Sunday, February 14, 2010

The Pirate Party: contradictory morons

A number of people have asked me why—apart from the fact that I am the leader of another political party—I do not support the Pirate Party, so I thought that I would discuss this quickly with reference to their headline aims.
We have 3 core policies:
  • Reform copyright and patent law. We want to legalise non-commercial file sharing and reduce the excessive length of copyright protection, while ensuring that when creative works are sold, it's the artists who benefit, not monopoly rights holders. We want a patent system that doesn't stifle innovation or make life saving drugs so expensive that patients die.

  • End the excessive surveillance, profiling, tracking and monitoring of innocent people by Government and big businesses.

  • Ensure that everyone has real freedom of speech and real freedom to enjoy and participate in our shared culture.

Let's take these one by one, shall we?
We want to legalise non-commercial file sharing...

Look, this is a contract law issue. I have taken a random CD down from my shelf—Morcheeba's Big Calm, as it happens—and printed, quite clearly, on the back of the CD (not on the inside, but on the outside back) are the following words:
Unauthorised copying, hiring, lending, public performance and broadcasting of this recording prohibited.

These same words are printed onto the CD itself.

This is a contract. I buy the CD and I can listen to the music, but I shall not copy, broadcast, hire or lend the recording—nor will I indulge in any public broadcast of same. In any case, I have signed up to a contract by buying the CD, and I am bound by that contract—this isn't a very difficult concept.

Now, one can argue that there should be—as in the US—a "fair use" clause that allows me to copy the CD onto my iPod, or computer, or whatever. But uploading and sharing it—for free—with others? No.

Is the above contract unfair? Possibly. But then I didn't have to buy the CD—I won't die in agony if I don't have Morcheeba's soothing tones to calm my once drug-addled brain. As with anything else, if I don't like the contract I can refuse to buy the product.
... and reduce the excessive length of copyright protection...

There is definitely a case for this. With the
caveat
that I shall come to later on.
... while ensuring that when creative works are sold, it's the artists who benefit, not monopoly rights holders.

And if the artists are the monopoly rights holders? Which, of course, they would be.

I think what the Pirate Party are trying to say here is that it is OK for the artists, maaaan, to be the rights holders, but not eeeeeeeevil corporations. Well, maybe so: but, once again, this is contract law, isn't it?

The artists sign up with the music corporations: those artists sign away the rights to their music (in whole or in part, in perpetuity or for a limited time) in return for fats wads of cash. In other words, the artist sells the (very slim) chance of future earnings in return for fat wads of cash now.

The artist is also getting marketing expertise, leverage, connections and all of the other things that give them some chance of making any money at all in the future. Some artists make it: the majority don't. In many cases, the music corporations lose money: in a few cases, they make millions.

Obviously, there are various subtleties and differences in the way that these contracts work but, fundamentally, it is a private contract between the artists and the music corporations.

It is certainly no business of the Pirate Party's. And that goes for any contracts—the terms of said contracts are none of the government's damn business. The Labour government should certainly not be ingratiating themselves with the music companies, nor should the criminal law be used to punish file-sharers. This is a civil issue—a contract issue.
We want a patent system that doesn't stifle innovation or make life saving drugs so expensive that patients die.

Riiiight. OK, there is something of a problem here and, once again, the Pirate Party are rather dishonestly conflating a number of issues. No one wants a patent system that stifles innovation—the very point of patents and copyright are to encourage people to innovate.

Patents and copyright allow inventors to be assured of getting money from their inventions so that they, or others, will go and invent other valuable things.

Now, in the US, the patent system is being heavily abused: there are companies that buy up smaller organisations simply for their patents. These patent "trolls" then break up and liquidate the company, and use the patents to get payouts from large corporations. These trolls are, quite obviously, a drain on society and a drain on innovation.

We do not have this same problem in this country, yet, because we do not have the same loony patent system as exists in the US. The EU has been attempting to bring one in, but they have so far failed. This is A Good Thing.

However, there are certain things that really do require patents to make money, and drug research is one of those things. As Timmy has consistently pointed out, by the time you take into account research and development, testing, several rounds of trials (on animals, and then humans) in varied jurisdictions, bureacratic barriers (such as the EU's REACH Directive) and other hurdles, the average drug takes some eight years and $1 billion to bring to market.

The patent on drugs is, I think, fourteen years. So, the drug companies have six years to make back at least $1 billion—more is needed if the other drugs that they are researching (many of which will yield nothing) are to be paid for. So, yes, the drugs are expensive. Much of this expense is absorbed by the USA (who tend to get them, and pay for them, first)—which is one reason why the US health system is so expensive.

This is why "Big Pharma" companies are so big—because small companies simply don't have the cashflow to bring drugs to market. I know a couple of people, both in Scotland as it happens, who run small companies doing research into a number of different drugs: when they find something, they sell the patent to Big Pharma because only Big Pharma have the money to bring those drugs to market.

Anyway, the point is that the short patent period is one of the reasons that drugs are so expensive—because there is only a short time to make back the vast costs of bringing said drug to market. So, one way of reducing the cost of said drugs would be to extend the patent period.

But the Pirate Party wants "a patent system that doesn't stifle innovation or make life saving drugs so expensive that patients die" and it also wants to "reduce the excessive length of copyright protection".

Er... Let's move on, shall we?
End the excessive surveillance, profiling, tracking and monitoring of innocent people by Government and big businesses.

OK, I agree with this. Although I am not sure that the Pirate Party does, really. After all, they want surveillance of private contracts so that they can stop music corporations and artists making private deals that the Pirate Party doesn't like. But that might be pushing it slightly, so we shall move on...
Ensure that everyone has real freedom of speech...

OK, I agree with this, totally.
... and real freedom to enjoy and participate in our shared culture.

Er... I'm sorry? Whose shared culture?

The Pirate Party originated in Sweden and whilst I am sure that the Swedes are lovely people, I don't know how much culture I share with them. I don't have a shared culture with the majority of people in this country, let alone Sweden.

And what if I don't want to share or participate in this shared culture? What if I want to sign my song rights over to a "monopoly-rights holder"? What if my culture is one of honouring property rights and contract law?

You can, Pirate Party people, stick your fucking shared culture up your collective arsehole, frankly.

So, let us sum up, shall we? The Pirate Party:
  • supports "a strengthening of the right to privacy" except as far as your contract with a music company or other "monopoly-rights holder" is concerned.

  • supports the breaking of voluntary contracts at one party's convenience thus undermining property rights (and why don't you go ask the Africans how well economies develop without property rights?).

  • wants us all to participate in some imaginary "shared culture", unless that culture is one of property rights and contract law.

  • wants to get cheaper medical drugs but supports measures that will make those drugs more expensive, and

  • spouts some hippy shit about artists being able to make money (somehow) unless, presumably, the artist is a "monopoly-rights holder", or signs a contract that the Pirate Party doesn't happen to like the terms of.

Yeah, that sounds like an excellent party—let's go for that, eh?

The stupid thing is that, with the internet, much of what the Pirate Party wants is happening anyway: artists are becoming able to sell their music directly to their audiences and this trend will only increase. The music companies have been forced away from DRM and their sucking of Peter Mandelson's saggy old scrotum is the last gasp of an industry that is going to have to reform or die.

The simple fact is that the Pirate Party's outlined aims are nonsensical, interventionist and authoritarian; the party will happily ride roughshod over contracts and property rights that they don't happen to agree with—much as the Labour Party is doing with the bankers right now—and their attitude to drug development is utterly counterproductive.

So, whilst I support one or two aims of the Pirate Party—such as the right to free speech and the ending of tracking and surveillance of people—I find the rest of their policies, most especially their attitude to contracts, to be repugnant.

On the other hand, I imagine that I shall have a giggle whilst they annoy the fuck out of the rest of the political Establishment...

151 comments:

David Chiverton said...

When it comes down to it they sound like a political party dreamed up by Lily Allen and Damon Albarn. Top dissection DK, excellent post.

Rancidpunk said...

Love the input, perhaps you could read my draft manifesto http://www.pirateparty.org.uk/forum/viewtopic.php?f=67&t=1425&sid=656b1f5f309d2d2f1d51857df21e272e
and then we could have a grown up debate on the points you have questions? Cheers.

Rancidpunk said...

*questioned

feutche.com said...

True, it is a contract, if you took the CD from your shelf, as you agreed to the terms by buying it.

But if you downloaded the album from somewhere else, there will be no such contract between you and "copyright owner"...

There's no way really to construct a contract that will cover copyright as it is.

Devil's Kitchen said...

"But if you downloaded the album from somewhere else, there will be no such contract between you and "copyright owner"..."

If you download the music from a legal source, then there is just such a contract.

If you download it illegally, the person who uploaded it has broken the contract (which is why the music industry goes after uploaders, rather than downloaders).

DK

feutche.com said...

Yep, which means once it re-shared, there's no contract for anybody, wherever you upload or download.
And that breaks copyright business model.

Angry Exile said...

There's also the point that the three core policies of the Pirate Party seem to be the only policies of the Pirate Party, or at least the only ones they bothered to put on their site. The manifesto looks a bit threadbare too. Not quite single issue fanatics but pretty close.

Martin Juno said...

The real problem with copyright is that artists and corporations don't want us to freely share our property (a CD for example). And they (ab)use goverment power to achieve that.

If you buy a car, you can lend it to anyone you want (and there are no complaints about it).
Why should that be different when we share music?

Anyways, I agree with several of the critics you've made to the Pirate Party.

L.o.D. said...

"Why should that be different when we share music?"
when you lend your car out,your friend doesn't clone it so he has his own car once you get yours back.

I bought my cds from second hand shops once cds came out.I felt like I was being ripped off after reading a comparison of vinyl/cd production costs in one of the music rags.I could never feel totally at ease with my buying habits.As a mediocre drummer myself,I felt like the artists were getting a raw deal.
After reading Steve Albinis article on the music biz,I realised the vast majority of musicians were always on a hiding to nothing.

http://www.negativland.com/albini.html
I think you'll like that DK - he's a bad tempered fucker just like you ;D

File sharing is wrong and has fucked the music industry,but they shoulder a lot of the blame themselves.I'm largely apathetic about music these days-the whole world seems to be on the verge of bloody chaos.Musicbiz woes are way down on my priorities.Considering that Hendrix may well have been murdered by his manager,that those close to him might have known this all along and chose not to do anything about it,the music biz can fuck right off.

jane said...

You keep mentioning property laws, and how the Pirate Party wants to undermine them, but then talk about how the music you bought on a CD is not your property because they only let you buy a license. No, the Pirate Party obviously has nothing to do with property, but government granted monopolies, which are, as you yourself say, UNFAIR. If something is unfair, people have every right to want to change it.

Then you go on to contradict yourself, by saying that artists are the "monopoly rights holders" and a few lines later admitting that they sign their rights away to others. So, which one is it? If artists were more careful about what happens to the rights they sign away, content piracy would not be a problem!

Are you saying that because it costs a lot to bring a drug to market, Big Pharma companies are not making money? Because it looks like they are making more money than anyone else, even during a recession. No, they keep monopolies on drugs, and they put ridiculous price tags on them and people die because of that. That does need to change.

And your biggest contradiction of all: you call the Pirate Party a bunch of morons, but it seems like you agree with 2/3 of their policies. Does that make you 2/3 moron? Or more?

Wow.. strangely enough, I was in NO way interested in the Pirate Party until I stumbled across this relatively badly-thought-out (or badly-phrased) article. Now I might actually vote for them!

Charles Pooter said...

Devil

You're on the wrong side of the fence on this one. Copyright is government-created monopoly created for allegedly utilitarian purposes, which now serves no such purpose (if it ever really did).

It merely restricts me in the use of my physical (ie real) property to benefit the owners of "intellectual" (ie fake) property, whilst giving the state another excuse to restrict our freedoms online.

Please read the basic libertarian arguments against copyright before weighing in on the wrong side. In fact, please consider the basic logic about how contracts would work in a free society before proclaiming that they would allow copyright to exist.

On balance I think you've given UK libertarianism a much needed kick up the arse, but sometimes I think you do more harm than good.

Charles.

Anonymous said...

"True, it is a contract, if you took the CD from your shelf, as you agreed to the terms by buying it."

I bought several CDs this month from Amazon. At which point do you believe I signed a contract with the publisher?

Now, if I was downloading from a site which did require me to sign a contract to gain access, I would agree. But how can anyone, particularly a libertarian, demand that I abide by the terms of a contract which I've never signed?

