Darryl gets it right. It shows nothing, except perhaps that different terms are used to describe different things at different times.

For the most part, this looks sort of like an attempt to find fact where none really exists. It once again smacks of desperate and whiny.

through the early 19th century, patent would have only been used in the singular because the terminology was “letters patent” for the plural.

Zero fact?

I wasn’t really paying attention, but the first I’d ever heard the term ‘intellectual property’ was in regards to David Letterman jumping ship from NBC to CBS and how NBC didn’t want Letterman using certain elements from his old show in his new, competing show.

http://en.wikipedia.org/wiki/Late_Show_with_David_Letterman

It is like trying to prove that SUVs have only been made in the last 15 years, because before that, people never used the term. In reality, 5 seat / 7 seat 4 wheel drive vehicles have been made for a very long time. It’s just the particular phrase that is on the rise.

The graph actually shows how the recording/movie industry has been pushing this (stupid) idea that you can own random assortments of bits/words/musical notes in the past few years, trying desperately to slow down their inevitable death (instead of embracing the new technologies to take EVEN MORE money).

As always, there are a few different problems with your commnet. The bits aren’t random, anymore than the Sistine Chappel is a random placement of paint drops. It isn’t the bits that matter, it is what they are. If you stand too close to the roof of the chappel, you cannot see the work, and if you stand too far away, you might not see it at all. It is one of the things that TD regularly does to stories, often pushing small exceptional situations and trying to portray them as the norm. If you get too close to a digital image, it is only 1s and 0s. Nobody is claiming ownership of the 1s or the 0s, just what the represent when you pull back far enough to see an actual image.

There is certainly not “more money” to be made. Not only are recorded music sales down, but even concerts have reached their zenith, and now most are predicting dropping ticket prices in 2011, as the supply of concerts far exceeds the public’s demand and willingness to pay. They money may have changed places in some cases, but for the most part, the music industry is growing mostly because of licensing.

People are quite simply running out of the money to keep paying for the scarce, especially the transient scarities. They love to listen to music, but they have a hard time justifying attending expensive concerts.

Most importantly, without widespread piracy, it is very likely that the music industry would be in the middle of a huge boom. With larger and larger Ipod style MP3 devices, and a larger demand for music by consumers, under normal circumstances the supply / demand curve would be in favor of recorded music. Consumption of recorded music is at an all time high. Yet the music industry as a whole (even considering live event income) is essentially flat.

There is no proof that there is more money. Some areas are up, some areas are down, but net, all done, the great shift isn’t doing much of anything to the overall picture.

Again, it is the TD way to focus on the increases in “performer income”, often without explaination that the performers are often now faced with expenses after gross income that they were not facing in the past. More importantly, when you pull back a bit and look at the overall music industry, things are pretty much flat.

Figured don’t lie, but… you know the rest 🙂

In the end, this article is trying to prove something using a method that reveals little. One could easily conclude from the data that the widespread adoption of the internet has put incredible pressure on copyright holders, who have had to respond in force. We could also conclude that the internet has more rapid exposed mis-use of trademarks and the like in various parts of the world. We might also conclude that the internet era has made people more aware of copyright, and that almost every page online has a copyright notice on it.

There are plenty of conclusions to pull, and few of them agree or feed the TD fires. It’s why it is important to learn that opinion isn’t fact, and someone reading something into a poorly collected pile of data doesn’t mean much, no matter how often they repost or relink to it and say it’s the truth.

TD, desperate and whiny for the win!

I couldn’t help but notice that the Y-axis was denoted in relative and NOT absolute numerical terms. Perhaps you missed this?

The term “intellectual property” was, to be sure, quite commonplace well prior to the 1980’s. What was not commonplace was its use. Up until that time the various species of law that are now generally associated with the term were referred to by their given names, i.e., patents, trademarks, copyrights, trade secrets, unfair competition (including publicity rights), and related antitrust principles.

Even the creation of the CAFC as the appellate body for patent cases did not cause any discernable shift. Patents were still called patents.

