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STL #12: Copyrights & Patents

My Thoughts On: August 16th, 2005

Originally posted on the 'NAM. Copyrights & patents are a grey area for Libertarian thought, another divisive issue. I hope to illuminate the issue a little, by showing the flaws of mixing monopoly power with government say-so.

In a digital millennium world, copyright issues persist in our day-to-day lives. Whether it is downloading MP3's, trading videotapes, downloading DVD's, or dealing with thousands of bootleggers... most of us are familiar with copyright. If you create an "intellectual property" you can have it on record with the government as yours, where you have the right to sell and reproduce that work for your own profit. This can mean any number of things... you can invent new technology and use that to propel a career, or you can write a book, record a song or film a movie and not fear plagiarism and bootlegging.

Copyright is one of the oldest institutions of law. It has roots tracing back to the Library of Alexandria, which tightly limited control of copies of the works contained therein. Governments have jealously guarded its "intellectual property" - property in ideas - as long as they've been driven by the same culture that those ideas create. It wasn't until the printing press that formal copyright came into practice, and since then it's been growing in power since.

Our Constitution deals directly with copyright. Amongst powers granted to our Congress, the Constitution adds...

Article I, Section 8, Clause 8:

"[Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

So, our federal and state governments are in the legal right to rule on the issue of copyright, but is this a good thing or a bad thing? Well, most people concede that artists are less inspired when money is not involved. Many artists and innovators today seek careers doing just that. However, the idea that money is a requirement for creativity is largely debatable. Some of the most inspired works of history were not done for financial achievement, take for instance the Tanakh, the Bible or the Qu'ran... the writings of Socrates, Aristotle, or Plato, however some might write those examples off on their age alone. There are plenty of modern innovations in technology that are "open source", or declared public domain, like open-source platforms Linux and web server technology Apache, even database technology like MySQL. Web standards are also public domain, and anyone is free to tap these common standards without having to pay royalties to anyone. Languages like HTML and XML were created by the World Wide Web Consortium which keeps the availability of the language free and open. PHP is a powerful server-side technology that is also open-source. Likewise, many of these new computer-driven technologies have powerful money-making potential behind them without the copyright. MySQL, for instance, makes a lot of money developing professional editions of their technology and providing certification for MySQL professionals. Modern day technology to old age philosophy are all heavily influenced by the free and open circulation of ideas... giving legitimacy to the idea that it could go both ways.

In the mean-time, these modern examples also have modern counter-examples. Microsoft has its own series of server technologies and standards it endorses which are all commercially-based. Likewise in art and culture, we see much more copyright than free distribution of ideas. There are very few books in the public domain, as well as few songs and few movies. Most commercially powered avenues, particularly via pressures by publishers and distributors, are copyright protected. Occasionally you'll find a writer, musician or film maker who excuses the downloading of their property, but that is by far a rarity.

The Constitution makes it very clear, thankfully, that the purpose of copyright (and patents) is... "to promote the progress of science and useful arts". The method of promoting this is by "security for limited times to authors and inventors the exclusive right" to the redistribution, publication and profits derived from their works. However, is government's proper purpose to promote, and how limited is "limited" supposed to be? What benefit does copyright have, what are its negatives, and how can we put that into perspective more?

Well, I would contend copyright has limited value for a number of reasons.

1. Copyright helps prevent fraud. Fraud is rampant when people can take another person's idea and take credit for it without legal recourse. Plagiarism is fraud on two levels. For one, the consumer is paying for a product that is not an original work, original works having somewhat more value to many people, the person is robbed of value in sentiment that would otherwise not be had if the suggested author was the real author. It is also fraud in that it attributes to the fake author a degree of skill and creativity that is otherwise not attributed, that can influence someone's buying decisions at that moment and in the future. These are very hard to distinguish forms of fraud, but very important ones in today's society, especially if not controlled in some fashion.

2. Copyright helps prevent substandard reproductions from hitting the market. To sell a substandard copy of an original work is so common in bootlegging today that it should remain unsaid that it's a huge problem. This is also another form of fraud - most people presume a higher degree of quality of presumably original works that they don't get from bootlegged copies. To get home with a product that was unknowingly of low quality only to be disappointed that you spent more than you otherwise would is a traditional problem of bootlegging, and a valid reason why bootlegging should be considered a form of fraud.

3. Copyright also creates a more honest environment, while you may not be financially defrauded, it is dishonest to purport something is your original work which is not.

However, it causes many inherent problems...

1. Copyright causes monopolies, because the only way to enforce a copyright is by monopoly authority. You and you alone have a monopoly over something that is often very intangible. This creates an environment where there are many frivolous and extremely unproductive lawsuits proliferating society.

