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The Copyright Monopoly Stands In Direct Opposition To Property Rights

86

Copyright Monopoly

Copyright Monopoly

A lot of today’s bad policy stems from the misconception that the copyright monopoly is related to property rights, an illusion peddled by the copyright industry’s own powerful lobby. The idea that the copyright monopoly would be a property right doesn’t just lack factual basis, but it is 180 degrees and one hundred per cent wrong, factually wrong. The copyright monopoly stands in direct opposition to property rights.

The copyright monopoly is a governmentally-sanctioned private monopoly. No liberal, socialist, green, capitalist, or conservative can defend those constructions from their ideology; this construction only fits corporativist and protectionist ideologies.

Allow us to illustrate with a tangible example: assume that we buy a copy of a chair. We say “a copy”, as it is automatically made from a master in the form of a digital blueprint in some sort of plant; colloquially, we’ve bought “a chair” at IKEA. We own this copy of the chair, we have our receipt here in hand. This physical object, in all its aspects, is our property. We are allowed to do a number of things with this copy of the chair:

  • We can take the chair apart, and use pieces of it for new projects that we make in our workshop.
  • We can look at the underlying pattern to examine how the chair is built, make an identical copy, and sell it.
  • We can put out our chair on the porch and use it there, and we can charge our neighbors to use it if we like.

All of this is typical for property. These are typical actions we can all take with our property without anybody raising an eyebrow. (To counter a common but false objection to this point: while there are some monopolistic protections possible for chairs, the overwhelming majority of chairs don’t come with patent or design patent monopolies, and the everyday chair is perfectly legal to reproduce using your own parts and labor, as is the normal case with property.)

In contrast, assume that we buy a copy of a movie. We say “a copy” as the disc with the movie is automatically made from a master in the form of a digital blueprint in some sort of plant; colloquially, we’ve bought “a movie” at the gas station. We own this copy of the movie, we have our receipt here. This physical object, in all its aspects, is our property. Yet, we are not legally allowed to do certain things with this copy of the movie:

  • We are not legally allowed to remix the movie that we own and use parts of it for new projects.
  • We are not legally allowed to examine the underlying bitpattern and make an identical copy on a different storage medium which is the property of somebody else, nor are we allowed to sell a copy we have produced with our own property and labor.
  • We may not use our movie on the porch, and may not charge our neighbors to use it.

Somebody’s monopoly – a copyright monopoly – overrides our property rights and makes it illegal to use our legal property and exercise our normal property rights using our own work and labor.

The copyright monopoly is a governmentally-sanctioned private monopoly on certain forms of duplication and performance. It doesn’t just stand in opposition to property rights, but to free trade as well.

(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.)

It is quite possible to argue for the copyright monopoly from a purely utilitarian, protectionist, or mercantilist perspective, but not from a “property is good” perspective: you will end up in the exact opposite conclusion. By extension, since we know that property rights are good for trade, we also deduce that the copyright monopoly is bad for trade and competition. This comes as no surprise, seeing how the copyright industry has been fighting tooth and nail against the more-efficient industries that would otherwise already have replaced them.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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86

  1. [...] A lot of today’s bad policy stems from the misconception that the copyright monopoly is related to property rights, an illusion peddled by the copyright industry’s own powerful lobby. The idea that the copyright monopoly would be a property right doesn’t just lack factual basis, but it is 180 degrees and one hundred per cent wrong, factually wrong. The copyright monopoly stands in direct opposition to property rights.[...]  [...]

  2. 2
    Magnus Sandvik

    Some interesting ideas as usual. But just to clarify, you are not allowed to copy a chairs design and sell it as your own. That is still copyright violation. The chair itself is you r property, the ideas behind it are not.
    For me, the problem with copyright law now, is that is does not help those who actually conceive of, and design a product. The rights to chairs are not held by the designer, but by IKEA. Songs are not owned by the artist, except in rare cases, but by record companies. Films are not owned by directors, performances not by the actors, but by studios.
    Mostly, the artist themselves don’t mind their works being shared (see: Megaupload ad) but those who actually own their work because they like being the middle man between artist and consumer. This has always been necessary because of artificial scarcity of the products, but that is changing, and I hink that the old business model is going to fall pretty soon with newcomers like Spotify and Netflix poised to take over.
    In a decade or so, perhaps copyright on entertainment products simply will not matter as copyright holders have become an unnecessary link in the chain.

    • 2.1

      Some interesting ideas as usual. But just to clarify, you are not allowed to copy a chairs design and sell it as your own. That is still copyright violation.

      No, it is not. It can be a patent or design patent violation, but will only be so in a few very special cases (the invention of a chair is generally older than 20 years).

      The chair itself is you r property, the ideas behind it are not.

      An idea cannot, by its nature, be property. This is fundamental.

      • 2.1.1

        Not to mention that even patented chair can be used commercially without having to pay the manufacturer of the chair for every use. This is once again much unlike copyright where business owners have to pay e.g. for playing music in their stores not only when they buy the disc but also for playing it in public.

        • Morten

          Yes, but that is because the chair is sold with that in the (usually implicit) contract. If you bought a chair with the understanding that you had to pay for each use, then you should do just that. It has nothing to do with patents or copyright at all. It’s just that you would probably not buy that. So, if you don’t like paying for each use, buy music that you are allowed to play without paying, just like with chairs. It is not any kind of solution to take away the ability of artists to set the terms. Just start supporting the ones that give agreeable terms in your view. There are probably some out there.

        • Caleb

          Morten: At what point did I sign a contract when I purchased a CD? A contract that I agreed to implicitly without necessarily knowing, much less negotiating the terms to isn’t.

        • harveyed

          Morten: So you don’t at all find it problematic that it is possible to write contract clauses which in order to be enforced request a total lack of privacy not only for the user of the product / service, but also potential “innocent” third parties caught in that monitoring?

          Actually this is no joke. There are entertainment industry patents & blueprints for monitoring equipment designed to be put in place in peoples living rooms to see to that no “unlicensed” use of a certain piece of software / “content” is done.

