Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

from the one-path dept

A few folks sent over Larry Downes excellent recent analysis of both Google’s moves in China and its lawsuit with Viacom over YouTube. He notes that the key similarity in both stories is how property rights don’t make much sense for information, and how using a traditional property analysis in both cases leaves you coming up short. Specifically, with China, he points to a lack of interest in a marketplace of ideas, and with Viacom the problem is that intent is never taken into account. That is, with traditional property analysis, “theft” is done to take something away from someone else for your own good. But in the case of people posting videos to YouTube, the opposite is the case. People are trying to better share Viacom content, to better promote it. As such, Downes wonders if there’s room for an “intent” mechanism in judging certain actions, with a question of whether the use is “productive” or “destructive”:

Both these cases highlight why traditional property ideas don’t fit well with information uses. What would work better? I present what I think is a more useful framework in the book, a view that is so far absent from the law of information. That framework would analyze information uses not under archaic laws of property but would rather weigh the use as being “productive” or “destructive” or both and determine if, on the whole, the net social value created by the use is positive. If so, it should not be treated as illegal, regardless of the law.

What do I mean? Since information can be used simultaneously by everyone and, after use, is still intact if not enhanced by the use, it’s really unhelpful to think about information being “stolen” or, in the censorship context, of being “dangerous.” Rather, the law should evaluate whether a use adds more value to information than it takes away. Information use that adds value (reviewing a movie) is productive and should be legal. A use that only takes value away (for example, identity theft and other forms of Internet fraud) is destructive and should be illegal. Uses that do both (copyright infringement in the service of promoting the underlying content) should be allowed if the net effect is positive.

Of course, there’s nothing really new about this framework. In fact, with copyright at least, it takes us back to the Constitution — which clearly set up copyright to “promote the progress of science and the useful arts” (science, really, when talking about copyright). And, thus, the founders intended for it to be judged on the standard of whether or not it “promoted the progress,” which meshes nicely with Downes’ “productive” use of information that “adds more value to information than it takes away.” Unfortunately, over the years, the definitions and regulations around copyright have been taken hostage by those who seek to use it as a pure monopoly right that only benefits them, rather than “promoting the progress.” The whole attempt to pretend it’s “property” is a result of those efforts. Hopefully using a more reasonable framework will bring us back to a more useful way of dealing with these issues.

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Comments on “Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?”

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Jose_X (profile) says:

Re: Re:

>> But, who gets to judge what is “productive” and what is “destructive”, and how?

According to the US Constitution (and many authors), generally, freedom of expression would be considered a good thing.

Most scientists can usually weigh in on what promotes science.

I think most people agree that monopolies are undesirable, as would be trying to legislate scarcity where none exists.

Crosbie Fitch (profile) says:

What is clear about the Constitution

“To promote progress” was a consequential aspiration of the Constitution’s empowerment of congress to secure the individual’s (pre-existing, natural) exclusive right.

The legislation of the monopolies of copyright and patent that occurred several years later were nothing to do with this and entirely about enriching mass producers of copies of literary works and useful devices.

The Constitution did not set up copyright.

It should be considered strange that so many people keep on trying to assert that it did, as if recognising that it is not at all clear.

You should ask yourself this: if copyright is a legal privilege legislated after the Constitution, how could the Constitution stipulate the securing of a privilege that hadn’t yet been legislated?

The Constitution cannot grant any rights, since charters cannot grant rights, and it certainly can’t empower congress to grant rights (and didn’t).

An author’s exclusive right to their writings is a natural right and can thus be recognised by the constitution.

Copyright is a commercial privilege granted later, for the benefit of the press, and has no constitutional sanction (though someone did once suggest adding monopolies in literary works as an amendment).

Sage (profile) says:

Re: What is clear about the Constitution

Exactly how would you explain Article I, Section 8, Clause 8?

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copyright and patent protections had long existed in the UK at the time of writing the constitution.

Crosbie Fitch (profile) says:

Re: Re: What is clear about the Constitution

Sage, the US Constitution could not recognise privileges enacted by legislation in other countries. By definition, it started from a clean slate (of nature, natural law, and natural rights).

