Copyright

When Copyright Smothers Free Expression

By creating a new right in actors' performances, this case may make any number of works unavailable at the behest of actors.

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Innocence of Muslims, the low rent, 14-minute propaganda video released in 2012, has sparked a new controversy. This time it's not protests in the streets of Benghazi, but shock and indignation among copyright experts.

The Ninth Circuit Court of Appeals has ruled that one of the video's actresses has a copyright interest in it and can therefore force YouTube to take it down. If this ruling is allowed to stand and it becomes precedent, get ready to see dozens, if not hundreds, or lawsuits by actors claiming they own copyright in their performances, separate and apart from the copyright in the movie itself.

For those who don't remember, Innocence of Muslims is a video written and produced by one Nakoula Basseley Nakoula, an Egyptian Copt living in the U.S. who had previously been convicted of bank fraud. The video purports to be a trailer for a feature film, and it portrays the prophet Mohammed as a bloodthirsty fraud who is also gay and a child molester.

That portrayal angered muslims around the world and led to a series of protests on September 11, 2012. The reaction began in Cairo where protesters scaled the walls of the U.S. embassy, tore down the American flag, and replace it with an Islamic flag. Ultimately the protests spread all around the world, and the video was cited by the Obama Administration as a motive for the attack on the U.S. mission in Benghazi that killed Ambassador Christopher Stevens.

Shortly after the video's release, an Egyptian cleric called for the death of those involved in its making, saying, "I issue a fatwa and call on the Muslim youth in America and Europe to do this duty, which is to kill the director, the producer and the actors and everyone who helped and promoted the film."

One of those actors was Cindy Lee Garcia. She appeared in the video for all of three seconds, and her performance was partially dubbed over so that she appeared to be asking, "Is your Mohammed a child molester?" Like others in the production, Garcia had been cast under false pretenses. She had been told by Nakoula that she was acting in an adventure film titled, Desert Warrior.

Garcia understandably wanted the video taken down from YouTube immediately, so she filed a series of "notice-and-takedown" requests claiming a violation of her copyright. Google, which owns YouTube, refused to take down the video pointing out that as an actress she does not hold the copyright. Garcia sued, and the court agreed with Google that no injunction should issue, but the Ninth Circuit reversed in a strange opinion by the otherwise-reasonable Judge Alex Kozinski.

There are many problems with the ruling in Garcia v. Google, not the least of which is the question of what exactly is the work over which Garcia is supposed to have copyright. Clearly she doesn't have copyright over the entire video, and Kozinski says as much. Instead, he found that she has a "copyright interest in her performance." The problem with that reasoning is that copyright only extends to "original works of authorship fixed in any tangible medium of expression[.]" It's not reasonable to see a fleeting performance, such as Garcia's three seconds of acting, as a separate work. Her performance is also not "fixed," as the Copyright Acts requires, in a form separate from the larger work.

Indeed, the decision has drawn strong criticism from a wide array of legal academics, activists, and commentators who view Kozinski's decision as results-driven. There's no denying that Garcia is a sympathetic plaintiff, but as the adage goes, bad cases make bad laws. If this decision is allowed to stand, it will encourage actors everywhere to begin to assert separate copyrights over their performances in films in which they have appeared. And this gets to what's really wrong with the decision.

Apart from considering the technical legal problems with the decision, we should also ask ourselves, does the ruling further the purpose of copyright? After all, copyright exists not primarily for the benefit of creators, but for the benefit of the public. It serves to create an incentive for creators to produce and make available works that the public can enjoy. The exclusive rights creators enjoy under copyright are a means to an end, not an end in themselves.

So how does Garcia v. Google measure up at furthering copyright's purpose? Not very well. In his opinion Kozinski bent backwards to find a copyright interest in order to allow Garcia to remove the work from public availability. Indeed, by creating a new right in actors' performances, Kozinski may be unleashing a wave of lawsuits that will result not only in no new benefit to the public, but it may make any number of works unavailable at the behest of actors.

There is zero evidence that the public lacks access to films because actors do not enjoy a separate copyright in their performance sufficient to motivate them to create. This means that the only practical effect of such a new right will be to sow confusion and draw extortionist suits against existing film owners. This may well be the first time the Motion Picture Association of America will oppose copyright expansion, and they will be right.

NEXT: Libertarian Party of Ohio Suing After Candidates Removed From Ballot

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    1. They ROBBED him? Goddamned barbarians!

  1. Less copyright leads to more content creation, both from derivitive works and by the original creators (to avoid loss of revenue). The bulk of the canon of western literature was created without the insane protections of the 20th century. Quality has, in fact, suffered with each extension.

    And I say all of this as a content creator myself.

  2. Filmed cops beating people should also own the copyright to their performance. The free distribution of such performances hampers their free expression of murdering dog, homeless people, etc.

    1. As an agent of the state performing their official duties, those performances would be public domain material.

      1. That’s insane. Next you’ll be saying academic papers should also be public domain for the same reason.

        1. Only those studies funded by public money, of course.

          1. And professors whose universities receive public money and/or whose students get gov subsidies to pay tuition (which helps pay the profs).

            1. Fair enough, but you’d have to supply a “press” for each university that fall under that definition. While internet publishing makes that realistic, we’re not there yet. And I don’t see why a private company, like SAGE or Elsevier, has to give up rights anymore than a publisher who publishes an autobiography of a general or politician. (I mean, they’re writing about work they did on the public dime, right?)

