Copyright, Fair Use and Piracy

[Michael Hopcroft]

One of the most controversial issues in the developemnt fo the Internet has involved copyright and other variations on the concept of Intellectual Property. Whether it involves the exchange of music and movie files, the shareware and open source movents, or the development of the electronic book, a few basic questions have meerged.

1. Who owns a creative work?

2. How long does their ownership right last?

3. Is "Fair Use", in which someone claims they are reproducing, distributing or extrapolating from a copyrighted work for whatt they consider a legitimate purpose without personally profiting from that use, a reasonable concept? Or is the pownership right of the holder of a copyright or trademark absolute?

We see this issue show up all the time in a variety of forms:

* Someone with a DVD recorder on their computer makes a copy of one of their DVDs as a backup. They might later sell the source DVD to a used movie dealer and keep the backup copy for themselves. (A less-greyscale variant involves the 'rent-and-rip" artists who rent a DVD, copy it for their own use, and then retun it to the store, rather than purchasing a full copy for themselves.)

* A programmer puts out an "open-source" piece of software recieving and expecting no compensation for his efforts.

* A Star Trek fan writes an original story set in the world of that series which postulaes a homosexual relationship between Captian kirk and Mr. Spock. They then post that story on the Internet for anyoen to freely read.

* Someone buys a DVD of a televisoon series that aired in another country, puts English subtitled on it, and offers it for free distribution in hopes that eventually an American commerical company will purchase the rights to that series and release a "legitimate" version.

The question in all of this is whether the rights to intellectual property, luike those to physical property, are morally absolute, or whether there are legitimate ciscumstances in whcih a work of art can be dsiplayed or used in ways its creator would never have intended or even imagined?

[Bryan]

1. Who owns a creative work?

Whoever created it, unless they surrender their ownership rights through some sort of agreement. For example, most musicians (using the term loosely) surrender the ownership rights to a record producer in exchange for the capital to produce their record and some other monetary compensation.

2. How long does their ownership right last?

In a perfect world, forever. In the United States according to Wikipedia, copyright lengths are "28 or 95 years for works copyrighted 1923-1963; 95 years for works copyrighted 1964-1977; thereafter life plus 70 years. (Copyrights prior to 1923 have expired.)"

3. Is "Fair Use", in which someone claims they are reproducing, distributing or extrapolating from a copyrighted work for whatt they consider a legitimate purpose without personally profiting from that use, a reasonable concept? Or is the pownership right of the holder of a copyright or trademark absolute?

The ownership right of the copyright holder is absolute.

We see this issue show up all the time in a variety of forms:

* Someone with a DVD recorder on their computer makes a copy of one of their DVDs as a backup. They might later sell the source DVD to a used movie dealer and keep the backup copy for themselves. (A less-greyscale variant involves the 'rent-and-rip" artists who rent a DVD, copy it for their own use, and then retun it to the store, rather than purchasing a full copy for themselves.)

This is theft.

* A programmer  puts out an "open-source" piece of software recieving and expecting no compensation for his efforts.

If a piece of software is truly "open-source" it is under the GNU Public Lincense, which is a form of copyright.

* A Star Trek fan writes an original story set in the world of that series which postulaes a homosexual relationship between  Captian kirk and Mr. Spock. They then post that story on the Internet for anyoen to freely read.

I believe that this is a form of copyright infringement, if the owners of the Star Trek copyright (Paramount?) wanted to, they could seek legal action against a person posting a story that usurps their intellectual property.

* Someone buys a DVD of a televisoon series that aired in another country, puts English subtitled on it, and offers it for free distribution in hopes that eventually an American commerical company will purchase the rights to that series and release a "legitimate" version.

Copyright infringement, unless permission was obtained from the people that created the series (why would these people refuse though?).

The question in all of this is whether the rights to intellectual property, luike those to physical property, are morally absolute, or whether there are legitimate ciscumstances in whcih a work of art can be dsiplayed or used in ways its creator would never have intended or even imagined?

They are morally absolute, the owner has a right to "dispose" of their property in any manner in which they see fit.

[Michael Hopcroft]

Mea culpa, I guess. Science fiction fans in particular often indulge in creative practicesa that do not meet this standard.

So, Bryan, what you are essentially saying is that "Fair Use" either is not legitimate or is far more restrictive than people seem to be applying?

Other realted issues:

Copyright as forever: so nothing should ever fall into the piblic domain? Indeed, there shouldn't be a "public doman"? Finding Shakespeare's heirs would be quite a challenge. This also leads to this question: if a work of art keeps its populairty for hundreds of years and continues to sell lot sof copies in perpetuity, then the distant heirs of that work's creator become a sort of "idle rich' class who can live off the labor of a distant ancestor. They have no incentive to do anything of their own, much as many heirs to inherited wealth have no incentive to make their own accomplishments. It's sort of like the question fo what a paris Hilton could conceivably have done to deserve the wealth and noteriety that has come with her being an heriess when she has no discernable abilities or talewnts of her own.