In any case, the Constitution made no reference to British legislation.

It is only today that ‘right’ is more familiar to people as an abbreviation of ‘legally granted right’ (privilege), than ‘natural right’ as was the meaning used by framers of the Constitution in the 18th century.

So, ‘exclusive right’ refers to a natural right of the individual, not one granted by legislation (the constitution gave no power to congress to grant privileges).

Crosbie Fitch (profile) says:

Re: Re: Re:2 What is clear about the Constitution

Not so simple. I can write my idea down. It still belongs to me alone. I can copy that writing. I still have a natural exclusive right to the copy and the original. It is only when I give you a copy that the intellectual work belongs to you as well as me, but it is still exclusive to both of us.

Copyright is all about me having the power to prohibit you from making further copies of the copy I’ve given you – a monopoly. However, the constitution said nothing about this monopoly, only about the individual’s natural exclusive right.

Sage (profile) says:

Re: Re: Re:3 What is clear about the Constitution

You clearly haven’t Thomas Jefferson’s explanation of how ideas cannot be owned, and the purpose of the artificial monopoly of copyright. Karl’s post below details it quite succinctly. In your example, you own a piece of paper with the idea on it, not the idea. Once I read the idea, it’s in my head as well. You can’t undo an idea.

Crosbie Fitch (profile) says:

Re: Re: Re:4 What is clear about the Constitution

I have some ideas (of my own) and I own them because you cannot take them from me, you cannot have them unless I choose to give them to you, and I may require something from you in exchange.

If you read Jefferson’s explanation again you might notice a difference between ‘ownership’ and ‘property’.

You say “Once I read the idea”, however, there are vital steps between me writing my idea down and you reading the paper. I have a natural exclusive right to the paper and the idea written upon it. It’s remains my property until I decide to sell or give it to you. You can neither read it, copy it, nor use it until that point.

Anonymous Coward says:

Re: Re: Re:5 What is clear about the Constitution

and copyright and patents help you to control the ownership of that idea. you decide who gets it what rights you grant them etc. ip is a very natural state of affairs which encourages people to come up with new things which can be shared with others at the owners discretion.

Crosbie Fitch (profile) says:

Re: Re: Re:6 What is clear about the Constitution

You know, rights aren’t like candy, much as people refer to them that way. People can give each other permission to do things that without it would violate their rights.

Thus I can permit you into my house to look at my etchings, where if you did so without my permission you’d be violating my right to privacy. However, I cannot grant you the right to violate my privacy since my privacy is inalienable and I cannot part with it (even by contract). Thus I can permit a TV crew into my home, but I cannot sell them the right to enter it. I can sell/vacate my home such that it is no longer my private residence, but then that’s not granting any right.

Copyright is only perceived as a ‘natural state of affairs’ because people have become used to it (it was established in the 18th century). No doubt the children of plantation owners found slavery a natural state of affairs too.

What the Internet is revealing to more and more people every day is that copyright is not at all a natural state of affairs – but that the liberty to share and build upon mankind’s culture is.

Karl (profile) says:

Re: What is clear about the Constitution

“To promote progress” was a consequential aspiration of the Constitution’s empowerment of congress to secure the individual’s (pre-existing, natural) exclusive right.

You have it completely backwards. The Constitution gives Congress the right to create copyright and patent law, but only for the purpose of promoting progress.

The author of that Article was Thomas Jefferson, who was a former patent officer. Here’s what he had to say about “the individual’s (pre-existing, natural) exclusive right”:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature(…)

Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

– From a letter by Thomas Jefferson to Isaac McPherson

If that’s tl;dr, here’s the gist: Ideas are not property. There is no such thing as a “natural right” to your ideas.

If you disagree with this, then you disagree with the very idea of copyrights.

Crosbie Fitch (profile) says:

Re: Re: What is clear about the Constitution

Firstly, the Constitution represents the power provided by the people to congress. It’s not helpful to talk in terms of the Constitution giving anyone any rights, because it doesn’t and cannot. It can only recognise the rights that people already have.

