difference between a co-worker stealing your idea for personal gain and someone else in society doing the same?

In IP it's essentially about someone lying to society about the source of the idea.

The only difference I see is the organizational entities scope, but the ethic is the same.

IP is basically contractualized attribution.

Owning an idea as property is simply a societal contract that guarantee's you attribution for your idea.


you are pretending there is on difference between attribution of ideas and utilisation of ideas. I won't even explain why this is not true.


Where did I pretend there is no difference?

If in my example the company chooses not to implement the idea, I still deserve credit for the idea correct, not someone else?

Perhaps I would not receive a promotion because it was never implemented and proven to be beneficial to the company, but that does not make stealing an idea ethically fine does it, just because it was not utilized?

Not bothering to explain is just a cop out.


In IP it's essentially about someone lying to society about the source of the idea.

Right here. If I print a copy of Lord of the Rings and sell it, and there is no difference between my copy and the official copy. Then there has been no lying to society Tolkien's name is written on the cover an attributed as the author. Full credit for the idea has been given. In your example full credit for authorship was not given.


I think what he is proposing is to accept it as a premise because it makes intuitive sense, and stop making it so complicated. Really, where do all these ideas about liberty and harm come from? Our intuition, or rather, our conscience. If you want to go really fundamental, why does harm to human beings matter at all?

What was said below about IP ethically being about attribution was pretty close to the mark, in my opinion. It just makes sense for people to have a right to control what they make, physical or otherwise, and to go too far beyond that seems to me to be dangerously over-thinking the issue.


>if you accept the premise that the author of a work is entitled to be remunerated for the production of said work

Then please elaborate why we should accept said premise. You just state it like it's an universal law of the universe. It isn't. No artisan (or actually, no one at all) is entitled to a successful business modell.

And by the way, the "problem" aren't the people who are unwilling to pay for anything (which I am sure you or someone else will cite sooner or later). It's the people expecting to make money with art. It's cool if you can. If you can't, then you're not entitled to laws or monopolies that protect your failed business modell.

>Are you prepared to argue that Ace did Tolkien no harm?

Why should it have? More people were able to read his beautiful works. Are you prepared to argue how that constitutes as harm in the first place?


> [The problem is] the people expecting to make money with art. It's cool if you can. If you can't, then you're not entitled to laws or monopolies that protect your failed business modell.

Agreed that there's no entitlement to laws or monopolies. And I grant you that some ultra-libertarians oppose any restriction on their personal economic freedom, citing moral reasons.

But society sometimes decides, for pragmatic reasons, that it's a sensible bet to grant limited-term monopolies [1], in the hope that over the long term everyone will benefit. We see that in the Writings and Discoveries Clause, article I, section 8, clause 8 of the U.S. Constitution.[2]

EDIT in response to comments: Just what monopolies to grant, and for how long, is of course the $64K question. It's been my observation that this is one of those issues where, for many people, where you stand depends on where you sit (or is it the other way around?)

[1] Technically, "monopoly" is a misnomer when applied IP rights in the general case. In economics, the term refers to someone having a lock on access to goods or services for which there's no 'viable' substitute. See http://en.wikipedia.org/wiki/Monopoly.

[2] http://topics.law.cornell.edu/constitution/articlei#section8


> Technically, "monopoly" is a misnomer when applied to IP

Whatever the technical rectitude of non-monopoly assertions, they really ought to sound fairly shady when one considers the very intent and mechanism of IP: to increase profits of the producer, by raising prices through restricting supply. IP is certainly supposed to quack like a duck.


Its true that copyrights aren't very much like monopolies in the economic sense, but they grew out of the the older, legal meaning of that term. Back In The Day the grown would sell patents granting the owner a monopoly over the production of some good as a way of raising money quickly. This practice has quite thankfully died out as a way of raising revenue, but our current system of assigning exclusive rights to creators grew directly out of it. The Wikipedia article on the Statute of Monopolies is pretty interesting: http://en.wikipedia.org/wiki/Statute_of_Monopolies_1623


I'm not stating that the premise (that the author of a work is entitled to be remunerated for the production) is a universal law of the universe. In fact, I'm not even stating that I agree with the premise. I'm just pointing out that it is an unstated assumption in much of the discussion surrounding IP.

In other words, the account given of the "ethical problems of intellectual property" above is dependent upon one rejecting that premise, and that contrarily, those that accept the premise will find the "ethical objections" to be unpersuasive.

If one is prepared to argue (as you apparently are), that Tolkien had no moral right to the proceeds of the sale of his books, then indeed no harm has been done. If, on the other hand, you accept the premise I elaborated (and which Tolkien explicitly appealed to, in a famous statement), the harm is evident.


"If one is prepared to argue (as you apparently are), that Tolkien had no moral right to the proceeds of the sale of his books [...]"

It is possible to believe that he had the moral right to the proceeds but only on the basis of the copyright policy that existed at the time he wrote the books. This doesn't mean you cannot at the same time argue that such policy should be abolished.

In other words the Tolkien case is a red herring here.


> None of these are ethical problems if you accept the premise that the author of a work is entitled to be remunerated for the production of said work

How do you figure? The problems still exist; you've just decided to de-prioritize them compared to the remuneration entitlement you posit.