      • 2.1.2
        GeorgeV

        Agreed. I wish more people understand this. You can’t *own* ideas. Because ideas are ALWAYS built on prior knowledge – on OTHER people’s ideas. You can’t invent anything without using prior inventions in your “new” invention. Therefore you can’t say you are the 100% owner of this “new” idea.

        • No one sensible does argue that you should be able to own ideas, and this article isn’t about that. That’s patents – not copyright;.

          Copyrights provide for a limited term right to decide who can profit from the particular instantiation of ideas – like the specific text of a novel.

          It should definitely be more limited than it is, but not done away with altogether.

      • 2.1.3

        “An idea cannot, by its nature, be property. This is fundamental.”

        This is correct. It is literally impossible to set up a property right in nonscarce things like patterns of information, knowledge, or ideas. Laws and enforceable rights always use physical force (e.g., of the state’s goons) against scarce resources owned by other people–against their material property. A copyright “owner” can use the grant of this monopoly privilege to have the state use its goons to threaten physical force against an “infringer”–against his body (threats of imprisonment) and/or his money or other property. That is why IP rights like patent and copyright are disguised takings of property rights, redistribution of wealth from previous property owners to the IP holders: and I believe the best way to legally classify these rights is that patent and copyright should be viewed as negative servitudes over the body and/or other property of those affected by the IP right. In essence, the IP holder is given a “veto” right over how other people are permitted to use their own bodies and other owned resources. The IP holder in effect becomes a co-owner of others’ bodies and property. There is nothing inherently wrong with such an easement, if it is voluntarily negotiated by contract. But in the case of IP, there is no agreement by the person who is now burdened by the IP negative servitude; the state simply grants this right to the IP holder.

        For more on this, see http://c4sif.org/2011/11/why-intellectual-property-is-not-genuine-property-adam-smith-forum-moscow/ and http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/

        • Steve

          Excellent argument!

          It also makes it easy to see why, then, is the current copyright concept fundamentally opposed to the workings of a truly free market. It is an artificially created environment favoring artificial monopolies.

          Copyright proliferation – death of true capitalism. Seems ironic, that something supposedly promoting individualism is in fact destroying the very fabric of Western society.

        • Scary Devil Monastery

          You forgot to add Milton Friedman among your quotes – he also comes down hard on IP, stating that “Intellectual Property” is actually a severe restriction of everyone elses property rights by way of a government-enforced privilege.

      • 2.1.4
        Anonymous

        The design of a chair actually can technically be copyrighted as a sculptural work. However, this is only if you can make an argument that there is either physical or conceptual separability between the original and the utilitarian aspects of the chair (what make it a “useful article” under sec. 101 of the Act), and depending on what Circuit you are in.

        Generally, chairs are not going to be copyrightable; however, I just wanted to point out this doesn’t mean they are never copyrightable.

    • 2.2
      steelneck

      Magnus Sandvik wrote: “the ideas behind it are not”

      Copyright does _not_ extend to ideas. Both TRIPs and the Wipo Copyright Treaty express it very clearly:

      Article 3
      Application of Articles 2 to 6 of the Berne Convention:

      Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

      The TRIPs agreement has the exact same wording.

      • 2.2.1
        Stephan Kinsella

        Proponents of IP quite often defend ownership of ideas. This is pure equivocation.

        An idea is just a thought–information, knowledge. Ideas, information, knowledge are just facts or patterns of information. People of course employ knowledge when they act: knowledge of causal laws, to select possible ends and causallly-efficacious means to achieve the ends. Knowledge is an essential part of action. but that does not mean knowledge is an ownable thing. It is not.

        Patent and copyright are premised on the notion that if you create a useful piece of information, or knowledge, an idea, etc., then you should have a property right in it;, to incentivize the “creation” of more ideas or knowledge. The notion is that without the state exisitng and its legislature granting a monopoly privilege in the information/pattern, there is not a sufficient “incentive” for creators to create and/or publicize their work. This is nonsense.

    • 2.3
      Sten

      There are so many faulty concepts on these pages that it is funny that you believe you can debate the topics at all.

      “Songs are not owned by the artist, except in rare cases, but by record companies.”

      No you are utterly and completely wrong, songs are never, ever, “owned” by recording companies.
      Nor is the song ever “owned by the artist”.
      However the rights to the song belongs to the composer.

      And the same thong goes for IKEAS furniture. The “designskydd”/”design protection” belongs to the designer, not IKEA.

      If you guys are going to “debate” copyright, at least get the mere basis of the foundation right.

      • 2.3.1
        Steve

        This is mere childish wordplay.

        Obviously, an abstract thing such as a song or a novel cannot be owned, unlike physical copies of them. Thus, a concept of a “right” to it was created, exactly because the very concept of ownership of ideas is preposterous and had to be somehow made possible. Yet, in the current milieu, songs and books are “owned” for all practical purposes, and it is no grave mistake to say so.

        To take your argument a bit further into the absurd: you own the physical record, but you have very limited right to what is on it. How twisted is that?

  3. 3

    Yeah. Property rights applied (wrongly) to ideas is very confusing to many. And more so because of clever Newspeak: copyRIGHT. In popular perception this monopoly is a RIGHT. The idea that controlling someone else’s purchase, communication or derivative creativity is NOT a right is just incomprehensible to many people. Sad. Also, distracting. If only we could stop arguing over this clearly muddied and twisted definition of a “right”, the creative industries could move forward to useful discussions on actually supporting artists.

    • 3.1
      steelneck

      Yes, see my answer above to Magnus Sandvik, quoting the TRIPs here: “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”

      The same can to a large extent even be said about patents. Patents cover new specific products or processes containing an inventive step capable of industrial application, that are described in the patent, not other uses of the idea.

    • 3.2
      DannyUfonek

      I recently read 1984 and find your reference to it… scary. (Just like the book) But still a good reference, though, as Newspeak words are supposed to be perceived only one way (in one that is ironic to its true meaning), which copyright excells at – if we take it apart, we could say it’s the natural right of anyone to copy anything. Of course, it means the exact opposite!

