You Can Copyright a Stage Play, But You Can't Copyright a Football Play

Law profs Kal Raustiala and Chris Sprigman make the case for copying:

The conventional wisdom today is that copying is bad for creativity. If we allow people to copy new inventions, the thinking goes, no one will create them in the first place. Copycats do none of the work of developing new ideas but capture much of the benefit. That is the reason behind patents and copyrights: Copying destroys the incentive to innovate.

Except when it doesn't. There are many creative industries...that lack protection against copying (or did for a long time). A closer look at these fields shows that plenty of innovation takes place even when others are free to copy. There are many examples of successful industries that survive despite extensive copying. In fact, some even thrive because they are so open to copying.

Their examples include cuisine, finance, fashion, and football. Here's what they have to say about the latter:

With myriad possibilities for formations and plays, football strategy is always changing—but none of it is protected against copycats. This hardly discourages great coaches from innovating. Exhibit No. 1 is the West Coast Offense, which relies on quick, short passes to control the ball and gain incremental yardage. The idea was the brainchild of Bill Walsh, who in the 1960s coached the Cincinnati Bengals [*], then a recently formed and hapless NFL expansion team. Cincinnati, he said, "was probably the worst-stocked franchise in the history of the NFL. So in putting the team together, I personally was trying to find a way we could compete."

His way was to develop a new style of offense. Later, when he was coach of the 49ers, Mr. Walsh's ideas helped to lead the team to three Super Bowl wins. Traditionalists at first dismissed his offense as a gimmick. But no one could dispute its success. Eventually, it was imitated by the Green Bay Packers, the Philadelphia Eagles and many other teams....

[I]n sports there are practical barriers to immediately copying a successful new tactic. The first time a play, formation or strategy is used, it can create a big element of surprise. After that, opponents can reverse engineer the idea relatively quickly. More difficult is the process of rebuilding a team to take full advantage of the innovation. This takes time. Economists refer to this window as the first-mover advantage.

Bonus reading: Douglas Clement on "Creation Myths."

[* Down in the comments, Warty points out that Walsh was the Bengals' offensive coordinator, not the head coach.]

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    The idea was the brainchild of Bill Walsh, who in the 1960s coached the Cincinnati Bengals, then a recently formed and hapless NFL expansion team.

    1) Paul Brown coached the Bengals, Bill Walsh was his offensive coordinator.
    2) All the West Coast offense was was an updated version of the offense Paul Brown had always won. He did the same thing in the 40s and 50s with the Browns. Football traditionalists hated him for passing too much.

  • Caleb Turberville||

    Heavily-scripted, 14 yard horizontal passing was the key to 5 Super Bowls baby.

  • robc||

    RE: #2

    Almost all innovation is incremental.

    You sound like Obama: Walsh didnt build that.

  • Pro Libertate||

    What would it do to your little world if it turned out that Warty was, in fact, President Barack Obama?

  • robc||

    I dont...absolutely noth....mind blown!

    Ive never seen them in the same place at the same time.

  • Pro Libertate||

    Yeah, me, either. Case closed.

  • Lord Humungus||

    I would take a President Warty over BHO. The lulz, the squats, the destruction of humanity... it's all in a days work.

  • Pro Libertate||

    I don't think you're understanding the situation here. Warty is Obama. The one we have issues with. I don't know why he comes here, except maybe to purge himself of lingering guilt for destroying the concept of limited government.

  • Pro Libertate||

    Not to imply that he's alone in destroying limited government.

  • ||

    Shh! Ixnay on the evelrationsray!

  • Pro Libertate||

    Oh, right, um, oops.

    Everyone listen! I was just making an absurd joke, as I am wont to do. Warty is not President Obama in any way, and any suggestion to the contrary is treason and actionable to the fullest extent of the law.

  • ||

    Fucking lawyers.

  • Pro Libertate||

    Also treason, as War--I mean, the president--is a lawyer.

  • John||

    I would do it just to watch him dead lift Michelle out on the White House lawn every morning.

  • ||

    the offense Paul Brown had always won

    Apparently I lisp when I type. I won the ball and run the game.

  • gulo gulo||

    1) Paul Brown coached the Bengals, Bill Walsh was his offensive coordinator.

    And offensive coordinators are coaches, so the statement is totally factually correct. It is even technically correct. It is correct in every way.

    Warty's failed attempt at pedantry for the loss...

  • ||

    No, I'd say your pedantry over his pedantry is everyone's loss, douchebag.

  • Randian||

    When one says "coached", one generally means "head coach".

  • Caleb Turberville||

    Football trivia: Who was the first wide-receiver to run modern pass patterns/routes?

  • John||

    Don Hutson.

  • Caleb Turberville||

    Bingo. But my question is (from a person who's only seen short clips of old NFL games) did receiver just run out into random places on the field and let the passer just throw to them when they go open?

  • Caleb Turberville||

    *"got open"

  • John||

    I think so. It was real draw it in the dirt stuff.

  • RBS||

    I'm pretty sure the qb was just like "Hey, you go deep and you go up, then cut across when you get to the mailbox."

  • Pro Libertate||

    Like the run-and-shoot then?

  • wareagle||

    no, the run and shoot had designed patterns. It was different in that multiple receivers would flood a zone. Initial pass offenses had two wideouts and maybe a tight end. RS had four receivers plus backs going out. Like any other offense, the key was execution from the qb.

  • Pro Libertate||

    That's what they'd like you to think. See, once everyone has run off, doing their own thing, it's easy to later say, "Oh, that was planned."

