Copyright and Intellectual Property

Why it is in your very own interest to pay for intellectual property

INTELLECTUAL PROPERTY

Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.  […] What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values: these laws protect the mind’s contribution in its purest form: the origination of an idea.

Ayn Rand, Capitalism: The Unknown Ideal

 

The German word for “property” (literally “sitting-at”) comes from the verb “sitting.” The origin of the word lies in the fact that in former times, land ownership was acquired by actually living and working on the piece of land in question. An example in the modern world would be the colonization of America, when the government granted land ownership with the “Homestead Act” to those who had been living and working on the land in question for five years.

Copyright: Copyright is a temporary monopoly right to a monopoly for the benefit of the creator of a work.

While I hope to have made clear to you in the previous chapter the practical argument for the need for a copyright for the creation of a book, there are others who understand the value of ideas but still copy media. They rationalize this behavior by arguing against the very concept of intellectual property. In this case, we encounter predominantly the argument that (only) physical violence and, for this reason, copyright (which ultimately must be enforced by the government) is immoral: “Everything goes as long as nobody is hurt.” In this chapter, we will examine more closely how we can counter such an argument.

A World without Intellectual Property

Imagine a world without intellectual property. Imagine an artist who puts all her lifeblood into a project. Another company gets hold of a copy and markets the project professionally. The artist receives nothing and sees her life achievement warped and destroyed. Other artists are discouraged and ultimately the general public notices that, in the end, the lack of protection hurts them as well. Cases are litigated in court, and some artists even resort to vigilante justice. After a while, a court rules that an artist deserves compensation and needs to grant permission before their work is copied: this is basically the origin of copyright.

The point is that even if copyright did not exist, sooner or later something like a copyright would be developed because the creators ultimately sit at the longer end of the lever: Without them, the novel, piece of music, film, or painting would not exist. There is no power in the world which could force people to be creative. They have to want it; there needs to be a trade of similar value available.

Of course, there are theories about how intellectual property can still be protected in a society without copyright laws. Two parties can form a contract making it illegal for one party to talk about, write about, or copy a certain thing. But that is notcentralized protection. Whoever looks over your shoulder and copies your novel has not formed a contract with you and cannot be sued. The same applies to a burglar who could be tried for burglary but could still legally sell the copied data. While we can encrypt such data, this merely increases the time and energy required for the theft; at some point, the data has to be decrypted to be read by a third party.

Another approach is to start out with the assumption that the product is being copied freely after publication and to search for investors not after but in advance of the publication. That is the goal of the alternative, so-called “crowd-funding” model. There, interested people pledge a donation in advance and then profit from special options, e.g., from a free ebook or a personal meeting with the author. The disadvantage of this approach is that one cannot let the market “test” the product. Every participant has to know the value of the product prior to or at the time of publication.1

Of course, in the case of “crowd-funding” or other payment models without copyright, the “compensation” of the creator is reduced to the financial component. All the other points mentioned above concerning intellectual property rights would be void. The creator would no longer retain the right to take action against the corruption or misrepresentation of his product. This is especially relevant in fields where profit is not the main reason for a work’s creation: Think of private pictures, diaries, or any statements which could be modified in any way. Without copyright, rumors and lies would become an acceptable form of social interaction.

Finally, the quality of our material and intellectual products has reached such a high level that many can exist on their own. Many people can use smartphones, books, television, etc. without special training. These things are designed for immediate consumption or use. Due to copyright infringements, we are unfortunately currently moving in the opposite direction, whereby more and more companies are giving up on creating worthwhile products that can stand on their own merits. Instead, they try to bind the customer to the company.

The price of “free media” is that you are chained to a company by technological means (e.g., digital rights management), psychological manipulation (advertisement), or by services that are no longer part of the product (e.g., consulting, training, or speaking events). You are only really free when you are the last element in the chain of industry–the consumer. Removing copyright means replacing the publisher with another organization to create the relationships to bring together readers and authors. Ultimately, it means that you replace the money-based economy with an economy based on relationships. Here, you would have to invest time and energy yourself to become part of and develop a network of readers and authors. The price is still there, it just has to be paid with different means.