2. Copyrights are often not temporary anymore. Modern corporations allow copyrights to exist by lobbying and trading intellectual properties into oblivion. A classic example of obsolete copyright still generating profit in our society is the "Happy Birthday to You" song. The "Happy Birthday to You" song is owned by AOL Time Warner, who makes royalty money off each usage of this song in television and movies, with no sign of quitting. The song is 112 years old, and was derived from other older songs. While Patty & Mildred Hill are credited with writing the song, the lyrics still have a contested origin. They wrote a song, "Good Morning to All" which was based on the melody we know from the "Happy Birthday to You" song, however another person, Mr. Robert H. Coleman republished "Good Morning to All" and added a second verse with the lyrics of "Happy Birthday to You". The song became popular from Mr. Coleman's adaptation, but late in life, Patty Hill sued Rob Coleman for property rights to the song. The court agreed that since Coleman did not create the melody, and obviously used the same song, that Patty Hill owned the song. However, somehow, Patty Hill also was allowed to own "Happy Birthday to You" which was neither her idea nor her lyrics but instead Coleman's addition inspired by her melody.

This song, being popular as it was for birthday parties throughout the ages, passed from hand to hand in multi-million dollar deals until a Time Warner subsidiary purchased its rights in 1988. So, this popular song, the lyrics of which were derived from illegal breach of copyright, is now one of the longest-held copyrighted institutions in America... and it isn't set to expire until 2030. It will be 25 more years before it is legal to use the "Happy Birthday to You" song lyrics and melody for derivative works, and be finally declared public domain. This begs the question... is copyright an issue of financial monopoly, or promoting the arts & sciences? Patty Hill died 11 years after winning the rights to the song (that she did not really write), and her sister Mildred, who created the famed melody, was dead before that dispute even occurred. Copyright after their deaths only helped third parties who had no hand in even creating the work they profited from, all the way to today, and it is uncertain if a legal loophole will be found in 2030 to keep the copyright going even longer... despite it meeting every qualification for what we would THINK is public domain, it isn't such. This suggests that maybe copyrights and patents are in fact not limited... which the Constitution suggests they need to be.

Imagine if Viacom owned a copyright to the King James version of the Bible!

3. Copyright stifles many technical innovations. Many technologies that make copying any work are under attack as copyright-breaking devices. P2P technology is a good example of this... courts are moving closer, not further, towards decisions that would render many forms of software development as risky legal ventures by setting bad precedents. This is despite the fact that in the future organizations like the RIAA and MPAA may indeed look towards the same technologies they seek to blot out today for their own digital distribution mechanisms of the future. It, of course, will be unquestionably legal... if they decide they want to use it, setting a bad double-standard.

Now, there are many pros and cons to copyright and patents. Speaking of patents, I have somewhat glossed over them. They have somewhat the same principles of copyright but instead of a creative idea they are more useful technological innovations, inventions, whose original designs are limited to a particular patent-holder. Patents too, are older than American politics, and part of the same Clause 8 we're talking about... on those terms, at least one founding father, Thomas Jefferson, had plenty to say.

In the case of Oliver Evans' patent on elevators, Jefferson wrote a letter to Isaac McPherson regarding possible misuse of patents, suggesting great skepticism on patents (and copyrights) as a whole. Evans apparently had been using his patent to discourage other competing forms of elevators from being created, and Jefferson was dismayed at the concept. While he says that the particular elevator he created is his for the limited purposes of the patent, Jefferson suggests that we should not deny others the right to use their ideas to create other types of elevators, not only for different purposes but to improve on the overall design of elevators in general.

Thomas Jefferson to Isaac McPherson, 1813:

"If one person invents a knife convenient for pointing our pens, another cannot have a patent right for the same knife to point our pencils. A compass was invented for navigating the sea; another could not have a patent right for using it to survey land."

He went on for a while, but echoed the same point: he did not feel that copyrights, even limited copyrights, were worth hindering the development of new ideas, because he did not see new ideas as the property of any original author but the person who thought them. Likewise, he suggests that the distinguishing between a new idea and an old patented idea should be very, very free and open to debate.

So, how should a Libertarian think?

Well, I think what we are immediately forced to admit is that copyrights cannot be a part of our natural rights. We do not have a natural right - under the self-ownership principle - to ideas that once released into society become the foundation for other people's original ideas, however similar. Such an "intellectual property" is not a tradable commodity that we possess and otherwise give away, thereby it's not much of a real property. The only idea we have a natural right to is the one we keep to ourselves, because once it becomes the memory of someone else, it is their property in that pretense. This is evident when you try to enforce intellectual property - it is enforced solely in a monopolistic manner (one party gets to make a decision regarding how the idea is published, or implemented in society, one party has the right to profit from it, and one party always has it under the terms recognized). This breeds misuse of copyrights/patents (see: Patty & Mildred Hill). Likewise, to enforce copyright you need exclusive government intervention in almost all areas of society. It requires that government create a means to control the proliferation of ideas. These things are all reasons we should not view "intellectual property" as real property, as it is merely the idea that you have property, not any practical or real thing.