In an era where so much 'property' is now digital and technology changes at an ever-increasing rate, copyright and patents are two of the most important issues for any political party. A 'Libertarian Party' which supports either of those state-mandated monopolies is certainly not libertarian.

Anonymous said...

However, there are certain things that really do require patents to make money, and drug research is one of those thingsNot necessarily. Drug patents are a recent invention (in many Western European countries they were only adopted in the 1970s) and there was plenty of drug development before then, especially for example in pre-WWII Germany which had no drug patents. It turns out (see Chapter 9 of the book "Against Intellectual Monopoly" which is also available for free on the web) that big pharmaceutical companies spend more on advertising than they do on R&D, and that much of even that "R&D" is the development of drugs with (otherwise pointless) slight differences to get around patent laws!

Anonymous said...

Mr. Kitchen

I find your post very shallow and poorly thought, and I believe if you truly believe in the libertarian values you say you do, you owe the Pirate party an apology.

In my view, you should be working to make the Libertarian and the Pirate parties cooperate, as they have a lot in common. Pretending the two parties are not aligned in their goals is ignorant (or hypocritical) at best.

P.B.

Anonymous said...

Patents stifle innovation by definition. To say that they are needed to reward invention is like arguing for the minimum wage - of course these things benefit the recipient, but to see the full (and harmful) effects you need to consider the wider picture. Watts' steam engine patent held back the industrial revolution by 2-3 decades, not least by preventing others from improving on his designs.

Bishop Brennan said...

DK

Unlike many of the other posters, I agree with much of what you say. But you're dead wrong on Pharma.

If you look at the FDA stats, you'll see that most new drugs are simply slight changes to existing ones - designed essentially to exploit the patent laws to allow Big Pharma to earn monopoly rents.

If I recall correctly, only about 15% of new drugs are genuinely 'new'. Of those, only about half are improvements on existing treatments. Yet Big Pharma is allowed to earn monopoly rents on everything (including under the UK's pricing regime, the PPRS).

So most 'new' drugs cost, at most, £100m or so to develop. Not the $1bn + that Big Pharma propagandists like to talk about.

On top of that, many of the costs of new drugs are in fact funded by you and I through taxation. The US has its National Institutes of Health, the UK government does similar things through the MRC and the NIHR, as well as through other sources of university funding.

Many new drugs are also funded by charities - CRUK and the Wellcome Trust are particularly big spenders here.

Have a look at the story of Epo and Genentech to see how much money Genentech really put into the development of that drug.

I could rant more about the disgrace of allowing all the pharma firms to merge in the 1990s (only GSK has made it work, and that was down to one person). But I'm probably boring you

Neal Asher said...

How best to kill creativity and invention, yup, get rid of patents and copyright. It's all quite wonderful for the buyer until people stop producing music, books or inventing stuff because there's no money in it anymore. Now, where have I seen this scenario before - the results of people not being rewarded for their effort - oh yeah, communism.

Idle Pen Pusher said...

Charles Pooter: "Copyright is government-created monopoly created for allegedly utilitarian purposes"

So is all property.

Anonymous said...

@Neal Asher

Hold on. It's government-created monopolies that make communism, and that's what patents and copyright are! Creativity and invention have been around LONG before patents and copyright.

If you get rid of patents and copyright, you just get rid of some relatively new business models --that don't work-- as they favour the middlemen over the producers or consumers of media and ideas.

You'll agree when you've given this enough thought, or when you get a politics degree.

Anonymous said...

@Idle Pen Pusher

Real property is governed by our basic instinct of ownership, while "intellectual property" is just something someone made up about 200 years ago.

You can't expect people to treat the two concepts the same when they are intrinsically different.

Idle Pen Pusher said...

DK: "the short patent period is one of the reasons that drugs are so expensive—because there is only a short time to make back the vast costs of bringing said drug to market. So, one way of reducing the cost of said drugs would be to extend the patent period."

Mr Kitchen, this is nonsense. Pharmaceutical companies are profit maximisers, or at least they should be. Why on earth, given a longer monopoly, would a profit maximiser lower the price of a drug at a given time? A longer monopoly right would simply extend the rent-seeking monopolist behaviour.

It would make patents more attractive, and therefore encourage development. However, it would continue the inefficiency of monopoly production and reduce the numbers benifitting from the use of drugs that would have been developed anyway.

Idle Pen Pusher said...

Anonymous:
@Idle Pen Pusher
Real property is governed by our basic instinct of ownership


'real'? Do you mean 'physical'? Try telling an artist he doesn't have an instinct of ownership over his intellectual property.

"You can't expect people to treat the two concepts the same"

I said nothing about how I expected people to treat them. I simply pointed out that all property is a state created monopoly right.

Anonymous said...

@Idle Pen Pusher

The artist can command respect for what she created, and can ask people to give her money for it if they like her work. The artist cannot claim ownership over a thought in the same way one could claim ownership over a car.

Devil's Kitchen said...

Ahem. Can we please cease the "I'm more libertarian than thou" stuff: there are libertarian arguments for and against copyright, intellectual property, etc.

However, what I focused on was contracts and, despite what you might think, when you buy music legitimately, you sign a contract.

Look, the Pirate Party could come in and abolish IP tomorrow.

And then the music companies, etc. could simply ressurect it as a model that works; it wouldn't be backed by criminal law, but it would be by law of contract, i.e. civil law.

Now, if you are going to say that you cannot use an IP type model of licensing for music, then you are interfering with the private contract between two people—the artist and the music corp—which is not very libertarian either, is it?

I find the idea of interfering in the contract between two entities because you want to get your music, etc. for free to be a pretty unpleasant idea.

There is a lot of discussion to be had around patents, copyright and intellectual property. As I said, it should be a civil, not criminal, matter.

But if you think that I shouldn't "own" artwork I've created, that you should be able to profit (in whatever way: prestige, money, whatever) off the back of my hard work, then you can fuck right off.

DK

Anonymous said...

@feutche.com: You're assuming people will recognise the ability to contract, without the right to contract. The right to contract is ownership, if someone downloads from a pirated source, they might not be bound by the intended contract, but there is a moral limit on them uploading it. Without government, we could have a more closed system, but as long as it is in the way, uploaders are liable, whether they stole it or not.

@DK: I'm suprised you didn't mention the thing that would really cheapen medicine. Scrapping the NHS and drug regulations. It's estimated that that American "free market" in government enforced drug regulation has cost 16,000,000 (American only) lives purely from limiting peoples ability to contract with drug companies when they need it, and a few times that in loss of innovation (drugs that don't exist) because of the massive misallocated capital. This doesn't take into account that most of the world relies on Americas drug industry, because our own socialised medicine has destroyed innovation in our own.

The deaths easily reach 100 million across the world. Easily. Purely because I'm not allowed to take any drug I want in order to try and cure myself. In the name of "protecting" me. Can't be protected when I am dead, thanks Government.

Anonymous said...

@DK: Also (I'm the same Anonymous :) ), read this..

http://www.bbc.co.uk/history/british/modern/field_01.shtml

And try not to let it blow your mind. It's the ultimate combination of state and society; so ignorant of the state as an evil, that it openly admits all the libertarian arguments about welfare, that they can exist without government, and weren't massively failed.

With charity, people weren't dieing in the streets, children weren't denied education, what a shock!

Devil's Kitchen said...

Anon,

"@DK: I'm suprised you didn't mention the thing that would really cheapen medicine. Scrapping the NHS and drug regulations."

I did imply it in the "testing" and "bureaucratic hurdles" mentioned above but, yes, I could have made it more explicit.

DK

Anonymous said...

By mention.. I of course meant rant about!

Anonymous said...

You still fail to address why government granted monopolies that limit the rights of an individual are acceptable.

Buying music is not the same as signing a contract because nothing is signed, and the purchaser knows nothing about this "contract". A contract in today's terms are a "terms of sale" document that you click "I agree" on (at the very least). The issue of copyright is covered by copyright law, not contract law -- you obviously don't know what you're talking about.

As for the last paragraph of your post above, it reveals why you took the time to write this rant against the Pirate Party. You don't care about what is best for the common good, and you don't want any stuff you create to be part of our "shared culture". It's only your own personal interests that you have in mind, and not those of society as a whole. I find that despicable.

Anonymous said...

The Anonymous above me makes a good point. It's silly to try to address the moral issue of Contract law, when the name of the law is "Copyright law". Also, health care is a "human right".

Seriously though, what does it matter which law incorrectly implements the basic human interaction that is contract? It also doesn't matter whether you sign for it, purchase for it, or click I accept, agreement to obey a contract is not an issue made real by government, but by Human interaction.

ChrisM said...

"It also doesn't matter whether you sign for it, purchase for it, or click I accept, agreement to obey a contract is not an issue made real by government, but by Human interaction."

Likewise the agreement not to kill, assault, steal, rape etc. What point is it that you are trying to make?

Lucifer said...

Legalising non-commercial file sharing doesn't have anything to do with contract law. The only think stopping non-commercial sharing at the moment is copyright law, and that is what the pirate party aims to amend.

Anonymous said...

@ChrisM: See the post above mine... which claimed what I said wasn't so. That was my point. If you purchase something, you don't need to sign and send off the included contract to be bound by it.

@Lucifer: Actually, it is contract law. Even with current copyright law, artists are free to allow people to share their works as the please. They are also free to not allow it. This is contract; it doesn't matter what the title on an act of parliament is, that doesn't warp reality.

Every time you think a Law is a reference to reality, and not simply the implementation of this entirely separate ideas, just say "Reichstag Fire Decree" to yourself 10 times, then wake up from your imaginary world of good state.

ChrisM said...

Sorry, anon, I stand corrected. I see the point you were making and agree.

Anonymous said...

Anon above me,

Actually with current copyright law we are NOT free to share our works as we please. The rights are transferred to the distribution company and we have to ask for their permission.

Anonymous said...

@Anon above me: Year, Chapter, Title and Section of that clause? I wasn't even aware you were required to have a distributor... I've been breaking the law for years by giving away my music online.

I haven't really of course, because "non-commerical file sharing" is legal; the pirate party aims are something quite different, and intervene in contract law.

@ChrisM: No worries, agreement is my favourite kind of disagreement.

ChrisM said...

"Actually with current copyright law we are NOT free to share our works as we please. The rights are transferred to the distribution company and we have to ask for their permission."

So musicians should be free to both sell the rights to their music, then renege on the deal, keep the money, and do whatever they want with the music they have sold?

pault said...


However, what I focused on was contracts and, despite what you might think, when you buy music legitimately, you sign a contract.


Devil, as much as I like your blog you aren't a lawyer. You have the wrong end of the stick with this. Here's the legal position:

* contract - when you buy a piece of music, e.g. a CD, the only contract that affects you is the contract between yourself and the retailer. The contract is simple - it involves a transfer of ownership of physical CD from the retailer to you. End of.

* copyright - rights of copyright arise from legislation. These rights are held by the 'rights holder', which, in the case of music, is usually the record company. When you buy a CD you don't agree to these rights, they just exist because of the legislation. In short, they prohibit you from copying, not the CD, but the music, the 'work of art'. Although there are a few limited exceptions

* you seem to confusing the issue with what happens when you buy software. It is true that software is protected by copyright as 'literary work'. However, most software companies force you to agree to a licensing agreement (a EULA) before they allow you to use it. This is in ADDITION to the existing copyright. Note, you don't agree to any such EULAs when you buy a CD, book or DVD

* patents. There seems to be some confusion about the purpose of patents in the comments. The rationale goes thus. Were I to invent say, a cancer-curing wonder drug out of seven herbs and spices, it would be in my interest to keep the recipe secret so that I could sell my wonder drug at a premium without fear of competition. This, however, is bad for society, goes the rationale, because knowledge builds on knowledge and it would be better if some other brilliant inventor knew about my work and could improve it.

The patent system offers a compromise. It says that if I benefit society and other inventors by publishing in full the details of my seven secret herbs and spices in an officially recognised journal, I will get in return an extremely valuable and cast-iron monopoly right over the use of my herbs and spices for a short time. During which time I will be able to coin it in a big way.

I understand the libertarian arguments against copyright and patent laws. They are both, after all, artificially constructed monopoly rights. The arguments are complex, in my view.

The current copyright and patent laws were enacted in response to vast technological change in earlier ages. It follows that as technology changes further then the laws are going to have trouble keeping up. My own view is that copyright law, should not be abolished, but rather needs radical reform to encourage cultural development and experimentation. It's worth remembering that during Shakespeare's day there was no copyright law. A good chunk of his work are vastly improved versions of early stories and plays. These days if he tried that, he'd be sued to oblivion. That ain't right.