  4. 4
    Anonymous

    agree with the thinking here, Rik, but as usual, we aren’t the ones that need convincing that change is desperately needed. the things i find strange is, if it is not from any of the parties listed above, who started this crap off? which was the first political party to agree to it all? which party granted the monopoly? why has no party had the balls to do something to make the change? it is never even mentioned in a party’s manifesto when plying for control of a country, so how can it ever alter? every government that knows it’s wrong, never listens to anyone except the entertainment/copyright industries, ignoring all evidence to the contrary. the UK is a great example of two-facedness over this issue. my own MP is such a believer in what rubbish he gets spun, he wont even listen to the other side!

  5. 5
    Morten

    This is just a stupid view of property that is not grounded in anything. Why do we have property? How do we gain property? How can we transfer property? These questions are not answered in your theories here. You are just using a strawman version of property. The only people who think this is what property is, are socialists and communists who want to abolish the idea. If this was what property was, I would be a socialist or communist myself, and your point would be moot anyway. And I used to be that at one time when such a simplistic view of property was what I thought all capitalists beleived in.

    The ability to make contracts is a very important aspect of property rights. You can sell the usage rights a house for a time, or to grow a field for ever but not to make a house there, etc. Without property, contracts are pointless and impossible. Laws about copyrights should be abolished, but if contract laws are defined properly, nothing changes. Like in all crime cases, aiding and abetting in a crime will still be illegal, so if you contribute to the spreading of material that has been created by some individuals, and that you could not have made yourself, without their consent, it can still be punished. Patents are a different story, and not all patents of today could fit under this banner, allthough some could.

    Monopoly is a badly defined concept, that I think rational people should stop using. All property is monopolistic, and all real commerce is monopolistic. There is nothing wrong with this in itself, what might be wrong is if that monopoly is build on breaking individual rights, like for example public schools, hospitals, etc. You never have the right to other peoples work either way, as that is not consistent with individual rights. I can say that you have a monopoly on your body, and start complaining for the government to brek that monopoly up, and it would be consistent with anti-trust laws, and similar tactics will probably be used at some point.

    • 5.1
      harveyed

      “All property is monopolistic”

      Property is scarce. Copies of immateria are not. Therefore it is rather the concept “Intellectual Property” that should be done away with.

      “You never have the right to other peoples work either way, as that is not consistent with individual rights.”

      Well you shouldn’t have the “right” to do your business in your favourite way with special protecting laws. Especially not have a monopoly to earn money on decades’ of OLD work, and when there is no extra cost or labor required for the business of manufacture and distribution..

  6. 6
    Anon

    @Morten
    Property requires scarcity. Your analogy to property over your body is inapposite, because your exclusive control only extend to controlling your own body.

    If replicating a person was possible, the original owner would only have a property right in his own body, not in all copies.

    • 6.1

      Scarcity is never absolute, but always relative.

      To simplify, Intellectual property does not protect works, identifies and inventions. It protects THE RIGHT TO CONTROL the use of works, identifiers and inventions.

      The right to control IS scarce.

      Hence, intellectual property is a perfectly proper term for the concept.

      • 6.1.1
        harveyed

        Those “rights” are just a really bad excuse for making money on old work.

      • 6.1.2
        Steve

        “Scarcity is never absolute, but always relative.”

        This just does not mean anything. Please.

        “There is never too little land, just too many people! Wheee! Everything is relative!”

        And, to simplify, the “right to control” is not scarce, as the “right” can be arbitrarily given to anyone. If anything, it is the “power” to control that is, indeed, scarce.

  7. 7
    Anon

    @Morten
    “Yes, but that is because the chair is sold with that in the (usually implicit) contract. If you bought a chair with the understanding that you had to pay
    for each use, then you should do just that. It has nothing to do with patents or copyright at all. It’s just that you would probably not buy that. So,
    if you don’t like paying for each use, buy music that you are allowed to play without paying, just like with chairs. It is not any kind of solution to
    take away the ability of artists to set the terms. ”

    You have no unlimited right to bind a purchaser to any user agreement you see fit, and not even copyright law grants the holder such a right.

    In Sweden, and I dare to say in all countries having signed the Berne convention, there are express statutory limitations to copyright law. In Sweden, I can legally make a copy of my friend’s cd collection provided copying is from a legal source.

    If copyright law was about binding a purcheaser to a contract, the law should logically not impose any obligations on noncontracting parties like internet service providers or hardware manufacturers.

    Copyright is entirely a creation of government fiat and would not exist without government enforcement. You have no natural right to government enforcement. If government stopped recognizing copyright tomorrow, no copyright holder would have a natural right to break down doors or intercept private communication.

    • 7.1

      Statutory exceptions to copyright can be overridden by an explicit contract.

      In other words, in a contract the licensee can waive all rights to use the work in ways that would otherwise not require the copyright owner’s permission.

      For example, if a software license agreement contains a provision that the “buyer” must not create backup copies, then if the buyer makes such a copy, the buyer would not be violating the copyright of the software owner (provided that applicable laws contain an exception for backup copies), but the buyer WOULD be in breach of the contract.

      As with any other breach of contract, the licensee may have to pay damages to the licensor.

      • 7.1.1

        Most consumer legislation is non-dispositive, that is, it cannot be overridden by contract.

        Some laws are written to let contracts supersede them in individual cases. Other laws are written to say clearly that no contract can override that particular law.

        Cheers,
        Rick

      • 7.1.2
        Anonymous

        In the EU, a physical embodiment of copyrighted material contains an implicit licence to use it in reasonably expected ways – thus, a DVD may be copied into RAM and into pixel buffers, a computer program may be installed and run, and so on. That means that post-sale EULAs are meaningless, because the sale process contains two elements. The first is the sale of the physical medium. which works under ordinary consumer law – I give the shop cash, the shop gives me a DVD with your software on it. Then I get home, run the DVD, and get offered a second contract, which offers me certain rights I already have in exchange for surrendering some of my other rights. Unfortunately, because I’m not getting anything, there is no exchange of value and thus no contract. That’s why physical software sale now come with the EULA on the box.

