Intellectual Property: Abstract vs. Natural Right, Part V: The Conclusioning
Well… two people, maybe? Okay, here’s my distillation of them, for those two people.
It seems evident to me that in the traditional language of either natural right or abstract right there’s no fundamental right to “intellectual property”. “Intellectual property” is a misnomer, but it’s one of those misnomers that we’re probably stuck with as there is no better alternative. “Works of the Mind” seems much more appropriate and accurate.
Why do we get pissed at George Lucas for having Greedo shoot at Han Solo? Because we bought action figures and invented our own storylines with our friends and Han Solo, to us, isn’t just the guy that George Lucas put on the screen in 1977, he’s the guy that you and your buddy developed backstories for and had intricate afternoons of designing and building penal colonies that Han and Chewie escaped from back before anybody wrote anything about what happened to Han before Star Wars.
Because Hegel certainly had this right, in my opinion: when you create a work of the mind, and someone else consumes it, it becomes more than partly theirs. And when the “they” is plural, it really mucks up provenance.
That said, reading both Locke and Hegel should remind the discerning reader that just because there is no fundamental right to anything doesn’t mean that we can’t encode practical implementations in law. It just means we need to tell people who start talking about IP using “rights talk” that they’re using that word out of historical context and ask them to go read Hegel and Locke. There are some good and practical reasons why encoding some form of intellectual property law is – or at the very least “might be” – a matter of good jurisprudence and/or social engineering, even if it is not a matter of pure justice for property rights.
The reason why property rights are a bad framework to use to look at works of the mind is pretty self evident given the particulars I pointed out in the Hegel and Locke posts, but there is one additional factor that doesn’t get mention much in either Hegel or Locke. Forgive me a clunky example to illustrate the point.
If you make machine shop tools for a living, you know the cost of your materials. You know how much of your own labor you need to put into the thing in order to create it. Presumably, if you’re a good businessman, you can work up a reasonable budget and do a number of smart analytical exercises and come up with an idea of how much you need sell that object for, at your incremental cost of goods sold rate, in order to cover your expenses and turn a reasonable profit. So far so good.
I’m a machine shop operator. I need that tool in order to make my widgets which I will also, in turn, sell to somebody else. Based upon my market, I can come up with a reasonable price at which I’m willing to buy that tool from you in order for *me* to turn around and make a profit.
All information hiding and sharing aside, this is generally how the market works with physical, utilitarian goods, and it’s generally fairly decent at aligning everything through competition and producing goods and services at reasonable prices. As imperfect as the market is, it gives something approaching a “reasonably just” true value of a thing to the parties involved. Everybody gets paid, everybody gets within a reasonable delta of a fair shake involved. It’s not perfect, but it’s considerably more just in terms of honest payback for perceived value than many other systems.
However, a book or a work of art or a movie aren’t readily susceptible to those sorts of alignments between the operable world and justice, for lots of reasons that have been obliquely touched on in the various threads about art, recently. Why? Two reasons.
First, there is no way for the consumer of the art to give the artist the actual true value of the consumption of the art back to the artist. If you’re somewhere where you can watch a video with NSFW language in it, watch the first five minutes and thirty seconds of this:
From the standpoint of justice, mind you, (no glib answers!) how much should Kevin Smith compensate the creators of Buckaroo Banzai? What was that movie actually worth, to Kevin Smith? His entire career? Some portion of it? Only $9.99 or whatever he paid for the VHS copy of the film he picked up in the 80s? Kevin Smith and I both consumed Buckaroo Banzai Across the Eighth Dimension. He took it and used it to inform a career of movie-making. I geeked out on it. If you’re talking about works of the mind as property to which somebody has rights, you’re talking about justice, relative or absolute. Whether you’re a relativist or an absolutist, I think you’re going to have to say that BB was worth something different to Kevin Smith than it was to me. Inherently, then, any system which provides that we both shell out the same amount of dinero to consume the thing is inherently unjust in some sense, if works of the mind are anything like property.