Anonymous said...

Doh, you are not REQUIRED to have a distributor, but IF you have a distributor (e.g. EMI), you pass your rights to them and you need to ask them for permission if you want to share your own music. Also, we are not talking about SELLING your music, because this is not music-for-hire (like a jingle).

ChrisM said...

"Doh, you are not REQUIRED to have a distributor, but IF you have a distributor (e.g. EMI), you pass your rights to them and you need to ask them for permission if you want to share your own music. "


Easy solution, don't get a distributor. Or are you saying you want all the benefits of having a distrubutor, but you don't want any of the drawbacks.

"Also, we are not talking about SELLING your music, because this is not music-for-hire (like a jingle)."
If you give the rights to a distrubutor for nothing in return, more-fool-you. My guess is you get something out of it otherwise you wouldn't be parting with the rights to the music.

Charles Pooter said...

I don't really care about the legal position of copyright under corporate capitalism.

The real question is: could something like copyright exist in a maximally free society?

The Devil suggests that a web of consensual contracts could have the same effect as copyright legislation.

I submit that his position is ahistorical, illogical and borne of a misguided utilitarianism.

Devil: even if we except that a "shrink wrap agreement" is a legitimate contract, how can this so-called agreement between a publisher and a consumer bind any third party? If you can't answer that question sufficiently, then how can you justify interfering in how third parties make use of their property? You do believe that individuals should be able to use their property as they see fit, right? Or is there an exception to this rule when there are huddled masses of starving artists to be fed?

Anonymous said...

@The other Anonymous: Oh, so it's illegal to have a distributor, and a contract that doesn't give them copyright over your work? Or, is it legal to define a contract with them that gives you copyright, and guarantees them rights over a certain period. This is what we call trade. It's a very niche economic thing, where you trade your property (right to contract an artistic work) for money. Again; contracts, it's all about contracts.

@Charles Pooter: What third party? There is no third part! In an entirely free society, it would easily be dealt with by reciprocal agreements over large areas of businesses, by having MASSIVE penalties for the first sharer, and by technological restraints to prevent breaking the contract. The free market always finds away, because copyright is a natural affair. Patents mind, don't work like this, and require government violence. They could be replaced by insurance, trade secrets and co-operation in a free society though.

ChrisM said...

"There is no third part! In an entirely free society, it would easily be dealt with by reciprocal agreements over large areas of businesses, by having MASSIVE penalties for the first sharer, "

Whilst I half agree with you, what this means in practical terms is no copyright protection. Tracking that first sharer is often going to be nigh on impossible.

Rancidpunk said...

I contend that if copyright is not transferable and remains the property of the creator this would lead to artists being able to market their products through multiple distributors.The creations will then be subject to the normal market forces that give the consumer the choice of purchasing the creation from whoever the consumer feels provides the best value for money. Atm the consumer has no choice but to put up with whatever is released by whoever has bought the rights. I feel that if a work is good enough it should be able to compete without copyright "protection".

bella gerens said...

"As for the last paragraph of your post above, it reveals why you took the time to write this rant against the Pirate Party. You don't care about what is best for the common good, and you don't want any stuff you create to be part of our "shared culture". It's only your own personal interests that you have in mind, and not those of society as a whole. I find that despicable."

Anon. 10.50, appeals to 'what is best for the common good' and 'the interests of society as a whole' don't work so well round these parts, especially if you offer no evidence. Self-interested isn't a dirty word.

ChrisM said...

"I contend that if copyright is not transferable and remains the property of the creator this would lead to artists being able to market their products through multiple distributors."

There is nothing stopping artists and distributors arranging things thus if they wish. But why the hell should people be banned from transferring the copyright! If I own copyright on X and wish to sell it, what on earth has that got to do with you, the state, or anyone else. It is between me and the other party.

"Atm the consumer has no choice but to put up with whatever is released by whoever has bought the rights."

Yes, I have to put up with other people doing all sorts of things that have nothing to do with me.

"I feel that if a work is good enough it should be able to compete without copyright "protection".

Ummm, something could be the greatest work every produced, but if Fred is selling it, and Bert is giving it away, then the artist is not going to get paid.

Anonymous said...

@Rancidpunk: Wow, make up your mind. Are artists allowed to sell their works or not? Copyright (protection) is the right to contract your work, if you can't do that then you can't "compete", because you have no right to sell it. Contracting also includes the right to transfer, and I don't see why you could possibly care that some artist this very moment may give up the work of their mind to another, when you're under no duress from either of them? If an artist wants to market their work through multiple distributors, websites or cheese burgers, this is up to them; your opinion on what they should do is not an argument.

@ChrisM: I haven't been to the future later, so I'm no central planner. But obviously you are a fine example of working socialism, so know exactly what solutions the free market will come up with... In reality, neither of us know the solutions that innovation will bring for protecting the copyright and for ensuring the contracts. Practical purposes don't revoke moral facts either, so it's still immoral to further share works gained through theft, even if you're not the original contracter. Contracts aren't neccessary to prevent murder... or theft.

Anonymous said...

bella gardens,

This should start you off: http://en.wikipedia.org/wiki/Criticism_of_intellectual_property

You are right, self-interested is two dirty words.

ChrisM said...

Sorry Anon, you have totally lost me! In what way am I fine example of working socialism? Have you possibly misread something I quoted, and incorrectly attributed it to me.

You were the one that suggested massive penalties for the first sharer. I was simply pointing out that the practical effect of that would be no copyright protection. I neither said this was good thing or a bad thing, simply that that is what would follow from such a situation. (Magic future technology aside)

And when you say theft, I presume you mean copyright violation, which is not the same thing. (It is also not possible to rape, murder or assault copyright either).

Anonymous said...

Anon, I understand what Rancidpunk said and largely agreed with it.

But what on Earth are you trying to say? Would distributors REALLY allow artists to retain the copyright on their work? Of course not -- they don't like competition! The clever artists will work around the distributors and learn to use the internet for that (we'll see more of this in the future).

Anonymous said...

This is a contract.

Actually, it's an un-negotiated written term, as Hector MacQueen (at your old alma mater) would be quick to explain.

johnny nunsuch said...

The present situation has been brought about by the (perceived) ripping off of the general public by the big music and film distributors and file sharing is being used by Joe Public to get their own back

BTW I do and if I like the music will purchase if I don't I delete it mainly because of the lack of consistency of many artists

Anonymous said...

@Anonymous: You're terrifyingly ignorant of your own insight. Yes, people do use the internet as an alternative; and if the Government wasn't regulating the structure of the record industry (this goes for all industries the government sees fit to regulate) then of course some enterprising distributor would try alternatives to improve their market. One possibility would be allowing artists full copyright, with negotiated time periods in which the distributor has control. Why not? Not wanting competition is the thing that creates innovation when there is no government to use to tramp on competition.

@The following Anon: Non-negotiated terms appear in contracts... just because you didn't negotiate them doesn't make them any less contract, or any less binding. You are welcome to not purchase the product.

@ChrisM: My point was, that you don't know it will be impossible to find the person that breaches the contract (steals you ability to contract... you can't get it back, it's theft, that's your point, not mine) because the market hasn't had a change to try. You can't pretend you know the mediums of exchange of artistic work or contract; or pretend to know how they will be enforced, when neccessary.

ChrisM said...

Anon, I am not pretending anything; you are the one invoking future possible technologies that may or may not come to be. As things stand now, it is nigh on impossible to track the original copyright violator of a film or music. I didn't say that would remain forever so. Recent history suggests an arms race between rights holders and rights violators. However you are proposing policy NOW that relies on technology that does not exist.

" In an entirely free society, it would easily be dealt with by reciprocal agreements over large areas of businesses, by having MASSIVE penalties for the first sharer, and by technological restraints to prevent breaking the contract. "

You did not say that you wished the above to happen at some point in the future when we do have the technology to identify the first sharer. Yes, we may or may not at some point in the future have such technology. We currently don't, so if we implemented your suggestions as of now, with current (and forseable) technology, the effect would be to essentiually remove copyright protection. (As an aside, if you have technological restrains that prevent a contract being broken, then the issue of whether contracts exist or not becomes moot).

Anonymous said...

Neil Asher: It's all quite wonderful for the buyer until people stop producing music, books or inventing stuff because there's no money in it anymore

Except that's the reverse of what actually happens. Beethoven and Mozart wrote their music without the benefit of copyright. Music copyright did exist in their time in England, and it didn't lead to a lot of memorable music; if anything, by restricting distribution, it discouraged music. In countries such as Russia where music piracy is endemic, bands make their money through tours. Trade marks aside, the fashion industry in practical terms isn't protected by IPR, yet innovation thrives in that industry.

As for people stopping inventing things because there's "no money in it", it sounds like you've never worked as I have in an industry which uses patents. Most invention is incremental, and the net effect of patents is to discourage invention by making it much harder and more expensive. History shows that, far from disappearing, invention thrives when there are no patents.

Anonymous said...

Oh... I see. We're not advanced enough to be free.

ChrisM said...

"Oh... I see. We're not advanced enough to be free."

WTF has freedom got to do with it. You could do with brushing up on your reading comprehension skills. You proposed a solution to a problem which relied on a non existant technology. I pointed this out to you. I really don't see what is so difficult to understand here. If you had proposed an end to the energy crisis which involved dilithium crystals and I pointed out to you that they did not exist would that make me some kind of authoritarian!

Charles Pooter said...

This "identifying the first sharer" nonsense is an obvious red herring.

Example:

1. I hear a song played in a public place.

2. I memorise the tune and perform it at a gig.

What contract, implied or explicit, has been broken and who has broken it?

A simple fucking question. Can anyone answer it?

DocBud said...

Anonymous @09:52 am: You'll agree when you've given this enough thought, or when you get a politics degree.

Nobody with two brain cells to rub together and a hole in their arse would waste their time getting a politics degree. One thing is absolutely certain, if all the tossers who've wasted their lives acquiring such a degree evaporated, the loss to humanity and the reduction in the sum total of useful knowledge would be zero.

Disagree, then name me one worthwhile individual with a politics degree.

bella gerens said...

"As for people stopping inventing things because there's "no money in it", it sounds like you've never worked as I have in an industry which uses patents."

Neal Asher is a writer, no? If I scan my copy of his book and put it online as a free PDF download, he's not going to make much money from having written that book. You can argue that I'd be giving him free publicity, and people might buy his books who otherwise would never have heard of him, and maybe that's true. But since we can't prove counterfactuals, the reality is that I'm making it less profitable for him to write his books.

And at some point, he's going to decide that the labour involved in writing the books is greater than the money they bring him, and stop writing. Or, on the other hand, his publisher will discover that he's upside-down on the advance he paid to Asher, and decline to contract him to write further books.

So it's not entirely unreasonable to assume that Neal Asher has insight into this process.

DocBud said...

Charles Pooter,

There may not be a contract in place, but you'd still be a miserable, parasitical, twat of a human being to benefit off the creativity of another person without rewarding the originator.

I find no conflict with libertarian beliefs to think that the intangible products of a person's labours are any different from tangible ones. And it is up to the producer, and hence owner, to determine the basis upon which those products are on sold.

Governments may confer copyright, just as they do any other right in the current system, but in a libertarian society that I'd want to live in, someone writing books or music would have the same rigths to make a living from their labours as a carpenter or plumber.

Anonymous said...

DocBud,

Just out of curiosity, do you also think that copyright should last forever minus a day?

ChrisM said...

"I find no conflict with libertarian beliefs to think that the intangible products of a person's labours are any different from tangible ones."

I am sympathetic to copyright protection, however, that doesn't mean they are the same as tangible products. Copyright needs to be defended on its own terms, not by analogy to property. Copyright and property are different and no amount of conflating the two will make them them same.

"someone writing books or music would have the same rigths to make a living from their labours as a carpenter or plumber."
OK, I accept this. But what about scientists? Should the estate of Albert Einstein get a royalty everytime an atom is split? If not, why not? Why should some people profit from the products of their mental labours, but not others?

I am very much playing advocate here, I am not against copyright or patents; just inaccurate use of language. I am also interested in which products of a persons intellect are to be protected, and which are not.

DocBud said...

"Just out of curiosity, do you also think that copyright should last forever minus a day"

I doubt it, but I haven't given it much thought. I do believe that the community should come to some kind of agreement as to what is a reasonable means of rewarding creative people for their creativity and to protect them from parasitical scum who would free load off them if at liberty to do so.