    I do think that the NFL could be thrown upside down by a partial throwback team, dedicated to power running. Defenses are generally down these days, anyway, and even the decent ones are more focused on speed and pass protection. I was hoping that Denver would commit to that, but they wimped out. Eventually, some desperate team will do this. It requires a defense and a great OL, but it doesn't require a great QB, at least, not great in the current sense.

  • John||

    Me too. And the 3-4 defense is especially susceptible to the power run game.

  • ||

    you've just described the niners

  • Pro Libertate||

    No, more running. Why do it half-assed?

  • KDN||

    I do think that the NFL could be thrown upside down by a partial throwback team, dedicated to power running.

    The Jets are attempting it, but their tackles are ill-suited to the task (Ferguson's great with speed rushers but is average at best as a run blocker and gets mauled at the point of attack; OTOH, Wayne Hunter is the single worst starter at any position in the NFL). They're also refusing to exploit Tebow's unique gifts, limited though they are.

    the 3-4 defense is especially susceptible to the power run game

    I'm not sure this is the case; the Parcells Jets teams with Jason Ferguson and Marvin Jones up the middle always seemed to eat running teams up, as do the current Ravens, Jets, and Steelers. So long as you have a good NT, run stuffing ILB's, and an halfway competent box safety you should be fine.

  • Rasilio||

    It's called the Pittsburg Steelers and to a lesser extent the Baltimore Ravens and recently the Atlanta Falcons.

    And yes, all 3 teams have been very good lately using that model, the problem is the rules against manhandling recieviers downfield makes it all but impossible to stop the most prolific pass offenses for long and it is hard to score more than 17 - 21 points using a ground and pound offense so you tend to loose a lot of 24 - 21 games to good teams and win a lot of 17 - 14 games against bad teams.

    Problem is once you get past the first round of the playoffs there are only good teams left which is why Pittsburg, Baltimore, and Atlanta have had less post season success than the Green Bay's, Indiannapolis's, and New England's for the last decade.

  • Pro Libertate||

    I don't agree at all. The key to defending the pass isn't the secondary, it's the pass rush. The current fad in the NFL is favoring offense. This will change.

  • Rasilio||

    You mean the pass rush where even a cross look at the quarterback will result in a roughing the passer call and actually tackling him results in a fine or suspension?

    That said, even as great as the Giants pass rush was, and make no mistake, the pass rush that the Giants have had over the last 5 years is one of the greatest the NFL has ever seen could only mostly contain Tom Brady in 2 matches (57 for 89, 542 total passing yards in both games combined). Had their offense been predicated on a punishing ground control running game it is not very likely that the Giants would have won either of those Super Bowls.

  • Pro Libertate||

    I mean real pass rushes, not the pansy-ass stuff we've seen lately. I don't think the Giants even remotely qualify as a "great defense."

    I do agree the rules favoring offense to the nth degree is a big problem for defenses.

  • KDN||

    I don't think the Giants even remotely qualify as a "great defense."

    They're not, but they do have a great pass rush. That and they can chuck the ball are the two factors why the Giants win; it's taking advantage of the rules as they currently are.

    I do agree that it'll eventually cycle back the other way, and think that the concussion hysteria will be the catalyst for such a change. It's a lot harder to get your clock cleaned when you're fighting with a CB along the sidelines or diving behind a guard, after all.

  • Rasilio||

    I didn't say great defense, I said great pass rush.

    Also the point was not that the rules favored the offense, the point was the the rules specifically favor passing over rushing which will make it very difficult for any defense, no matter how great to really shut down a high scoring pass oriented offense, hold them under 30 points sure, maybe even on occasion hold them under 24 but a ground and pound run first offense will have a hard time averaging over about 17 points a game which sets you up to lose to high powered offenses more often than you win.

  • Pro Libertate||

    I fucking hate wide receivers and their special rules.

  • Libertywolf78Z||

    The run and shoot relies a lot on what the QB and WRs see, as the WRs have numerous options they can run based upon the defense. So, IF ::defensive secondary player:: is in this position, THEN I run this route. In order for it work, the QB and WRs have to be on the same page. June Jones does a good breakdown of this here: link

  • Pro Libertate||

    The game hasn't been the same since they instituted the forward pass.

  • Caleb Turberville||

    Krusty: Bart, there's two seconds left. Now listen up. It's your basic Statue of Liberty play with one twist: you throw it to me! Knute Rockne called it the forward pass. Now, the clock's still running, so it's important we start this play as quickly as possible.

  • ||

    I quote that all the time and nobody gets it : )

  • Pro Libertate||

    "Down in the comments?" Oh, what a giveaway. Did you hear that, did you hear that, eh? That's what I'm on about--did you see him repressing me, you saw it didn't you?

  • Citizen Nothing||

    Now we see the violence inherent in the system.

  • Whiterun Guard||

    Not nearly violent enough for me.

  • Pro Libertate||

    Help, help! I'm being repressed!

  • ||

    I don't even get an adjective, like "hirstute" or "abhorred"? I feel cheated.

  • T||

    As long as you realize 'beloved' was never an option.

  • Pro Libertate||

    "Unelectable?"

  • SugarFree||

    Warty The Well-Endowed

  • ||

    "Unnameable Horror Warty"

  • SugarFree||

    I get it.

  • ||

    Do you? Do you really?

  • SugarFree||

    I'm not going to explain your own joke to you.

  • ||

    With mango chutney!

  • gulo gulo||

    How about "pedantic for no reason"?

  • Randian||

    Another champion of Deliberate Misunderstading For Supreme Dickitude.

  • The Late P Brooks||

    "unfathomably horrific"

  • Lord Humungus||

    no "un" required.

  • Fluffy||

    You know what these fields have in common?

