The Wrong Way to Defend Intellectual Property Rights

dianahsieh · January 6, 2008

By Paul from NoodleFood,cross-posted by MetaBlog

Update: Newsfactor.com is reporting that the Washington Post has misreported part of their story, and that Jeffrey Howell is being sued for ripping his own CD's onto his computer hard drive and placing them onto his shared folder for distribution to the rest of the world through the Kazaa file sharing system.

Obviously this changes the merits of that particular lawsuit. (It doesn't change the error of the Sony lawyer Jennifer Pariser's statements also cited in the WaPo story.)

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I am a firm believer in intellectual property rights, including copyright. However, when the RIAA (Recording Industry Association of America) takes ridiculously wrong legal positions in their supposed "defense" of copyright, it merely confuses and alienates honest consumers. A recent article in the Washington Post summarizes some of the statements that recording industry lawyers have made condemning the entirely legitimate practice of taking a music CD that one has legally purchased and transferring a copy onto one's own home computer or MP3 player for personal use (i.e., not for widespread distribution to others):

In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

...The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

To make things worse, the RIAA used to explicitly endorse the practice they are now condemning. A few years ago, they stated on their official website (and still available via the Web Archive):

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

But that language has since then been removed from their current website.

The danger is that when an organization like the RIAA overstates its case by making such egregiously bad claims about intellectual property rights, it merely undercuts the validity of the concept in the average readers' minds. An average consumer might easily (and with some partial justification) conclude, "If 'copyright' means that I can't listen to my own legally-purchased album on my own iPod, then screw it - I won't respect copyrights!"

Of course, the correct approach to combating illegal and immoral "file sharing" of copyrighted material is not to make a bogus defense of property rights, but to make a genuine principled defense that incorporates the relevant technological facts about these issues.

For instance Dr. Leonard Peikoff's briefly discusses this issue on his website (in the entry dated April 12, 2007), and arrives at a better conclusion, based on the distinction between form and content:

Q: On Copyrights:

1. Under a proper capitalist government, if you buy CDs where the only contract term is "Copyright, All Rights Reserved," would it be legal--and moral--to copy those CDs, that one has already bought and paid for, to one's own iPod?

A: First, a caveat: I have not thought much about issues in the philosophy of law. So some of the following is only my best ideas given limited knowledge.

I agree with your earlier general statement that creators have a moral right to set whatever conditions they want, rational or otherwise, in regard to the use of their property. As you say: "copyright owners have the right to control the act of copying as such. In support of this is the idea that their property rights cannot be limited, and that the copyright owners created the value of the music in the first place."

However, if you ask me what is the rational policy in this issue, my answer involves a distinction between form and matter -- i.e., changing the medium or organization of a purchased work in order to make its content more conveniently accessible to the buyer; vs. duplicating the purchased work (which is what I myself call "copying"). E.g., scanning OPAR into your computer in order to adjust the font vs. making a copy of the purchased book, so that you have two of the very books on sale in the store. I regard the first as, in essence, a transfer of content already paid for, and thus justified; while the second is unjustified: if you buy a book, you are not and should not be authorized to become a manufacturer of it, whether of 1 or 1,000 more copies.

The same applies to CDs. I think you have a right to transfer the content to an iPod, or to transfer excerpts from different CDs onto one CD; but I do not think you have a right to "copy" them in the sense of manufacturing duplicates of the original CDs.

I believe Dr. Peikoff's position is essentially correct, and that form-content distinction is an important one.

There are some interesting side issues that he didn't address that might be worthy of further analysis. For instance, does creating a physical backup copy of a CD of music or software that one has legitimately purchased (purely as a precaution in case that the original is accidentally damaged or destroyed) count as "manufacturing" in the sense that he means? Provided that one keeps that backup copy in a safe place unused (as opposed to giving/selling it to others for their use), I think this would be legitimate. Most software producers allow or even encourage this practice, and I think it would be a reasonable practice for musical content as well.

Similarly, does burning a duplicate physical copy of a music CD so that one can keep one copy in the upstairs music CD player and a second copy downstairs or in one's car (again purely for personal use as opposed to giving/selling to others) count as "manufacturing"? Also, is the intended user (i.e., personal use vs. giving/selling to others) the critical distinction as well? I freely admit that I don't have fully worked out positions on some of these questions of how best to apply the broad principle of copyright to specific scenarios in this era of easy digital duplication and dissemination.

Overall, I think Dr. Peikoff is on the right track with this type of analysis, and this is the correct approach to take, rather than the concrete-bound approach of the RIAA ("copying" = "stealing") which merely undercuts respect for property rights.

I would love to see more work by Objectivists on the nature and proper justification of intellectual property rights, such as Greg Perkins' essay, "Don't Steal This Article!" or Ayn Rand's own "Patents and Copyrights" in Capitalism: The Unknown Ideal. Michigan State law professor Adam Mossoff has also written a number of articles on intellectual property available on SSRN. More such work would be a welcome contribution to the often-contentious and confused discussions in the mainstream media about these important issues. 212141391