"Should the estate of Albert Einstein get a royalty everytime an atom is split?"

If you come up with an idea that has value, why should you not profit from it? Why should those who produce the hardware to put your idea into effect and those who on sell the product be the only ones to profit?

I don't see why intangible products or assets are different from tangible ones. They can be bought and sold.

You'll have to excuse me, it's gone 01:00 here in KRuddalia and it is time to go and snuggle up to MrsBud.

Charles Pooter said...
This comment has been removed by the author.
Charles Pooter said...

"I do believe that the community should come to some kind of agreement"

Ah right, yes, "the community".

Agreements are between consenting people, not the community. That's why copyright depends upon the state and illegitimate coercion. Do you get it now?

Charles Pooter said...

DocBud

"There may not be a contract in place, but you'd still be a miserable, parasitical, twat of a human being to benefit off the creativity of another person without rewarding the originator."

I'm sure I would tell the audience the name of the benevolent individual who added their genius to the diversity of the creative commons...if I knew the name of the person of course. I overheard the song in a public place. I thought it so good that it should be shared in my local pub where I perform regular gigs. I put a bit of a blues twist on it because I couldn't resist.

If I use someone's song, they still have the song. If you prevent me from performing the song, you prevent me from using my property. You prevent me from using my brain, my body and my posessions (such as my guitar) as I see fit.

Would you use the force of the state to prevent me from using my property? Would you prevent me, by threat of violence, from exercising my self-ownerhip -- the very source of property rights? Would you do this to me because you think I am infringing on a person's imaginary property, even though you know they are deprived of nothing but notional, unprovable future earnings?

If so, I think that would make you a miserable, tyrannical twat of a human being.

Anonymous said...

Creators must profit from their creativity, and they will hopefully keep on creating. But, I don't like that armies of middlemen have to profit as well, often at the expense of both creator and consumer.

If artists could find a way to embrace filesharing as a way to distribute their works, things would change for the better. Bringing in the thought police is categorically not the way to make consumers enjoy the music you produced and want to buy it. Badmouthing people who downloaded will not make them want to buy it. You need to ask them politely, and if they liked it they'll pay for it.

Needless to say, if people don't like what they download, they simply won't buy. If your content is shit, don't expect people to want it.

Also, what's the case for songs from 1927 being under copyright? The people involved in making them are long dead, and I see NO excuse in keeping those songs under lock and key. Copyright should be no longer than 30 years, imho.

Nathaniel Tapley said...

Portraying any anti-IP arguments as necessarily 'authoritarian and intrusive' isn't really fair or helpful. There's a long tradition of libertarian anti-IP thought (here, for example is Roderick Long's article from 1995: http://libertariannation.org/a/f31l1.html ). It's hardly as unheard-of, and instinctively authoritarian as you claim...

GLAMBERT said...

Shortening the lengths of copyright would encourage more artists to continue making music instead of allowing people like Simon Cowell to bring through talent-less people like Joe McElderry and allowing him to have a 1 hit wonder and live off the royalties for the rest of his life. If, after 5 years, copyright expires and his music is made available to the public domain, he would have the choice of living off what he's already made, making more music or going into a different career.

Regarding non-commercial file-sharing, it's an "un-tapped market" so to speak for advertising on the internet. Very few bands utilise it as a free way of marketing a new album or tour when it could potentially save them a lot of money that they would otherwise give to a record company to market using another method.

Paul Lockett said...

DK: "But if you think that I shouldn't "own" artwork I've created, that you should be able to profit (in whatever way: prestige, money, whatever) off the back of my hard work, then you can fuck right off."

That's a self-defeating argument when expressed using the English language, with it being part of the shared culture which anyone who approves of can, apparently, stick up their collectivist arsehole. If you want to make that point in a credible fashion, you need to make it using your own proprietary language, produced from scratch without reference to any pre-existing concepts.

Liam said...

Rancidpunk et al:

While I agree that patents are not a form of property right there are various forms of regulation that must be removed with them in order to ensure innovation is maintained. The drugs issue is a pertinent one, yes many drugs are slight modifications on old ones but they must still go through the same extremely time consuming and expensive process for approval. In most cases this is completely unnecessary. Drug companies have financial incentive to establish both the effective functioning and the safety of drugs, forcing them to jump through regulatory hoops without revenue protection at the end will simply result in the halting of all commercial pharmaceutical research.

Secondly the open source policy position will be rejected by many who have worked with software at the architecture or business level. You choose the best tools for the job, or rather the ones with the best business case, be they Open Source or not. Open Source often exposes additional support costs to defer the risk of lack of formalised support (IE - you have to pay a company to support the product), additional training requirements and various other bits that make the business case unattractive. You should allow people to make the right choices regarding platforming and while that does involve some reform (particularly regarding "incentives" some vendors offer which are already legally dubious) it should not involve blocking the use of software simply because the vendor's name begins with "M".

Anonymous said...

Look, it's really very simple: in the minds of the younger generations, copyright is dead. If your party tries to support copyright, then you'll be considered a dinosaur by the very people (i.e. the young and tech-aware) who would otherwise be most likely to support you.

Imaginary Property is an attempt to create artificial scarcity where none exists, and as such it's both evil and broken. The whole concept of 'property' exists to manage scarcity in a socially beneficial manner, and makes no sense whatsoever when there _is_ no scarcity to begin with.

Imagine a world where you had a magic box which could copy any physical item at zero cost. Could anyone in their right mind seriously demand that people should be prevented from copying any item they so choose? That is precisely what you're demanding when you support Imaginary Property in a digital world.

Yes, it will hurt media-created boy bands who rely on men with guns to ensure that people don't upload their bland music to the Internet (though why anyone would want to is beyond me). But for the real musicians out there, they can, you know, actually perform in front of an audience and charge them for watching, the way they did forever prior to the introduction of recorded music.

Someone else mentioned patents: I used to work for a company which had a lot of patents. The only reason we had them was because no company in the industry could operate without access to the other companies' patents, so we needed our own patents to swap with them. The only people who really benefited were the lawyers.

And software patents are particularly evil. At least if you patent a new gearbox design for a car, Joe Sixpack won't be likely to be building one themselves, whereas anyone can write software which unknowingly breaks six million patents.

cabalamat said...

DK: Look, the Pirate Party could come in and abolish IP tomorrow. And then the music companies, etc. could simply ressurect it as a model that works; it wouldn't be backed by criminal law, but it would be by law of contract, i.e. civil law.

This is simply not true. Copyright law, and the regime the RIAA and MPAA want to create isn't based on contract law at all. Nor is patent law. If copyright and patent law were based on contract law, then:

- people would be free to record a song that simply sounds like another song (ditto for books, films, etc)

- people would be free to write and distribute software that breaks DRM

- people would be free to use their own resources to manufacture goods that work with other companies' products, (at the moment they can be restricted by patents)

- BitTorrent trackers like The Pirate Bay would be free to operate

- the music indsutry wouldn't be able to interfere between an ISP and their customers, by forcing the ISP to disconnect them, merely because they've been accused of filesharing.

And the world would overall be a better place.

BTW, you're wrong on the length of patents, according to the UK IPO it's 20 years.

Anonymous said...

"However, what I focused on was contracts and, despite what you might think, when you buy music legitimately, you sign a contract."

So show me the contract I signed when I bought my CDs from Amazon. Since I signed it, 'despite what I might think', you won't have any trouble showing me where I signed it, right?

And your argument is not just wrong but clearly counter-productive. If you 'sign a contract' by buying music, but suffer no such restriction if you just download the same music which someone has uploaded to the Net in violation of such a contract, why would you choose to pay money for a product that has more restrictions than one you could download for free?

That applies particularly strongly if other arguments here for imposing punitive damages on uploaders were followed. Buy something and risk losing my life savings if someone happens to break into my system and upload it to the Net, or download it, pay nothing and have no such risks. I don't think that's a hard decision, do you?

The more that governments try to maintain copyright in an era where copying is beyond trivial, the more absurd they look. It's the modern equivalent of the 'Red Flag Act' attempting to sustain blacksmiths and buggy whip makers in the automobile era.

cabalamat said...

jane: you call the Pirate Party a bunch of morons, but it seems like you agree with 2/3 of their policies.

I find this puzzling too. DK agrees with us that the Digital Economy Bill is a bad idea, that ISP's shouldn't be compelled to cut off their subscribers on allegation of downloading, that surveillance is a bad thing and that privacy is good. He thinks that people should be allowed to use encryption and anonymization software to enable privacy. He doesn't think that computers or the internet should be banned. Given his remarks on contracts, he presumably thinks that if someone hasn't agreed a contract with a DRM provider, one is at liberty to circumvent DRM. (Please correct me, DK, if this is an innaccurate summary of your views).

Given all this, it is in practice impossible to enforce a ban on non-commercial copying of copyright material. So the world that DK would like to see would involve a lot of this kind of copying.

The only real difference between PPUK and DK is that we go one step further and say that the law cannot in practice be enforced, except by unacceptable measures, so we'll get rid of it.

Devil's Kitchen said...

calabamat,

"The only real difference between PPUK and DK is that we go one step further and say that the law cannot in practice be enforced, except by unacceptable measures, so we'll get rid of it."

The clear-up rates for burglary in this country are pretty piss-poor: should we legalise it?

Anon,

Below all the MP3 listings on Amazon, you will see a notice saying...

"Sold by Amazon Media EU S.à r.l. By placing your order, you agree to our Terms of Use."

... which will lead you to the contract. This says things like...

"2.1 Rights Granted. Upon your payment of our fees for Digital Content, we grant you a non-exclusive, non-transferable right to use the Digital Content for your personal, non-commercial, entertainment use, subject to and in accordance with the Terms of Use. You may copy, store, transfer and burn the Digital Content only for your personal, non-commercial, entertainment use, subject to and in accordance with the Terms of Use.

2.2 Restrictions. You represent, warrant and agree that you will use the Service only for your personal, non-commercial, entertainment use and not for any redistribution of the Digital Content or other use restricted in this Section 2.2. You agree not to infringe the rights of the Digital Content's copyright owners and to comply with all applicable laws in your use of the Digital Content. Except as set forth in Section 2.1 above, you agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content. You are not granted any synchronization, public performance, promotional use, commercial sale, resale, reproduction or distribution rights for the Digital Content. You acknowledge that the Digital Content embodies the intellectual property of a third party and is protected by law."


Get it?

DK

Devil's Kitchen said...

P.S. calabamat: annoyingly, my response to your post above has disappeared down the memory hole, for some reason. I'll try to repeat when I have a sec.

DK

Charles Pooter said...

Anonymous 2/15/2010 08:17:00 PM wins. Comment of the thread.

Pa Annoyed said...

Entertaining discussion!

I couldn't help but notice that DK had copied bits of the Pirate Party's prospectus. Isn't that their intellectual property?

Some random thoughts, going both ways...

Leaked documents, like the MPs expenses. Private property?

The property involved isn't actually the information being copied, it is the right to copy it. What other private acts can we create rights for, to be bought and sold? Can we pay for the education system, by giving teachers the rentable rights to exercising the skills they teach? Can Microsoft charge for documents edited in their software? Possibilities are endless Big market opportunity there, I think.

With automated copying of data as it is passed across the internet - caches and temporary copies and so on - who does the copying? The owner of the machine? The programmer? The one who triggered the transfer process? And does each copy made incur a separate charge?

And who exactly has the IP rights on Libertarianism? Who do I send the money to? Head honcho of the LPUK...?

Paul Lockett said...

DK: Look, the Pirate Party could come in and abolish IP tomorrow. And then the music companies, etc. could simply ressurect it as a model that works; it wouldn't be backed by criminal law, but it would be by law of contract, i.e. civil law.

I don't see how anyone could seriously believe that. The music companies certainly don't seem to, given the effort they're putting into expanding copyright law, rather than saving their effort and using contracts.

The closest you could get to copyright through contract would be akin to trade secret law. It would be enforceable at the point of its first breach, but beyond that, the information would be in the hands of people not party to any contract and would be impossible to limit the use of.

Devil's Kitchen said...

Paul,

"I don't see how anyone could seriously believe that. The music companies certainly don't seem to, given the effort they're putting into expanding copyright law, rather than saving their effort and using contracts."

No, the music companies are attempting to save themselves colossal amounts of money and effort by getting the taxpayer to pick up the tab for hunting down and prosecuting the malefactors.

Perfectly understandable (and also beyond the fucking pale, frankly). But, in the words of P J O'Rourke, “when buying and selling are controlled by legislation, the first things to be bought and sold are legislators”.