To summarize, a lack of copyright protection reduces the power that media like books can have. Without copyright protection, a book can no longer stand on its own, but rather its existence is limited by the services offered alongside the book.

Implementation of a Copyright

Because of this missing content protection, it was decided that the abstract content itself should be protected, rather than the paper on which it is written. At the same time, creative work is judged to be unique and thus we have to assume that identical works could only arise through being copied. Law enforcement is simply missing the technology to be able to prove theft of intellectual property concretely. We cannot look into people’s heads and trace every memory. Instead, we assign a temporary monopoly to each creative work. In addition, we establish a lower creative limit so that the mere discovery of an idea is not sufficient (e.g., you cannot register a patent on a natural law). It is not possible to give a clear statement of where exactly we draw this line; thus, there inevitably will be patent cases which are accepted or rejected arbitrarily.

Effective protection of intellectual property must be bound to the contents of and not to the thing itself.

The only open question concerning copyright remains why the copyright does not terminate with the death of the author. This question can be answered quickly: A book project is an investment, and money has to be spent before its publication. What investor would be interested in a book written by someone who is near the end of his life? Thus, to extend copyright to survive death is in the interest of everyone. The voice of an ill or dying person has just as much value as that of a healthy person; value depends on the content, not the health of the author. On the other hand, when we quote from publications, their contents thus become more widely recognized cultural knowledge. For this reason, to limit copyright to, say, 50 to 70 years makes sense, and anything beyond that timeframe would amount to a form of censorship.

Selected Arguments of Opponents

Studies have shown that those who favor the abolishment of copyright are often fans who, for example, support their favorite musical groups financially by attending live concerts.2 Their argument is that they discovered their favorite bands only because their music was freely available on the Internet. They are supported by a number of bands who espouse the same viewpoint and suggest that people should be allowed to copy their albums freely. Left-leaning libertarianism is a political view with the central idea that property should be administered by society in a decentralized manner, while anarchism / anarcho-capitalism simply seeks to have no (central) administration.

Another frequently cited argument is that copying an immaterial product could not be theft, or that it would be immoral to prevent someone by force from illegally copying intellectual property. Unfortunately, this view is not only popular among people who simply seek to justify their own actions, but also among intellectuals, especially anarchists, and left-leaning libertarians.3

In the following, we will look at both arguments more closely. The philosophical argument is particularly of interest as it directly touches on the system of values discussed in this book series.

Practical Arguments

One argument is that artists supposedly would profit from the abolishment of copyright. But even if you were to find examples in which the revenue of, say, a musical group has increased because they provided their products for free on the Internet, it does not follow that this would apply to all other bands as well. And even if it did apply, this option is available even with copyright law intact. The protection of intellectual property is always optional. Fewer options on the side of the producer cannot lead to higher revenue.

The fact that some creators, for example, music bands, have spoken out against the protection of their own products is not really an argument because the biggest share of the income goes to the publisher (the labels) and not the band. While the publisher earns money only by actually selling albums, the band can profit from any form of publicity because the fame, the worth, of its name increases.

Another point which is usually ignored in an argument is that a market, where copyright is effectively implemented, looks very different. In such a market, producers have to compete using demos, trailers, sample chapters, or sample works. A free copy for you to get the idea what the product is about would almost always be available.

Another common error is not taking into account the many changes in the entertainment industry during the past 30 years. In times past, only a few movies could be produced, whereas today, an enormous array of movies are available. They are all competing for the same limited resource–the time of the consumer. This is most visible in the tendency to use an existing brand name (e.g., a movie title) instead of betting on something new: the costs to build up a brand name have significantly increased because of the competition. Without copyright, if there is not enough money from investors for the initial “hype,” most people would buy copies from third parties at a lower price while the creators received no compensation.

Yet another argument applies to those few authors and musicians who reached a certain level of fame at which they can earn a living mostly from shows, readings, or speeches. The argument states that these people do not need protection of their intellectual property. But the condition here is that the creative mind behind the music and the actual performer are one and the same person or group. These one-man shows are hardly ever reality, as almost always it is a group effort.