Permission: Does not objecting to a pracitce imply permission, or should there be a higher standard? The "fan subtitle" example is an example of "ngelect" on the part of copyright holders which has, paradozxically, resulted in the expansion and gorwth of a mid-level industry in legitimate anime DVDs, where American distributors often rely on the distribution of illegal subtitles to build a market before they acquire the rights and release the legitimate version.

(Sorry for the lack of quoting -- I'm still not used to this inetrface.)

[DavidOdden]

My comments refer to some of what Bryan said. You will need to read his post to see exactly what I'm talking about, since I don't have his permission to quote him. Rand discussed the durability of patents and copyrights in one of her essays -- I think you know which one I mean. I would quote what she said, but I don't have her permission (or the permission of her estate), but to very roughly paraphrase and thus not violate copyright law, she pointed out that perpetual patents and copyrights would weigh scientific progress down unconscionably. Since copyright prohibits not just the expression of a specific text (if we're dealing with words) but also any with "substantial similarity", you eventually run into a problem especially dealing with scientific works that descriptions of some aspect of reality can only be be expressed in a certain number of ways (including "substantially similar" ways). Now suppose you want to teach students that a water molecule is made up of one atom of oxygen and two of hydrogen (I fear that I've already violated the law by saying this), it becomes a tremendous challenge to think of thousands of ways to state that fact, without saying it in a way that is the same as or substantially similar to how it was said by someone else in their writings. What you have to hope is that out of the thousands of copyright-holders who have exclusive ownership right to a particular statement regarding the composition of water, one of them will give you permission to use their words without paying an arm and a leg (I hope that expression isn't coprighted).

There is one context where copyright cannot be absolute, and that is in litigation over copyright disputes. A sues B for infringement of copyright of A's creation: A must show substantial similarity between his own work and B's work. To do this, A must quote B's work, and B must not be allowed to block A from citing B's work as evidence.

Also, this board would pretty much have to shut down if copyright were rigorously obeyed, without the loophole of some kind of fair use clause. However, I agree that the fair use exception sucks in a number of ways (just not all ways).

[JMeganSnow]

Since copyright prohibits not just the expression of a specific text (if we're dealing with words) but also any with "substantial similarity", you eventually run into a problem especially dealing with scientific works that descriptions of some aspect of reality can only be be expressed in a certain number of ways (including "substantially similar" ways). Now suppose you want to teach students that a water molecule is made up of one atom of oxygen and two of hydrogen (I fear that I've already violated the law by saying this), it becomes a tremendous challenge to think of thousands of ways to state that fact, without saying it in a way that is the same as or substantially similar to how it was said by someone else in their writings. What you have to hope is that out of the thousands of copyright-holders who have exclusive ownership right to a particular statement regarding the composition of water, one of them will give you permission to use their words without paying an arm and a leg (I hope that expression isn't coprighted).

You can't patent a discovery (theoretical knowledge) only an INVENTION. You may copyright the particular text where you announce your discovery and require that anyone using that information attribute you as the source, but that's as far as it goes.

You also can't copyright a particular phrase that exists in the English Language and forbid anyone else to use it. (This comes up in RPG's a lot). Thus, say, the owners of Dungeons and Dragons (Wizards of the Coast) can't copyright the phrase "Spot Check" but they CAN copyright the mechanics of what is meant by a spot check and how it is used in their game. This is where the issue of substantial similarity comes into play.

[Tom Robinson]

Rand discussed the durability of patents and copyrights in one of her essays -- I think you know which one I mean. I would quote what she said, but I don't have her permission (or the permission of her estate), but to very roughly paraphrase and thus not violate copyright law, she pointed out that perpetual patents and copyrights would weigh scientific progress down unconscionably.

I have never understood Rand's argument for limited term protection of intellectual property. To grant a perpetual title to a lot in Manhattan but not to a patent on the Polaroid camera is purely arbitrary. And by what rational argument does one arrive at granting patents for exactly 20 years from the filing date? Or for copyrights, 70 years after the author’s death? How can we logically determine that a 19-year long patent is too short or that a 21-year long patent too long?

