Everything is a remix. Information is non-rivalrous. Intellectual works are non-excludable. Copying doesn’t deprive a creator of anything.

Spend enough time reading about or discussing copyright online and you’re bound to have become familiar with statements like these. The increasing popularity of copyright with the general public has brought more attention to these arguments — but don’t make the mistake that these are new arguments.

Case in point: The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas, a book that devotes considerable time repudiating fifteen objections that are strikingly similar to ones made today. The book, however, was written over 150 years ago.

The author, Lysander Spooner, was an American anarchist, abolitionist, and legal theorist who lived from 1808 to 1887. The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas was published in 1855 and considered one of the most extensive defenses of intellectual property as a natural right ever penned — it is also one of the earliest uses of the term “intellectual property.”1

The entire volume is too long to post here but well worth a read.2 Instead, I’d like to highlight a few key passages.

Spooner begins with a discussion of the concepts of wealth and property. His assertion that man has a natural right to property in his ideas is similar to Locke’s labor theory of property.3 This is followed by Spooner’s response to fifteen common objections. Though he focuses on ideas, in the context of inventors and patent law, the discussion is generally just as applicable to copyright law and its protection of original expression of ideas as well.

First up is the charge that there can be no property right in ideas because they are incorporeal, or intangible. Spooner concludes:

The right of property being incorporeal, and being itself a subject of property, it demonstrates that the right of property may attach to still other incorporeal things; for it would be plainly absurd to say, that there could be an incorporeal right of property to a corporeal thing, but could be no incorporeal right of property to an incorporeal thing. Clearly an incorporeal right of property could attach to an incorporeal thing—a thing of its own nature—as easily as to a corporeal thing, a thing of a different nature from its own. The attachment of this incorporeal right of property, to a corporeal thing, is not a phenomenon visible by the eye, nor tangible by the hand. It is perceptible only by the mind. And the mind can as easily perceive the same attachment to an incorporeal thing, as to a corporeal one.

The fifth objection Spooner addresses would today be described as the “everything is a remix” objection:

… That the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions; and that it would therefore be wrong to give to a man an exclusive and perpetual property, in a device, or idea, which is not the unaided production of his own powers; but which so many circumstances, external to himself, have contributed and aided to bring forth. …

The sum of this argument, therefore, is, that authors and inventors have the benefit of all the knowledge that has come down to us, to aid them in producing their own writings and discoveries; and therefore they should have no right of property in their writings and discoveries.

If this objection be sound, against the rights of authors and inventors to their intellectual productions, then it will follow that other men have no right of property in any of those corporeal things, which the knowledge, that has come down to us, has enabled them to produce, or acquire. The argument is clearly as applicable to this case as the other.

It is no doubt true, that the course of events, and the general progress of knowledge, science, and art, do suggest, point to, contribute to, and aid the productions of, many, possibly all, inventions. But it is equally true that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production and acquisition of, all kinds of corporeal property. But that is no reason why corporeal things should not be the property of those, who have produced or acquired them. Yet the argument is equally strong against the right of property in corporeal things, as in intellectual productions. If, because authors and inventors, in producing their writings and discoveries, had the advantage of the course of events, and the general progress of knowledge, in their favor, they are to be denied the right of property in the fruits of their labors, then every other man, who has the course of events, and the progress of knowledge, science, and art in his favor, (and what man has not?) should, on the same principle, be denied all ownership of the fruits of his labor—whether those fruits be the agricultural wealth he has produced, by the aid of the ploughs, and hoes, and chains, and harrows, and shovels, which had been invented, and the agricultural knowledge which had been acquired, before his time; or whether they be the houses or ships he has built, through the aid of the axes, and saws, and planes, and hammers, which had been devised, and the mechanical knowledge and skill that had been acquired, before he was born.

Under the ninth objection, Spooner addresses the equivocating argument against copyright — sure, creators should be compensated for their work, just not through legal protection of intellectual property:

This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains that such compensation should be determined, in some measure at least, by the compensation which other men than inventors obtain for their time and labor. And this is the view on which patent laws generally are founded.