    1. The capital cost to innovate is virtually $0.

    2. All possible innovations are already covered by prior art.

  • John||

    What is the capital cost of writing a song? About the same as drafting a football play I would say. Yet, one can be copyrighted and the other cannot.

  • Fluffy||

    That's not really the point.

    These fields are being offered as a proof of the proposition that patent and copyright is not required for innovation in ANY field.

    So finding one other field that is similar to these four fields really doesn't help prove the proposition.

    You'd have to find fields with high capital requirements and dramatically different prior art situations with no patent protections and a large number of firms making large investments in innovation.

  • anon||

    I feel like software/film development is being implied here, which is a -very- different discussion than the article itself conveniently leaves out. I'm happy to entertain the idea of free media versus copyrighted media, but I think the article dodges it specifically because it's so different.

  • Randian||

    I thought 'drug companies', but the limited point still stands.

  • anon||

    Meh, copying drugs is great for the consumer.

    Being granted a monopoly simply because you were the first person to figure something out is a bit ridiculous, mostly because it's -completely- unenforceable without a one-world-government type thing, which I happen to think would be absolutely fucking terrible.

  • Randian||

    mostly because it's -completely- unenforceable without a one-world-government type thing

    This is not true. It is partially enforceable with the government systems we have now.

  • califernian||

    that is true. Basically any country who wants their economy to be able to play with US/EU has to conform on some level. They are more dodgy but it's not a free for all.

  • Rasilio||

    Architecture comes close to those criteria. Course on the down side the only people who tend to care very much about the architectural design specifics of a particular building tend to be architects.

  • AlmightyJB||

    The football coach is getting paid to draft plays regardless of whether some else steals the ideas. He'll also continue to benefit from the plays he drafts. The songwriter only gets paid if the songs a hit. If a recording company steals a great song and produces it the original songwriter gets nothing. There's certainly arguments to be made against copywriting but I don't think this football analogy is a very good one. It's apples and oranges really. Same with food and fashion but for different reasons. They're not really comparable.

  • John||

    http://philadelphia.cbslocal.c.....-to-fight/

    Daycare workers arrested for toddler fight club.

    How was this not in the morning links? You disappoint me Reason.

  • SugarFree||

    It was too awesome for the Morning Links.

  • ||

    John, the first rule of Toddler Fight Club is that you do not talk about Toddler Fight Club.

  • Jesus H. Christ||

    The second rule is "no pinching, just punching."

  • CE||

    ANd trim those fingernails first, so the moms don't find out.

  • Lord Humungus||

    er, it was in the morning links. Fist post I made.

  • Loki||

    "The first rule of Toddler Fight Club is: you do not talk about Toddler Fight Club. The second rule of Toddler Fight Club is: you DO NOT talk about Toddler Fight Club! Third rule of Toddler Fight Club: someone yells "mommy!", goes fetal, taps out, the fight is over. Fourth rule: only two toddlers to a fight. Fifth rule: one fight at a time, toddlers. Sixth rule: No binkies, no sippy cups. Seventh rule: fights will go on as long as they have to. And the eighth and final rule: if this is your first time at Toddler Fight Club, you have to fight."

  • Ken Shultz||

    That is the reason behind patents and copyrights: Copying destroys the incentive to innovate.

    This gets it partially right--maybe it's a question of emphasis...

    One of the reasons behind patents and copyrights is because copying destroys the incentive to finance innovation.

    No one's about to stop financing their football team becasue someone else copied the run-and-shoot offense or the Tampa cover-two defense.

    But that's a very different model you're talking about from the model where someone's pursuing a pill that cures Alzheimer's. If just anybody can profit from my effort, then why would I spend the $400 million or so looking for a solution?

    This is part of the problem historians have when they're looking at data backwards through time--and usually from a top-down perspective.

    It's easy to see what people should have done in hindsight--and from a top-down perspective too! But innovation doesn't happen in retrospect. It happens from the present looking toward the future. And if you want people to take financial risks from that perspective, they need to have some kind of assurance that if all the other undefined variables somehow line up properly in the future, at least they know they'll be able to recover the cost of their investment.

    I've raised a lot of money over the years. I haven't raised a dollar yet from an investor who didn't want to know how likely we were to recover his investment--before he decided whether to invest.

  • Fluffy||

    Fashion is also a terrible example, because random design "innovations" are contributing no new value and are all covered by prior art.

    The actual investment being made in fashion is being made into the trademark, which is protected.

    The entire investment being made by designers into putting out new designs every year is to build the value of their trademark as a brand.

    So to prove that fashion designers would still innovate even in the absence of protection, you'd have to do away with trademarks as well.

  • Ken Shultz||

    I also can't emphasize the difference between the top-down look at history/academic view of the world versus the bottom-up look into the future/finance view of the world.

    Every prospectus has a line in it that reads "Past performance is not indicative of future results", and yet the academic minded out there are constantly falling for it!

    Because a top-down view shows that if people had done something in the past, it would have been better? That's no indication that people making investments in the present should do that same thing in the future...

    It's one thing if you think you've uncovered some near universal principle, but you better be able to show it really is a principle and not just an example of something that happened under certain circumstances once.

    Otherwise, they might as well pick yesterday's lottery number today.

  • califernian||

    "design "innovations" are contributing no new value "

    eye of the beholder, etc. etc.

    Don't ever forget that the "value" of anything changes person to person.

  • Fluffy||

    I'd also hesitate to use innovation in sports as evidence that IP isn't required for innovation, for the simple reason that sports are LITTERED with IP.

    The NFL sells the rights to broadcast its games, which are copyrighted.

    The team names are trademarked.

