Intellectual Property: Abstract vs. Natural Right, Part V: The Conclusioning

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Patrick

Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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  1. Avatar Rose Woodhouse says:

    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.

    +1Report

  2. Avatar James Hanley says:

    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.

    So you’d deny the artist/inventor the right to sell all their rights in what they’ve created?  Isn’t that a decision better left to them?  After all, you’ve just substituted your judgement for theirs, and quite possibly to their economic detriment.  And the basis for overriding their preferences is…?

    (Note: There’s much I agree with here, but in the best tradition of the blogosphere, I’m picking at the part where I dissent.)Report

    • Avatar Patrick Cahalan in reply to James Hanley says:

      That’s tied almost directly to Hegel’s bit, which I talked about in the earlier posts.

      To make a long rejoinder short, I agree with him; it is one thing to sell your works of the mind in the sense that you allow someone else to make copies of them or profit off of them for a limited time, but since they are part of you, you can’t give up ownership of them in the way you can other property.  You just can’t excise that out of your brain… works of the mind become part of the spirit of the creator.  To sell them entirely would be to sell that part of yourself.  Even if there weren’t philosophical arguments against this (Hegel outright calls it slavery), there is a practical limitation.  You just can’t prevent yourself from using what you learned in making the thing in making other things.  Thus, you can’t actually sell it because you can’t transfer ownership of it.  It’s therefore simply a legal fiction.

      Now, you can make the case that it is a legal fiction that is useful, but I don’t see it as a legal fiction that is necessary, and I see lots of unnecessary unavoidable consequences that are highly undesirable.Report

      • Avatar James Hanley in reply to Patrick Cahalan says:

        I don’t see it as a legal fiction at all. If I want to sell my legal claim to any ownership of something I’ve created, that’s my choice.  You can’t tell me I can’t sell part of myself without substituting your judgement–about my life–for mine.

        you can’t actually sell it because you can’t transfer ownership of it.

        You’re falsely reifying “ownership.”  What I can transfer, if the rules of our society allow it, is the right to future benefits from the “it.”  I would only do that if the price someone pays me is the net present value of my expected future benefits.  So you’ve really accomplished nothing at all in making such a rule, other than to tell me that I can’t take the benefit up front, when it’s certain, but must take it in the uncertain future.

        To say I can’t transfer ownership is to substitute, in place of a solid, defined, legally meaningful concept of ownership, an amorphous, mystical, and ill-defined concept of ownership.

        But ultimately, the question still comes down to, “if I want to transfer all rights to future benefit from something that currently is acknowledged to be mine, who the fish are you or anybody else to come in with philosophical theories to say that in some metaphysical I really can’t do what in fact is legally possible, so therefore we must not make it legally possible”?  And have you noticed how that slides right from a factual claim to a normative claim, obliterating Hume with Hegelian obscurantism?

        I’m sorry, but “Hegel says it can’t be done, so therefore it’s wrong for the laws to allow you to do it” isn’t really going anywhere.Report

        • Avatar James Hanley in reply to James Hanley says:

          Let me add this.  From my perspective, you’ve erred from the get-go by looking at property from a philosophical perspective instead of a resource value perspective.  I recommend reading Harold Demsetz’s “Toward a Theory of Property Rights” (American Economic Review 1967).  Property rights are just socially recognized rights to particular uses of resources, which themselves are just things that are valuable. If we can define a particular type of use of some resource and functionally regulate who can engage in that use and benefit from it, then we have a property right.

          Hegel is a misdirection from the get-go. You get yourself all bungled up in normative claims from which you want to make some positive claims rather than beginning from an openly and bluntly positive perspective.  And your normative claims end up begging the question of the justice of denying me the right to sell the full value of my work, so they don’t do particularly good work on either the normative or the positive spectrum.Report

          • Avatar Patrick Cahalan in reply to James Hanley says:

            Property rights are just socially recognized rights to particular uses of resources, which themselves are just things that are valuable. If we can define a particular type of use of some resource and functionally regulate who can engage in that use and benefit from it, then we have a property right.

            Then you can sell people.  Not just yourself, but anybody, provided  it is socially recognized.

            Yes?  Or no?Report

            • Avatar James Hanley in reply to Patrick Cahalan says:

              Yes. Slavery was a very real system of property rights.

              The problem, of course, was that it was a system that coerced some people into an exchange of value that they did not voluntarily enter into. Notably we still debate whether someone should be allowed to voluntarily sell themselves into slavery, but we don’t debate whether it’s right to sell someone else into slavery involuntarily.Report

          • Avatar Patrick Cahalan in reply to James Hanley says:

            denying me the right to sell the full value of my work

            Note: you yourself have a normative claim tied up in a positive claim here.

            How much of that work is yours?Report

            • Avatar James Hanley in reply to Patrick Cahalan says:

              You’re not really going to claim we need an absolute rule because it’s difficult to determine things at the margins, are you?  Imagine translating that into all areas of law.Report

              • Avatar Patrick Cahalan in reply to James Hanley says:

                James, in the case of works of the mind, where are the margins?  I see very little core and almost all margin.  Maybe you don’t, and that’s why we’re disconnecting here.

                That’s what I’m asking you.  How do you determine what is yours?  There are three conflicts here that I can think of off the top of my head.

                Conflict Number One: As Teacher points out elsewhere on this thread, a substantive portion of an artistic invention (in his case, a literary work) is based on previous works.  Artists copy the masters to learn.    Without works, innumerable works, prior to Tesla’s, he didn’t even have the foothold on the science to build any of the things for which he held patent rights.  Since you cannot claim pure provenance, it’s clear (to me, at least) that you cannot claim entire ownership.  This doesn’t mean you can’t claim *any* ownership.  But not entire.  Do you agree, or disagree?  Is this not different from the apple from a tree on your property, in terms of provenance?

                Conflict Number Two: Bell beat Gray to the patent office and he owned the phone.  How do you square this?

                Conflict Number Three: Since the future value of the work includes… to some extent… derivative works… where do we draw that line?Report

              • Avatar DensityDuck in reply to Patrick Cahalan says:

                If you want to get into reductio ad absurdum then nobody can claim to have invented anything, because it’s all dependent on the concept of communication, which was invented by DNA moluecules sometime around BC two billion.Report

              • Avatar Patrick Cahalan in reply to DensityDuck says:

                I didn’t realize that these three actual cases represented a reducto.  Thanks!Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                Oh, so you’re asking practical questions? I hadn’t realized that taking a Hegelian approach was about what was practical or not.

                We determine those things through experience, as expressed in both case law and statutory law.

                Works of the mind and the core?  Look at TVD’s links about Sherlock Holmes below.  Holmes is core, Moriarty is core. The specific stories are core.  The idea of a detective, drawn from previous authors, is outside the margin. Why? Because that’s how we’ve legally defined it.

                Something in there is margin, but less than you’re implying.  If the margin were almost everything, then there’d be even more cases than there really are.  You wouldn’t be coming up with just the John Fogarty case; you’d have a list so long you wouldn’t know where to start.

                Again, it’s all about what society decides to define as a right.  Things that get too difficult to regulate and control tend not to be defined as property.  Things that are easy to regulate and control tend to get defined as property.  The ones in the middle–the marginal area–we struggle with.  The fact that there are areas we struggle with is just a reflection of the empirical reality of our capacities, and says little about the justification for the overall structure.  Even if 90% was margin, we wouldn’t be unjustified in defining as property that 5% that was easily regulated and defining as definitely not property that 5% that was clearly impossible to regulate.

                And remember the artist who wishes to make an exchange.  The harder it is to regulate and control an element, the less s/he will be able to be the sole capturer of the benefits of controlling it. Therefore the less anyone else will, and the less s/he will be able to sell it for.  So the difficulty of regulation not only helps determine the legal boundaries of property, but for the very same reason determines how much someone else will be willing to pay to (try to) control it.  The system rather naturally works itself out in a functional way if we just keep our moralistic theories out of it, other than being moralistic about coerced exchanges.

                And, dammit, your approach is coercive.  I don’t think you’ve really addressed how you justify that.  At least not to my satisfaction. 😉Report

              • Avatar Patrick Cahalan in reply to James Hanley says:

                I think you’re focused entirely on this one point, and in the context of the whole thing, it’s really a detail.

                Okay, so let’s say you can transfer future value and ownership of an idea, and that it is totally as easy to establish provenance as you’re saying it is instead of as difficult as I’m saying it is.

                How long should it last, James?  What’s your idea of an optimal position for the length of copyright?

                Do you believe in the intellectual commons, at all?Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                I think you’re focused entirely on this one point, and in the context of the whole thing, it’s really a detail.

                Well, I did say so at the beginning.;)

                Okay, so let’s say you can transfer future value and ownership of an idea, and that it is totally as easy to establish provenance as you’re saying it is instead of as difficult as I’m saying it is.

                I didn’t say it was always easy, only that some aspects of a work of art or idea are easier to establish than others, and those elements provide us a workable basis for establishing IPR.

                For example, I used to know the artist who drew this. The image was used without her authorization in this ad. She sued and won some undisclosed sum in a settlement.

                How could she possibly do that if we can’t establish provenance sufficiently as a practical legal matter?  If your argument is right, you’ve logically put yourself in a position where you have to deny any claims of intellectual theft, because those rely on being able to establish some kind of provenance.  But if you think intellectual theft is sometimes possible to prove, then you’ve admitted that provenance can be established securely enough, as a purely practical legal matter, that in fact the right to its value can be transferred as well.

                You cannot have the one without the other.

                How long should it last, James?  What’s your idea of an optimal position for the length of copyright?

                Well, that’s changing the question a little bit. We were talking about the idea of the author/artist being able to sign away their rights wholly. I thought the implicit understanding underlying that was that meant for however long an idea remained privately ownable; i.e., until the end of copyright.  I’m not remotely arguing for perpetuity of copyright, and while I hesitate to make any claims about optimality, I do think the Mickey Mouse Copyright Law is patently ridiculous.  I like the constitutional formulation IPR, which is a balancing act, and it’s a pity Congress chose to violate the spirit of that formula.

                Do you believe in the intellectual commons, at all?

                Of course, in multiple ways. First, I believe that there is an uncontrollable and unregulable element of “stimulation” (for lack of a better word coming to mind at the moment), whereby my reading, say, The Hunger Games could prompt an idea in my head that could be developed. As long as it’s distinct enough when developed–and I emphasize that “enough” is a wholly pragmatic thing, determinable by standards that develop historically in or law–my work is my own, even though it owes something intellectually to some other author.

                Second, I believe in time limits on IPR. No ifs ands or buts.

                Third, I believe IPR holders should have every right to put their work into the commons at any point they want to. I even go so far as to respect that act.

                Fourth, I agree that it’s wholly legitimate to place shortened limits on length of property rights for publicly funded works.  I think we need to be cautious to not overdo it and diminish the economic incentive both to create and to make those creations available (for all the criticisms of academic journals making access difficult, they are also–traditionally–the ones who are making access to good intellectual work possible, by sifting wheat from chaff…although that model may be breaking down these days).  But that caution is purely pragmatic; it doesn’t contradict the essential legitimacy of saying, “the taxpayers funded your work, you have to make it readily available to them within X amount of time.”

                So, no, my argument isn’t against the commons at all. It’s only against the empirically false claim that the creator cannot waive all legally enforceable rights to his/her own work.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                How could she possibly do that if we can’t establish provenance sufficiently as a practical legal matter?  If your argument is right, you’ve logically put yourself in a position where you have to deny any claims of intellectual theft, because those rely on being able to establish some kind of provenance.  But if you think intellectual theft is sometimes possible to prove, then you’ve admitted that provenance can be established securely enough, as a purely practical legal matter, that in fact the right to its value can be transferred as well.

                There’s a lot to unpack there.  I confess that my attitude towards provenance is highly (highly!) informed by my security domain thinking at the practical implications of audit.

                Hrm; I might have to write another post.Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                There’s a lot to unpack there. I confess that my attitude towards provenance is highly (highly!) informed by my security domain thinking at the practical implications of audit.

                Not to argue, but to clarify.  I think you have a concern about the creator retaining control over some aspect of their work. For that control to be enforceable, we have to be able to define those aspects as “the creator’s” in such a way that they can be recognized and distinguished from those aspects that are not the creator’s.

                The moment we’ve done that, we’ve defined and distinguished them well enough to make them amenable to description in contract, and so it is practically possible for the creator to sell them away, in part or in toto.

                If we focus solely on those elements that cannot be so defined, then I agree that they cannot contract them away, because enforcement will be too difficult to be in any way practical.  But those elements also cannot be protected from infringement or theft by others, for the very same reason.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                If we focus solely on those elements that cannot be so defined, then I agree that they cannot contract them away, because enforcement will be too difficult to be in any way practical.  But those elements also cannot be protected from infringement or theft by others, for the very same reason.

                Yes.

                Therein lies the rub for those who want the protection.Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                Therein lies the rub for those who want the protection.

                Yes, and like any other self-interested rational actor, a rights-seeker will try to push the boundaries.  But if it in practice cannot be defined clearly enough that a judge or jury cannot determine whether there is an infringement or not, the practical solution is to deny the claim of right.

                That’s a different matter from the difficulty of control when the elements can be clearly defined: e.g., digital music.  That’s also a practical difficulty of enforcement, but of a functionally–perhaps fundamentally–different kind. That’s an intellectual puzzle I’ve been pondering off-and-on for over a decade, and the only conclusion I’ve come to is that all the normative theorizing about the issue is nonsense, and the ultimate resolution is going to be dependent upon whether the rights holders can effectively regain control. If they can’t, that issue of rights will probably wither away as a practical matter, even if it remains encoded in our law. If they can, or can make valiant attempts to that are at least sometimes successful, then their legal claim to those rights will remain relevant.Report

              • Avatar Patrick Cahalan in reply to James Hanley says:

                Oh, regarding the coercive bit….

                Intellectual property law is coercive.  All of it is.  By granting something the status of copyright or patent, you’re are forbidding anyone else to use it.  Enforced by the courts, and essentially by extension, the state and the cops with the guns (or at least, with the ability to seize your assets in compensation to a rights holder).  There are at least arguably legitimate reasons, as I’ve already acknowledged, why you may want to do this.

