Tuesday, November 10, 2009

Arguments against arguments against intellectual property

The recent article "Modern Day Protectionism" by Vedad Krehic speaks against patents and copyrights. As a group we previously talked about IP and seemed to agree that patents are unjustified. I still strongly favor copyrights*, though, and would like to present some brief responses to the arguments against IP. These aren't fully developed, but perhaps we could address this issue again at a future meeting if others are interested in the subject.

*By copyright I do not mean that a government agency would enforce copyrights. I mean that the artist has a natural right and rule over his IP.
Also, I am not interested in the utilitarian/"practical" argument that copyrights limit creative output, since that assertion is secondary to the moral argument.

1. The author indicates that taking a jacket without paying for it would be theft. However, he says that copying a CD of music is not theft, because the original CD still exists and still belongs to its owner. But this does not make sense to me, because a new copy of the property has been introduced:
Each jacket can only be worn and enjoyed by one person at one time. A jacket owner may sell his copy of the jacket, but then he can no longer wear that copy. Similarly, an individual could rightfully sell his copy of the CD, but then he would no longer be able to enjoy that CD. Now, if two people want the jacket, then the second person has to buy a copy of the jacket and pay its creator. The creator has now been paid to make two copies of the jacket. So if a second person wants to enjoy the CD, then the creator of the CD should get paid for two copies of that CD.
The author says, "If I walk into a store and leave with a jacket for which I have not paid then I have deprived the store's owner of his or her justly acquired, tangible property. They have one less jacket. They are directly harmed by my action."
Likewise, if you copy a CD, the creator has been deprived of one less copy to sell. Someone is getting value from the creator's work without paying the creator. The creator is directly harmed.

1a. Copying art seems to me to be like inflation of the money supply. Only one copy really exists for which the creator has been paid (only one ounce of gold really exists), but we proceed as though all the copies of that value have been accounted for (as though each federal reserve note actually represents something).
The author says, "The original CD is still my friend's property. I return it to him, and while he is no better or worse off than he was before, I am now better off." This sounds exactly like fractional reserve banking: you still have your original dollar, but now I have an extra dollar, too! Well, no, you don't. You've created false "value" out of nothing and proceeded as though no-one is harmed.

2. Those against copyrights often focus on tangible property. They seem to suggest that the value of the CD is in tangible property of the CD itself. But the value is in the sounds of the music. Note that no-one pays a premium for blank CDs or for books that say "alsjksl;jdfasklfjsak." Rather, what they are paying for is the music or the particular arrangement of words and ideas in the book. Many libertarians seem to not acknowledge that property other than physical property is a valid concept.

3. Many libertarians say that it is admissible to make private contracts about not copying art, but that that contract can't extend to a third party. For example, the author says, "It is possible that I could, for example, have made an agreement or contract with [my friend] when I borrowed the disc stating that I cannot copy it. If I were to do it anyway, I'd be in violation of a private agreement."
I see a discrepancy here. Either non-tangible things (music, text) can be property or they cannot. If they can be property, property rights apply. If they cannot be property-- as libertarians often seem to suggest when they focus on the physical plastic CD rather than on the music-- then this concession about private contracts doesn't hold because there would be no real property about which to make a contract. It would be an invalid contract because there would be no real property. So which is it? Either IP is property and is subjected to property rights (as I assert), or IP is not property and therefore you can't make private contracts about something that doesn't exist.


  1. Why copyright & not patents? Where do you draw the line?

    If I buy the jacket instead of stealing it, the store owner is not harmed. If I then, using my master seamstress skills, duplicate the jacket for a friend am I violating the designer's property rights? If I am allowed to do this, why can't I duplicate music or paintings? If I'm not allowed to do this, why?

    If I'm not going to buy a copy of a cd, but a friend burns me a copy because he wants me to listen to it, how is the musician harmed? The fact that one additional person heard his music could mean he is better off.

    FRB - "Only one ounce of gold"
    Unless fraudulent statements are made, no one is claiming two ounces of gold exist in FRB. When questioned on this even Walter Block was unable to defend this view.

    If the value is in listening to the CD, and both my friend & I have now listened, then we have not "created false 'value' out of nothing".

    Are we allowed to let others listen to a CD we've purchased or should the other person have to pay for that received value?

    If someone writes a book with a tax planning idea, should anyone who uses that copyrighted idea have to pay a royalty to use it?

  2. Yeah, I used to be stuck on this idea, too, but now firmly reject all IP as "valid" property. Mine is more of a utilitarian solution, but it's ultimately how I reconciled the problem. Slippery Pencil also raises some very serious objections to the principle of "copypright".

  3. "Likewise, if you copy a CD, the creator has been deprived of one less copy to sell."

    (Only if you assume perfectly inelastic demand for music albums, which is total nonsense.)