              1. Yeah I’m mostly being snarky. When it comes to IP I’m generally in favor of scaling it *way* back, but not convinced by the abolish it faction like OM. Pretty much what ProL writes on it, except less old and Star Treky.

                1. Pretty much what ProL writes on it, except less old and Star Treky.

                  Ha!

                  I do agree that more papers in the public domain makes research a hell of a lot easier. I am encouraged by the success of open-access journals.

        2. Actually academic articles are owned and copyrighted by the publication that publishes the article. Researchers generally sign a waiver so they will publish it. Usually they are glad to do it. It helps the writer build their reputation and remain competitive in their field.

    2. Technically, it is a different issue. Cops do not make their living by being filmed. The actress does. Still, I am not sure she owns the words, but if she was misled about the use of her image, that should be the point of contention, not the ownership of the words, probably.

      Not that up on copyright law, though, just speculating.

  3. When Copyright Smothers Free Expression

    What do you mean “when“???

    It’s ALL THE TIME. EVERY TIME. Not just a few instances here or there.

    1. Either Copyright means the right to smother the free expression of ideas deemed “owned” by someone, or you don’t know the meaning and scope of the word “free”.

  4. For those who don’t remember, Innocence of Muslims is a video written and produced by one Nakoula Basseley Nakoula, and[sic] Egyptian Copt living in the U.S. who had previously been convicted of bank fraud.

    You know, my English grammar is not up to the level of a tenured professor of cruelly-tortured languages, but I believe there’s a typo there.

  5. But this creates new rights!! New rights must be good, right? RIGHT?

    1. Positive rights! What could be more uplifting! Right?

  6. She had been told by Nakoula that she was acting in an adventure film titled, Dessert Warrior.

    I do not know about you guys, but I would like to see this Dessert Warrior.

    1. I hear the Cupcake Cannon sequence is amazing.

    2. Chocolate fudge ninjas! Rocky Road Ice Cream grenades! Sugar Cookie throwing stars! Pop Tart Machine Guns!

    3. Heard the ending is so sweet you’ll get cavities.

    4. It’s probably a sequel to Toriko.
      http://tvtropes.org/pmwiki/pmw…..ain.Toriko
      So yeah, watch it.

  7. I would look at this before going to all out angry.

    http://www.washingtonpost.com/…..t-grounds/

    1. Thanks, SS. Very clear explanation from Volokh.

      My only question, and one that has never been answered, is whether Nakoula’s contract with Garcia allowed him to use the recordings of her in works other than the film he told her he was making. Because he certainly misrepresented the nature of the film he was making.

    2. Yep, this is more about an amateur producer not getting the right forms signed. From the opinion:

      As we’ve recognized, this difficulty is why 17 U.S.C. ? 101 “specifically addresses the movie…industr[y], affording moviemakers a simple, straightforward way of obtaining ownership of the copyright in a creative contribution?namely, a written agreement.” Effects Assocs., 908 F.2d at 558. Youssef didn’t obtain a written agreement…

    3. Yep, this is more about an amateur producer not getting the right forms signed. From the opinion:

      As we’ve recognized, this difficulty is why 17 U.S.C. ? 101 “specifically addresses the movie…industr[y], affording moviemakers a simple, straightforward way of obtaining ownership of the copyright in a creative contribution?namely, a written agreement.” Effects Assocs., 908 F.2d at 558. Youssef didn’t obtain a written agreement…

  8. Don’t these people sign releases or something?

    1. Not in this case, hence the oddball outcome.

  9. “After all, copyright exists not primarily for the benefit of creators, but for the benefit of the public.”

    I disagree. Copyright law protects the product and property of the individual creator. Not sure if copyright applies to the actress sited in the article–probably not.

    Still, I’m surprised at the number of negative comments toward copyright law being offered at a libertarian site. I thought libertarians respected individual rights. How would you feel if you made a living off your written words, and there were no protection of your ownership of them? Do you want the “right” to steal the writings of others?

    What am I missing?

    1. What am I missing?

      A long debate over copyright which libertarians have been having for years.

    2. What am I missing?

      Some schools of libertarianism have long-standing arguments that intellectual property is an illegitimate concept.

      I don’t necessarily agree, but it’s far from a settled question within Libertopia.

      1. I’m flabbergasted. Some libertarians want the right to steal other people’s written work? What the heck?

        1. The use of the word steal in regard to IP is begging the question. You can’t steal something ethereal.

          If John Smith writes a novel and chooses to sell me a book with his words printed in it, then who owns the book? We exchanged goods under fair terms, so surely I am the owner now. If I take my own time and materials to produce a copy of it, what have I stolen from John? So now I own two copies of the book. If I own something, why can I not sell it?

          Now, John can instead enter into a contract with me, whereby I agree to give some money to him so that I may rent a copy of his words under certain terms and conditions, but he retains ownership thereof. He then has cause to sue me if I breach the contract.

          Copyright is statutory law that attempts to streamline this process to make it easier for John at the expense of everyone else, and that is where the issue arises.

          1. I absolutely cannot debate this issue. Words I write are not ethereal. The words did not just appear on the page out of no where. If someone agrees to publish my work on their website or on paper, I will make a contract with them to hand over my ownership (copyright) in return for some share in some of the profits that sell from the book or from the website income. At that point, the publisher owns the copyright. They take on the risks in the costs of publishing. These arrangements are similar to other intellectual ownership arrangements like patents.