Second, in our practical marketplace the consumer of the art in many cases nowadays isn’t imposing a cost on the artist at all, because the individual unit cost of goods produced is at or near zero. Part of our inherent idea of the free market producing fair outcomes is embedded in the idea that people ought to be able to recoup the cost of goods sold, plus profit. That simply doesn’t apply to many artistic endeavors, because there ain’t no cost of goods sold, for goods N > 1. In fact, in many cases of extremely successful commercial artistic endeavors, the consumers of the art actually add value. Compare two recent works of literary artistic endeavor, where one of the works is the Harry Potter franchise and the other work is basically any other comparative work. The network effect for artistic works is a major driver in setting the total monetary compensation return for the artist, but the artist is less responsible for the network effect than the aggregate consumers of the art are (not to mention chance and a long laundry list of other factors). People read Harry Potter not just because it was an entertaining series of approachable novels, but also because everybody else was reading Harry Potter and telling everyone else to read Harry Potter and there were water cooler conversations about Harry Potter and parents in the park pushing around infants in strollers and talking about the reading habits of their preteen older children and “How do I get Andrew interested in reading when all he wants to do is play the Xbox all day,” gets the response, “Well, Christina loves these Harry Potter books and so do most of the kids in her class”. Does J.K. Rowling owe anything to her fans that were a large part of making her books popular? One would hope the intuitive answer is, “well, of course” even if we disagree on how (or if) Ms. Rowling should be practically obligated to acknowledge that debt. Me, I certainly think that she does. How she ought to execute that debt is way past my pay grade. Hegel thought honor was the best venue to correct these sorts of things, not law, and it’s about the best answer I can come up with myself.
Or, if you want an example that just popped up in my inbox, how about this one? What does Nirvan Mullick “deserve”, if anything, for popularizing Caine’s work? Or is he getting paid in opportunities for himself? Hey, if Nirvan makes the next Avatar, does he owe anything to Caine? I would say probably. How much? You know who is probably the best judge of that? Hell if I know. In an optimal world, Nirvan, I’d guess.
(edited to add another example)
When Metallica was early in their career, they encouraged their fans to make bootlegs of their work and give it to their friends. We all know about Metallica and Napster. Why were the fans so upset? Because they bought into Metallica under a very large set of assumptions and suddenly the band changed their relationship with the fans and the fans were put out (NSFW, that last link). Hell, the fans made content that the band turned around and made into a movie, which they wouldn’t have been able to do if the fans didn’t make the bootlegs in the first place.
First, I fully support a system of trademark, provided it’s not insane. Trademark protection, however, should be a mark of ownership, not a brand. The Coca-Cola company can trademark “Coca-Cola Company’s Coke”, because the Coca-Cola company is the owner. Nobody should be able to sell a soda claiming that they’re selling Coca-Cola’s soda, because it’s not theirs. But there’s a ridiculous scalability problem with trademark law, as currently implemented, and it’s just stupid. Lucasfilm can trademark “Lucasfilm”, but not Han Solo, or Star Wars, or anything other particular one thing. Yes, I readily grant this isn’t going to happen in my immediate lifetime. We’re just talking about the way I think things ought to be.
For someone like me, my idea of “just” compensation for creating such a work of the mind is, “Well, take what it cost you to make the thing, add on a reasonable amount of profit for your time and trouble, and as long as you get that back, you’re getting just compensation,” because I just don’t buy the “idea”==”property” equation. To me, most ideas belong in the commons, because that’s where they actually see most if not all of their value. The only reason not to put them there in the first place is because our economic system largely developed to provide capital compensation for industry, and we’re in a post-industrial world. Capitalism is a crappy system of just compensation for people who don’t make widgets or tools. I wonder, in fact, if the upcoming robotic explosion will make that clear, or if people will still be trying to turn everything into a semblance of a commodity market in utility goods… just from inertia. How will we decide what is a reasonable amount of time and trouble? Beats me, if I knew that answer I’d have a book about an economic system that would work a lot better than capitalism. I expect any such reasonable book won’t even be able to be produced for another 100 years.