Ideas may well not be property, but they can be owned by those who have them (you cannot have my idea unless I give it to you). Intellectual works (fixed in a physical medium) are property however, and individuals have a natural exclusive right to their intellectual work, their intellectual property. What they don’t naturally have is the power to prevent competitors purchasing their work and then producing further copies – people do not naturally have reproduction monopolies such as copyright or patent.

So, yes, I do disagree with copyright, as with any other state granted monopoly. I am a copyright abolitionist.

Karl (profile) says:

Re: Re: Re: What is clear about the Constitution

This is kind of an interesting discussion. Obviously one has the right to one’s own ideas, as long as they exist only in their minds. But what sort of rights do they have once those ideas are made public?

Here in the U.S. the answer is, “none.” This is for a simple reason: once you communicate your idea to another person, it’s now that person’s idea as well, and that person has an equal right to the ideas in his head.

So, the “right” granted in the Constitution is not a right to the idea, but the right to reproduce that idea in a specific form.

Like I said, the idea of “moral rights” in European law is significantly different (e.g. publishers don’t have these rights at all, only authors, and those rights are permanent and non-transferrable). If U.S. copyright law was based on this concept, I’d have a lot less of a problem with it (though there would still be problems).

This highlights a huge issue in the public discussion on copyrights. The average Joe thinks copyright is this “moral right,” and it’s not. Labels and studios exploit this confusion to their advantage, talking about “pirates” trampling on the moral rights of authors and artists, when in fact copyright has nothing to do with moral rights.

Crosbie Fitch (profile) says:

Re: Re: Re:2 What is clear about the Constitution

The good thing about natural rights is that they are obvious/self-evident. So, obviously, one always naturally has a natural right to do anything one wants with one’s own ideas, to keep them to oneself or disclose them – and as you observe, those with whom we share them have the same natural rights to an idea received as one created.

It is privileges that interfere with our rights. Patent interferes with our natural right to implement any design we may think of.

AGAIN: the Constitution grants no rights.

Copyright and patent are legislative acts occuring several years after the Constitution, that by dint of power congress assumed (unconstitutionally) grant privileges to EXCLUDE others from reproducing a literary work or a design.

It’s not too difficult to get from a ‘privilege to exclude’ to a ‘legal right to exclude’ to a legally granted ‘exclusive right’, and consequently to pretend that the ‘exclusive right’ just legislated is the same exclusive right recognised by the constitution (because the words match). And even to come up with a disgracefully flaky conjecture that the Framers must have been thinking of an ‘exclusive right yet to be granted’ rather than the exclusive right individuals are imbued with by nature. Because, obviously, a monopoly is far more lucrative to those hoping for the best possible interpretation and the Framers were big fans of monopolies – as everyone knows [sarcasm].

Yes, it’s disappointing how many people think copyright is about preventing copying qua plagiarism rather than copying qua reproduction.

Karl (profile) says:

Re: Re: Re:3 Rights

I think the confusion here is the word “right.” It can mean two things: a natural right (“inalienable right” in the Constitution), or a legal right.

The patent and copyrights granted in the Constitution are legal rights, not a natural rights. (Much as labels and studios would like to believe otherwise.)

The question is whether copyright should be a natural right, like free speech. Something inherently possessed by the artist or author, which cannot be transferred to publishers (even by choice). The French notion of “moral rights” says this it should.

But – and I cannot stress this enough – the authors of the Constitution did not consider it a natural right. Neither did the rest of the world, at the time.

You can argue that they were wrong, of course. There are good points to be made on both sides of that argument.

But it is by no means obvious or self-evident. And in most countries outside of Europe, it is not the law.

Karl (profile) says:

Re: Re: Re:4 Rights

I just thought of an example of how it’s not obvious.

Who owns the “moral rights” to a movie? If you’re the movie’s editor, what ideas do you have the “right” to control? What about the lighting director?

Morally speaking, who should own the image of a trademark – the company, or the graphic designer?

Traditionally, these have fallen under the idea of a “work for hire.” But if you do believe that copyright is a natural right, then a “work for hire” would always be a violation of your rights.