Consider this alternative: the author of a work is entitled to be remunerated for anything for which he or she arranges an agreement with someone to remunerate him or her. Period. This would mean it is up to the author to make arrangements for someone to pay him or her when he or she produces something and turns it over to the employer, and that it is then the employer's responsibility to figure out how to make a profit from it by similarly arranging an agreement with someone else (when speaking of a standard employment relationship for authors).

> Are you prepared to argue that Ace did Tolkien no harm?

You're missing the distinction between direct harm on one hand, and unexpected competition for a monopolized market on the other. From a certain perspective, the harm in the second case is not harm caused by the unexpected competitor, but rather harm caused by the monopolist's failure to account for competition in its business model.


This is a strawman, nobody is arguing that people should not be allowed to demand compensation for their work, authors and musicians were able to demand compensation no differently from anyone else before IP came around, the problem is the demand that they should be granted a monopoly and control over the physical property of others, that is what IP is.


There's an economic justification for the current type of IP law in societies that philosophically believe that the free market should be used whenever possible to determine the allocation of resources. It goes like this:

------

It can be shown by the mathematical economics folks that the free market leads to economically optimum results if and only if the goods in the market have certain attributes.

If goods do not have those attributes, the free market does not work with those goods in the sense that it does not lead to a good allocation of resources.

Intellectual goods do not have those attributes. Therefore the free market does not work for intellectual goods.

If we want to have optimal allocation of resources to the production of intellectual goods, we either need some mechanism other than the free market (e.g., patronage, probably by the government) or we need to pretend that intellectual goods DO have the necessary attributes. Our current IP law takes the later approach.

------

Nearly every anti-current-IP-system opinion I've read (including the submitted article and most of the comments here so far) fails to propose how to achieve reasonable allocation of resources using some system other than the current system (except for RMS...he's one of the few who gets it--see below).

At best we usually get suggestions that creators of intellectual goods will find something else to do. For instance, musicians will give concerts, writers will make their living doing contract articles, programmers will provide customization or support, and so on.

Those suggestions are missing the point. When a great novelist is spending time writing articles, he's not writing his next great novel. When a great programmer is handling tech support, he's not writing great programs. Those resources are not being optimally allocated.

RMS has suggested that there be a tax on internet connectivity, with the money going to fund creators of intellectual goods, with distribution of the money based on the cube root of popularity.


People are engaging in activity Y.

Activity Y is not profitable.

How can we control the internet to make Activity Y profitable?

Suggesting folks engaged in Activity Y figure it out is not an acceptable response.

I can't help but feel this is a false dilemma. What about Activity A B and C that aren't profitable? Shouldn't we care about the proliferation and development of all these activities? Furthermore, maybe folks engaging in Activity Y should just evolve and adopt to the modern climate of the digital age. See GNU/Linux.


It's a strawman argument, since there are two components here. First, it's hard to make a living as a writer, perhaps your just not good enough or only appeal to a small part of the population. Secondly your right to get paid for your work. The second part doesn't go away simply because making a living as a writer is hard.


Yes, it does in fact. It isn't society's responsibility to make writing profitable. Just because the internet et al are making it harder to make a living as a writer doesn't mean we have any responsibility to turn around and make it easier.


  It isn't society's responsibility to make writing profitable.
Society rewards everything that benefits itself (at least the society i have agreed to live into). For example it rewards good scientific research because it makes everyone more productive and happier. I believe it has a good reason to make it profitable for writers to write good books too.


Let me amend it to say it isn't _necessarily_ society's responsibility to make writing profitable, and from what I've seen enough good writing gets done without being profitable that the distinction between professional writer and serious amateur writer is no longer meaningful.


If we wanted to help inventors we'd help inventors. If people found a started using a new thing we'd track it back and reward the creator, those who popularized it, teachers, etc. And we'd make education free.

But instead we have a system that, if you pay a large (to individuals) fee, and file a ton of complex paperwork, may be persuaded to give you the monopoly right to sue people who used 'your' idea even if they independently invented it. But you're responsible for hiring lawyers to persuade the court to give you the money we supposedly ruled you have a right to. The court won't help by investigating the issue but can be easily convinced to issue crippling restraining orders, an action more likely to kill the accused witch than prove her innocence. No rewards for inventors, but here's a club and license to use it for extortion.

We could reward inventors, instead we reward lawyers. Specifically lawyers who cheat inventors. Patents, and copyrights, are a huge negative force on society. We need to get rid of them or we'll be eaten alive by groups who did.


It's society's responsibility to enforce the laws, this isn't a discussion about internet per se, it's not excluded from the laws of the society. Other phenomenons are also thriving on the internet like credit card frauds. By your logic this isn't society's responsibility either, we simply have to accept the current state and adapt.


The point is whether such laws should exist or not, not if they should be enforced.

The fact that without such laws some activities are unprofitable is not a reason to keep those laws, unless you think we should ban email to avoid layoffs of post office worker. Or ban Netflix to avoid losing jobs in video rentals.


Absolutely, and this is my point as well. If you read the post I responded to it should be clear I think. That is, if you believe in the theoretical basis of the law, then the internet does not change that fact.