The objection to this theory is, that it strikes at all rights of property whatsoever, by denying a man’s right to the products of his labor. It asserts that government has the right, at its own discretion, to take from any man the fruits of his labor, giving him in return such compensation only, for his labor, as the government deems reasonable. …

Those, who talk about the justice of the government’s allowing an inventor reasonable compensation for his labor, talk as if the government had employed the inventor to labor for it for wages—the government taking the risk whether he invented any thing of value, or not. In such a case, the government would be entitled to the invention, on paying the inventor his stipulated, or reasonable, wages. But the government does not employ an inventor to invent a steamboat, or a telegraph. He invents it while laboring on his own account. If he succeed, therefore, the whole fruits of his labor are rightfully his; if he fail, he bears the loss. He never calls upon the government to pay him for his labor that was unsuccessful; and the government never yet undertook to pay for the labor of the hundreds and thousands of unfortunate men, who attempted inventions, and failed. With what force, then, can it claim to seize the fruits of their successful labor, leaving them only what it pleases to call a reasonable compensation, or reasonable wages, for their labor? If the government were to do thus towards other men generally than inventors, there would be a revolution instantly. Such a government would be universally regarded as the most audacious and monstrous of tyrannics.

On the “non-rivalrous” nature of intellectual property:

It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. …

On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.

This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.

If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right of exclusive property in the products of one’s labor, as it would if applied to material commodities.

It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theatres, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.

The rest of the objections are just as familiar to modern audiences. Spooner rebuts the Jeffersonian-inspired argument against intellectual property (“that his giving knowledge to other men is only lighting their candles by his, thereby giving them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas”), the argument that intellectual property belongs to society instead of creators, and the argument that intellectual property is invalid because it is nonexcludable.

A modern update to The Law of Intellectual Property would perhaps only need to add one additional objection: the idea that copyright only “made sense” in a world without digital technology and global communication networks, but those technologies have somehow rendered the law’s foundations absurd. As the book illustrates, however, for as much as technology has advanced, arguments against securing the exclusive rights of creators have stayed remarkably the same.

Footnotes

  1. Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009). []
  2. The work is labelled as “volume 1″ with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume. []
  3. See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010). []

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35 Comments

  1. A modern update to The Law of Intellectual Property would perhaps only need to add one additional objection: the idea that copyright only “made sense” in a world without digital technology and global communication networks, but those technologies have somehow rendered the law’s foundations absurd. As the book illustrates, however, for as much as technology has advanced, arguments against securing the exclusive rights of creators have stayed remarkably the same.
    ———–

    Sure because these arguments were always applicable. But lets focused on what is different now.

    Copyright (especially the enfrocement thereof, which is hard to seperate) is FAR MORE contraversal than it ever was. Look at the ACTA/SOPA protests. I’m not sure if even the Iraq war or OWS had such a showing. SOPA had more opponents than the health bill did! Remember that? Why is copyright so contraversal all of a sudden? Has copyrighted changed all that much in the past 20 years? It has, but the CORE of copyright is pretty much the same (you’d agree on this, right?)! So what changed? Well the scope of copyright has changed.

    You have a law that largely affected people with copy machines, you have something called copyright. Copy machines like printing presses aren’t found in the average person’s basement. It’s found in specialized businesses. When this was only realistic way to copy something efficently, copyright made a whole lot of sense.

    Now when suddenly even has a copy machine, everyone is under this law suddenly that didn’t really bother them before! So the law, without changing, suddenly becomes more oppressive!

    Hence why you have the problems with copyright you have today. It simply can not work anymore.

    • This is like saying that laws against burglary only mattered when burglars needed special tools and training, whereas today anyone can go down to Home Depot and pick up a pair of heavy-duty bolt cutters and so laws against burglary “simply can not(sic) work anymore”.

      • Laws against burglary will have to change significantly if there exists replicator-like technology to produce everything, similarly to how it exists today for creative works. In such a sitution, I’m not sure if burglary laws or shoplifting laws need to exist (or even why shops themselves need to exist, but that’s a different story).

        • And before you are like ZOMG Star Trek ha haha that will never happen! There is already limited ability to produce 3D objects from digital information. And the Pirate Bay has an entire section dedicated to “physical goods”. A whole new can of worms has already opened.

        • “Laws against burglary will have to change significantly if there exists replicator-like technology to produce everything…” Sufficient unto the day, is the evil thereof. Let’s not borrow troubles from an imaginary future, so that we can ‘muddy the waters’ of the present argument, please.

          • A lot of the concerns we are seeing now are concerns of the present. A legal system that was designed as a response to the printing press is not going to be directly applicable to the Internet.

        • “Laws against burglary will have to change significantly if there exists replicator-like technology to produce everything…”

          Except not, because depriving someone of the use of a specific thing will still be a punishable crime. “But I can duplicate it without depriving you of it!” Well, go do that, then. “But doesn’t that mean copyright is meaningless because duplicating the file doesn’t deprive you of the file!” No, because copyright isn’t about the file, it’s about the right to duplicate the file. There’s no way to duplicate the “right to duplicate” without destroying that right.

