If two joggers wearing portable CD players meet, and one gives the other their CD of Barry Manilow’s Greatest Hits, and the other reciprocates with their CD of Cher’s Greatest Hits, then each jogger still has just one CD each.
However, if two basket weavers meet at a market, and each, in admiring the craftsmanship of the others’ work, agrees to weave the other a replica of the one basket they each have left, then they both end up with two baskets each.
So, clearly, with material handicrafts, exchanges are more productive, whereas with intellectual works and digital technologies they are not.
Well, this is the counter-conclusion to the frequently quoted George Bernard Shaw aphorism: “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”
The point about sharing or communicating ideas is that it involves copying. We do not yet have the technology to manufacture copies of apples as easily as we may manufacture copies of baskets.
- Exchanging intellectual works, or ‘communication’, is typically accomplished by copying rather than movement – because copying is usually cheap.
- Exchanging material works, or ‘barter’, is typically accomplished by movement rather than copying – because copying is usually expensive.
An exchange simply means that two parties each perform an action as part of what is usually agreed to be an equitable transaction, where each party receives something from the other. Whether copies are produced in the exchange is coincidental, and simply indicates that productive labour took place rather than only transfer of property.
The only peculiarity of ideas (as opposed to any externally fixed intellectual work) is that while they may be copied (given comprehendable explanations), they are almost impossible to remove from the possession of their owners, except perhaps by induced amnesia or hypnosis.
So, apart from the inaccessibility of human minds, there’s no magic in communication (copying) vs barter (moving).
Given the absence of magic in copying, we can instead wonder at the motivation for quoting Bernard Shaw’s aphorism.
The quote is typically used to suggest that intellectual property is an oxymoron or that (given copying is facially productive) there can be no such thing as theft of intellectual property. For example, if you steal my one basket, I have no baskets, whereas if you steal a copy of my CD, I still have it. This is to misunderstand the wrong in stealing. The rights violation is not simply to diminish someone’s property, but to violate their privacy (property derives from the right to privacy). The logical remedy is to undo the violation, i.e. to return the material or intellectual work removed (including any copies manufactured).
Thus if you had instead burgled my private workshop to make a basket with your own materials that copied my new, secret basket design, despite no material theft this would still be stealing, i.e. theft of my intellectual work in my private possession, theft of my intellectual property, violation of an inventor’s exclusive rights to their designs. It doesn’t matter that you are productive in your act of stealing a copy you’ve made.
Just as it is invalid to say that productive theft cannot be stealing, so it is also invalid to say that infringements of privileges are stealing. If you buy a CD recording of a concert you attended and make a copy of what is your own property, you have violated no-one’s privacy. There can be no theft – whether of material or intellectual property. You may be infringing someone’s privilege (of copyright), but that is not theft.
As for the violation of exclusive rights (as recognised of authors and inventors by the US Constitution), this requires removal, communication or copying to occur across the boundary of a private domain (without the owner’s permission), although this can be abetted by further distribution of the intellectual property so stolen.
We should conclude that communication can violate rights in only the following ways:
- It constrains another’s liberty (drowns out another’s speech)
- It impairs the truth (deceives or misrepresents)
- It commits or abets a privacy violation (distributes stolen IP)
- It jeopardises life (incites violence)
Communication is the copying of information. Human communication is speech, and moreover the liberty to communicate is a fundamental right not only necessary for the individual, but also for cultural exchange. It cannot be abrogated to create a transferable privilege for the commercial benefit of printers. That said, immortal coporations having no rights may be regulated and subject to such monopolies if a government can demonstrate this as being beneficial to its mortal citizens.
Therefore, as long as no rights are violated, any copyright infringement that occurs in an individual’s communication cannot render their act unethical. Moreover one could say that such copyright infringement is ethical.
Good write-up. Takes a bit of thinking, which is good. This appears to be your central theme: “The rights violation is not simply to diminish someone’s property, but to violate their privacy (property derives from the right to privacy).” Seeing this is very helpful, as most people (including me) normally view property rights as evolving out of scarcity.
You also make a very valuable observation with: “If you buy a CD recording of a concert you attended and make a copy of what is your own property, you have violated no-one’s privacy.” One of the things that has bothered me with ongoing copyright aggrandizement is that copyright holders, in some situations, now claim licensing fees for items that are in public’s view, such as buildings or cars. For example you take a picture where a building is in the background that is incidental to your photo-shoot of a model. The building architect then claims that you own him a licensing fee. If you put something out where the public can see it, you are forfeiting some of your rights.
Seeing this is very helpful, as most people (including me) normally view property rights as evolving out of scarcity.
Yes, scarcity is a bit of a red herring. Just because it is cheap to tell a secret to the world, or communicate someone’s original art or invention, this does not sanction stealing it, nor does it negate the need for restitution in the event of theft. Moreover, the voluntary sale thereof should be an exchange for money or equivalent goods, not the commercial exploitation of the public’s suspended cultural liberty (nor their taxation).
The scarcity/infinite reproducibility argument, just as copyright, is spawned from focussing too closely on the value of copies or the cost of their manufacture, rather than the ownership and value of the intellectual work so copied.
I believe the best argument concerning intellectual work is to be found by looking at the rights of the matter, primarily the right to privacy of the individual creator/owner of intellectual works (intellectual property), and the right to liberty of the individual to share and build upon their intellectual property (works created, purchased, found, or been given, but not stolen).
If you put something out where the public can see it, you are forfeiting some of your rights.
You never forfeit your rights. Rights are inalienable. Your liberty may be temporarily suspended as a remedial measure if you persist in abusing it to violate the rights of others, but the right remains even so.
As for publicly visible aspects of one’s otherwise private material property, you only have a natural right to control that which is naturally in your private domain, i.e. your material and intellectual property in your physical sphere of influence that you are naturally able to control through your physical possession and bodily power to exclude others from. Logically, if something is naturally visible to the public (with no reasonable expectation for it not to be), its image cannot be private, and no individual can expect to control what any member of the public may do with what they can naturally see (as long as their actions do not violate rights, e.g. to truth). So, there’s no natural right to prevent anyone else copying the look of one’s house, whether architecture or exterior decoration.
Copyright and patent derogate the individual’s right to liberty (and privacy) in order to create commercially valuable monopolistic privileges for the benefit of publishers of authors’ original works and manufacturers of inventors’ novel mechanisms. The problem for publishers and manufacturers is that mass production facilities are now in the hands of the people, and the people are bemused to find their liberty to use their own means of production has already been sold (by a state not empowered to do so). Naturally, the people want their liberty back, and will steadfastly refuse to recognise the validity of the anachronistic privileges of copyright and patent that require its unethical suspension.
My use of language, such as “forfeit” is probably less then precis. I fully agree that:“Logically, if something is naturally visible to the public (with no reasonable expectation for it not to be), its image cannot be private, and no individual can expect to control what any member of the public may do with what they can naturally see (as long as their actions do not violate rights, e.g. to truth).”
I wonder what president Obama thinks of the idea that citizens should not have the liberty to publish their recordings of his inauguration?
Free speech as long as you have permission from the corporate copyright holder eh?
Since all so called “Intellectual Property” works created by the American government is immediately released into the public domain, how could the Inaugural Committee have given HBO the right to exclusivity of this event?
The inauguration would itself be in the public domain, so even if HBO was granted permission to film the event themselves, it wouldn’t follow that they would have any right to any films made by other citizens.
With the clarity afforded by hindsight, here and now as we near the close of the year 2010, I would venture to suggest President Obama’s vigorous prosecution of ACTA would indicate he probably had no objections to HBO’s actions.