Slashdot reported (others too, I’m sure) that the Pro-IP act has passed the Judiciary Committee. This is yet another evil copyright expansion that blatantly contradicts the plain English meaning of the 8th clause of Section 8 of the First Article:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
This particular bill authorizes seizure of property in copyright cases – a mechanism that has resulted in gross abuse in drug cases and is repugnant to the rule of law.
The /. article linked to William Patry’s blog, who is now one of my heroes. His blog discusses an article by Neil Natenel: “Why Has Copyright Expanded? Analysis and Critique.” It is an excellent discourse on the prevailing contortions exploited to provide legal cover for industry-drafted legislation that has so distorted the concepts of copyright and hobbled the advancement of technology and science.
Natenel’s counterarguments against ideas as property and neoclassical market optimization were convincing but I think missed something, though there is a full-length book on the same subject I have yet to read.
(My thoughts below but they reference the article.)
2.1 – The concept of “property” is simply inapplicable to an idea. The concept of “property” is irrelevant if the subject has infinite abundance. “Taking” has no meaning if the alleged taking results in no loss of use or utility to the “original owner.” An idea is fundamentally abstract and irrevocably differentiated from those concepts that apply to material objects. If I “take” an idea from another, he is not deprived of the idea; he still possess it and therefore I have not stolen it. Indeed, utterly contrary to the basic principal on which “ownership” is founded I have in copying an idea increased the total abundance of the idea at my own cost.
The claims of property and “piracy” are predicated on a presumption of a right to future earnings, an absurd precedent that might humorously apply to any industry threatened by a changing economic environment. It would be impossible to prove that a person who received a copyrighted work via some unauthorized mechanism would have otherwise acquired the work via an authorized one unless they were acquiring it at a price consistent with fair market pricing and in a manner consistent with the same level (or lack of) convenience offered by the authorized mechanism (for example a counterfeit good at full price), thus there is no criminally provable (beyond any reasonable doubt) taking, even of theoretical self-declared entitlements to future earnings.
The absurdity of claiming a property right to an idea is clearly manifest in asking who owns the memory of a protected work in our minds? If such a work is truly property of the copyright holder, subject to all the normal laws of physical property, then why can’t the copyright holder retrieve the copy in each of our minds on demand or force us to pay a licensing fee for the (dis)pleasure of remembering the commercial drivel? If it becomes possible to erase specific memories, would copyright holders have the right to enforce the erasure of specific memories?
2.3 – It is a slightly oblique defense against the arguments for neoclassicist copyright to argue that public discourse and the public good benefits from diverse and antagonistic sources as the neoclassical argument is predicated on maximizing the total value of an idea as manifest in economic terms (not social terms). I think a stronger counter argument is that overall economic interests are directly maximized by free use of ideas.
The argument of the neoclassicists that the economic value of an idea is diminished by competing uses is hypothetical and weaker than the counter argument that the value of an idea is maximized by maximization of it’s direct and indirect use, a doctrine of “there is no such thing as bad publicity.” Evidence in support of the counter argument to the neoclassist is legion, for example the fall in revenue reported after shutting down mixtapes suggesting that the direct economic good of the monopoly holder is maximized by “fair use.” That is Landes and Posner are simply wrong.
The total economic return of an idea should be maximized by the Jeffersonian ideal of reducing the term of the “embarrassing monopoly” to the minimum term necessary to motivate inventors. In, perhaps slightly oversimplified mathematical terms, the value of an idea to the inventor is some linear result of maximizing the return on the original idea, but the public discourse is an “effusion” where each derivative work inspires further derivatives, an exponential increase in total economic value diminished at most by a linear penalty of “congestive externality,” even assuming the arguments of Landes and Posner are valid. If we disregard Landes and Posner, maximum value should lie at the intersection of the linear increase in value to the author of the term of the monopoly (or, more realistically, the negative asymptomatic curve of decreasing return) and the increasing value to the public of free use as the idea becomes more widely disseminated.
The value of an idea to an author decreases exponentially with time – that is most sales of records, books, movies etc. are within the first year of issue, though the rate of decrease varies. The value of an idea to the public tends to increase as it becomes more widely known – and the value of derivative works and incorporation or reuse increases as the idea becomes more widely socially relevant, effectively part of the shared semantic code of society.
I’m looking forward to reading the book.