Even if the laws are wrong? And even more "bad" laws are being introduced?


I'm simply taking the discussion back to the topic. A discussion about the theoretical basis of a copyright law.


A tax on internet connectivity to fund creators of intellectual goods sounds like an awful idea to me. Who qualifies as a "creator of intellectual goods"? Do you have to register for that? Can you have another job as well? How is popularity measured, especially where multiple works by the same person are involved? Multiple contributors to the same work, with varying degrees of input? You can assume that the number of "creators of intellectual goods" will be inflated. Is there really going to be enough money from a Internet connectivity tax to supply the living of all the artists who "deserve" it?

It sounds like a nightmare to implement, which means it would almost certainly be implemented horribly. That alone, disregarding any theoretical merits, should rule it out as a viable idea.


That hasn't stopped taxes on CDs, DVDs and even external hardisks in many countries which supposedly then get redistributed to "creators" (ie., the record/film industry cartels).

So yea, it is pretty horrible, like most of the "intellectual property" system (just look at patents..).


Yes, apparently those countries landed on the "implemented horribly" side.


It would not be wise to replace the current IP system with nothing. We need to replace it with something better, more granular, that will use technology to reward based on who uses what IP product and how. Popularity alone is not the ideal criterion, or else we would not have the Picassos or the Frank Gehrys of the world.


I've seen many people say that if RIAA and MPAA keep trying to introduce new censorship laws like that, eventually the "camel's back will break", and people will demand a total overhaul of the copyright system, or perhaps completely eliminate it.

I tend to agree. The more they will push this, the more people will rise up and speak against it, and many people will start questioning if copyright should even exist in the first place. Through their aggressiveness on this issue, they will put the spotlight on it, and I don't think it will end up being in their favor.

I believe the people will eventually win this one, even if in the mean time they manage to introduce one or two more Internet censorship laws.

I like this TED video on this:

http://www.youtube.com/watch?v=7Q25-S7jzgs


See also: http://www.youtube.com/watch?v=zL2FOrx41N0 "Lessons from Fashions Free Culture."


That reminds me on Stallman's very interesting article about the (mis-)use of the term "intellectual property":

http://www.gnu.org/philosophy/not-ipr.html


That's a much less incendiary piece than what I'm used to seeing from Stallman, thanks for posting.


While I agree that our current intellectual property system is doing a great deal of harm (particularly due to it being slanted in favor of monied interests), there is a protect-the-little-guy rationale for some form of copyright.

Let's imagine a world without copyright. Suppose I spend a year writing a novel. This novel is great; it has the capacity to become the #1 bestseller, provided the right marketing is there. I go to my publisher and enter into a contract saying that I'll let them read my manuscript in exchange for them promising not to publish or sell it until we've worked out a deal.

So far so good. Contracts keep me protected in the world without copyright. I give them the manuscript, they love it, and they publish it.

All is well until a huge publishing company notices my book and starts printing and marketing it, without paying me or my publisher a dime. They manage to sell 100 times as many copies as my publisher, because mine is a small, independent operation, and the big company has a sophisticated and well-funded marketing machine.

This is one area where intellectual property laws, if properly designed, would protect smaller entities against larger ones. And that's where I think the real value of (hypothetical) intellectual property laws lies.


> Let's imagine a world without copyright. Suppose I spend a year writing a novel.

You'd know up front this probably isn't a profitable venture because writers would be starving artist types in such a world; novels would be written out of passion, not for income.


Or nobody sells your book at all. You give it away for free on the Internet, and you make money off speaking appearances.


Because that's very realistic (Cory Doctorow aside, and he's a special case).

It's foolish besides--speaking engagements, etc. take away time from actually producing creative works. It's the sort of miss-the-point silliness often espoused by the anti-IP sorts: "spend an incredible amount of time doing X to maybe, if you're lucky, sell a marginal number of Y, where Y is totally unrelated to X."

It's silly and a misallocation of a wtiter's resources to take away from actually writing to hit the speaking circuit.


Well that's not fair, its not simply foolish. He prefaced his comment with "Or" meaning that its a possible business model. I think it would be fantastic to speak to my favorite writers and I know their time is valuable so I would pay to. But I am not stating that it is the perfect path. Though it would be nice if people considered it as a possibility.


It certainly is possible revenue source--once you have a big enough fanbase to support it. Which is probably multiple books and a number of years, during which your effective cash flow from an activity that takes up a staggering amount of time (and benefits others in the meantime) is essentially zero.

It is not, in the general case, very viable. Which is why nobody takes it very seriously as a good path for all, or even most, writers. Because they have to eat, too.


>Which is probably multiple books and a number of years, during which your effective cash flow from an activity that takes up a staggering amount of time (and benefits others in the meantime) is essentially zero.

That's pretty much what most artists go through now, isn't it? I'm not convinced that copyright does a particularly good job of solving that problem. I'm not saying I definitely think copyright should be abolished, but it does at best a very mediocre job of rewarding artists.


I'm not so sure. Given the rise of self-publishing services, once your product is done (or even close to done, I suppose), you can immediately start generating cash flow. If you have some pleasant "free culture" person spreading the book free of charge and against your copyright, you're probably losing some sales. (Obviously not every person who downloads it for free would have bought it otherwise, but c'mon. The number of people in that category is almost definitely not zero.)