            Are you against individual property rights of any creative work? How can this be? How is this different than me going out and building a house? I build both with my mind and body? Do you have a right to my house, too.

            You guys are losing me big time on this issue. I just don’t understand how you can be so seemingly supportive of individual rights on so many issues, and miss this one so bad.

            1. Well, David, libertarians have our share of kooks, just like every other ideology.

              Their main argument is that an idea cannot have scarcity or some ridiculous notion.

              They limit themselves to understanding the economy and trade through material goods only, and not the labor needed to create or gather materials or resources.

              To them, the workings of the human mind are not labor, which really explains quite a bit if you think about it and their stance.

              It is an idiotic stance and detrimental to libertarianism as a whole.

              1. Furthermore, one only needs to look at the concept of money. As the guy above argued against “ethereal” ownership, the stealing of money and the punishment thereafter should be limited to only the value of the paper it is printed on.

                Then, if you have your money in a bank account and it is converted to 1s and 0s, it is completely and utterly ethereal, and should therefore be able to be stolen with no penalty, right?

                Like I said, its a completely idiotic view on economics and even morality.

                1. Very good point, PaulW.

                2. They limit themselves to understanding the economy and trade through material goods only, and not the labor needed to create or gather materials or resources.

                  You are conflating two distinct, although related, matters. Intellect and labor are forms of capital. Of course they are part of economics. That does not make ideas into property.

                  As the guy above argued against “ethereal” ownership, the stealing of money and the punishment thereafter should be limited to only the value of the paper it is printed on.

                  Again, you are conflating distinct matters. Theft is a deprivation of property, the only true recourse for which is a restoration in full of the property that was lost.

                  Economic value is subjective. You may accept in exchange for your stolen $20 bill a different $20 bill or $20 worth of ham sandwiches, but that does not change the fact that a banknote was the item actually stolen from you.

            2. Are you against individual property rights of any creative work?

              You have the same rights over books and the like as you do over any piece of property.

              How is this different than me going out and building a house?

              You are the one arguing it is different. Write a book, build a house, whatever, the end result is your property and you can sell it. Then the new owner can do as he pleases with it, because it’s not yours anymore.

              I just don’t understand how you can be so seemingly supportive of individual rights on so many issues, and miss this one so bad.

              What of the rights of the buyer? This is the problem. Your intellectual “property rights” as seller somehow trump my physical property rights as buyer. Copyright and property are not the same thing.

              1. No, the real question is do you own the value of your labor?

                The answer is yes. You’re trying to justify circumventing that time honored principle because you cannot understand a concept that is a bit more abstract than something you can physically hold in your hand.

                If you actively do something that you know reduces the value of someone else’s labor, you are impeding on the natural right to the fruits of one’s own labor.

                It really is as simple as that.

                1. No, the real question is do you own the value of your labor?

                  Your labor has no value except what someone else is willing to pay for it. Do not spout Marxist nonsense at me and then claim to hold the moral high ground.

                  If you actively do something that you know reduces the value of someone else’s labor, you are impeding on the natural right to the fruits of one’s own labor.

                  So the invention of the automobile was an act of aggression against the buggy whip makers?

                  You do not have a “natural right” to the money in someone else’s pocket.

                  1. You completely and utterly fail to grasp the concept, as soon as I posted I realized exactly what you would latch on to.

                    Marxist! Says the guy who claims that your property is everyone else’s.

                    You can devalue my labor through your own labor within the market, and through competition, no one disputes that. If you create something that competes with me, the value of my labor diminishes, of course. If you take my labor and use it to make my labor less valuable to me, you have done wrong. Worse is if you take my labor and give that value to yourself.

                    Your last sentence is exactly my point, but you still fail to grasp it.

                    1. You think value is property. That is a fundamentally broken notion that I don’t think I can refute any more effectively than I have.

                      I’m not advocating collective ownership of anything. You are free to clutch your precious ideas close to your bosom and never share them with another soul. I would never dream of compelling you to do otherwise.

                      What I am advocating is against the use of force to artificially inflate prices, because you have special-snowflake syndrome and think that even though you can’t be bothered to write a fucking contract you should be able to sue or even jail people for making cheaper goods.

                    2. I see, you’re a complete fucking idiot.

                      Copyright is a streamlining of contracts.

                      If you want to argue that we should get rid of copyright law and have everyone write and sign individual contracts between each sale, then, well, you’re still an idiot, but it is a stance I can at least sort of comprehend.

                      As far as me thinking value is property, no I think property is property and you have no right to reduce the value of my property through direct access to my property.

                    3. Copyright is a streamlining of contracts.

                      For fuck’s sake I said that in my first post.

                      The problem with copyright law is the terms are set by the legislature, not the actual parties to the arrangement.

                      Selling something involves a buyer too, and the seller using the force of law to unilaterally change the terms after the fact of sale is fucking wrong.

                      That you invent some nonsense about it being property, when it clearly is not, to justify your position is why I take such issue with it.

                      IP is a positive right, a privilege, just like law enforcement and the military and the post office. That we deem such things necessary as a practical matter does not mean you can appropriate the language of negative rights to support them. Well, you can, of course, free speech and all that, but it’s still bullshit.

                2. No, the real question is do you own the value of your labor?

                  No, you do not own the value of your labor; you own the product of your labor.

                  Value is highly subjective and differs. First, the product probably has some intrinsic value to you. Perhaps it has utilitarian value; it’s a super handy widget that makes your chores go a lot faster. Perhaps it has aesthetic value; you like the way it looks on your lawn. However, it has zero market value until you trade it to someone for something else of value.