    There are many albums that I'd pay for, maybe a few bucks. But I won't bay $18 for any of them. When I copy a CD, I know with 100% certainty that the artist is not losing any incremental revenue (but yours here is also kind of utilitarian argument).

  4. Some thoughts:

    - I do not support patents because two people could independently arrive at the same invention. Both people have done the necessary mental work of creating the idea and/or the item, so neither should have a legal monopoly over the rights to produce that object. This contrasts with books, songs, etc. Only one person has created that arrangement of letters. (On the incredibly rare chance that both people independently composed the same symphony, both would hold some kind of copyright. I haven't figured out exactly how that would work, though.)

    - Making a jacket using the one you bought as a template is giving me trouble. Offhand I would say it is not a violation, or at least not as bad of a violation of the designer's rights, as photocopying a painting would be. The distinction is that to make a jacket you at least had to put in some of your own work. I'll have to think more about this though.

    If your friend copies the CD and you listen to it, you are getting value (music) from the producer, but you have not given the producer value (money) in return. He is harmed because you benefit without offering him a trade.

    - FRB - I have already agreed that it is not legal fraud based on the technical definition of fraud, but it is still an attempt to defraud reality. Even if no-one directly says two ounces of gold are really there, they proceed as though two ounces really do exist.

    - Borrowing a CD would be okay, just as borrowing a jacket would be okay, because only one person is enjoying it at a time. A new copy has not actually been introduced. I will have to think more on instances of multiple people listening to the same CD at the same time. The Randians arbitrarily decided on a group of 4 as the maximum number, but I'm not satisfied with that.

    - Ideas in a tax preparation book cannot (as far as I know) and should not be copyrighted; the arrangement/presentation of those ideas should be. You may use the ideas-- that's why you bought the book. You can't copy how the author described those ideas, though. Putting the ideas in your own words and publishing that would be fine.

  5. DZ, I read your article and do not follow your line of thought because I do not understand why a third party (publisher) needs to be introduced. To me the simplest form of the IP transaction would be from creator to individual purchaser. The two would have to agree on a price for the work.
    If there were no third-party, the creator could set up the same sort of system of pre-orders, but I still don't see how this solves the issue of what the purchasers are allowed to do with the copies that were produced.

    "But in any event, the fact that an album or a book became a huge blockbuster should give some sort of credibility to the author or songwriter in the future, which would likely manifest itself in greater demand for subsequent books or albums."
    Why would anyone pay for those subsequent books or albums if they were able to get the first books or albums for free?

    I'm also not sure what you mean by inelastic demand. The point I was trying to make is that if your friend buys the CD and you also want it, and your friend copies it for you rather than you buying it from the producer, then you have deprived the producer of profiting from that copy. You got freely the CD that you otherwise could have obtained only by purchasing it from the producer.

    "There are many albums that I'd pay for, maybe a few bucks. But I won't bay $18 for any of them. When I copy a CD, I know with 100% certainty that the artist is not losing any incremental revenue (but yours here is also kind of utilitarian argument)."
    I wasn't familiar with the term "incremental revenue" so I will proceed with the definition I found online: revenue that does not yet exist but is anticipated due to anticipated sales. To you, the CD was worth a few dollars, but the producer was only willing to sell it for $18. He would rather not sell it than sell it for $3. However, since you got a copy without paying him $18, you have robbed him. Both parties did not agree to the trade, but you still took from him what you wanted. If you aren't willing to pay what he asks for it, then you do not have a right to it. Likewise, if he is not willing to sell below $18, he'll have to face the fact that some people won't want to pay that much and will not buy it at all. But in those two instances, no transaction takes place, so there is no moral problem. The problem is when one party in the transaction gets the value without providing the agreed upon corresponding value to the other party.

  6. This is probably a moot point, but let me just clarify something. I seemed to have gotten ahead of myself when I said, "If the value is in listening to the CD, and both my friend & I have now listened . . . ." I was specifically thinking about listening to it with my friend (at his place, in his car, etc.), but because of the way it was written you understood it, as I think most readers would, to mean the burned copy of the CD. I got more to the point in my next paragraph and you stated you would think more on that.

    In addition to listening to it with my friend, or the arbitrarily Randian limit of 4, I was also thinking about it being played over a p.a. system (restaurant, bar, retail store). If the company buys the cd, are they allowed to play it in the airspace of their business establishment?

    An additional item to consider regarding "where to draw the line", "arrangement of letters", and "same symphony". Do they have to be exactly the same? The Satriani / Coldplay suit is an example. If Beethoven composed his 5th in the 1960s, could he sue ELO in the 70s for copyright infringement? Satriani lost the suit, but I bet most IP proponents think Beethoven should be able to seek damages even though ELO only used similar concepts and not the actual identical notes and arrangement.

    I emailed your blog post to the author of the LRC article. He said he made a mental note to respond. Not sure he'll do so, but I'll let you know if he does.