  2. This might be a pretty silly example, but how copyright changed kind of fits into it.

    Imagine a law that says you personally, can not go visit space, and everyone gets $100/yr added to their paycheck as result. I’d go for this law. How does one get to Mars anyway? You need to be NASA and have a supporting administration to even consider it!

    Now imagine someone built a spaceship that can travel the galaxy. Suddenly this law feels a lot more oppressive, because now you can visit all the cool stuff out there (it’s illegal!). But the law itself has not changed one bit. The possibilites and technology changed.

    That is exactly what is happening right now with copyright. We have the technology to share all the world’s content and culture with every single person on this planet. What a dream world! This is something that even if you were a billionare, you couldn’t do before.

    Well now we can do it. But the only thing, and I repeat it is the only thing stopping this is copyright law as it exists.

    • That is exactly what is happening right now with copyright. We have the technology to share all the world’s content and culture with every single person on this planet. What a dream world! This is something that even if you were a billionare, you couldn’t do before.

      Well now we can do it. But the only thing, and I repeat it is the only thing stopping this is copyright law as it exists.

      That “content and culture” is someone else’s property that they expended time and energy creating, and they reserve the right to license it to others for profit. Your “dream world” sounds like communism to me. The ease of mass producing copies is what prompted the need for copyright in the first place, so the notion that now it’s easier than ever to make copies doesn’t negate the foundation of copyright. Just because we have the technology to do something doesn’t mean it’s a good idea to do it.

      • The “anti-copyright is communism!” accusation is pretty common, but hard to justify if you want what “communism” is. Everything radical can be traced back to Marx somehow, I guess. Also if you consider Thomas Jefferson (as Terry alluded to) had similar opinions on the nature of IP, I guess was a commy before his time. :P

        But your opinions on the other stuff is fair as long as you understand what you are throwing away. Fundamentally, by supporting copyright you can not also support the ability for people anywhere in the world to get access to all the knowledge and culture ever produced in fixed form. By supporting copyright, you are fundamentally against this as well as the the many bad implications of a world where knowledge is artifically scarce.

        I can only show what the possibilites are. I can make examples about kids in Africa who by virtue of the Internet might be able to build a better world for themselves.

        I don’t try to convince you on what is moral or immoral. I can only show the possibilites. I do hope that people will look into their own morality and find that eliminating or fundamentally changing copyright law will be a good thing. But I can’t convince anyone if it is a good or bad thing, and there will be people who will remain convinced it is a bad thing. And that’s fine, we don’t need the whole world onboard.

        • to make a moral argument for stealing the property of others is not only
          contradictory it is naive.

          Culture doesn’t not fall from the sky it is produced by hard working visionaries.
          If you kill their ability to earn a living from their work you will kill the progress
          of the useful arts.

          • to[sic] make a moral argument for stealing the property of others is not only
            contradictory it is naive.

            Copyright has never been a moral issue. That’s like saying the drug war can be “won” by arresting more people instead of jailing the really bad ones.

            The copyright war won’t be won based on how your morals are. It’s going to be “won” by finding ways to profit and sustain yourself despite the obstacles.

            All evidence shows that piracy is not the issue here. It’s a service problem. The economic ramifications equates to lost revenue when people find the service lacking. This could be said of Wal-Mart if it does not serve its customer’s needs. If people decide to shop elsewhere because they find that Wal-Mart is lacking, then whose fault is that? That’s right. Wal-Mart.

            Culture is created from the retelling of stories and the “remix” of what people know to other ideas. There’s no class of artists that exists outside of the class of consumers. They are one and the same.

            Finally, no one is killing an artist’s ability to make money. If anything, there are more ways to make money than before. You just can’t do it with copyright law in its current form.

    • We have the technology to share all the world’s content and culture with every single person on this planet. …

      Well now we can do it. But the only thing, and I repeat it is the only thing stopping this is copyright law as it exists.

      I’m confused. Now we are doing this. I don’t know if you’ve noticed, but this thing called the internet has been operational for quite some time. It’s true that people are trying to make sure they get paid, but very few people seem hellbent on stopping the internet. Is there anyone besides modern tyrants–who use the internet themselves–trying to stop the internet? And doing it with copyright enforcement? Trying to stifle the spread of information through copyright enforcement seems ridiculously ineffective.

      Your analogy is convoluted. You’re describing a contract, not a law. And how can there be a law to not go somewhere that is by definition outside of the law? That’s like deeming it illegal to be in international waters… except wait! Laws don’t apply in international waters.