                  Barring any prior contract, you are not owed anything for that product. It is yours and you may enjoy it, but no one is compelled to trade you anything of value for it (i.e.: buy it from you).

                  If you choose to sell the product, you are only entitled to the amount that a buyer will agree to pay. If, say, you value your product at $100, but no buyers want your product at that pricepoint, then it is not worth $100. At the most extreme, if you cannot find a buyer at any price point, then your product is effectively worthless, having a market value of $0.

                  Only when you have a prior contract (e.g.: employment contract) for your labor are you entitled to receive anything of value for your labor.

    3. If I rip Kansas’ Leftoverture album to MP3 files and sell them for pennies, I have stolen nothing. The money that I deposit from my sales came from the people buying them, not from the artists’ assets.

      Similarly, if I scan a newly released novel to a PDF and distribute copies for pennies each, I have stolen nothing. Neither the author nor the publisher is diminished in any way; it does them no injury.

      You may argue that my actions have deprived the artists/author and/or producer/publisher of potential revenue from the distribution of the original works, but that would be horribly flawed.

      First, there is no way to prove that the “potential revenue” is or would be diminished. Perhaps my consumers would have never bought the published works at the retail price. Second, “potential revenue” is not property; it is not money in the bank. It is speculation, and there is no guarantee that it will ever materialize.

      So, “piracy” or “bootlegging” is not theft (unless we redefine “theft”); it does not pick anyone’s pocket.

  10. “copyright exists not primarily for the benefit of creators, but for the benefit of the public. It serves to create an incentive for creators to produce and make available works that the public can enjoy. ”

    This guy is NOT from the Sheldon Richman IP camp.

    1. I take it Richman respects the sanctity of the individual, then. I’ll check him out.

        1. Thanks!

        2. I just gave a brief read to the article you so kindly offered. I must say I am appalled. I am shocked that this stands as part of libertarian ideology.

          A legitimate government protects individual rights including property rights. My creative work is the product of my individual mind. It is mine, goddamn it. I will use it as I choose. I may sell it, use it myself, give it away to others, or I may throw it away. But it should be protected. That is the one and only purpose of a legitimate government. My creative work exist because I exist.

          Richman has NO respect for the sanctity of the individual. All his palaver about corporatism is Marxist BS. I had no idea any of you guys (libertarians) dealt in the crap.

          To say I am disappointed is an understatement.

          1. It is not a part of libertarianism, it is a debate on the fringes of libertarianism, but it is really more a part of anarchism, who we libertarians generally hang around because we agree on many principles.

            This is generally not one of those principles, and I can guarantee you most libertarians believe there should be at least some level of intellectual property.

            1. One can hope.

              I learn something new everyday. Obviously, I haven’t kept up with some of the libertarian IP issues as I should have.

              IP is probably related to some deeper moral issues many libertarians seem reticent about taking on.

          2. “It is mine, goddamn it. I will use it as I choose.”

            I agree with you, but once you let the cat out of the bag, so to speak, and share these words, it is no longer a matter of your choice.

            So you write a few words and own them. You tell them to a friend. They are now part of his memory. Do you have a right to prevent your friend from passing along these words to his friends? Does your passing on copyrighted content give you a claim of ownership to a portion of another’s mind?

            1. Nope, he just doesn’t have the right to sell it, as he didn’t labor to create the idea.

              This is so incredibly simple, I’m having a really hard time understanding how such an easy concept cannot be grasped.

              1. “I’m having a really hard time understanding how such an easy concept cannot be grasped.”

                But I do grasp your easy concept. What’s more, I agree with it, on the whole. I believe we non-creators have the right to share the ideas others have laboured to create.

            2. I am not talking about a conversation, or comments on a blog or something where I am freely exchanging ideas with others. Obviously, that is how new ideas are formed. Copyright has nothing to do with it.

              I am talking about a completed work like a novel, a line of involved code for some specific purpose, or a treatise on some new idea I produce. Something that may take years or decades for me to produce. You guys are just wrong. There is no way you can say I don’t own it. Because I do. Even if you steal it, I still own it at a metaphysical level.

              1. “I am talking about a completed work like a novel, a line of involved code for some specific purpose, or a treatise on some new idea I produce”

                How about a few bars of music? Something that came upon you not after years of hard slogging, but in a flash of inspiration? Or a few decades of hard work, it shouldn’t make any difference how long the work is or how long it took you to produce it.

                A few bars of music that you can hum in a matter of seconds… Are you claiming the right to prevent anyone other than yourself from humming these lines? It seems you are ok with others holding this fragment of music in their minds, but as soon as they hum them, it becomes an act of theft?

                At the metaphysical level, I think you haven’t thought this thing through.

                1. Have you ever created anything substantial? I am not talking about humming a new tune. I am talking about protecting a Rachmaninoff’s ability to make a living creating a piano concerto, or a John Lennon’s ability to make a living creating Instant Karma.

                  I make a small part of my living writing, inventing things, developing creative ways to accomplish things efficiently. Occasionally, not often, some of what I do has a market value and people are willing purchase my ideas.

                  What you are advocating would destroy my ability to make some part of my livelihood from my own creative ideas or any other person of much greater creative gifts to make a living off their creative ideas. Someone does need to think about the implications of what they are advocating, but it is not me.