However, most of us agree that preventing fraud via copyright is effective and it also prevents other forms of dishonesty that channel profits down abusive, anti-liberty paths. We don't want to empower the rise of bootleggers and plagiarists, that's against our very foremost instincts. Likewise many still believe that creativity would not flourish without them, and a society without creative input could be a very slow moving society that would not be very receptive to the ideas of a free market.

The Constitution had a good direction with copyright/patents, when it stated they existed for one reason - "to promote" art & science - and only had one implementation - limited rights to profit and determine the path of a work. Libertarians should view the situation like this...

1. Copyrights/patents help prevent consumer fraud, that's so evident from bootlegging today that it's fairly indisputable. Being able to rely on the knowledge that something is coming straight from an original author is very important for the American consumer. So this suggests that limited copyrights are justified. Likewise, it keeps companies from ripping each other off with corporate espionage by trying to perpetually undermine the creative ideas of each other. This suggests a practical purpose to copyright.

2. However, the monopoly power and nature of copyright/patents show us that they are not natural rights, not to be protected like free speech or freedom of religion. They are government privileges, and ultimately have no long-standing place in a free society. Abuse of copyrights show us the absurdity of protecting it like conventional property rights (again, Patty & Mildred show us that copyright can be used to exploit the creative input of society... they did not appear to write the lyrics "Happy Birthday to You", they merely "owned" them... and why the hell should anyone pay AOL/Time Warner for to sing this song today?).

3. Therefore, we need a solution that allows us to implement this without riddling society with destructive lawsuits but leave it fairly protected from fraud.

Here is where fair use comes into play. Fair use is a part of United States copyright that protects particular breaches of copyright for scholarly and academic reasons, more importantly, for the purpose of "criticism and commentary". Fair use must be explicitly non-commercial. For instance, I could reprint all the lyrics to the "Happy Birthday to You" song here for the purposes of this article and not be breaking the law due to fair use, since I would not be making money and be including it under terms that fair use allows. Fair use still makes bootlegging illegal but currently fair use does not include trading copies of materials for free. Libertarians should stand behind a broadening of fair use if they intend to keep copyright simply because it rallies copyright from being perpetually abused. Fair use could be expanded to legitimize transmission of digital copies of works, which are often created from an entirely original medium, and not hard copies of a product, and most usually not sold (instead, distributed for free at the expense of the trader's bandwidth).

Copyright law itself should also be severely limited. Perpetual copyrights are clearly against the concept of copyright in general. Extended patents doubly so, because they not only discourage innovation but can often hamper industrial growth. Trademarks, which I haven't even begun to mention, might have a purpose for extended copyright due to the fact they are usually for the purpose of identifying a long-standing company or product, but they too can be abused. Many companies have gotten into pointless disputes over named titles, such as the "World Wildlife Fund" and the "World Wrestling Federation", both having a trademark property over the letters "WWF". The World Wildlife Fund won the dispute, forcing the World Wrestling Federation (the more popular "WWF") to change its name to "World Wrestling Entertainment" or "WWE". This is pointless considering that the common person will not confuse a fund for helping global ecosystems for a bunch of sweaty guys in spandex. However, small profiteers often try to impersonate another company using trademark infringement and that can often be a problem, again, another issue of consumer fraud. The terms to all of these government-enforced monopolies need to be re-evaluated on some level, as frivolous lawsuits are too much on the rise from this, and again, they are not natural rights.

I believe copyrights can be salvaged in a libertarian system, but they must be severely limited. Derivative works should be expanded to prevent potential social stifling by racketeers, fair use must be expanded, and copyrights need universal twilight clauses that force a fixed timetable by which they must become obsolete, in my opinion no more than 50 years. After all, most people invent and create in their 20's (not very often younger), and our life expectancies are into the 70's, so a 50 year copyright/patent/trademark is sure to last an original author an entire lifetime of innovation.

What kind of copyright world is this? Well, one where you can't sue someone from trading your copyright work for free over the internet, but one where you can sue someone who sells a reproduction of your work without your permission. One where you may not be able to sue someone for using your idea to create a better or more available version, but one where you can sue someone for copying your idea and reselling the same thing. It would be fewer lawsuits, more focused on practical enterprise and not really on the "right" of the original author. This begs the question: will music, movies, art and books be less available if free trading is legal? Will inventions stop coming if they are less all-encompassing legal properties? Will people want to be creative without a government willing to back their monopoly power over society for their creativeness?

This point will always be debatable, but I suggest that since copyrights/patents/trademarks are not natural rights, it's only because society allows these original authors these special privileges that they get them in the first place. Libertarians should recognize this and learn to teach others to appreciate their creativity as a personal accomplishment. Maybe in that environment it won't matter if you can profiteer off it as easily tomorrow as you can today, and maybe people will seek innovation more often through those pretenses. Then again, this is just your humble curator just trying to help shed a little light on the subject.

- Good ol' PA

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