Transterrestrial Musings

Comments

> Now B has increased his wealth by the amount that he values said material property, and A's wealth has not been decreased in any way.

Really?

Part of a Porsche's value (to owners) comes from scarcity. Much of the value of Porsche the company comes from being able to restrict the supply, and certainly to profit exclusively from supplying demand.

If someone produced Porsche clones and sold them at cost, both the value of the Porsche company and the value of the Porsches already sold would go down.

Posted by Andy Freeman at July 13, 2003 08:26 PM

That's actually a good point, something my antagonist in the other post wasn't capable of coming up with.

I'm not sure it applies in this particular case, though, because I don't think that many people procure music because of its scarcity.

And even if it is, it's still clearly different in nature than simply tranferring ownership (or at least possession) of a material object from one person to another. It's a more ephemeral (though not unreal) harm, like slander or libel.

Posted by Rand Simberg at July 13, 2003 08:35 PM

Your example is too narrow to be really useful. If owner A of intellectual property simply owns the property without selling it to anyone, and then B, who wouldn't have bought it anyway, copies it without paying for it, then in this closed system, A's losses are pretty ephemeral.

Unfortunately, that example doesn't approximate anything in the real world. Change it a bit, though, and have A own his intellectual property and sell it to the public. Now, posit several "B"s, all of whom copy. Now, at least two issues present themselves. First, would any of the "B"s have bought A's property if they hadn't been able to copy it for free. If any of them would, then their unauthorized copying of the property damages A to the extend of the amount that they would have paid.

There's another loss here, though, that manifests itself in the effect of the Bs actions on the people (let's call them "C"s) who would normally buy As property. Even if these Cs do not choose to become Bs and copy the property, that doesn't mean they're unaffected. Some of them, knowing that the property is available for free (albeit illegall) will no longer be willing to pay as much for it. The rationale, though likely not articulated, would go something like: "I do not wish to steal property. I realize that by stealing, I could have the property for free. Still, my desire not to steal, not to feel guilty, and not to have to go to the hassle of copying the property, has value to me. I value those intangibles at $10. Accordingly, if the proprety costs less than $10, I will buy it. If it costs more, I will steal it."

Additionally, a vigorous market in stolen versions of the property may cause some Cs to stay out of the market all together. Imagine: "I would normally be willing to pay the $15 that A is asking. Still, I know that a lot of Bs are getting this for free. Now, I am unwilling (or technologically unable) to steal the property, but I'd feel like a chump if I paid good money for what others get for free. I think I'll just pass altogether."

Of course, I'm a firm believer that it wouldn't matter whether A is injured or not. I think that the actions of B in your two scenarios are morally indistinguishable, even if the harm to A is different. My point is, to the extent that scenario B is intended to model issues related to unlawful music copying, it fails to capture what's really going on.

Posted by Spoons at July 13, 2003 09:07 PM

Chris, your point is why I'm somewhat ambiguous about it, but I disagree with this statement:

I think that the actions of B in your two scenarios are morally indistinguishable, even if the harm to A is different.

If the harm is different, then the moral situation is different. I've never claimed that copying or file sharing is right in any absolute sense. I've simply been trying to provide an explanation why some people who wouldn't rob banks (and not just for practical, but moral reasons) are willing to file share. They are different, even if both are wrong.

Posted by Rand Simberg at July 13, 2003 09:19 PM

Yeah, I didn't expect you to agree with that one. I just threw it in there so you'd know where I was coming from.

Posted by Spoons at July 13, 2003 10:34 PM

The effectiveness of a particular economic model (as with any model) derives from the degree to which it maps to the real world -- that is, unless one supposes that economics exists somehow in a neo-Platonic "superreality"...

The notion of "real property" is ancient, and the model is well-developed; but intellectual property is fairly recent, copyright being developed only after movable-type printing (in a very different initial form, too!), and not assuming its present form until after its embodiment in the United States Constitution. The notion of recorded music being subject to copyright of course had to wait until Edison developed sound recording, and the same limitation applies to movies and video. Now we face the issues brought about by the switch from analog to digital representations of the data.