  7. As the first email pasted below indicates, Vedad Krehic isn't going to reply in any detail, but there were some comments back and forth. So excerpts from the email exchange are below.

    from Vedad Krehic
    to David Weigel
    date Sun, Nov 22, 2009 at 12:17 PM
    subject Re: LRC Article - Modern Day Protectionism

    I'll be blunt, I'm not going to respond to the article by NewEdit617. My apologies.

    I read through it, and read through the comments (I've been procrastinating reading it for some time due to its length). The response would be too damn long, and there seems here to be a lot of confusion about the nature of property in the writer's mind - I don't have time to write another essay for some time. Got about 1200 pages to read before an exam next month...

    I suggest having her read Against Intellectual Property by Stephan Kinsella:


    Sorry again.

    Vedad Krehic

    P.S., what's FRB?

    from David Weigel
    to Vedad Krehic
    date Mon, Nov 23, 2009 at 12:34 AM

    Hi Vedad,

    No need to apologize. Thanks for letting me know.

    FRB - fractional reserve banking

    from Vedad Krehic
    to David Weigel
    date Mon, Nov 23, 2009

    Ah, I see. That point was strange to me, though, as copyrightable works aren't used for money (AKA the most marketable commodity), nor are they legal tender, so having a virtually limitless supply of them doesn't distort the market nor cause boom/bust cycles.

    I wonder if the argument would be similar if we had a machine that could at a high rate, with almost no expense copy bread, so that everyone who wanted some would be able to get some for free. Would she argue banning it? It's "inflating the market", just like FRB.

    from David Weigel
    to Vedad Krehic
    date Mon, Nov 23, 2009

    I don't think the legal tender or boom/bust was the issue for her. It was more if I deposited an ounce of gold in the bank and the bank says I can withdraw it at any time, but then loans the gold to a borrower, both the borrow and I are acting as if we own 1 ounce of gold. We are behaving as if two ounces exist when they don't. Not sure if that helps clarify or makes it worse.

    I'm guessing no on the bread because she is opposed to patents and bread would be something patented not copyrighted. She is having difficulty seeing the same arguments that apply to patents apply to creative works such as musical compositions. But I'll post the questions to her. I'm sure as a group we'll be discussing it sometime in the future.

  8. Thank you for inviting him to our discussion.

    "...there seems here to be a lot of confusion about the nature of property in the writer's mind..."
    This is one of the fundamental issues: can non-tangible things be property? I say yes; others are saying no (that it's the paper and ink, not the words, that are property). I'm not sure how else to argue my position. If he's referring to some other misunderstanding I have about the nature of property, I don't know what that would be.

    I will add Kinsella's "Against Intellectual Property" to the reading list. Hopefully over winter break I can read it. There is also a newish, longer book called "Against Intellectual Monopoly." http://mises.org/store/product.aspx?ProductID=552 I am wary of this because it looks like it focuses on patents more than copyright, utilitarian more than ethical arguments, and state-enforced rather than natural copyright. However, I suppose I should give it a chance.

    Your explanation of my FRB reference is correct. However, mentioning FRB in the original entry was more of an aside rather than a convincing point, but that's what seems to be getting a lot of response. :-/

    Bread machine = fine. Developing a more efficient way to make bread doesn't steal profit from the original bread-maker, as many statists would argue. He can now get his own bread machine and spend more time on something else.

    "She is having difficulty seeing the same arguments that apply to patents apply to creative works such as musical compositions."
    Yes. I would like to discuss this at a meeting.

  9. Sorry, forgot to respond to your previous comment.

    This response won't satisfy you because it will seem like I can't defend my position, but-- I don't have the answers for how natural copyright would be implemented. I do eventually owe a practical solution, but right now I am primarily concerned with the ethical arguments.

    Something like listening to a CD in a group would probably have to be up to the author. The author and purchaser would have to agree on some sort of contract. The author would have the right to set a rule about the maximum number of listeners at one time. Unfortunately I do not know how the author would decide upon this, so I admit my practical argument is not very strong here. However, since the author created the song/book, he holds the right to decide how many people can listen to it at the price for which he agreed to sell it. The point is that he does have that right. (The potential purchaser also has the right to decline the deal, in which case he isn't allowed to listen to the CD or read the book at all.)

    Regarding where to draw the line between copying and validly creating a derivative work, for example, I also do not have an answer for that. I cannot yet say why a 1-note difference is not enough but a 1-phrase difference might be, or why transcribing a piece would be an infringement but why re-arranging instruments would not be. Legally, then, enforcing copyright would be difficult. Still, I don't think that not being able to answer those practical arguments takes away from my assertion that copying someone else's work is immoral and infringes upon the author's rights.
    When I decide on a practical legal standard (one more substantiated than the Randian 4), I will let you know. It could take years but I will continue to think about it.