[JMeganSnow]

Copyright as forever: so nothing should ever fall into the piblic domain? Indeed, there shouldn't be a "public doman"? Finding Shakespeare's heirs would be quite a challenge. This also leads to this question: if a work of art keeps its populairty for hundreds of years and continues to sell lot sof copies in perpetuity, then the distant heirs of that work's creator become a sort of "idle rich' class who can live off the labor of a distant ancestor. They have no incentive to do anything of their own, much as many heirs to inherited wealth have no incentive to make their own accomplishments. It's sort of like the question fo what a paris Hilton could conceivably have done to deserve the wealth and noteriety that has come with her being an heriess when she has no discernable abilities or talewnts of her own.

Permission: Does not objecting to a pracitce imply permission, or should there be a higher standard? The "fan subtitle" example is an example of "ngelect" on the part of copyright holders which has, paradozxically, resulted in the expansion and gorwth of a mid-level industry in legitimate anime DVDs, where American distributors often rely on the distribution of illegal subtitles to build a market before they acquire the rights and release the legitimate version.

Copyrights are NOT forever. Technically this doesn't fall under the province of philosophy but under the science of law. As such, the primary consideration is the fact that it is IMPOSSIBLE to maintain a copyright "forever" and, in fact, is not at all desirable to do so. Seventy years after a writer dies, does he/she even WANT some miscellaneous heirs to be profiting off of his/her work? Anyone attempting to declare that copyrights should exist forever is in defiance of reality and needs to have their head examined.

As far as permission: non-objection only qualifies as permission if it is EXPLICIT non-objection. If the owner a.) didn't know or b.) didn't have the resources to pursue objection to every single violator, this does not constitute permission no matter how long the situation obtains.

Would someone give me my key back so I can turn Lecture Woman off? BEFORE I alienate everyone on this board?

[JMeganSnow]

And by what rational argument does one arrive at granting patents for exactly 20 years from the filing date? Or for copyrights, 70 years after the author’s death?  How can we logically determine that a 19-year long patent is too short or that a 21-year long patent too long?

I agree that 20 years is too short, but, as I said in my previous post, that belongs rightfully to the science of law and is something for the professionals to dicker about. I'd need so much data to forward an opinion on what the limit should be that I'm not even going to try.

[Tom Robinson]

I agree that 20 years is too short, but, as I said in my previous post, that belongs rightfully to the science of law and is something for the professionals to dicker about.  I'd need so much data to forward an opinion on what the limit should be that I'm not even going to try.

This is simply shifting the issue to some authority who is presumed to be the only one capable of making a rational decision. But the law is not a priesthood of occult secrets. Any rational and intelligent person should be competent to debate questions of what should be legally prohibited and why. If the matter of patent terms is properly one for only "professionals" to "dicker" about, we (i.e. the ones who put those "professionals" in charge) must still ask, by what logical method would they determine that 20 years is too short for a patent?

[Bryan]

My comments refer to some of what Bryan said. You will need to read his post to see exactly what I'm talking about, since I don't have his permission to quote him.

David, I give explicit permission to quote, publish, distribute, profit from anything I write, in its entirety. This also applies to any films or computer software I may create in the future. My intellectual property is your intellectual property. I'll have my lawyers draw up the paperwork and fax it to you this afternoon.

without paying an arm and a leg (I hope that expression isn't coprighted).

I do have a copyright to this, but now you're free and clear to use it. I also have a copyright to the phrase "double cheeseburger", so that's yours now too.

[JMeganSnow]

This is simply shifting the issue to some authority who is presumed to be the only one capable of making a rational decision.  But the law is not a priesthood of occult secrets.  Any rational and intelligent person should be competent to debate questions of what should be legally prohibited and why.  If the matter of patent terms is properly one for only "professionals" to "dicker" about, we (i.e. the ones who put those "professionals" in charge) must still ask, by what logical method would they determine that 20 years is too short for a patent?

By reference to the facts of reality, of course. I agree fully with the principle that there should be a time limit. The specification of that time limit (15 years? 20? 25?) is not something I feel competent to address, because I don't have the TIME to spend 15 years studying the law, human relationships, business practices, etc. This is called division of labor, and it is not an indication that I am abdicating responsibility for addressing the central issue here, which is whether there should be a time limit or not.

Equating ownership of land with intellectual property is an erroneous package-deal. It ignores the distinction between the metaphysical and the man-made. No one CREATED a piece of land (please don't come back with some analogy about dikes in the Netherlands, I am aware of that special case and I am choosing to ignore it as non-essential to the fundamentals of this discussion), so why shouldn't a title exist in perpetuity? The land does. (Or close enough as makes no nevermind.)

However, an invention is a concretization of a specific use of a scientific principle. An invention IS a creation of man; while the scientific principle exists and always has existed, an invention did NOT exist prior to being invented. This is why there must be intellectual property at all.