It's not going to keep you in gold-plated Maseratis, but it can start to add up.


Yes, but can it pay rent? I guess, my concern is that it may be better to hold down a single, solid, paying job and do art in your spare time than trying to hold down enough art gigs to add up to a job. You end up doing a lot of hard work making ends meet. Making it appear like art is a generally viable career choice might be doing more harm than good in the average case.


It's very easy to say someone else should work for nothing and do additional work to earn money.

Do you have a free-job that consumes most of your time, and a paid-job you fit in around it?


It's sort of difficult to say whether I have a free-job or a paid-job. I certainly do a lot of volunteering.


> Suppose I spend a year writing a novel.

In a world without copyright, why would you even do that? The very concept of "#1 bestseller" would disappear, probably with interesting ramifications for cultural diversity.


How so? If copyright didn't exist, books would come with point of sell contracts(think software EULAs today) that would be much worse than current copyright. Fair use would be a crazy idea invented by RMS at that point.


Intellectual property at least makes a certain sense, since it is something you create yourself out of thin air, and therefore can decide to make available to others under certain conditions if both parties agree. If you don't make it available, nobody suffers, and if you do, you have created value without depriving others, so it is only fair to receive compensation.

Owning land, on the other hand is clearly immoral. You didn't create the land, so how could you own it? Oh, you bought it from someone else. Well they didn't own it either. Someone stole it from the community a long time ago. Owning land is theft exactly because it is a limited resource.


Granting exclusive access to exploit a resource avoids the tragedy of the commons - http://en.wikipedia.org/wiki/Tragedy_of_the_commons

The argument for ownership of land is solid and clear; the argument for intellectual property, less so.


>Intellectual property at least makes a certain sense, since it is something you create yourself out of thin air

That's obviously not true; all works are based on every work the artists has experienced in his life. All art stands on itself, not as isolated works.

If you mean the support in which it is impressed, then it's not true either - the materials are finite just like land.


> Owning land is theft exactly because it is a limited resource.

Would you say the same is true of gold?


you have created value without depriving others, so it is only fair to receive compensation.

How is this fair to everyone else who had the same idea but wasn't as fast or greedy?


Good point - that is why I don't support IP rights for ideas so simple that other people would come up with them independently. This includes many software patents. I do believe in IP rights for creations above a certain level of complexity. For example, no two people would come op with the same novel or symphony independently.


I do believe in IP rights for creations above a certain level of complexity. For example, no two people would come op with the same novel or symphony independently.

Interesting thought. Though, where do you draw the line? I don't want to oversimplify things. But a lack of IP obviously didn't demotivate Mr. Beethoven from writing lots of symphonies.


The quote by John Perry Barlow:

"Royalties are not how most writers or musicians make their living. Musicians by and large make a living with a relationship with an audience that is economically harnessed through performance and ticket sales."

leaves a lot to be desired. OK, so how do writers make their living? By giving live readings? I think not.


The way I earn a living is the same way most musicians earn a living: By working for hire or teaching (consulting).

There are about 10,000 books that make any measurable money at all, at any given time, and only a small fraction of those earn the authors enough to live on. Even famous authors of widely read books often have a "day job."

Books I have co-authored are "pirated," mainly in markets where wages are lower than would support a local edition at local pricing. My publisher does not use DRM on e-books, and e-books still rapidly outpaced paper books.

If you do the thought experiment, lack of copyright protection or a significantly shorter term of copyright, or some other variant, like a publishers' agreement not to trespass on other publishers' author relationships for some term, would not change my direct income from book writing very much.

Publishing would adapt: Books might be serialized so that subscribers get first access on a continuing basis. Or frequent editions (which you might see anyway, with e-books) might become the norm.

Apart from the handful of authors of "blockbusters" the book publishing economy would not change that much. We have made, and are protecting at great expense a novel result: A small number of authors, musicians, motion-picture makers, etc. can make big money through mass-reproduction of their works.

Is that an advancement of civilization worth subverting all the potential for free expression the Internet provides, or not?


What if you wrote fiction?


I vehemently disagree with this statement. I have a few musician friends who now that they're over 40 and their rockstar career is over and they are settled and have family and all that, they are making a living by composing jingles for TV commercials. More than 50% of their income comes from royalties.


> OK, so how do writers make their living?

The glib answer is "most don't", and indeed you will find a lot of writers who have other jobs. Journalists are writers, and the relationship there is fairly clear. PR and marketing materials need writing too.

In short, you make your living by a company renting or commissioning your talents. Musicians had only one other option before recorded music - performing - and even then that wasn't always feasible. Think of classical music and its performance demands.

You joke about live readings, but the ancient poets did just that. They also complained of poverty. People really do suffer for their art.


It's a basic right, if you spend a year writing a book, you are the one who have the rights to sell it and thus make money from your work. Same with software, a GPL license would be worthless without copyright.


>It's a basic right

Right now, it's a right, yes (what exactly does 'basic' mean?). The question is whether it should be.

>Same with software, a GPL license would be worthless without copyright.

