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The end of copyright

Page history last edited by Justin Spratt 12 years, 10 months ago


One of the chief areas of conflict on the Internet is the enforcement of copyright.  The enforcement of copyright in the United States is a power granted to the federal government [6] which was originally for a term of 14 years [3], which has now ballooned to where creations made within our lifetimes will remain in copyrighted until well after are dead.  In addition to the lengthening of the terms of copyright, further extensions of copyright law see it creeping into every facet of our digital lives (see [4] and [5] for an overview).  The Digital Millennium Copyright Act (DMCA), a law created by the World Intellectual Property Organization (WIPO), criminalizes the use of technology that is used for the seemingly legitimate act of backing up one's DVD collection and many other uses of technology for duplicating media deemed to be "protected."  These and other laws have made it nearly impossible to live in a digitized age without constantly breaking the law, and because of this many organizations such as the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have used the legal power gained with the passage of these laws to prosecute their own customers by threatening to sue and then settling out of court [14].


     In this paper, I will introduce the concept of intellectual property and show how one form of intellectual property, copyright, is being illegitimately being called property.


An overview of intellectual property

Intellectual property is arguably so ambiguous a term that using it is more harmful than helpful.  I have heard Richard Stallman, the founder of the Free Software Foundation and father of the GNU (copyright-free) operating system known as Linux, discuss the problem at a presentation he gave at the University of British Columbia.  Intellectual property, in terms of our modern laws, is broken into four very distinct and easy to understand groups: copyrights, patents, trade secrets, and trademarks [1].  When collectivized into 'intellectual property,' it becomes confusing: a patent has as much to do with a trademark as it has to do with a benchmark.


     Copyrights are given to authors of original works.  Only the expression of the work is protected, not the underlying idea.  For example, a book may be protected with copyright, but the ideas in the book are not. Contrary to popular belief, copyrights come into existence when a work is created, not when a copyright is applied for or granted [2].  As noted earlier, the term of protection is now 70 years past the death of the author, or 95 years when an employer owns the copyright [2].  For example, if a 21-year-old writes an article and dies at age 80, the article will remain under the protection of copyright for 129 years.  Copyright terms grew in the US in 1831, 1909, 1962, and 1998.  They have never been reduced.  Although the aim of copyrights and patents, according to the US Constitution, are to "promote the progress of science and useful arts" [6], most copyright law changes have been made retroactive (as if these new laws could promote the progress of science and useful arts in the past):


Figure 1 (See [5])


     I would argue that copyright terms are effectively unlimited, since there is no limit on how long they can be extended by congress.  Next time the industry may want to expand the term of copyright to 100 years after the death of the author, and there is nothing to stop them.  This, combined with the proliferation of the internet, has resulted in the effective criminalization of everyone on the internet.  Have you ever downloaded a YouTube clip or just watched one with an unlicensed use of a song from a band?  Have you ever played copyrighted music in public?  These and many other everyday occurrences likely break US federal law.  In Three Felonies a Day: How the Feds Target the Innocent, Harvey A. Silverglate shows how the proliferation of laws incriminate all of us, leaving it up to chance (or the intentional targeting by someone) to determine who goes to jail, rather than the Rule of Law.


     Patents govern the right to copy devices and implement processes that perform a useful function, although they have been used to patent such things as a Santa Clause-Shaped Christmas tree stand [2].  Patent protection is limited by a term after the date of filing (of the four types of intellectual property, only patents require filing), currently 20 years.  The disadvantage with patent protection is that the patentable details are released to the public upon filing, giving potential competitors a guarantee of being able to use the patented technology after the patent expires.  The details on how the ingenious Santa Clause-Shaped Christmas tree stand is shaped are known to the public, so after the patent expires (in 2011), the rest of the public will be able to make such tree stands as pictured below:



Figure 2 (see http://www.freepatentsonline.com/4993176.pdf for more ingenious details and information about prior art in the field of Christmas tree watering inventions)


     Trade secrets are devices or information which give their owners a market advantage while the secrets remain confidential.  Trade secrets have advantages over patents in that they obviously do not require releasing details to the public, they have no term length, and they do not require a filing.  Trade secrets have the disadvantage in that if another party discovers the secret without stealing it, no legal protection is offered.  Coca-Cola is protected by trade secret: the formula is secret, but if you discover it, you will be able to legally produce as much Coke as you want.


     Trademark protection is essentially an anti-fraud mechanism designed to prevent confusion and deception in the market.  Prior use is what determines the right to trademark, although trademark registration is a possibility for additional enforcement.  Often, trademarks do not cross industries: for example, if someone had trademarked "fast-click" for a computer mouse, the same "fast-click" could probably be used on a light switch made by a different company.


     Of these four types of intellectual property, I am only concerned in this paper with the laws governing the first two types: copyrights and patents.