DK

Anonymous said...

"Below all the MP3 listings on Amazon, you will see a notice saying..."

Who said anything about MP3s at Amazon?

And, even if I had, these bullshit implied contracts are one of the reasons why most people have little respect for contracts anymore. 'By opening this package you agree to the terms of the license contained within'? 'By living in Britain you agree to give the government 90% of your income'? At what point will even you agree that an unsigned 'contract' is ludicrous?

So I'm still waiting to find out which contract I signed when I bought my CDs. I suspect I'll have a long wait.

Anonymous said...

"No, the music companies are attempting to save themselves colossal amounts of money and effort by getting the taxpayer to pick up the tab for hunting down and prosecuting the malefactors."

How do you have an evil coypright malefactor without copyright law?

Numerous people have pointed out to you that once a piece of Imaginary Property is in the hands of someone who's not signed a contract it can be freely passed on to everyone. Perhaps if you explained how your brave new future of copyright contracts was going to prevent that, we might have more sympathy for your position.

Devil's Kitchen said...

Anon,

"So I'm still waiting to find out which contract I signed when I bought my CDs. I suspect I'll have a long wait."

You're right: it isn't there. However, it will be on the CD and, should you not wish to abide by the contract, I am sure that Amazon will accept returns.

Another Anon,

"How do you have an evil coypright malefactor without copyright law?"

But in this world—the world in which the music companies are lobbying governments to enforce the law—there is copyright law. So there are malefactors.

"Numerous people have pointed out to you that once a piece of Imaginary Property is in the hands of someone who's not signed a contract it can be freely passed on to everyone."

In practice, yes. But just because I can burgle a house and sell the goods in practice does not mean that it is not wrong or illegal, does it now?

"Perhaps if you explained how your brave new future of copyright contracts was going to prevent that, we might have more sympathy for your position."

Don't conflate my points: the pertinence of contracts is entirely separate from the issue of copyright.

Personally, I don't know what my brave new world of copyright law would look like: that is why I accept comments on this blog.

I shall cogitate on what has been said, and try to post something in a few days that might be closer to a solution.

However, I still come back to the same point: if we recognise that it is wrong to steal a computer, then why is it not wrong to steal the ideas that made that computer possible?

And if I spend hours creating an individual piece of digital artwork on my computer, then why is it fine to steal that when stealing a physical hand-drawn piece, such as the Mona Lisa, is wrong?

Why should you determine that the artwork does not belong to me simply because of the medium in which it is created?

DK

vlad said...

Mr Kitchen, I'm surprised that you still retain your original views, even after all your arguments have been shot down repeatedly and in painful detail.

Can't you just accept that you may be wrong?

Devil's Kitchen said...

Because, vlad, my arguments have not been shot down and I am right.

Let's look at the moral case first.

1) The standard definition of property, a la Locke, is something produced that has been mixed with the labour of your body or your mind. That quite obviously includes a piece of recorded music, a book, or an artwork—hence Intellectual Property.

2) Free trade can only take place with the consent of both parties; where one party takes something without the consent of the other party, that is theft.

3) Ergo, the use of said recorded music, written book or digital artwork without permission of the creator is theft, since it is their property.

Now, let's look at the practical side, which basically boils down to this:

1) You cannot stop people file-sharing such Intellectual Property, so you should simply make it legal.

Let's apply that to the real world, shall we? The conviction rates for rape are something like 8%. In any meaningful sense, we cannot stop rape—or even punish those who have raped.

Should we then make rape legal?

DK

Paul Lockett said...

DK:

However, I still come back to the same point: if we recognise that it is wrong to steal a computer, then why is it not wrong to steal the ideas that made that computer possible?

Because the idea of "steal" with regard to an idea is meaningless. In order to commit theft, I have to deprive you of your property. If I merely reproduce with my material property something you have done with yours, I'm not taking anything from you. Now, you might argue that I am denying you some potential revenue from me, but that to some degree is circular reasoning and taken to its conclusion, it denies all liberty and material property rights.

Take for example, the supermarket. Moving to self-service dramatically shifted the grocery market. Clearly that was a valuable idea. If we buy into the idea that replicating the idea without the permission of the first self-service supermarket, we conclude that self-service supermarkets should be a statutory monopoly controlled by the first to market. Expand that across every industry where anybody has ever had a ground breaking idea (basically, all of them) and the end result is that every activity would be a statutory monopoly, so you would be prevented doing almost anything, with either your body or your material property.

And if I spend hours creating an individual piece of digital artwork on my computer, then why is it fine to steal that when stealing a physical hand-drawn piece, such as the Mona Lisa, is wrong?

Because, if I take the Mona Lisa, the person who previously had it no longer would. On the other hand, if I just produce my own copy of the Mona Lisa (which I can, as it's never been protected by copyright), the owner continues to have the original.

The main argument that is used against treating intangibles as being suitable for the same kind of property rights treatment as tangibles is that they aren't scarce, which is sound, but my bigger concerns are the fact that they are neither discrete, nor alienable:

If you make the first ever chair and I steal it from you, it's clear that I've stolen from you. Now imagine if instead of taking the chair, I go and get some wood and make my own. Your approach would say that I've infringed your right to a monopoly on your idea, but what if I make a bar stool? Is that the same idea, or sufficiently different? What if I make a bed from wood? Is that an infringement, because I've copied your use of wood to make furniture?

Devil's Kitchen said...

P.S. Some may say that there is a problem about third parties, because it works like this...

1) I sell you a piece of my intellectual property, e.g. an MP3.

2) This song is then your property to do with as you like, right?

3) Wrong. As part of the condition of sale, you sign a contract saying that you will not copy or distribute this MP3.

4) So, you break the contract and then give/sell a copy of the file to a third party. They can do what they like with it because they haven't signed a contract with me, right?

5) Wrong. They have no right to that property because the person who sold it to them, you, had no right to give or sell it to them.

6) I might reasonably demand that you delete that file; if you want that song, then you can enter into a contract with me, the owner of that property.

Now, some people would argue that Intellectual Property is difficult to define, so let's have a go.

1) You buy a James CD for £10.

2) The songs encoded on that CD are James's Intellectual Property.

3) If those songs were not encoded on that CD, would you pay £10 for it? I would suggest not.

The same applies to an MP3: if that MP3 was 5 minutes of silence, rather than 5 minutes of James, would you pay your 79p for it? No.

Similarly, you could take all of the ones and noughts that make up the MP3 and jumble them up: you would have exactly the same "property", but would you pay 79p for it? No.

So, we can say that the Intellectual Property is the meaningful part—the valuable part—of the MP3 or the CD. The disk or the file are simply a method of delivering the value to you in a format that you are willing to pay for.

Why are you willing to pay for it? So that you can listen to the performance of the song whenever you want, rather than the once or twice a year that the band's tour takes them close to you.

So, the value is in two parts: the Intellectual Property, and the convenience. In order to obtain both, you willingly enter into a contract with the seller—and that contract states that you may not copy or distribute the method of performance delivery.

Presumably you think that this contract, and the accompanying payment, is "right" or you would not have made the exchange in the first place—after all, you won't die if you don't have that MP3.

But what happens if do wish to distribute said MP3, or even to perform a public broadcasting of it? Well, the licensing already exists for this and—guess what?—you pay a bigger price.

In other words, if you agree not to copy, distribute or make a public broadcast, you get the MP3 for a discount over those who do.

What is so difficult about all this, eh?

DK

Paul Lockett said...

DK: Let's look at the moral case first.

1) The standard definition of property, a la Locke, is something produced that has been mixed with the labour of your body or your mind. That quite obviously includes a piece of recorded music, a book, or an artwork


Locke's theory only specified mixing labour with material items. That would make the individual CD, book or artwork property, but not the idea underlying it. Otherwise, you'd be re-writing Locke's definition to say that you make raw materials your property by mixing your labour with them, unless you do it in a way that is similar to the way that somebody else mixed their labour with their property, in which case it becomes partly yours and partly theirs.

hence Intellectual Property.

I think its more realistic to say that people who enjoy state monopoly privileges over ideas want you to think of those privileges in the same way you think of material property rights, hence Intellectual Property, as a nice propaganda term, in much the same way as breaching them is described as piracy, so that people might start to view it as on par with attacking a ship on the high seas.

2) Free trade can only take place with the consent of both parties; where one party takes something without the consent of the other party, that is theft.

But as the idea theft can only be applied material property, that can't apply to the use of ideas.

3) Ergo, the use of said recorded music, written book or digital artwork without permission of the creator is theft, since it is their property.

The taking of the physical item without permission might be theft, the copying of it by the first purchaser in a way that isn't permitted by a sale contract might be breach of contract, but beyond that, I can see nothing that would be an issue under a reasonable definition of property rights.

ChrisM said...

"The standard definition of property, a la Locke, is something produced that has been mixed with the labour of your body or your mind. That quite obviously includes a piece of recorded music, a book, or an artwork—hence Intellectual Property."

Alternatively
http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=1204238

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly."

And this is where the analogy with physical property appears to break down. Copyright violation does not permanently deprive the person of the property. I am not against copyright, I am just not sure it can be argued for by direct analogy with physical property. I think it has to be argued for on its own merits rather than by inventing a dubious notion of intellectual property.

I don't think I actually disgree with you on the validity of copyright, I just don't see that it stems from property rights.
From a philosophical point of view, I like the approach which sees it as breach of contract. Although as noted by others, this means that only the original violator could be pursued. A more pragmatic defence may be the fact that some copyright protection is desirable to act as further incentive to creativity.

"And if I spend hours creating an individual piece of digital artwork on my computer, then why is it fine to steal that when stealing a physical hand-drawn piece, such as the Mona Lisa, is wrong?"

If I steal the hard drive you have your digital artwork on, this is like stealing the mona lisa. If I copy some of your digital artwork that is more akin to taking a photograph of the mona lisa when the gallary rules say don't. It doesn't mean the act isn't wrong, but neither is it theft. Its breach of the terms implicity or explicity agreed to when viewing/using the work. (Given that, it should be a civil matter not a criminal matter).

Devil's Kitchen said...

Paul,

"But as the idea theft can only be applied material property, that can't apply to the use of ideas."

Ah, now... Here you touch on how I would prefer IP to work.

Right now (certainly in the US), I can patent an idea, I don't have to make it a reality, e.g. I can patent, in theory, an anti-gravity drive but I don't have to be able to produce it.

If someone builds an anti-gravity drive sufficiently close to my patent—even if they have never seen my patent—then I can sue them for cash.

I think that this is wrong.

If, however, I build my anti-gravity drive—or record my song, or create my artwork, or write my book—I have actually made a physical object and in this case, I should be able to benefit.

Now, even under US patent law, some concepts are considered to be so basic, e.g. your chair, that they cannot be patented (which is one of the reasons that this Pirate Party postcard is so misleading).

Now, how all the above might work in practice, I don't know—I'm not a lawyer. But producing the working prototype or demo might be a good test.

DK

Devil's Kitchen said...

ChrisM,

Points taken, which is why I have consistently said (as you acknowledged) that all of this should be covered by civil law—contract law—and not criminal.

DK

Henry North London said...

Cast not thy pearls before swine DK

Paul Lockett said...

DK, I could rephrase your first argument with regard to material property thus:

1) I sell you a nice steak.

2) This steak is then your property to do with as you like, right?

3) Wrong. As part of the condition of sale, you sign a contract saying that you will not sell the steak on to a third party.

4) So, you break the contract and then give/sell the steak to a third party. They can do what they like with it because they haven't signed a contract with me, right?

5) Wrong. They have no right to that property because the person who sold it to them, you, had no right to give or sell it to them.

6) I might reasonably demand that you regurgitate the steak; or enter into a contract with me, the owner of that steak.

You're not just trying to apply the same concepts to intangibles that apply to tangibles, you're trying to make it work by making the controls even more stringent, in such a way that they would be absurd if applied by to tangibles.

As for your second point:

1) You buy a James CD for £10.

Ok.

2) The songs encoded on that CD are James's Intellectual Property.

That's begging the question. I would say that, as I've bought the CD, it is my property. Period. If there's a separate contract negotiated as part of the sale, fair enough, but that's nothing to do with "intellectual property."

So, we can say that the Intellectual Property is the meaningful part—the valuable part—of the MP3 or the CD. The disk or the file are simply a method of delivering the value to you in a format that you are willing to pay for.