What did shift, however, in the 1980’s was the types of lawyers who decided to begin associating themselves with these various laws and incorporating them into their legal practices. Whereas for decades, if not centuries, the law had been an area of true legal specialization, with the majority of practicitoners well versed in all of the subject matter areas, newcomers lacking the ability to practice the full gamut of the law began to adopt one or more, but certainly not all, of the associated subject matter areas. Trademark and copyright law were quickly adopted by many because, quite frankly, they were perceived as being “easy”, and did not require the investment in time necessary to practice with alacrity across all of the subject matter areas. Unfortunately, their limited focus was a handicap since most professional associations were titled with names such as the American Patent Law Association (now the AIPLA), the ABA Patent, Trademark, and
Copyright Section (now the ABA IP Section), etc. Hence, pressure was exerted within these professional associations to adopt the term “intellectual property”, with the end result being that a wave of new attorneys were now able to label themselves as practicing IP law (a highly misleading statement since mastery of all the subject matter areas is a “must” in order for one to competently and professionally represent client interests and needs).

At the same time, firms devoted almost exclusively to litigation “discovered” that money was to be made litigating such matters. Thus, whereas litigation had generally been limited to what some term “botique” firms, things shifted in a direction that has long troubled me, with the catalyst being almost exclusively the opportunity to expand money making opportunities.

I guess the point I am trying to make as being one within the system, intellectual property entered the legal lexicon coincident with the entry of numerous attorneys with limited legal credentials. It was not that the term was needed to better describe the subject matter areas of law, but that it was needed by the newcomers to in large measure hide the fact they were ill-suited to provide proper and professional client representation and counseling.

In a very cynical way, utilization of the term “intellectual property” was less about accurately describing the subject matter areas under a common term, and more about the marketing of legal services.

Did you do a search for “The Internet”? “The Internet” probably goes back even less. I guess that means it should be treated as an artificial flash in the pan as well, huh?

Copyright, patents, and trademark have existed for hundreds of years. The Internet and Internet piracy have existed for 10-20 years. But you would suggest IP is the ephemeral flash?

If you want to accomplish your goal of abolishing IP, you’ll have to do better than that.

How about a dissection of the millions of jobs and billions of dollars that directly derive from Intellectual Property industries? Perhaps you could start with your beloved copyright – movies, music, books, software, games, apps, porn?

How about an analysis of which market sectors are going to soak up all those workers, or compensate for those lost billions in production?

Please don’t try to tell me they should all be ad-funded by physical goods manufacturing – physical goods manufacturing is rapidly dying thanks to third world outsourcing.

When you’re done with that, please try even scraping the surface of patents or trademark for the same.

You constantly advocate for the destruction of industries through idealistic “thought experiments” completely ungrounded in reality. You give no consideration to the ramifications of what would happen economically if those “thought experiments” were put into play.

If you want Intellectual Property abolished, paint a picture of how that would in any greater way improve the economy as we know it.

For all the hot air you waste on tangential “analysis” like this, surely you can do so, right?

Come back to reality. Try a little intellectual honesty for a change.

your goal of abolishing IP

Strawman argument

Although there are a few who comment here who espouse the idea of abolishing IP, this has never been advocated by Mr. Masnick.

How often has Mike Masnick argued for the merits of copyright/patents/trademark? When has he argued in favor of enforcement?

According to Masnick: the rights are fictional, enforcement is a waste of resources, and there is only upside to their violation. I think that makes his position quite clear.

He’s just not willing to own up to it in any responsible way.

It’s “there”, not “their”

Oh well, my point comes across so it’s not that big a deal.

Except Masnick does not claim that their is only upside to infringements

Really? When has he ever talked about a downside? I would love to read about it.

any real look at what’s actually going on shows that there is not yet (and might not ever be) a method to enforce copyright in a sadisfactory way.

Again, really? I guess it depends on your definition of satisfactory. As one example, I think if pirates were forced to pay penalties on the order of a parking ticket for each case of traced infringement, it would cut down dramatically on piracy. It’s not like it’s remotely difficult to trace 90% of pirates on the Internet.

You have a government agency like HADOPI send out warnings, and then subsequently, mail fines to the account holder just like parking tickets. It’s not complex. I believe New Zealand actually proposed a law just like this earlier this year.