If whatever system we’re using to compensate academics, actors, directors, artists, photographers, basketball players… if that produces anything resembling such a result, it’s just. The current IP marketplace isn’t anything like that. Now to be fair to the current IP marketplace, there is no current alternative system that produces anything like that either. Crowdsourcing seems like a good first step, but there’s clearly places to go from there. In the meantime, there is clearly unjust outcomes that can be partially compensated for in the system we’re stuck with using.
Some scattered practical bits, since I’ve now exceeded post length by quite a bit and I’m starting (?) to wander:
I don’t believe that any copyright or patent should have a lifespan that exceeds that of the original creator, except in limited circumstance. I believe that in particular no copyright should exceed 20 years (for creative works), and no patent should exceed 10. These are outside numbers, mind you; I think a much better case can be made for 10 and 5 providing reasonable return for creators without hindering the commons. I see no reason why other people shouldn’t be able to put their own Han Solo stories up in this day and age without having to deal with a takedown notice. Granted, they should not be able to brand them as Lucasfilm’s Han Solo stories. Lucas still owns the Lucasfilm brand. There is space to work here for exceptions.
Business process patents should be tossed out. Patent protection is for realized physical devices, not how they are used. This in particular kills innovation. I have sympathy for guys (like contributor David), who see the current state of IP law as driving them out from their creative endeavors from lack of protection. On the other hand, I know more programmers who are leaving the startup field because of patent trolling or worries that whatever they’re currently working on might just possibly resemble a patent already owned by Google or Microsoft than I know actors or directors who are leaving moviemaking because of online piracy of movies. Admittedly, the sample sizes are vastly different, this is just anecdotal evidence.
Software should be protected via copyright, but not patent. Copyright protection for software should be limited to 10 years at the absolute most. Anyone who says software needs more protection than that to give people a reason to innovate has not been paying attention for the last 20 years.
Failure to provide access to protected works for more than half of the lifespan of the IP protection revokes protection. What I mean by this: if you stop selling the book 3 years after you are granted copyright, and you don’t offer another edition by the appropriate amount of time, it drops into the public domain. This should be in place regardless of the duration of copyright. If you don’t produce the thing, you are by definition keeping it out of the market *and* out of the commons. The fact that this is doable is clearly a sign that something is wrong with the system we use now.
Copyrighted software that is not covered by the previous paragraph includes source code release. So if you copyright a video game or a word processor or operating system, and you discontinue support for it, N years later the source goes public. People bought it, they deserve the ability to maintain it themselves if you’re not going to do it any more.
Specific to academic copyright: all research in full or in part funded by federal grants shall be entailed and 3 years after the original publication date such material will be released from any copyright restrictions and published via a mechanism (such as PubMed) under the auspices of the Library of Congress. Yes, I realize this largely kills the current framework of academic journals. People in the general public need access to this material, and it should not be limited to those who are willing to spend gobs of money getting access to Lexis-Nexis, or people who will plant their butt on a bus and go down to the central office of the Large Urban Central Library. This is rank stupidity.
Fair use and derivative works:
I think that Hegel makes a good distinction, and that neither copyright nor patent should be part-and-parcel transferable to another entity. The artist or inventor must retain ownership of the copyright or patent, and the only thing that is transferable to another entity is right of reproduction or reproduction of a derivative work.
The right of reproduction of a derivative work in another medium cannot be rescinded. So if I author a book, and I license the story to a movie production company, the resulting movie belongs to the movie production company, not to me. This means they can make sequels without paying me more than what was in the original contract, but they have to market it as *their* product, not mine (see trademarks, below). They can reproduce the movie on DVD or Blue-Ray or BrandNewMedia without having to renegotiate with me. Any entailment on reproduction is limited to the contractual obligations set out at the time of the contract. Similarly, if a movie production company creates a movie and licenses me to write the novelization, the copyright for the novelization cannot be rescinded. This means I get to write derivative works.
I’ve been struggling with “creative works produced during employment by another party” and I’m still working on that. Suggestions?