I think Rand is right, and the basic problem we're facing is that the models no longer appropriately map the reality: we're still trying to apply the economic models developed for printing to all these fundamentally different entities, and they simply don't fit. Perhaps most of the music downloaders don't articulate this well, but I think their actions demonstrate how profoundly they understand the problem!

Posted by Troy at July 13, 2003 11:26 PM

Thank you both for keeping the discussion civil.

"Harm" in and of itself is not a valid criterion for determining the morality of a given choice. It is not hard to conjure examples where harm is morally proper and indeed required: self-defense, for instance, or perhaps where some minor harm now will prevent greater harm in the future.

There are other situations where an action can be immoral without causing actual "harm" (as you use the word, Rand). Somebody may enter your home, "borrow" some of your belongings, but return them before you notice. In this case, you have suffered no actual harm, but the intruder's actions are still immoral. The reason is that "harm" does not determine the morality of an action, rights do (at least in a social context).

People have the right to control their property and trade through mutual consent and contract on a free market. Any violation of that right, regardless of any secondary consequences (of which "harm" may or may not be one), constitutes a moral breach. Intellectual property is still property--it still contains all the essentials that make property, property. As such, somebody's right to control it is absolute and violating that right through piracy is definitely in the same "category", ie type and degree of breach, as stealing somebody's physical property.

The fact that most people assosiate stealing with causing harm rather than violating rights is a sad testimony to the masses' poor understanding of rights in general. The fact that most people believe piracy is somehow essentially different from theft of physical property is not a valid basis for claiming that that is indeed the case; you must posit some real reason to distinguish them. As I point out above and below, as well as elsewhere, "harm"--real or potential--is not one of those valid reasons.

"Harm" caused by some action is a secondary offense and does not constitute that action's morality; therefore, it is inaccurate to say that an action is moral because nobody has suffered any harm, or that it is immoral because somebody has. Thus, you cannot draw a distinction between intellectual and real property based on the "harm" that theft of either causes (though theft of intellectual property does indeed cause harm, but that is not the point). Nor can you morally differentiate between "harmful" theft of physical property and unharmful "borrowing" of that property. They are wrong for the same reason, ie they violate somebody's rights.

At this point I should note that nearly all property contains at least some element of intellectual property. This is the nature of property--it is legitimately acquired only through metal effort, and as such the cost of that effort will be reflected in the value of the property. Music is simply on the extreme end of the graph of intellectual property content: it is composed, if not entirely, then mostly of intellectual effort expended with much less capital invested. An item on the other end of the scale may be sand, where it has a very low amount of intellectual content required in order to produce it. The fact that one can be digitized quickly and the other cannot is irrelevant vis-a-vis its status as property and the rights contained therein.

Posted by Jason H at July 13, 2003 11:46 PM

Troy: This non-sense about the legal system not "mapping" to reality or whatever is bunk. I could easily claim on your grounds that in a riot characterized by mass looting, pillaging, and raping, the impotent legal system is failing to "map to the real world" and thus needs to be modified to "fit", i.e. legalize, the above-mentioned crimes.

I think their actions demonstrate how profoundly they understand the problem!

The "problem" of having to trade value for value on the market? The "problem" of there being no such thing as a free lunch? Yeah, I think the moocher pirates and theives understand that "problem" pretty well, too.

Posted by Jason H at July 14, 2003 12:01 AM

Intellectual property is still property--it still contains all the essentials that make property, property.

Is this true in detail? I think not.

For one simple example, real property may be owned in perpetuity, but (by Constitutional fiat) intellectual property may only be owned for a "limited Time[]", specifically to promote progress. That such rights were granted to "Authors and Inventors" and subsequently extended to artists, musicians, editors, photographers, filmmakers and others only complicates the issue -- as do the apparently-endless extensions of such "limited Times".

I submit that the model is flawed.

Posted by Troy at July 14, 2003 12:18 AM

This non-sense about the legal system not "mapping" to reality or whatever is bunk. I could easily claim on your grounds that in a riot characterized by mass looting, pillaging, and raping, the impotent legal system is failing to "map to the real world" and thus needs to be modified to "fit", i.e. legalize, the above-mentioned crimes.

Well, you could make that claim -- but I think you'd be guilty of grievously misunderstanding my argument if you did. I would suggest the American Revolution as a better example: the replacement of a faulty system with one more in tune with reality.