    The competition on the field exists in an entirely artificial competitive space. It's a game. People are paying to see two teams try to figure out how to beat each other in the context of standardized rules that treat both teams equally. That's what makes it a game.

    So the cosseted coaches and players occupy a false and imaginary fantasy competitive space that has unique standardized rules by design.

    Trying to apply lessons from that space to the economy overall, when the sports teams make their actual money in our real competitive space that includes IP, is bad argumentation and plain old balderdash.

  • Ken Shultz||

    I'd also hesitate to use innovation in sports as evidence that IP isn't required for innovation, for the simple reason that sports are LITTERED with IP.

    You're exactly right.

    How much would teams invest in their brand names and their players if they weren't sure whether they would be able to sell the exclusive right to broadcast to some network or other?

  • CE||

    Plus, instant replay reviews are bad enough. Imagine if you had to wait until Wednesday or so to see if your team really won, after all the post-game lawsuits for copying copyrighted plays.

  • Broseph of Invention||

    I don't think it's a bad illustration of the concepts, though. You're right that creativity is limited when something is made by design, but that's only a matter of degree, not operation.

    And I don't see why the presence of IP surrounding sports has much to do with the mechanics surrounding creativity within sports. It makes sports as an overall field a bad example, but not playbooking and strategy.

  • Fluffy||

    Because the article is claiming that there's plenty of innovation in sports, despite the fact that the innovations aren't protected by IP.

    But the people doing the innovating are getting paid with dollars that are generated and protected by IP.

    Bill Walsh was drawing a paycheck paid for by IP when he created his new offense.

    So the question is how much innovation would be taking place in football play calling if no one at any level could make any money that involved the use of IP? Probably much, much less than there currently is.

    And beyond that, nobody would give a shit about that innovation, because innovation in some non-professional, non-broadcast, non-league sport (which is what football would become) is about as valuable to people as my kid "innovating" in games he plays with his blocks.

    "Daddy, Daddy, I devised a new play for my blocks!"

    "Wow, I'll alert the media."

  • robc||

    Was there any football innovation in the pre-TV days of football?

    Or at the High School level?

    Innovation will occur because winning is important.

  • robc||

    To be honest, not sure why Im responding to your utilitarian IP arguments. The ultimate argument is about who owns the products of my brain and my muscles? I do.

    Even if you thought it or built it first.

    Patent and copyright supporters are slavers...you know what slavers should do?

  • Mickey Rat||

    "The ultimate argument is about who owns the products of my brain and my muscles?"

    If you are violating IP, the assumption is what you are using is not the product of your brain, that you are copying the product of someone else's brain and that person is the legitimate owner.

  • VG Zaytsev||

    Do you pay Zog's ancestors a royalty every time you make fire?

    or John Crapper's every time you fluch?

    Would you be better off if you did?

  • Mickey Rat||

    I don't Zog's is still in business, or would hold a valid patent on that.

    I'm pretty sure I paid for the toilet.

    You really don't see how someone who spent thousands of man-hours on a book or a movie or computer game might be disincentivized to spend that much time producing content if some schlub with a copying device can sell the product of their hard work with impunity?

  • Broseph of Invention||

    Okay, I see what you're saying now. But that's sort of like saying IP is justified, because it creates a revenue stream that can pay for innovation. To justify IP, there has to be a stronger connection between an innovation and the means for funding the innovation. I don't think you can justify IP for an entire system because, at some points in the system, IP would be required for the system to exist. It doesn't necessarily follow that the innovation wouldn't occur if IP wasn't present.

    Again, I think you're right that sports as a whole is a bad analogy and that an environment with limited creativity has to allow free operation, but as a controlled experiment in innovation, it works pretty well.

  • Suki||

    Wasn't there some flap about one team "stealing" the playbook of another recently? Also, maybe the same one, about some team "stealing" the signs and plays of another during practice or a game? The latter had something to do with "sneaky" video.

    I don't recall this getting into the court system as IP, but it was within what you could call the NFL system of IP, so I guess that makes it okay since everybody in the league presumably agreed on the rules.

  • AlmightyJB||

    I think that had more to do with the other team knowing what their opponent was going to do by watching the signals more so than actually stealing the plays themselves. You can copy my poker technique but you're not aloud to look at my cards.

  • VG Zaytsev||

    You are conflating intellectual property, a fraudulent concept; with privacy, trade secrets and confidentiality which are all valid concepts.

  • CE||

    If just anybody can profit from my effort, then why would I spend the $400 million or so looking for a solution [to Alzheimer's]?

    ONce again people assume that without the government, progress would be impossible. Without patent and copyright protection, there would still be an incentive to finance drug development, because the market for such a cure is huge.

    But instead of vertically integrated pharmaceutical firms, you would probably have 2 or 3 giant funding and marketing and distribution firms, funneling money to hundreds of research labs, all of which would be free to collaborate and make faster progress.

  • Broseph of Invention||

    Yep. And while I'm not a fan of antitrust laws, we give a lot of leeway for joint ventures between companies that are focused on research and development.

  • Jesus H. Christ||

    "ONce again people assume that without the government, progress would be impossible."

    Without the protection of private property, progress is largely impossible. One of the few legitimate government concerns is the protection of private property.

  • Broseph of Invention||

    What about protection of private property from third party claims attempting to restrict the use of that private property? "Intellectual Property" is regulation, as it restricts another person's use of his private property, albeit through third party enforcement. It may be justified in limited circumstances, but it still is regulation.

  • Suki||

    Squatters have no rights and should be shot. (serious)

  • Broseph of Invention||

    But not just anyone can profit from your effort. There are development costs to creating something.