The GPL is just an hack, using copyright to achieve a goal. If you were rewriting IP law, you could very well institute copyleft without copyright.


GPL is good, since it's up to the author to chose if he/she want's to license it under the terms of the license. It's the authors role of a copyright owner that makes this possible. Forcing everyone to share their work seems like a bigger violation than copyright. Lastly, a GPL license wouldn't be possible to enforce without copyright, or the concept of a copyright owner.


You wouldn't need to force - you could just give the author the right to demand that or not.

>Lastly, a GPL license wouldn't be possible to enforce without copyright, or the concept of a copyright owner.

Yes for the GPL, no for copyleft. The GPL was simply a mechanism that Stallman et all found to enable copyleft without having the power to rewrite the law.

If you did have the power to rewrite the law - and if you were to eliminate copyright, you would - it'd be perfectly possible to add a 'copyleft right' without relying on copyright.

The problem is that in Common law all those rights are based to the Copyright concept, and that blinds people to assume that must be. Here in Europe, we have 'authorship rights' - such as attribution - and they are not based on copyright; copyright is just one of them. You could take it out without affecting other authorship rights.


You assume it to be, but that's the point of this discussion, it isn't or shouldn't be. If you spend a year doing something no one wants to pay for, you don't have a right to force them to.


Of course, but if no one wants to buy it no one is forced to either.


That's not the point; once released, why should people not be allowed to freely copy and share it? Why do you think you get to control what other people do with information?


It's not only about copying and sharing, but also who has the right to sell and distribute. If you create software, you are copyright owner of that software, which means I can not take it, sell it and take credit for it. I don't think I get to control what other people do with information, but you should have the right to control what others do with your work.


> If you create software, you are copyright owner of that software, which means I can not take it, sell it and take credit for it.

Ug.. it's pointless to state how things currently work in a meta discussion about whether the current method makes sense.

I'm asking you to justify copyright, not explain it. I repeat, why do you think you should get to control what other people do with information?

> I don't think I get to control what other people do with information, but you should have the right to control what others do with your work.

And I say you shouldn't, so justify your belief. You should be able to control yourself, that's it; not the products of your labor when copied. Information is not property, you don't have less of it if I copy it and you should have no say over me copying it regardless of who produced it.


As I said copying is only one part of copyright. If you spend a year in production and spending a large amount of money in the process. You should be the owner of the product, or anyone could just make a copy and sell it at a heavy discount with no associated costs of production.

The interesting thing is that the same argument can in fact be made for property. How can you claim to own something at all? It's related to labor, having spent x amount of time working to buy something.


> If you spend a year in production and spending a large amount of money in the process. You should be the owner of the product, or anyone could just make a copy and sell it at a heavy discount with no associated costs of production.

You're still assuming a world where copyright exists. Are you unable to think outside of those bounds? Do you not see that perhaps you wouldn't even attempt to do this in a world without copyright because you'd know up front you can't make money selling it?

> The interesting thing is that the same argument can in fact be made for property.

No it can't. Property is physical, if I steal your car, you no longer have it. If I copy your novel, you don't even know it happened. Physical property and intellectual property aren't at all the same.

> It's related to labor, having spent x amount of time working to buy something.

No, it really isn't.


You can copy my car if you want, if you steal my novel I don't have it anymore. But seriously, why do you think that physical things costs money at all? Is this an inherent property of something being physical, or is the cost related to salaries payed for processing and production? If everyone worked for free, nothing would cost money. Are you unable to think outside of those bounds? I'm not arguing for this mind you, but the decision to protect property or the notion of property as such, is arbitrary and a human convention at the core.


Still not an argument for why intellectual property should be allowed. Physical property is different, you can try and say it isn't all you want, but you're wrong, it is. I can't copy your car, I can copy your novel in milliseconds; these things are radically different. One deserves to be called property, one doesn't.


Sure you can, first you measure the parts then you manufacture identical parts and assemble a car that is a copy of mine. I wouldn't have any issues with this, but you would violate similar laws and the car manufacturer might sue you if you went on producing and selling that car.

Physical property is not different, your argument is: "it is" (in italic). But just to show you that a similar argument can be made that includes physical property I leave this Rousseau quote here.

"The first man who had fenced in a piece of land, said "This is mine," and found people naïve enough to believe him, that man was the true founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody"


> Sure you can, first you measure the parts then you manufacture identical parts and assemble a car that is a copy of mine.

OK, if you're just going to be ignorant, goodbye.


It's a pretty common cause for law suits actually and is known as reverse-engineering. It touches on exactly what we are talking about here. You seem to believe that the inherent value of something is exclusively associated with the cost of the material, but of course it's not. Let me give you some examples. Dirt doesn't have any value to most people, but if someone creates pottery from it that people deem valuble, then it becomes a commodity that can be sold. The difference between the dirt and the pottery is the labor and the skill of the creator, that is what creates value. Similarly with a book, what creates it's value is not the paper or the ink but the narrative, it's what makes you pick one book over another or even an empty notebook.


You're still being ignorant or you're just really dense, in either case, I have no interest in continuing a conversation with someone who continually almost intentionally misses the point.


I'm providing arguments, all you are able to do at this point is to insult. Pathetic.