Man's life requires that, if he is going to benefit from his own work, that he have legal protection from thieves and scoundrels that would profit from his achievement without doing the work. However, it is also one of the requirements of man's life that he must KEEP PRODUCING and not lay back and vegetate on the rewards of one single acheivement. This is not an unfair or artificial requirement imposed by limited patents, it is one of the requirements of man's metaphysical NATURE. It is this that the time limit on patents (and, somewhat, copyrights, although they differ) is intended to respect.

To project what the end result of eternal patents would be: would you want to live if, before you could do ANYTHING, you must spend ten or twenty or fifty years slaving away in order to pay your debt . . . to the heirs of the man that invented the wheel? Is this a respect for the requirements of man's life? No, this is an attempt to exist without the necessity of effort by destroying competition.

Now, I have a question and I want to hear what people think on this: IIRC if one wishes to parody a copyrighted work, one does not have to gain the permission of the original author. If one wishes to publish an analysis, homage, etc. of that work, one does need that permission. Why are parodies exempted? Because no one would reasonably be willing to allow themselves to be parodied? Is this not a violation of the fact that one must only use the product of another by PERMISSION? Seems like a violation of property rights to ME.

There's a difference between parodies that strike at an entire genre or class of work (no one can copyright an entire GENRE, so this is okay) and those that are directed at a specific, copyrighted work. I think in the latter case one should be required to obtain the permission of the original author.

[Tom Robinson]

By reference to the facts of reality, of course.

Great. Then there is nothing to prevent mere non-professional mortals like ourselves from referring to those same facts of reality to form a judgment about what is the objectively correct time limit for intellectual property. Of course, merely stating that there are certain "facts of reality" which determine the expiration date of IP says precisely nothing about just what those "facts" are. This is another example of proof shifting.

I agree fully with the principle that there should be a time limit.  The specification of that time limit (15 years?  20?  25?) is not something I feel competent to address, because I don't have the TIME to spend 15 years studying the law, human relationships, business practices, etc.  This is called division of labor, and it is not an indication that I am abdicating responsibility for addressing the central issue here, which is whether there should be a time limit or not.

Well, I have read much literature about copyright and patent law. And I have yet to come across an account that shows that the duration of IP time limits was derived by anything other than arbitrary decree.

Equating ownership of land with intellectual property is an erroneous package-deal.  It ignores the distinction between the metaphysical and the man-made.  No one CREATED a piece of land (please don't come back with some analogy about dikes in the Netherlands, I am aware of that special case and I am choosing to ignore it as non-essential to the fundamentals of this discussion), so why shouldn't a title exist in perpetuity?  The land does.  (Or close enough as makes no nevermind.)

But how do time limits on intellectual property logically follow from the fact that it is created? Why would it not be just as valid to claim that because IP is created, title to it should exist in perpetuity? In this connection we should note that Georgists argue that because land is not created, there should not be absolute private ownership of it. I don’t see how your reasoning is any more convincing than that of the Georgists.

However, an invention is a concretization of a specific use of a scientific principle.  An invention IS a creation of man; while the scientific principle exists and always has existed, an invention did NOT exist prior to being invented.  This is why there must be intellectual property at all.

Man's life requires that, if he is going to benefit from his own work, that he have legal protection from thieves and scoundrels that would profit from his achievement without doing the work.  However, it is also one of the requirements of man's life that he must KEEP PRODUCING and not lay back and vegetate on the rewards of one single acheivement.  This is not an unfair or artificial requirement imposed by limited patents, it is one of the requirements of man's metaphysical NATURE.  It is this that the time limit on patents (and, somewhat, copyrights, although they differ) is intended to respect.

But we could use the same argument to support time limits on physical property. Since it is one of the requirements of man's life that he must KEEP PRODUCING and not lay back and vegetate on the rewards of one single achievement, why not say that the paintings of an artist are no longer his exclusive property after X number of years? Or that a Manhattan property that the owner is not improving but just collecting rent on becomes public domain after a certain period? Furthermore, if “keep producing” is a key objective, why not reduce patents and copyrights to just five years or six months? Won’t that keep writers and inventors on the ball?

To project what the end result of eternal patents would be: would you want to live if, before you could do ANYTHING, you must spend ten or twenty or fifty years slaving away in order to pay your debt . . . to the heirs of the man that invented the wheel?  Is this a respect for the requirements of man's life?  No, this is an attempt to exist without the necessity of effort by destroying competition.

Since when do my needs become a claim on someone else’s property? The source of rights has nothing to do with anyone’s needs or debts. Furthermore, if your fear is “destroying competition,” why not reduce patent limits to six months? Think what that would do for competition!

