Intellectual Property Musings

A few nights ago, I sat and listened to two of my friends have a conversation about intellectual property. One of the friends was on the pro-IP side, and one was on the anti-IP side. That is to say, one felt it unethical that people copy or share books, music, DVDs without paying for them. And one thought that copyright laws (as well as trademark and patent laws) shouldn’t exist.

I watched this, and only commented twice. Once to bring up Cory Doctorow and Nina Paley: two artists that believe very strongly in open source, data sharing, free information type of digital world. Cory publishes his books with a Creative Commons license, which essentially says that people can copy, share and use as much as they want. For Cory, copyright is an outdated system that illogically tasks the state to intervene as well as wrongfully diminishing and stagnating the growth of culture.

To him, it isn’t a problem of piracy, but of obscurity. He feels that if you cast a wider net, get your name out to the widest possible audience, the better it can be – for “culture” and for the author. Same is true for Neil Gaiman. See the video below where Neil speaks about Copyright, Piracy and the Web:

As for Nina Paley, she publishes all of her works and puts all of her animations online under a Creative Commons Attribution Share-Alike license, which you can read more about here. Nina explains a bit more of what this means on her website:

You are free to copy, share, sell, remix, modify, fold, bend, staple, and mutilate Mimi & Eunice but you may not prohibit others from doing the same with any resulting copies or “derivative works“. You may include Mimi & Eunice in larger, copy-restricted works (like textbooks, magazines, movies, TV shows, etc.) but the Mimi & Eunice parts must remain under the Share Alike license (aka Copyleft). This is easily achieved by marking the Mimi & Eunice parts “CC-BY-SA Nina Paley” or “copyleft Nina Paley,” even while the rest of your work is under copyright or whatever godawful restrictive license you use.

If you make any changes to Mimi & Eunice cartoons, you must take credit for them. Please do not draw “new” Mimi & Eunice cartoons and imply I created them. Please do not imply you, or anyone other than me, created existing Mimi & Eunice cartoons. The CC-BY-SA license prohibits fraud and plagiarism, but I really think you know better than to do those things even without the threat of legal force, if for no other reason than self-preservation and not wanting to ruin your credibility and become a laughingstock and pariah.

For commercial uses, I request (but do not demand or legally require) you share money with me.

Mere use of Mimi & Eunice cartoons does not imply my endorsement or approval. I strongly recommend obtaining my endorsement for any significantly commercial projects, as my endorsement increases the value of commercial copies. My endorsement is negotiated by contract the way “rights” usually are. Please contact me to negotiate my endorsement.

I tend to lean towards the thinking of Gaiman, Paley and Doctorow. I feel that copyright (and, in the same vein, trademark and patent) laws are inherently a form of censorship. Ideas are free. Alternatively, they are not scarce goods. Unlike, say, tangible private property, like a bookshelf.

Jacob H. Huebert speaks of this over at the Mises blog:

Land and tangible items are subject to becoming private property in this way because they are scarce. That is, they are limited in quantity, and one person’s use of a piece of property prevents someone else from using it. Two people cannot occupy the same space or eat the same orange. Without property rights, there would be irresolvable conflicts over who can use what land and objects, and how they may use them. With property rights, these conflicts are avoided. On the other hand, if certain things weren’t scarce — if we could reproduce them infinitely at no cost, or if they were somehow abundant — there would be no conflicts over those things and no need for ethical rules, property rights, or laws to govern such conflicts.

As it happens, ideas fall into this latter category. If two people want to have the same idea in their minds, or put that same idea to use, there is no conflict between them — they both can do it. And they can pass on an idea to as many people as they want without diminishing their own possession of the idea. Kinsella uses the example of a book:

[I]f you copy a book I have written, I still have the original (tangible) book, and I also still “have” the pattern of words that constitute the book. Thus, authored works are not scarce in the same sense that a piece of land or a car are scarce. If you take my car, I no longer have it. But if you “take” a book-pattern and use it to make your own physical book, I still have my own copy. (from Against Intellectual Property by Stephan Kinsella)

Check out this cool video Nina Paley put together that speaks to the idea that all “creative work is derivative” of another:

And, for a taste of some of the awful things that have come out of copyright, see the excerpt below from Ideas Are Free: The Case Against Intellectual Property by Stephan Kinsella:

  • There is a case where the seminal German silent film Nosferatu was deemed a derivative work of Dracula and the courts ordered all copies destroyed.
  • Shortly after the death of the author J.D. Salinger, author of Catcher in the Rye — courts banned the publication of a novel called Sixty Years Later: Coming Through the Rye. Banned it. Based on copyright.
  • Some get lucky though, and they say the work was a fair use. There was a parody called The Wind Done Gone which is an unauthorized rewrite of Gone With the Wind from another character’s point of view.
  • In another interesting case, fantasy author Mary Zimmer Bradley, who actually encouraged and allowed a lot of her fans to write fantasy without suing them for copyright infringement, came across an idea that fans had submitted to her that was similar to one she was using herself in a novel she was writing. So she wrote to the fan to tell her what was going on and even offered to pay her a little bit of money and to acknowledge in the book that they had come up with the same idea. But the fan replied she wanted full coauthorship of the book and half the money or she would sue. So Mary Zimmer Bradley scrapped the novel rather than risk a lawsuit; it was never written.
  • Sometimes lawyers who send cease and desist letters claim copyright in the letter and threaten to sue you if you republish it on the web [laughter].
  • The Australian band, Men at Work, was recently found guilty of plagiarizing “Kookaburra Bird” on their 1980 CD, Down Under. The judge held that a flute rift in Down Under bore an unmistakable resemblance to “Kookaburra Bird Sits in the Old Gum Tree,” a folk tune taught to Australian school children for 75 years [laughter].
  • RIAA wants a law passed that would impose a penalty of $1.5 million per CD copied.
  • Ford Motor Company has attacked Ford enthusiasts, claiming that they hold those rights to any image of a Ford vehicle, even if it is a picture that you took of your own car.
  • The NFL has prohibited churches from holding Superbowl parties on TV sets larger than 55 inches.
  • And, of course, there are recent extensions of copyright such as the Digital Millennium Copyright Act, or DMCA, which criminalizes even the mere possession of technology that can be used to circumvent digital-protection systems. But I say DVD ripping devices don’t steal; people do.

You can read Stephan’s entire book, Against Intellectual Property, for free online! Check out the PDF here.

I think, for me, I am very much still in the learning stages. I have much to learn about intellectual property, but I am looking forward to knowing more. I sympathize with authors, want to hear/understand their stories. But I also want to know more about copyright, trademark and patent, and how they help or hamper artists, producers, inventors and writers.

For more of my thoughts on intellectual property, go here.

Cory Doctorow - Photo Courtesy of Wikipedia

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2 thoughts on “Intellectual Property Musings

  1. Don’t forget Radiohead, who released their last album as pay-what-you-want (including nothing), and Trent Reznor who has been releasing all of his music recently as downloadable multi-track files so that fans can remix them.

    I’m a fan of creative commons, and the animation tools I’ve written and share on my website are released under that license.

  2. I forgot about Radiohead, but that’s a good example. I think that’s a wise move in a lot of ways. Good to hear that your world is benefiting from creative commons also. 🙂

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