    When I was a patent attorney, here was our typical patent scenario: engineer creates product, engineer looks at product to identify something "novel", engineer submits the disclosure to a review board, review board determines whether it's novel and whether it can be licensed, and finally the disclosure is turned into a patent application. The revenue for intellectual property was a completely different stream than that of product development and innovation. I suppose you could say that intellectual property supplements profit from the actual product, but it still happens in parallel, and development wouldn't cease if patents didn't exist.

    For example, I would file a patent on some semiconductor design. That semiconductor design was already being integrated into our manufacturing process when we filed the patent application. By the time we got a patent on the semiconductor design, the chip containing the design had already been used. Other chip manufacturers couldn't integrate it into their design until further down the road. Without a patent, we wouldn't have made as big a profit, but we still would have made a profit.

    Technology really is linear. If companies focus on innovation instead of innovation and product development, then they may not make it without patents, but that's a flaw in their business model.

  • robc||

    Trade secrets.

  • Randian||

    Those are a sly admission that IP is a real thing, are they not?

  • robc||

    Not really. You dont have to keep property secret. You are only keeping it secret because you dont want to share.

    The time limits on patent and copyright are an admission that they arent really property, right?

  • Randian||

    Except you can sue over theft of trade secrets.

  • Broseph of Invention||

    It's an admission that the problems which IP attempts to solve are actual problems, but they do it through contract law.

  • Broseph of Invention||

    Also Ken, with regard to raising money for investors - I worked for a start-up, and found something similar. Investors wanted some form of IP protection, at least in the biological sciences. But in that case, I think IP acted more as a signaling function for commitment than a value placeholder. Also, a lot of it involved freedom to operate, which could be proven through other means. It ended up being much more important for us to prove we could point to a specific plan, even though the plan would definitely change, when it came down to ROI.

    What field were you working in? That can make a big difference too.

  • robc||

    Trade secrets.

  • robc||

    Stupid squirrels.

  • TongReee||

    lol thats jsut too funny dude. WOw.

    www.Private-IP.tk

  • Night Elf Mohawk||

    If someone can "steal" your football play and implement it on their own, it doesn't reduce your incentive to gain a competitive advantage by designing new plays.

    If someone can "steal" your book and publish it on their own, it kinda does seem like it would reduce your incentive to write the book, at least if you're trying to write for a living.

  • anon||

    Or, perhaps, just maybe, you were trying to profit too much on each individual sale of your book. Now you're in a price war with another publisher, which benefits... the consumer.

    And no, people don't go around publishing books for free. The closest thing to "free" would be torrents of the book, which already exist and are already plentiful, and haven't prevented people from writing books yet.

  • Night Elf Mohawk||

    How do you compete against another publisher when the other publisher doesn't have to pay for the time and labor it took to write the book, but you do?

  • anon||

    Sell more copies, faster, at a lower price than your competitors. Higher quality product (Hardback, etc).

    I don't really care; I'm not in the publishing business. Perhaps authors will have to publish their own crap. I'm ok with that. It's not my job to make sure someone gets paid for merely sitting down and spewing out random bullshit.

    Think of it this way though; what books would you actually take the time to copy and hand out for free, or even try to sell at a discount? I can't think of a single one that I'd pay someone to re-print (were it legal) and then try to sell.

  • anon||

    Furthermore, nothing prevents you from loaning out or selling a book you've already purchased (and maybe even read!), which cuts the publisher out of a sale. It's the exact same to the publisher as if you had stolen the book from them, yet they're still in business.

  • Night Elf Mohawk||

    Might want to look up begging the question.

  • anon||

    Yes, you should. Because you did it first.

  • Overt||

    Let's imagine JK Rowling hits it big with Harry Potter and the Sorcerer's Stone.

    Two months later, Sony debuts a suite of Harry Potter movies, cartoons, and video games. They effectively own the Harry Potter franchise now, without paying a cent to Rowling.

    I'm sorry, I have a problem with that. There is real energy and investment put into producing IP. And I have no problem with the concept that a person should own license to that IP.

    Not that we should take that to the extremes we have in this country. But the concept is sound, imho.

  • ||

    Ah yes, the tragedy that she would have been a mere millionaire.

  • Rasilio||

    So you are saying that some people deserve special government protections to ensure they are able to earn a living in doing the work they desire to do?

    As opposed to leaving them to figure out a way to capitalize on their writing skill.

  • Night Elf Mohawk||

    You don't read so well, do you?

    I didn't say that anyone should "ensure" authors are able to earn a living in doing the work they desire to do.

  • anon||

    You certainly implied that the government should ensure an author is entitled to payment for any bullshit he publishes and copyrights.

  • Night Elf Mohawk||

    No, I certainly didn't imply that he was entitled to any payment at all.

  • Fluffy||

    If he can get people to buy it, sure.

    If you want to make no effort, but just steal his and sell it, to me that makes you no better than someone who stole the TV from his house and sold it.

    Why should the government ensure that only anon can get money for selling his TV? Why not me, too?

  • Randian||

    Except if I could get a handheld scanner and print out 'your' TV, then we would have two televisions.

    The problem is that IP is not excludable and not rival, which makes it, in economic terms, a public good.

  • Fluffy||

    Except if I could get a handheld scanner and print out 'your' TV, then we would have two televisions.

    So what?

    The scarcity of the good has nothing to do with who has the moral right to own it.

  • Randian||

    The scarcity of the good has nothing to do with who has the moral right to own it.

    But 'first in time' does?

  • Rasilio||

    Yes actually it does.

    If he has printed an exact copy of your television, you still have your television. You have been deprived of nothing.

    Are you trying to argue that you now own this second television which now exists by virtue of the fact that it is a copy of a seperate television you happen to own?

