Subject: Re: [arch-dev] universities struggling to avoid making money
From: "Benjamin J. Tilly " <ben_tilly@operamail.com>
Date: Mon, 26 Aug 2002 20:16:07 +0500

"Stephen J. Turnbull" <stephen@xemacs.org> wrote:
> >>>>> "Benjamin" == Benjamin J Tilly <" <ben_tilly@operamail.com>> writes:
>
> "Stephen J. Turnbull" <stephen@xemacs.org> wrote:
> > >>>>> "Jim" == Jim Choate <ravage@ssz.com> writes:
> [...]
> > Caving in to Microsoft on IP issues would not be socially beneficial,
> > IMO, but calling strong IP "legal theft" just alienates reasonable
> > people who could otherwise be your allies in the policy debate.  Not
> > to mention lots of _unreasonable_ people: Jim Buchanan, Ron Coase, and
> > Milton Friedman all backed the libraries in their lawsuit against the
> > copyright extension by signing the amicus brief.
> [...]
>
>     Benjamin> Don't I recall that the brief that Friedman signed his
>     Benjamin> name to labelled the extension of existing copyrights as
>     Benjamin> a form of public taking with no compensation?  If that
>     Benjamin> isn't a form of theft, then I don't know what is.
>
> I think you should review the definition of theft.

OK.  Is the definition at http://www.dictionary.com/search?q=theft
acceptable?

  1. (Law) The act of stealing; specifically, the felonious taking and 
     removing of personal property, with an intent to deprive the 
     rightful owner of the same; larceny.

     Note: To constitute theft there must be a taking without the 
     owner's consent, and it must be unlawful or felonious; every part 
     of the property stolen must be removed, however slightly, from its 
     former position; and it must be, at least momentarily, in the 
     complete possession of the thief. See Larceny, and the Note under 
     Robbery.

And the definition of felonious in a legal sense means, "done with 
intent to commit a crime."

Can we agree that it is a crime for lobbyists and Congress to attempt to
undermine the Constitution?

If so then I think that theft fits in this case.  Copyright extension
is agreed to be a form of taking.  It takes and removes from each person
in the Union rights that would otherwise have been theirs, and there is
no question that that is the intent.  The taking is without the owners'
consent - as demonstrated by the filing of a lawsuit that has now 
reached the Supreme Court.  The only question that remains is whether
this action is felonious.  And indeed both the history of copyright
extensions and the actual debate in Congress make it clear that the
intent is to render moot the limitation on IP in the US to limited times
through a perpetual series of extensions.

While I sympathize with the desire not to tick people off, there comes a
point where we should call a spade a spade.  And the achievement of
perpetual IP through perpetual IP extensions is a form of theft in my
books.

> Be that as it may, this is exactly what I was advising against.
> "Extension of existing copyright" is not synonymous with "strong IP";
> in fact, they're basically independent.  And my central point is that
> Friedman & Co, advocates of strong property rights though they are,
> often will take positions against extension of property rights in this
> arena.  If so, less extreme thinkers should be _more_ persuadable.

It is not a question of a sliding scale.  It is a question of having
different world views.

Friedman & Co are advocates of strong property rights and are against
the extension of existing property rights _for the same reason_.  They
want people to benefit economically for generating useful economic
activity.  Strong IP accomplishes that (in their view) by increasing the
motivation to create IP.  Copyright extension does not because it
rewards people for work already done.

Thomas Jefferson, and much of the free software world, are against both
copyright extension and strong IP for the same reason.  They view
monopolies as a bad thing, and are only grudgingly willing to allow
highly qualified monopolies for temporary times because it is
economically useful to do.  The average economic value of extending
copyright to perpetuity is mere pocket change (with a few very notable
exceptions).  As testified in briefs to the Supreme Court, tracking
down random copyrights on documents from the 20's and 30's which there
was reason to believe would be relatively easy to track was 10 man-hours
per copyright.  The transaction costs of maintaining the legal fiction
of copyright at that extent clearly exceeds by quite a few orders of
magnitude the economic benefit derived, and therefore even before you
add the issue of the injustice of artificial monopolies, it makes no
sense.

Many copyright holders are for copyright extension and strong IP again
for one reason.  They view the creation of intellectual property as an
act of creation as real as any creation of physical objects or the
development of property.  And they view the awarding of the thing
created to the creator as a basic principle no matter what kind of thing
is created.  IP is the definition of that right, and once awarded they
ask why they should be uniquely singled out of the various kinds of
property holders for having their property that they created taken away
from them after a limited time.  So their view is that they own IP, and
it is fair that they should own it in perpetuity.

If, like me, your notions of intellectual property were formed through
the debate in the free software community, this view seems initially
strange.  For a sense of how natural it actually is I can highly
recommend _Authors and Owners : The Invention of Copyright_ by Mark Rose
for a good overview of the formation of the notion of copyright in
British Common Law.  One of the main questions being whether copyright
should be limited in term or perpetual - and the arguments given then
are still echoing today.

> Granted, there really isn't a middle ground for FSB and Friedman that
> I can see (Russ Nelson might have something interesting to say about
> that, though).  But why deliberately alienate those who find the
> strong property rights position more or less persuasive by drawing
> attention to the excesses of the pork barrellers as if they were the
> main line of thought?

The identification of a middle ground requires first figuring out why
each side holds the positions that they do, finding the plausible
meeting ground between them, and then convincing each to meet there.
For instance Friedman and the standard FSB position meet on copyright
extension.  But they won't meet on strong IP unless Friedman & Co can
be convinced that micropayment models fail theoretically as badly as
they seem to in practice.

But there are many groups who have their own sides and combinations of
positions for their own reasons.  And I don't believe that the reasoned
economic arguments of Friedman and friends are the main line of thought
among people who support strong IP.  While it is easy to dismiss
Congress and the RIAA as "pork barrellers", flipping the "bozo switch"
there prevents you from hearing or being able to address the arguments
that influencing people towards strong IP.

The fact is that the arguments for strong IP and long copyright terms
that you hear today from authors like Harlan Ellison fall into an
intellectual tradition that goes right back to Alexander Pope and
William Blackstone (both of whom argued for perpetual copyrights).
While you might not _agree_ with them, that does not mean that their
position is going to strike people as obviously unreasonable, and does
not mean that it should be dismissed out of hand.

Cheers,
Ben
-- 
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