You're refusing to acknowledge the difference between intellectual property and physical property, something that everyone, including the law, acknowledges are different. That's not an argument, that's ignorance. As I already said earlier when you pulled this, goodbye.


The idea that it's unfair to take other people's ideas and works and use them as you like without their permission predates the idea of copyright.


That's not an argument.


That's a non sequitur. Copyright does not grant you a living; it grants you the opportunity for one.

Few writers make a living from writing, not because they are denied the opportunity, but because not enough people are willing to pay for it, or even interested in it! The same is true with other artists.


In my mind kickstarter.com is the solution to the intelectual property problem. How can, knowledge workers, for instance musicians, earn money in the 21. century? Simple, charge upfront before publishing.

Imagine a popular band like U2 would ask for the money, they expect from their next album, upfront. I think, their fans, including me, would do what ever it takes to raise that money together. Et voila, you can still become rich as musician without mega concerts or a police state.

I've been talking about this solution with my friends for years. We never made it happen. Now kickstarter.com is here. But I'm still waiting for a large adaptation in industries like music or software and video games. Is it just a question of time and promotion or am I'm overlooking something important?

PS: I posted this a few seconds ago at http://news.ycombinator.com/item?id=2723374 but then realized it would fit better here.


That does sound like an interesting model. Producers would, I suppose, initially have to establish their reputations by releasing things for free. The dynamics of choosing prices would be completely different, more like selling equity.

One thing that would worry me: a lot of people would have to be involved in getting a piece to a point where it could be sold. How would it be protected while all these people are looking at it and working on it?

Also, if you work out one of these deals with a publisher, and transmit it over the Internet, are you legally protected against people stealing it en route?


That does sound like an interesting model. Producers would, I suppose, initially have to establish their reputations by releasing things for free.

Yes.

One thing that would worry me: a lot of people would have to be involved in getting a piece to a point where it could be sold. How would it be protected while all these people are looking at it and working on it?

Based on trust, just like today. How is this different from how music, books, games etc. are produced now?

Also, if you work out one of these deals with a publisher, and transmit it over the Internet, are you legally protected against people stealing it en route?

Not sure if you got me. No publisher required. Its direct b2c. Just like kickstarter.com works today. I'm only missing the "big fish".

And no one could "steal" it. Once its published its published. Free like any information thats published into our world today. A free license like BSD would be appropriate.


> Based on trust, just like today. How is this different from how music, books, games etc. are produced now?

Currently, if someone violates your trust, by releasing their own version of a song you wrote, for example, you can sue them. It's not clear to me that this would be the case in a copyright-free world. You would have to explicitly have to make a contract with everyone who ever comes in contact with your work before it's ready. That would be tiresome, at best.

And it doesn't cover people who steal/stumble across pieces of it in progress. There is no way I would not be working on something before it was paid for. Before I even put an idea up for funding, I would have notes and such. If someone takes these and makes a derivative work, I get to prosecute them for... stealing paper, because I'm not allowed to claim the information content of the paper as my own.

Artists not skilled in secrecy are going to be in serious trouble.

> Not sure if you got me. No publisher required. Its direct b2c. Just like kickstarter.com works today. I'm only missing the "big fish"

No, I didn't quite understand that model. So if there is any large-scale physical production, say printing books or burning CD's, that will be handled by third parties and the artist won't have anything to do with it? And people who want the physical form will have to pay two parties?

One problem you'll run into is that everyone benefits equally no matter how much they put in, including those who didn't put anything in. That sorta sucks for anyone who put in a lot, who then watch those who didn't help at all benefit from their money. You're essentially relying on charity, and that's a worrisome business model.

I wonder if the reliance on idealism would have a positive effect on the quality of work produced.

I need to think about this more. And I should probably give Kickstarter a try for one of my own projects.


No, I didn't quite understand that model. So if there is any large-scale physical production, say printing books or burning CD's, that will be handled by third parties and the artist won't have anything to do with it? And people who want the physical form will have to pay two parties?

Whats wrong about paying two parties? Actually, most people would never pay the first party, because the work is already released. And the profit margin for the second party (publisher) would be small at best. First, because there will be a lot of competition and second because information delivery is almost free today.

Why burn CD's in 2011? Download the mp3's and play them wherever you want. Since I have a Kindle, I don't really want printed books anymore either. I also printed a lot of free books at the local copy shop in the past.

The problem with trust, I believe is not a bigger one than it is today. It should actually be smaller. Where is the problem if I paid someone over kickstarter.com to do XYZ and then XYZ gets published by some bad guy earlier than planed?


Here's the rest of that letter from Thomas Jefferson. http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.... It's interesting to realize that even such a fierce supporter of personal rights in our country didn't recognize ideas as something that should be "protected" like personal property.


Actually, "protecting" ideas as if they were property is in direct opposition to personal rights, so this should be expected.

It's weird how "intellectual property" somehow got associated with personal liberty, the free market etc., when in fact it totally goes against those ideas.


Well, I've heard that in Britain, IP is considered an inherent right just like personal property. If I own the result of my own physical labor, why wouldn't I own the result of intellectual labor as well?


