It’s not unreasonable to claim that creators of art and entertainment deserve the legally enshrined right to make a bit of actual money off their work. What is insane is the way the law has been warped to the benefit of corporations - and to the detriment of actual artists.

But to say there’s no virtue in the notion of “intellectual property” is silly, in my opinion. Even the copyleft movement still assumes a basic right to ownership on the creator’s part, and its advocates usually release their work under a Creative Commons or GFDL license - not straight into the public domain.

The way I can justify the current arrangement is to avoid a philosophical argument in favor of a more practical approach. I have been convinced by several lines of philosophical thought that intellectual property is a poor notion at best. That said, however, I still consider myself bound from copying and distributing cds, dvds, etc. The reason is that a practical promise is in effect that I will not do that. Prior to buying or downloading material from a source they usually ask that I not copy the material and give it to people. Whether those people have a philosophical right to make this request or not, they do, and I agree in order to receive the material. There has never been a “I do not agree” button that gives me the material anyway. When no one asks me to do this (such as Mike Esterheld’s music online) I feel at liberty to do what I will because no such promise is in effect. This promise is important for me because to avoid it forces me into a lie in order to accept the terms of an arrangement with no intention of fulfilling them. So this doesn’t answer whether there is a cogent argument for intellectual property per se, but it is a reason to abide by the requested behavior despite a lack of philosophical rationale for it.

I’ve always liked this article about the Disney renaissance that started with The Little Mermaid. The author mentions many of the same problems you do.

I am experiencing a network error today that likes posting everything I write twice. Can someone with editing privileges put an end to my stuttering posts?

The article linked to by His Holiness is a really excellent one all in all, but I found it very curious that he bashed the use of Chinese gods as characters in Mulan but not the Greek gods in Hercules. Is this a European bias, or is there something I’m missing here? Certainly, you couldn’t tell the story of Heracles without mentioning a god or two - but then, Chinese folklore is just as pervaded by the immortals (“gods” might not be the best word if we’re translating xiān here) as Greek myths are with gods and nymphs and dryads and so on - or, for that matter, as Irish stories are with the sídhe and Germanic fairy tales with witches and dwarfs and the like. But there are no complaints about Fairy Godmothers or mirrors mirrors on the walls.

The very word “property” derives from the Latin proprium, what is especially one’s own, what belongs to me and to no one else. By nature intellectual content is unapt to meet such a description. The whole concept of “ownership” becomes irrelevant when the “property” is infinitely multipliable at will. Think of the notion of intellectual “theft”—what kind of stealing is it if, after I steal your property from you, you still own it? Or think of “selling” an idea—after I sell it, I still have it! I’m simply being paid off to act as though I didn’t have it any more, when in fact I do.

The notion of intellectual property is completely separate from the issue of plagiarism—I don’t have to “own” a poem or an image to expect to be recognized as its author—and from that of being compensated for work. In past times works were commissioned and artists, designers etc. were paid a flat fee for their labor: this seems far more just. As you recognize, this is more or less what actually happens in a huge percentage of cases today: Disney or Microsoft or whoever pays their employees a wage for their labor in producing some intellectual content, in effect subsidizing their work, just like a Medici commissioning a statue from Michelangelo. M. received a fee for his work. But when M. was done, Lorenzo owned the statue, the physical object, the piece of property, and not every copy and image and imitation and likeness that would ever be made of it. A medieval prince might commission a poem from a poet, and would pay for it and then own the book, but did not expect to “own” the right to make any further copies of the book.

You equation of intellectual property with just compensation for work also seems off the mark because of the way that royalties inherently function. When I buy a DVD from Disney, I’m not compensating them for their work, I’m buying a physical object, a plastic disk in a box. I want that particular disk because it contains a particular bit of information, true, but the work that was done to create it was paid for long ago when the artists received their wage. Disney “owns” the pattern of 1s and 0s, the images and sounds, only because everyone for some reason agrees that they should continue to be paid for work long completed and compensated, in addition to the expense of producing and distributing the physical objects which contain and convey the information, which is the only actual “property” involved in the transaction.

In fact the notion of intellectual property only arose along with the ability to copy works easily and cheaply. In pre-modern times it was to everyone’s advantage for information to be spread as freely as possible. It still is today, but now one is able to make sums of money off of mass-producing books or disks that was not possible before because such production was not yet possible, and so there’s a clear and selfish advantage in claiming the sole right to make copies. There may be other ways of defending such a right, but for the life of me I don’t see how it can be based in the fiction of owning an idea, or a form, or a pattern, or a concept.