  • The Derider||

    +1

  • Rasilio||

    Well if the author is not ensured of making a profit off of his work then what is the value of Copyright?

    In fact the vast majority of books either get written as works for hire where the author is merely paid a salary or with no reasonable expectation of profit and yet those books get written anyway.

    Let us for a moment consider the case of probably the richest author on the planet, JK Rowling.

    She wrote her first book as a poor single mother who was actually homeless for a time while she was writing it, she had no expectation that she would ever even get it published much less make a dime off of it. Copyright was literally meaningless to her motivations in writing that book and yet she wrote it anyway.

    Then it went on to become a ridiculous runaway bestseller literally making her a billionaire. Nowhere in that entire process however would her ability to make a profit have been seriously compromised, or her motivations significantly changed with the elimination of copyright protections. Sure she might not have become a billionare and had to settle for half a billion but either way every one of those books and movies would have been made even without government enforced protections of their current business models.

  • Overt||

    Do you read your own words? "Nowhere...would her ability to make a process have been seriously compromised"

    "Sure she might not have become a billionaire."

    Had Harry Potter not been protected by IP, JK Rowling would not have made nearly the profit she did. Universal could have made all the movies without giving her a penny. Nor would she have received compensation for merchandising.

    Indeed, it is likely that she would have never written all the books, since in the time she was trying to finish Goblet of Fire, anyone could have come out with stories "hijacking" the HP universe.

  • Rasilio||

    "not nearly the same profit" is not even close to the same as "no profit"

    As far as her not making a dime off of the movies, I suppose there is a possibility of that, however the instant that she heard that Universal was going to make a Harry Potter movie she could have walked across to Disney and cut a deal to make one with them with her serving as the face of that movie and slamming Universal's version. Now, how many of the Potter fans would have gone to see the Universal one over the one backed by the author they love so much?

    Would she have gotten as much out of the deal as she did in the real world? No, probably not, but she still would have made more off of those 7 movies than any of us will ever make in our lifetimes.

    Further, the honcho's over at Universal, knowing that Rowling is working with Disney is likely to kill their ability to make a profit on their own Harry Potter movie would likely never have even completed it.

    Finally in such a world where would all of the money that Rowling didn't make off those movies go? In your and my and everyone else who went to see those movies in the theatre/bought the DVD's because with no copyright protections in place they could not overcharge for the tickets. Basically movie tickets and DVD prices would fall by 40% or more and everyone would still make a profit, just not quite as much.

  • Zeb||

    She probably wouldn't have made anything on the movies without copyright.

  • Fluffy||

    The real reason this argument is pointless is because the moral property right to IP is valid whether it's economically efficient or not.

    If I invent something new, it's vastly - vastly - more obvious to me that it's morally mine than any piece of land could ever be. The chain of custody of all land on Earth is riddled with blood and injustice. The chain of custody of a new idea is as pure as the driven snow.

    I'd gladly slaughter every last fucking one of you to protect any IP I came up with, because I'd be absolutely sure that it was mine by right and you were all fucking slavers and thieves. But land? You might be able to convince me that my claim to land is shaky because the land was previously stolen somewhere in its title history. I could never be quite as sure.

  • Randian||

    Except how do you determine the difference between "I invented the diatonic scale, except I changed this one note" and "I wrote this unique song"

  • robc||

    Disagree.

    If I think it or build it or perform it, the thought I think or the item I build or performance I perform are MINE.

    Even if you thought it or built it or performed it first.

  • robc||

    Morally, IP* is slavery.

    *with trademark exception due to fraud.

  • Fluffy||

    That's like saying after I steal your TV, I deserve it and am the rightful owner, because it was my muscles that carried the TV down the street to my own house.

  • robc||

    No, it isnt.

    I didnt take anything FROM you when I built a duplicate of your car. You still have it.

    I loaned out MY (I fucking own it because I paid for it) copy of The Last Days of Jericho. Just to deny Thomas Brookside a royalty payment. I hope he didnt mind.

  • Randian||

    Let's not get personal.

  • robc||

    Ive never seen Thomas Brookside post here.

  • robc||

    He is claiming to own my brain, you cant get more personal that that.

  • Randian||

    It's not necessary and you know it.

  • robc||

    None of our posts are necessary.

  • Mickey Rat||

    Presumably, in your scenario Fluffy is not a car manufacturer who makes his living selling the innovations in auto technology. He is just someone who owns a car for personal use, and such a person has no reason to care if you duplicated his car. The person who made the car would.

  • Fluffy||

    It would also mean that if I contracted with you to write a story - signed a contract to pay you $300 for you to write the story of what you did with your summer vacation - and you wrote the story and handed it to me, I could just copy it, not pay you, and say I didn't need your story any more because I already had a copy.

  • robc||

    No, the contract would still be valid.

  • Fluffy||

    So what you're saying is that if you create something to sell, you should get to decide what its price is, even if I can contrive to obtain a copy of it before you sell it?

    Fuck off, slaver.

  • robc||

    Huh?

    We agreed to the price at the time of the contract.

  • Randian||

    That would be breach of contract for services rendered, though.

  • Fluffy||

    The only reason that fraud has moral meaning is because we acknowledge that you have a right to profit from your mind and your labor and to control its sale.

    If you don't have that right, there's no such thing as fraud.

    If you don't have that right, the contract was never valid because you never had anything to sell me.

  • robc||

    The only reason that fraud has moral meaning is because we acknowledge that you have a right to profit from your mind and your labor and to control its sale.

    Glad to see we are on the same page.

    I have the right to profit from my mind.

  • Mickey Rat||

    "I have the right to profit from my mind."

