Why Copyright is Still Evil

against_copyrightI published an article last year on copyright and its evils. Both the title and tone were deliberately provocative for a reason – I argued against copyright from moral not utilitarian grounds. That is, I attacked head-on the fundamental injustice of copyright laws, rather than quibble about how they can be tamed and made “fairer”, as most pro-freedom advocates do.

The article was picked up by many websites. Many objections – some sensible, some just angry – came in from readers. I address some of these objections below.

1. How Can I Use Microsoft as an Attack Arrow in my Anti-Copyright Quiver?

I made the following point in my first article:

Property begins with one’s ownership of one’s body, and extends to all the resources one acquires through:

  1. Trade (i.e. buying, selling, gift-getting)
  2. Manual labor (i.e. creation)
  3. Homesteading (aka “squatting” on a resource no one had yet claimed)

This can mean simply the clothes on your back, or a small ranch house in the suburbs on a quarter acre or, like Bill Gates, a 40% share in a $70 billion company. They’re all property.

The thrust of my argument is that intellectual property such as copyrighted works is not true property because it fails the basic test of scarcity. Nothing that is in unlimited supply requires rules governing its use by humans. Copyright is about ideas (see below for more on this), and since ideas are forever abundant and can be copied through infinite, lossless means – ideas and their expressions aren’t property.

Readers rightly pointed out the irony & inconsistency of me using a software company and its holdings as a traditional example of property, and especially a company like Microsoft, which has grown its business on closed-source products sold under the monopoly protection of copyright and patent laws. If I am to argue against copyright, my not addressing the Microsofts of the world – much less using them as counterbalance to my argument – is near-comical.

I admit I slipped up. And although this article’s scope does not include attacking every single application of copyright law, I affirm that Microsoft must be regarded as a company based on the same illegitimate laws as most music publishers, record labels, etc. Many software companies – some of them large, publicly traded ones – model their business on services not copyright-based licensing. The analogy to musical performers vs. royalty-dependent composers should be obvious.

2. Ben, you fool – Copyright doesn’t protect Ideas, just their Expression

This is a common fallacy made “fact” through its repetition in case law, and codified in the US by the Copyright Office:

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

But an idea can’t exist without an expression! To recognize an idea as such between two people, it must be communicated somehow – that is, expressed. Same goes for a patentable method. Until that idea exits someone’s head into the real world, it doesn’t even exist as far as current law is concerned. Copyright is indeed a monopoly grant on an idea. “Expression” is merely the point at which the monopoly is enforced.

It shouldn’t matter whether the idea is written, spoken aloud, registered with some government office, etc. Not that US law doesn’t currently require some of these conditions to be met to qualify the idea/expression as protect-able under copyright, but to the extent that it does it is inconsistent and irrational. The very nature of property should not be subject to an arbitrary legislative process. If one follows copyright to its proper logical conclusion, then one must agree that anyone  whistling a copyrighted song on the street should be identified and prosecuted for an uncompensated public performance NOW. Esoteric doctrines like “Fair Use”, “Merger” and “Functionality” are nothing more than apologies for the logical inconsistencies which copyright is riddled with. Either we all owe rights-holders when we perform a copyrighted work, or none of us do. A moral rule has to apply to all people, at all times, in all circumstances. Otherwise its an opinion. And as we’ve seen in culture and politics, endless wars are waged over who’s opinion is “correct”.

This leads to a larger point. Copyright – and intellectual property – is so confusing. It’s nearly impossible for a law abiding person to know where the boundary of the law is, when they may be committing IP theft, when they’re “fairly using”, etc.

This is not how true law should work. True laws – not the myriad “sausage laws” that special interests write and which clog our statute books – are simple, timeless and meant to govern basic realities of human society. Establishing fair rules to resolve conflict over scarce resources is what gave rise to the very concept of property. You have to homestead, trade, or gift your way into property. And it has to be scarce, or else – who cares? Its that simple. And once acquired your property is yours or your heirs’ forever until its given or sold away. It doesn’t magically become legal for others to steal your house 70 years after you built it, as it would be for the symphony you composed 70 years ago which is just now entering the “public domain”.

Copyright’s absurdity is made apparent by the sheer volume and endlessness of the debate over it. This should tip off anyone that there’s something just not right about it.

3. But Great Music IS Scarce! That Makes it Valuable, and Value Should be Protected!

Everyone knows that Stravinsky produced some rare music, which critical consensus says was “great”. Same goes for Mozart, Lennon/McCartney, etc. Its true that this great music is scarce in one sense – relatively few humans possess the skill and inspiration of these great composers. But what does scarce talent have to do with scarce musical sounds? Nothing, it turns out.

What underlies this objection is a basic misunderstanding of value. Its a subjective, human measure of something’s importance to an individual, and it has no necessary relation to a market price.