        The PP’s copyright policies, apart from shortening the term, mostly amount to expanding the implicit licences and restricting what can be over-ridden by consumer contracts. It is very common for things to be made impossible to include in contracts, as a measure of protection for individuals when entering into agreement with more powerful organisations, and exists throughout consumer and employment law throughout the developed world (even in the USA).

  8. 8
    harveyed

    Our friends can also sit on the chair without paying an additional $X per ass and minute.

  9. 9
    Anon

    “Our friends can also sit on the chair without paying an additional $X per ass and minute.”

    But according to Morten, Nej till pirater and other copyright maximalists, it’s all about the contract. If the manufacturer of the chair had written in the ULA that you must pay everytime someone uses your furniture, they probably argue that the government ought to assist them kicking your door down and arrest you for violating the agreement and as a matter of cause intercept all your private communication in case you facilitate infringement by others.

    • 9.1

      Yes.

      And what’s wrong with that?

      If you buy a chair knowingly agreeing to such a condition, there is no reason why the chair manufacturer should not be able to enforce it.

      If I sell you a car on the condition that you will only drive it on Tuesdays, and will never have more than one passenger in it, and you voluntarily agree to that, why should I not be able to enforce this?

      In other words, why does your desire to get rid of the limits you voluntarily agreed to should trump your contractual obligations?

      • 9.1.1
        harveyed

        The reason is simple. You have to monitor everyone in the household to ensure the chair is not mis-used. Also people who had no idea about the crazy chair-contract and just happen to pass by. Or even worse – if you put the chair in a public place and people accidentally sit on it, unknowingly breaking the contract.

        As for copyright infringement you today have to monitor all online activity to catch pirates – and that’s a surveillance society far worse than anything before.

      • 9.1.2
        Anonymous

        For the same reason we want to make it impossible to include other things like excessively low pay, unhealthy working environments, dangerous products, selling oneself into slavery, and all those other exclusions from contract law – to protect the interests of the weaker party (i.e. the individual citizen).

      • 9.1.3
        Scary Devil Monastery

        “And what’s wrong with that?”

        Let me see…

        I sell you a chair and in that purchase you implicitly have to agree to monitor the chair 24 hours a day, charge the fees of everyone who sits in it, and administrate said payments to the vendor.

        What you have just argued for is the de facto implementation of actual slavery. Which, incidentally, is why consumer protection laws exist in order to keep a provider of services and goods on a level which is compatible with the basic level of civil rights within the country.

        Contracts must suffer three stringent criteria – limits, duration, and reason. You can not sign your own life away, for instance, nor can you sign away your right to speak.

        What you argue for violates these very basic precepts. Copyright and licensing skirts this issue which at the end means that copyright, enforced for one party actually abolishes property rights for everyone.

        This fundamental conflict was only barely possible to reconcile when mass communication was a theory. Now that it exists in practice, that conflict becomes an ever-present reality.

    • 9.2
      harveyed

      Yes according to them it’s all about some fucking contract between two parties. But of course that is not true at all. It is about basic rights to privacy of third parties being more important than self-proclaimed business-rights of those two contract-writers.

      • 9.2.1
        Steve

        Exactly.

        The concept of Western society is not that we all are governed by ad hoc contractual relations, but that a human in a society comes with some fundamental characteristics that can not be appropriated by any contract, no matter what its wording is.

        All corporations desperately wish this were not true. All corporations desperately wish you could give them the right to invade your home, to watch what they want, to read only what they approve of. This is a fact of life, and that is what this discussion is fundamentally about. Not just copyright.

  10. [...] The Copyright Monopoly Stands In Direct Opposition To Property Rights. [...]

  11. 10

    There are two big problems with this approach:

    1. When you buy a DVD with a movie, you are NOT buying the movie, nobody is selling you the movie. You are buying a piece of plastic with a permission to use the movie in a very limited number of ways. You do have a property right in the plastic, but you do not have a property right in the movie.

    Just like when you buy an electric outlet for your house, it comes separate from the electricity that you can extract from that outlet once you hook it up.

    Just like when you get a credit card from your bank. You can build a house using those cards, but the money that is available to you through the card is not a function of the ownership in plastic, but the function of your contract with the bank.

    Same with movies and other copyrighted works. The value of the physical object is usually negligible. It is simply a conduit to allow you to enjoy what you are REALLY buying. And what you’re really buying is simply a license.

    2. As someone who is mostly libertarian, I will never understand this stubbornness of libertarians on IP:

    How come it is not initiation of force if you are violating the terms of an agreement that you have with the seller? The seller is prepared to grant you a license to use his stuff on certain conditions. You say – I want it. Then you say, actually, I should be able to do anything I want with it, regardless of the limitations that I agreed to when I entered into the contract with you.

    Yes, intellectual property is a governmentally-sanctioned private monopoly. But the government does not CREATE the monopoly, it simply recognizes it as a tool that allows IP owners to enforce their natural monopoly.

    • 10.1

      1. When you buy a DVD with a movie, you are NOT buying the movie, nobody is selling you the movie. You are buying a piece of plastic with a permission to use the movie in a very limited number of ways.

      You will not be able to find this definition in any current legislation. You are buying a copy of the movie in all its aspects. You are buying the physical object in all its aspects and properties, including what comes encoded onto it, including all its microgrooves and magnetic microfields that may be interpreted in some way when run through a machine.

      There is absolutely no such thing as “buying an object except for the information encoded onto it”. Does not exist in any legislation on the planet.

      2. As someone who is mostly libertarian [...] How come it is not initiation of force if you are violating the terms of an agreement that you have with the seller?

      You are speaking a contradiction in terms. When there is a sale, there are no terms of agreement, but there is transfer of property, and the new owner assumes all property rights to the transferred object. In a sale, it is morally and conceptually impossible to place any kind of terms or restrictions on the new owner as to how they may use the purchased property.

