* there is a finite amount of land that costs a certain amount to police
* landowners pay property taxes to cover these kind of costs to society, and land which they don't pay taxes on reverts to the state
* there is a registry of land ownership so it's easy to tell who owns a particular piece of land
* common land is at huge risk of a literal tragedy of the commons, historically through things like overgrazing (the original justification for enclosures - which absolutely were controversial at the time and did need to be empirically justified). In modern times, if one person builds a building on a piece of land another person can't. That's simply not the case for "intellectual property".
That would solve the orphaned works issue- an orphaned work would quickly return to the public domain after falling behind on tax.
It'd also give creators of non-orphaned work the impetus to let go of their copyright.
And it might be possible to scale the tax by some factor that would give 'Big Content' a bigger incentive to let go, while levying a nominal cost on individuals that would function more as a tripwire for orphaned works than a financial burden.
That way if it's not valuable to them they will let it go instead of hoarding it all forever.
I guess I should be explicit. My fear is that states will race to the bottom and charge $0.0001 per page per year which will lead to aggregation of perpetual copyright into the hands of copyright trolls.
I am sorry but why does Mickey Mouse deserve perpetual protection under copyright? Why does Disney get to write our copyright laws and dictate foreign policy so much?
Why does your grandfather's farm deserve perpetual protections as he hands it down over generations? Or put another way, why does anyone else deserve any rights over Mickey Mouse when Disney is the one that created him?
The go-to for people who oppose a moral basis for copyright is the ease of copying intangible versus physical goods, but to me it's a nonsense argument. The ease of copying goes to the enforceability of any monopoly on a thing--it does not go to determining the justification for granting a monopoly on a thing to begin with.
Ownership of physical property is natural because physical property is inherently rivalrous and excludable — if you take my hammer, I can't use it, and thus I need to keep my hammer in my shed if I want to have access to it when I need it. Ownership makes natural sense there. It's essential to security.
Ideas are not the same way. Any number of people can think an idea, and in fact an idea becomes just as much a part of everyone who thinks it as the first person who thought it, and you literally can't take an idea back once you have shared it. Ideas are not just easy to copy, they aren't even entities that need copying. The mind is constantly taking in and assimilating ideas and creating its own.
I'm not actually against copyright. I think there is a sound moral basis for it, in that otherwise an increasing number of people wouldn't be able to enjoy the fruits of their labor. I just don't think there is a moral justification for the tortured concept of eternal copyright. Eventually, any successful idea will become so diffused throughout society that it's just an utter farce to pretend it is not part of the commons.
If nothing else, infinitely decreasing the number of ideas that may be legally had is so harmful to society that it outweighs any good that could possibly come from it. In other words, even if we say "Sure, let's pretend treating ideas as property is a natural fit," the Lockean Proviso warns us against allowing them to remain property forever.
> Ownership of physical property is natural because physical property is inherently rivalrous and excludable
While that's one philosophical justification for property, we've had property long before anyone coined the phrases "rivalrous" or "excludable" and it has been justified for reasons that have nothing to do with those economic concepts: http://en.wikipedia.org/wiki/Labor_theory_of_property. Going back further, see Psalm 128:2 ("For thou shalt eat the labour of thine hands: happy shalt thou be, and it shall be well with thee.")
Ideas are just inherently unlike physical property on a very fundamental level. If my neighbor lends me his hammer, I can give it back. If my neighbor lends me an idea, it never left him, but I still can't ever rid myself of it.
No matter how much I care about content creators being compensated fairly — and I do, both for philosophical and selfish reasons — it is a farce to pretend an idea that exists in everyone's heads and originated in none of them is the exclusive property of one person. It is simply unnatural in a way that physical property isn't.
I created Harry Potter, not J.K. Rowlings? My labor in reading the novels is equal to her labor in writing them?
I think that argument falls flat particularly with copyright because there is no copyright liability in the face of independent creation. Copyright doesn't prevent anyone from owning their original ideas, even if other people independently think of the same idea.
So with that hammer you build products that you might sell and I might want to buy with my money that I got from selling my idea. But if you 'take' my idea I will have to get a new hammer just the same. There are infinitely many hammers as there are infinitely many ideas, but getting new one takes nontrivial amount of effort for both cases. The fact that one is tangible is in my opinion an arbitrary property for the purpose of this discussion.
Copyrights and patents were created specifically for the purpose of recouping development costs that are otherwise non-recoverable by the more obvious laws of microeconomics.
You're not just comparing apples and oranges. You're comparing actual apples to poems that rhyme the word orange.