                Refusing to recognize something as IP is kind of the opposite of that.  Putting limitations on the kinds of IP contracts that you will regard as enforceable is a limitation on the use of coercion, not the other way around.

                Oh, and remember, I’m not a libertarian anyway 🙂Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                Oh, regarding the coercive bit….Intellectual property law is coercive.  All of it is.

                Oh, do be serious. All property law is coercive.  Step on my lawn and I’ll coerce you to hell and back. Yadda yadda.

                What I’m talking about is the state telling you what you can do with your property, whether it be a drawing of a cartoon character or the Great American Novel.

                The coercion of property in general is designed to allow the right holder–the one who has made the investment–the authority to determine what they want to do with that property (within bounds primarily designed to prevent negative externalities), and ensure that others cannot free ride off the property owner’s investment.  Your approach is designed to deny the right-holder the authority to determine what to do with their property.

                If I build a new house, can I sell it to someone else with the contractual understanding that I may never set foot in it again without their permission?Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                Oh, and remember, I’m not a libertarian anyway 🙂

                That’s ok, it’s hardly necessary.  But I thought you were empirical.

                FWIW, I looked at property rights really extensively in grad school, actually beginning in the last two of my six undergrad years (yes, you read that right).  I began with philosophers (although I never read Hegel), realized they weren’t well-grounded, switched to looking at legal arguments where I saw a really mixed bag of stuff, then found the economic arguments, beginning particularly with the Demsetz article I mentioned, and had an “a ha” moment.  The economic literature dovetails nicely with the better legal literature, and some of the anthropological literature as well.

                And the gist of it all is, property is a social construct.  Property rights are as extensive or as constrained as the particular society/culture chooses to make them.  Anything of value–even amorphous non-physical “things”–can have property rights attached to them precisely because people value and want to control them.

                And that is what leads to my only criticism of your post–this particular claim:

                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 only thing that “is” transferable is an empirical claim. It’s a false claim.  And the “must” is a normative claim that has an extremely weak basis, because society’s gone along just fine violating that normative basis, and any number of artists have happily benefited from doing precisely what you say they “must” not do.  And you’ve provided absolutely no justification for substituting your judgement for theirs.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                If I build a new house, can I sell it to someone else with the contractual understanding that I may never set foot in it again without their permission?

                Sure.

                Can you sell the house, together with all the knowledge used to build the house?  Kinda.  You can sell the house with plans and a whole bunch of howto YouTube videos or something.

                Can you sell the house with all the knowledge used to build the house *and* with the contractual understanding that you may never again use that knowledge without their permission?

                I don’t think so.  Because that’s an unenforceable contract.  You can’t abide by your side of the deal.

                Could you sell the house with all the knowledge used to build the house *and* with the contractual agreement that you won’t build any more houses?

                Hm, well, sure… but when you build a garage that has living space in it, is that a house?  Somebody’s lawyer is probably going to say so if you sell it for enough to make it worth it for them to sue you for a chunk.  In the case of IP, though, it’s not really about making *houses* and quibbling over what’s a house and what isn’t.

                Could you sell the house with all the knowledge used to build the house *and* with the contractual agreement that you won’t build any more houses for five years?

                Yeah, you can do that.  Sure.Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                Can you sell the house with all the knowledge used to build the house *and* with the contractual understanding that you may never again use that knowledge without their permission?

                I don’t think so.  Because that’s an unenforceable contract.  You can’t abide by your side of the deal.

                You could abide by the deal, if you agreed never to build a house again.  It’s hard to imagine somebody agreeing to that unless they were fantastically well compensated; and if they were, where would be the injustice? In fact you seem to agree when you write;

                Could you sell the house with all the knowledge used to build the house *and* with the contractual agreement that you won’t build any more houses for five years? Yeah, you can do that.  Sure.

                What’s the fundamental difference between a 5 year contract and a “not again in my lifetime contract?”  Oh, not again in my lifetime sounds bad, so let’s make that a 50 year contract (if I’m still interested in building a house when I’m 97, I can do so again).  What’s the difference?  I claim there’s no moral difference, only an economic one.  You’re going to have to pay me more to sign the 50 year contract as opposed to the 5 year contract, but in either case I’ve been adequately compensated.

                But you’re right that it’s probably an unenforceable contract, and that’s because of the incomplete contracts problem. The impossibility of delineating and specifying each particular bit of knowledge that is contracted away means it would be impossible to determine whether the person was abiding by it or not.  But that’s a practical economic problem–Hegel’s not needed to get you there. Philosophy in general–not that I’m knocking it as a field–is unnecessary to get you there, and seems rather a roundabout way of doing so. Economics gets you straight there without any need for moralizing and positing of unprovable claims.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                What’s the difference?  I claim there’s no moral difference, only an economic one.

                Since we’re down the side track, and since I still have other stuff to do today, I’m going to have to ponder on this one.  There certainly is an economic one, and we could just sit on that fence, but I like the question.  My gut claim is that there is a moral difference, but explaining that will require a whole ‘nuther framework.

                Suffice to say when it comes to your own production, your future value knowledge is imperfect in a way that can impact you differently from your future value knowledge about stocks, like you brought up elsewhere in this thread, but that’s shorthand for a large discussion.Report

              • Avatar James Hanley in reply to Patrick Cahalan says:

                Suffice to say when it comes to your own production, your future value knowledge is imperfect in a way that can impact you differently from your future value knowledge about stocks

                Yes, but the person purchasing my knowledge suffers from the same lack of knowledge. Neither side has an advantage–it’s a level playing field so it’s fair.

                On a related note, somebody here (maybe you) brought up the creator of Spiderman, and how he never got much value from it.  But that assumes that he in fact could have produced that kind of value had he kept control of Spiderman.  If I create a new superhero (Koala Man!), but am not much good at building intriguing story lines or at marketing, so I sell my creation to someone else who is, how much of the resulting value have I created vs. how much that other person has created?

                The mere fact that vast future value resulted from Spiderman is not evidence that the guy who originally drew up the character had much to do with creating that value.  The argument about uncertainty of future value seems to assume he does, but that’s not a sound assumption. The very quality of the character concept may be a major causal factor, but then again it may not be.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

                Yes, but the person purchasing my knowledge suffers from the same lack of knowledge. Neither side has an advantage–it’s a level playing field so it’s fair.

                That’s assuming that they suffer from the same lack of knowledge.  Well, to be precise, they possess capabilities that enable them to lowball you, because your barrier to entry to do what they can do was historically very high.  And some of those barriers were erected by the very entity that is using that barrier to lowball you.

                If I create a new superhero (Koala Man!), but am not much good at building intriguing story lines or at marketing, so I sell my creation to someone else who is, how much of the resulting value have I created vs. how much that other person has created?

                Fnord.

                This is part of the problem; it’s indeterminate, in the general case.  In a specific case, you can make all sorts of plausible legal, moral, philosophical arguments supporting a variety of value distributions.Report

        • Avatar Patrick Cahalan in reply to James Hanley says:

          Er, what I said was, “Hegel’s argument is that it can’t be done reasonably justly”, and that I agree with him.  I see the inevitable conflicts that arise from allowing these sorts of contractual obligations to be both unnecessary (in the framework of providing incentives for people to work in artistic fields), inadvisable for those people for reasons similar to Hegel’s.

          As to “You can’t tell me I can’t sell part of myself without substituting your judgement–about my life–for mine.” you can make the same exactly claim that I can’t let you sell *yourself* either.  Are you going to make that claim?

          Even if you were… in the event that there is a conflict between what you think you should or should not be allowed to sell, and what the greater society thinks you should or should not be able to sell, there’s going to have to be some mediation process involved to rectify that conflict.  If it’s democracy, I’m voting for, “You can’t do that”.  But hey, that’s just me.

          That doesn’t mean it can or cannot be the law.  Just that if we make that the law, there are unjust outcomes that we’re making legally permissible.  Why should we do this?

          Should we allow the government, or any agency for that matter, to sell plots of land on Titan?   How far in the future and how nebulous of a product can we permit in our system of transferred entailment, as it were?

          Given that the future expected value of works of the mind, in particular, is completely unknowable (look at Stan Lee again -> he sold the rights to Spiderman back before making videogames about Spiderman were a possibility -> can you justly say he sold something that didn’t yet exist?), can we not also take a fairly libertarian stance that you can’t sell it because you cannot know what it is worth to you, and thus you can’t have an equitable market exchange because not only is perfect information impossible, but reasonable guesses are likewise completely out the dang window?Report

          • Avatar James Hanley in reply to Patrick Cahalan says:

            Pat,

            Let’s set aside the extreme example when what is at stake is the small partial example.  There was a recent discussion here about whether government should enforce a contract for slavery, with reasonable arguments against.  But the argument that I can’t sell part of myself is disproven regularly.  I can sell sperm–my DNA, for god’s sake. I can sell my blood. Were I female I could sell my eggs (with some mild legal subterfuge to throw a thin cover over the “selling” part to avoid offending moralist sensibilities).  I sell my time and labor.

            If you’re going to say any of that is ok, then you’re going to have to draw the lines, and you’re going to have to do the yeoman’s work–which I don’t see yet, although I admittedly haven’t read each of these posts carefully–of explaining why your moral approach trumps my “it’s my decision about whether to transfer away future value” approach.  You come to the conclusion that it’s unjust, but you haven’t grappled with a comparison of injustices.

            Given that the future expected value of works of the mind, in particular, is completely unknowable (look at Stan Lee again -> he sold the rights to Spiderman back before making videogames about Spiderman were a possibility -> can you justly say he sold something that didn’t yet exist?)

            And someone back in 1978 sold a bit of Apple stock, not knowing how valuable it would become; therefore that sale was unjust, and….we should ban sale of stock?  Because the IPod, etc., certainly didn’t yet exist, and the stock is a claim to some of the value of what was later created.  If your standard is the unpredictability of future value you’ve gone off on a dead-end, because future values are always and everywhere unpredictable.

            Should we allow the government, or any agency for that matter, to sell plots of land on Titan?   How far in the future and how nebulous of a product can we permit in our system of transferred entailment, as it were?

            Check it out. And the reason why it’s so cheap is because buyers know the probably that their claim, hence their likelihood of gaining value from that claim, will be legally enforceable is mighty damned low.

            can we not also take a fairly libertarian stance that you can’t sell it because you cannot know what it is worth to you, and thus you can’t have an equitable market exchange because not only is perfect information impossible, but reasonable guesses are likewise completely out the dang window?

            I’m sorry, but if I nobody can make a reasonable guess about future value, then how is it just to force me to not transfer it?  Requiring me to keep it is just as much an economic decision as allowing me to trade it, and yet it cannot be premised on any better information–so if the information is insufficient to justify me selling it, then the information is insufficient to justify requiring me to keep it.  And when it comes to unavoidable uncertainties about economic value, who are we going do defer to? The individual who’s economic interests are actually at stake or someone who doesn’t have an economic stake in the issue?

            Property’s an economic concept. Even your whole argument about value is treating it as fundamentally an economic concept.Report

    • Avatar Mike Schilling in reply to James Hanley says:

      Because the end result of that is John Fogerty being sued for plagiarizing himself.Report

      • Avatar Patrick Cahalan in reply to Mike Schilling says:

        That’s one of the more famous examples of necessary and avoidable bad outcomes avoidable bad outcomes that are necessary when artist can sell permanent rights, yeah.Report

      • Avatar James Hanley in reply to Mike Schilling says:

        An ironic outcome, but I see no explanation for why it’s a “bad” outcome.  Irony ain’t necessarily bad.Report

        • Avatar Patrick Cahalan in reply to James Hanley says:

          Well, Fogerty won the case, so one can certainly say it’s an exception scenario that is improbable and hey, the system corrected for it.Report

          • Avatar James Hanley in reply to Patrick Cahalan says:

            He also lost.  So the question is, did he come out ahead, behind, or even?Report

          • Fogerty’s defense:  Steal from others, it’s plagiarism; steal from yourself, it’s style.

            Bringing his guitar to the witness stand, he played excerpts from both songs, demonstrating that many songwriters (himself included) have distinctive styles that can make different compositions sound similar to less discerning ears. [Wiki]

            Report

            • Avatar James Hanley in reply to Tom Van Dyke says:

              And his argument is not entirely unreasonable.  In economics there is the theory of incomplete contracts, which is the idea that no contract can ever be complete, in that it is impossible to account for every possible eventuality or interpretation.  So the question in the case is “what elements of the song were included in the copyright and which weren’t,” a question that was not perfectly defined, and therefore had to be decided by judges.

              Cases like that are of great interest, being at once funny, thought-provoking, and revelatory of the imperfectness of human institutions. But ultimately they’re not really critical. They help define the boundaries of law, but are not a fundamental challenge to the justness of the law.

              Fogarty v. Fogarty ain’t no Dred Scott.Report

    • Avatar DensityDuck in reply to James Hanley says:

      “So you’d deny the artist/inventor the right to sell all their rights in what they’ve created?”

      Discussed in the earlier posts, and his answer was “yes”.

      Apparently since you can’t forget how you made something, you can’t ever stop yourself making copies if you want, and therefore it’s impossible to “sell” the rights to something (in the sense of “create an enjoinder against anyone else in the world producing a copy).Report

  3. Avatar Kyle Cupp says:

    Back in my more ontological days, I would say that artistic objects such as fictional characters have “inter-subjective being.”Report

  4. Avatar A Teacher says:

    On the subject of creative works and their contained parts, I’m not sure I agree that one can simply pull a character out of a creative world and say “Hey I’m gonna take advantage of years of work developing this person and then go off and make some money by simply going the next step.”

    Case in point:

    I’m working on a novel now with the working title “Queen’s Fury”.  It’s intended to be a bit of Star Trek, a bit of Star Wars, a whole lot of Jack Aubrey, and a dash of Horatio Hornblower with a nice dash of BDSM tossed in for that spicy kick in the right places.  The planning of this book alone has taken up the bulk of my “writing time”.  After, I guess, 20 hours or so of dedicated time on it I have one chapter finished.  However I also have a half a notebook finished of background information, ideas, explanations, notes from phone calls with (Literally) rocket scientists, etc.

    Now, being that I expect to have to self publish I also tend to post a lot of stuff on the blog to get interest going as that’s my only hope of making a lick of money on this project:  People being fired up and wanting to read it and then telling their friends, and family and play date partners about it.

    So let’s assume that it gets out there and someone decides, after having done the few hour work of reading the book and a few more hours of my back blog entries that they’re going to write another book with the same characters doing something else.  They’ve short-circuited all of the work that goes into the creation of that world, those characters, and that setting.

    Is it “Stealing” my work?  I’m not sure that’s the right word, but what word fits?

    Or rather, as they start to make money on a work that is built off of ~my~ work, am I due any kind of compensation?  The current law allows me only to deny them to work, which I admit is problematic.  However, is there a better alternative?

     Report

    • Avatar Patrick Cahalan in reply to A Teacher says:

      It’s intended to be a bit of Star Trek, a bit of Star Wars, a whole lot of Jack Aubrey, and a dash of Horatio Hornblower…

      … So let’s assume that it gets out there and someone decides, after having done the few hour work of reading the book and a few more hours of my back blog entries that they’re going to write another book with the same characters doing something else…

      So they’re taking the hours of work you put into the project.  Is it really short-circuiting your work?  Let’s say they make a popular series, using your exact characters.  Can you leverage that into your own popular series?  If their series is popular, doesn’t this jump-start of the network effect actually increase the chance that you can monetize your own creation?  If someone else had written a story about Harry Potter, and then J.K. had produced her series… would the original author have a better chance, or worse, of creating their own successful series?

      (edited to add)

      Think of Spiderman, here. The character is 50 years old. There are still innumerable official and unofficial Spidey-related things going on. Only a very minimal amount of that money went to the guy who invented Spiderman, the original character, in the system we use now. But Spidey has gone through how many different incarnations? Stan Lee and Steve Ditko invented the original character, but the vast, vast majority of the stories that have been written about Spidey weren’t written by either Stan Lee or Steve Ditko, but lots of other writers. Were they stealing from Stan and Steve? And, on the point of ownership, wouldn’t it make more sense for Marvel to be able to produce Marvel’s Spiderman stories, but Stan Lee – if he so chose – to write a whole new incarnation of Spiderman that wasn’t entailed by Marvel?

      (/edited)

      Did Coldplay steal from Joe Satriani, and if they did… did Joe steal from Cat Stevens?

      What is your proposed compensation to the creators of Star Trek, Star Wars, Jack Aubrey, and Horatio Hornblower for the hours of work (probably multiple man-years, all told) their respective artists put into their creation, which you yourself have distilled and adapted to create your own work?

      At what point, if any, is “what is being done to you” vs “what you have done” differentiated between “stealing” and “fair use”?

      None of these are intended as accusatory, I’m just asking you to flesh that out some.

      Hegel waves his hands and writes most of this off as a debt on honor (he talks about plagiarism, in the context of academia).  Nowadays we have the idea of creative commons with attribution.

      To be fair to you, I don’t want to take away the work you put into something.  I’m not entirely certain that anything is being taken away, however.  If someone buys 10 novelizations written by your character bogarter, and one written by you, does it matter?  Does it matter if they write 50 and you write 50?  Do you think that means 10 of the 11 possible purchases were taken from you?  I don’t know the answer, myself.

      Let me go back to the framing: would you find it just if you were reasonably compensated for the work you did, regardless of what happened to the work, the characters, the world, etc., after you let it free from the mind prison in which it arose?  If you say “yes”, then provided this happens, do you care about the mechanism?Report

      • I realize the (humorous) irony of saying “don’t take my work” in the same post where I describe my original work in terms of what has come before.

        That said, I am taking pretty big pains to be sure that my work is “inspired by” rather than “derived from”.   In fact I’m very aware of the Honor Harrington series which has many superficial similiarities to my own work (main character has a virtue name, and is part of a galactic imperial kingdom that uses wormholes to get around the galaxy), but I also know that once you scrape off that top layer there is very very little in common (for example the wormholes that Honor uses are stable natural ones, where my heroine Mercy Lyons gets around in temporary artificial ones).

        But the problem you run into with fanfic, which is what we’re really dealing with here, is the combination of “piggybacking” intellectual work (ie I won’t create a world, I’ll just build on someone else’s work without their permission/ liscensing/ compensation) but it’s also a reverse of the networking effect.

        Example, let’s say that the Queen’s Fury goes on to inspire a culture shifting series of books and movies.  I become as popular as Roddenbury, Rowlings and (being humble) Wells (HG ~and~ Orson).  So someone decides “what the heck” and publishes a book called “The Republic’s Blade” with the caption “Based in the world of the blockbuster best seller Queen’s Fury”.  Already he has a leg up.  A ~big~ leg up.  Because there’s not a lot of question about the world.  It’s a world that we all know and love.  It’s a Best Selling World.  He (or she) is going to sell books on the strength of my work alone.

        Now, let’s say that “The Republic’s Blade” is a total flop.  It’s garbage.  It’s horrific garbage.  It’s garbage that makes actual garbage embarassed to be called garbage.  So when I put out the next book in the Queen’s Fury line, people might pause.  Was the Blade part of that?  How did the flop of the Blade impact this new book?  Is it over for the Queen’s Fury line?

        You’re right, I ~could~ leverage his networking to make more on my own work, provided that said networking is quality.

        If it’s not, I’d be a fool to let it out there.

        And that’s why the concept of “Intellectual property” becomes very valuable to me as a content creator.  I want to protect my investment.  I want to be sure that if anything that has my work affiliated with it is indeed of quality so that my work is improved by it.

        Now, how does that jive with describing an original work in terms of what’s come before?  Using myself as an example, I hope that when someone reads the Queen’s Fury they can see the influences that helped ~create~ a new world but not read it and think “wow, what a rip off”.  It’s a fine line given how much has come before and the inherent challenge to build on what’s not done rather than simply take.

         Report

        • Avatar Patrick Cahalan in reply to A Teacher says:

           It’s a fine line given how much has come before and the inherent challenge to build on what’s not done rather than simply take.

          Granted.

          Hell, this whole question would be a lot easier if all participants where honorable and met their obligations to their predecessors and antecedents with gentlepersonly aplomb.  I have a hard time with accusations about different persons’ positions relative to that line, particularly when it comes to the “bust out the lawsuit” cases.

          So when I put out the next book in the Queen’s Fury line, people might pause.

          Yes, they might. Some might. Some might not. Some might start a whole social networking flashmob campaign on, “Support only the TRUE BLOOD OF THE FURY LINE!”

          Part of the difficulty in this space is that there is not a good predictive algorithm to assign any sort of probability to that… just like there’s now way to assign a predictive probability to the odds that they’ll wind up helping, you either… so you can’t exactly do a Bayesian analysis and say, “Net large, this is a win, so let’s go this way.”

          All you can do is go with your gut. My gut says that in the long run, across all instances, more content creators would benefit, overall, from derivative works pushing their own works up, than would content creators suffer. The outliers would be at the high end; J.K. Rowling probably wouldn’t be a billionaire, but she’s probably still be a multi-millionaire… and we’d be trading that off for many more people who would be thousandaires. Is that a just tradeoff? Since those people would all be… by and large… doing their own work, I’d say “yes”. But one can certainly reasonably claim the opposite.

          The case is much fuzzier for art than it is for invention.Report

          • It is silly that Sherlock Holmes isn’t in the public domain by now.

            Or is he?  All but one of the books are.  But estate says no, and is still taking payments for the character from the litigation-conscious.    [2023 seems to be the drop-dead date regardless.]

            http://www.hollywoodreporter.com/thr-esq/legal-fight-brewing-cbs-new-283966?page=2

            http://io9.com/5189514/the-truth-about-star-trek-and-sherlock-holmesReport

            • Avatar Mike Schilling in reply to Tom Van Dyke says:

              The rule for books is pretty simple: 1922 and earlier is public domain, 1923 and later copyright-eligible (the copyright needs to be registered and renewed.)  Thus, all the Holmes books except the last (The Case Book, 1927) are PD and available at gutenberg.org.

              I don’t begin to understand the combination of copyright and trademark that applies to characters.Report

              • Avatar Will H. in reply to Mike Schilling says:

                The pre-1976 rules were 28 years, then a 28 year extension could be applied for.
                I think this is actually a better system.
                The post-1978 rules attached the length of copyright protection to the lifespan of the author, which I find is contrary to the purpose of the authority to establish copyright protection.Report

              • Avatar DensityDuck in reply to Will H. says:

                And, for those “international law” fanboys, the post-1978 rules were specifically created to bring US copyright practice into alignment with European practice.Report

              • Avatar Patrick Cahalan in reply to DensityDuck says:

                And, for those “international law” fanboys, the post-1978 rules were specifically created to bring US copyright practice into alignment with European practice.

                And the European practice was lobbied for by whom?

                From a grand historical perspective, I look at countries like China (see Ward’s comment), England, and Prussia as the big three examples.  China got it wrong.  England got it wrong.  Prussia got it closer to right.

                The U.S., in its early days, cared not at all for international copyright.  It’s only since the 1900s when media companies started becoming powerhouses here that copyright law started to get tighter and people started paying attention to the negative aspects of playing well with the international community.

                I agree an international standard is desirable, all other things being equal.  I think the current international standard sucks, though.Report

              • Avatar DensityDuck in reply to Patrick Cahalan says:

                “And the European practice was lobbied for by whom?”

                Victor Hugo, who thought that copyright should be automatic and perpetual so that artists would be able to focus on creating instead of worrying about the rights status of their work.Report

          • True but it there’s also the ancilatory issue of who would licence what to whom?

            I might never open up rights for others to write a Queen’s Fury novel.  Or I may go the Star Trek route and make derivative works incredibly laborious to get rights to.  A friend wrote a ST: Voyager novel and after the billions of edits, rewrites and copy changes swore he’d never do it again, no matter how well it sold.  I respect that Rowlings has taken a similar attitude with her work.  Go for it for free on FanFiction.net.  Try to make a penny and you’re humped.

            Which is a shame as I had a wonderful idea for a story based in the Potter-verse crica 1941 running on the question:  How would proper British wizards and witches respond to the cries for help from across the channel?  And could a muggle hide in Hogwarts with proper assistance?

            And I could write it as fan fic and get some press, or I could make enough changes from the Potter-verse to still tell the story I had in mind.

            Which brings us to what proves to be a possible awesome test of all of this in the international courts.  Fifty Shades of Grey is a break out steamy romance novel (with a few alternative themes) that was originally published as Twilight Fanfic.  It’s also been optioned as a movie.  You know that the lawyers have to be settling up to figure out how to proceed and surely have done some testing to see if Meyers (Twilight’s oringial author) is due any part of the (insane) profits from a work that in it’s original form starred two of her beloved creations.

             Report

        • Avatar Murali in reply to A Teacher says:

          A look at star wars is instructive. People like Tomothy Zahn’s stuff, but don’t think much of Kevin J Andersen’s. So, even though it is the same verse, people know to avoid Andersen’s work. Although, given that Andersen does produce a lot, people might start avoiding all EU stuff.Report

      • Avatar wardsmith in reply to Patrick Cahalan says:

        Personally I believe Cold Play stole from Satriani and have little doubt that Joe got a nice paycheck from them. In fact Cold Play pretty much steals from every one and I heard Bono making a joke about it once, but can’t seem to find it on the net right now. That said, The Chiffons suing George Harrison for “My Sweet Lord” vs their “He’s So Fine” was even less egregious of a violation and George lost. In the Playboy interview John Lennon sort of made fun of George, said he knew exactly what he was doing and shouldn’t have done it.

        Since I have owned and/or founded several companies directly involved in intellectual property and selling of same I have a personal and vested interest in this subject. I’m deciding if I want to reply at the length needed to essentially refute all Patrick’s points. He is right about the business methods bullsh’t patents that should never have been granted. My company wrote and implemented a shopping cart application in 1994 that implemented and predated Amazon’s “One click shopping” patent. When our customer got big enough to attract Amazon’s attention they sicced their lawyers on them, but literally scampered away when they realized the much earlier implementation completely invalidated their patent. They eventually wrote a letter “offering” to allow the company to use the technology they (actually we, their for hire inventors) had created in perpetuity. On the other hand there would be no value whatsoever for Company X to sue Amazon. Best to let sleeping dogs lie, Amazon is a 900 lb gorilla and could easily afford to bankrupt the other company in legal proceedings. Our “Justice” system has little to do with “justice” and should rightly be spelled “Just Us”.Report

    • Avatar DensityDuck in reply to A Teacher says:

      ” The current law allows me only to deny them to work, which I admit is problematic.  However, is there a better alternative?”

      The current law allows you to deny them to work.

      The current law also allows you to form a contract by which they are permitted to work, but must compensate you for the use of the products of your labor (in this case, the characters and settings and concepts produced by creative labor.)

      Which means that first you send them a stop order, and then you send them a contract, and maybe the two of you negotiate the particulars of that contract, and then either they sign (and proceed) or they don’t sign (and they have to come up with other ideas.)Report

  5. Avatar DensityDuck says:

    “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.”

    If I buy a hammer, it sits in the cabinet until I need to drive a picture hanger into the wall, which happens maybe once or twice in a year.

    If a construction worker buys the same hammer, it’s a vital part of how he makes his living.

    And yet we both pay the same for the hammer at Home Depot.Report

    • Avatar Patrick Cahalan in reply to DensityDuck says:

      Yes, that’s true.

      However, there is nothing preventing me from becoming a construction worker and using that hammer the way they do.  In a sense (admittedly, this is just “a” sense, not “all senses”), the difference between the utility (to me) of a hammer and the utility (to a construction worker) of a hammer are disjoined, as well.

      It is certainly true that no system of remuneration for goods or services will be, ultimately, a 1-1 correspondence with a just exchange.

      However, the market system works within some delta of reasonableness for physical goods and services, and another delta of reasonableness for works of the mind.  I assert that the differences between the two deltas is significant enough that it matters, practically speaking.

      Your mileage may vary.Report

      • Avatar DensityDuck in reply to Patrick Cahalan says:

        “…there is nothing preventing me from becoming a construction worker and using that hammer the way they do.”

        And there was nothing preventing you becoming inspired by Buckaroo Banzai and using it to embark upon and inform a film career just like Kevin Smith did.

        Let’s go further.  I and Jackson Pollock both buy a pint of house paint.  I will use it to touch up the wall.  He will use it to create a painting that, because it’s got his name on it, will sell for three hundred thousand dollars.  Does the paint store get to charge him extra?Report

        • Avatar Patrick Cahalan in reply to DensityDuck says:

          Are we talking about legally or as a matter of justice?

          Legally the paint store can charge him whatever they want.  Just like they can charge me whatever they want.  We don’t generally force people to charge the same amount to every customer, now do we?  If we did, volume pricing would be flat out illegal.  Club cards would be verboten.  Practically, since most people are buying buckets of paint at comparable prices, Jackson Pollock benefits from that market force and he gets paint pretty cheap.

          As a matter of justice, Jackson Pollock adds a lot more value to that bucket of paint than I do, so he should justly be compensated more for it than I would be.  Is that perfect justice?  I’ll not claim that it is in any way.  Is it unjust enough that we ought to consider revamping our system of economics?  Freddie thinks so.  I don’t.  Hey, that’s just me.

          Hey, if I take a picture of that Jackson Pollock painting, can I sell it?  If I write a song inspired by that painting, can I sell *that*?  If I sit down and examine every brushstroke of Pollock’s work and come out after 10 years study making Jackson Pollock quality paintings, do I owe Jackson Pollock?

          Where do you draw the line, Duck?Report

          • Avatar DensityDuck in reply to Patrick Cahalan says:

            “Are we talking about legally or as a matter of justice?”

            See, I’d say that justice would mean strong property protections applied to creative works, ensuring that creators are given the chance to recover the value of their efforts.

            “As a matter of justice, Jackson Pollock adds a lot more value to that bucket of paint than I do, so he should justly be compensated more for it than I would be.  ”

            But we’re not talking about what he gets paid.  We’re talking about your apparent claim that the paint store deserves more money from him due to the value of the product he plans to eventually produce with the paint.  Because when you make the argument that pricing creative work is impossible due to the extreme range of utility of that work, you’re saying that pricing anything depends on the value of the use to which it is put–and that if a price turns out to have been too low then it’s “unjust” or “dishonorable”, so much so that we shouldn’t allow a price to be set at all.

            And sure, maybe the paint store says “oh hey, you’re a Famous Artist, that means you pay three times as much for paint because you’ll make a ton of money out of it”.  But that is not denying the idea that the artist can expect to derive income from his creative labor.  (Indeed, it’s entirely dependent on it.)Report

      • Avatar Jeffrey Straszheim in reply to Patrick Cahalan says:

        I don’t know. I think the “different values for different people” is far more pervasive than you do. It is certainly not something I would single out for creative products.

        What is the worth of an airline flight to Tokyo. To me, a mildly curious tourist? Or to my friend, who flew home to see her dying father one last time?

        Every so often it helps to set down the economics book and look at the people around you.Report

  6. Avatar Jaybird says:

    There are two ironies that get stuck between my teeth here and I work at them.

    The first is that it seems obvious to me that there’s nothing really new under the sun and all works are more or less derived from other works or historical events or something else external to the author. Occasionally you get something that has more originality than the mean, but the mean itself is very, very, very derivative. Disney got off the ground doing what? Taking public domain stories, prettying them up, retelling them, and then copyrighting the holy hell out of them… and then *EXTENDING* copyright the second that copyright looked like it might expire. I mean, the act of retelling an old story is awesome. I love it. I wish that there were more of it… but then keeping other people from retelling their versions of Disney stories? That ain’t right. We should be able to tell our own “The Seven Dwarves Remixed” story where we can tell a story of one of their adventures where they fought “The Black Huntsman” or something. There are more stories to tell there.

    The fact that I can lose my shirt if I animate The Seven Dwarves vs. The Black Huntsman and try to sell it strikes me as fundamentally wrong.

    That said, our very own Tony Comstock stopped making movies because the government would not prevent others from downloading them illegally. Instead of continuing to make his movies, he shrugged and started a boat business. Good for him, of course. More power to him and whatever choices he’s willing to make… but the fact that people were “stealing” (for lack of a better word) his art without remunerating him meant that he stopped making art.

    There has to be protection for people… lest they shrug. The problem is that when we institute this stuff officially, it gets captured and turns into “perpetuity minus one day”… which results in stuff like people stealing from small artists and the government protecting the big ones.Report

    • Avatar Patrick Cahalan in reply to Jaybird says:

      The problem is that when we institute this stuff officially, it gets captured and turns into “perpetuity minus one day”… which results in stuff like people stealing from small artists and the government protecting the big ones.

      This is one reason why I found/find Hegel’s distinction about “selling things for a contractually limited amount of time, and then only the production rights” and the idea that copyright dies with the author (exigent circumstances acknowledged) to be a philosophical point that had compelling practical outcomes.

      If I can’t sell you wholesale the rights to something, (particularly when “you” == “a corporation with no death”) at some point the rights have to revert back to me, or they go into the commons.  This prevents the long term monopolization and aggregation of content.

      Now I also feel for our resident boat-builder, but he never really answered the question I put to him: if he had a way to ensure economic payback for the stuff he creates, would he still make art even if it went straight into the commons?  Is his practical objection (I don’t know that I can continue to make a living off of this) more or less important than his philosophical objection (I made the damn thing and its mine, people shouldn’t be able to make copies of it)… which, to be clear, he didn’t seem really invested in, himself.  Although other people who make content certainly are.

      I mean, if the problem is, “How do we pay people to make stuff like this”, I contend that we’re getting (slowly) to the point where this is going to be a near-universal question anyway.  At some point, robots are going to make everything that *isn’t* stuff like this (unless you believe the Singularity guys, in which case they’re be making that stuff too and this whole conversation is kind of moot).  Thinking about this problem now is probably a good idea.Report

    • Avatar DensityDuck in reply to Jaybird says:

      “The fact that I can lose my shirt if I animate The Seven Dwarves vs. The Black Huntsman and try to sell it strikes me as fundamentally wrong.”

      You might want to pick another example.Report

      • Avatar Jaybird in reply to DensityDuck says:

        Oh, I can retell “Snow White and the Seven Dwarves”, if I want. Those old fairy tales are still in the public domain. (When I was a little kid, we had a record telling the Seven Dwarves story with completely different dwarf names. (“We’re seven little dwarves no bigger than your thumb, twiddley dee twiddley die twiddley dum dum”))

        But I can’t tell a story using Doc, Grumpy, Happy, Sleepy, Bashful, Sneezy, and Dopey.

        And there are stories to be told, dangit!Report

        • Avatar Will H. in reply to Jaybird says:

          The story itself is separate from the telling of the story.
          If you’ve ever had that experience of sitting around a campfire at night, you know it’s well understood who the storytellers in the group are.Report

    • Avatar Mike Schilling in reply to Jaybird says:

      That said, our very own Tony Comstock stopped making movies because the government would not prevent others from downloading them illegally

      He went into the boat business to keep away from pirates?Report

  7. Avatar wardsmith says:

    Re: Cain’s Arcade and the work Nirvan did to popularize him. Clearly Nirvan already has gotten something out of this, he was an obscure film producer of odd works and to me it is beyond Kismet that he does a creepy short called The Box Man, and then meets The Box Boy building arcades. And Cain has already spawned imitators along with his fans who have contributed $130K to his college fund (and God bless us every one). I don’t think Nirvan has made that much (yet) by any means, but he will – in spades. Personally I couldn’t think of a better example of one hand washing the other in modern business culture.Report

  8. Avatar Will H. says:

    The way that copyright laws are currently set up is insane. There’s no reason for it.
    I know very little about patents and trademarks, but copyrights are insane.
    There are different sides to this though.

    Here is the best song that the Dixie Dregs ever did. It was released on Dregs of the Earth, 1980, last song side one. When Arista updated its catalog, it was one of the many that was dropped (along with what is probably the coolest album art of all time, Hawkwind’s A Space Ritual). This was in ’82, I believe.
    For years and years, I searched and searched for this one piece of music, never to find it. I finally found it as a limited edition Japanese print with original album cover art, and it cost me something like $40. “Old World” is about the only other thing I really care to listen to from Dregs of the Earth, so it’s no stretch to say that I bought the thing for that one song. This is one of those that, when I was in high school, I would listen to it every day, laying in the floor with the speakers pressed up against my head. It’s one of the pieces (along with an instrumental by Camel, and a piece by Gentle Giant) that I have requested to be played at my funeral (and when you have to walk into a court and testify against the cops, it makes you think of things like that; ymmv).
    Now, I know enough about record contracts (from the artist’s side of it) to know that Morse & the band are getting paid at breakage rates (if at all) for the import CD I bought. They were paid half of what they would have received for an American pressing. So, even though I paid 3x the cost of a CD, the band got paid 1/2 x.

    From the company angle, there are record companies out there, notably Cleopatra, that specialize in re-issues. A lot of the old Joe Satriani stuff is available through there; the American edition of Kreator; the old Megaforce catalog. They’re supplying a valuable service.
    That said, there’s not enough companies around doing that sort of thing to keep up with demand; hence the paying of 3x the going rate for a CD which I should have got at the half-price bargain bin.

    From the artists’ side of it, I hold copyright on material going back to 1981. I have several collections of material that I got the certificate for in 1996 – 98 (though quite a lot of that is older material). I made a few false starts several years ago, but nothing really ever panned out. It’s still feasible that that material might be released at some point. To bring it to market s going to take some money– not only money in the sense of an outlay of cash for production, but enough to free up my time to where I could work on it (which is the real driving factor of the expense).
    I don’t want to put my material in the public domain until I’ve had my cut.
    These days, I’m more of the mind that I would prefer not to put the majority of the works into the public domain, either due to my own assessment of the material or a curmudgeonliness acquired through the years. You’re welcome to it when I say you’re welcome to it, and I don’t want an inferior product on the market as representative of my work.

    As I said, there are several different sides to it.
    I’m not indifferent. I believe the interests could be balanced in some way.
    But the current set-up is insane.Report

    • Avatar BlaiseP in reply to Will H. says:

      Robert Fripp has thought through this problem for a good long time.   Discipline Global Mobile was the result.Report

      • Avatar Will H. in reply to BlaiseP says:

        That’s a workable model.
        The weak point is that tour finance is lacking. It’s tied to unit sales in this model; an increase in royalty rates (which run typically from 3.5 to 5%) in exchange for greater ownership stakes and no tour finance.
        I might work for artists that can already generate sales of >20k units.
        Oddly, every record contract will have auditing provisions, but the expense of an audit effectively nullifies that.
        Conversely, on each and every occasion that I, personally, am aware of, an audit of the record company results in a net gain for the artist.Report

        • Avatar BlaiseP in reply to Will H. says:

          Touring is a racket.  LiveNation and Ticketmaster are the unopposed dark lords of that land.Report

          • Avatar Will H. in reply to BlaiseP says:

            It’s still where the money is at.
            By my calculations (which, granted, may be a bit off), it would take (for the artist) 64,000 premium unit sales to come up with the same cash as 120 shows / yr (what I would call a light schedule) at $1200 / night (which may be top billing or really getting screwed, depending on the venue).Report

            • Avatar Patrick Cahalan in reply to Will H. says:

              Don’t get me started on Ticketmaster.Report

              • Avatar Will H. in reply to Patrick Cahalan says:

                I tend to look at Ticketmaster more as a distribution deal done on a case-by-case basis.
                The part that I really don’t like is where they contract with with the venues for exclusive distribution.
                If you look at the listings for venues in the 1500 – 3000 seat range, most of them will offer a variety of packages. The package may include power source, ticket printing, security, or any of a number of things. The typical Ticketmaster contract will zero out the box office sales. It’s not right.
                That doesn’t mean that an added premium for distribution is bad.
                It worked really well for Goose Island.
                I live in a little town out in the county, and I like dark beer. Translation: I am so screwed. If I hit Springfield or St. Louis, I’ll typically spend $120 or so on beer while I’m there; Iowa City, I’ll drop $300 easy. If I’m going to Milwaukee, I’ll call ahead to A&J Polish Deli and have them ready up a care package for me, something in the $200 – $300 range.
                And you consider a big company like Carlsberg owns Okocim, and yet it’s still so difficult to find– non-existent out in the county.
                The distribution system leaves much to be desired. To the consumer, at any rate.Report

            • Avatar BlaiseP in reply to Will H. says:

              If the artists had any sense, they’d work the broadcast to movie theater angle.   Set up a small venue for the actual live performance, bring in a three camera setup and a Dolby 7.1 mic setup, park the broadcast van outside and pipe it to dozens of theaters.  Prince worked this angle to great success. I went to one such concert in St Louis, people out in the aisles of the theater, dancing, much hoopla and costumes and far too much fun being had by all involved.

              Thing is, it could work like the pay fights piped into bars and suchlike — but the sound systems in such venues are crappy.   Ticketmaster couldn’t touch this model:  theater owners cut their own deals.Report

              • Avatar Will H. in reply to BlaiseP says:

                You would need a different sound guy working off the board.
                You can bounce two channels to another board and touch it up from there.
                That’s the way I mix drums. Only way I know to do it, actually. Probably a limitation of the boards I’ve worked with.
                Man, is it hell to go back to a four-track after working with a 16-channel board.Report

              • Avatar BlaiseP in reply to Will H. says:

                Get Ardour.   Compile up a low-latency Linux kernel and you’re off and running.   You’ll never look back.

                 Report

              • Avatar Will H. in reply to BlaiseP says:

                I had an experience back around ’97 or so where I burned up a power supply by pumping too much signal into an input. This was using an old four-track Tascam to step down the signal before feeding it into the desktop, mind you.
                What I’m saying is that I need some assurances that I’m not going to smell that scent of burning electronics before I even consider this.
                I never got the vocal tracks laid on that demo.

                Have you tried this yourself?Report

              • Avatar BlaiseP in reply to Will H. says:

                I use Ardour.   Here are a list of sound card manufacturers which are ALSA compliant, which means Linux-friendly.   Loads to choose from.  Everything goes straight to the stereo input jack on your sound card.

                I’d recommend the Harrison Mixbus add-on for Ardour for mixdown.

                 Report

              • Avatar Patrick Cahalan in reply to Will H. says:

                I know a bunch of linux-techno geeks who have been hooking up everything up to a computer since forever.  They can probably recommend a whole slew of stuff.Report

              • Avatar Will H. in reply to Will H. says:

                I’ve used Cakewalk 7 and Soundforge 5 for a number of years (obviously). I have a Tascam 4-track and a Boss DR-5 soundbox. I’m used to working with an Alesis 16-channel mixer, and I can tell you in two words why I like it so much: para-mid sweep.
                Cakewalk takes care of all the sequencing work, and it will mix 8 tracks of audio. Soundforge is to touch up the audio before importing it to Cakewalk. The DR-5 is the sound module.
                Recording involves a few steps that live sound doesn’t have. The reason for this is because I can.
                I’ll record a track dry, and depending on external circumstances, I’ll run from the line out from the amp (which is how I burned up the stuff mentioned earlier) or mike (SM-57 or an old EV) the back of the cabinet (the front of the cabinet is for projection, it sounds better from the back). The dry track goes into three tracks on the Alesis.
                For track 2, I’ll turn the hi’s to -15 & the lo & mid to +15, then sweep the mids in the upper range until I find a spot I like. Once I’ve got my sweet spot on the mids, the hi & low go to 0, and the mid to -15. Then I alternate bringing the mids & lo’s up until I go over, then trim them back. Track 3 gets the same treatment, except in reverse; the lo’s go to -15 to start, and the mids are swept in the lower range.
                The end result is a dry track, one scooped a bit high, and one scooped a bit low. Those three get mixed with the faders, and it goes to a wet track for the final mix.
                When I’m recording drums or a sequenced track, I’ll run the dry track through an amp to give it more ambience. Then I’ll start with six or nine tracks and mix them into two.I might be able to get a better sound some other way, but this gives me the control and reliability that I need. If I had any problems with the sound, I would be doing something different. It’s a flexible method.
                The final mix is more about setting levels and identifying problem areas.

                I learned computers on the VAX system, back in the days when Windows 3.11 was a big thing. Windows 98 and XP were the only versions that I really ever liked. I don’t like things being automated without letting me set the options.
                I feel comfortable at the command prompt, and I (used to) know enough C and Basic to do a few things.
                But I’ve never made the jump to Linux. Seems like an involved process with the disk partitioning and such. Too much could go wrong. I don’t want to end up with an unreadable disk.

                In some ways, I can be resistant to technology; notably with the Line 6 guitars. They seem to sound good enough and everything, but I just don’t understand playing an electric without pickups. It doesn’t make sense to me. I would want pickups on mine, even if they’re not wired in.Report

              • Avatar BlaiseP in reply to Will H. says:

                Here’s a strategy for starting out with Linux:

                I’m not sure where you live, but I’m sure there’s a Linux users’ group in the area.   Linux is an exceedingly helpful community:  as you may have concluded, we just think differently about the form and nature of how computers relate to human beings.   Linux always gives you seventeen ways of accomplishing a different task.

                Find that Linux user’s group, it should be as easy as googling “[your city] LUG”.   Attend the meeting.   Explain how new you are to Linux and how you were sent there by this elderly curmudgeon online.   Lay out your goals:  setting up a low-latency Linux recording studio.

                Several things will happen immediately.  At least two people will commence to disagree with each other on the proper approach to the problem.   Bring up the idea of starting with a low-latency Fedora.  I’m not sure which sound card you’ll find most to your tastes but that link I provided ought to give you some idea of what’s supported.   Here is another useful site, LinuxMusicians for investigating your options.

                Make the offer of pizza and brew to whoever will come over and help you gen Linux onto your box.  Nobody does this on his own the first time.  You’re always best-served to find a guru at the beginning.   If you come from the world of VAX and VMS, you’re aware of how involved the process of genning an OS can be.   Your sentiments about the Jump to Linux are simply caution born of rationality.

                Truth is, setting up Linux disc partitioning is not difficult:  modern Linux spins make the process trivial — trivial, that is, for someone who understands how discs mount, heh heh.  Ever mounted a drive in VMS?   Not much different.  Ever plugged in a USB thumb drive and watched it appear in Windows Explorer?   Same-same.   Under the covers, as with Windows, you need a device driver, a file system and a logical connection.  Linux mount is far more intelligent:  it can also mount file systems on other machines.

                Windows and Linux can peacefully coexist side by side.  From a cold start, you’ll be able to choose which OS you want to use at boot.  You also will be able to see your Windows drives from Linux, though the opposite is not true.   Windows is a bit retarded in that regard.

                As you doubtless understand, sound recording eats up a fair bit of disc space:  consider putting in another internal drive if your budget allows for it.  Yes, you can partition one drive, as you could in Windows if you wanted.   Don’t waste your time on such an approach.  Drives are cheap enough, and the Linux file formats are much superior, especially faced with your problem of low-latency recording and playback.

                Everything goes straight to and from the sound card.  I work in these stages:  MIDI click, MIDI composition and sysex, audio sample building, first mix, real drum recording, real guitar recording, real vocal recording, patching, overdubs, final mix.  I don’t like doing my own final mix.  By the time I’m done, I’m generally sick of the music.   I’ll take it to a decent studio in town, bounce the 24 bit tracks to their machinery and let someone else refine what I’ve got, maybe re-record vox and gtr.   Doesn’t require much fixing once I’ve got the work done in Mixbus:  if you’re used to the old-style desk, Mixbus is beautifully obvious.

                And keep attending the Linux Users’ Group.   You’ll find your Linux environment will become your own, as different from everyone else’s as you are.   I recommend  Fedora simply because it’s all set up for what you want to do, from the get-go and will soon be an out-of-the-box solution with the release of Fedora Audio Spin.   I plan to be a guinea pig for that spin.

                In the beginning all things are hard, say the Chinese.   Takes a while to unwind all those Microsoft Cargo Cult fallacies about the underlying complexity of things.   Linux is a universe of helpful people who were once helped in their turn, as you will help others in your turn.Report

  9. Avatar Roger says:

    Patrick,

    I agree with the spirit of all your recommendations. IP needs to be more restricted in time and scope. Just about all your recommendations are spot on. 

    It is the logic used to get here where we differ. I see property rights as useful social conventions. Although they are rooted in biology and evolutionary psychology and cumulatively improved by cultural evolution (German philosophy is just a small contribution here), the point of property rights are to facilitate creativity, productivity and cooperation between humans while minimizing destructive forms of competition (replacing them with constructive types of competition).

    I disagree that the point of IP is justice or that property rights are about ensuring that creators get a reasonable rate of return on their efforts. 

    First, just as IP can lead to vastly different consumer benefits as illustrated by Buckeroo Bonzaii, so can physical goods.  A can opener, for a starving person in the desert could be of infinite value, yet it is worthless to me. The same injustice issue crops up according to your paradigm. 

    Second, you write the following cringe inducing sentence…” 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.”

    I totally disagree. There is nothing in free markets that assumes people that mow your lawn with nail clippers, or spend their lives writing horrible novels deserve anything in exchange for their efforts. People voluntarily exchange something of value for something of greater value. The reasonable rate of return is just an outcome of large numbers of competing alternatives. Supply meet demand.  Rowling and Lucas didn’t necessarily work harder than their competitors, they just managed to create more value to consumers. Report

    • Avatar James Hanley in reply to Roger says:

      “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.”

      Roger, Actually, that’s probably a pretty good description of how most people view the market. It’s clearly a flawed view–after all, no matter how much it costs me to build a house of out congealed baby vomit hardened with plastic, it’s hard to come up with an approach to justice that claims I “ought” to be able to make a profit on such an endeavor.  In fact probably the only approach to that is the one you and I share–the voluntariness of the exchange is what makes it just, so if somebody is willing to pay me enough for a house built of plastic-infused-congealed-baby-vomit, then (and only then) “ought” I be able to make a profit from it.  Of course if I can only sell it at a loss, but the transaction is voluntary, that’s still just…the “ought” does not carry beyond some other person’s voluntary decision to pay.

      But in fact most people probably do have the view of the market Pat gives.  So the accuracy of his claim depends on what audience his “our” incorporates.

       Report

      • Avatar Kimmi in reply to James Hanley says:

        you ought to be able to recoup at least the time-value of money that the other person didn’t need to spend building the house. You have added value, and it’s not all in parts&labor.Report

        • Avatar Roger in reply to Kimmi says:

          Hi Kimmi,

          Yes, adding value is good. Free markets of defined property and exchange allow people to add value to each other in a positive sum way. Markets reward value added though, not effort expended. They also police that people no longer waste effort and resources on things tht others do not value.

          I hate to be a total nerd, but the more I study free markets the more I am amazed that such a bizarre value creation algorithm exists. It’s just uncanny.Report

          • Avatar Patrick Cahalan in reply to Roger says:

            Markets reward value added though, not effort expended. They also police that people no longer waste effort and resources on things that others do not value.

            This is a good distinction, yes.Report

          • Avatar Kimmi in reply to Roger says:

            the key word being free, something that in practice does not exist.

            But never let the market fool you into thinking it is intelligent….

            Who would pay Thousands and Thousands of dollars to buy a new house that doesn’t work from the get-go?

            Only Americans, am i right?Report

            • Avatar Roger in reply to Kimmi says:

              Kimmi,

              My definition of intelligent doesn’t imply omniscience. It is more one of discovery and experimentation. All problem solving systems involve variation and selection, and just as success requires the potential of failure, so does better imply the possibility of worse.Report

        • Avatar James Hanley in reply to Kimmi says:

          Kimmie, I “ought to be able to recoup” something?  From whom?  If there is no other person who wants a baby-vomit house, then who ought to have to pony up so I can recoup?Report

      • Avatar Patrick Cahalan in reply to James Hanley says:

        But in fact most people probably do have the view of the market Pat gives.  So the accuracy of his claim depends on what audience his “our” incorporates.

        James pegged it, thank you sir, I should have phrased that differently.  This post grew organically and I didn’t prune it because I was afraid I was just going to keep making it bigger.

        In fact probably the only approach to that is the one you and I share–the voluntariness of the exchange is what makes it just, so if somebody is willing to pay me enough for a house built of plastic-infused-congealed-baby-vomit, then (and only then) “ought” I be able to make a profit from it.

        Posts like this are hard because I’m simultaneously trying to talk about justice (philosophy), ownership (ditto), capitalism (economics) and general systems theory all at once.

        James and Roger and most free marketeers look at the voluntary exchange as a necessary condition of justice (not everybody does).  Given a world with limited resources and imperfect power distribution, I look at voluntary exchange not as a necessary condition of justice (because I do believe to some extent in some sorts of coerced exchanges), but an imperfect but usable governor on injustice; a correction mechanism that allows the general price of goods through the entire economic system to more closely approximate just outcomes.  This is why the thread bit above with Duck about paint prices for Jackson Pollock is sounding so weird; he’s focusing on a single individual and I’m taking into account “everybody that wants to buy paint”.  The aggregate value of paint isn’t what one person wants to pay; the aggregate value of paint is what everyone wants to pay.  Economic transactions aren’t a sum of individual transactions, because the price of a good is effected by the aggregate demand, not just what one dude wants to pay for paint.

        But you guys are both right, that sentence needed more explication.  But hell, I’d have to write a whole ‘nuther blog post to flesh out what I’m saying in this comment, I think.Report

        • Avatar Liberty60 in reply to Patrick Cahalan says:

          James is correct in that “most people”( meaning the majorities who assent to laws and elect politicians), see markets and economies and intellectual property rights as all tools that are outcome-measured.

          In other words, we construct these things in order to bring about outcomes that most of us view as “fair” or “just”, and when they don’t, we change them.

          IP is just such a construct- it never existed until “we” decided that it was beneficial to the economy to reward inventors and authors with the right to monetary reward for their endeavors. Meaning if “we” decide it is a hindrance rather than a help, I can imagine where it is modified or dispensed with.Report

          • Avatar BlaiseP in reply to Liberty60 says:

            Intellectual Property as a concept is a red herring.   The underlying issue is who shall control the copyright.

            Currently, not many people are making a whole lot of money selling music.   Anything digitally recorded can be duplicated with perfect fidelity.   Want to make money in music?   Start touring and stay on the road.

            It’s an awful state of affairs in the creative arts business.   It won’t get better until we cut out the middlemen who routinely take their 30% just for being the toll-collecting trolls under the bridge.Report

            • Avatar Liberty60 in reply to BlaiseP says:

              I often think of that movie “About A Boy” where the premise is that the Hugh Grant character is a wastrel, having never had to work a day in his life because his father composed a novelty Christmas tune back in the 1960’s or something and the royalties from that one single have been enough to provide for two generations of wealth.

              For me it highlights the absurdity of the “jackpot” mentality of the entertainment business; the assumption that artists SHOULD be able to grow insanely wealthy off nothing more than a single hit song, or movie.

              The digital revolution brought out that absurdity- for most people, once the “cost” of duplicating a piece of music fell to about zero, the idea that each copy is somehow “worth” anything more than the 99c that Itunes charged was nonsense.

              For most people, the concept of “fairness” requires some sort of nexus between effort and reward; the idea that a laborer is entitled to a days wage seems reasonable to most people, but the idea idea that a composer/ artist/ athlete should be able to retire and never work again because of a single effort, strikes most people as ridiculous; so the idea that we should construct an elaborate set of laws and regulations that ensure that outcome is unsupportable to most people.Report

              • Avatar Roger in reply to Liberty60 says:

                Liberty,

                I agree most people do view markets this way. It is considered one of the key fallacies of conventional views of economics. I call it an example of what my mom believes in economics.

                People think economics is about jobs. It’s about value creation as judged by consumers.

                If we reward effort and labor absent value being added we will get plenty of the former and less of the latter. And that would be a poor, miserable and inefficient world.

                And how exactly are others harmed by an artist or athlete voluntarily attracting large sales from consumers?Report

              • Avatar Liberty60 in reply to Roger says:

                Isn’t IP meant to be useful to society?

                Instead of asking who is harmed, isn’t it amore relevant yardstick  to ask of what benefit it is to society to use taxpayer capital and power to protect IP?Report

              • Avatar Patrick Cahalan in reply to Liberty60 says:

                Isn’t IP meant to be useful to society?

                This is the inversion we’ve seen since the printing press.

                Aristotle would have regarded copyright/patent as mercantilism and thus utterly crass and not proper behavior for a thinker.  Locke talks about property, but he seems to regard intellectualism as an independent activity from economic activity.  Hegel recognizes that there is some argument to be made that some sort of legal recognition can be useful.  Nowadays we’ve gone 180.  The commonly held perception is that it’s actually something that rightfully should be considered property.Report

              • Avatar Roger in reply to Patrick Cahalan says:

                Patrick,

                You are also starting to creep into the domain of science. Here the rules and rewards concerning intellectual output are totally different than markets, and should be.Report

              • Avatar Roger in reply to Liberty60 says:

                Liberty,
                I agree with Patrick on much shorter and less sweeping IP definitions, and that some forms should be completely eliminated, especially in the areas of process innovation and defensive/offensive patents. My expectation is that this should lead to more innovation and less monopolization of IP. It is a delicate balance thing, but I agree the balance is off now.Report

          • Avatar Roger in reply to Liberty60 says:

            Liberty,

            I too see property rights as useful social constructs. Woven through the threaded comments is the warning that pragmatically useful property definitions need to reward value creation, not effort spent. Over time, people rationally stop putting efforts into things without expected marginal value added. The market communicates and incentivizes prudence and practicality.

            If we make mistakes on fairness or justice definitions, and conventional wisdom is often in error, then we will get very, very bad results.

            Long way of me saying I agreed with just about everything you wrote even though we both know if we dig deeper in the terms fairness and justice that we will find plenty of grounds to disagree in the details.Report

          • Avatar James Hanley in reply to Liberty60 says:

            IP is just such a construct- it never existed until “we” decided that it was beneficial to the economy to reward inventors and authors with the right to monetary reward for their endeavors

            Eh, sort of.  It is a social construct; with that I fully agree.  But as William Riker and Itai Sened demonstrated in their classic paper, “A Political Theory of the Origin of Property Rights: Airport Slots”  (American Journal of Political Science, Vol. 35, No. 4 (Nov., 1991), pp. 951-969), property rights come about because someone sees a potential value and seeks that right–that is, individuals make the first move that leads to “us” deciding to recognize (or not) the right.

            And IPR as a concept is not strictly limited to modern capitalism.  Some Native American nations recognized a form of IPR, recognizing death songs as being the property of a particular individual, legitimately sung only by that person, but transferable by that person to someone else. (I apologize for not having a cite for that; it’s from a long-lost paper that I wrote in grad school, and I’d have to do some real scrounging to find the original source, although off the top of my head I believe it was Alfred Kroeber.)Report

      • Avatar Roger in reply to James Hanley says:

        James,

        Yeah I agree it is how people view markets and just prices. And as Patrick writes….”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….” “he seems to subscribe to it as well. That is why I find it noteworthy that he and I get to similar recommendations from such totally different building blocks. He starts with Hegel and goes through reasonable profit and ends up with some good IP recommendations.

        I start with evolutionary psychology and useful cultural conventions and voluntary interactions and get to about the same place.Report

        • Avatar Patrick Cahalan in reply to Roger says:

          I heartily agree that the weak sauce in the sentence is “a reasonable amount of profit for your time and trouble”, and I generally agree with you and James that the “reasonable amount” is highly predicated on what the aggregate buyers of whatever it is you’re making are willing to pay.  Voluntary exchange is part of that, absolutely.Report

          • Avatar Roger in reply to Patrick Cahalan says:

            It really was interesting following your logical build up over all these weeks. I patiently read along and wondered where you would go. That you end up in the same place as me following such a different — yet brilliant — path is interesting.

            Don’t fret exact wording. It is easier to clarify as we discuss it.

            An interesting angle to me on the topic I how alternative property rights come into existence. The most obvious example I am familiar with is property rights in surfing– my main hobby. The social conventions are similar yet distinctly different in wave rights compared to market rights.Report

            • Avatar Patrick Cahalan in reply to Roger says:

              Write a guest post on wave rights.  That would seriously be an awesome read.Report

              • Avatar Roger in reply to Patrick Cahalan says:

                P,

                I will see if I can draft something that would be worth reading.Report

              • Avatar James Hanley in reply to Roger says:

                Roger,  I second Pat’s suggestion.  I’ve seen brief references to that comment, and it fits right in with the economic understanding of property rights as socially recognized rights to particular uses of particular resources.  Here’s a classic article by John Umbeck on the emergence of property rights in the California Gold Rush, pre-authoritative law enforcement, and I see echoes of it in wave rights.  The particulars of the relevant community in wave rights–elitist and somewhat exclusive, semi-temporary but with an underlying continuing existence, and no authoritative right-granter/enforcer makes it a really interesting case study.Report

        • Avatar Chris in reply to Roger says:

          Roger, out of curiosity, what sort of evolutionary psychology?Report

          • Avatar Roger in reply to Chris says:

            Chris,

            I was using two words to get out the longer point that the foundation for property rights (indeed much of morality) is established innately.

            Birds and mammals are well documented as exhibiting behaviors that precede what we know of as property rights. Specifically, they tend to fight substantially harder for property that they are the first occupant or possessor of. Game theorists have studied this and believe it is a logical and more stable equilibrium. For example, once you learn a locale it makes sense to stay in it rather than learning a new locale. The first occupant has more to lose than the challenger. In addition, there is a discrepancy between gains and losses. Losses hurt more and are more risky than gains, and thus it is reasonable to put more effort into not losing something than it is in gaining something additional.

            Moving forward to primates we see the innate tendency of reciprocity. They exchange favors and are really pissed when betrayed by one they have done favors for. Trade is a sophisticated form of reciprocity, where people exchange things of value for things of even greater value. Trade shows up archeologically concurrently with the emergence of moden humans.

            Long answer that the sophisticated cultural conventions of property rights and exchange are rooted to innate tendencies that evolved over the past few hundred million years.Report

            • Avatar James Hanley in reply to Roger says:

              Specifically, they tend to fight substantially harder for property that they are the first occupant or possessor of

              Actually, it’s just a little more complex.  They tend to do that if the particular resource is scarce (like good burrows, for example), but if the particular resource is relatively abundant, the first occupant tends not to waste time fighting for it, but simply move to another.  This has been studied in, iirc, butterflies.  If you’re interested, I might be able to dredge up that previously long-forgotten citation.

              But in general I’m in agreement with your point.  Property rights, when we strip away all the normative moralizing about them, are found in nascent forms in non-human species and in various permutations in all human societies (there’s a lot in the anthropological literature to draw on).  One of the most useful property concepts is the common legal term “bundle of rights.”  That bundle can take many different forms, depending on how the society constructs it.  Some Polynesian societies, for example, had property rights in canoes, but not absolute rights.  The rights were transferable and included the right to be sole user of the canoe if you went out fishing that day, but not the right to prevent others from using it if you did not go fishing that day.

              Property rights are such a universal concept that it’s unfathomable that our cognitive apparatus hasn’t evolved to have some particular capacities to recognize them.  But that shouldn’t be taken by anyone to imply the type of biological determinism that would claim there is some “natural” set of property rights.Report

            • Avatar Kimmi in reply to Roger says:

              sounds awful stupid to me. the young buck who will never get to mate should fight harder than the older one who has already mated. more to gain, ya know?Report

              • Avatar James Hanley in reply to Kimmi says:

                Kimmi,

                No, it’s quite plausible that the old buck should fight harder than the young one because he has fewer chances left. It’s now or never for him, so it may be worth it to risk death in trying. (Although, in fact, these battles are rarely to the death).

                For the young guy, there’s plenty of opportunities left, if he can remain healthy, so he’d better not risk serious injury this time around.Report

          • Avatar James Hanley in reply to Chris says:

            Chris,

            Out of curiosity.  I know you dislike evolutionary psychology.  What I don’t know is whether you just dislike the current product of evolutionary psychologists, or whether you think evolution is irrelevant to psychology so that the pursuit of understanding human psychology from an evolutionary perspective is intellectually pointless.  Or, as a third possibility, do you think evolution is relevant to human psychology, but that there is, and probably will continue to be, no scientifically valid way to examine its effects?

            (I’ve been meaning to ask you this for so long that the question sounds very familiar; so I’m wondering if in fact I did ask it at one point in the past. If so, I forget the answer, and ask your consideration in being willing to answer it again.)Report

            • Avatar Chris in reply to James Hanley says:

              James, can I answer all three? For the first (disliking the current product), I want to make a distinction (not my own, but useful here) between Evolutionary Psychology and evolutionary psychology. The capitalized version is the sort that you get from Tooby and Cosmides, Buss, and in his popular writings, Pinker. The latter is something more along the lines of where Roger is coming from: using comparative psychology, neuroscience, etc., to better understand human behavior. I think the current product of Evolutionary Psychology is worthless. I think that evolution itself, that is, evolutionary reasoning, is useful if it’s done in a comparative sense. For example, I really enjoyed the chapter on the evolution of language in Ray Jackendoff’s (most unfortunate last name ever) Foundations of Language, because understanding the history of the language faculty may help us to understand its mechanisms better. This is done largely through comparative psychology and neuroscience: what do nonhuman species have, and how does it relate to what we have, both in terms of behavior and anatomy/physiology? That said, I don’t think the sorts of evolutionary explanations we get in Evolutionary Psychology will ever be helpful. For example, how we process analogy (one of my primary areas of research) doesn’t need that sort of explanation. Comparative psychology might give us clues (it does, in fact, tell us a lot about relational thinking, and I’ve written about this before), but the ultimate models will be based on human behavioral and neuroscientific data, and there’s no real need for any story about how it evolved. Even if Evolutionary Psychologists develop more sophisticated research methods, their explanations will always be superfluous. So Evolutionary Psychology: worthless now, worthless forever; evolutionary psychology: good now, good in the future.

              I think you and I did have an email conversation about this, but that was a long time ago, and I don’t really remember what ground we covered. Hopefully this is clear, though.Report

              • Avatar Patrick Cahalan in reply to Chris says:

                I liked this comment.Report

              • Avatar James Hanley in reply to Chris says:

                Thank you, Chris.Report

              • Avatar Roger in reply to Chris says:

                Chris,
                Sounds like I was wading into a minefield. Luckily I emerged unscathed.

                Though no expert in the field, I’ve been impressed with Tooby and Cosmides, and even some of Pinkers popular stuff. What problem do you have with them?Report

              • Avatar Chris in reply to Roger says:

                Roger, I have a few problems. The first concerns their method for developing hypotheses, which, in addition to getting evolutionary biology and anthropology wrong, amounts in the end to little more than idle speculation. The second concerns their methods. I am a experimentalist, and their work is largely survey based, not testing their causal hypotheses. Even the experimental work tends to be poor in quality, and not really test their hypotheses (e.g. Tooby and Cosmides use of the Wason selection task. Third, the brain isn’t massively modular. Fourth, in most cases, the behavioral data does all the work, and three evolutionary component is superfluous.Report

              • Avatar BlaiseP in reply to Chris says:

                I’m not sure about what massively modular means in this context.  The brain is awfully modular if the mind (whatever the fuck that means) is not.   For instance, if an infant’s brain is damaged, it remains plastic enough to form up functional subsections of the brain which weren’t originally intended for that purpose — to other ends.

                But here’s where it gets really interesting:  those newly-formed areas still maintain the modular functions of the areas they’re replacing.

                Truth is, I agree with your conclusions about the current EvoPsych crew:  they’re lost in a funhouse of post-hoc mirrors.   But I do believe there are some evolutionary components at work in the human brain:  for one, we’ve evolved these enormous frontal lobes, quite unlike any of our hominid peers.   We must have been driven to reasoning by some evolutionary process, though there is a school of thought which contends most of our reasoning is what we do with a brain that’s reasonably well-nourished and can afford the leisure time for drawing circles in the sand and right triangles inside them.   Those who have to work harder for their food get less such time.   They spend time hunting.

                My own feelings about the Modular Mind resolve to much smaller components, in SOA and AI we’d call them agents or daemons.   These are fairly small chunks of mind, much smaller than the over-large constructs now in use for domains.   In the military, these would be called muscle memories.

                We know, for example, the autonomic nervous system produces Pavlovian responses.   But the inputs don’t feed the autonomic nervous system directly, they’re parsed and handled through the same sensory inputs as all other inputs.  Now posit a similar set of responses upon which domain-specific knowledge rests.   I never investigate the wiring of the neural nets I train, I look at them statistically, but I could look into them if I wanted, there’s just no point to it.   These daemons are the “Lego blocks” which compose the generalities of domain wisdom.   Schoolbook learning trains them, the midterm exam exercises them.   The forebrain might be a screen upon which our abstract thinking is symbolically projected by these little daemon processes so we can contemplate them.  Hallucination is backpropagation through the same channels, as in the psychotic who hears voices:  though there is no homunculus at work, there just might be devils and angels, if not on our shoulders, in our forebrains.  No diodes in there, backpropagation is a real problem in the brain.  Like AI or SOA, these daemon processes only wake up when they’re invoked by stimulus or response, both.

                 Report

              • Avatar Chris in reply to BlaiseP says:

                Massively modular comes from Fodor, but it was coopted by Tooby and Cosmides and their followers. It says that the brain is a bunch of functionally independent modules. It’s not.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Ecch, Tooby’s pointing to something else.   I can train an AI network in a few hours on a trained underwriter’s historical scoring of applications.   I have done so.   Took that underwriter years to master the art, had to get a license and a degree.   The brain isn’t wired up for generalizations.   It takes years to learn to generalise.   Even then, people are constantly drawing false conclusions based on an imperfect fact base.

                Fact is, the human brain learns things in highly specific ways.   The plural of anecdote may not be data, but that’s exactly how knowledge is acquired.Report

              • Avatar Roger in reply to Chris says:

                Thanks Chris (and Blaise),

                I will be more critical of their work and methods.Report

  10. Avatar BlaiseP says:

    In practical terms, I’ve benefitted so much from open source software I can’t imagine not contributing to it.

    Once, software was free.   Firms would rent software from IBM, a business model with considerable honor attached to both ends of the contract:  IBM supported its customers and we customers expected IBM to keep fixing its operating systems and toolkits.   IBM would bring developers in for nice dinners.   We’d each bring in our little tapes of utilities we’d written, IBM would copy them all onto new tapes and we’d all go home with everyone else’s utilities.

    Software was then in its infancy.   We all faced common problems, developers, business managers, IBM, everyone involved was scratching his head, working out how this industry would take form.

    Then came Bill Gates. For two decades, the whole industry went to hell in a handbasket.   It still hasn’t recovered fully from the damage done by Microsoft.  Curiously, the first time I ever saw a Microsoft rep was at COMDEX in Chicago, handing out free copies of their compilers and APIs.   Yes, Microsoft initially gained market share via the free software model.

    Microsoft’s operating system rode over IBM hardware.   IBM had earned enough trust to warrant businesses following them into the desktop computer.   Never mind that the operating system wasn’t from IBM.   Nor was Lotus 1-2-3, the killer app of the day.   Not even the hardware was from IBM, Intel made the processors.   Microsoft betrayed our trust, crapping and capitalising on a market it had neither created nor supported.  The business people didn’t understand what they were doing at a technical level.  They didn’t listen to the developers.  Other desktop systems were out there.

    IBM, for all its business prowess, had never informed the people who’d paid the bills, teaching them the rudiments of how better software was developed.   All the business community could see was a million dollar machine consuming power in an air-conditioned room, their mainframe, their software, their coders, their bottom line.  That hundreds of thousands of improvements arose from solutions to others’ problems, improvements bettering their own bottom line, such thoughts never occurred to them.

    Not all industries follow the model of software.   Hegel was wrong.  People don’t consume intellectual products and digest them like food.  Nor does a machine shop know the cost of materials.  Nor even does it know the cost of labour.  Skilled labour doesn’t emerge from the brow of Zeus.   Machine shops, speaking as someone who’s worked with skilled machinists, exist to provide custom solutions to problems, creating products the market has not yet commoditised.  A machine shop can only sell knowledge.   If this were not so, anyone could make these things.

    If the entertainment industries have become nightmares of inefficiency, they have only themselves to blame.   Buckaroo Banzai was made for about 12 million dollars.   It did about six-something at the box office.  Nobody knew what they had on their hands, Fox was in transition, a wonderful movie which could have become a franchise bigger than Monty Python and Star Wars rolled together was never properly marketed.

    I have previously put up links to what Robert Fripp had to say about copyrights and how the entertainment industries have forced artists to surrender them.   Fix that and we will see better entertainment.   The problems don’t arise from the nature of Property Rights but from the routine abuse of the creator by the people who stand between the creation of that art to you seeing it.Report

    • Avatar Patrick Cahalan in reply to BlaiseP says:

      This comes about because corporations are better at game theory than individual artists.Report

      • Avatar BlaiseP in reply to Patrick Cahalan says:

        Please expand.   I know more than a trivial amount about games theory and the problems faced by the individual artist — and still don’t follow.

         Report

        • Avatar Patrick Cahalan in reply to BlaiseP says:

          Corporations have the time, and the capital, and the legal staff, and control over the (now dying) distribution model, and the relationships with the media companies (which used to be handshake and martini, but now they’re all in the same org chart, really).

          Individual artists are usually guys like I was when I was 22, they’ve been a long time broke and they’re sick of it.

          The discount factor for an individual in the second slot is wildly out of proportion to the discount factor for the first agent.  Moreover, the label holds the ability to actually game the payoffs.

          It’s pretty easy for a record corporation to walk into a meeting with a potential artist and show them a payoff matrix (not in formal game theory terms, but translating that matrix into chit-chat across the table is the job of the signing agent) wherein the individual is always going to take the crap outcome… or to be more precise: all of the outcomes look crappy except the outcome that the record company wants the individual to choose.  The whole thing is a con game, and it works because almost all early-entry artists are short-term winning strategy players.  It’s nearly only the more experienced artists who are savvy to the game.

          Hey, in a large wise that’s their fault.  I made stupid decisions at 22 that damaged my future earning potential.  However, I didn’t mortgage most of my future earning potential in one bad decision.  Music artists can do that.Report

    • Avatar Mike Schilling in reply to BlaiseP says:

      Once, software was free.  

      That is, was subsidized by huge margins on the hardware it came with.  Cheap micro-processer-based PCs and workstations killed that model.Report

      • Avatar Patrick Cahalan in reply to Mike Schilling says:

        Yeah, technology is nothing if not a great serial killer of previous business models.Report

      • Avatar BlaiseP in reply to Mike Schilling says:

        Nah.  Thousands of people were contributing to IBM’s utility pool and everyone benefited.  Even then, the hardware was an incidental cost, depreciation proved to be a marvellous thing,  whole industries like Comdisco grew up around leasing the hardware and taking the depreciation.

        The big costs were people and they still are.   As for cheap microprocessor-based PCs, the mainframe was still beating the local machine hands down on a cost basis.   Still is, for that matter.   IBM was going through a big change at the time when the PC came into the picture.   The whole original IBM PC was an attempt to get into another market space entirely, then occupied by Atari and Commodore.   It was a bang-up cheapo bottom of the barrel, zero engineering schlock job they farmed out to everyone but the people who knew anything at Watson Labs.Report

        • Avatar Mike Schilling in reply to BlaiseP says:

          Thousands of people were contributing to IBM’s utility pool and everyone benefited.  

          Sure, and that’s exactly the open source model that still works today, for simple stuff that needs little in the way of documentation or testing (and often doesn’t get even that.)

          Do you think that thousands of people were contributing to the virtual memory algorithms?Report

    • Avatar James Hanley in reply to BlaiseP says:

      In practical terms, I’ve benefitted so much from open source software I can’t imagine not contributing to it.

      Blaise, that’s the type of thinking that drives us rational choice theorists nuts. 😉

      “I’ve benefited so much from free riding that I think I ought to contribute now” is just plain irrational.  Irrational!

      Of course we’ve long known that people don’t conform that closely to our models.  But it still drives us nuts.Report

      • Avatar Mike Schilling in reply to James Hanley says:

        Really? It’s very analogous to not defecting in the Prisoner’s dilemma.Report

        • Avatar James Hanley in reply to Mike Schilling says:

          Mike–Yes, which is irrational unless your cooperation is necessary to stimulate others’ future cooperation, and not that I doubt the value of Blaise’s contributions, but I sincerely doubt they determine whether others make future contributions.

          Pat–That one always makes my head hurt.Report

          • Avatar Patrick Cahalan in reply to James Hanley says:

            It’s only irrational if you make a number of assumptions regarding what’s irrational.

            It’s irrational in terms of rational game theory, I’ll grant you that much 🙂Report

            • Avatar James Hanley in reply to Patrick Cahalan says:

              Pat, In my world, there is no other rationality.Report

              • Avatar Mike Schilling in reply to James Hanley says:

                It’s a damned poor world.Report

              • Avatar James Hanley in reply to Mike Schilling says:

                No, because utility–which is the basis for our rationality–is a much richer concept than commonly recognized. In fact I’d bet that Blaise doesn’t just contribute to open source because he’s feeling obligated to not be a free-rider, but because he enjoys what he does.  So in fact he’s almost certainly being rational.  Only under his thin, under-developed, explanation does it appear irrational.

                That said, there is evidence that people aren’t perfectly rational, and from an evolutionary development perspective, there’s no reason to expect us to be perfectly rational.

                But I really don’t think there are other “types” of rationality.

                I’ve got no more time for the remainder of the weekend, unfortunately, but this would be a good topic for discussion sometime.Report

              • Avatar Roger in reply to James Hanley says:

                Yeah, stepping back into the dreaded evolutionary psychology minefield, I would assume people descended from small bands of hunter gatherers who could ostracize those that don’t reciprocate would tend to feel deeply guilty from free riding.

                I predict Blaise would feel guilty not contributing.Report

              • Avatar Mike Schilling in reply to Roger says:

                As I point out below, there are perfectly good selfish reasons for contributing too.  But feeling like  a good citizen is certainly part of it.Report

              • Avatar BlaiseP in reply to Roger says:

                Nah, my motivation is mostly the petty aggravations which arise from some ill-considered implementation.   I write some little wrapper class which provides a sounder and more-usable interface, push it up the wire to the authors, who are awfully glad to see someone using their code in some meaningful way.   Usually, they just implement the more convenient method on their own code.   Sometimes, they push back a little bit, ask to see more of how it’s being used, so they can write a more robust and functional implementation.

                Guilt never motivates me.Report

              • Avatar Jaybird in reply to Roger says:

                mmmm… endorphins…Report

          • Avatar Mike Schilling in reply to James Hanley says:

            St. Petersbug Paradox:

            The solution that replaces money with utility seems very satisfying to me.  It solves many similar paradoxes as well:

            • Suppose all you had in the world was $10 million dollars.  Would you bet it double-or-nothing if the odds were 3-1 in your favor?  By money expect ion, of course:  your expected value is $15M.  By utility, of course not.  The added utility of having the second $10M is orders of magnitude lower than the utility of the first $10M.

            Report

            • Avatar Patrick Cahalan in reply to Mike Schilling says:

              Well, then you get guys like this crazy-ass fool.  Who is seriously one of my favorite fools right now.Report

              • Avatar Mike Schilling in reply to Patrick Cahalan says:

                There’s no way he’s in it just for the money.Report

              • Avatar Patrick Cahalan in reply to Mike Schilling says:

                Methinks he’s glad enough to take it and certainly enjoys the occasional creature comfort, but for the most part, it’s gravy.  His utility is something not measured in dollars.Report

              • Avatar James Hanley in reply to Mike Schilling says:

                Money’s just a measure of utility, right?  Any guy that clever could be making even more shitloads of money, so the amount he’s sacrificing by doing this instead is a measure of how much utility he’s getting from it.

                Less pedantically, some people just get a kick out of doing crazy ass shit.Report

              • Avatar DensityDuck in reply to James Hanley says:

                It’s not even that hard to translate it back to money.

                You could get a part-time job working at Mcdonald’s (or a used book store or something).  That would pay minimum wage.  Instead, you choose to spend those hours writing code.  That means you’re “paying” twelve dollars an hour to write code.

                Alternatively, you could volunteer at a public library or some such place.  The hours you work (for free) would be hours that the library would normally have to pay for.  You are, in effect, making a donation of a library worker’s wages.Report

              • Avatar Patrick Cahalan in reply to DensityDuck says:

                Not exactly.

                You get better at writing code the more code you write.  So, one can certainly make the evaluation that you should spend some amount of time writing code – particularly in areas you don’t normally write code – because it improves your ability to write code.

                So contributing your practice hours back to the commons can be doing what you’d do anyway, but adding value along the way at no “cost” to you.Report

              • Avatar DensityDuck in reply to DensityDuck says:

                “contributing your practice hours back to the commons can be doing what you’d do anyway…”

                …which means that instead of the minimum wage you’d be making at McDonald’s, it’s overtime or extra vacation or whatever.

                “But I’m on salary, I wouldn’t get any of that!”  Well, then you could get a job at McDonald’s.

                “But I’d never do that, I get more enjoyment out of writing code than I would get making minimum wage at McDonald’s!”  The point is not that you would have done any of this, but that you could.  It’s about opportunity cost.  Your time is never “free”.

                Imagine if you could spend twenty-four dollars and get two hours extra in a day to spend coding.  Is that someone you’d do?  Because, when you choose to write code for two hours a day instead of having a minimum-wage job, that’s what you’re doing.Report

              • Avatar BlaiseP in reply to DensityDuck says:

                Carts before horses.   McDonalds will pay 12/hr.   I don’t charge less than 90/hr.   Any competent consultant can get 40/hr.   I don’t work more than nine months a year.   Ever.  Salaries are for tree hugger people, sadly and stupidly believing and hoping and wishing and praying they will be needed at the end of the next budgeting process. Loyalty between employer and employee is a bigger fantasy than the Easter Bunny.

                Every minute I spend coding, whether or not I’m billable, counts when someone asks me if I know anything about the latest Wizbang framework and API.   I keep an eye on what technologies pay the most money.   The very idea, that someone is “paying” twelve dollars an hour to write code is abject nonsense.Report

              • Avatar Jaybird in reply to DensityDuck says:

                There was a mini-scandal at my previous job where a contractor was outsourcing his own job to India. He was being paid a buttload and sent a small portion of this buttload to India where they did the work he was charging a buttload for.Report

              • Avatar Mike Schilling in reply to DensityDuck says:

                How much do you spend every year commenting on blogs when you could be flipping burgers for pay?Report

              • Avatar BlaiseP in reply to DensityDuck says:

                @Jaybird:  (a few puffs on the pitch pipe)  Oh…. you never will believe where those Keebler cookies come from….Report

              • Avatar Mike Schilling in reply to DensityDuck says:

                He was being paid a buttload and sent a small portion of this buttload to India where they did the work he was charging a buttload for.

                I’ve seen similar things, e.g. someone contracting for company C sub-contracting part of his work to an employee of C.  Basically, it was a way for a salaried employee to earn overtime.

                 Report

              • Avatar BlaiseP in reply to DensityDuck says:

                The stuff I could tell y’all about contracting.  It’s Hindu turtles all the way down… until the whole thing blows up.   I watched six failed Java servlet projects simultaneously arrive from India, not one worked.   Thereafter, for about six years, I seemed to specialise to failed projects coming out of India.Report

              • Avatar DensityDuck in reply to DensityDuck says:

                Should have known that Wally would roll in with a couple war stories and some Realtalk.

                “Carts before horses.   McDonalds will pay 12/hr.   I don’t charge less than 90/hr.” Mmm hmm, does the place you contracted at authorize overtime? No? Then your time is “worth” minimum wage (or whatever they pay the seevice worker you’re replacing with your volunteer time.)

                “The very idea, that someone is “paying” twelve dollars an hour to write code is abject nonsense.”

                If you were working at McDonald’s you’d be getting twelve dollars an hour. You aren’t at McDonald’s, so that’s twelve dollar an hour less than you could have had. “But the thing I’m doing is going to make money for me!” Oh, so you mean like going to school to get further education? Doesn’t that cost money? So you’re paying twelve dollars an hour to engage in self-directed study.

                The point is not that you would (or, possibly, *could*) go find a minimum-wage second job. The point is that it’s not strictly true to say that you can’t put a monetary value on free time. Sure you can–it’s equal to the amount of money you would have made if you’d been doing something you got paid for. (And if you work for a company that authorizes overtime then your free time suddenly got a LOT more expensive.)Report

      • Avatar BlaiseP in reply to James Hanley says:

        Ecch, it goes like this.   I round up something like PostGIS all the live-long day.   I encounter some bug.   I go off to trac to look it up.   Turns out someone’s already spotted this problem.   Or maybe not, so I report it.   I might propose a fix or a workaround.   It’s not my code, I’m not a committer on that project.   It just happens to be the best GIS implementation out there.   Why should I burden my clients with some zillion-dollar Oracle solution when this stuff works better?   And what’s more, if I find the bug, report it, qui bono?   Why, me of course.   Not only does my bug get fixed, everyone else who ever uses it will benefit.

        See, this is what I cannot work out, for the life of me.  Rational choice dictates I make the best possible decision for my clients.   Letting some zillion dollar closed source beast loose on their servers with no source code is not a wise choice.   It is a hideously stupid and dangerous choice.Report

        • Avatar James Hanley in reply to BlaiseP says:

          Rational choice dictates I make the best possible decision for my clients.

          Umm, no.

          Have a good weekend all. Enjoy your cookouts.Report

          • Avatar Mike Schilling in reply to James Hanley says:

            Umm, no.

            Exactly the problem with Citizen’s United.  It makes the principal’s money a political slush fund for the agents.  Thanks!Report

            • Avatar James Hanley in reply to Mike Schilling says:

              Well, the principal-agent problem isn’t a constitutional issue, so that doesn’t really get to the legitimacy of the CU ruling.  But, yes, it does exacerbate the agency problem…just like the one I have with my union.  😉Report

          • Avatar BlaiseP in reply to James Hanley says:

            Whuhwhuh–whut?   Dude, I unconditionally guarantee every line of code I’ve ever written.   I don’t care what goes wrong with it.   I don’t care if I didn’t cause the problem.   My clients come first.  There are no excuses, I don’t believe in excuses.

            This attitude has taken me a long long way.   Engenders trust.  And repeat business.   And peace of mind, knowing I don’t have to wait for some pimply faced Indian kid at the other end of the tech support hotline to read something stupid to me off a script.   I have the source code.   Between gdb and kgdb, I have control of that situation.Report

        • Avatar Mike Schilling in reply to BlaiseP says:

          And if you do put a fix in, you submit it to the project, because then you can later upgrade to the next version without having to re-apply and re-test the same fix.  (Or because you get mail back saying “That’s a terrible fix: it breaks five other things.”)  Even James has to admit that that’s perfectly rational.Report

  11. Avatar Patrick Cahalan says:

    Just for clarity:

    Almost all of my thinking about intellectual property was informed in the 20 years between the first time I read Locke and some Hegel and recently, when I re-read Locke and read the Hegel that I’ve dissected in the previous posts.

    I’m using principles from the philosophers as shorthand, because I happen to agree with some of what they say and their justifications and deliberations on those things are long and well thought out and it would save me a lot of time, rather than trying to write my own version of the second treatise or phil of right 🙂

    I’m not precisely a Hegelian, but I find him useful.Report

  12. Avatar wardsmith says:

    Intellectual Property (IP) has an interesting and checkered past. We can look at the three great inventions to come out of China: Printing, gunpowder and the compass. But contrary to Western civilization where things are often as not named after the inventors (or discoverers) the outcome for the inventive Chinese was not so good. The inventor of paper was castrated (and eventually forced to drink poison), the inventor of gunpowder was crushed, and the inventor of the compass was poisoned. To this day the Chinese do not value intellectual property. Hence for a Chinese national to expend the sometimes tremendous effort to invent something, knowing in advance that it won’t do him/her any good personally (since the invention will just be appropriated without recompense) true invention has stagnated there. Even today, the Chinese economic miracle is running out of fuel because western companies have caught onto the fact that their tools, techniques and processes are being stolen. The problem is a fundamental and institutional disregard for IP.

    Western countries like Great Britain institutionalized intellectual property. The Crown granted vast monopolies to entities who had invented a better mousetrap. Naturally that went too far the other way, stifling competing innovation. America followed a middle ground, allowing for patents (with their inherent but limited monopoly) while likewise “appropriating” good ideas on a grand scale. The “Crown” was nonexistent here so the modus operandi in the States was to steal someone’s idea, hope you got away with it but deal with the consequences and fight it out in court if you got caught. The courts method has led to such imbroglios as the movie “Flash of Genius” showed us, the heroic inventor outgunned and outspent by massive evil corporations.  There are no perfect solutions.

    Recognizing this, my personal solution has been to grow my own corporations to “play the game”. Inventing the IP is relatively straightforward. Though an arduous process, patenting delivers the reward of increasing the value of the corporation. Eventually of course being a corporation you sell the stock to the highest bidder, often a much larger corporation. This has the added benefit of delivering deeper pockets to fight off the corporate predators discussed in the last paragraph. In multiple ways our society has grown too large and too complex for the heroic individual, alone (or even in a small group) to succeed wildly merely by inventing something, no matter how great. Apple computer might have started in a garage, but its success was only guaranteed once Hambrecht and Quist invested in them.Report

    • Avatar Roger in reply to wardsmith says:

      Wardsmith,

      Where did you get the information on the fate of Chinese innovators? Fascinating.

      When I ran innovation for a large company I refused to play the game in offensive and defensive patent warfare. I view it as negative sum activity that makes the world worse off by stifling innovation and idea dissemination.Report

      • Avatar Mike Schilling in reply to Roger says:

        Where did you get the information on the fate of Chinese innovators?

        He makes them up.  For instance, Cai Lun was already a eunuch at the time he invented paper, and paper made him wealthy and powerful enough to become involved in court intrigue, which is what led to his death.Report

        • Avatar wardsmith in reply to Mike Schilling says:

          For the last time Mike, shur fan shau efu. Cai Lun gets the CREDIT for inventing (actually perfecting) the paper making process but the Chinese know that he stole the credit from the real inventor. Furthermore they’ve made dozens of plays and movies about the story. I sure wish I could speak with such authority out my ass as you do, with your vast personal experience, especially concerning other races and cultures.Report

          • Avatar Mike Schilling in reply to wardsmith says:

            And who is this real inventor that oddly enough was also a eunuch that was forced to drink poison?Report

            • Avatar wardsmith in reply to Mike Schilling says:

              Mike, I’d have to go back and watch an old VHS tape, listen to them say the name and then guess at how to phonetically type it in here. I’d consider it, but my VHS machine isn’t even connected to a TV any more and I don’t see myself going through all the motions just to belabor a point. I’m sure if I said the sun was rising tomorrow at 6:30. you’d correct me by letting me know it is REALLY arising at 6:20.

              Every society has their invention myths, you probably were taught that Fleming (a distant relative of mine actually) “invented” penicillin. However it had already been documented in medical journals no less, over 50 years before. Rather than quibble with you about minutiae, my original intent with the comment was to flesh out a larger thesis concerning why some cultures were better at invention and innovation than others.

              Patrick is concerned that patent law as practiced here stifles innovation, while I’m pointing out that innovation can be culturally stifled, which is really worse.Report

              • Avatar Mike Schilling in reply to wardsmith says:

                Why, if there are dozens of plays and movies about the guy, do you need to watch a specific VHS tape?Report

              • Avatar wardsmith in reply to Mike Schilling says:

                Ni shwo guo yi ma? I only own the one movie, I’ve seen others, if my wife gave a damn I could have her look it up online (I’d have to type Hanzu, which I cant). When you watch a foreign film do bother to memorize all the character’s names? I can tell you that Chinese have 100 surnames and unlimited first names. Even Chinese don’t bother to memorize people’s names unless there’s a good reason to. But since you’re stuck in minutiae land I leave you to it, if you wish to engage the larger points I’d consider continuing the conversation, but otherwise you’re just being a needledick and I don’t have any use for you whatsoever.Report

              • Avatar Mike Schilling in reply to wardsmith says:

                To recap:

                WS: China oppresses innovation. For instance, the inventor of paper was castrated and forced to drink poison.

                MS: It’s true that Cai Lun was a eunuch who was eventually forced to ingest poison, but neither of those had anything to do with his being an inventor.

                WS: Not Cai Lun, a completely different eunuch who was eventually forced to ingest poison.

                MS: Who was that?

                WS: The dog ate my homework.Report

              • Avatar wardsmith in reply to Mike Schilling says:

                MS: Everything you say is beyond my tiny brain, but look I found a nit!

                WS: So what?

                MS: Yum Yum!Report

      • Avatar wardsmith in reply to Roger says:

        Roger, having been married to a Taiwanese woman around 30 years, and socializing extensively with Chinese who are mostly professors these topics come up in conversation all the time. Interestingly mainland Chinese are far less informed than Taiwanese (or those from Hong Kong or Singapore). The Cultural Revolution really did a number on that country, none of it good.

        Re: patent warfare. I used to have to negotiate IP licenses with folks like Intel. They would send an “IP officer” who would bring a book of patents and we’d haggle back and forth (really about price). They wanted to license our cores, they would pretend we were violating any number of patents they had previously gotten, it was mostly a scam to drive down the price (although we could horse-trade some IP around the edges so we could use it in the next game we might have to play with Hitachi or AMD). You are spot on about it being a counter-productive enterprise, but it is part of the rules of the road today.

        This article (which I had to physically retrieve from the recycle bin to get the title of for the google search) neatly ties together many of the elements of this OP discussion. I’m especially interested in this bit and am curious if we can get EC to weigh in on it?

        I expect the same thing will soon happen in other creative endeavors. Forbes is turning to robot journalists, employing new software that mines data of various sorts and turns it into electronic approximations of the scribbler’s art. No doubt powerful newspaper-copy-generating software will be available as an app soon, making me and my kind even more obsolete than we already are.

         Report

  13. Avatar BlaiseP says:

    As the clash of the titans approaches, a few li’l briefs from Oracle (PDF) and Google (PDF) on the merits of copyrighting a programming language.Report

  14. Avatar Mike Schilling says:

    Don’t Be Evil vs. Bwa-ha-ha-ha-ha Inc.  Do we root for the hypocrites, or the ones who glory in it?Report

  15. Avatar Patrick Cahalan says:

    One very important note in all this is nation building, which I haven’t addressed to this point and which Duck alludes to earlier.

    Intellectual property laws started off as granting monopolies inside a national border.  Historically, nations that had a strong corporate bond to that monopoly have had stronger IP laws than nations that did not, because the corporation can aggregate IP (whereas individuals typically cannot on the same scale), and thus you quickly build a vested interest in the system.  Also, nations that had a more robust innovation cycle have instituted stronger IP laws as the cycle goes on, as those vested interest entities become more and more invested in relatively new but existing technology (which they own the rights to) over newer technology that may augment/replace theirs (which will kill their monopoly).

    This leads to a muddle where it’s hard to say, really, which approaches “work” for fostering innovation (compare Prussia and England at the same historical window in the 1800s, for example) and which ones hinder it.  From the standpoint of contemporary history, right now the U.S. is largely a rights holder, and China, Brazil, and Russia are basically innovation pirates.

    One can make the argument that strong IP laws internationally would benefit the U.S., as an entity, and *that* is the reason why we should have them. My counter to this is that IP laws, on the international sphere, are usually contraindicated because they are essentially bad security: they protect you from other rights possessors (Britain, Germany), but they don’t protect you from the pirates, who have a much higher payoff from bogarting your stuff than they do from agreeing to pay you for it.  It is, however, a second discussion that can be had on merits.Report

    • Avatar DensityDuck in reply to Patrick Cahalan says:

      That last is the “door locks are useless because the criminals will just buy sledgehammers and your neighbor would never rob you” argument.Report

      • Avatar Patrick Cahalan in reply to DensityDuck says:

        Door locks are fairly ineffective.  Not quite useless, of course.  They prevent only the lowest bar of opportunity crime, and unless you’re in a particular sort of high-crime area or you’re in a neighborhood targeted by  a pattern criminal, someone who has already jumped over the bars of (a) being willing to commit crime, (b) being willing to take the risk of breaking into someone’s home, and finally (c) walking up to your door to check to see if it’s locked… most of the time when they get that far a door lock is no longer much of an impediment.

        There are exceptions for certain types of pattern crime.  But even those, where someone feigns a door-to-door salesman act and tries the door and then just goes on to the next house if it’s locked… well, those are a particular sort of crime, and if you’ve got a crew like that working your neighborhood it becomes fairly evident fairly quickly… and then the only lock that matters is the one on the *front* door.

        A dog is a much more effective crime deterrent than a door lock.  It takes an entirely different profile of criminal to break into a house that has a dog than one that has a door lock, and most of those types of criminals aren’t opportunity-driven criminals at all.  Teenage kids who are looking to heist an iPhone won’t break into a house with a dog, whereas they’ll break into a house without a door lock.

        In any event, your comparison is hugely limited and not a good one.Report

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