      I’ll offer my own thought experiment. We have laws now against larceny, but let’s fast-forward several hundred years or so to a future where we have Star Trek style replicators. Now, when someone steals my meatball sandwich I can just have another one materialized on the spot. It would be annoying to have to constantly conjure up a new sandwich since they keep getting stolen, but it’s not really costing me anything (Other than seconds of my life wasted in fury at someone who steals my sandwiches while they have a perfectly functional replicator of their own back at home!). In this situation, do we still need larceny laws? Should theft be illegal, or simply looked upon as “a dick move?”

      Let’s fast forward a thousand more years, and now we humans are able to seamlessly upload our “mind juice” into a vast computer network. Our mind can be backed up (wirelessly!) and copied, then placed into newly replicated bodies, thus we never really die. Fall out of an airplane? Respawn! You can be tortured to death, and then your mind can be born into a new body with no memories of the torture. In this future, do we need laws against murder and torture? (Let’s ignore the question of whether your ‘clones’ are really you or separate new entities, or the argument of what actually constitutes your subjective conscious experience. We’re assuming that your consciousness is attached to the “mind juice” and moves from clone to clone.)

      Both of these examples are a bit off topic, but I wonder if they illustrate that laws shouldn’t necessarily be dictated by what technology allows. I don’t know the answer myself. I’m reasonably sure that they illustrate that I read too much science fiction.

      • I find this argument kind of strange. You seem to be making a good case for my own argument in the third and forth paragraphs but your conclusion is kind of different than mine. But “shouldn’t necessarliy” is something I can agree with. But we have to constantly evaluate the effects of laws and the structure of society itself (especially economic concerns), because technology changes the foundation and rationales for the laws themselves. Not doing so can be harmful to a fair and equitable civilization, and I’m seeing a lot of this in other industries unrelated to copyright.

        • You take it as a given that the point of copyright was to limit the total number of copies.

          What if the point of copyright was, instead, like making sure that someone who owned an oil field got paid for having the oil taken from his land?

          • You take it as a given that the point of copyright was to limit the total number of copies.

            Copyright has always been about limiting copies.

            If it were set up for a welfare system, then that’s an entirely different argument.

          • You know that is just the worst analogy you could use.

            You have to consider how he got that land in the first place. I’ll give you a hint, he stole it. Physical property is always stolen from something, laws of physics (matter can not be created).

            So he can steal from the ecosystems that lived there before. You can make the argument that only sentience is the only thing that has rights, well I don’t care for that argument so don’t bother.

            But anyway it is stolen from other people (which is very common even outside of the US, if you look far back enough). Revolutions, changes are power, whatever are always a kind of theft even if they have good results.

            So no, I’m not convinced that because you got lucky and stole some sovereignty from a land that is full of oil, you have some sort of “inherit” right to be super wealthy. You can lose that “right”, and depending on your actions, you should. Thanks Libya.

            Some of the most disgusting and condemnable regimes in the world carved their wealthy existence from this “right”.

            In all honesty, if you just made the argument directly about IP, it would be more respectable. Because at least IP has some kind of fundamental work involved in producing it, and you generally don’t have to deal with bloodthirsty militants or be one yourself to make it.

          • “Physical property is always stolen from something…”

            So IP is invalid because all property is fundamentally invalid? :\

          • IP is invalid because it has never been tangible property.

        • “…we have to constantly evaluate the effects of laws and the structure of society itself (especially economic concerns), because technology changes the foundation and rationales for the laws themselves. “

          The foundation of the law is in ethical and moral principles, not in technology. Said principles are unlikely to change, until human nature does so.

    • That is exactly what is happening right now with copyright. We have the technology to share all the world’s content and culture with every single person on this planet. What a dream world! This is something that even if you were a billionare, you couldn’t do before.

      A couple of points.

      First, only those who can afford the technology will be able to share in the world’s content and culture — and that technology is quite expensive and has a short lifespan meaning it needs to be replaced regularly. Even if you were a trillionare you couldn’t afford to give everyone the technology required and to keep them updated as that technology keeps changing.

      Second, over 95% of the world’s content and culture is already available for free. It’s called the public domain and has been a part of the copyright system since it was first introduced.

      I don’t know if you’re the same M that posted on Robert Levin’s blog, but that M made the same claim and, when I pointed to the public domain, rejected it because, basically, they weren’t interested in all that old stuff. Reading A Princess of Mars by Edgar Rice Burroughs (which is in the public domain) wasn’t good enough; no, they had to be able to download the new John Carter movie…

      So “all the world’s content and culture” pretty much boiled down to a grand excuse for “I want the latest stuff now”.

      • Second, over 95% of the world’s content and culture is already available for free. It’s called the public domain and has been a part of the copyright system since it was first introduced.

        Then why is Ernest Hemingway’s books still under copyright after he died?