The reason others are owed rights is that copyright, as with patents, is a contract between the state and the creator/inventor. Part of the deal is that creators get copyright protection in return for the eventual entry of the work in to the public domain - they pay off the demos with that promise.
State doesn't owe creators of works protection naturally. If creators want to not have a limited right to exclusive use they should be allowed to give that up and then the state should exclude itself from any actions against people who copy that work.
To recapitulate: if you don't want to 'buy' copyright protection with eventual movement of your work in to the public domain then you can instead have that work freely copyable - without tort - based on the ability of anyone who sees/uses it. Without ready movement of works in to the public domain the public are being ripped off, the contract is broken and the public then should consider those works copyable without the possibility of a claim of tort.
They are. All someone has to do is include in it a statement to the effect of 'I waive my copyright interest in this work and hereby donate it to the public domain.' There is no bar on voluntary placement of work into the public domain; it just doesn't happen that often because when publishers write checks to authors they're purchasing the right to exploit the work commercially. Authors could grant publishers limited licenses to do so and then stipulate that the work would fall into the public domain after a certain date, but that would result in lowered payments from publishers, plus it creates an incentive for the publisher to under-market the work or even withhold it from sale, and then publish it once it enters the public domain without paying anything in royalties.
There are some publishers that make good money of just republishing historical works, even without exclusivity. Some people want a good-quality facsimile of an old book. Dover paperbacks springs to mind.
Perpetuities ultimately end up with contending claims. Adjudicating those is tremendously expensive.
Emphasis mine. Is a copyright term that is asymptotically approaching infinity actually "limited"?
The Supreme Court ruled[1] (correctly, I think) that it's up to Congress to decide what "limited" means, and as long as any copyright bill they pass has some limit on the term, it's Constitutional.
Don't like it? Vote for a different Congress. It's not the Court's job to say Congress can't decide how it wants to balance a tradeoff when lawmakers are explicitly empowered to do so.
There is no possible argument not involving time travel by which we get more works created through retroactive copyright extension of already existing works.
He's since commented that he should have tried the promotion clause instead. That post-creation copyright extension fails that test.
Until someone tries that, we won't know.
Honestly, I think he should have tried the "to the creators" phrase, as well: post transfer extensions of copyright no longer held by the original creator creates a new protection that never goes to the creators, and therefore not only fails to serve the purpose of the promotion clause, but isn't even within the scope of the means by which Congress is authorized to serve those purposes.
(Of course, considering this argument alone doesn't stop indefinite extensions, its just means that works transferred before the extension would not be eligible for the extension. But if you include all transfers in that, including by inheritance, your only left with, at most, originally-corporate copyrights that have never been transferred, since the original term of modern personal copyrights already is longer than the life of the original owner.)
I don't see the precedent changing or a constitutional amendment happening, so really the only way forward is to get enough of a copyright reform caucus in Congress to stop the madness, forestall future extensions, and let works start finally start falling into the public domain again. I also don't see a direct path forward to unwinding the ratchet and shortening copyright terms or requiring renewals. What we really need to do next, in the USA at least, is fight future extensions and do something about orphan works.
I suspect that particular counter is readily debunked by looking at the amount of money made by huge middleman industries (publishers, record labels, movie studios, etc.) compared to the original artists (authors, editors, musicians, producers, actors, directors, etc.). In particular, how many artists ultimately receive very low compensation for their efforts relative to the proven actual value of the work they create?
Then the marketing/distribution engines have to start justifying their existence based on additional value generated for the original creators of the work. However, it seems likely that any such justification would also support a model where the original creators retain the fundamental rights, and instead only a short-term exclusive licence can be granted to a distributor, who can then renegotiate with the artist to renew their exclusive licence a year or two later (presumably if and only if the distributor still thinks the work is worth promoting and the creators still think they're getting a fair deal).
You'd need some sort of collective licensing arrangement so that one make-up artist or background musician who worked on your blockbuster film couldn't screw up the whole distribution chain by withholding consent, but again that could probably be addressed by tying any decision-making authority to the original artists with some sort of quorum requirement and some sort of up-front agreement on the distribution of any future returns.
There's a tremendous amount of pricing and negotiating strength which comes from power imbalances that are misrepresented as market forces. Pitching these as "the market decides" both takes guilt and fault out of the equation and masks what's actually going on. It's a matter which Adam Smith was aware of and spoke of at length -- much of Wealth of Nations concerns these relationships and much of the rest of it is mis-read to studiously ignore this fact.