      There are ways to shift custody of an object to another person with restrictions on how that person may use the object in question – but they are not a sale, and they are not transfers of property.

      When you buy a DVD, that is a sale, and that is transfer of property. Therefore, the seller does not get to say anything at all regarding to how I may or may not use it, in a normal case. (Both copyright monopoly legislation in most countries, first sale doctrine, and importantly consumer protection laws confirm that a sale of a DVD is indeed a sales as described here, and not a “license” or a “contract” of any kind.)

      However, the copyright monopoly limits the normal property rights to the purchased DVD – which was the point of the article.

      Cheers,
      Rick

      • 10.1.1
        Anonymous

        Weak, very weak. What you are trying to argue for is that your purchase of a DVD gives you the same ‘right’ to exploit the content of the DVD (ie, make copies and sell them) as the person or company who invested, probably, millions in the creation of the content. For the purchase price of the DVD.

        This is ‘patently’ ridiculous. As ridiculous as the idea of IKEA not gunning for you if you started mass producing a chair taken from your design.

        These kinds of statements just prove that you’re running on empty. You have no real moral basis for any kind of piracy so desperately come up with garbage in a vain attempt to justify it. It’s a joke. If you seriously want to persuade artists like me- who do own ALL the rights in our work, do our best to acknowledge changing views but ALSO try to make a living, you’ll have to do a lot better than this.

        • Dear Anonymous,

          you are mistaken in your assumption that I try to “justify piracy”. I have been adamant that there is never a need to justify sharing culture and knowledge. What this article does is examine the nature of the copyright monopoly as such, to help make good policy on the subject.

          Further, the talk of investing millions is completely irrelevant to the nature of the copyright monopoly, and indeed, to entrepreneurship. It is not hard to spend money (and it can be quite fun, too!) but there’s never any kind of guarantee an investment will be profitable, and there’s certainly no right to call on the government if you’re not profitable as an entrepreneur. That would be your business failure, and yours alone.

          Your preoccupation with a certain business model does not mean you get to limit other people’s civil liberties or property rights.

          Cheers,
          Rick

        • Dear Anonymous,

          you are mistaken in your assumption that I try to “justify piracy”. I have been adamant that there is never a need to justify sharing culture and knowledge. What this article does is examine the nature of the copyright monopoly as such, to help make good policy on the subject.

          Further, the talk of investing millions is completely irrelevant to the nature of the copyright monopoly, and indeed, to entrepreneurship. It is not hard to spend money (and it can be quite fun, too!) but there’s never any kind of guarantee an investment will be profitable, and there’s certainly no right to call on the government if you’re not profitable as an entrepreneur. That would be your business failure, and yours alone.

          As for IKEA, I chose them deliberately as their furniture is generally not unique enough to be anywhere near qualifying for design patents.

          Your preoccupation with a certain business model does not mean you get a moral right to call on the government to limit other people’s civil liberties or property rights.

          But if you were indeed an artist, you’d already know all this. Rather, you’re arguing like an obsolete middleman publisher, who are the ones who will see their industry erased from empowered artists. “Invest millions” is simply not something that poor, starving artists do in their business – but middlemen publishers who exploit their work and labor do.

          Cheers,
          Rick

    • 10.2
      TG

      Just like when you buy an electric outlet for your house, it comes separate from the electricity that you can extract from that outlet once you hook it up

      Indeed it does. That’s because the electricity is not actually contained in the outlet – it is a separate tangible, scarce good that may be used in conjunction with the outlet. The patterns printed on a book or etched on a disc, on the other hand, are innate and fully-contained features of said book or disc.

      “How come it is not initiation of force if you are violating the terms of an agreement that you have with the seller? The seller is prepared to grant you a license to use his stuff on certain conditions. You say – I want it. Then you say, actually, I should be able to do anything I want with it, regardless of the limitations that I agreed to when I entered into the contract with you.”

      Except that the restrictions are not part of a voluntary agreement between buyer and seller. Nor are they limited to those two parties.

      To see that the “copyright restriction is really just a buyer-seller contract” argument is false, let’s suppose that Alice sells a disc to Bob, and the pair make a contract, in which Bob agrees not to make copies of the disc. As already mentioned, it is dubious whether this is a “sale” at all, or rather a perpetual lease, but the distinction is actually a red herring as we shall see. In any case, Bob voluntarily takes custody of the disc and enters into an agreement that he shall not make copies.

      Let’s now suppose Bob does make a copy of the disc and gives or sells it to Carol. In doing so he is breaking the contract he made with Alice. She finds out, and extracts some kind of penalty from him, as laid out in their agreement. All well and good.

      But what about the disc that Carol now has? This disc NEVER belonged to Alice – it is Carol’s property pure and simple. And Carol did not enter into any agreement with Alice, so there is nothing to stop Carol from making copies and passing them to Dan and Eve, who likewise never signed a contract with Alice, and are thus free to pass copies to Fred, Georgia and Harry…

      But of course, copyright doesn’t work like that. Under copyright law, Carol is forbidden from making copies just the same as Bob, and liable to the same penalties for doing so. So Alice has the right to subjugate the property of Carol too, whether Carol ever agreed to it or not. In fact, Alice has the government-sanctioned privilege of controlling the property and communications of every other human being, and none of them except perhaps Bob agreed to it.

      And so we see that copyright is not a freely-entered agreement between trading parties. It is not compatible with free trade, nor with property.

    • 10.3
      steelneck

      “but you do not have a property right in the movie”

      Nobody has, not even the creator of the work, though the creator do have the copyright but that is an exlusive right, not property.

  12. 11
    Anon

    @Andrei Mincov

    “Statutory exceptions to copyright can be overridden by an explicit contract.

    In other words, in a contract the licensee can waive all rights to use the work in ways that would otherwise not require the copyright owner’s permission.”