        Why does Star Wars have copyright on all things Star Wars even though he’s had the videos, the DVDs, the 1st saga and the 2nd saga and made boatloads of cash over the past 30 years based on shady accounting and fan interest? I’m sure that the public domain would benefit a lot more if books actually were allowed to go into the public domain. For the past two years, that has not happened.

      • Why arbitrarily put artificial scarcity on “new stuff”, when that stuff can be shared and copied infinitely as easily as the old stuff?

  3. Pingback: Copyright is Unconstitutional

  4. Apart from the fallacy of thinking that, because the arguments are old, they are invalid, you make one more fundamental mistake–IP as a natural right is a European idea. The American intellectual property regime is founded on a different principle–the good of the public.

    IP in the US is provided for in the constitution for the express purpose of promoting the progress of science and the useful arts. In theory, at least, US law recognizes that IP involves removing things from the public domain and handing it over to private individuals, but balances that against the public benefit of encouraging new works by protecting the profit motive. IP laws are legitimate to the extent (and only to the extent) that they promote new works.

    The European concept of natural rights justifies perpetual rights, but the US system strikes the right balance when it maximizes the public benefit–at some point the protection becomes a detriment to the public interest.

    We do not disagree that IP rights are legitimate, we only disagree about how far reaching they should be. Well, and we disagree that Spooner’s essay is relevant.

    • Agreed; the purpose of copyright is not to limit copies but to provide for an abundance of new works, and the limitations in American law are necessary to the purpose. Perhaps content creators/owners can agree to stop moving the goalposts, if content distributors/consumers can agree to stop stealing?

      • Agreed; the purpose of copyright is not to limit copies but to provide for an abundance of new works, and the limitations in American law are necessary to the purpose

        The express purpose already occurs every minute on Youtube. If you look at how much content is created, it’s mind boggling. So trying to use American law to create even more seems asinine given that there’s already tons of content being created by ignoring copyright.

        • The copyright war won’t be won based on how your morals are.

          Jay, you should endeavor to fix your own god-awful grasp of English before you start chiding others with [sic]‘s. Feel free to start with the (decidedly awkward) sentence of yours I just quoted.

          All evidence shows that piracy is not the issue here. It’s a service problem.

          If that’s the case, content creators are well and truly fucked. Piratical services, if given free reign, will be naturally and incontestably superior to legitimate services. Without production costs to recoup or licensing quagmires to contend with they will always be able to charge less for more. If pirates were truly unhampered, Netflix, Steam, and Pandora would not stand a chance against their inevitable pirate doppelgangers.

          This could be said of Wal-Mart if it does not serve its customer’s needs. If people decide to shop elsewhere because they find that Wal-Mart is lacking, then whose fault is that? That’s right. Wal-Mart.

          The idea that all competition is legitimate is akin to the idea that all sex is consensual.

          Piracy != competition

          Culture is created from the retelling of stories and the “remix” of what people know to other ideas.

          The “everything is a remix” trope is an imbecilic reductionism often espoused by freetards. Inspired != derivative.

          And there is indeed a difference between professional artists and consumers just as there is a difference between a father and son playing catch and a Major League Baseball game.

          Finally, no one is killing an artist’s ability to make money. If anything, there are more ways to make money than before. You just can’t do it with copyright law in its current form.

          There are certainly more ways than ever to make a piddling amount of money. There is without doubt a wealth of opportunities for artists to remain poor…lol

          The express purpose already occurs every minute on Youtube. If you look at how much content is created, it’s mind boggling. So trying to use American law to create even more seems asinine given that there’s already tons of content being created by ignoring copyright.

          This is a laughably stupid argument. YOU might be content with cat videos and people getting kicked in the balls but some of us require more. As for the “good stuff” on YT that shows even a modicum of production value or talent, how much of it would still exist without the copyright-afforded carrot at the end of the stick? Take away the possibility of a plum job in one of the respective copyright-based content industries, how many people would still waste their time and money honing their skills?

          You are utterly divorced from reality, Jay.

          • The copyright war won’t be won based on how your morals are.

            You won’t win the copyright issue based on morality. What’s the problem? The copyright battle isn’t a moral issue. It’s a service issue. Dunno how you can’t figure that out, but that’s your problem, not mine.

            If that’s the case, content creators are well and truly fucked.
            Valve is still around along with Gog. Content creators still aren’t but your insistence they are isn’t based in reality.

