The Copyright Monopoly Stands In Direct Opposition To Property Rights

http://falkvinge.net/2012/12/22/the-copyright-monopoly-stands-in-direct-opposition-to-property-rights

by axk • 14 years ago

42 29 14 years ago

falkvinge.net

Tycho• 14 years ago

What about privacy rights?

monochromatic• 14 years ago

I stand in direct opposition to alarmist article titles.

jval2• 14 years ago

This article is completely wrong. I have read a few articles (I think there was one on TorrentFreak) on this point in the last few days that seem to completely misunderstand what property is and how intellectual and real property rights are related.

Firstly, 'property' is not a clearly defined concept. It has a series of features, which may not be present in all types of property. For instance, I might own real property which my local authorities put conditions on, forbidding me from building anything above three stories, or requiring a building permit before commencing works. Nobody would suggest that this is not my property though.

So what is property? Property at its core involves society granting one or more 'property rights' in respect of an object. Those property rights are all monopolies over certain things, such as a monopoly over possession, a monopoly over any profits etc etc. Each one of these rights can be individually cut off and assigned to a third party, or temporarily licensed to someone.

Which brings us to intellectual property, or more specifically in this instance, copyright. Copyright too is a grant of a series of monopolies rather than a single monopoly. The right to reproduce, the right to create derivative works etc are what is termed 'the exclusive rights' of copyright owners. What this article is describing is the exercise of those rights. Yes, when you purchase a DVD, you are not purchasing the underlying property. If you were, then you would be getting the film company's rights (which they may have spent hundreds of millions of dollars creating) for the very low price of $19.99 (or whatever you happened to pay for the DVD). Because they are granting you a licence, you get a limited licence for a fee.

If you don't like it, contact them directly and arrange terms of a different licence for a different fee. They have the power to do this because they own the property, not you. You might think you own the property but if you think harder about it, you own the physical DVD with its copy of the film, not the right to make unlimited copies of the film itself (which would amount to you owning the film, which is ridiculous).

The problem with Hollywood has nothing to do with some sort of fundamental flaw in the nature of copyright itself that we have failed to spot - it has to do with the failings of Hollywood to build a distribution model for the digital age that uses an online intermediary as a means of protecting property rights rather than suing individuals in a bid to make an example of people. It has to do with the fact that as Larry Lessig said, in the modern era, code is law - the software we create to protect things is more important than the laws we use to do so. The fact that it took so long for Netflix and Spotify to build businesses is proof of the fact that the code here hasn't kept pace with the law - if it had, we wouldn't have this problem. If the RIAA spent half their lobbying budget funding innovative new startups, they would have saved themselves a ton of money and we wouldn't be having this discussion.

unavoidable3• 14 years ago

This is indeed the 'correct' (or at least more correct) interpretation of what 'property' means in the digital context.

On the other hand, I can't help but wonder whether Hollywood and BigContent is trying to have it both ways. A big part of the problem is that BigContent tried very hard in the 90s and early 2000s to get it into the consumer's mind that intellectual property is analogous to physical or personal property. Remember those ads, like "Don't copy that floppy", or "You wouldn't download a car"? They deliberately (for obvious reasons) tried to make the same analogy.

And now, here they are, finally after more than a decade spent kicking and screaming and suing everyone in sight, are trying to adapt to the business models consumers have been waiting for - and now they come back and claim that "oh, we didn't really mean that this is like personal property at all - we're just giving you a limited license and we can take it away at any time!"

There's a certain degree of cognitive dissonance at work here, and if I was an "average" consumer I'd probably be a little bid confused and a little bit unhappy about the severely limited rights I've been given after all I've been hearing and what I've been used to.

The eBook industry is a good example - the oligopoly of publishers has managed to set the prices for eBooks at virtually the same prices as physical books, and in some cases even more expensive than physical books. Yet, the rights I have with my eBook are far less than with a physical book (recall the Kindle issues and the woman who had her access revoked).

Is this BigContent's new business model? Charge more for less rights? If so, I think the outrage is understandable (if not legally or philosophically well formed).

Falkvinge3• 14 years ago

> What this article is describing is the exercise of those rights. Yes, when you purchase a DVD, you are not purchasing the underlying property.

This statement is utterly and completely false. You can examine the consumer protection laws in pretty much any first-world country to see that sale-of-goods laws and first sale doctrine both apply without mercy.

As your argument is based on the quoted premise, which is sadly factually incorrect, I read the rest of your objection to the article as logically failing.

When you buy something over-the-counter, it does become your property, in all its aspects. Any restrictions to your property rights over the object you bought are just that; restrictions of your property rights.

The copyright monopoly is one such restriction of your property rights.

jval2• 14 years ago

Sale of goods refers to goods, which do not include intellectual property. The first sale doctrine refers to resale of goods which contain copies of intellectual property (such as books and DVDs), and refers only to the transfer of the limited licence embodied inside the good. It allows you to resell the DVD with licence attached, but doesn't allow you to copy the DVD at all. It doesn't grant you any additional rights that you didn't already have at the point of sale.

Please try not to be so aggressive when you don't know what you're talking about.

rayiner4• 14 years ago

You're incorrect. When you buy a DVD, you're buying the physical plastic, and licensing the content represented therein.

And the first sale doctrine isn't a "consumer protection law." It's a judicial gloss on top of the copyright act that has never been codified into statute.

wwwtyro3• 14 years ago

I find your definition of property lacking. I find it lacking because it implies that there's some series of ones and zeros that I cannot inscribe onto my plastic disc.

Emphasis on the word my.