Information is not ownable

Since the opponents of my opinions on this matter will argue that dissolving intellectual property rights would be a violation of property rights in general, we must ask where property rights come from in the first place.  I believe that property rights come from the right to life: since property is required to sustain life (one must have shelter, food, security, and the means of production), property rights are necessary for life.  Since we live in a world of limited resources which have alternative uses (that is, they could be used in various ways), the protection of property is, in a way, equivalent to the protection of life.  What would property rights benefit us in a world of unlimited resources?  Nothing at all, since there would be no competition for resources.  In the digital age, computers have made information replication trivial to the point where information is essentially an unlimited resource.  The machines used to replicate the information still legitimately fall within the realm of property: my computer is my computer (no one can trivially make a copy of it), but the information stored and transmitted by machines are the property of no one: I cannot claim that I own what I write in the same way that I can own my computer.  This introduces the concept of ownability: physical things are ownable because they are scarce; non-physical things are not ownable because they are not scarce.  In short, information is not ownable.


     When we analyze what the various intellectual property-related crimes are called, we see how the fallacy of thinking of information as property has become pervasive.  Copying information is termed "piracy" and "theft."  If something was stolen, one would expect that someone, the victim, would lack what was stolen.  Yet we find that the victim lacks nothing; all his belongings are intact.  He is merely upset that someone else has used a device to copy information.  It is evident, then, that intellectual property rights are nothing more than rights to restrict what one set of people may do with their own property, whereas real property rights are restrictions on what one set of people can do with another set's property.


     The arguments that the content industry makes for retaining and expanding copyright law are always framed in such a way to generate mass appeal.  In making these arguments, the industry makes many economic fallacies, the chief of which is the "save the X industry" fallacy: piracy, the act of creating unauthorized copies of information, is blamed for "economic losses."  The evidence presented is simply that, for example, some of the music industry's profits have turned to losses.  The ordinary citizen is made to feel that this will hamper the overall economy, not realizing that money that isn't spent in one industry is spent in another or invested (and very rarely is it simply stuffed under a mattress) [9].  With this in mind, the chief argument of the content industries becomes, "money is being spent elsewhere that we would like to have spent on us."  Who would want anything different for their own industry?  While there would be a restructuring of the economy after the abolition of copyright, it is not true that an overall reduction in the economy would take place.


     Patent law, similar to copyright law, is similarly flawed in its assumptions about property.  When someone figures out how to do something for the first time, patent law advocates suggest that the discoverer should have exclusive rights to the discovered process.  For the sake of practicality, these rights are given for only an arbitrary length of time.  Once again, since processes are not scarce, engaging in them does not necessarily create conflict over real property.  The right to make a copy of a device or to replicate a process is not ownable (because it is not scarce and therefore cannot be property).  In the end, the only argument from the pro-patent side is an economic one, that is, to "promote the progress of science and useful arts."  It seems reasonable on the surface to assume that granting a monopoly to an individual would encourage more individuals to innovate, the overall effect on society is to shift resources into developing technologies which will be most profitable over the (currently 20 year) patent term and away from technology which would likely be valuable for much longer terms.  Not only are resources shifted away from long-term innovation (which are arguably better for society), the overall amount of innovation has not been shown to increase from patents, and in some cases it has been shown to decrease (for an example in software development see [15]).  Intellectual property lawyer and libertarian legal theorist Stephan Kinsella, in all the economically-focused patent law studies he has reviewed, has not found a single one supporting patents but has found many which suggest that the costs of the system outweigh the benefits or that they reduce innovation (or are inconclusive) [16].


     In the end, the two justifications for keeping our current laws (or expanding them) are baseless: first, the proponents of IP intrusiveness are wrong in the moral sense when they claim that what is intellectual (information) can be property; and second, they are wrong in the utilitarian sense when they claim that IP law is beneficial to the economy.  Since these two central arguments fail upon examination, it is only logical to do away with the encumbering, incriminating, and inhibiting laws regarding copyrights and patents, which violate private property rights and misallocate resources in the economy.


The beginning of the end

Any law that cannot be enforced is effectively no law at all.  The Internet is essentially the worlds biggest photocopier, allowing the easy and instant replication of information across the globe, proliferating documents far and wide.  Unfortunately, it has been received with fear from the establishment of content creators, who, using their legal clout, have influenced the laws in their favour and have hampered the freeing effect of the Internet from spreading to many forms of media.


     The Canadian government has realized the folly of attempting to control all of the transmission of information on the Internet.  As a result, it is now legal to download copyrighted music in Canada [7] [8], although copyright laws still (confusingly) remain in effect.  Contrary to claims of the content industries, empirical evidence shows that the production of content does not cease or even sharply decline when copyright becomes effectively void.  In one sense, this empirical evidence should be enough to conclude that we can be assured of new content in a post-copyright world, however, it is valuable to see why this is the case.  Before record companies existed (to take advantage of lengthening copyright terms), live performance dominated the income streams of artists.  Recording artists now (as in times past) rely on live performance and merchandise for the majority of their income [10] [11] [12].