                  1. I think what mtrueman is doing is trying to get you to define where the boundaries are.

                    If you can do this, you strengthen your ability to make your case for IP laws. Once you realize where the boundaries are, you can advocate for what should be kept and what could be changed and back that up with logic.

                  2. “What you are advocating would destroy my ability to make some part of my livelihood from my own creative ideas or any other person of much greater creative gifts to make a living off their creative ideas”

                    I understand your plight. My grandfather as a lad was trained in the trade of saddle making. The invention of cars destroyed his ability to make a livelihood in saddle making. We owe it to him to protect his ability to make a living at saddle making.

                    Truth is that any new technology will strip people of their ability to continue making a living using the old technology. Maintaining a false scarcity through coercion is what you are advocating.

                    1. And forcing someone to compete for the value of their own ideas is what you are advocating.

                    2. And forcing someone to compete for the value of their own ideas is what you are advocating.

                      That is simply the way things are. Even with heavy-handed IP enforcement on your side, you will still have to compete with the status quo and similar products/services/creative works that other people are selling for less.

                      Is recognizing that scarcity exists the same as forcing people to starve?

                    3. Yep, and people get murdered all of the time, that is just the way it is. We shouldn’t have laws against murder for that reason.

                      Seriously, man, listen to yourself.

                    4. If having your products devalued is equivalent to murder, then every stock market crash is a fucking holocaust.

                    5. I love how you’re attempting to sway the less intelligent reader by attacking irrelevancies to my argument. I think you’ll find the average Reason reader to see right through that, even if they don’t agree with me to begin with.

                    6. I love how you’re attempting to sway the less intelligent reader by attacking irrelevancies to my argument.

                      What argument? You’re the one who brought up murder. Murder violates a natural right, but you don’t have a natural right to be protected from competition. You are not owed the money out of someone else’s pocket, but you seem to believe that you are owed some predestined amount of money, well where the fuck does it come from if not other people’s pockets?

                    7. “And forcing someone to compete for the value of their own ideas is what you are advocating.”

                      Not advocating that at all. My grandfather wasn’t forced to compete with anyone. He freely chose to find himself another way to make a living. Others chose to continue. Look around a bit and you’ll still find professional saddle makers, harness makers, roof thatchers, typewriter repairmen etc. They continue to do the work they presumably love and excel at without asking to enforce laws that threaten the rest of us.

                    8. I’m going to save some patience for the next IP article Reason posts, which will probably be tomorrow.

                    9. How does my producing something and then expecting to benefit by it force anything from anyone else. I am not taking it away from someone by force, I wrote it. If I write a story, and someone takes it a sells it as their own, that is fraud. They are taking a part of my life essentially by force because I would never voluntarily let them have it. The person taking it is initiating force. Protecting my property is exactly what a moral government should do. You anarcho-capitalist or whatever you call yourself will destroy property rights if you come to power. I can see that easily enough, now.

                      I want no part of you schemes. Go produce you own stuff and leave my stuff alone.

                    10. How does my producing something and then expecting to benefit by it force anything from anyone else.

                      No one said you can’t benefit from it.

                      If I write a story, and someone takes it a sells it as their own, that is fraud.

                      You’re missing the part where you sold it to him first.

                      The person taking it is initiating force.

                      So is walking into Barnes and Noble an act of violence against you now?

                      Go produce you own stuff and leave my stuff alone.

                      Then don’t sell your stuff! Jesus, is it that hard to understand that when you sell something to somebody you transfer ownership to them?

                      It’s not yours anymore when you voluntarily give it to somebody else!

                    11. You want to protect your creations? My advice, don’t write them down or record them, especially in digital format. Keep them to yourself. As I said, once you let the cat out of the bag, there’s nothing you can do to stop your work from spreading, short of setting yourself up as dictator overseeing the rest of our keystrokes. With recent technological developments, music and text files limitless copies can be reproduced perfectly at essentially no cost. This is not a digital revolution, it is far more profound than that. I get the feeling you haven’t appreciated the profound changes that technological innovation can usher in. I tried to point out that artists and writers are by no means the first to find themselves cut off at the knees with respect to new technology stripping them of their ability to make a living. You can resist the technology. Or you can adapt. Adapt or die: nature’s first and cruelest law.

                    12. How does my producing something and then expecting to benefit by it force anything from anyone else.

                      Really, the problem is that you are conflating an expectation of benefit to an entitlement to financial benefit.

                      The fact of the matter is, other than the benefits the product has directly to you (it makes your chores easier; it looks pretty on your lawn; etcetera), any financial benefit is purely speculation. What happens when no one wants to buy your product? Not only do you not benefit, you stand to be diminished as you are out the time and resources you expended producing the product and bringing it to market.

                      Now, say, perhaps, you wrote a book and I bought a hardcopy for $14.99 (MSRP), and I thought it was great! So, I sell it to my next door neighbor for $10. Now, that’s okay under Copyright law, never mind the fact that my neighbor did not buy it retail so one copy was never sold to your benefit.

                      But it suddenly is not okay if I scan it to PDF and distribute softcopies for pennies each? You are not diminished in any way. No money is stolen from your bank account. No assets are taken from your estate.

          3. As PaulW stated, this is definitely an area where libertarians disagree. I believe that there must be incentives for innovation. I may argue that life plus seventy years is perhaps too long for a monopoly, but I wouldn’t argue that the monopoly should be removed altogether.