No, either I'm willing to pay the band voluntarily because I want to reward them, in the same way I would a busker, or the value is the state granted monopoly they have, which stops me downloading it for no cost from elsewhere.

Presumably you think that this contract, and the accompanying payment, is "right" or you would not have made the exchange in the first place—after all, you won't die if you don't have that MP3.

If the state decides that Tesco should have the exclusive right to operate shops in the UK, I would go there to buy my groceries and I would almost certainly buy non-essential items too. That doesn't automatically make their monopoly justified, simply because I entered into it a transaction with them, nor does it mean that they aren't capturing illegitimate monopoly profits.

But what happens if do wish to distribute said MP3, or even to perform a public broadcasting of it? Well, the licensing already exists for this and—guess what?—you pay a bigger price.

In the same way, in my scenario I could ask Tesco to licence me to operate a franchise. It doesn't mean they should have the right to prevent me operating a shop.

Pa Annoyed said...

"And if I spend hours creating an individual piece of digital artwork on my computer,..."

Is it the art you're being paid for, or the hours?

It's a bit like what is owned with copyright is the right to copy, not the information being copied. So if you sell me some art, and I pass it on to somebody else without keeping a copy, then I haven't breached copyright and (from that strictly legal point of view at least) you have no complaint. So it isn't the art you own, it's the right to make more of them, to be enjoyed simultaneously by more people.

This problem of people performing services for the general public, free at the point of use (whether out of principle or technological necessity), and how they get paid for it is an old one. Who pays for maintaining the roads, or to arm and train the military? Toll roads and private mercenaries are one answer. Are they being paid to build the road, or to let you drive on it? What, actually, is it that is owned/sold?

Mr Rob said...

I can't talk about the law, but could I just try to introduce to the real world those who have said that if they perform another musician's song it's all OK as he still has the song and nothing has been taken from him?

What you are advocating is that:

some unknown guy writes a song

someone else (let's say Simon Cowell as no one likes him and I should win some emotional points)says "hey, that's good, I'll give that to my latest act to perform".

that act, backed by Cowell's PR and marketing power, makes a hit of the song and earns millions

the guy who wrote it still has his song, but gets fuck-all.

Do you suggest that he now tries to raise the money to record and market his performance of the song himself, bearing in mind many people already own a copy of the song by the Cowell act - would you lend him the money?

You are talking theory that does not work in reality. The creators do need some kind of protection.

ChrisM said...

I think we have something similar for patents here where the key phrase is the invention must be "non-obvious".

This notion of non-obvious seems pretty sensible although in the world of software patents has on occasion been forgotten it seems. ("One click shopping" and "Windowing" to fix the Y2K bug spring to mind). Still that is a problem with the fact that the US Patent Office actually has incentive to grant more patents rather than anything wrong with patents per se. The amendment you propose sounds reasonable, along with changing the USPO incentives such that they do not benefit (or lose out) from passing lots, or few patents.

Paul Lockett said...

DK: If, however, I build my anti-gravity drive—or record my song, or create my artwork, or write my book—I have actually made a physical object and in this case, I should be able to benefit.

Benefit from the use of that physical good, yes, I agree, but as soon as you claim any more than that, you are claiming a right to control other people's peaceful, honest use of their own property.

Now, even under US patent law, some concepts are considered to be so basic, e.g. your chair, that they cannot be patented

A chair cannot be patented because it already exists. I'm not convinced that, if it were evented today, it wouldn't be patentable. It's only basic because it's been around for so long. In any case, this is an argument at odds with your original point. If ideas are to be treated as morally equivalent to material goods, their basic nature should have no impact on their status as property. If I own a twig, it is no less my property just because it is basic.

Paul Lockett said...

Mr Rob,

One question about that scenario; how does Cowell make millions from the song?

To be clear, I don't completely object to copyright, I just think it shouldn't be viewed as some form of natural property right, because it doesn't logically fit there. If anything, it is a tax.

Mr Rob said...

Paul Lockett

He makes millions from the song because he has the ability to bring it to the audience, the potential buyers (apart from others sources of income such as use of extracts on TV, in adverts and programmes).

Paul Lockett said...

Mr Rob,

I'm not so sure about that. You've assumed a completely copyright free world for the songwriter, so how does Cowell retain buyers willing to hand over millions? Why would others not just do to him what he did to the songwriter?

ChrisM said...

"(apart from others sources of income such as use of extracts on TV, in adverts and programmes)."

A world in which Mr Cowell can use a song written by Mr Unknown guy without paying him anything, is not one where Mr Cowell could then expect to be charging others for the use of extracts in ads etc surely.

cabalamat said...

I've written a more complete reply to this post on my blog. It ends with this question for Chgris Mounsey (and indeed for all of us):

With the internet, people can send vast amounts of information around the world quickly and cheaply. One can also store vast amounts of information on hand-held devices, and within a few years most people will carry around with them multi-terabyte storage devices capable of storing every piece of music ever recorded. In this environment, society must choose between:

(i) recognising that preventing non-commercial file sharing is in practice unenforceable, and it is therefore de facto legal,

or (ii) in an attempt to prevent unauthorised file sharing, new technology will be crippled so that it can’t copy files very easily; computers will be locked down so they can’t run unauthorised software; the government will spy on all internet connections to catch potential file sharers; individual file sharers will face crippling fines, greater than an average person’s lifetime earnings, and much greater than typical fines for stealing physical property; programmers will be imprisoned for writing software that reads file formats; and entire families will be terrorised by the threat of being cut off from the internet if the music industry just accuses them of illegal file sharing (the music industry will not, of course, be required to prove these allegations, nor will it be punished for wrongful accusations)

Which do you choose?

Mr Rob said...

ChrisM:
Valid point.In those circumstances that particular method of making money would appear to have been closed.

Paul Lockett:
"Why would others not just do to him what he did to the songwriter?"

They haven't the means to market the song in the way that he has. And marketing the song is critical to its success - look at what Cowell did with Robson and Jerome and Unchained Melody - great song, but a completely contrived hit right from its product placement start in Soldier Soldier; I guarantee you would not have got to No 1 with it, and you can probably sing better than they can!
Think logically - what else could explain the success of Lily Allen?

Unfortunately the composer in this case didn't profit much either, but there are many very talented musicians out there who rely on copyright and royalties to continue doing what they do.

Chalcedon said...

A drug patent lasts for 20 years. R&D plus trialling can take 5-7 years, and the patent would be taken out probably after around 3 years so a patent will have 16 or 17 useful years of life protecting the branded product from generic competition in the larkets where the patent is filed. The cost for a drug launch averages around $500 million US. You are right though, patents are there to promote innovation not stifle it. Patents can be struck down or not awarded if the invention is immoral (in the UK/EU) as well as for tecnical reasons. The US allows animals etc to be patented. We don't.

The Filthy Smoker said...

Since the moral argument for protecting copyright is falling on deaf ears, let's try the practical argument.

If people aren't going to profit from their labour, they won't work, so forget about getting any decent new albums, films, books or inventions coming out after year zero. You're stuck with the back catalogue of classic rock forever (that wouldn't really bother me to be honest, but anyway...)

No government wants to be in charge of an artistic dark age so they'll rule that "the community" should fund arts and technology ie. they will use taxpayers' money to reward authors, inventors, film makers, musicians and perhaps journalists either on a one-off or ongoing basis. That, in fact, is what is recommended in this piss poor book. Some fucking quango will decide who is worthy of receiving grants and before you know it you'll have government sponsored rock and roll, Billy Bragg back in the charts and Christ knows what else.

And when whole sections of the arts and science are Sovietized, you'll have the libertarians to thank because they wanted a free lunch and because all intellectual property is theft, man.

Chalcedon said...

Re the anti gravity drive. A patent has to teach a petrson skilled in the art the basis of the patent. If it doeasn't teach then it can be either struck down or not granted, which is more likely. That's true in the US and UK.

Paul Lockett said...

Mr Rob:
"They haven't the means to market the song in the way that he has."

Sorry, I still don't see it. You still haven't explained why people would willingly be handing over millions to Cowell, rather than just acquiring what he has to offer in the same way he acquired the song.

Anonymous said...

Bella: So it's not entirely unreasonable to assume that Neal Asher has insight into this process.

Copyright and patents, while they are both often mentioned together as IP, are very different, so no, being a writer doesn't give a person insight into patents, and that shows in the suggestion that people would invent less without them, which is the reverse of what actually happens.

In practice, because most useful invention is incremental, even the requirement for a patent to be "non-obvious" is dubious. The things people patent usually are pretty obvious to people in the industry concerned.

Rob Havard said...

To use your phrase DK, it seems that you are the "Contradictory Moron".

Your position is one of a Utilitarian not of a Libertarian (unusual for the leader of the Libertarian Party). It is really a Conservative principle to put wealth generation above ethics.

Your acceptance of the (state imposed) costs of bringing drugs to market is interesting - again more utilitarian than Libertarian.

The key point is that IP allows the grantee to control what someone else does with their property. For example - it stops me from recording a song, writing a book, building an ipad with my own property and selling it if I want to.

Without IP people who were good at ideas would sell their labour or time to people who were good at making and distributing things. The granting of IP means that more efficient producers are prevented from producing something at a lower cost than the creator who may or may not be good at production - we will never know as there is no competition in producing this particular idea. It goes against the very idea of competitive capitalism and there is not a single study that has definatively shown that the benefits outweigh the costs financially.

I recommend this link for a full rebuttal of your Utilitarian argument:

http://mises.org/story/3682

Anonymous said...

Filthy Smoker: forget about getting any decent new albums, films, books or inventions coming out after year zero. You're stuck with the back catalogue of classic rock forever (that wouldn't really bother me to be honest, but anyway...)

OK, Beethoven wasn't protected by copyright, so I guess he can't have written any music then (or no "decent" music at least). And while I'm no expert on rock musicians, don't they make money by going on tours? As for the "no inventions without patents" prediction, *sigh* I guess it just shows how few people these days work in engineering or know any history of technology.

Paul Lockett said...

The Filthy Smoker: No government wants to be in charge of an artistic dark age so they'll rule that "the community" should fund arts and technology ie. they will use taxpayers' money to reward authors, inventors, film makers, musicians and perhaps journalists either on a one-off or ongoing basis.

That's exactly what copyright does. It's a collectivist interference in the free market, justified on the basis that it produces outcomes which are for the "greater good." Even if it were true (which is highly questionable), that kind of utilitarian argument, for what is in effect a tax, doesn't sit easily with me.

Rob Havard said...

Oh and your protestations on the "contract argument" do not cover people re-making the product more efficiently themselves. The contract can only exist between buyer and seller.

The person who immitates the product or song is not bound by any contract.

A good example of the benefits of removing IP protection is Bob Dylan.

What-ever your thoughts on Bob Dylan, he was a better song writer than he was a singer. Without IP protection he would have written songs under contract to people who could sing them well and we, the consumer would have been MUCH better off.

Moreover, a succesful song writer could earn a huge amount as long as they continued to write good songs. Also we would not be palmed off with Albums containing 50% of Bollocks as most do.

Should Dick Fosbury have patented the Fosbury Flop? Surely by not doing so he was prevented from maximising his earnings? Hell, he could still be winning the Olympic title if all the other athletes had to still do scissor kicks. What a dis-incentive for other highjumpers who might also invent a better way of jumping high.....

The Filthy Smoker said...

Anon 12.26

Classical composers had patrons who paid to have (generally) very formulaic music written for them. Getting rid of copyright would put artists back in the pocket of patrons (ie. the state) who know nothing about their art.

Of course people will keep composing with or without copyright, and music will continue to be performed live. I doubt many people are going to want to pay to listen to an author read his book or hear an inventor tell the story of how he invented his widget.

Anonymous said...

I doubt many people are going to want to pay to listen to an author read his book or hear an inventor tell the story of how he invented his widget.

You don't seem familiar with engineering? People who invent widgets are typically in high demand for consultancy, and they would be regardless of whether or not patents existed. There is some good background reading here and it would be great if you or anyone else could let us know where their largely utilitarian argument against patents falls down. Clearly the authors of that book, at least, found it worth their while to write, even though it's available for free.

Paul Lockett said...

The Filthy Smoker: Getting rid of copyright would put artists back in the pocket of patrons (ie. the state) who know nothing about their art.

Why would it have to be the state? What's to stop artists seeking patronage from ordinary consumers?

I doubt many people are going to want to pay to listen to an author read his book

You might be surprised. I walk past a book shop every day and it's continually advertising tickets for book readings. It's the kind of business model which might prove perfectly viable in a free market.

bella gerens said...