The concept of intellectual property is a very successful attempt to take something intrinsically spiritual, an idea or a universal form, and treat is as though it were something material, something which can be possessed or owned by one person the exclusion of another. It’s true that a lot of our economy and ways of operating are built around this fiction. But a fiction it remains.

Ah, well I see that the Wikipedia article on intellectual property and other first-google-page sites spell out my arguments with greater detail and precision, so I could have saved myself the trouble. And yet I made these arguments up all by myself. See! I couldn’t possibly own them …

Or do I own the sentences which enshrine my arguments? But I don’t own any of the words. Do I own the phrases? The clauses? When do they go from being everyone’s words as I combine them to becoming my words? This is purely a matter of nomos, not of physis.

To a substantial extent, I agree with you. I think you’re being a bit disingenuous talking about “owning ideas”, because that’s not the issue at all - copyright law has no bearing on ideas.

However, to a different substantial extent, I also think you have no idea what you’re talking about. As an occasional would-be-writer, this is something that I consider personally relevant. Writing’s not at all a lucrative profession at the best of times, unless you get really, really, really lucky. The arts in general rarely make much money for the content creators. The system is, of course, unfair; the RIAA bitches about copying, but they’re the ones who stiff the musicians. However, without a system of commercialized patronage - publishers, recording labels, movie studios - artists would starve, or, more probably, artists would get soul-crushing jobs that allowed them little time or energy or money for art, and wouldn’t be able to disseminate that art once they’d created it. I don’t defend Disney or the RIAA or anything else along those lines, and I already said I don’t support the kind of copyright extensions they’ve pushed through over the years, but the fact is that they’re part of a system (which is not uniformly evil) that serves as the thin lifeline making it possible for an artist to have some vague hope of ever making a living from their art.

By saying that plagarism is wrong, moreover, you seem to moot your entire argument. Where’s the theft in taking someone else’s name off a paper and putting yours on if they don’t own it in some way? You say that’s not the case, but you admit that a creator has the right to assert some level of control over the work they create. (To be precise, you say they have a right to “be recognized as its author”.) So you’re not really arguing that scholars and artists have no rights at all regarding the work they create - you’re simply saying you think their rights should have some limit placed on them. So am I. We could quibble on the details if we really wanted to, but despite what first impressions might tell you, we basically agree.

As a matter of nomos, surely it should be governed by, um, law?

Mr Marks,

you’re missing my point(s). I’m not saying we should just abolish all IP laws and let market forces take over. I’m saying that the current system is grounded on ambiguous or downright false assumptions and concepts and is not inherently sensible or just.

However, to a different substantial extent, I also think you have no idea what you’re talking about. As an occasional would-be-writer, this is something that I consider personally relevant. You say this as though the same thing doesn’t apply to myself, or as though I don’t know the rest of the paragraph’s statements. But the fact that the system kinda works sometimes and that we don’t have an alternative system right now doesn’t again make it sensible or just in its intellectual foundations.

Plagiarism is not when it comes down to it a matter of theft, but a matter of truth. Did I in fact form this sentence, or didn’t I? Did I think this thought or did I just say I did? Plagiarism is bad not because it takes something from the author which belongs to him, but because it claims for the plagiariser a merit which he does not possess. Harm might also be done to the original author, but in the realm of reputation and not of commercial goods.

As a matter of nomos, surely it should be governed by, um, law?

Of course. But people who defend IP act like it’s self-evidently property to which I the “creator” have a natural right as my “creation”, whereas in fact the laws are a set of commerical conventions which vary vastly from place to place and time to time and are in no way related to actual natural justice, the way, for instance, the right to a living wage for manual labor is.

Well, “property” is a pretty woolly concept in the first place. The laws on any kind of property are a set of commercial conventions which vary vastly from place to place and time to time and are in no way related to actual natural justice. In plenty of times and places in history, there have been societies that have denied a natural or self-evident right to own property simply because, say, one’s parents traded something for it.

Further, a living wage is not a right by law in this country, no matter what natural justice might say. Minimum wage is $5.15 an hour, a living wage in this city for someone supporting a family is apparently more like $12.16 an hour. How often does law really reflect natural justice, anyway?