You're getting wrapped up in the definition of "intellectual property" as "completely equivalent to real property", not to mention conflating one sort of harm with another, and so your analogy of music downloading with "mass looting, pillaging, and raping" is just a bit stretched... as Rand has pointed out.

Posted by Troy at July 14, 2003 12:27 AM

And one more:

The fact that one can be digitized quickly and the other cannot is irrelevant vis-a-vis its status as property and the rights contained therein.

I disagree, and this actually goes to the heart of the matter: technological advances have made digital reproduction so trivially easy that it has affected the concept of "intellectual property" and its pertinent rights.

Every proposal I've seen to control such reproduction imposes major restrictions on the legitimate uses of such technology, and every instantiation I've seen of such a proposal is even worse, rendering many legal and proper uses impossible (unplayable CDs are one example). The extremely limited grant of rights in the Constitution is hardly consistent with the mass penalization of the populace; if something has to give, I propose it's the definition of intellectual property, and not freedom itself.

Posted by Troy at July 14, 2003 12:40 AM

Here is a Definition of theft from a dictionary:

Theft:

(Criminal law) the dishonest taking of property belonging to another person with the intention of depriving the owner permanently of its possession

Copying does not deprive the owner of its possession, so it is not theft. This does say nothing at all about wether illegal copying is more or less immoral than theft, but it is quite clear to me that the two are not the same.

Note that in many cases the owners of intellectual property claim more rights than the owners of real property: The owner of the intellectual property for one click shopping claims the right to prosecute everyone that independently invented one click shopping. You won't see the owner of a house claim theft when somebody builds an identical house next door...

Intelectual property is a government granted monopoly on information. This can be very harmful for progress since it even limits people that come up with that information indepently.

If you really think that intellectual property is exactly the same as real property, you probably think that it should be possible to own it perpetually. Then I guess the grandchildren of Sir Isaac Newton would be the richest people on the planet since they could collect royalties for F=dp/dt...

Posted by Ruediger Klaehn at July 14, 2003 02:56 AM

If it would be possible to do conveniently, vast majority of those evil file sharers would gladly agree to pay $0.0001 for next Britney Spears hit ( thats the real value of it )
Commercial mainstream music is so way overpriced, and the whole foodchain isnt willing to give their cash cows up. I hope they will be forced to.
It would be interesting to see how much of the money i pay for a CD end up going to the creator of the music. I'd bet its somewhere in 1% range.

Posted by at July 14, 2003 04:27 AM

To Anonymous,

there is no such thing as a "real value". If you think that the latest britney spears album is not worth 15$, then by all means do not buy it. But that does not give you the right to copy the album.

I do not know how it is in the US, but over here in Europe you pay royalties to the music industry for each blank CDs and each CD recorder, even if you use it only for backing up your own data. And *that* gives me the moral right to copy as much as I want, since they already forced me to pay for it.

But it would be possible to buy computer hardware without paying the music industry, I would no longer download music.

Posted by Ruediger Klaehn at July 14, 2003 05:45 AM

Interesting discussion. However, there's one point I haven't seen made yet: A's ability to live and continue producing. That is, if A depends on his products to make a living, but the value of those products drops to nil because they can be easily copied by swarms of B's, then A _has_ been harmed. Ask any professional writer of novels -- they would be unable to make a living if their stories could be freely copied and republished, either on paper or digitally, without them getting any corresponding income.

Posted by wolfwalker at July 14, 2003 06:22 AM

@wolfwalker:

I think nobody claims that illegal copying does not harm the copyright owner. But that still does not make copying the same thing as theft. See the definition of theft that I posted.

Posted by Ruediger Klaehn at July 14, 2003 06:28 AM

(Criminal law) the dishonest taking of property belonging to another person with the intention of depriving the owner permanently of its possession

I already explained why perceived, immeasurable "harm" is not what makes some action wrong.

Posted by Jason H at July 14, 2003 06:51 AM

@Jason H

We are not discussing wether illegal copying is morally wrong or not. We are discussing wether it is the same as theft. And it is not, as can be seen from the definition of theft.

Posted by Ruediger Klaehn at July 14, 2003 07:58 AM

Ruediger, we're not talking about the legal definition of theft. Morally, they are the same crime. That's the issue here.