     Notable economist and author of The Machinery of Freedom, David Friedman explained his predictions for copyright at a presentation in March 2010: regardless of whether copyright is good or bad, it will soon disappear due to unenforceability because of the internet.  There has been one important step taken toward this final end: the rise of alternative licencses to the default copyright.  The Creative Commons (CC) license is one prominent example, pioneered by Larry Lessig.  The CC license has six common different sub-licenses by mixing requirements of attribution (attribution must be given), share alike (the same license must be kept with the work), no derivatives (no copies may be made), and non-commercial (no commercial use can be made) [5].  In the realm of software, the General Public License (GPL) enables the re-use and modification of software freely, as long as it remains under the GPL.



While copyright laws should be changed, I do not advocate very much action on the individual level.  I don't think that protests against current intellectual property laws will be very effective.  In short, we don't need to actively "end" copyright; I titled this paper "The end of copyright" and not "End copyright" for a reason.  My message is simply this: in the relationship between the Internet and intellectual property rights, the former will win out over the latter--and this is a good thing because copyrights and patents are both immoral and counterproductive in the economy.


     My own personal research is leading me into development of secure communication mediums which will facilitate dark nets (truly anonymous and secure networks for sharing information).  But even out on the open web, people flauntingly violate IP law with no reprisal (e.g., YouTube videos of countless news broadcasts are available.  Just type in "CNN" to get samples).  Over time business models will change to accept the reality of the state of copyright law: it is fast becoming, without activism, effectively no law at all.


This paper is copyright-free.




[1]  Intellectual property. (2010, April 15). In Wikipedia, The Free Encyclopedia. Retrieved April 16, 2010, from http://en.wikipedia.org/w/index.php?title=Intellectual_property&oldid=356160726


[2] Kinsella, S. N. (2001). Against Intellectual Property. Journal of Libertarian Studies, 15 (2). http://mises.org/books/against.pdf


[3] Founders’ Copyright. (2010, April 15). In Creative Commons. Retrieved 05:06, April 16, 2010, from http://creativecommons.org/projects/founderscopyright


[4] Copyright infringement. (2010, April 11). In Wikipedia, The Free Encyclopedia. Retrieved April 16, 2010, from http://en.wikipedia.org/w/index.php?title=Copyright_infringement&oldid=355291115


[5] History of copyright law. (2010, April 16). In Wikipedia, The Free Encyclopedia. Retrieved April 15, 2010, from http://en.wikipedia.org/w/index.php?title=History_of_copyright_law&oldid=356412179


[6] Article I, Section 8, Clause 8, United States Constitution


[7] CBC News In Depth: Downloading music. (May 1, 2006). In CBC News. Retrieved April 16, 2010, from http://www.cbc.ca/news/background/internet/downloading_music.html


[8] Your Interview: Michael Geist. (April 7, 2008). In CBC News. Retrieved April 16, 2010, from http://www.cbc.ca/news/yourinterview/2008/04/michael_geist.html


[9] Hazlitt, Henry (1946). Economics in One Lesson, chapter 14. Retrieved April 16, 2010, from http://www.fee.org/pdf/books/Economics_in_one_lesson.pdf


[10] John Seabrook, Annals of Entertainment, “The Price of the Ticket,” The New Yorker, August 10, 2009, p. 34


[11] Music industry. (2010, April 14). In Wikipedia, The Free Encyclopedia. Retrieved April 15, 2010, from http://en.wikipedia.org/w/index.php?title=Music_industry&oldid=356065853


[12] U.K. Study Claims Live Beats Recorded Music Revenue. In Billboard.biz. Retrieved April 15, 2010, from http://www.billboard.biz/bbbiz/content_display/industry/e3i01058b4cfb43337689f20e6ac490df3a


[13] Creative Commons. (2010, April 15). In Wikipedia, The Free Encyclopedia. Retrieved April 16, 2010, from http://en.wikipedia.org/w/index.php?title=Creative_Commons&oldid=356235958


[14] Trade group efforts against file sharing. (2010, April 19). In Wikipedia, The Free Encyclopedia. Retrieved, April 19, 2010, from http://en.wikipedia.org/w/index.php?title=Trade_group_efforts_against_file_sharing&oldid=356906693


[15] Dapp, M.M. and Bernauer, T. and Zurich, ETH (2008, December). Hot debate about chilling effects: do software patents hamper free/open source software development. Center for Comparative and International Studies 40. Retrieved, April 19, 2010, from http://www.ib.ethz.ch/docs/OpenSourceDaBe.pdf


[16] Intellectual Property and Libertarianism [Video]. (2009). Retrieved April 19, 2010, from http://www.youtube.com/watch?v=GZgLJkj6m0A


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Intellectual property. (2010, April 15). In Wikipedia, The Free Encyclopedia. Retrieved 05:06, April 16, 2010, from http://en.wikipedia.org/w/index.php?title=Intellectual_property&oldid=356160726

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