    Not blanket exemptions like the media levy in force in most European countries. Under Swedish law, I have a statutory right to copy my friend’s cd collection provided it’s for personal use, and the copying is from a legal original. As compensation the copyright holders receive a levy on blank media and recording equipment.

    This is blackletter law from the EU. No matter how much you want to convert copyright into a contractual relationship under which the seller has all the power to set conditions, copyright law in all its aspects is not contract law. And no user agreement can’t void my statutory right to make a copy for personal use or resell the physical media.

    Certain aspects of copyright law like third party liability, statutory exemptions, fair use and blanket exemptions can’t be overridden by contract law.

  13. 12
    rockyshaw

    If people are legally allowed to copy stuff and sell it at negligible costs in market , then it will be seen as poor investments for the investors and they will stop investing. No investment will drive good artists out of market and there will be less content. Not allowing people to copy DVD is taking away their right to property they paid for. The artist’s still have more ways to earn money from live in concert and sites which pay them for pay per view, if someone downloads the music using any software from these sites then it will be illegal since he did not pay for it. So artist simply need to stop selling their music in iTunes and other places they sell, that will justify their actions on the file sharing websites. If the entertainment industry does not give up when people demand their rights , they will loose everything and if they change their business strategy now then they will be able to continue living in Park Avenue.

    • 12.1
      Steve

      Sometimes, one has to wonder how was it even POSSIBLE that any art at all originated at a time when the very notion of copyright has not entered anyone’s mind. Homer, Shakespeare, Cervantes, Defoe, Bach, Mozart, Purcell, Tintoretto, Tizian, Goya …

      I really do not believe that if the institution of copyright goes, true art will suffer. Perhaps on the contrary, the producer-induced streamlining will finally be gone.

  14. [...] Update: I posted this in the comments: Stephan Kinsella December 24, 2012 – 13:59 [...]

  15. 13
    Ano Nymous

    Hi Rick.

    Have you noticed that property rights are also being either controlled or circumvented more and more?

    There is no legal penalties (yet) for, for example opening a device with a sticker or instruction manual that says “DO NOT OPEN”. But I believe that it is just a matter of time.

    That was the control, now to circumvention:

    Things are often made with unusual screw heads, in order to prevent the consumer – the owner – from opening the device if he wants to. Some devices are even glued or ultrasonic-welded shut.

    This is often detectable before buying, so the buyer can avoid those products, but more often than not ALL competing brands of the product are equally bad in that aspect.

    Then there is planned obsolescence. It is intended to be undetectable by the buyer, especially before buying. The same thing goes here – more often than not ALL competing brands of the same product are equally bad.

    Together, planned obsolescence and impossible-to-open products are of course worse than the sum of the two. The products break right after the warranty time is up, and you can’t repair or let somebody else repair the product, because it can’t be opened without destroying the cover. The only thing left is to buy a new product – exactly what the manufacturers want you to.

  16. 14
    Lost in Thought

    forgive me if for talking about something I’m not very familiar with but… copyright was originally only supposed to last for 14 years and only by the creator not companies.. the person who had the copyright could get it renewed for another 14 years but after that was over people could do whatever they wanted to with it so they could make something new because 14 years was considered long enough for it to make all the profit that was really needed….and then because it became public property you could tweak it and add your own stuff and it would be alright…now all this big companies and their bought and paid for government supporters try to take you for everything you have just for violating something they never really explained to you.. say you bought a music CD and you liked the songs, but you wanted to try a remix or do a new variation.. the record company tell us that this is wrong and would violate terms of copyright unless of course it was done by someone that they endorsed and funded.. all see nowadays is a basic power grab by companies who think that just because you bought something does not mean you can do what you like with it..sure you bought
    it and by all right it should now be your property because you bought it, but it is still considered to be partial property of the company and person…. bleh i have no idea what I’m trying to say.. just felt like saying something… feel free to berate me…

  17. [...] Stands In Direct Opposition To Property Rights Posted on 2012/12/25 by NotSoCrazyNews Original post on falkvinge.net →   Comments on reddit.com [...]

  18. 15
    hacksoncode

    The point about copyright being a contractual concept is not intended to imply that there is at present an actual contract that is being violated. There’s no need, at present, for such a contract because it is a matter of law.

    However, if there were no copyright laws, it would be *trivial* to construct a contract that had exactly the same effects as a copyright law, even to the point of 3rd party copying.

    E.g. Lessee agrees not to copy the information nor allow another to make a copy, and furthermore agrees that any such copies made or allowed to be made, as well as the media on which they are copied are forthwith acknowledged to be the whole property of the lessor.

    Assume you agree to this contract and lease the information: If you make a copy, it and the media it is recorded on belongs to the original owner. No one else may possess these copies, as they are the property of the original owner (i.e. it would be possession of stolen property, just like any other stolen physical property one might take possession of).

    • 15.1
      ilikebundy

      Sorry, but this makes no sense. you cannot give anyone property rights in someone elses property no matter what you sign. you have no right to make such an agreement and no way to enforce it. You cannot force someone into a third party contract or use a contract against someone who is not a party to it. Real contracts have to be entered into voluntarily. So they would just make the copies with thier own media as they do right now.

    • 15.2
      Scary Devil Monastery

      Let me see.

      You make a contract with party A. Party A violates the terms of the contract and allows party B to make a copy.

      Party A is found to be in violation of the contract and fined.

      Party B allows party C, D, E, F, G and H to make copies.

      party B is now found to be in violation of a contract with another party with whom party B never signed nor agreed anything?

      The contract argument makes absolutely no sense at all, because no contract can be made binding on unrelated parties who were not co-signatories.

  19. 16
    JB

    I think you’re a bit confused about property. It’s based on rights not things. You don’t simply “own” something. You have a particular bundle of rights in that thing. Sometimes there are fewer rights, sometimes there are more. But it’s not a matter of “property” or “not property”.

    • 16.1
      Scary Devil Monastery

      Although that can be argued the primary tenets of what “property” is defined as is in rather direct conflict with the tenets of “intellectual property”.