            The following is a handy little article that explains some things about libertarianism and includes some topics that we don’t agree on (IP is included):

            http://dailycaller.com/2012/07…..r-dummies/

            1. I would be much happier with libertarians arguing that IP laws can be enforced by the free market. I don’t necessarily agree with that, possibly because I’m ignorant of the mechanisms of such, but at least it would be a little bit more logically consistent.

              1. This sort of touches on that topic:

                https://reason.com/archives/201…..thout-copy

                1. Interesting article, a quick search of the IP law history shows that it goes back further than Ancient Greece. Which leads me to believe that IP is a part of human nature.

                  To me, the argument of the article is basically boiled down to that writers and publishers could still operate with some stealing. Which is true at face value for pretty much every industry.

                  Either way, thanks for sharing. 🙂

  11. Never even tried to see the damned (PBUA, is that right?) thing until today and couldn’t find it on youtube. Lots of other stupid shit, though.

  12. Regarding the whole IP debate, if I scan a newly released novel to a PDF and distribute copies for pennies each, I have stolen nothing. Neither the author nor the publisher is diminished in any way; it does them no injury.

    You may argue that my actions have deprived the author and/or the publisher of potential revenue from the distribution of the original works, but that would be horribly flawed. There is no way to prove to what extent that “potential revenue” has been diminished, if at all. Perhaps my consumers would have never bought the published works at the retail price. Additionally, “potential revenue” is not property; it is not money in the bank. It is speculation, and there is no guarantee that it will ever materialize.

    Furthermore, if I take the time and use my resources to scan the novel and distribute the soft-copies, am I not entitled to benefit from my labor?

    What if my actions benefit the author by reaching a wider audience that would not have been reached otherwise who then look for and “legitimately” purchase additional works by that author?

  13. “Furthermore, if I take the time and use my resources to scan the novel and distribute the soft-copies, am I not entitled to benefit from my labor?”

    First, I think you overestimate the labour you put into making copies on a computer. This is only an issue because the effort necessary is so minimal, and the copies so perfect. Second, if you think you are entitled to benefit from this minimal labour, why not extend the same entitlement to the author who put in incalculably more time and effort into the work?

    I think there is something morally dubious about selling pdfs for pennies off the back of someone who put in the bulk the effort. I will stand by our right to share such work with others, but to profit from it seems ungentlemanly and disrespectful to the author.

    1. Furthermore, if I take the time and use my resources to scan the novel and distribute the soft-copies, am I not entitled to benefit from my labor?

      I cannot speak for See.More but given the content of his other posts I think the point here is to refute the labor theory of value by reductio ad absurdum. If the artist’s labor has intrinsic value, then so does the copyist’s labor.

      He then continues to argue that the copyist, by expanding the market for the artist’s work, actually adds value to it, and so by the same flawed principle should be entitled to some of the proceeds.

      Hence you are not entitled to some arbitrary value of your labor, and moreover I would extend it to say you are not inherently entitled to the product of your labor: your employer is. You can of course employ yourself, and in that case alone are you entitled to the product of your labor.

      PaulW above seemed to think that because I was refuting these notions, that therefore I had no respect for private ownership. On the contrary, I very much respect ownership, but I do not assign it arbitrarily. Ownership of a thing belongs to the one who has paid for it.

      1. The biggest difficulty with Copyright, however, is that the author is claiming to own an idea; the story (a particular arrangement of words into a coherent narrative). That is wholely different from owning a coffee mug. I reserve the exclusive right to use my coffee mug. Even if I share it, by serving a guest a cup of joe in it, I retain ownership and my guest has no mug; no copy has been made or transfered.

        Ideas, however, are effectively “copied” when they are shared. Barring a prior contractual agreement, there is no way that the originator of an idea can properly claim exclusivity to the idea once it has been shared; both he and his audience now “possess” “copies” of the idea. What special virtue is there in origination of the idea if it is shared? How does he properly “own”, in whole or in part, every copy of the idea once it has been shared?

        Ideas are not tangible property. Coming up with an idea, even writing a book, is not the same as working clay into a coffee mug. The manufacture has, at the end, one coffee mug to which he maintains exclusive control. When he sells it, he transfers that exclusive control to the buyer. The idea, even a book, once shared is effectively (and literally, in the case of publishing) copied. There is no exclusive control of the idea.

        2/3

      2. @ kbolino

        He then continues to argue that the copyist, by expanding the market for the artist’s work, actually adds value to it, and so by the same flawed principle should be entitled to some of the proceeds.

        Not exactly. I certainly do not believe that the copyist is entitled to any proceeds from additional sales that may occur when someone chooses to buy other books “legitimately” because the bootlegged story was so damned good. How would you prove that X dollars were made by the author because the copyist bootlegged one book?

        Rather, and I may have put it poorly, it is merely rebuttal, in part, to the argument that bootlegging necessarily harms the author by denying him potential revenues from legitimate book sales. Bootlegging may actually benefit the author by generating new, legitimate sales of other works by the author.

    2. Second, if you think you are entitled to benefit from this minimal labour, why not extend the same entitlement to the author who put in incalculably more time and effort into the work?

      Oh, indeed, I do. My “minimal labour” in no way interferes with the author’s ability to benefit from his. In scanning his work and selling soft-copies I have done nothing to forcibly interfere with “legitimate” distribution and sales.

    3. I think there is something morally dubious about selling pdfs for pennies off the back of someone who put in the bulk the effort.

      Perhaps, but the morality of the deed ought not have any bearing on the criminality of the deed.