            Piratical services, if given free reign, will be naturally and incontestably superior to legitimate services.
            And the problem is…? People go to the service that’s better. HBO Go made $1 billion dollars and yet people still torrented while the pirate sites didn’t go anywhere. But HBO Go is only available in the US if you have a subscription to HBO. So all of those shows on the network? Meaningless if you don’t (can’t/won’t) subscribe to HBO. So I wonder why people will download Arthur or Game of Thrones outside of the US if the HBO package is too expensive? Maybe the answer should be for HBO Go to find a better way to pay for access than needing the artificial scarcity of a subscription that isn’t available in all countries.

            Without production costs to recoup or licensing quagmires to contend with they will always be able to charge less for more.

            So?

            If pirates were truly unhampered, Netflix, Steam, and Pandora would not stand a chance against their inevitable pirate doppelgangers.

            False. Spotify came from the quagmire and took over those dopplegangers by providing a better service. And it’s funny how you try to paint Steam as not standing a chance when Gabe Newell, on countless occasions, is the one saying piracy is a service problem and has proven how to convert pirates to paying customers.

            Maybe you should look into why gaming pricing is elastic.

            Piracy != competition

            You’ve never proven that and all of the countless examples I’ve shown in the past have rang more true than your false assertion.

            Inspired != derivative.

            Now you’re not even trying to sound like a misinformed obtuse person.

            And there is indeed a difference between professional artists and consumers just as there is a difference between a father and son playing catch and a Major League Baseball game.

            Sure, but “professionals” aren’t the only ones in the market. Now there’s more people in the “minor leagues” that can compete with the big boys. But I guess they don’t matter to someone that believes hobbyists don’t matter in the grand scheme of things.

            There are certainly more ways than ever to make a piddling amount of money. There is without doubt a wealth of opportunities for artists to remain poor

            Funny. The ones making income from Youtube, Broadcast.com, Shoutcast, Spotify, Valve, Indievania, the Humble Indie Bundle, Justin.tv, and a number of other places seems to disagree. BTW, there’s more artists in 2012, than there were since 2005. If artists are staying poor and there’s no money in sharing their work on any of the sites mentioned, they’re doing it wrong. And seeing as how the Bureau of Labor and Statistics has shown that there has been 43.2% growth in the number of indie writers and entertainers from 1998 to 2008 (Ya know… Those evil Napster years where filesharing is killing the industry?) then obviously, ignorance is more on your side than actual knowledge in this debate.

            YOU might be content with cat videos and people getting kicked in the balls but some of us require more.

            And that’s why people filter to what they like without government intervention.

            As for the “good stuff” on YT that shows even a modicum of production value or talent, how much of it would still exist without the copyright-afforded carrot at the end of the stick?

            WillofDC started with just a camera and 5 minute updates.
            Fwong just makes movies that get millions of hits. His movies aren’t being enforced or taken down but spread all over the place.

            I could go on but your so called “copyright afforded stick” bears no weight. The enforcement actually breaks communities. Why does anyone want to use the DMCA and takedown content when that just drives it to other areas? You’ve never been clear about this. The content doesn’t go away and as soon as you take down one video, 20 more are there to take its place.

            Take away the possibility of a plum job in one of the respective copyright-based content industries, how many people would still waste their time and money honing their skills?

            Muchaco, there’s less need for the “copyright based content industries” when most artists can go it alone and find their own audience. You must not be looking hard enough. It’s becoming more evident that copyright and it’s supposed benefits are not what people want. Else, there would have been more support for SOPA. I can see a ton of people using sites like Vimeo to spread knowledge far quicker than shutting down websites will ever do. And you believe all of those people need labels to create audiences? Bah.

            Reality and maximalist thinking must not go hand in hand.

          • Inspired != derivative.

            What is “inspired” and what is “derivative” isn’t always clear. There are been a lot of lawsuits in the “gray area” of what derivative works actually mean. I guess if you have good lawyers you can turn nearly anything to “inspired”.

            Just one of the many reasons copyright is simply broken. This is law that is full of subjectivity and inconsistency in implementation. There is no one (both pro/anti-copyright people) that are totally happy with the way it’s implemented or often interpreted by judges. It’s just a constant battleground, as the title of this blog seems to imply. No longer a very uncontroversial law.

            Copyright doesn’t work with the nature of the Internet. This is a world beyond the copying capabilities of the printing press or Xerox machines. This is a world where anyone with a $300 netbook can share something with billions of other people. How would copyright work in such a scenario? It’s nearly impossible to enforce without draconian measures that almost no one wants.

            There is simply no way to make copyright work anymore. You’d have to reverse the progress of science and technology. And that’s like trying to teach intelligent design in a world where evolution has been discovered. It’s just not going to work.

  5. Future of Copyright Contest (interesting idea):

    http://www.indiegogo.com/Future-of-Copyright

    • You won’t win the copyright issue based on morality. What’s the problem? The copyright battle isn’t a moral issue. It’s a service issue. Dunno how you can’t figure that out, but that’s your problem, not mine.