Nate, I thought you’d called off the spam-eating robots now that you’ve got the captcha.

Mr. Gaudinski makes a good point about the “practical promise” and its implications. I spent some time considering (and in fact am still considering) how best to think of my music as a “product” that might, conceivably, earn a modest living at some point in the future. The thinking on this is beginning to change - which is good because the system is very whacked - and getting a “deal” with a major label is no longer seen as the Holy Grail by many musicians. When Michael Sullivan says that the artistic work has already been paid for by the time the consumer chooses to buy the plastic case and its contents, I know this is often not the case for musicians. Record companies do pay royalties on sales, but they also keep a careful tab on every cent they pay to produce and promote the music, and proceed to work hard - how hard depends on who you ask - to keep as much of the money from the album sales as possible. The scene for independent musicians is broadening, and new ways of doing the business of music are starting to appear. We’ll see how things go.

I remember buying an album by a not-too-famous band from PA that had written on it “Burn this CD? Burn in Hell!” I’m sympathetic, but for my part, I decided that - for now, at least - getting the word out is in fact itself a very valuable commodity, whether or not it helps me break even on my production costs. Obviously, I hope some folks will take a chance and buy the album (thank you for that as well, Martin!), but I’ve also been encouraging people to share the music with others as they see fit. I know how much music I was turned on to by burned CD’s and bootlegged concerts, and I would hate to become a hypocrite about it now that I have a CD for sale myself. If enough people become interested in the music, it aids the artist in other ways. There is more than one kind of value, to be sure. I’m also a hopeless romantic about it all, who’s still struggling a bit with the fact that there has to be a business side to art. But like Mr. Marks says, we’re trying to avoid the compromise of the “soul-crushing” job. The vocational Holy Grail, for me, these days, would be to make a reasonable living doing something that doesn’t make me want to go out and destroy fax machines in open fields with sledgehammers.

Will somebody kindly remove all the duplicates of my post? I feel like such a fool…

There, there, Mike, don’t feel bad. It’s been happening to everyone lately … we’ll have to talk to Nate, since he’s the only one of us that might know what’s been going on. I’ve deleted about 30 duplicate posts today by lots of people.

When Michael Sullivan says that the artistic work has already been paid for by the time the consumer chooses to buy the plastic case and its contents, I know this is often not the case for musicians.

No, I know this is true. In the context of the discussion I was thinking of things like Disney cartoons and Microsoft programs. Part of the problem I think with the system is that it seems like the only people that can make vast sums of money off of their “property” are the ones that didn’t produce it themselves. Either you make it for a wage and it doesn’t belong to you, or you do it purely as a labor of love, it’s all yours, and you stay broke. The runaway indie bestsellers in any medium are few and far between. It adds up to business opportunities for non-artists and non-thinkers, and the artists and thinkers have to hope and pray to be exploited by the suits. There’s got to be a better way!

I would hate to become a hypocrite about it now that I have a CD for sale myself

Yes—I’ve often asked myself where my principles will be if I publish a book.

For myself I’m not at all consistent in my copyright violations or otherwise. I will buy a CD or DVD instead of ripping it in order to give someone a royalty, or another sales count to let the bigwigs know people like what I’m buying and that they should keep it in print. The more I value something the more likely I am to pay for it, even repeatedly, even though by my own principles I don’t feel obligated to if the public library has it.

The vocational Holy Grail, for me, these days, would be to make a reasonable living doing something that doesn’t make me want to go out and destroy fax machines in open fields with sledgehammers.

How about Office Appliance and Equipment Disposal Technichan? Then you wouldn’t want to destroy fax machines, because it would be your job and you’d have to! Then you could wistfully wish you were off doing something else …

By all means, show your girls Pixar movies. Warner also has a fine film called “The Iron Giant” (loosely based on a favorite story of mine by Ted Hughes) which I highly recommend if you and your children haven’t seen it. I’ve watched it with my nephew countless times and have yet to grow tired of the film. I’ll admit to watching it in his absence as well. I’m not sure how old your girls are…the film is dark, so I’d suggest watching it yourself first and possibly waiting until they are a bit older.

In addition to other problems that have been noted here, Disney’s portrayal of womens’ bodies is ridiculously unrealistic and this gives many girls self-image issues. Though magazines and advertisements also have this effect soon enough, there is no sense in having that influence start from childhood. And, as Larry Wilmore says in the following clip, “Disney teaches that through pluck, determination, and Elton John lyrics, they too can have a wealthy prince carry them away.” Yuck.

http://www.ifilm.com/video/2837984

Larry Wilmore rocks. That is all.

