Copyright follows the same logic as the screwdriver inventor. It posits that the act of making a "creative" work – such as writing a book, composing a song, painting a picture, taking a photo and so on – creates a different type of property on top of the tangible property that already exists in that item. Follow me, dear readers, if you can, through the logic. Let's use a painting as an example. The painting consists of a canvas and some paint. That's the tangible property. That's what the painting's owner owns. But, according to the theory of IP, there is (assuming the painting hasn't been placed into the public domain or had its copyright expire) another owner, as well. The painter, or whomever he might have signed over the copyright to the painting.
You see, the owner of the painting can do anything he wants with it (within the bounds of the non-aggression axiom). He can throw rancid tomatoes at it, he can hang it upside down, he can embed a block of wood straight through the middle of it. It's his or her right as the owner. He may not, however, legally duplicate the pattern of paint on the canvas. There is an existing moral prohibition against duplicating it and then selling those duplicates as the original – it's called fraud. There is no such moral prohibition against merely duplicating it, or, for that matter, duplicating it with the intention of selling the duplicates (assuming one doesn't claim they are original). The reason he may not duplicate it is that the "creator," the copyright holder, doesn't allow it. Granted, there are some exceptions, such Creative Commons or other copyleft licenses which explicitly grant the right to copy within the framework of copyright law. Nevertheless, unless otherwise stated by the copyright holder, the legal assumption is that unauthorized duplication is not permitted.
Can anyone please explain to me how someone can be a just owner of something, yet not be allowed to exercise his or her ownership rights over it? He can throw rancid tomatoes at the painting, but not duplicate the pattern that makes the painting a painting, rather than just canvas and paint? Or, to use a different type of copyrightable pattern, how can someone own their own brain yet not own the part of it containing a song they memorized?
The logical conclusion is that the natural right of property and the idea of copyright, and of intellectual property in general, are fundamentally incompatible and conflict sharply. You cannot own something and have someone else dictate to you what you can and cannot do with it, without that being an element voluntarily arrived at through contract. In absence of a contract, the dictating party is initiating aggression against the just owner of an item. Intellectual property is an assault on tangible property.
What we're looking at is protectionism in disguise – government giving preferential treatment to one specific industry at the expense of the rest of society. Now, let's go back to the copyright holder, the mysterious third party who was hurt by me copying the CD's contents. What I've done by copying my friend's CD is violate a government-imposed monopoly on copying the CD's contents, the monopoly belonging to the copyright holder. Hence, according to the idea of intellectual property, I'm a thief. I've had the audacity to compete with the beneficiary of the monopoly. That is the sense in which I've supposedly hurt a third party.
Let's take a quick look at the current "copyright wars" being waged, in light of the above description of copyright. The music industry in particular and the broader copyright-dependent entertainment industries in general are in decline. Their profit margins are going down, and they don't like it. The consumers aren't as pleased with their products as they once were. The seemingly rational course of action for the industry is to look into why consumers aren't pleased with their products, see what they can do better, innovate, and drop their prices to increase demand. What do the industries (by which I mean the members of the IFPI and MPA) do, however?
None of the above.
In fact, not only are they unwilling to innovate, they have gone to the extreme of starting to sue their own potential and real customers – with the number of lawsuits now over being over 20,000. I'm not a business major, but I'm pretty damn sure that's not a good way to gain favour with your customers. In their view, every copy made is a lost sale; each person who makes a copy – and a download from a file-sharing network is a copy – must equal a lost sale. Because I'm sure you've all gone and bought every single song or movie you've heard or seen at a friend's place, on the radio, on TV, and so on. Let's cut the crap, okay?
There are many theories on why the entertainment industries' profits are going down the drain. My own personal favourites are as follows:
One glaring example of the entertainment industries' fear of technology was ex-MPAA president Jack Valenti's 1982 statement to a U.S. Congressional panel:
"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."
As we all know, VCRs went on to become one of the biggest profit sources for Hollywood in history, and now we have DVDs and Blu-Ray discs filling the VCR's role.
Movies and news media, of course, aren't exempt. Every year, Hollywood cranks out hundreds of movies, on which only a handful are truly worth spending one's finite time. Who truly needs to see movies like Brüno? I mean, okay, it's mildly humorous. But it's far from intelligent.
Here is an article by Michael Crichton discussing the quality of the media, with emphasis on news media in particular. While that isn't directly what this article is discussing, its observations can be applied to that of the entertainment media as well.
Doesn't give you the impression that they like or trust their customers a whole lot, does it?
But that's just the beginning of it. The entertainment industries lobby politicians to strengthen and lengthen and broaden the scope of copyright laws. When last I checked, copyright in the U.S. lasts for life + 70 years. Who can claim that a musician should still have a monopoly on his or her works 70 years after they die?
Furthermore, they lobby for laws like the DMCA (Digital Millennium Copyright Act), which, among other things, further erodes property rights in that it makes reverse engineering DRM systems illegal. What's DRM, you ask? DRM stands for Digital Rights Management. Restrictions might be a more apt term than rights. DRM is, in short, copy protection technology. It's there on your DVDs, your Blu-Ray discs, your Audible audiobooks, and unfortunately many other places also. Sure, one could have DRM without copyright, but it wouldn't make much sense to do so. DRM makes it difficult, but not impossible, to make copies of the contents of a medium such as a DVD. It's a failed attempt by the copyright industries to use technology to prevent the use of other technology.
The results of using DRM have been mainly preventing non-tech-savvy users from making backups of their own discs (as tech-savvy users can figure out ways to copy them anyway) and to introduce unnecessary inconvenience to the customer. Here are a few examples.
They had Napster shut down. Due to its centralized nature, it was a simple case of shutting down the central coordinating server. Since then, file sharing has been a whack-a-mole game with the entertainment industries' lawyers and paid politicians constantly trying to shut down various file-sharing networks, and new ones – more decentralized, anonymized and secure – popping up to fill their place. And with every blow, they make file sharing an even stronger movement. This isn't just me being dramatic, it's a simple fact. They give it publicity. For example, ThePirateBay, a Swedish BitTorrent (a popular file-sharing technology) tracker and search engine, was attempted to be shut down multiple times by various governments, as well as many national government attempting to ban Internet providers in their respective countries from allowing their users to access the site. Every single attempt has been met with ridicule, and ThePirateBay's user base grew exponentially as a result of the publicity. The previous owners of ThePirateBay are now on trial for promoting copyright infringement. More on ThePirateBay's legal saga.
All of these elements combine to form a highly unfavourable impression of the copyright industry in consumers' eyes. Technology is making traditional entertainment industry business models obsolete. Instead of innovating, the industries are using the hammer of government to force their customers to comply with 1970s business models – and now those customers are rebelling. As a result, the measures applied by governments to coerce them just keep getting more and more draconian. The ACTA, or Anti-Counterfeiting Trade Agreement, an international copyright treaty which is being negotiated in secrecy, is just the latest in a series of totalitarian treaties promoted by the copyright-dependent entertainment industries.
That treaty, if passed, would mark the death of the Internet as we know it; pretty much every single website and service with user-uploaded content would be forced out of business by the sheer cost of compliance. Bye-bye YouTube, Flickr, Google Book Search, digg, Wikipedia, etc.
We can't let this insanity go on any longer – eliminate imaginary property!
Thanks for editorial help from John T.
November 9, 2009
Vedad Krehic [send him mail] is a student studying digital media production in Norway.