      I was speaking to your awkward wording, not your underlining lack of reasoning. People who write as poorly as you have no business throwing [SIC]‘s around.

      Valve is still around along with Gog. Content creators still aren’t but your insistence they are isn’t based in reality.

      Piracy has not been given free reign to flourish. Are you being purposefully dense or does it just come natural?

      And the problem is…?

      …that your “it’s a service issue” is therefore untenable. In a world were piracy is completely legitimized and unhampered, it is absolutely ridiculous to believe that the legitimate services we have today could continue to compete.

      HBO Go made $1 billion dollars and yet people still torrented while the pirate sites didn’t go anywhere.

      Once again, piracy has not been given free reign to flourish. Are you being purposefully dense or does it just come natural?

      Maybe the answer should be for HBO Go to find a better way to pay for access than needing the artificial scarcity of a subscription that isn’t available in all countries.

      One way or another, productions like Game of Thrones require artificial scarcity to exist. The pilot had a budget of around 8 million. The first season had a budget of more than 50 million. Wake me up when someone figures out a way to do budgets like that with crowd funding, or pay-what-you-want schemes, or ad-supported streaming. Wake me up when a youtube show or a crowd-funded project supports as many livelihoods as Game of Thrones does. Fat fucking chance.

      False. Spotify came from the quagmire and took over those dopplegangers by providing a better service.

      Without copyright, Silicon Valley investors would create a doppelganger of Spotify that would invariably offer more for less. No windowing. Bigger library. Less restrictions. Less ads and/or lower subscription costs in light of not having to recoup licensing fees. Legitimate Spotify wouldn’t stand a chance.

      The starting capital and operational costs for Valve, Spotify, Hulu, Netflix, Itunes, are large enough to constitute significant barriers to entry. Piracy profiteers aren’t going to risk that sort of money in the current uncertain environment. Without copyright you’d see them spring forth in a heartbeat. Valve, Spotify, Hulu, Netflix, and Itunes et al would be unquestionably fucked.

      And it’s funny how you try to paint Steam as not standing a chance when Gabe Newell, on countless occasions, is the one saying piracy is a service problem and has proven how to convert pirates to paying customers.

      The same Gabe Newell that issues DMCA takedowns for “competing” Steam clients? The same Gabe Newell who has people kicked off Steam every single day for piracy? The same Gabe Newell who has people kicked off Steam forums every single day for complaining about DRM/admitting to piracy? The same Gabe Newell who gets the FBI to hunt down source code leakers? THAT Gabe Newell?

      LOL

      You’ve never proven that and all of the countless examples I’ve shown in the past have rang more true than your false assertion.

      Piracy is no more competition than shoplifting. Some of your assertions are too stupid to waste time rebuking.

      Sure, but “professionals” aren’t the only ones in the market. Now there’s more people in the “minor leagues” that can compete with the big boys. But I guess they don’t matter to someone that believes hobbyists don’t matter in the grand scheme of things.

      The minor leagues do not preclude need for the majors as you seem to believe and they rarely compete. And yes, the hobbyists, one rung below even the minors “do not matter in the grand scheme of things”.

      BTW, there’s more artists in 2012, than there were since 2005.

      More hobbyists or more professional artists? I agree there’s more hobbyists than ever. If professional, what are the numbers on that? Cite your (hopefully not Techdirt) sources, please.

      If artists are staying poor and there’s no money in sharing their work on any of the sites mentioned, they’re doing it wrong.

      “If you didn’t get what you prayed for you must not have prayed hard enough!”

      No True Scotsman fallacy. Try again.

      And seeing as how the Bureau of Labor and Statistics has shown that there has been 43.2% growth in the number of indie writers and entertainers from 1998 to 2008 (Ya know… Those evil Napster years where filesharing is killing the industry?)

      More indie writers and entertainers making a living? I doubt it. Citation?

      According to U.S government statistics, there are about 19% less self-identified musicians working today than there were a decade ago.

      Fwong just makes movies that get millions of hits.

      Fwong does indeed make okay money for his sub-Michael Bay nerd skits (a large percentage of which, it has to be said, are based on copyright-afforded popular culture). While stuff like this has its place, it’s no replacement for “Game of Thrones”. Not even close.

      The content doesn’t go away and as soon as you take down one video, 20 more are there to take its place.

      I agree that the DMCA is being wildly abused by pirates and piracy profiteers and should be amended to better curtail both.

      there’s less need for the “copyright based content industries” when most artists can go it alone and find their own audience.