      One difficulty with Copyright (I will continue with the simplified author/book example), is that the author is claiming property rights against every “legitimate” copy of his work, including those that have been sold to someone else. Properly understood, the sales transaction is the transfer of the property rights of the item (the book) from one person to another in exchange for the property rights of another item or items (money).

      Copyright interferes with the new owner’s rights to his property (the book) by putting restrictions on how it may be used or disposed of which do not exist for other forms of property (e.g.: a coffee mug). This, in effect, means that the author has not transferred the property rights to the copy of the book, but has, instead, retained some degree of ownership of the copy. This is absurdity as it would mean that every buyer “shares ownership” with the author and must get the author’s permission prior to disposing or transfering ownship of their copies.

      When you purchase a coffee mug, do you expect that the manufacturer maintains some claim on that mug and can limit how you use or dispose of it? Why is a book any different?

      1/3

      1. “When you purchase a coffee mug, do you expect that the manufacturer maintains some claim on that mug and can limit how you use or dispose of it?”

        Not a coffee cup but how about some device from Apple or a Kindle etc? It seems to be increasingly the case that manufacturers maintain some claim over the products they sell.

        1. Not a coffee cup but how about some device from Apple or a Kindle etc? It seems to be increasingly the case that manufacturers maintain some claim over the products they sell.

          This is true, and it is also an issue. Just because they are doing it, though, does not make it right.

    4. The biggest difficulty with Copyright, however, is that the author is claiming to own an idea; the story (a particular arrangement of words into a coherent narrative). That is wholely different from owning a coffee mug. I reserve the exclusive right to use my coffee mug. Even if I share it, by serving a guest a cup of joe in it, I retain ownership and my guest has no mug; no copy has been made or transfered.

      Ideas, however, are effectively “copied” when they are shared. Barring a prior contractual agreement, there is no way that the originator of an idea can properly claim exclusivity to the idea once it has been shared; both he and his audience now “possess” “copies” of the idea. What special virtue is there in origination of the idea if it is shared? How does he properly “own”, in whole or in part, every copy of the idea once it has been shared?

      Ideas are not tangible property. Coming up with an idea, even writing a book, is not the same as working clay into a coffee mug. The manufacture has, at the end, one coffee mug to which he maintains exclusive control. When he sells it, he transfers that exclusive control to the buyer. The idea, even a book, once shared is effectively (and literally, in the case of publishing) copied. There is no exclusive control of the idea.

      2/3

  14. Properly understanding my bootlegging then, I have not “stolen” anything. I did not steal the book; I bought it retail and scanned it to a PDF. I have not stolen the story; it still exists in the author’s archives (original manuscript), in the publisher’s archives, and in myriads of other copies. I have not picked the author’s pocket; the money I made off my sales was free and voluntary exchange. Nor I have not deprived the author of the ability to benefit from his labor.

    Ergo, I have not committed any aggression against the Rights of the author and, therefore, regardless of morality, my bootlegging ought not be criminal.

    3/3

    1. “Ergo, I have not committed any aggression against the Rights of the author and, therefore, regardless of morality, my bootlegging ought not be criminal.”

      The problem is that your behaviour is parasitic. You are benefiting from the work of others without contributing yourself. You may be right about the criminality issue. Are there moral sanctions against bootlegging you would agree with?

  15. The problem is that your behaviour is parasitic. You are benefiting from the work of others without contributing yourself…

    I have transformed, through my own labor, minimal as it might be, a copy of a book into another format. Thus, I have contributed to the market another form of the author’s work to meet demand for super cheap literature.

    Would you also argue that pharmacutical companies making generic brands of medicines are parasites?

    Are there moral sanctions against bootlegging you would agree with?

    Sure. Social sanctions like ostracization and boycotting, shaming on social networking, etcetera are perfectly legitimate ways to sanction individuals and/or organizations without using force or infringing on anyone’s rights.

    1. “I have transformed, through my own labor, minimal as it might be, a copy of a book into another format.”

      I take your point. My reservation is with your notion that you with your minimal labour have a claim to profit from the bootlegged work equal to that of the author whose contribution is incalcuably greater. That really rubs me the wrong way. I agree with you about the social sanctions.

      “Would you also argue that pharmacutical companies making generic brands of medicines are parasites?”

      Not only these companies, we are all parasites; all of us are standing on the shoulders of giants, and ought to tread carefully.

      1. I take your point. My reservation is with your notion that you with your minimal labour have a claim to profit from the bootlegged work equal to that of the author whose contribution is incalcuably greater…

        I do/should have an Equal Right to echange the product(s) of my labor (PDF versions of the original book) for pay, regardless of how “minimal” my labor is/was.

        If the difficulty for you, here, is the “minimal labor” versus “incalcuably greater labor”, would it make a difference if, instead of scanning the book into a PDF format, I retyped the entire book, verbatum, into a word document that I convert to a PDF for distribution? That would require significantly more labor than scanning.

        At what threshold does the amount or difficulty of the labor involved make you comfortable with the copyist making any money off his efforts?