Crosbie Fitch (profile) says:

Re: Re: Re:5 Rights

Moral rights are derivatives of the natural right to truth (against impairment). The right to truth is a social right as well as an individual right. It is a matter of fact or veracity. It is not a privilege to be bought or sold. This is why natural rights are inalienable, and in the case of truth, inviolable.

Truth is also not a matter of control/power. You cannot have a privilege to decide who wrote something (without violating the natural right to truth). An author may be considered to be likely as the most concerned with the veracity of their authorship, but all those interested in someone’s writing are also concerned not to be deceived as to a work’s authorship.

Trademark is another kettle of fish (a registry for the purposes of disambiguating authorship), one we can go into another day.

I think we’ve agreed that copyright is a privilege. Copyright is fundamentally a violation of the individual’s natural right to liberty since it derogates from the individual’s liberty to share and build upon mankind’s culture, to tell or sing the stories and songs they hear, and modify them. Copyright is so called because it suspends from the public their right to copy, to reserve this as a privilege for the exploitation of the press.

What remains is that you persist in supporting the received delusion that the Constitution granted the privileges of the monopolies of copyright and patent – instead of simply recognising the individual’s natural exclusive right to their intellectual works and the need for this to be secured.

Crosbie Fitch (profile) says:

Re: Re: Re:4 Rights

It is precisely due to copyright that ‘right’ has become known as a (contraction of) ‘legally granted right’, and that people have lost sight of its primary meaning as a natural right. Because of this, today, people have to qualify right with ‘human’ or ‘natural’. Sadly many people now think human rights are granted as much as privileges such as copyright and can be undone by legislation.

I really don’t know why you’re so keen to continually assert that the privileges of patent and copyright are granted in the constitution. They are not. Even you recognise they are ‘legal’, so at least recognise that they are products of subsequent legislative acts. The Constitution makes no mention of them.

There is no ‘should’ about making privileges into rights, because a privilege is a product of man made law, whereas a right is a law of nature (to be protected by a government empowered by its people). One can make a privilege non-transferable as in droit de suite, but this doesn’t make it a natural right.

Karl (profile) says:

Re: Re: What is clear about the Constitution

By the way: If anyone here wants to read up on the story behind the writing of the Constitution, the Founder’s Constitution website is an excellent resource. It not only contains the text of the constitution, but letters by its authors, and then-current case laws.

The section on the “Copyright clause” is here:

Of particular interest is the Wheaton v. Peters case. Here’s an excerpt:

The counsel for the complainants insist that the term, as used, clearly indicates an intention, not to originate a right, but to protect one already in existence. (…)

(But) Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.

Emphasis mine.

This only applies to the United States, of course. The French concept of “droit d’auteur” is closer to a “natural rights” doctrine, particularly in the area of moral rights.

But looking at the history of copyright laws in other countries (e.g. pre-revolutionary France, England prior to the Statute of Anne), most of those “copyrights” were rights granted by the government to publish works at all. In other words, they were a tool for government censorship.

Crosbie Fitch (profile) says:

Re: Re: Re: What is clear about the Constitution

Yes, I tried to explain in a comment to Timothy Phillips at http://mimuspolyglottos.blogspot.com/2010/04/justice-stevens.html that congress had no power to grant privileges (or ‘legal rights’), only to secure the natural exclusive right already in existence, but he chose not to publish my comment. :-p

Some people are highly wedded to the idea that copyright is recognised as a natural right by the constitution, rather than simply being the privilege of a monopoly, subsequently granted (unconstitutionally).

Moral rights mostly concern the natural right to truth (against its impairment), so I have far less of a problem with them, but they still get corrupted by proprietary notions induced by copyright.

Anonymous Coward says:

Re: Re: Re:2 What is clear about the Constitution

Some people are highly wedded to the idea that copyright is recognised as a natural right by the constitution, rather than simply being the privilege of a monopoly, subsequently granted (unconstitutionally).

You’re sort of right. The constitution only allows copyright as a monopoly privilege and does not view copyright as a natural right.

Crosbie Fitch (profile) says:

Re: Re: Re:3 What is clear about the Constitution

Perhaps you’d be so good as to demonstrate where in the Constitution it stipulates that congress may grant privileges/monopolies ?