I agree with you that short-term contracts (a year, possibly two) should be the limit of what can be struck with an author or artist. Another is for mechanical licenses (the spoiler effect -- another element Smith considers).
¹ See Against Intellectual Property (2008)
No, he doesn't. He says the focus should be on scarcity because if it's on creation, and if it's applied in a consistent and non-arbitrary way, life becomes impossible, as "as every conceivable use of property, every single action, would be bound to infringe upon one of the millions of past, accreted IP rights."
He actually has almost six pages explaining the problem with the creation-based IP rights, so saying that he "simply asserts" is just incorrect.
His scarcity argument is itself flawed: he focuses on the fact that copies of an intangible good are not scarce, and glosses over the fact the originals definitely are.
That's because the scarcity of the originals is irrelevant to whether the copies should be considered property, any more than it makes me the owner of the light that comes from my light bulb.
The scarcity of the originals is only relevant vis-a-vis the use of the originals.
Can you elaborate on your perceived moral similarity between intellectual property and physical property and their infringement?
You're not going to be popular regardless, but it'll help us have a more useful discussion at least.
But that's not the idea in the Constitution. Instead, the Constitutional purpose of Copyright to "promote progress in science and the useful arts". The only thing in the Constitution that implicitly touches on increasing the public domain is the limitation on means to protection of exclusive rights with limited terms.
You're splitting hairs, and not adding to the conversation, but I'll correct my statement: If the general, constitutionally-enshrined idea is to romote progress in science and the useful arts, hen don't we have an implied obligation to figure out what term actually does increase the progress in science and the useful arts?
The theory is that, by allowing them to profit by sale of the creation, it encourages creation -- particularly creation of things that are unique and suitable for sale (which is, again in theory, a proxy for "useful"), thereby, without or without separate "disclosure" of the form present in patents, promotes progress in science and the useful arts.
The idea that attaching that making something property that someone can profit from (whether for a limited time or not) was a means of promoting development of that class of thing was fairly prominent at the time the Constitution was written, and extremely influential on the understanding of all kinds of property (not just "intellectual property") rights and their purpose in society around the time the Constitution was being written. (Its even more central in modern libertarian thought.)
Note that I think that disclosure is important, and that for IP the restriction to limited terms (and actual, real, substantive limits, such as the Congress seems to have abandoned for copyrights) are practically important for best promoting progress in science and the useful arts -- increasing the scope of the public domain is, I believe, in practice very important to achieving the Constitutional purpose of IP. But increasing the public domain is itself not the explicit Constitutional purpose, its just an important means to that purpose.
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
If congress is not maximizing the progress, it is not doing its job right. And right now copyright rights are suffocating.
The Constitution permits Congress to use IP with limited terms as a means to promote progress in "Science and useful Arts", it does not obligate Congress to maximize that progress.
There's a decent moral argument, I suppose, that Congress ought to maximize the ratio (presuming these were really quantifiable in a clear and meaningful way) between that progress and the what society sacrifices to provide exclusive rights to creators, but that's not the same as maximizing progress on its own.
Copyrighted material is the ultimate example of "You didn't build that." That's why it's a temporary bargain with the public domain, and not an entitlement.
Compare what a real estate developer does to what a Disney-esque media conglomerate does. The developer buys the land and constructs buildings for customers who are entitled to exactly what's in the contract, nothing more or less. I have no problem with that. Nobody took anything that wasn't legally theirs (at least not recently). If you lease the building, nobody is going to alter the contract after the fact to extend the lease for 70 more years, or kick you out before the agreed-upon term is up.
Disney, on the other hand, appropriates stories and ideas from our shared culture and erects legal walls around them. They didn't build jack shit, they just slapped on a fresh coat of paint and a stout padlock. They're cultural squatters with their own cadre of Congressmen.
As for creating land--the majority of land came into private ownership in the U.S. via one of two means: 1) granted to wealthy people by European kings; or 2) annexed by the sweat of the brow (i.e. clearing a patch of wilderness and farming it). Those acts were sufficient to morally justify a perpetual property right, passed down from generation to generation. In a way, authors do something very similar to (2). Every sequence of bits is already out there in the aether--authors do the hard work of cultivating a particular sequence of bits into something valuable. It's no different than putting in work to bring land out of the wilderness into civilized use.
The constitution does not pretend that intellectual property is the same as real property and for good reason. For some reason I don't see anyone who says they are equivalent also saying that copyright holders should also pay property taxes on copyrighted works like they do their house. So even the proponents of this, realize that intellectual property is different than real property.