"OK, Beethoven wasn't protected by copyright, so I guess he can't have written any music then (or no "decent" music at least)."

He may not have had a copyright, but one could argue he was certainly a monopoly rights holder by virtue of the fact the he owned the physical score of his music and had complete control over whether or not anyone made copies.

Those who heard live performances of his music could certainly try to copy it from memory, but as this was a particularly rare talent (incidentally, one Mozart had been famous for), I doubt there were many unauthorised performances of Beethoven's music taking place.

Patronage is another relevant point, but it's important to remember as well that the supply of original music before the 20th century was incredibly small; short of having a generous patron, many otherwise creative people simply could not afford to indulge themselves in their art if they wanted to earn a living, and those who did indulge - Berlioz, for example - lived in stinking poverty.

James Higham said...

A useful start is to support the referendum for the EU because there is no change to the law possible without EU compliance.

Demand a referendum first and the other things will flow from that.

Anonymous said...

the supply of original music before the 20th century was incredibly small; short of having a generous patron, many otherwise creative people simply could not afford to indulge themselves in their art if they wanted to earn a living, and those who did indulge - Berlioz, for example - lived in stinking poverty.

Not sure if you're suggesting that's a copyright issue? The supply of many things was incredibly small by modern standards in the 19th century, and there were many people in dire poverty; there are many poor musicians today, come to that. A fairer comparison would be between say the UK, where music copyright existed since 1780, and Germany during the same period:

Think for a moment of the history
of European music between 1780 and 1870 as, by the latter date,
music had become copyrightable all over Europe.
• Which countries would you list in the “top three” producers of
music during that period?
• Would the United Kingdom make that list?
• Would you agree or disagree with the following statement:
“After 1780, the quality and quantity of music produced in the
UK increased substantially”?
• Make up your personal list of the top ten music composers of
that period, how many are British or worked in England?
By the way, while evaluating the results of this small
experiment do keep in mind that England was the most
economically advanced country in Europe during that period, and
that both general and musical, literacy was more widespread there
than in continental Europe.

- Boldrin & Levine

cabalamat said...

Chalcedon: A patent has to teach a petrson skilled in the art the basis of the patent. If it doeasn't teach then it can be either struck down or not granted, which is more likely.

That's the theory. The practise is somewhat different. For example, Frank Whittle patented the jet engine several years before he managed to make a working jet engine himself. This patent couldn't teach people how to make a jet engine, because at the time he wrote it he didn't know himself -- it took him several years of solid engineering before he could make one.

If patents actually did encourage innovation, I would have no problem with them. However, often the patent system slows down innovation, which is why the Pirate Party wants to reform it.

cabalamat said...

The Filthy Smoker: If people aren't going to profit from their labour, they won't work, so forget about getting any decent new albums, films, books or inventions coming out after year zero.

Ah, yes, the Linux-doesn't-exist theory of intellectual property. I guess you believe Wikipedia doesn't exist either.

Devil's Kitchen said...

"Your position is one of a Utilitarian not of a Libertarian..."

From my point of view, I am arguing for people to have rights over their property—an entirely libertarian point of view.

What outrages you, and the others here, is that the product of someone's brain might be as valuable (or more) as the product of their hands.

Many people here are arguing that:

1) IP, copyrights and patents shouldn't exist because protecting them is unenforceable, or

2) society would be "better" without IP, copyrights and patents,

3) neither of which are libertarian arguments because they emphasise the right of the collective over the individual.

"I guess you believe Wikipedia doesn't exist either."

And I guess that you believe that Wikipedia is 100% accurate too.

DK

Rob Havard said...

"What outrages you, and the others here, is that the product of someone's brain might be as valuable (or more) as the product of their hands."

Rubbish. The product of their Brain makes the product of their hands more valuable.

I'm the one defending the right to do with my property as I wish. You are suggesting that you should be able to get the State to pass a law to prevent someone else from using THIER property in a way that YOU don't like, hardly Libertarian. As Stephan Kinsella from the Mises institute points out, this is just State sponsored wealth re-distribution.

By removing IP protection you increase the efficiency of production and bring down costs to the producer (a wonderful aspect of competitive capitalism).

You above all people ought to recognise the impact of the internet and digital technology. It actually increases the incentive to create as anyone can now find an access to market, the gatekeepers like book publishers and record companies can no longer keep content out.

The other important aspect of this is costs of production, What are the costs of copying and sending/downloading a digital file? Is it close to Zero? What is a reasonable profit margin? 40%? 60%? 100% of nothing is not a lot.

What we are seeing with file sharing and uploading is the market trying to re-balance to what people are willing to pay for a digital file.

Your product, artwork, song or book is only worth what the market is preoared to pay for it. It is not what you are prepared to recieve for it. You are suggesting that if you don't like the price the market has to offer then you should be able to get the State to pass some coercive laws to grant you a monopoly on its production so that you may charge what you like.

It is like Public sector workers or doll scroungers voting for more handouts and that is why it is still State sponsored re-distribution.

Anyway Stephan Kinsella has a far better summary of the argument against IP protection over on the Mises economics site that I linked to in my previous post.

Rob Havard said...

This is the link:

http://mises.org/story/3682

Paul Lockett said...

DK: From my point of view, I am arguing for people to have rights over their property-an entirely libertarian point of view.

What you're arguing for is for other people to have an acknowledged right to restrict my peaceful honest use of my property - not a libertarian point of view as far as I'm concerned.

What outrages you, and the others here, is that the product of someone's brain might be as valuable (or more) as the product of their hands.

What has value got to do with anything? Whether or not something is my property is not determined in any way by its value.

Many people here are arguing that:

1) IP, copyrights and patents shouldn't exist because protecting them is unenforceable, or

2) society would be "better" without IP, copyrights and patents,

3) neither of which are libertarian arguments because they emphasise the right of the collective over the individual.


My point (and the one forwarded by a few others) is quite simply that, if I have material property and I use it in a way that doesn't harm you, it's none of your business, because its my property, not yours.

The only collectivist argument I've seen consistently advanced is the one that says we need copyrights and patents, because, without them, there will be less creativity, which would not serve the "greater good."

Devil's Kitchen said...

"Your product, artwork, song or book is only worth what the market is preoared to pay for it."

Uh huh.

So, an artist asks 70p for a song; you decide that the song is worth 70p and you pay.

Or, you decide the song is not worth 70p, and don't pay.

That is a true decision as to value, OK?

However, the artist asks 70p for a song; you think that the song is worth 70p, but you know that you can get it for free elsewhere, so you do.

And don't, please, try to tell me that most people will pay the artist 70p for the song: if that were the case, illegal downloading wouldn't be an issue.

I don't use download sites because I consider taking and using a product without paying the asking price to be theft.

I admit that this is simply an expression of my personal morals but that is why I consider your attitude to be wrong. OK?

Paul,

"What you're arguing for is for other people to have an acknowledged right to restrict my peaceful honest use of my property - not a libertarian point of view as far as I'm concerned."

Unless you legitimately own that product, i.e. you have agreed the trade with the person who created it, then it is not your property to dispose of.

"My point (and the one forwarded by a few others) is quite simply that, if I have material property and I use it in a way that doesn't harm you, it's none of your business, because its my property, not yours."

My point is that, having not signed a contract (regardless of issues over IP, copyright or patents) you do not have a legitimate right to that property.

Can you see that?

"The only collectivist argument I've seen consistently advanced is the one that says we need copyrights and patents, because, without them, there will be less creativity, which would not serve the "greater good.""

Hmmm. And I've seen a lot of arguments that boil down to "I don't want to have to pay for shit, so let's make theft legal."

Now, I asked a question about rape earlier, viz.

"1) You cannot stop people file-sharing such Intellectual Property, so you should simply make it legal.

Let's apply that to the real world, shall we? The conviction rates for rape are something like 8%. In any meaningful sense, we cannot stop rape—or even punish those who have raped.

Should we then make rape legal?"


Anyone want to answer it? cabalamat, perhaps?

DK

The Filthy Smoker said...

Ah, yes, the Linux-doesn't-exist theory of intellectual property. I guess you believe Wikipedia doesn't exist either.

If there is no money to be made from making films, studios will stop making films. If you stop someone making money from their job, they will find another job. I fail to see how anyone, libertarian or otherwise, cannot grasp that. Or do you think that artists are happy to starve so long as their work gives you pleasure?

The same applies to books, pharmaceuticals and, to a large extent, recorded music. Yes, a few people will put an album out on Myspace because they want the fame, but you're going to see the quality drop pretty fucking quickly when you watch a film or read a book.

Some people's job is to rearrange words, colours or notes to create something original and beautiful. The words and notes are free and universal. The material is is recorded or written on has negligible value. It is the arrangement that has value. How do we know it has value? Because people pay good money for it when they can't steal it, just as they do with any product. The fact that you can steal something does not mean its value is zero.

Some people, including Stephan Kinsella, cannot comprehend the idea of property relating to anything other than material objects. That seems to me to an obtuse and over-literal interpretation but it’s a viewpoint I suppose. But let’s at least accept that a world in which art which can be copied and stolen without the artist being compensated is going to lead to less art.

Paul Lockett said...

DK: My point is that, having not signed a contract (regardless of issues over IP, copyright or patents) you do not have a legitimate right to that property. Can you see that?

So now, my own property is no longer my property, it is the collective property of me and anybody else who may conceivably have a use for it. Yes I can see it. It is a pile of steaming collectivist manure and I reject it absolutely.

I can see a pile of blank CDs in front of me. Guess what - they're MINE. However much you think you might have some moral claim over them because I haven't agreed to some contract with you which "permits" me to use them in some particular way that meets with your approval, you don't. They're my property, not yours, not even a little bit.

Devil's Kitchen said...

Paul,

"I can see a pile of blank CDs in front of me. Guess what - they're MINE. However much you think you might have some moral claim over them because I haven't agreed to some contract with you which "permits" me to use them in some particular way that meets with your approval, you don't."

For fuck's sake, are you being deliberately obtuse?

You own those blank CDs, but you do not own the recordings that you might fill those CDs with—you have licensed them under contract.

I will say again: you own the blank CDs, you do not own the recordings of the songs that you might fill them with.

Do you get that? This is a fucking issue of legal fucking contracts, regardless of any issues of IP.

I am not saying that you cannot do what you want with those blank CDs—I am saying that you cannot do what you want with the recordings of songs.

Fucking hellski.

DK

Paul Lockett said...

DK: I will say again: you own the blank CDs, you do not own the recordings of the songs that you might fill them with.

Do you get that? This is a fucking issue of legal fucking contracts, regardless of any issues of IP.


No, it isn't, because in a scenario with only contractually enforced restrictions, if I have acquired the information I put on the blank CD without entering into a contract with you and I own the blank CD, then the scope you have to stop me burning whatever I want on that CD is precisely zero.

I am not saying that you cannot do what you want with those blank CDs—I am saying that you cannot do what you want with the recordings of songs.

If you can point to some contract I've entered into with you, where I agreed to restrict my peaceful, honest use of my property in a certain way, then of course, you're quite right to demand that I refrain from those activities. Otherwise, as it is an issue of legal contracts, what I do is none of your business.

Devil's Kitchen said...

Paul,

The recording is only available legally, from the creator (or creator's appointee), under licence.

If you own a recording of a song that you have not licensed, then you have no right to that recording: it is not your property.

If I steal an antique from someone's house, and then sell it to you, you do not have a right to that antique because it was never mine to sell.

It doesn't matter that you signed no contract with me (in fact, it wouldn't matter even if you did), that antique is not your property because it was never mine to sell to you.

What you are doing is not a clever-clever way around the licence: it is more akin to handling stolen goods.

DK

Pa Annoyed said...

"...you own the blank CDs, you do not own the recordings of the songs that you might fill them with."

Wrong! You do own the recordings of the songs, you do not own the right to copy them.

If you buy a CD legally, you can then sell the CD to somebody else for the price of the music - not just that of the media it is recorded on. What you can't do is also keep a copy for yourself.

Copyright (and for that matter, patents) does not constitute ownership of information, ideas, or artistic works. It constitutes ownership of a right to restrict what is done with them.

That's not supposed to be an argument supporting piracy. But it's important to be clear on definitions, or you're liable to construct the wrong solution.

And I think you might be missing a trick in not recognising that the issue is more general, and applies to many public goods and market externalities. There's a lot of theory to draw on there.

Paul Lockett said...