      This has caused some rather heated debate.

      If anyone has any intellectual property, for instance, core definitions of the property rights of EVERYONE ELSE is abolished. This is a very major restriction and especially so when boiled down to a fundamental example of the most common kind, such as what is known as “copyright infringement”.

  20. 17
    Critic Al

    Hey, I think you mean 360 degrees in the introductory paragraph?

  21. 18
    Soviet Socialist

    The reason of mutual misunderstandings lies in the language used, indeed. But in my opinion it starts even earlier than Rick points out. It starts with that copyright holders themselves fail to properly name things they are doing. If you look carefully and try to sum all the details surrounding the purchase of generic media would it be a software or an audoitrack, with all those EULAs attached, little to no guarantees included and most important almost no rights transferred to the buyer, you can understand that the modern media seller by no means is selling “goods”, but makes every effort for it to look as a “service”. The say not the song copy, but the potential replays, that the buyer and only the buyer can get from it. The file, or disc or anything carrying the info is just a tool. I don’t understand really, why are those not yet labelled as copyright owners’ property only rented by the buyer to get his playbacks, but not given in his ownership, like a credit card for example. It carries your name but the bank explicitly claims it is bank’s property, not the cardholder’s.
    What I see is the further stripping the buyer of any means to apply any kind of uses granted by ownership, even the nominal one. Cloud services for example. Or Steam. You’re physically stripped of the media carrier itself, it’s stored in the cloud.
    Even better, I see the trend of portable computing replacing desktops in further mutation of it towards thin clients. The end users will be stripped of mere possession of computing hardware. Obviously you can’t pirate something or break any user patterns intended if all the computing is processes on remote mainframe.
    How about that? Here in Russia, when pessimists say: it can’t be any worse, the optimists answer: oh, no, it surely will be, it’s just the beginning.

  22. 19
    The High Order Bits

    It is best to start from first principles.

    For time immemorial in human civilized society, performance artists (or the owner of the performance artistic production) have been allowed to present their work, for a fee.

    If you believe that as a society we should continue this paradigm, then what enables us to end up with a conclusion that experiences of the work should not demand a fee?

    Because it’s hard to enforce with current technologies that enable delivery of extremely high quality reproductions of the work? It’s hard to enforce many important social rules and laws; that does not mean they should not exist.

    Because the medium of delivery of the performance has changed? Because “live” is different from “delayed and reproduced”? This argument uses technology factors to work around the fundamental social principle that performance (and hence the experience of the performance) can be charged for.

    Because the package by which the means of experience of the performance is delivered doesn’t fit into old paradigms of “property” and “ownership”? That’s simple refusal to adapt and change; if we want the paradigm of “experiences of artistic performance can be charged for”, then this is an area where we need to create new paradigms and models, not change our basic social norms that enable artists to garner economic return.

    If we respect the ownership of artistic performance and the right of the artist/owner to provide the experience of the art for a fee, then the question is not “should the digital copy of the recording of the performance be free?”, but rather “how can we evolve our models, our paradigms, our laws and our technology to enable, support and allow for the proper combination of compensation for the experience of the performance via copies of digital recordings, the fair use of same and the control of same to assure proper compensation.”

    It should not be free because it’s easy to make copy. It should not be free because it is a recording of the original production. (Though it may demand a lower price, due to a reduction in fidelity.) It should not be free the artist is enabled to sell more broadly than before with these technologies. It should not be free because it’s hard to charge for. It should not be free because under current technology and delivery models, some assets end up under your direct control and “possession”.

    Again, back to basic principles. Hopefully we can agree that I as the owner of an artistic production can charge you for the privilege of experiencing it live. Now we have the increasing ability to reproduce that experience in extremely high fidelity, rapidly approaching the full experiential quality of the original. And we have the ability to make unlimited copies of that reproduction at virtually no cost. The result is that vast numbers of people can now experience the art. This leaves us with a choice as a society: should the experience of the art, that historically had to be experienced “live” but now can be done broadly and remotely (in time and space), require compensation through some means back to the performer, or not?

    Again, I do not accept arguments that is “can’t be”, or is in any way “immoral”, to require payment for experience of a privately owned art production. I hold that for all mediums: visual art, performance art, aural art, you name it. And it’s not immoral to require payment for lower fidelity reproductions of that art, particularly given that said reproductions and the re-presentation are rapidly approaching and sometimes at the fidelity level of the original live performance. It’s a social decision.

    This is a choice, not a pre-determined moral absolute. Continuing our old human morals (which are basic agreements about “right” and “wrong” and how we conduct our affairs) and traditions, I believe it is critical that we answer “yes, compensation is needed”. Without that, the economic basis of artistic production risks destruction. While the direct experience (“live”, and note that much artistic production these days doesn’t have any analogue of “live”) can be charged for, if almost perfect reproductions are free, few will pay. Artists will find it very difficult to survive in our society if we take this path. Do we want to eliminate art production and performance as a vital element of our society, around which people can have an economically viable career? I believe that would be a tremendous mistake, and vastly reduce us as a vibrant and healthy society. Art has a critical role, and to enable it, it must be fall under economic norms. We should not let technology changes change our social posture that the experience of art can be charged for.

  23. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  24. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  25. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  26. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  27. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  28. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  29. 20
    The High Order Bits

    Your article fails to address the points I’ve raised. The failure lies in your strict adherence to old models of “property” and attempting to apply them to new technologies.

    Artists have a right to receive compensation for their work; I assume we can agree on that. Let’s focus the discussion here on performance art. The value component of performance art is in its personal experience. I expect to pay when I choose to experience performance art. I presume you don’t claim the right to sneak into a live performance art event and avoid paying the requested fee for the right to the experience? If so, we have common ground to work from.
    Our technology allows that performance art experience to be delivered to others not at the live event, across both time and space. Does the performance artist have the right to request remuneration for that experience of the art?