      I don’t give a shit about “finding your own audience” unless that also means “making a living”. As for “most artists”, most musicians still want to land a big label contract (http://www.digitalmusicnews.com/stories/040811labels) and I would guess the same would be true for aspirants to any of the other big media industries. I doubt too many people would choose to stay in the little leagues if they actually had the ability to get in the big leagues.

      What is “inspired” and what is “derivative” isn’t always clear.

      So fucking what? There is ambiguity to every law. Gray areas of law do not mean copyright is “broken” anymore than they mean any other law is broken. There is an element of subjectivity and inconsistency to every law there ever was. If you were intellectually consistent you’d have us abandon all laws rather than just the ones that pertain to digital freeloading, but of course, you’re not…

  6. The essay has a nice pedigree, but sadly Spooner really should have stuck to humor or anarchy. Far, far, too much of his essay consists of empty assertions — It stands to reason this is so — or arguments of the form, “Man must have absolute rights in intellectual property, because counterargument X, if [mis]applied [in some ridiculous way] to corporeal property, yields results inconsistent with man’s absolute right over corporeal property. And it stands to reason man must have absolute rights over corporeal property, so I must be right.” The problem with much of these arguments is that Spooner simply ignores conceptual and practical differences between IP and CP. To take the example of the passage you quote on the nonrivalrous nature of IP, in attempt to support his point, Spooner lists a handful of “counterexamples” that are all actually rivalrous. Sure, two people can walk on a bridge at the same time and not interfere with each other. Two people can use the same hammer at different times. That doesn’t make these types of property nonrivalrous. Bridges can only be used so much before they are full or they fail. There’s only so much time in a day to use a single hammer, and eventually it too wears out. Neither of these apply to IP or other nonrivalrous goods. (And for what it’s worth, traditional property law actually recognizes the sort quasi-nonrivalry of which certain property is capable, and reflects that in how it deals with trespass, easements, abandonment, etc. But it’s a different issue from true nonrivalrousness, nonrivalry, or whatever we want to call the noun form of this concept.)

    Comparing objections to absolute IP rights to communism sounds like a cheap to today’s ears (and it is, to the extent it’s uttered by anyone in this century). In 1855 (shortly after publication of the Communist Manifesto), it wasn’t necessarily a cheap shot Spooner was taking, but it was still a silly comparison.

    • “Far, far, too much of his essay consists of empty assertions…”

      You made an error with that second comma.

      “Bridges can only be used so much before they are full or they fail.”

      That’s an empty assertion.

      “There’s only so much time in a day to use a single hammer, and eventually it too wears out.”

      Two more empty assertions.

      • Yes, you’re right, DensityDuck, that second comma should have been omitted. You are wrong, however, that the the other sentences you quote are merely “empty assertions.” I criticized Spooner’s form of argument by noting that he makes a number of assertions (e.g., stating that certain things have certain characteristics, or certain things are equivalent to one another) that are either far from settled or obvious (and thus in need of further support before one ought to premise one’s conclusion on them, as Spooner does) or clearly and quite obviously false. I described those assertions as “empty.” Do you have a better word to describe them?

        To use Spooner’s discussion of the “nonrivalrous” nature of IP as an example. (Spooner doesn’t use that term, but Terry accurately characterizes it that way.) Spooner writes:

        It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. …

        Spooner then attempts to dispatch this argument by asserting that it stands for the principle that if a person can manage to use some bit of property without colliding with someone else, then he should be allowed to do so. In fact, Spooner states that this is the only principle for which the objection stands.

        It’s not, of course, the principle for which the “nonrivalrous” argument stands — not even the way Spooner himself describes it — never mind the “only” principle. The argument Spooner is avoiding is that, unlike corporeal property, which cannot be completely and fully possessed by two persons at once, ideas (or intellectual property) can be completely and fully possessed by more than one person at once (and the conclusions that follow from that objection, as Spooner suggests, would be that that characteristic is a reason that government ought to treat IP differently, and why some arguments for absolute rights in corporeal property would not apply with equal force to IP).

        In other words, Spooner asserts that nonrivalrousness is equivalent to the capability that a corporeal goods can be shared. Call it an unsupported logical leap, call it false, or call it empty> But it’s not true.

  7. Copyright law should be reviewed every decade or so to make sure the spirit and wording of the law is in touch with the times. I understand the point of copyright law being done away with but in the increasingly digital world, intellectual property is what is mostly going to be relied on instead of a physical property. Even with the inventing the physical product, the need for the intellectual property and knowledge is vital to the product and that knowledge has to be protected. Mankind will benefit as it has since 1855, even if copyright laws are still in place for the rightful owner and inventor of the idea.

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