I’ll say it again: value <> price.

So what then assigns price in an economy? Scarcity! Why else would a diamond cost 1000 times a Sunday New York Times, yet most people would never trade in their beloved Sunday morning ritual for a single, inert little white rock? Easy answer: people often value objects that are abundant (thus cheap in price) over objects that are rare (thus high in price).

And we also have to remember that Stravinsky, Mozart and The Beatles are actually not everyone’s cup of tea, strange as that may sound.

For anyone interested in delving deeper into the philosophy behind this, I suggest reading up on the so-called Subjective Theory of Value.

4. But without copyright Mitt Romney or Wal-Mart or those Whole Foods lefties could use my song in their commercials, damaging my reputation!

This is an interesting one since it involves another type of idea – that of reputation. It would indeed annoy me as a composer to hear a song I wrote and recorded used to promote an organization or person that I dislike, but the real problem comes when others form the mistaken impression that such use of my music implies my endorsement. Mitt Romney or Wal-Mart or Whole Foods would not only be infringing on my copyright by using my work without permission, but would be committing slander against my reputation.

In the chapter on Slander and Libel from his landmark book Defending The Undefendable, economist Walter Block explains why traditional “crimes” like slander are actually non-crimes. The reason is that “my” reputation – which slander and libel supposedly damage – is not actually mine. Reputation is the idea that others hold of me. For this reason, a damaging rumor or misuse of my copyright (assuming for a moment copyright were legitimate) can’t be considered an offense against me. And it certainly can’t be considered an offense against others who hold opinions about me – my collective “reputation”.

But, in a copyright world where someone must ask permission first – and everyone knows this – I would be mistaken for a Republican supporter unless I take legal action to stop (for example) Mitt Romney from using my music in his campaign.

But if slander and libel were abolished as laws, people would be naturally circumspect and not assume too much when they hear Romney pumping his fist to my latest punk/prog song. People would also revert to a natural distrust of rumor and heresay – the same distrust they generally held in the days before slander and libel became de rigueur.

The solution to objection #4 is to abolish another Sausage Law – that prohibiting slander and libel.

5. But Who Would Ever Invest in a Music Career When Your Primary Product is Free?

This response is for those who resist a raw stream of logic, as I attempted to lay out above. If we accept certain basics about property, material reality and law – then copyright becomes untenable as a legal doctrine. But even for those who see and accept the logic against copyright, it can still be difficult to comprehend and accept the implications of a world without it. What comes next is a series of challenge questions that basically amount to “Ya but”. Any objection with the word “But” is suspect.

This is where historical examples of copyright-less society and idea production are needed. Moral arguments only go so far in convincing people to abandon long-held, closely-held beliefs. They typically need empirical evidence and historical citations that such beliefs weren’t always consensus. We humans always tend to think of our current society and structure as “the end of history”, to borrow Fukuyama’s phrase. Thus a short tour of pre-copyright history helps bring perspective. I will take you on this tour in a final followup essay.

  • crocket

    I think it would hurt to see my reputation damaged by some entity. It hurts my ego and my mind.
    It could be an offense on my mind. But, I don’t think Wal-Mart intends to damage my reputation by using my song in its advertisements.
    Rather, Wal-Mart employees used my song because they liked it.
    Perhaps, moral objections are enough to deter opponents in most cases. I don’t know if laws against libel and slander actually protect people.

    • bensommer

      Hey crocket. Yeah it might hurt to be “libeled”, used, appropriated etc. But in a just society making someone just feel bad ain’t a crime

      • crocket

        I agree. Do you plan to write a followup essay?

        • bensommer

          Meh – 4 years out I think I’m done with this topic. Maybe some day

  • crocket

    I’m beginning to think that I want to stop thinking about software copyrights even if they are open-source copyrights like GPL or MIT.
    People are too rigid and vicious about the application of open-source software licenses. It is good for scaring corporations but bad for scaling co-operation with as many people as possible. Open-source communities pour vitriol over beginners who happen to make mistakes over copyrights instead of teaching them. They order others to follow orders without questioning. If you question why the copyright needs to be applied in certain ways, they attack you.

    Open-source programmers can’t just fork and code. They now have to learn licenses and negotiate with the forked software project.

    To be honest, I don’t want to work with other open-source programmers.

    • bensommer

      Ha – you’re right its so annoying. Open Source licenses are worse than regular commercial licensing. There’s all this moralism wrapped up into it. With commercial software, you just pay the terms and anyone can use, not hassle

      • crocket

        Have you experienced open-source hostility, too? I’d like to hear your experiences.

        • bensommer

          Nothing personally, though I just dislike in general the approach. BSD license – if its still in use – is far better than GPL. I almost launched a startup years ago that would’ve embedded some BSD-licensed software