  16. Let’s say J.K. Rowling wrote Harry Potter book 1, which might sell for $15 each, and the book made about $25 million. Let’s say that she made about $10 million from it. In an alternate universe, Amazon takes the first copy and scans it. They then sell it as a digital copy for $5 (and give her no compensation), and in this universe, Ms. Rowling has now only made $1 million instead of 10 due to lost sales. Due to the lack of incentives, she decides not to make books 2-7.
    Scenario #2 ? Warner Brothers makes Harry Potter movie 1 at a cost of $200 million. The day of its theatrical release, most people choose to watch it on Netflix, who does not compensate the WB. WB ends up losing $150 million. Due to the lack of incentives, they choose not to make movies 2-8.
    If you are tech savvy, you could just torrent these titles for free (sure, you can do that now, but it would be legal and thus more mainstream).
    As it stands (in reality), the Harry Potter brand is worth about $15 billion. That is quite a bit of entertainment value added for the world’s populace. It would be a shame for this to be diminished in such a substantial way.

    1. There are problems, however, with copyright as statutory law:

      1. It hides the complex nature of the arrangement from the buyer. When you buy a book or DVD from the store, you engage in what appears to be a simple sale of goods. In fact, you are entering into a legally binding contract with substantial penalties for violating it.

      2. It shifts the cost of enforcement from the customer to the taxpayer. When I purchase Warner Brother’s products, I’m making a conscious decision to support their business practices. I don’t get to opt out of the FBI.

      3. It places the government in the position of deciding the terms, rather than the buyer or seller. Right now, the government is acting largely in the sellers’ interests, but that may not always be the case.

      The same sort of problems arise any time the government hands out privileges. That does not mean copyright cannot exist, but rather that it should be a matter of contract, not statute. The government should provide the minimal framework through which people can engage in non-aggressive interaction, and no more.

    2. Let’s say J.K. Rowling wrote Harry Potter book 1, which might sell for $15 each, and the book made about $25 million. Let’s say that she made about $10 million from it. In an alternate universe, Amazon takes the first copy and scans it. They then sell it as a digital copy for $5 (and give her no compensation), and in this universe, Ms. Rowling has now only made $1 million instead of 10 due to lost sales. Due to the lack of incentives, she decides not to make books 2-7.

      I am assuming that, in your alternate universe there is no Copyright protection, so…

      Amazon never took the first copy and scanned it as you postulate. Instead, Ms. Rowling, being a very clever and astute woman, eschewed traditional publishing and distribution methods. She produced a website where the first and last chapters of the book were openly available to be read online (they’re teasers). To read the whole book, however, users created an account (for a nominal fee of $2.50) and could then read it in a special app. anchored to her website that prevented the user from copying the text (to paste into another document) or downloading the source.

      Her book went viral and she made over $5 million in online subscriptions alone.

      1/3

    3. Warner Brothers got wind of it and even spent $2.50 so someone on their team could read the book to find out what all the fuss was about. WB loved it! So, WB negotiated with Ms. Rowling and purchased the “rights” to her story for a cool $50 million. They got the website and the original manuscript, and they immediately went to work on a script.

      While filming the production, WB being super savy in the no-copyright world, invested to develop a new, proprietary video format, .WBV (Warner Brother’s Video file extension) along with the appropriate app’s to play .WBV’s. Instead of going with theatrical releases, WB put on a marketing blitz and made WBP (the app, Warner Brother’s Player) available for free downloading. Then the movie was released; for $1.00 viewers could stream the movie or, for $5, they could download it to their device and for $10 they could order a specialized BluRay/DVD hard-copy.

      2/3

    4. After WB made over $300 million, they released the film in standard video file formats and standard BluRay / DVD formats. They contracted with Ms. Rowling, for an even $100 million, to write the next book and immediately expanded the Harry Potter website for the 2nd book.

      After the 2nd book exceeded the first, they contracted with Ms. Rowling, for $1,000 million, to write the remaining books. By the time all was said and done, the entire Harry Potter franchise made over $5 billion.

      You see, by using non-traditional distribution methods, they were able to keep production and logistics costs much lower and put the product out at a price that made it unprofitable for someone else to bootleg or pirate. And, with the lower price points, many… many more people were willing to pay for the product than in the original universe with $15 retail books, $12.50 movie tickets, and $20 DVD’s…

      3/3

      1. derp…

        Was supposed to be, “By the time all was said and done, the entire Harry Potter franchise made over $25 billion.”

    5. The moral of my trilogy…

      The technology that makes it stupidly easy to bootleg and file-share etcetera, with innovation, can also be used to “protect” those works from bootlegging, even in a world with no Copyright protection.

      1. Thanks for your response. My primary concern about there being no IP laws is that the citizen will be hurt due to a lack of new content because all of the creators feel shafted because of either someone else benefiting monetarily from their works – or that they are losing opportunity to benefit from their effort due to lost sales. You’ve attempted to address those concerns while applying your position on this issue. I may even be closer to changing my mind. I’ll have to think more on the subject.

        1. You’re most welcome. Where copyright is concerned, with more and more media going digital and on-line, technology is, increasingly, making copyright protection obsolete.

          First, with the ease of converting media to sharable files and on-line distribution, copyright protection is getting harder and harder to enforce. Conversely, encryption, proprietary file formats & corresponding reader/player apps, proprietary on-line distribution and/or limited access portals, etcetera simultaneously make it easier to protect media from bootlegging.

          Incidentally, this also applies to the other corner of the IP debate; patent protection.

  17. Did the author read the decision that he linked to?

    The decision hinged on the determination that the actress in question was neither an employee nor a contractor. In the absence of a written contract or employment agreement, she retains copyright to her performance.

    This is not going to affect “hundreds of works”. Movie and television studios know the law, and they have signed contracts and/or employment agreements with the actors that work for them.

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