I concede that MANY people believe that it’s CLEAR that it does so, but none of these people tend to do more than cite the clause (that congress should have power to secure an individual’s exclusive right).

There’s a bit missing in the leap of interpretation from that clause to the inference that the Constitution empowers congress to grant monopolies in literary works.

I don’t dispute that there are utilitarian arguments for granting monopolies in literary works, and those were no doubt used to persuade copyright’s legislation, but the problem is inferring Constitutional sanction for it that doesn’t actually exist.

Sage (profile) says:

Re: Re: Re:4 What is clear about the Constitution

It’s seems pretty clear that I:8:8 is setting up the limited monopoly. Yes, it is an infringement of individuals’ natural rights, though its intent is to benefit society. Jefferson’s quote seems to explain why the authors of the constitution thought this was a good idea.

“Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.”

We can debate whether it’s a good idea or not, but it seems that this limited monopoly was intended.

Crosbie Fitch (profile) says:

Re: Re: Re:5 What is clear about the Constitution

It only seems ‘clear’ if you want to believe that the Constitution empowers congress to grant monopolies – despite the fact that it doesn’t do so.

You evidently also want to believe the Framers thought granting monopolies was a good idea, though for some strange reason they didn’t express this thought in the Constitution.

You can either take the Constitution literally, as an empowerment of Congress to secure an individual’s natural exclusive right, OR you can ignore what it says, and simply believe that despite no clear statement, the Framers intended Congress to have the power to grant monopolies in literary works.

Why the latter approach is so popular I can only explain as evidence of how seductive monopolies are to those who would exploit them. People need to believe that their privileges have some greater sanction than simply commercial expedience and legislative concession, e.g. “If we can persuade ourselves the Framers thought monopolies were a good idea, well, they must be. It was good they were legislated, and we can carry on suing kids for file-sharing without losing any sleep over it”.

I’ll leave you with this snippet I’ve copied(!) from Wikipedia:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

Jose_X (profile) says:

Re: Re: Re:6 What is clear about the Constitution

I googled to gain insight and verification about what you meant and arrived at your website. 🙂

[I admit that despite some of these comments above and an earlier one you addressed to me at the againstmonopoly.org site, I still was not sure.]

I posted a reply here http://www.digitalproductions.co.uk/index.php?id=177&commented=1#c000388


if we people pay you

then we technically own everything
this is why COPYRIGHT is supposed to be a limited time
and why your supposed to get a few bucks to keep up being smart and doing nice stuff ratehr then being lazy and living off stuff and not creating

case in point
other then heros for sci fi what have we
doctor who ( same old same old really for kids)
stargate universe ( just a rehash of stargate on a space ship nothing new )
and worst fo the lot is “V”
a remake of an awful tv show with sexy women ( yea thats only reason anyone ever watched it seriously )
so take out all the good looking women make the leader look bald and ugly , and make the fbi the heros again so you get that cops are the good guys propoganda….

no originality and slowly we are seeing why they want ATCA so bad cause they know once its all done they wont have to do nohting for years and just spill out a few more suvivor eps a day

as to money
my dad whom every one says is very smart business guy( went from a piece a blank land his mother left him, living in a tent , building a home and then selling up to better and better )said to me “son if i can get ten percent on anyhting i invest in i think its not only good its enough”

that last part is the key, when you want more and more and more and more, your just wanting too much

what does the american copyright term as it stands RIGHT NOW do for any of the american people

WHAT does 50 year terms in Canada do for any citizen of Canada?

ANSWER IT DAMMIT. THEY CANT, they get a lawyer over here who will start going poor actor and poor musician.
YEA thats why they can hire people like lawyers ….i see another scam is all it is and its replacing the real estate scam is all.

Andrew F (profile) says:


His proposal could probably be simplified down to getting rid of statutory / presumptive damages and requiring proof of actual damages. Some of these are hard to calculate, but there’s a rich body of tort and contract law that can help.

This way, if infringement causes no net harm to the copyright holder, that holder can get, at most, $1 in nominal damages.

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