DK: The recording is only available legally, from the creator (or creator's appointee), under licence. If you own a recording of a song that you have not licensed, then you have no right to that recording: it is not your property.

You start off claiming This is a fucking issue of legal fucking contracts, regardless of any issues of IP. then as soon as the hole in that argument is pointed out, you fall back on the it is not your property argument. You're right, it isn't my property, but neither it is yours or anybody else's, because you've already said it is a matter of contract, not property.

Take the earlier example of the Fosbury Flop in High Jumping. Imagine that Dick Fosbury had "licensed" the technique to one of his friends, on the understanding the he didn't show the technique to anybody else prior to the next Olympic Games or compete directly against him. Now imagine that his friend was out practicing in the park very early one morning thinking he was alone, not realising I was jogging past. I see the technique and decide to use it myself in a High Jump competition.

Imagine if Dick Fosbury came along and told me to stop using the Fosbury Flop because it was not my property and I had no right to use it as I had not obtained a licence to use it from. My response would be terse and two words long and you know what, I'm fairly confident that whatever action he might try to take against me under contract law would be laughed out of court very rapidly.

If I steal an antique from someone's house, and then sell it to you, you do not have a right to that antique because it was never mine to sell.

Because it is somebody's property. It would be more informative if you made your mind up, rather than flipping your argument. Is it a property rights issue or a contract issue you're addressing this as?

Devil's Kitchen said...

Paul,

Your Fosbury flop thing is simply not the same as ripping off a music recording.

It's the same as hearing someone playing a song, and then going and playing it (and, possibly) recording it yourself.

You have an absolute right to record yourself playing the song, and record it, and put it on your blank CDs if you like.

What you do not have the right to do is whatever the hell you like with someone else's recording.

That recording is present as a physical entity, just like the antique. Were it not, you would not be able to copy it.

DK

Devil's Kitchen said...

cabalamat,

"Ah, yes, the Linux-doesn't-exist theory of intellectual property."

Ah yes, the Linux-is-all-just-a-big-altruistic-move theory of intellectual property, rather than the Open-Source-is-just-a-different-money-making-business-model theory of intellectual property.

DK

Paul Lockett said...

DK: Your Fosbury flop thing is simply not the same as ripping off a music recording.

If, as you claim to believe, the music issue is a contract issue, then it is exactly the same. In both cases, somebody has acquired information under a contract which prevents them using it or redistributing it in a certain way, I contract which you think, somehow constrains me as a third party who is not a signatory to the contract.

You have an absolute right to record yourself playing the song, and record it, and put it on your blank CDs if you like.

Or to put anything else I like on the CD I haven't contracted not to, if, as you claim, it is a contract issue.

What you do not have the right to do is whatever the hell you like with someone else's recording.

On what basis? It started off a property rights claim, then it went to a contract issue, now it's just bare assertion.

That recording is present as a physical entity, just like the antique. Were it not, you would not be able to copy it.

So intangibles are now tangible. Even the laws of physics have been made to give way to allow the justification to stand.

Sorry, but if a song arrives to me as stream of zeros and ones, either down a broadband connection, or through the airwaves as part of a radio transmission, then I fail to see how it can be claimed that the song is present in my house as a physical entity.

Devil's Kitchen said...

"Sorry, but if a song arrives to me as stream of zeros and ones, either down a broadband connection, or through the airwaves as part of a radio transmission, then I fail to see how it can be claimed that the song is present in my house as a physical entity."

And this is exactly how those who wouldn't steal an actual DVD from a shop persuade themselves that what they have is not, in fact, a stolen item.

This is why, much further up the thread, I asked if an MP3 would be worth the 79p if it were just a random bunch of ones and zeros.

An MP3 has a physical reality, in the sequence of magnetised particles on your hard drive. Were the particles not arranged just so, then your MP3 would not be useable.

Just because it doesn't come as a shiny disk in a pretty box doesn't mean that it is not a physical entity.

DK

Paul Lockett said...

DK: And this is exactly how those who wouldn't steal an actual DVD from a shop persuade themselves that what they have is not, in fact, a stolen item.

No, it's just reality, the law and the dictionary that tells them it isn't. Unless what you have is material property taken from somebody else against their will, you don't have a stolen item, no matter how much you personally might want it to be otherwise.

An MP3 has a physical reality, in the sequence of magnetised particles on your hard drive.

Your argument's darting around. Your previous point was That recording is present as a physical entity, just like the antique. Were it not, you would not be able to copy it.. You were saying that I couldn't copy it because it wasn't physically present before the copying, now you're saying the issue is that it is present afterwards.

The "stolen item" idea is just a repeat of the previous blank CD argument. The only physical item that is present is the hard drive and that is MY PROPERTY. No matter how I arrange the particles on it, it remains MY PROPERTY, irrespective of how unhappy you are with my personal choice of arrangement.

Now in the world you hypothesise, where copyright is achieved solely through contract, my choice of arrangement of particles might be in breach of some contract I have with you, at which point, you could, quite rightly, take action against me (assuming you've also got me to agree to allow you to inspect my hard drive, which is the only way you could realistically know).

The problem is that if I've, for instance, obtained that sequence of ones and zeros by recording a radio broadcast, there is clearly no contract I've agreed to, so there's no serious complaint anybody could have with my actions. I've hurt nobody, I've taken nobody else's property and I've broken no contract.

You're arguing in circles in search of a conclusion which just isn't there.

Rob Havard said...

Whatever you say DK IP protection is clearly not a Libertarian Principle and violates property rights. It is the state coercively preventing me from using my property how I wish.

The contract argument is nonsense because it assumes that people aquire the files illegally. It is only illegal due to IP protection laws which are statute laws not Common law rights. You often blog about rights being granted to people by statute rather than them being inalienable rights, yet here you argue for the opposite, rights granted by statute.

I contend that a good artist, song writer or inventor would still be able to earn shed loads working as an artist, song writer or inventor - as long as they were good. In the same way that footballers earn lots of money and ACDC and Def Leopard make a fortune from touring because they are great live performers. Songwriters and artists already make a mint by working to commission and the loss of IP protection would not stop this from happening.

"So, an artist asks 70p for a song; you decide that the song is worth 70p and you pay.

Or, you decide the song is not worth 70p, and don't pay.

That is a true decision as to value, OK?"

No, clearly not as the market has been turned into a Monopoly (Bella above accepts that it is creating a Monopoly) , unless you want to argue that Monopolies crete really good market conditions...?

Most of your arguments are not based on the principle of protecting property rigths but on the basis that if the law were abolished it would prevent some people from making a living (which I still contend). This is Utilitarien - like it or not. However, even if we assume that it does have a negative effect on artists then why should that violate property rights? Sounds a bit like a socialist arguing for re-distribution through taxation because capitalism if left alone would not cater for the poor.

Without IP protection profits would not be guaranteed through the issuance of a Monopoly so more innovation would be necassary to keep the edge and to continue to generate more profits. This would actually increase the value of innovators, thinkers, creators.

P.S.

Can't think of many other political blogs with the quality of argument and discussion as on here. Whatever your views on IP the freedom of discussion on here just demonstrates the strength of the Libertarian movement and, I hope, the future of the Party on the web and in the Country. How many party leaders - even of minority parties - would yo be able to debate with like this? I suppose I better join.....

marksany said...

But pirates are so cool, ARRRRRRR!

Joshua said...

Question about medicine:
Is researching medicine simply finding out the effects that certain chemicals has on a human being - ie. it's simply scientific research.

If so, how can you ban other people from using the benefits from your research? Could Newton ban people from using his discoveries about gravity? Why can a company ban people from using their discoveries about certain chemicals?

marksany said...

Joshua, why would you do the very expensive research if anybody could copy your findings for free and undercut you in the market? The deal with a patent is that you publish your knowledge for the good of all (others can then build on your work) and in return you get protection to exploit the knowledge. Without patents, it would all be done with trade secrets and in some spheres, progress would be much slower.

I suspect that what is wrong with the patent system is not the idea of patents, but what the system will consider patenting. In my business there are lots of patents to avoid, and we apply for patents all the time. But most of them are patenting the bleedin obvious, not some great breakthroughs obtained at great cost.

ChrisM said...

"Is researching medicine simply finding out the effects that certain chemicals has on a human being - ie. it's simply scientific research. "

Its often a little bit more than that. These certain chemicals are not always simple chemicals found in nature, they are often highly engineered compounds and can be thought of more as nano machines, that have been carefully designed and then constructed. For such complex compounds that are not found in nature, it is arguable whether they are discovered, or invented. I would say there is a good case for such compounds to be deemed inventions rather than discoveries.

Anonymous said...

"contract which you think, somehow constrains me as a third party who is not a signatory to the contract"

Let us assume for agurments sake that you agree with medical patents (the fact that they are abused is not an argument to dismantle them completely, and frankly i don't care for the opinoin of anyone who thinks they are not needed).

Would you argue then that a third party, not signatory to the contract, should be legally allowed to manufacturer and sell the drugs?

That is what you are arguing.

Paul Lockett said...

Anonymous @ 4:57,

You've taken a sentence out of context and come up with an erroneous conclusion.

DK said that he thought copyright was achievable purely by contract, so we were debating on the basis that there was no statutory copyright, just contract.

As soon as you say "assume for agurments sake that you agree with medical patents" then you are talking about a world where contract isn't the only thing binding me, which then makes your following question and conclusion nonsensical.

Francois Tremblay said...

This entry was a load of absolute nonsense. The LPs of the world are so up the capitalist ass that they can't smell the coffee. Sad, just sad.

Propertarian scum, is what you are...

Francois Tremblay said...

Just to make this clear, the rantings of this LPUK leader have NOTHING to do with what most libertarians believe. He is a politico, not a libertarian. Most libertarians are squarely against IP "rights" and corporate profits.

Mr Potarto said...

Most thought provoking points:

1) Anonymous: "Imagine a world where you had a magic box which could copy any physical item at zero cost. Could anyone in their right mind seriously demand that people should be prevented from copying any item they so choose? That is precisely what you're demanding when you support Imaginary Property in a digital world."

2) Rob Harvard: "Should Dick Fosbury have patented the Fosbury Flop? Surely by not doing so he was prevented from maximising his earnings? Hell, he could still be winning the Olympic title if all the other athletes had to still do scissor kicks. What a dis-incentive for other highjumpers who might also invent a better way of jumping high....."

3) Filthy Smoker: "Some people's job is to rearrange words, colours or notes to create something original and beautiful. The words and notes are free and universal. The material is is recorded or written on has negligible value. It is the arrangement that has value. How do we know it has value? Because people pay good money for it when they can't steal it, just as they do with any product."

The rest is mostly masturbation. Who is right? No idea. I came into this post with views similar to DK, but I'm not so arrogant as to believe because I think something, therefore it is. It's a fascinating topic and it's refreshing to read so many posts with so little abuse.

Anonymous said...

"You've taken a sentence out of context and come up with an erroneous conclusion.

DK said that he thought copyright was achievable purely by contract, so we were debating on the basis that there was no statutory copyright, just contract.

As soon as you say "assume for arguments sake that you agree with medical patents" then you are talking about a world where contract isn't the only thing binding me, which then makes your following question and conclusion nonsensical."

Actually the point is that such contracts are unenforceable without patent law.

I wasn’t particularly getting in on the particulars between you and DK.

Pharmaceutical companies will not want to spend money on R&D, unless they can stop someone taking the results of the research, making the product, and then undercutting them. Again, let's not get bogged down with how such patents are abused.

If you say that contracts are only relevant between say pharmacy and distributers, and that you could legally copy the product, as you signed no contract.

Well, do you see where this is going?

All i see is you arguing that companies should have to risk spending £££ on R&D for whatever type of product, but gamble that no-one else will copy the product, and undercut them as they have no costs to recoup.

Paul Lockett said...

Anonymous: Actually the point is that such contracts are unenforceable without patent law.

That was exactly the point I was making! I was highlighting that contract law is not interchangeable with copyright or patent. The protection of the latter is much stronger than could be achieved by the former.

All i see is you arguing that companies should have to risk spending £££ on R&D for whatever type of product, but gamble that no-one else will copy the product, and undercut them as they have no costs to recoup.

No, you don't see that at all, because I've not said that. Once again, you've taken something out of context, made an assumption and come up with an erroneous conclusion.

My point was that patents and copyright are utilitarian devices which the state has created with the justification that they increase creativity, which serves the "greater good," not natural property rights to which the holder is morally entitled.

Please stop trying to put words in my mouth. If you want to refute the argument that you're trying to attribute to me, go and find someone who's advanced it.