But even if an artist is able to directly market his products by creating himself as the trademark, what would prevent other people from copying that trademark (the logo, brand name, appearance, etc.) and pose as the artist? Without this protection, the only advantage of the artist over marketing companies and resellers of intellectual property is that the artist is the first person who offered his specific services to others. Because of this, even without copyright, there would be production companies, but their profits would be limited to the short time span between publication and shortly after that. A book or piece of software can quickly be copied and sold in a store for half price.

Philosophical Arguments

The primary difference between intellectual and “ordinary” property is that ideas are non-corporeal. For example, intellectual property is copyable, and others could come up with the same idea on their own. But this difference alone does not mean that these different types of property should also be treated differently. Both types of property involve an underlying concept, namely, the recognition of the creator’s power over his product. If we do not recognize this power also in terms of property rights, they might exercise their rights for their future products: the creator will go on “strike.”4

There is no deeper concept in anarchism or libertarianism (in the following sections, I am referring to both when speaking about libertarianism) out of which anything like intellectual property could emerge. Actions are evaluated only by theirmeans. Any given action is permissible as long as nobody initiates physical force. You create something, and someone else takes it without permission: physical force. You create a story, and someone else copies it without permission: no physical force. In a libertarian society, intellectual property is protected only by individual contracts, not centrally by the state.

Libertarianism attempts to use a political argument (“initiation of force is immoral”) in the more fundamental realm of ethics. Your rights to your own property supposedly should be sacrificed in order to minimize possible rights violations by the state. This is a fallacy of the stolen concept. You cannot use a more specialized concept (“non-aggression principle”) against a more general concept (“private property”). For example, we cannot argue that we should not go outside simply because we might end up in an accident, as the loss of the possible benefits you might encounter outside of your home outweighs the possible dangers. Likewise, you cannot argue against your right to self-defense in order to protect your assailant.

The problem with the libertarian argument is that it is a purely technical argument. That the government protects corporeal but not non-corporeal property is just circumstance and could conceivably change in the future. Where do we draw the line? What about a government which simply does not have the means to solve murder cases, for example? What about ourgovernment, which can solve these crimes but occasionally convicts an innocent citizen?

Due to technical limitations, the government can only in the rarest cases figure out how certain ideas originated. This is the reason that, in reality, it can implement the principle of intellectual property only inadequately in the form of copyright law. But the same applies to all principles. If we take the non-initiation of force to be the overarching principle, we also would have to argue against courts and government in general because false judgments may occur.5

The only two consistent positions in regard to the criticism of intellectual property are either the complete opposition to property rights and the state or simply the critique of the implementation of the intellectual property rights.

Thus, the protection of intellectual property does not necessarily require a copyright. If the necessary technology existed, the government simply would have to trace the origins of the creation of a product. Then it could be clearly judged whether it was a new, but identical creation, or a copy of something existing. Thus, any criticism of intellectual property can be reduced to criticism of its practical implementation. You could only argue that violating intellectual property rights would in principle not be as bad as the consequences of the implementation of copyright.

If we summarize the opposing arguments, it gives a view of the foundation of their philosophy: it is a form of perfectionism or passivity. They prefer a world of apparent “moral purity,” i.e., a system in which you can supposedly claim that you have never supported an “unjust” decision as opposed to supporting a world in which people can actually live. In addition, they see every minor violation as a kind of original sin. This is the “slippery slope” fallacy: Just because the government violates the rights of one person does not mean that a full-blown dictatorship will result. In this, you move toward an intellectual passivity as you begin to condemn any part of society indiscriminately at any time, instead of weighing up the positive and negative sides. Then, nothing society produces seems to be of any value.6 If we have placed our personal happiness in life as our highest value and set the pursuit of happiness as our goal, why should we not just exercise this power and acquire all of the property of humanity for ourselves?

The Perfect Crime

Finally, and for further reflection, I present an example that is closely related to the human ideal promoted in this book series7

We all have preferences for different authors, musicians, scientists, etc. and in discussions we sometimes encounter the question of which figure we would like to spend an afternoon with. How much would it be worth to us to read or listen to one last great album, book, etc. by this person?