This is one area of feminism I can get 100% behind. I heartily second Amanda’s recommendation of The Iron Giant, btw.

It mystifies me a bit to see my friends who are parents allowing their children to consume movies and television that they themselves do not approve of. Is there such a dearth of interesting things that also interest children? Between Miyazaki, Pixar, Brad Bird, and the Muppets, don’t we have a substantial enough store of worthwhile art to keep our children entertained?

I plan to keep my kids occupied with Oregon Trail.

Patents seem to have been lost in the shuffle. They are IP, they are ideas, and the U.S. Patent and Trademark Office seems to have engendered an era of foolishness. Arguments that might sound extreme when only extended to copyrights do not sound so extreme in the context of patents.

Separately: I am not a parent, so I cannot speak to that aspect of the Little Mermaid issue. But the Mrs. and I have had occasion to manage our parents, and have had success erecting boundaries in appropriate places for our well-being (and theirs). Consensus plus a plan of action plus a proffered alternative (No to the Little Mermaid, Yes to [some other stories we have common respect for], “Remember those books you read me/movies you took me to see when I was her age?”, etc.) has done the trick for us.

Ex-Coke secretary sentenced to 8 years

ATLANTA - A former Coca-Cola secretary convicted of conspiring to steal trade secrets from the world’s largest beverage maker was sentenced Wednesday to 8 years in federal prison.

Joya Williams, 42, faced up to 10 years in prison on the single conspiracy charge in a failed scheme to sell the materials to rival Pepsi for at least $1.5 million. She was convicted Feb. 2 following a jury trial in U.S. District Court in Atlanta, where The Coca-Cola Co. is based.

“This is the kind of offense that cannot be tolerated in our society,” U.S. District Judge J. Owen Forrester said in imposing sentence.

A co-defendant, Ibrahim Dimson, was sentenced to 5 years in prison.

Forrester’s sentence for Williams was more severe than the 63- to 78-month sentence recommended by federal prosecutors and federal sentencing guidelines.

He said the seriousness of the crime necessitated a departure from the guidelines, which federal judges are not bound by.

“I can’t think of another case in 25 years that there’s been so much obstruction of justice,” the judge said of Williams’ conduct.

Forrester ignored a tearful apology by Williams, which was the first time she acknowledged what she did.

“Your honor, I have expanded my consciousness through this devastating experience,” Williams said before she was sentenced. “This has been a very defining moment in my life I have become infamous when I never wanted to become famous.”

She added, “I am sorry to Coke and I’m sorry to my boss and to you and to my family as well.”

The government said Williams stole confidential documents and samples of products that hadn’t been launched by Coca-Cola and gave them to Dimson and a third defendant, Edmund Duhaney, as part of a conspiracy to sell the items to Pepsi. Duhaney, like Dimson, pleaded guilty to conspiracy. Duhaney will be sentenced later.

The conspiracy was foiled after Pepsi warned Coca-Cola that it had received a letter in May 2006 offering Coca-Cola trade secrets to the “highest bidder.” The
FBI launched an undercover investigation and identified the letter writer as Dimson.

Williams was fired as a secretary to Coca-Cola’s global brand director at the company’s headquarters after the allegations came to light.

Williams’ apology Wednesday lasted for several minutes and she asked the judge to show mercy, though Forrester had told her previously that he planned to depart from sentencing guidelines

“Punishment is the memories and the moments that I’m going to miss,” she said. “Punishment is never having a family of my own.”

Assistant U.S. Attorney Byung J. Pak told the judge that Williams didn’t deserve leniency.

“Choices have consequences and she made those choices,” Pak said. “She chose to go to trial and she lied on the stand.”

At the hearing, prosecutors disclosed that Williams has two prior convictions, one involving making false statements related to unemployment insurance.

Williams’ lawyers had repeatedly asserted in court and out of court that Williams had no criminal past, and the government until Wednesday did not challenge that assertion.

Speaking of which, there’s been some big news in patent law recently, which may render things a little less insane in the future.

Having been raised without Disney movies myself, I can highly recommend the experience to others.

Mark Pilgrim’s post-KSR rant on patents covers familiar ground. I think I would have quit if it had come to that. (I have the luxury of not being tied to a house.)