Posted by Jason H at July 14, 2003 09:26 AM

I earlier named limited-time ownership as one difference between intellectual and real property. Another major difference is that real property typically doesn't have "fair use" associated with it (there are often right-of-way easements on real estate, sure... but not in your living room, or for your toothbrush!). Copyright violation isn't punished by laws against theft, but by a completely different set of laws; possessing stolen goods is a criminal offense, but simple possession of copyright-infringing goods is not. Patent infringement isn't a criminal offense, either -- the only recourse is civil action.

While there are some similarities between real property and intellectual property, there are also major differences. The decision to treat the two as equivalent is merely a convenience; this is implicitly recognized in the Constitution, where intellectual property rights are granted by Congress rather than being rights inherent to the people. Intellectual rights (which I regard as a more accurate phrase than "intellectual property") have evolved as a balance between uncontrolled copying and innovation (trademarks being one notable exception): too little protection reduces innovation, but too much protection imposes transaction costs which outweigh any gains.

The typical argument against these observations is that the law is simply recognizing the reality of a situation. True, true -- and the present situation is that digital copying is so ubiquitous and unpreventable that present laws against it make little sense. What is the use of having a law if it is completely unenforceable in practice? Let's recognize the present reality!

Wolfwalker, the Motley Fool has some good suggestions on how things might work with more-lax copyright laws.

Posted by Troy at July 14, 2003 09:35 AM

Morally, they are the same crime.

To you, perhaps -- but clearly not to everyone, judging by Rand's posts and many of the responses. Certainly they are differently-treated by US law. Posted by Troy at July 14, 2003 09:45 AM

Wolfwalker is completely correct on what the effects of non-enforcement of copyright would be. The real-world demonstration of this is Taiwan, a country with weak copyright, and as a result, a superabundance of pirated goods for things like books, music and movies. The result has been that the pirated goods have almost completely displaced legitimate local merchandise. It is very difficult to compete in the marketplace against products which pay only the cost of duplication, and do not have to amortize the cost of production.

Posted by Jon Acheson at July 14, 2003 09:49 AM

You continue to cite examples of how intellectual property is legally regarded differently than physical property. Obviously the law treats them differently and it is plain to see they are not the same thing, ie I cannot hold an intellectual property in my hand. The fact remains theft of either is morally the same crime. Its legal status is an entirely different matter.

What is the use of having a law if it is completely unenforceable in practice? Let's recognize the present reality!

What's the use of having a law against riot raping if it's unenforceable "in practice"? Should we recognize that reality? Women in riots just aren't adjusting to the "new realities of the market" by allowing themselves to be ravished non-stop--how absurd. Laws should not be based on what's easy to enforce, they should be based upon rights.

Posted by Jason H at July 14, 2003 09:51 AM

To take the analogy one step further.

If it gets too bad and A can no longer sell enough records because of B they might lose their recording contract and have to get a day job. This will certainly cut down on the quality and quantity of any future product by A and nobody to promote the product.

The end result could be a billion garage bands and no true professional musicians. This appears to harm A, B and C.

Posted by ruprecht at July 14, 2003 10:04 AM

@Jason H:

I think that there is a moral difference between intellectual property and real property: When you own real property like a house, you do not prevent anybody from owning similar property.

But if you own intellectual property like for example a combination of guitar chords or a computer algorithm, you deprive everybody else of the right to use these chords or this algorithm even if they came up with it completely indepently.

That is the reason why properly enforcing intellectual property requires a huge orwellian government while enforcing real property just requires a very small government (or a gun).

It is possible to own physical property without harming everybody else. But when you own intellectual property you harm everybody else because you have a government-mandated monopoly on certain information.

Thus I think that copying is not as morally wrong as stealing real property.

Posted by Ruediger Klaehn at July 14, 2003 11:18 AM

Jason, don't you think your persistent analogies between copyright violation and things like rape and murder are, er, just a little over the top? Maybe?

The fact is that rape and murder aren't common events in otherwise-civilized nations, but copyright violation is. The fact that the rights to life and liberty are just a little bit different than the temporary grant of right to intellectual products might have something to do with that -- and you persist in avoiding this issue, while insisting that all rights are the same and all violations of them are morally equivalent.