    Yes, but you do not have a right to profit from somebody else's mind, which is what you are claiming.

  • Randian||

    The only reason that fraud has moral meaning is because we acknowledge that you have a right to profit from your mind and your labor and to control its sale.

    Right, so the contract induced me to do something I had the right not to do.

    Your failure to pay me is a breach of contract. I would not normally have written that story without you inducing me to do so.

  • Fluffy||

    I would not normally have written that story without you inducing me to do so.

    Hey, you're getting closer.

    OK, say Mr. A tells me he'll pay $300 for a story.

    So I sit down and write it.

    But after I finish the story and before I sell it to Mr. A, robc swipes the story from my desk and runs and sells it to Mr. A.

    And I show up to sell Mr. A my story and he says he's already got one.

    I guess I'm shit out of luck, because robc owns the labor it took him to copy my story down. Right?

  • Rasilio||

    But after I finish the story and before I sell it to Mr. A, robc swipes the story from my desk and runs and sells it to Mr. A.

    And here is your problem.

    There is no before the sale, the sale occurred at the moment the contract was written prior to the story existing. The contract was not for the delivery of a copy of the story but rather for the process of creating it. As long as the story now exists you owe me the money. Your proof that it exists is your having the story transmitted to you regardless of the means.

    Now if you are an author and dumbass enough to sign a contract that only pays you for the physical deliver of a printed copy and you do not arrange to recieve payment prior to anyone actually accessing the story then you are a pretty dumb individual, probably to dumb to actually form sentences to write the story in the first place but still you can chalk it up to a learning experience.

  • robc||

    You contracted with Mr A, he owes you the $500.

    It sounds like I had a little BE, so Im going to jail. And you own the physical copy, if I swiped that too, ditto.

    robc owns the labor it took him to copy my story down

    Yup.

  • Broseph of Invention||

    There are plenty of instances of simultaneous invention. How do you know someone else hasn't thought of it, but simply hasn't acted? Look at Twitter - you have about 12 seconds to make a pop culture joke before 1000 jokes exactly like it appear. Tangible property has those problems, but a lot less so.

    I agree with you that property systems often involve injustice, but the best approach to end that injustice is to settle uncertainty in property claims and work to promoting fair rules of property transfer (imo, free market principles). Property is about order and efficiency, and when you carve out property rights from existing property in the name of IP, you put a lot of uncertainty into the system, not to mention limits on property use.

  • Rasilio||

    Not it is not. The 2 are in no way connected.

    If you steal my TV then I am left without the TV and you have a TV.

    If I "pirate" your idea then you still have your idea and full use of it.

    You are treating ideas as if they were scarce non duplicable resources like televisions or cars. They are not.

    If I copy an idea you had I am not depriving you of ANYTHING unless you presuppose that you have a right to be paid for your idea.

    Take for example a car. Lets go with a Ford Mustang....

  • Rasilio||

    Ford Motor Company manufacutres Mustangs and sells them. If I go into their factory and take one of those cars without permission (aka steal it) then I have deprived them of the use of that physical property.

    On the other hand of I own a machine shop and manufacture an exact replica of a Ford Mustang what I have I deprived Ford of? They still have every Mustang they manufactured, they still know how to manufacture more, they still retian the capacity to manufacture more. They have lost absolutely NOTHING.

    This is just one of the problems with IP, it is non scarce and non exclusive (every human on the planet could use the same idea at the same time without limiting anyones ability to also use it).

    The one thing that Copyright and Patent protections do it to protect a business model. In their absence the actual business of writing, or music, or movies, or computer programming, or pharmacuticals, or genetic engineering, etc. would change as would the structure of who gets paid and how much but the creators in those fields would still create and invent because that is what Humans do, we invent and create solutions to problems we percieve or even just for the pure joy of creating.

  • Mickey Rat||

    If you do not have the physical plant to mass produce Mustangs, they have lost nothing except one potential sale. If you do, then then you can undersell Ford because they are paying for RD and design staff who you are just cribbing off, and they have lost something. At the very least, Ford has an incentive to make their design as much of a black box as possible, and any other content producer to make their product as uncopyable as possible.

  • Randian||

    Even though I have the name I have, I am increasingly hard-pressed to defend IP.

    We have a system in place where you can instantly copy books and songs and movies...and now everyone can own that book, song, or movie.

    If we had a system where we could just as easily duplicate cars, isn't that a good thing?

    It also seems to me that words and notes are not unique, so it is difficult to see when a sentence or bar of music becomes unique.

  • Fluffy||

    If we had a system where we could just as easily duplicate cars, isn't that a good thing?

    But apparently, we would owe the guy who invented the car-duplicating system...nothing.

    Nice.

  • Randian||

    In this analogy, the car-duplicating system is The Car Pirate Bay, and they operate off of ads, right?

  • Fluffy||

    No. Somebody had to invent it first. We can't currently duplicate cars at no cost, so for us to start doing that, somebody has to invent a way to do it.

    And the person who does that will add more by that act to the wealth of the world than anyone in history, probably since the domestication of fire.

    And in the absence of IP you are saying that any douchebag like robc or anon can just appropriate that, for nothing.

  • robc||

    Not for nothing, I have to figure out how to build it.

    Using my brain and my labor.

    Are my thoughts not mine? Is my labor not mine?

    Fuck off, slaver!

  • Fluffy||

    Not for nothing, I have to figure out how to build it.

    By "figure out", you mean "do nothing but just look at what the other guy did before you".

  • robc||

    That is "figuring it out".

    I should probably offer him mad props, just to be polite.

    But that is still my brain and my muscles doing that work. Thus, the result is MINE. Anything less is slavery.