Now, I have a question and I want to hear what people think on this:  IIRC if one wishes to parody a copyrighted work, one does not have to gain the permission of the original author.  If one wishes to publish an analysis, homage, etc. of that work, one does need that permission.  Why are parodies exempted?  Because no one would reasonably be willing to allow themselves to be parodied?  Is this not a violation of the fact that one must only use the product of another by PERMISSION?  Seems like a violation of property rights to ME.

There's a difference between parodies that strike at an entire genre or class of work (no one can copyright an entire GENRE, so this is okay) and those that are directed at a specific, copyrighted work.  I think in the latter case one should be required to obtain the permission of the original author.

Come to think of it, JMeganSnow, why not allow people to copyright their names? If “Tom Robinson” has not already been copyrighted, why shouldn’t I have the right to be the only “Tom Robinson” until 70 years after my death?

[Bryan]

I want to draw a distinction between a copyright and a patent that somehow got lost through the course of this thread. My initial response was in respect to copyrights of intellectual property (i.e. books, movies, software, artwork, etc.). I believe that these copyrights should be indefinite; nobody's individual, absolutely unique creation should ever be opened to the "public domain" against the wishes of the original artist(s) or their rightful heirs.

Patents on inventions are another issue entirely (an issue that I am unclear of my thoughts on).

[JMeganSnow]

Great.  Then there is nothing to prevent mere non-professional mortals like ourselves from referring to those same facts of reality to form a judgment about what is the objectively correct time limit for intellectual property.  Of course, merely stating that there are certain "facts of reality" which determine the expiration date of IP says precisely nothing about just what those "facts" are. This is another example of proof shifting.

Did you read the fact that I said I don't have time to study this? Is it your intent to demand, for the satisfaction of your own personal curiosity, that I obtain a law degree? Why not demand that I study quantum mechanics, evolutionary theory, and oceanography so I can provide a complete synopsis of those fields for the edification of your lazy self? Sheesh.

Well, I have read much literature about copyright and patent law.  And I have yet to come across an account that shows that the duration of IP time limits was derived by anything other than arbitrary decree.

In that case, I would encourage studies to establish what the best methodology would be. However, I sincerely doubt that someone just, one day, pulled it out of their ass (pardon my French). There probably IS a reason for it, which you could discover if you talked to an actual patent lawyer.

But how do time limits on intellectual property logically follow from the fact that it is created?  Why would it not be just as valid to claim that because IP is created, title to it should exist in perpetuity?  In this connection we should note that Georgists argue that because land is not created, there should not be absolute private ownership of it.  I don’t see how your reasoning is any more convincing than that of the Georgists.

I was not arguing that time limits follow from the fact that they are created, I was declaring that drawing a comparison between land property rights and intellectual property rights is an erroneous package-deal, one both you and these Georgists are engaging in.

But we could use the same argument to support time limits on physical property.  Since it is one of the requirements of man's life that he must KEEP PRODUCING and not lay back and vegetate on the rewards of one single achievement, why not say that the paintings of an artist are no longer his exclusive property after X number of years?  Or that a Manhattan property that the owner is not improving but just collecting rent on becomes public domain after a certain period?  Furthermore, if “keep producing” is a key objective, why not reduce patents and copyrights to just five years or six months?  Won’t that keep writers and inventors on the ball?.

Once again you create an untenable package-deal. If an artist sells his work (and most make COPIES and sell THOSE) then it ceases to be his property. If he keeps it, it remains his property. However, a physical work of art is not the same thing as intellectual property. Once again, you are ignoring essential distinctions in order to draw ridiculous conclusions.

Since when do my needs become a claim on someone else’s property?  The source of rights has nothing to do with anyone’s needs or debts.  Furthermore, if your fear is “destroying competition,” why not reduce patent limits to six months? Think what that would do for competition!

This is absolutely ridiculous. A six month or five year (or, I think, 20 year) time limit does not leave enough time for someone to profit off their work, which is ALSO a requirement of man's life. You are drawing absurd conclusions via this rationalistic "all-or-nothing" approach to what is properly a science, and a not-very-developed one at that. Do attempt to have something USEFUL to say if you wish to continue this discussion.

Come to think of it, JMeganSnow, why not allow people to copyright their names?  If “Tom Robinson” has not already been copyrighted, why shouldn’t I have the right to be the only “Tom Robinson” until 70 years after my death?

First off, that would be a TRADEMARK not a COPYRIGHT Mr. "I'm-extremely-well-read-on-this-subject-but-I-clearly-don't-even-know-the-definitions-of-words". Secondly, you cannot create a trademark unless you intend to use it in the process of trade because your business's reputation and advertising apparatus is inextricably linked with its NAME and other people using your business's NAME means that they are cashing in on your reputation and advertising without deserving it.

If you were to start, say, a lingerie business and call it "Tom Robinson's", you could, in full accordance with the law, demand that no one else use that name. If someone was already using that name, they could FORBID you to use that name even though it is in fact, your name. (There is some gray area in that issue, which requires a court to settle. See the recent obnoxiousness in the EU about "geographical locators" and trademarks).

Copyrights, patents, and trademarks limit SPECIFICALLY the commercial use of images/words, inventions, and phrases/advertising logos and do NOT, say, prevent individuals from referring to those images/words, inventions, and phrases/advertising logos. (This is why it's okay to quote books as long as you give a source for your quote, but not reproduce them in toto.) Individuals may place stricter limits on the use of copyrighted material in order to limit potential liability.

I think I have made my thoughts on this matter very clear now.

[JMeganSnow]

I want to draw a distinction between a copyright and a patent that somehow got lost through the course of this thread.  My initial response was in respect to copyrights of intellectual property (i.e. books, movies, software, artwork, etc.).  I believe that these copyrights should be indefinite; nobody's individual, absolutely unique creation should ever be opened to the "public domain" against the wishes of the original artist(s) or their rightful heirs. 

Patents on inventions are another issue entirely (an issue that I am unclear of my thoughts on).

I agree that a copyright should continue to exist for at LEAST 50 years after the original author's death, however, should an heir continue to gather royalties for something he/she did not create in perpetuity? Public domain does not eliminate the need to attribute a source, and it also means that, say, someone can't photocopy Shakespeare's plays, publish them, and start collecting royalties. The work remains, FOREVER, the property of the creator, it simply can't do the creator any GOOD 50 years after his/her death.

Given, literature etc. that remains a valid moneymaker after so long is extremely rare, but I remain convinced that the principle, that no one, INCLUDING the HEIRS, should have the right to profit excessively on someone else's work, makes it necessary to have a time limit. Otherwise good-for-nothing heirs of prolific artists become the new aristocracy (entitled class) of any country that recognizes eternal copyrights.

I think that "public domain" is not a term that inclines agreement, though.

[The General]

I want to draw a distinction between a copyright and a patent that somehow got lost through the course of this thread.  My initial response was in respect to copyrights of intellectual property (i.e. books, movies, software, artwork, etc.).  I believe that these copyrights should be indefinite; nobody's individual, absolutely unique creation should ever be opened to the "public domain" against the wishes of the original artist(s) or their rightful heirs.

One of the points which Ayn Rand makes in her article "Patents and Copyrights" is that it is entirely appropriate for copyright to expire. Why? Because it would change from an earned reward for the author and his financiers, into an unearned claim by heirs who have done nothing to deserve it.

Also, "public domain" is really a misnomer - as Miss Rand points out, upon expiration "it ceases to exist qua property". When this happens, the profits to be obtained from the publishing of such a work go to the only men who deserve it - those who undertake the effort to reproduce it.

[Bryan]

One of the points which Ayn Rand makes in her article "Patents and Copyrights" is that it is entirely appropriate for copyright to expire.  Why?  Because it would change from an earned reward for the author and his financiers, into an unearned claim by heirs who have done nothing to deserve it. 

Also, "public domain" is really a misnomer - as Miss Rand points out, upon expiration "it ceases to exist qua property".  When this happens, the profits to be obtained from the publishing of such a work go to the only men who deserve it - those who undertake the effort to reproduce it.

Where is the essay "Patents and Copyrights" published? Is it in Capitialism: TUI? For whatever reason, I have no recollection of it.

I understand the point that you and Jennifer make about the earned vs. the unearned. I suppose my initial thoughts about the eternalness of copyrights is really a reaction to the commonly held belief these days that if someone purchases a hard copy of some sort of intellectual property its theirs and they can do whatever they want with it. This is especially common with computer software. There are a lot of people that think copyrights should be extremaly short (along the lines of the length of a drug patent) and then people's writings and music are "fair game". It strikes a deep nerve in me when someone's work is blatantly ripped off.

I realize I need to do some further thinking on this issue and read Miss Rand's essay.

[JMeganSnow]

I only have a copy of The Ayn Rand Lexicon but I believe the essay is in CUI.

Thinking of it another way: a copyright or a patent or a trademark (intellectual property) is the result of a contract between you and the government in which you say, "I've created this <something that constitutes intellectual property> and I would dearly love to publish it, however, I need some sort of guarantee that I will be ABLE to profit on it before I will do so."

The government says, "That's great, and we recognize that intellectual property rights are absolutely necessary for the furtherance of a society, so we will recognize your right to this <something> for <this duration>."

No government on earth (or anywhere else) could guarantee those rights FOREVER. It can't be done. And what, precisely, is the nature of a contract where one party claims they will do something that is, in fact, physically impossible? I'd call that fraud.

As for the converse, if the government doesn't respect your intellectual property for a duration that you consider tenable: don't engage in the contract. No one FORCES anyone to file a patent, copyright, or trademark. This is one circumstance where the government is acting simply as the guarantor of a contract. However, unless your invention (and I'm going to dismiss copyrights and trademarks because those are so easy to copy it's not even funny) is so revolutionary that you could not reasonably expect someone to figure out how to reproduce it even through reverse engineering you'd quickly discover why the government MUST act as the guarantor in these situations.

[JMeganSnow]

I suppose my initial thoughts about the eternalness of copyrights is really a reaction to the commonly held belief these days that if someone purchases a hard copy of some sort of intellectual property its theirs and they can do whatever they want with it. 

This idea ignores the fact that the intellectual property is not the physical object (although that is the concretization of the idea) but the idea itself. The belief you mention is the result of a concrete-bound mentality that cannot handle abstractions.

[The General]

Where is the essay "Patents and Copyrights" published?  Is it in Capitialism: TUI?   

Yes in Capitalism the Unknown Ideal. You can also find it in the compiled version of the Objectivist Newsletter.

I understand the point that you and Jennifer make about the earned vs. the unearned.  I suppose my initial thoughts about the eternalness of copyrights is really a reaction to the commonly held belief these days that if someone purchases a hard copy of some sort of intellectual property its theirs and they can do whatever they want with it.  This is especially common with computer software.  There are a lot of people that think copyrights should be extremaly short (along the lines of the length of a drug patent) and then people's writings and music are "fair game".  It strikes a deep nerve in me when someone's work is blatantly ripped off.

Ahh, I see where you were coming from. In that case, I sympathize with your feelings.

Edited March 3, 2005 by The General

[DavidOdden]

You may copyright the particular text where you announce your discovery and require that anyone using that information attribute you as the source, but that's as far as it goes.

In fact you can prohibit anyone from using your copyrighted text. Attribution is polite and sometimes a requirement for permission, but it never obliterates the requirement for permission.

You also can't copyright a particular phrase that exists in the English Language and forbid anyone else to use it.

That's true, for pre-existing phrases. The extrinsic test of similarity would no doubt preclude a finding of infringement for "spot check". Whereas, using the phrase "it would cease existence qua property" would very likely be found to have a "substantial similarity" to a protected passage. Whereupon we get into the arcana of "substantial similarity".

[JMeganSnow]

In fact you can prohibit anyone from using your copyrighted text. Attribution is polite and sometimes a requirement for permission, but it never obliterates the requirement for permission.

...

That's true, for pre-existing phrases. The extrinsic test of similarity would no doubt preclude a finding of infringement for "spot check". Whereas, using the phrase "it would cease existence qua property" would very likely be found to have a "substantial similarity" to a protected passage. Whereupon we get into the arcana of "substantial similarity".

This is why there are patent lawyers. As I said, I don't know ALL the facts, not enough to niggle out every little thing, but I do know enough to formulate broad abstractions.

[Michael Hopcroft]

A related question: if somene creates a piece of software or sets up a compouter netowrk that enables copyright infringement, even if they do not indulge in it directyl themselves, are they morally responsbile for the infringment?

example: A gentleman whose name I forget developed a piece of sfotware called Bittorrent. It is a file sharing application under which the user is dwonlaoding and uploading a file from the Internet simultaneously. Although tis creator claims there are legitimate uses for the software, about 85%-90% of the users of the software use it to exchange and download copies of copyrighted material. Without limiting the responsbility of the poeple who indlulge in the practice, does the creator of the tool that allows it to happen ebar some responsbility for the infringment of copyrights that his software enables?

[Tom Robinson]

Did you read the fact that I said I don't have time to study this?  Is it your intent to demand, for the satisfaction of your own personal curiosity, that I obtain a law degree?  Why not demand that I study quantum mechanics, evolutionary theory, and oceanography so I can provide a complete synopsis of those fields for the edification of your lazy self?  Sheesh.

In that case, I would encourage studies to establish what the best methodology would be.  However, I sincerely doubt that someone just, one day, pulled it out of their ass (pardon my French).  There probably IS a reason for it, which you could discover if you talked to an actual patent lawyer.

“There probably IS a reason for it”? But, JmeganSnow, how do you know that? By what means do you assume that any existing law must have some rational basis? A close inspection of the legislative process that turns proposals into bills into government-enforced regulation shows that there is seldom any care given to logic in lawmaking. Current copyright and patent law was approved by Congress and written in a committee composed of politicians. In your delightfully earthy phrase, yes, they might as well have pulled IP term limits “out of their ass.”