Because if you physically make something and it's taken from you, you no longer have it. Information can't be taken from you - granted, a medium on which it's stored could be, but again, that would be a physical, not an intellectual loss. You can't be deprived of the knowledge that allowed you to create the item in the first place.

Unless, of course, somebody else is granted the intellectual property rights to it.


But that's not quite the argument.

If I compose a poem or a play, and contract with a publisher to publish said poem and pay me a portion of the proceeds (or contract with a theater company to perform the play, and similarly pay me a portion of the proceeds), and some third party takes the poem/play and publishes/performs it without paying me, I have, in fact, been deprived of something, i.e., income.

And, if my reading of history is not mistaken, it is precisely from this use case that the notion of intellectual property (in the initial form of copyright) takes its foundation.


>And, if my reading of history is not mistaken

It is. Copyright is and always was designed for distributors, not authors. It's nothing more than a myth - or rather, industry propaganda - that copyright was invented by authors. Here's a nice round-up of the entire history of copyright:

http://questioncopyright.org/promise


Even the forced slant in that "round-up" doesn't really serve to justify the conclusion in its last sentence. There is also no coherent argument that a dubious origin necessarily implies the lack of useful premise.

The Internet and personal computing technology indeed add "roll-your-own" options to publishing and completing a work that did not exist beforehand. But, at this point, they certainly have not replaced the need for the (sometimes creative) work done to support the work of authors. Things like: editing, typesetting, music production, video post-processing etc.

What happens when the publishing model is dead? Look at poetry. Poets still write, and some of it is decent. However, big publishers won't touch a poetry book that isn't a classic or a guaranteed sale anthology. Smaller imprints will usually only bother if the book has won a prize. In a number of cases authors pay a reading fee to enter contests, and the fee pays for the publishing of the book in a near break even scenario. In the case where poems are published on the internet, there's a small but arguable respectable audience, however there's no money changing hands whatsoever. Poets have second jobs, I know some who just gave up, who went into finance and law. I'll grant that lack of market is more of an issue as copying in this case, but publishers can help make markets. It should be easy to see how the effects are related. That is to say:

What's the difference between a bitcoin and a poem? You can buy food with a bitcoin.

Not everyone wants to be a sustenance farmer for a living.


First: a third party is not bound by the contract. And if the contract cannot validly or practically secure you income, you cannot very well be said to be losing anything.

Second: the big question is: why should we make the form of such a contract a general rule/law? Just assuming it is a matter of contract is just assuming away the interesting question.


Interesting you chose the word 'deprived' instead of the more typical 'stole'. I think it's hard to justify stealing when only a copy was copied. So then 'deprived of income' in the sense of withheld income. Who is doing the withholding, and why do you think you're entitled to what they're withholding? And how much? (While the third party didn't have to write your work, they nevertheless would have to do a lot of work themselves to make a profit from it.)

Here's an economic quote but I don't remember the source: "Profit is not determined by how much value you create, it is determined by how much of that value you can capture." Edit: Ah, looks like it's an Eliezer quote not from an economics text.


(While the third party didn't have to write your work, they nevertheless would have to do a lot of work themselves to make a profit from it.)

This is both bad and wrong. I will attempt to explain why for each.

It is bad on the level that it creates an exchange of sweat of the brow work with originality. That is to say if I copied someone else's book in the more laborious way, I'm more allowed to copy it and make profit. As Justice O'Connor said in Feist, "The sine qua non of copyright is originality." Hard work does not equal good or useful work-- ask Sisyphus.

It is wrong for two reasons. The first is that roll-your-own publishing options are available to an author, and all someone would have to do to make a profit is copy your book from lulu, blurb or whatever ebook publisher you use and post it again with a lower price. The second is that, even if republishing was its own difficult endeavor, the gain a copycat has is simply waiting for success. A publisher who spends money on editing, typesetting, marketing and binding must print a number of books before turning a profit. A copycat publisher can simply wait until it appears a book will be successful before undercutting. This is a drastic reduction in cost and income risk, and it's definitely unfair.


My mother is an excellent actress, yet inferior actresses get cast more frequently. Should we make that illegal?

Unfairness is not reason enough to justify copyright.


In the example I offered, the economics are no mystery, but if it helps you to put numbers in the picture, let's go for it.

Suppose I write a book of sonnets. I negotiate with a publisher whereby he has the exclusive right to print, distribute, and sell said book of sonnets for a period of five years, and I will be paid $1 per copy sold. The book proves popular, and a pirate publisher produces, distributes, and sells an identical edition, but fails to pay me the $1 per copy sold.

In this case, I am being deprived of the income (by the pirate publisher) to the tune of $1 per copy that they have sold during the period in question.

Clear?


You are being deprived of something you never had. If someone says they'll gift me a car, and then they don't, have they stole from me? No, because I never had the car in the first place.

And who's to say you are being deprived of such income? For all you know, you could have received the exact same amount even if the pirate publisher had never sold it - maybe he did all the marketing work that enabled those sales.

More: for all you know, maybe the marketing work that the pirate went through has helped sell more of your publisher's copies that it would had the pirate never copied it at all.

It's simply impossible to tell if you were deprived of any 'potential income' or not.