Looking at it from the other side, imagine a situation in which your favorite artist lives in the neighborhood. He has all his originals there and only occasionally lends them to museums. You can view all the works there for a fee which he invests in the creation of new works. As an egotistical person, you could now think about breaking into his house and stealing all his works to be able to enjoy them for free on a daily basis. Assuming that you would never be caught for the burglary, why would you not want to do this?

We can even extend this example. Assume that (however we managed it) we became king of the world and now have access to the property of all of humanity.8

Of course, it is true that at the moment of the theft, we would really be like a king. But afterward, we would suddenly face a new reality. The act itself has changed the conditions of the market: we have sent all creators the message that their long-term investments are no longer worth it. So we have traded exactly that which we value the most for a short-term feeling of contentment. All of our heroes would stop producing. It is the same narrative that you will find throughout this book series, the conflict between short-term and long-term thinking. It is like a drug whose effect soon becomes its opposite and which distorts our judgment about the world. The best life possible cannot be found in the quantities you amass, but in the long-term quality of your life.

Another point of view is that each of our purchases is like a vote how future products should look like. When we finance a product, we signal not only to the creator, but to all the participants of the market place that such a product is valued and future investments might be worthwhile for them. If we steal, we achieve exactly the opposite–we proclaim that we do not value the product in question. The market will then move to another direction and the world more and more contradicts our values. The simplest example would be street musicians. Only those will return who are paid. If you do not pay for a piece of music you like, the musician will be replaced by someone who is liked by a paying passerby. Conversely, if you pay for a piece of music only out of courtesy, you will be hearing more songs that you do not like.

The best possible life is a life lived without regrets. The only thing that all the riches in the world cannot buy is the ability to turn back the clock. Even if we could freely help ourselves to any of the products of present artists, we still would subvert our ideal future. We cannot support our heroes retroactively. We need to support the products of their mind in the present with a copyright.

SUMMARY

To summarize, here are our most important arguments:

    • Intellectual property:

Must be bound to the contents and not the thing itself in order to exclude uninvolved third parties from a contract.

  • Without copyright protection: Reduction of the value of media, chaining the customer to services offered alongside the media.
  • Practical argument: Artists would profit from the abolishment of copyright—only valid if the artist and producer are one and the same person or group and are sufficiently famous.
  • Libertarian argument: Copyright cannot be implemented without an initiation of force by government; for this reason, the idea and the protection of intellectual property is immoral in libertarianism.
  • Counter-argument: Intellectual property is like any other property; every type of property is created through exerting one’s mind. The fact that the government has technical difficulties in protecting it without the initiation of force is not an argument for dismissing this protection entirely.
  • Two consistent positions: Complete opposition to property rights and the state or critique of the implementation of intellectual property rights.
  • Basic concept of the opponents of copyright: Demand for perfectionism, an all-or-nothing attitude, no assessment of the advantages of central protection of products of the mind.
  • The perfect crime: Unlawful copying is harmful to the actual, ideal world, even if nobody is directly harmed.

1. If the author is already well known, this is less of a problem, as a market for his work already exists. This is also a reason movie sequels became so popular—the brand name is already recognized.]
2. [See http://liberalesinstitut.wordpress.com/2013/12/27/piraten-sind-die-grosten-fans/]
3. [This is basically the story of Atlas Shrugged.]
4. [To be fair, it should be noted here, that anarcho-capitalists actually argue in this fashion.]
5. [This encapsulation with a concurrent idea of moral purity is an essential part of a cult. We will discuss the psychological foundation and background in the fourth book of the series (see the fourth book of the series “Philosophy for Heroes”).]
6. [We will discuss this more in the fifth book of the series (see the fifth book of the series “Philosophy for Heroes”): we should strive for the best possible life and should not be satisfied with less. By this, it is not necessarily meant that we should amass material possessions. Instead of a life of opulence, we should strive for a life of high quality: a harmonious life, a life with the highest possible long-term value.]
7. [Which is similar to the Internet, in which you have access to copies of most intellectual property.]

2017-07-27T08:20:28+00:00

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