This makes no sense to me.

The whole reason for inventing copyright and the like was based on technologies which are no longer dominant; the newer technologies have rendered much intellectual "property" irrelevant, and I'm suggesting the laws should reflect this. Your response is to accuse me of espousing legal murder or some similar absurdity... WTF?

Posted by Troy at July 14, 2003 11:23 AM

The fact is that rape and murder aren't common events in otherwise-civilized nations, but copyright violation is.

You're saying the same thing over and over here, ie "if everybody's doing it, it should be legal". You can defend your statement, or you can simply restate it while calling me "over the top". I won't respond to you if you continue to choose the latter.

Posted by Jason H at July 14, 2003 02:30 PM

Jason, I have supported my argument, in many different ways; the primary argument is that the Constitution itself treats intellectual rights very differently than it does real property rights, and so do all relevant laws. The simple fact is that intellectual "property" is fundamentally different than real property -- it is a transitory, granted right instead of a permanent, inherent one -- and the technological reasons for establishing IP have substantially changed.

You have yet to address any of these arguments; instead, you focus solely on statements about the number of people "doing it" (which I point to as a simple diagnostic), and repetitiously insist that "morally, they are the same crime."

Even the Catholic church recognizes lesser and greater moral violations. Have you only the single basket?

Posted by Troy at July 14, 2003 05:14 PM

... the primary argument is that the Constitution ...

Again, complete irrelevance. You're talking about the legal status of intellectual property. We are talking about it morally. What I say is valid in any country at any time, regardless of whether or not that country's constitution or statutes specify any protection for intellectual property.

This is nothing new; I've said it all plenty of times already. This is the last time I will grant you the courtesy of repetition.

Posted by Jason H at July 14, 2003 05:24 PM

Well, Troy...

Now you understand why I've quit bothering to respond to the troll, though I've even opened up a new thread for that purpose...

Posted by Rand Simberg at July 14, 2003 06:05 PM

Rand, I'm reminded of what the tomcat said, while making love to a skunk: "I've enjoyed about as much of this as I can stand!"

What I say is valid in any country at any time.

If I hadn't read that statement, I wouldn't believe anyone would actually have said it... I'd nominate this guy for Godhood, but it's obvious he already assumes he has the job!

Posted by Troy at July 14, 2003 07:16 PM

From a practical point of view:

Before file sharing, I didn't buy music.

After file sharing, I still don't buy music. I do, however, listen to more music.

Posted by James at July 14, 2003 10:22 PM

A comment made earlier suggests that unlimited file copying could lead us to a world with 'a billion garage bands and not one true professional musscian', suggesting of course that this would be a loss for everyone. I might point out that professional musicians existed long before the advent of the recording industry, and that one might reasonably suggest that they are likely to find ways to exist after its demise. The nature of their income is likely to change (fewer zillionaire rock stars, for instance), but this is hardly a loss for everyone, and certainly is a viable alternative to what we have now. One might suggest that our current system (largely dominated by large entertainment conglomerates which market to the lowest common denominator) hardly represents the best of all possible worlds...or for that matter even a very good model...

Technology is changing the model for distribution, and while I understand that the Britney Spears of the world may suffer (cheer up, surely she can find work as a bar girl somewhere...), I didn't notice that the Constitution (or for that matter, any of the various 'moral' strictures that Jason seems so fond of..) guarantees a lifestyle or working environment that will never change. Plenty of buggy-whip manufacturers were wiped out by Ford and his compatriots, Edison destroyed the work of candlemakers everywhere. Where is it written that the RIAA, the MPAA, and the innumerable entertainers (and the parasites that surround them) should be exempt from this change?

Posted by Scott at July 15, 2003 09:48 AM

Posted by Scott at July 15, 2003 09:49 AM

Via Randy Barnett over at The Volokh Conspiracy, an excellent exchange related to this topic, between Lawrence Solum and C. E. Petit. One money quote:

Because very long terms and retroactive term extensions create wealth transfers but do not create a corresponding social benefit, they are "rent seeking pure and simple."

I swear that horse just twitched...

Posted by Troy at July 15, 2003 10:36 AM

Post a comment