These giant corporations that are bribing (er I mean lobbying) politicians to extend copyright to infinite terms are destroying our cultural heritage for short term profit.
He/She was asserting it as the moral equivalent. Taking someone's land involves deprivation, passive copying of a book etc doesn't imply that in all/most cases.
In all other cases, someone is getting some use out of the land, and in general allowing anyone else to use the same land would impair that use. (In some special cases, there are again laws on the matter: in most US states it is illegal to hunt on others' private property, but only if the owner posted a sign or applied specially colored paint. If not, since the hunting would likely have minimal impact on rural property, it is allowed.) Perhaps, according to someone's standard, the owner is making inefficient or wasteful use of the land; perhaps they have barely changed it from its natural state, while a developer would like to add it to their adjoining property full of valuable businesses or whatnot. But this is subjective, and doesn't change the fact that the 'better' uses would deprive the current owner of something - depending on the owner's sentimental attachment to the land, potentially something subjectively irreplaceable.
I do not have enough knowledge to directly argue in favor of capitalism. There are plenty of theories under which to posit that the current owner should be deprived anyway in the interest of the common good. But at least it is clear that our current system has certain significant benefits.
To take the argument to its obvious conclusion, for copyrighted works, the public domain would at most deprive someone of money they could potentially be making, which is hardly the same thing. Meanwhile, it would allow many different people to enjoy passive use of, or build interesting things on, the same property without getting in each other's way. The flipside is of course the standard justification for copyright: the prospect of that money encourages people to be creative, and getting that money allows them to make a living through creativity. But this does not mean copyright has to last forever. (It also doesn't inherently imply copyright should a right of exclusive control; in the special case of radio broadcasts of songs, making it purely a mandatory royalty, open to all by law, seems to have worked out pretty well. And then you get to fair use, but of course there are far more detailed arguments to be found there.)
But you know all that. In another post, you said:
> While that's one philosophical justification for property, we've had property long before anyone coined the phrases "rivalrous" or "excludable" and it has been justified for reasons that have nothing to do with those economic concepts: http://en.wikipedia.org/wiki/Labor_theory_of_property. Going back further, see Psalm 128:2 ("For thou shalt eat the labour of thine hands: happy shalt thou be, and it shall be well with thee.")
For one thing, I don't think coining the phrases "rivalrous" or "excludable" means much. If you're making a theory of property, where property is defined as actual physical objects or land, you don't need to make up terms to describe what obviously applies to all property; it's only when you start calling data property that you have to distinguish it from the rest. Any older philosophical argument in favor of property, regardless of whether it explicitly addresses the matter, was written, and should be read, with some broad ideas in mind that do not apply to data. This certainly applies to the Psalm you cited.
But actually, Locke makes it quite explicit - right near the beginning of the chapter "Of Property" in his Second Treatise on Civil Government:
And tho' all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.
This is just stating the concept of "rivalrous" without using the word! And it clearly does not apply to intellectual property at all; when a basic premise of his argument is voided, we should be hesitant to apply his conclusions.
edit: There is also the matter that as eager as philosophy is to be concluded from first principles, in general I think empiricism is superior. (And don't confuse 'common wisdom' which at least somewhat reflects centuries of empiricism with first principles.) Capitalism has its moral arguments, communism has its moral arguments, and neither are necessarily wrong; in my drastically oversimplified view, in practice it seems like pure communism doesn't work out very well, but socialist economics tries to satisfy some of the moral precepts of both in a more achievable way. But we haven't had centuries of empiricism when it comes to intellectual property - not that long a history of protection nearly as strong as today, and certainly not of the fundamentally new practical properties of digital intellectual works.
Your language betrays your assumptions. You're trying to argue for the property of intellectual works by assuming it, which is obviously circular.
As for the communal property, you're missing the point. I don't dispute her ownership because it "belongs to everyone". I dispute the concept of ownership over non-scarce things like the shape/smell/color/etc of a abstract loaf of bread.
It's not that she doesn't own it, it's that the very idea of ownership doesn't apply.
Ultimately what I'm saying is that it seems very, very easy to admit an actual need to encroach on land rights (precisely due to land's actual utility and scarcity), whereas the need for copying a book (particularly books of mere entertainment value) falls into "nice to have" at best. The justification for copying books for entertainment must always be much stronger than the justification for encroaching items that have actual utility (land, food).
With respect to Hen, you either admit sweat equity or you do not. If you admit sweat equity, you must admit you will have ultimately to admit the existence of intellectual property.
[1] Which is a controversial issue, but a separate one.