I was not arguing that time limits follow from the fact that they are created, I was declaring that drawing a comparison between land property rights and intellectual property rights is an erroneous package-deal, one both you and these Georgists are engaging in.

I drew a comparison between land and intellectual property because they are both (albeit in slightly different ways) protected by the government. I personally do not equate IP and real property, but existing law does. When you declare, as you did in post #7 that “Copyrights are NOT forever,” the onus is on you to explain why copyrights (and patents) should be treated any differently than physical property; specifically why there should be a time lease on intellectual property but not on other forms of property? I welcome your discussion of this distinction.

Once again you create an untenable package-deal.  If an artist sells his work (and most make COPIES and sell THOSE) then it ceases to be his property.  If he keeps it, it remains his property.  However, a physical work of art is not the same thing as intellectual property.  Once again, you are ignoring essential distinctions in order to draw ridiculous conclusions.

If my conclusion is ridiculous, then please prove it so. You are the one who defended IP term limits on the grounds that “it is also one of the requirements of man's life that he must KEEP PRODUCING and not lay back and vegetate on the rewards of one single acheivement.” (Post #11) Now if one of the guiding factors of law should be to get creators of property to “KEEP PRODUCING,” then you will have to show why this should apply only to intellectual property and not physical property,

This is absolutely ridiculous.  A six month or five year (or, I think, 20 year) time limit does not leave enough time for someone to profit off their work, which is ALSO a requirement of man's life.

But in Post #11 you stated, “The specification of that time limit (15 years? 20? 25?) is not something I feel competent to address.” But here you are declaring with admirable confidence that six months is not enough. Since you told us above that you “don't have time to study this,” exactly how do you now know that six months, five years or 20 years is not enough?

You are drawing absurd conclusions via this rationalistic "all-or-nothing" approach to what is properly a science, and a not-very-developed one at that.  Do attempt to have something USEFUL to say if you wish to continue this discussion.

Explain how reducing IP term limits to five years or six months is “all or nothing” or rationalistic. You favor IP term limitations, so please provide us with an objective, scientific means of distinguishing between what is “absurdly” too short and what is “absurdly” too long. Don’t tell us it should be left to “professionals” when you have already expressed your own adamant, non-professional opinions.

First off, that would be a TRADEMARK not a COPYRIGHT Mr. "I'm-extremely-well-read-on-this-subject-but-I-clearly-don't-even-know-the-definitions-of-words".

But why? If one can copyright a 14-line poem, why not a two-line couplet? And if a two-line couplet, why not a two word name? I’d like to hear the objective, scientific reasons why 20 words but not two are copyrightable.

Secondly, you cannot create a trademark unless you intend to use it in the process of trade because your business's reputation and advertising apparatus is inextricably linked with its NAME and other people using your business's NAME means that they are cashing in on your reputation and advertising without deserving it.

If you were to start, say, a lingerie business and call it "Tom Robinson's", you could, in full accordance with the law, demand that no one else use that name.  If someone was already using that name, they could FORBID you to use that name even though it is in fact, your name.  (There is some gray area in that issue, which requires a court to settle.  See the recent obnoxiousness in the EU about "geographical locators" and trademarks).

Copyrights, patents, and trademarks limit SPECIFICALLY the commercial use of images/words, inventions, and phrases/advertising logos and do NOT, say, prevent individuals from referring to those images/words, inventions, and phrases/advertising logos.  (This is why it's okay to quote books as long as you give a source for your quote, but not reproduce them in toto.)  Individuals may place stricter limits on the use of copyrighted material in order to limit potential liability.

I think I have made my thoughts on this matter very clear now.

But I do not intend to use my name “in the process of trade” or “commercial use.” Therefore I copyright the name, not trademark-register it. Now if the Ayn Rand Estate can, by force of law, prohibit the unauthorized republication of a 1,500 word essay, why should I not by same force of law be entitled to prohibit unauthorized republication of “Tom Robinson” in all public media, including birth registers?

[DavidOdden]

By what means do you assume that any existing law must have some rational basis?  A close inspection of the legislative process that turns proposals into bills into government-enforced regulation shows that there is seldom any care given to logic in lawmaking. Current copyright and patent law was approved by Congress and written in a committee composed of politicians.

There is a reason, though I doubt that you care what the specific reason is (if you do, look here). AFAICT, you're demanding that a legislative decision be reduced to laws of physics, which is impossible. So let's just look for your underlying principle, if there is one. What penalty should be assigned for assault -- let's say, specifically, punching someone in the nose and giving them a bloody nose. How do you justify your arbitrary answer N, and not N+1, or N+2, or N-1? Once you've justified your answer to that question, can you explain why you can't generalize that to protection of intellectual propertry?