    This is a social question we must answer, but it is not a question without precedent. And the precedent is simple: performance artists have always had the right to charge for the experience of their art. Why should a technology enabled ability to recreate the original experience shift our social posture from “charging a fee is acceptable” to “charging a fee is not acceptable”? Any arguments for the latter should be based on fundamental social principles and practices, not on the vagaries of what today’s technology can, or cannot, allow or proscribe. The answer to the question of remuneration rights for the experience of the art should be independent of technology elements involving the means of delivery across time and space. Only with that answer should we then reflect on the challenges of implementing that answer given specific technologies and delivery vehicles and channels. To answer the question based on technology factors is putting the cart before the horse.

    The answer needs to be an unqualified “yes”, to preserve commercial performance art production. With the ability to recreate the original performance in near perfect experiential form, consider the impact of a “no” answer: why ever pay for experiencing the original performance, when you can always have the same experience at no cost? Correspondingly, why should the shift in time and/or space of the experience change the right of the artist to compensation for the experience of the art? Any legitimate arguments for free rights to experience commercial performance art productions (live or time/space shifted) have to address these core questions, and yours do not.

    To get to the heart of your argument and its flaw, you insist on using “property” models, ala “I bought a movie at the store”. Forget property, because that is the wrong model: an artistic performance is not “property”. It is not a thing that you can buy and “have”. It is an experience. The performance artist is selling you an experience. In selling YOU the experience, the performance artist is not selling the experience to your family, friends, or the entire human population. Only to you. If others want the experience, they also should pay for the right to the experience.

    (I do acknowledge that it superficially appears that you did in fact “buy the movie”, and perhaps serious changes are required to address the problem of proper notification and education to the consumer of the specific nature of the transaction they are engaging in, including dramatic changes in labeling and possibly in the specific license or rental terms. However, our debate needs to transcend these minor issues of appearances, channels of delivery and technology.)

    With today’s technology, the delivery of the experience involves delivery to you of a digitized representation of the performance (a “recording”). The provision of this digitized representation is not intended to be an act of “selling you property”, it is intended to be a provision of the experience of the performance art. The best analogy I can think of from the physical property world is the provision to you of transportation, in the form of a car rental. When I rent you a car, I transfer to you in material form a car. However, I have not sold you the car. You do not have the right to do anything you want with the car, such a dismantle it and sell it part by part. You do not have the right to allow others to use the car. And you cannot argue that I “gave” you the car, and that I cannot have property rights that extend to the car now in your possession (unless you argue that every car renter in the world should in fact fully own the car in the legal sense upon taking possession?). I did not give you the car, and I do retain ownership and the rights of ownership while the car is in your possession under our rental agreement.

    Similarly when you are sold an experience of performance art. In terms of the digitized representation you are delivered by which you are enabled to have the art experience, you are a renter of that digital representation, and a purchaser of the experience of the art. The digitized representation is merely a value delivery mechanism, and the correct model is not that you are the owner of that representation.

    You argue that because an artistic experience you have purchased is delivered to you in a form that is easy to copy and redistribute and “share”, you have the right to do so. Your argument is based on similar such rights when you are sold a physical object of utility, such as a chair. So let’s throw out the concepts of “selling”, and use a more appropriate (but admittedly not yet perfect) concept of “rental”. I rent to you the media (the sequence of bits that make up the digital representation), and thereby enable you to experience the art. You buy the experience, through the rental of the media, just as you buy the value of transportation by renting a car. The value element is the experience that you have through the usage of the rental of the media. The artist has the right to charge for that experience, every time, to everyone who would like to pay for the experience. No one has the right to the experience just because the technology underlying the means of the experience allows easy copying and transference. Just as no one has the right to drive (or dismantle or resell) your rental car, just because you have the casual ability to give them the keys and let them drive off.

    (Obviously rental is not a perfect analogy or model for this, because of repeating of experience, fair use of the experience, and other unique factors. But those refinements are not overly pertinent to the core and general issue here, of whether an artistic performance, when provided across time and space boundaries, can carry an experience fee or not.)

    Another analogy comes from the shaded beach chairs in front of the swank hotel. You want to sit in the shaded beach chairs, and have a beach experience that is cool and in the shade? Pay the hotel to have that experience, through rental of the chairs and umbrella, by the hour. You’ve not purchased the umbrella and chairs, and you don’t have the right to resell them, dismantle them, or allow your friends to use them tomorrow. Yet you have “taken possession of them” in order to have the experience of their usage, for a time. While in your possession, they are not your property, and your rights to their usage overall is limited by the terms of the rental agreement.

    To summarize, you Mr. Falkvinge need to advance and refine your models and paradigms, rather than attempt to use inappropriate models and paradigms on new technologies. The key is to start from first principles. Artists have the right to be compensated for the act of experiencing their art. If you agree with that (do you?), your arguments fall apart because you are misapplying models and paradigms. If you agree with artistic right to request and receive compensation for the privilege of experiencing their art, there is no rational justification for your position that performance art in digital form should be “free”, and the arguments you’ve presented to date are specious.

  30. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  31. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

  32. [...] 270: – Distribuir obras protegidas por la mal llamada “propiedad intelectual” se castiga con penas de cárcel de entre 1 y 4 años. Esto incluye subir películas, series, [...]

  33. [...] and 271 – impose prison sentences up to four years just for sharing works protected as “intellectual property“. And in sentencing it’s irrelevant whether or not it was done for profit. In other [...]

  34. [...] 270: – Distribuir obras protegidas por la mal llamada “propiedad intelectual” se castiga con penas de cárcel de entre 1 y 4 años. Esto incluye subir películas, series, [...]

  35. [...] faced with the fact that the copyright monopoly is a limitation of property rights, some defenders of the monopoly claim that property rights and the copyright [...]

  36. [...] outlined in many articles how the copyright monopoly stands in opposition to property rights, being a governmentally-granted private monopoly. We’ve looked at common [...]

  37. [...] have indeed observed before how the copyright monopoly stands in direct opposition to property rights, sabotaging this foundation of our economy and the fundamentals of [...]

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