  • Fluffy||

    That is "figuring it out".

    And a thief would tell you that it's "work" to figure out how to steal a TV.

  • robc||

    But the difference is that there is a taking involved. Physical property is single owner. It cant be owned by multiple people (yeah, yeah, you know what I mean).

    If you take my TV, you have denied me my TV. When I photocopy The Last Days of Jericho, you have exactly as many copies as you had before.

    I have produced something of value in fact, as Ive increased the number of copies of a good novel in the world.

  • Fluffy||

    But the difference is that there is a taking involved. Physical property is single owner. It cant be owned by multiple people (yeah, yeah, you know what I mean).

    None of that matters, at all.

    The only copy of an idea that matters is the first one, in my head.

    I own that, and I keep right on owning all copies of it, no matter how many are made. If you take a copy of it on terms to which I do not agree, you are just as much of a thief as you would be if I was making individual copies of an item in my front yard and you came and took one.

    "Aw, come on, you never notice it!" isn't a meaningful argument to me. Maybe I'm just a petty asshole. So what?

    You can try to claim that you "own" the effort you made to sit down and read somebody else's idea, but that's incredibly morally disingenuous. If Joe Engineer creates a magical infinite ice cream maker tomorrow, one thing is absolutely sure: I was never, ever, ever going to invent that machine. Calling the effort it takes me to read about what Joe Engineer did and copy it like a fucking chimpanzee the moral equivalent of actually inventing the thing is fairly monstrous.

  • robc||

    The only copy of an idea that matters is the first one, in my head.

    Bullshit. Every copy matters.

    The one in your head is yours.
    The one in my head is mine.
    The one in randian's head is his, assuming he has thoughts.

    Even if they are all the same. It doesnt matter who thought it first, a thought is a thought and belongs to the thinker.

    A widget I build with my labor is my widget.
    A widget you build with your labor is your widget.

    We both own a widget, who built it first doesnt matter.

  • Rasilio||

    "The only copy of an idea that matters is the first one, in my head.

    I own that, and I keep right on owning all copies of it, no matter how many are made. If you take a copy of it on terms to which I do not agree, you are just as much of a thief as you would be if I was making individual copies of an item in my front yard and you came and took one.
    "

    Wait, so you are telling me that if you write a book and I read it, thereby storing a portion of a copy (whatever I remember of it) in my brain that you now have the right to claim ownership to a portion of my brain because it contains a portion of your prior work?

    Well in that case then by reading this post I now own a portion of your brain and I demand you start using those brain cells to actually think through the rather horrifying consequences of your stance, those are my terms and since you have now read my intellectual property you are bound by them.

    Alternatively you can send me $10,000 for a licenced copy of this post.

  • ant1sthenes||

    Stealing a TV deprives the TV owner of a TV. Stealing the idea of a TV deprives the TV owner of the ability to sell you a TV.

    Follow that train of logic too far, and we starting getting to the point where replacing workers with machines is stealing, since you're depriving laborers of expected opportunity to earn income after they dedicated years to your company. In neither case (TV-idea-stealer, or displaced worker) was there some contract obligating you to give them business. You made them unnecessary, to their detriment, but life is hard.

  • Jesus H. Christ||

    ^^ this ^^

  • Jesus H. Christ||

    Crap.

    My ^^ this ^^ was for Fluffy.

  • robc||

    Your actual this was better targeted.

  • Fluffy||

    It also seems to me that words and notes are not unique, so it is difficult to see when a sentence or bar of music becomes unique.

    Only if we proceed in bad faith.

    If I take Harry Potter and the Philosopher's Stone and add an Oxford comma to a sentence on page 107, I have obviously not undertaken a copyrightable unique work.

    And if I whined, "Wah! But it's not exactly the same now! It's not FAIR!" that's just evidence of my bad faith.

  • Randian||

    It's a far cop, but the gray areas ("That character is too similar to my invented character!") is what I am talking about, not an Oxford comma at page 107.

  • ant1sthenes||

    I think it depends on whether innovation relies more on creativity and inspiration, or on massive investment of material resources (whether inherently or legally). In the former cases, allowing copying lets clearly advantageous new ideas become the baseline against which the creative must now strive to distinguish themselves. In the latter case, copying shafts investors out of being able to even break even on inventions and discourages further innovation unless the state either protects IP, or does the research itself.

  • ant1sthenes||

    Of course, for the same work, each might contribute in different ways. For example, the idea behind Angry Birds was probably mainly inspiration/creativity, whereas creating the art and music and code and debugging and so on involved a substantial investment of skilled labor and purchase of development tools. As a result, an actual pirated copy is much more of a problem than a knockoff (insofar as creating a knockoff saves the sleazebag the need for originality, but still requires artists, programmers, etc.)

  • Jesus H. Christ||

    Must have a bunch of BoingBoing posters here today. The assault on private property is their schtick.

  • Emmerson Biggins||

    Plenty of locals believe in IP. So you can't blame BoingBoing for wanting to assault my rights to do what I want with my property.

  • Broseph of Invention||

    A crafty twist, friend.

  • ant1sthenes||

    Like I'm going to listen to pro-IP arguments from some guy who gave away a bunch of pirated bread and fish.

  • Auric Demonocles||

    Maybe he paid royalty to the original fisherman and baker?

  • Brandybuck||

    Ayn Rand said intellectual property was important. So all you greasy anarchists need to examine your premises and get back to first principles. Property rights come from gub'ment, after all.

  • Zeb||

    I'm a bit ambivalent about IP. I think it is a good thing, to some extent, but it is definitely out of control nowadays. I think that copyrights for 14 years and patents for 7, with no extensions ever, would be a good compromise.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement