One of the most common arguments used in favor of file sharing and other forms of copyright infringement which have no legitimate fair use defense is that the cost of distributing intellectual property is so low that times have changed. Those who make this argument are generally immune to the counterpoint that the cost to make the intellectual property is often still very high; many video games and movies still cost tens or even hundreds of millions to produce. Countefeiting has a similar effect on physical goods, but so far, those who defend non-fair use copyright infringement don't typically support a right to counterfeit.
The right to counterfeit is simply a natural extension of the argument that one has the right to copy a copyrighted product and hand it out without the permission of the creator. That counterfeiting still costs something, and is done for profit is irrelevant. Motive has no meaningful role since the underlying action and outcome (reproducing and distributing a product without permission) is the same. It is not logical to argue that someone has the right to give a copy of a new DVD to every one of their friends without the studio's permission, but doesn't have the right to fabricate an exact copy of their car and sell it to their friends at cost (or even give it away for free). Taking this point forward, if thousands of people pooled their money to build a factory to duplicate expensive cars for one another at cost, that too would be simply an extension of any argument in favor of non-fair use copyright infringement.
The only serious argument is made against countefeiters in this scenario is that they aren't who they say they are, but that is no reflection on the quality of the product. As long as the quality is comparable, that's a quibble, not a fundamental complaint. Now, take that aspect away, and suppose that new Ferraris are being duplicated almost perfectly by Ferris' Fast Cars Inc. They don't call them Ferraris, but they cost only 10% more than the cost of the materials and labor, making them significantly cheaper than a real Ferrari. There is no personal incentive for anyone to buy a Ferrari other than bragging rights. As a result, Ferrari probably goes out of business, and then some other company comes along from a cheaper locale, and puts Ferris' Fast Cars Inc. out of business by using cheaper labor and materials in a poor country--while using the same Ferrari schematics.
The cost to build new physical goods will only improve as manufacturing processes continue to become more efficient. At some point society is going to have to decide whether or not the act of creating a product entitles one to a right to exclusive manufacturing and distribution rights. If not, then society will have to come to grips with the fact that it has taken away most of the foundation for people to continue to build and create. Some say that people have always created, even when profit wasn't a possible motivation. While there is truth to that, it is only within the last 150 years where the aforementioned premise was generally accepted in industry that there has been genuine prosperity and the prospect for elevating more people out of poverty.
Two things
Piracy is used by those who might not ever pay for the product. The creator loses no money when the person would never have paid to see or hear their product. With a counterfeiter they are charging money for their product and therefore are directly taking income from those creators of the IP because they counterfeits are being purchased by those willing to pay for the product.
"it is only within the last 150 years where the aforementioned premise was generally accepted in industry that there has been genuine prosperity and the prospect for elevating more people out of poverty." It could be equally argued, and perhaps more forcefully, that it is the accumulation and easy aquisition of information that has allowed for greater technologies which have improved worker productivity that has been the root cause of the prosperity. IP laws are only beneficial to those who created the IP in question, but the spread of that IP via whatever available means benefits the whole of society (I will exclude the arts in this. There isn't any inherent benefit to society from it.) It is the spread of new technologies (IP if you will) that increases prosperity not the laws that protect it.
Your first assertion there is not necessarily true, Erik. For many people, the ability to not pay for the good is an incentive to acquire it and not pay for it in the process. A lot of the guys I knew in college who were big into piracy did this. In fact, one of them listened to one of my favorite bands and was blown away by it. He raved about how great they were, and then proceeded to download all of their music instead of buy it, and to my knowledge he never went to a show or anything. Just because studies show that pirates often buy a lot of IP goods, doesn't mean that they aren't taking a lot more than they're buying.
Every download where someone actually keeps an IP good is a download that has come out of the potential income of the producer of that IP, just like in the counterfeiting scenario. In neither case does the IP producer lose more than what most file sharing defenders call "potential income," but in both cases, customers who would have been willing to buy are given a cheaper avenue for acquiring it than the legitimate one.
You do realize how absolutely Marxist this sounds, right? Society is able to get the proliferation of technology in the first place because the **basic propertization** of these goods (as opposed to harsher copyright extensions) has enabled a market and the ability to profit off of them. Like most people taking this train of thought, you haven't calculated in just how much money had to be invested into getting it to where we are today. Furthermore, one of the reasons open standards exists is because software is a good in its own right under federal law, whereas it used to be tied to the hardware product which encouraged software balkanization. In a world without copyright, MacOS X and Solaris would probably still do alright, but Windows, Linux and the BSDs would be up the creek without a paddle as open platforms that run on a wide variety of hardware because every hardware vendor would want and need their own super-customized version to make their hardware more attractive. The lessons of the past in this regard don't paint a rosy picture for where would be headed if things changed.
Your first assertion there is not necessarily true,
I wasn't making the case for all piracy, only that subset who simply wouldn't pay for their product. The people at work talk about movies ALL the time. They ask me about it, "Know how in movie X they did Y?" My answer is usually a dumb look since after 2 years they know I have watched very few movies. I consider it a waste of time and money (for the most part) So by and large, I am one that the studios will never make money off of. I do own the movies that I like such as X-men (not the first tho!) Shooter, the Narnia series and a few others.
You do realize how absolutely Marxist this sounds, right?
Its not in the slightest Marxist. The value and utility of the cotton gin came not from the idea of it, but its implementation. It tremendously lowered the man-power needed to get cotton from the farm to its end users. This created an economic good, which benefitted society. Now to the economy at large, it doesnt matter if that IP was paid for, given away, or stolen. I am not saying that there should be no protection for ideas, and I do not apply the above to artsy things because art adds nothing "useful" to the economy and so if it is paid for or not, it adds nothing to the overall economic good. Music and movies is a choice, a contract if you will, between the producers and those who enjoy what they create.
And that's the problem, Erik. You cannot gauge how many people would have bought the product if piracy were not a legal option.
While it is technically true on that level, you have to consider the damage that would be done if the IP is taken from someone. The problem with that line of thought is similar to Roci's argument. It's not THAT hard to take a physical good, reverse engineer it and bring it to market. This is something that Vox also misses when he defends piracy. We are entering a world where the fabrication of most goods is substantially cheaper and faster than it was a few decades ago, and where failure to protect creators' basic rights would lead to an environment that doesn't encourage as much innovation.
I don't think that there is a real difference here. The problem you run into is that someone could easily find ways around the contract, such as paying someone at the publisher for a copy, scanning a copy or recording a copy, and then sell it. See, if you record a song, sign a contract with someone else to not copy it, that doesn't mean that I am in violation of your contract if I rip a copy of that CD you sold under contract. By law, I'm then free to send that to all of my buddies.
Another thing you should be wary of is buying into the "contract" idea between art buyers and sellers because that is part of the basis that the RIAA and MPAA use to destroy your rights. The "implied contract" argument is dangerous, and the alternative, making people sign a contract, is also inefficient and hard to enforce as it requires the stores that sell the goods to keep track of all contracts on behalf of the artists they sell for. The alternative to THAT would be bad for the buyers and sellers alike, as a lack of third party sellers would reduce the ability of sellers to rely on an economy of scale and an efficient distribution system to lower their costs and get access to more customers.
The problem is exactly as Abe put it. IP rights have grown to far and are now well beyond what is reasonable in a property rights system. What I envision is a return to the founders' IP system with the following caveats:
I wish to point out that only western societies have this notion of intellectial property. The residents of third world countries (to include rising stars like CHina and India) do not buy officially licensed copies of software, movies or music. A DVD movie in Iraq is typically $1. The quality is also very poor until the market can aquire a good copy. Ask most US troops. Once you have paid $1 for a movie, paying $20 ever again is seen as just stupid.
In the old days, people guarded their intellectual property by not telling anyone. In the modern world, patents exist for the expressed purpose of transmitting trade secrets, not helping you keep them. Countries like China have no moral problems with plundering the US patent office and paying nothing. Once you know how to do something, paying an exhorbitant rate for someone else to do it (branding) is a foolish economic choice. It is the nature of the modern world that sharing information places it into the hands of everyone.
Your own examples point this out very clearly. If you make a Farris car, it is your car, not a Ferrari. For the same reason some people still buy bear asprin instead of generics. Then the Ferrari will be induced (as they are now) to constantly innovate so as to give thier customers an advantage. If your version of their car is better, you should expect to prosper. The nature of competition and free markets is counter to the IP scheme you defend.
It reminds me of when nutrasweet tried to copywrite the color blue. The difference between knowledge in the public domain and knowledge protected by IP is purely arbitrary, changing from state to state and from nation to nation, and from one kind of property to another.
If you created the next big thing (free clean energy generator or anti-gravity machine) it would be only days before someone else was using your idea with a minor modification. The only exception to this would be if producing it was particularly difficult to the point where no one else could figure it out, even if shown a working model. But once you showed a single person, or registered your idea with the patent office, you have in fact lost your ownership of the knowledge. You are otherwise completely dependent on others to share your world view of IP and compensate you accordingly. Most of the rest of the world does not play that game.
I don't dispute the realpolitiks in your argument, however that doesn't change the fact that the cost to quickly reverse engineer and duplicate any complex technology is being reduced in meaningful terms every decade. It's already possible for China to quickly spawn a dozen manufacturers capable of creating cheap knock offs of every car on the market and sell them during the same time frame as the official models. For most consumer goods, they're already trying to do that.
I'll also note that your argument falls apart in a practical sense in that most of the world has no economy worth discussing. China and India produce virtually nothing of value except at the direction of or counterfeiting of Western companies. The entire Chinese IT sector is proof of that. They couldn't even make their own national CPU without ripping off the MIPS architecture!
So really, they may be able to make it big for a while, but that's only by copying Western and Japanese designs. Should those economies truly go under, China and India would find that they no longer have anyone to copy, and they'd be left trying to encourage innovation in an environment in which any well-connected jackass can copy their goods and bring them to market.
One need only look at Linux, which has virtually no innovation of its own, to see what an environment where IP cannot be sold would do to software. Ubuntu 9.04 is a major improvement, but it still runs slower on my old PC laptop than Windows XP, and certainly much slower and more painfully than MacOS X.
IP is one of those things I go back and forth on in my head. Practically speaking, I think Roci sums up the realpolitiks of the affair. In principle, I do appreciate the need for others to protect the investment of their time and resources into the development of an idea that's intended to be sold.
I think the framers of the constitution had the right idea that inventors have the right to limited-term patents and copyrights. But past a pont, you end up with a ninfinite regress loop.
Long ago, a craft master held his intellectual property where it was safe: in his head. He would do his special tasks often when the shop was empty. There is an appocraphal story of a Japanese sword master cutting off the hand of an aprentice. The apprentice dipped his hand into quenching water, and thereby "stole" the master's IP of water temperature. Every master knows that once he teaches his apprentice his trade secret, he no longer has a trade secret. Every product placed into the market carries with it the knowledge of its construction. Digital media is easier to copy, but much harder to comprehend by non-experts and harder still to exploit.
The purpose of the US patent office is to publish trade secrets under the unenforceable promise of protecting them. IP protection for the arts is several generations (MLK's grandchildren expect to continue to profit from every use of the words "I have a dream").
Even the ability to reverse engineer technology is itself a technologocal improvement where unauthorised apprentices learn the new tech without the permission of their fuedal masters. This spreads the new technology faster.
Society benefits because no society needs a large percentage of its population inventing and creating new products. Constant product improvement is enouogh and not every improvement has a legitimate claim to IP protection. Did the first guy to put leather seats in a car get a patent on that idea? not likely. but everyone who saw he had it, wanted it. They then hired him to do it for them, or they found someone else to perform the same job. a Few great innovations a year and a few thousand modest improvements are enough to propell any society into prosperity and that knowledge transmits to the third world at the speed of information. They are still the thrid world because they have no ability given their other societal limitations to capitalize on their knowledge. Much of Africa is still in the hunter-gatherer state despite access to modern technology. Nigeria's contribution to the Internet is just a remake of 100 year old wirefraud.
Even without the motive of making it really big, there will be plenty of innovation in the USA because there are people who are driven to innovate and create, even without lottery-sized payoffs. Bill Gates didn't get to be a billionare based on his college garage project.
I personally like Vox Day's take on this that if I steal your IP from you, I have taken nothing because you still have afterwards everything you had before. So there is no such thing as IP except what laws of men arbitrarity create and define. That makes it legally protected but not morally worthy of protection.
As An aside, I have given consideration to how I would protect my own IP. I discovered that it was not possible. The more valuable my idea, the faster it would be stolen and universally exploited by other people. If I could create a device that would generate electricity without any input components and generate no outputs, I would have to have every device leave the factory with a self destruct device in it and even that I could reliably count on being circumvented by a government lab. I could never patent it because then it would be lost. I could never make one for comeone else, or tell anyone I had it, or it would be stollen. I could only protect it by keeping it to myself.... in my head. Society does not benefit from that.. This addresses the duel between copy protection developers and copy protection hackers. Both innovate and create and benefit society.
I hope that clears things up.
The ability to reverse engineer a technology is nothing new. Simply having access to a working copy is sufficient. Always has been. Probably always will be.
I don't think you're accounting for the rate of innovation required to turn a tidy profit in a society where anyone can just take your whole product, as-is, with no modification and sell it as their own under a different label. I would submit that it would be possible for a company with competent engineers and an agile manufacturing process to constantly reverse engineer new products and bring them to market around the same time--within months--of the real McCoy being released. It would get to the point where the companies doing the actual innovation would have to work so hard, so fast to get products to the market before the counterfeiters could retool their factories that it would drive their employees into the ground.
The problem with this argument is that they would not be able to do large, expensive projects which is where breakthroughs often occur. There would never be in the IT field another Oracle DB, Windows, MacOS X, BeOS, Visual Studio, Adobe Photoshop. Instead, MySQL, Desktop Linux, KDevelop and the GIMP are what we'd be looking at using.
Vox is fond of pointing out that there have been few "great works" in the modern IP age. That may be true in some respects, but there was also precious little creative work before that age. There was also very little investment into science and engineering because there was no meaningful way of getting a return on investment.
And if I were to steal every line of source code and schematic that his company created, repackage it under my name and sell it, I would drive his business into the ground very quickly if I had decent business contacts. God help him if his people are using a programming language that can be decompiled, as that would make the surreptitious acquisition of his source code even less necessary.
It's also clear that Vox has never considered what would happen if a more powerful, connected company took his IP and marketed as their own. All of his investment into it would be obliterated by a fast-moving, entrenched player with the resources to bring him down and him with no legal recourse to protect his work.
In that environment, there would be short term bursts of innovation, but they would come as patches on existing products and ideas. One need only look at the majority of open source software to realize that this model of development, wherein one does not sell copies of the IP, does not lead to serious investment of capital and labor into building meaningful improvements. As it is, Desktop Linux, drivers-aside, is only now where Windows 98 or maybe Windows 2000 was, despite having a similar time frame to get to where Windows 7 is. It may be "good enough," but it is hardly a success story.
And as I said, in an IP-free world, there would be no restrictions on taking your exact product, and selling it under my company's name. Why would I need to contribute to the sciences and engineering when I can simply buy your product, reverse engineer it, and sell exact clones of it under my name? Why would Oxford need to buy Vox's new educational service if a competitor got his code, cleaned it up a little more, and offered it to them at 25% the cost (no R&D, so little overhead!)
Sorry to be a late comer to this discussion.
The point make by Mike--that IP creates a profit motive to create--is key I think. Without that profit motive, there are some things that don't get created, or created as fast. While Vox's point (made months ago, don't remember when, on his blog) that much creative activity predated IP and continues despite it, I do think that technology advances faster and better when people's self-interest is harnessed.
All that said, I tend to dislike IP as nothing more than a government-sanctioned monopoly granted as a favor to one party over another. It is my fear of government interference in the marketplace that causes me to lean more toward Vox than the RIAA, which has become the poster child for why IP is quite tarnished as a legal/moral concept.
You should also note that most IP are not consumer ideas but ideas for manufacturing processes. Those ideas are a little easier to keep inside. Your software examples for instance mention the relative ease of decompiling code into source code. But many people do not have the skill or inclination to do it themselves, so they will get someone else to do it. Who better to give a mod contract to than the people who understand it well enough to create it in the first place?
Software to decompile, software to file share, software to crack anti-copying code are all innovations themselves.
There are also subtle differences in quality of copies and brand loyalties to consider. Anyone can sing a rolling stones song, most can do it better than the stones. But better is not worth more money in the market place, nor is a memorex DVD copy (with superior sound quality) worth more than a 33 1/3 RPM Vinyl recording in the original wrapper.
If people were this rational, then a significant amount of engineering outsourcing wouldn't be happening. In many cases, however, the process of modifying the software is not nearly as complex as you might expect.
The basic problem, though, is that if you don't have to buy the software to use it, why should you buy it other than some enlightened-to-the-point-of-being-self-sacrificial understanding that if you don't pay the producer of the good, he or she won't have any money to support their future efforts? In many cases, companies have no reason to buy licenses, since they could handle most of their own maintenance issues (security issues being the one possible exception) with their own staff. There is no basic business need to buy the software, just as there is no personal reason to buy a game you can just as easily copy rather than buy.
IP may be different in many respects, but it is still a form of property, even if it is inferior to physical property. A pirate culture that goes mainstream will end up following a property rights path equivalent to how many deranged individuals go from torturing animals to hurting people.
Quality was mostly thrown out the window as an issue by MP3. It has even gotten to the point that the distortion effects of low-quality encoding jobs is now considered preferrable by many young people to the original, uncompressed music. The problem with your argument is that most people are cheap. If they can cheat the system to get "most of what they want" for free or almost nothing, that is preferrable to the original brand unless it is either free or costs almost nothing.
So what is a "sizzle sound" that MP3s put into music? I cant say as I have heard it. For the record I usually put my music into 128 bitrate mp3 because it meets that balance between quality and file size. The higher bitrates do sound a bit better, but to me the difference isnt sufficient to outweigh their increased use of my hard drive.
Mike,
You are correct (and as EW pointed out) that the profit motive does spur innovation. Today's IP law isn't so much about that as it is about bestowing special favors upon the well connected. No industry could get away with what the RIAA has been doing which lets us know that they are well connected and probably spend a fair amount of money buying themselves senators and representatives.
Speaking of the RIAA, I am STILL waiting for the $10 CDs they promised. <a href="http://www.youtube.com/watch?v=TJ5iHaV0dP4&eurl">Trent Reznor</a> addressed this same issue, calling them "greedy bastards" and encouraging the fans at his concert to "steal away" in order to send a message.
Also, since I am following links here... what do you think of <a href="http://www.theregister.co.uk/2009/04/23/browser_silencer/">this</a> Apple is going to patent a plan for selectively removing souind from web pages, in response to noice making ads of course.