I think a major problem with Disney films (and children’s films in general) isn’t any objectionable message they might convey, but a parental reliance on tv/film as a “babysitter” for children. I do not mean to suggest that any time a child watches tv, it’s because a parent needs a break, or that parents don’t need breaks, but I know countless households where the tv is continually on or children are allowed/encouraged to watch multiple films a day. Certainly children are influenced by media, but I think it’s up to the parents to make sure that they are the most important influence in their children’s lives.
As a personal anecdote, I remember being invited to go see “The Lion King” by a neighbor when I was 12. At some point before or after, my mother made some sort of disaproving remark about it containing “New Age” themes. I remember thinking at the time that the few examples in the film hardly seemed like reason to avoid watching it, and that it seemed silly of my mother to think I might start practing pagan rituals after watching it once, when my parents had always made church an important part of my life.

On another related Disney note, last summer I was exposed to quite a lot of “The Disney Chanel,” and was rather pleased at how good it was. I found most of the shows entertaining and fairly edifying. In contrast, the few times the children I was babysitting tried to watch Nickolodean, almost immediately I was struck by how inappropriate the progam was and changed the tv back to the Disney Channel.

Also, Michael, I’m interested in knowing how old Clare was when she first started watching films.

Clare was 2 when we started letting her watch movies. We have given and thrown away a lot of videos we found unbearable that the grandmothers amass. Martin is right, Oregon Trail is wonderful. We don’t have any TV reception at all (I broke the rabbit ears while on a cleaning spree), and we don’t miss it.

And yes, there have been days when Clare has watched multiple movies. You don’t know torture until you are really ill and have a bouncy toddler to keep busy. It’s horrible. But I still feel like we have as much control over her personality as we’re going to get.

I totally understand about needing to keep toddlers occupied. Sometimes movies can be a real blessing. I was curious about when Clare started watching movies because almost every time I’ve been with children under 5 who were watching a movie, they had older siblings. I just wasn’t sure at what point children are able to sit still for a whole movie and actually understand the storyline. I’m sure it varies to some degree.

I wonder, can anyone give me a really cogent reason why the whole notion of “intellectual property” is not bunk?

Would the fact that practicing in this area of law has fed, clothed, and sheltered my wife and children for the past 6 years count? I guess not. But I’ve gotta say that it is sort of hard to consider one’s own livelihood a complete joke, so I’ll take a shot at it.

“Intellectual property” is property only in the sense of having borrowed a particular economic right associated with property ownership, namely, the right to exclude from another’s use. It has nothing to do with “property” apart from that coincidental historical connection so far as I can tell, although it bears some resemblance to the labor theory of property that Locke uses to justify the legal right in the context of physical property.

The fundamental justification is economic. People are more likely to invest in what produces profit, meaning that if we give people an economic right to exclude that may be conditioned on payment, they will be more likely to invest money in the creation of these works. We therefore subsidize the creation of these works by yielding some of our freedom to use them. This is likely to create more investment in creation, which gives us more works available for consumption in the market, albeit at a somewhat higher price. Absent such a system, however, people are unlikely to be able to recover profit from such investments, meaning that they simply won’t make them.

If anything, people have been too enamored of the “property” metaphor, and they forget that these are really just economic rights analogous to what is given in the case of physical property. Much of the patent reforms currently being considered, for example, are aimed at aligning these legal rights with their economic purpose. These had become obscured particularly by the purchase and sale of patents to “patent trolls,” patent-holders who engage in no economic activity but file lawsuits against companies that do. Because the patents were thought of as some sort of definite property asset, the patent trolls were given the same rights as patentees in business, despite that being an unbalanced (and even absurd) consequence given the economic rationale of encouraging productive development for the benefit of consumers. To put it simply, I am entirely sympathetic that the “property” analogy is inapt and misleading, but I do not think that the economic right to exclude others from copying the product of one’s creative work is “bunk,” either in principle or in terms of actual social benefit.

Hey, I like copyright because it enables copyleft, which can be defined as “the right to exclude from another’s use the right to exclude”. This is in line with Martin G.’s qualms about stealing art: I don’t steal, but I don’t use a lot of proprietary software either (just my Wii, my cellphone and flash, I guess). On the other hand, I hate technical restrictions on fair use that are protected by law and will gladly violate DMCA provisions. Worst law ever.