Not really. Why is it $1? Suppose you make a contract with one publisher who will pay you $1 per copy sold and also negotiate with a different publisher who will pay you $2 per copy sold. How much are you deprived then, $1.50? $2? You're assuming that every copy the pirate sold could have been sold by your current publisher(s) but wasn't.


Because I stipulated that the contract was exclusive and time-limited. In other words, the assumption that every copy the pirate sold would have been sold by my current publisher is accurate-- hence the simplicity of the hypothetical.


> Because I stipulated that the contract was exclusive and time-limited

And why should you have the right to control that?


The artifacts produced from intellectual labor can often not be taken from an individual, but through copying potential income can. 'Intellectual property' is a concept invented by people to protect themselves against such loss of income.

Currently, most people who care cling to two extremes: one group sees intellectual property as physical property, and think 'theft' should be punished as physical property theft. The other group thinks that 'intellectual property' is imaginary, because the cost of copying is near-zero and copying does not take away information from the original owner.

Obviously, the first extreme is completely unacceptable. Suppose (for the sake of the argument) that someone invented a copier tomorrow that could copy any physical object. That would be a tremendous win for humanity. However, the 'intellectual property'-crowd would come in and insist that people pay nearly the same price for the copy as the original (as happens today with books, movies, and music). On the other hand, there should be some financial incentive to produce intellectual artifacts.


You do. No-one can take it away from you, except by destroying all copies and mindwiping you. Owning something doesn't mean you get to control copies of that something.


I think "intellectual property" is an excellent example to use when distinguishing between free markets and capitalism. Free markets and IP are opposed for the same reasons that free markets are opposed to any other government granted monopoly. But IP laws extend the reach of capitalism into places that might be outside it without legal assistance.


Yes, intellectual property is completely contrary to free markets and personal liberty, in its essence is a system of government-granted and government-enforced monopolies, and how anyone can think that is compatible with liberty economic or personal boggles the mind.


This is a great example of a common pattern with Jefferson:

He articulates a strong position of principle, offering arguments that none have successfully countered and that, frankly, I'm not sure anyone can reasonably counter. Next, he says ". . . but a couple of people I know disagree with this, so I'll just give in." It's maddening. It is as if MLK had finished his "I have a dream!" speech with the words ". . . but I guess if society regards black people as inferior, I'm probably wrong."


What do you expect from a man who advocated for liberty, yet kept hundreds of slaves to maintain his way of life? He lacked the courage of his convictions.


This is well demonstrated in the Louisiana purchase - Jefferson believed he didn't have the constitutional authority to make it happen, but went through with it against that judgement because he figured the ends justified the means (in this instance, at least).


He didn't think there was a natural right to ideas. He didn't say that they shouldn't be protected--just that whether to do so or not was up to society which could weigh the benefits vs. the harms.


Personally, I believe the concept of natural rights is nonsense, but for someone who does believing in them, supporting IP is contradictory because it violates such rights.

If I own a music CD, a blank CD and a computer, it's a violation of my property rights to stop me from copying using the latter to copy the CDs, or from distributing such copies.


I don't agree. Punching someone would be a protected right because, after all, it's my fist, I can do whatever I want with it.


No, because it would violate the other person's natural right. Copying a CD wouldn't, since copyright isn't a natural right.


Property underpins our ability to survive. All wealth is ultimately a product of the mind (whether it's writing a novel, or finding some oil and knowing how to use it), so as a general rule if a man cannot control the produce of his mind, he can't expect to survive. I see intellectual property as pretty fundamental to any society that respects individual rights.


Given that (1) most people are or are becoming "authors" now that the tools to create and distribute have become much more distributed then ever before; that (2) the way copyright works at the moment is to reward only popularity, not original creativity; that (3) for any author obscurity is a much larger problem then infringement ever could be; that (4) creativity may not need encouragement as becomes obvious seeing how much is intentionally produced to be widely distributed for free (open source, creative commons, youtube, etc)?; that (5) only a very tiny percentage of authors will ever get "rich" of their work.

So perhaps we need to look at another solution?

An unconditional basic income for all would support authors/artists/anyone exactly at the moment they need it to do their work. It will not make anyone rich, but it will enable works that can't be created at the moment (because the artist needs to do other work instead). When an author does become populair they will not have been forced into an unfavorable contract with a publisher when they where broke, working poor.

An unconditional basic income would enable people to be creative, it would pay just enough so that money isn't an issue anymore. This would be more effective way to promote the arts and sciences then copyright in its current form.


Your idea sounds a bit like Milton Friedman's negative income tax.


A "right to sue" could be considered property if you squinted hard enough, but of course when people talk about intellectual property they're talking about "UNIX" or Windows or the Mac OS look and feel, not the legal mechanisms themselves.


Yes, juridically, the word "property" in "intellectual property" actually does refer to the rights, not to the immaterial entities governed by those rights. "Intellectual property rights" is just tautological.


Thank you, it always seemed to me that it would make sense if it was supposed to be that way, but I didn't realize that that was the actual law.


What if patents granted tax benefits instead of granting a monopoly? Would this work?


easiest way for a government to bag some money is to liberalize to the private by means of copyrights. but what it does it slowly slaving it self to the private. one fine day the private will own the public completely and even copyright the constitution. so no other country can have its right to have rights.. pathetic system.




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