If I own something, then I have the right to alter it as I please, so long as doing so does not damage the property of another. Your definition of property does not let me do this, and so conflicts with property rights in general. I am forced to reject it.

Your reliance on society (by which you seem to mean government) to define property rights defies reason. Can society declare that my person belongs to someone else? I reject such notions.

mchusma• 14 years ago

So would you reject private parties agreeing to selling you an item with restrictions? For example, if I make a painting, and only agree to sell it to you if you agree not to do anything to it, how would you handle this? Would you say it is illegal for me to add such a restriction? Would you say any such clauses would be rejected (even if we both had agreed to them)? Any such restrictions would reduce property rights, it seems, because I am no longer allowed to privately agree to terms with other parties regarding the exchange of my property.

I am not a fan of copyright law as it stands by any means, but this article (and comment) seem to go to far.

vy8vWJlco2• 14 years ago

From the article: "(Some people would argue that even property as such is a governmentally-sanctioned private monopoly, in order to downplay the fact that the copyright monopoly stands in opposition to property rights, but that would not be what we mean by "property" and "monopoly" as concepts. If I own an umbrella, I control that umbrella. If I have a monopoly on umbrellas, I get to control everybody else's umbrella too, and get to call on the government to have that enforced.)"

I believe the above was meant to addresses your specific form of criticism.

I've said it before, and I'll say it again...

"imaginary property" != "real property"

importanceof("real property") > importanceof("imaginary property")

I believe my right to exist stems from my "inalienable property right" to my own body. I can move it left and right and up and down. If someone were to try to take that away from me, I'd be pretty upset and I'd do more than write my representative.

Whereas, the basic idea of copyright is to encourage sharing of ideas - it doesn't actually have a basis as an inalienable or "moral right." In order to encourage sharing ideas, societies have been allowing the encroachment of imaginary property rights (a euphemism for the independent traditions of copyright, patents, and trademaks) on tangible and even inalienable property rights (making it uncomfortable to say the least). The Internet, however, has shaken even that basic premise: the Internet is full of creativity (not just copyright infringement). Only a fool would "buy" water in the rain.

We should not be allowing, condoning, or financially supporting, any unneeded encroachment on tangible rights, so IMHO we should dismantle copyright as we know it. What's more: copying itself has social value that should not simply be dismissed.

This whole conflict is about preserving the front-loaded pricing (CDs and DVDs that can sit on a store shelf) that the biggest music and movie publishers only became accustomed to this century, after the phonograph. (OK, the printing press was around a little longer before that, but scribes couldn't help read the book they were copying...) As awkward as it is for these biggest "creators" (distributors) to return to a gratuity system (beg? never!), this change only affects the biggest publishers and employers, not creators generally.

The moral argument for copyright is an illusion: it's a confusion of the right to privacy with the right to have monopoly control over distribution. I support the former but not the latter.

For independant artists and creators, the Internet is the best opportunity ever to realize their vision, to distribute it directly, and to capitalize on it directly... But the tip only comes after the meal.

I believe the long-term implications of this conflict were explored further by Cory Doctorow in the following:

http://www.youtube.com/watch?v=gbYXBJOFgeI

Do you also disagree with him?

rayiner4• 14 years ago

There are various problems with the article, but the most glaring is the implicit assumption that copyright rights are somehow less fundamental than other kinds of property rights. They are not. Both exist because of the law, and neither exist without the law.

wwwtyro3• 14 years ago

> Both exist because of the law, and neither exist without the law.

I could not disagree more. Rights exist even in the absence of respect for them. I affirm my right to life, and I would do so even if every person in the world wanted to kill me.

Rights are inalienable.

rayiner4• 14 years ago

Leaving aside religion, rights exist only because society recognizes them and is willing to use its collective force to enforce them. In the absence of society, humans have no more of a "right to life" or a "right to property" than the chicken that ended up on my plate for dinner has these things.

bo1024• 14 years ago

I think that copyright rights are less fundamental than physical property rights. The right to own/control a physical, tangible item is very intuitive to me. The right to control how other people use or share a piece of information is fuzzier, a step further removed. That's just me, but I find it reasonable to suppose that many others have a similar view.

rayiner4• 14 years ago

I was arguing from a legal viewpoint: neither copyrights nor other property rights are more fundamental in the law.

Re: intuition, it's strange that you'd characterize movies, music, and software as "information." While most people would find laws regulating the information they can share with other people to be unintuitive, people also don't perceive movies, music, and software to be "information." The reduction of these things to "information" in the sense of "strings of ones and zeroes" (no different than say a phone number or someone's birth date) is a distinctly techie abstraction. People perceive these things not as information, but as products, analogizing them to any other product they may buy. Indeed, I think that's where the intuitive appeal of the first sale doctrine comes from. People find the first sale doctrine intuitive not because they think there shouldn't be restrictions on the "information" they can share with other people, but because they see movies, songs, etc, as akin to physical property, which they can resell.

joe_the_user• 14 years ago

Not the strongest argument but I'm sympathetic to the direction here.

I think the line of argument would clearer if writer were to argue that rights to physical property have evolved out of traditional practices in English Common Law while right to intellectual property are the result of distinct "monopoly grants" that have happened at one time or another - and that specifically "intellectual property" would better be referred to as "intellectual monopoly" to indicate this distinction.

Another useful argument is that physical objects generally have the inherent property that only a certain number of people can enjoy them - at least at one time. The "objects" of "intellectual property" don't have that quality and the owner and the state together instead must act to artificially impose that property on the "objects".

The Copyright Monopoly Stands In Direct Opposition To Property Rights

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