Regarding patent and trademark protection, the logical choice is ISP level domain/IP filtering. No, it does not need to block 100% of the illegal sites 100% of the time to be effective. But I think few (except maybe Mike) would argue that a pharmacy operating out of (for example) North Korea should be freely permitted to sell counterfeit drugs to American citizens online.

Completely stopping piracy is not the goal. When the feds bust a heroin importer they are not expecting to wholly stop drug abuse. When the government taxes cigarettes or puts health warnings on packages, few also would expect that to completely stop tobacco abuse either.

The goal is not to stop it. The goal is to reduce and manage it.

With piracy, there is no evidence to date this is an impossible task. No country has yet even enacted robust laws with real consequences for average pirates to address the issue.

As for better encryption/anonymization, the same might be said for any other online law. Going after child pornographers on LimeWire pushed them onto Tor. But does that mean we shouldn’t have pursued them when they were on Limewire? Does that mean we should “give up” now that they are on Tor?

I think you’d find few politicians or members of the public who would agree with such a defeatist stance. Except perhaps Mike Masnick. He seems to think any law is unenforceable online. Or maybe it is just the ones he enjoys breaking himself?

The “war on drugs” only fails because there are huge economic and social implications of drug sales and drug use. You know the old “snitches get stitches” thing, that is created by the drug dealing gangs as a way to keep the public from reporting their activities. Entirely profit motivated.

There are multiple generations of kids growing up in areas like South Central LA who know nothing but gang life, thug life, street code, and smoking blunts and standing on street corners selling crack. They don’t think there is anything wrong with it. Morally, they have hit the same area piracy has hit, where they no longer consider it wrong.

CP, drugs, piracy, speeding ticket… it is all the same thing in the end. It is against the law. The laws were written by the people, for the people. You may not like them, you may not agree with them, but they are there.

Perhaps you would do better to stop trying to attack the comparisons and instead address the main issue: piracy is dramatically hurting the music industry. Any other industry hurt to this extent by crime would have the federal government creating agencies similar to the DEA to address it. Isn’t it time to realize that if you don’t like the laws, elect people to change them. If you cannot do that, consider that maybe your view isn’t the will of the people.

As TD’s guru would say “oh grow up”.

Do you really think laws will make me buy(rent is more likely since no copyright work can be bought on stores) from you?

Again, really? I guess it depends on your definition of satisfactory. As one example, I think if pirates were forced to pay penalties on the order of a parking ticket for each case of traced infringement, it would cut down dramatically on piracy. It’s not like it’s remotely difficult to trace 90% of pirates on the Internet.

You live in a fluffy cloud don’t you?

Pirates have been around since the introduction of electronic entertainment(i.e. pong and its endless stream of bootlegs), that is since the 60 more or less.

If it was easy to trace anybody this wouldn’t be happening now would it?

More your ignorance about the technology underlying the internet is funny.

If it was easy people in Japan would be going to court by the thousands, but Winny users don’t get caught that often, in fact after years only 2 men were prosecuted and that was after the policy found a flaw on the forums after failing to crack the encryption of the software. Japan have some of the most draconian copyrights in the world.

Now if you want to track people try tracking all these software on the anonymous-p2p.org

Now to track people even in Bittorrent is not that easy, first ISP’s make mistakes and their logs are not 100% accurate(just ask the people who where redirected to others people’s accounts recently because of a mistake in the routing system of some ISP’s), second Bittorrent poison IP request sending fake IP’s from time to time so one needs to stablish a connection and actually download something from that IP and maintain a log of the transactions to have any real proof, third even then if people are using something like I2P, Freenet, Netsukuku, TOR or other anonymizing service you are not actually seeing the IP of that person but the proxy who will gladly send you a boilerplate rebuttal to any copyright infringement.

Now consider this, a friend of mine can send me an ISO file of a movie through an encrypted channel(i.e. GNUNet, there is no snooping around there, after that to create a DVD or Bluray is actually very simple and can be distributed offline to all the people I know and are close to me. How are you going to track that?

Will you try to ban DVD burners?
Will you try to outlaw encryption?

You can’t do anything about it, not now not ever.

HADOPI?

HADOPI is a failure, lets see if sales will skyrocket since nobody is buying, we will see a peak right?

Those laws also ignore the fact that people can just live without you.

They don’t have to buy anything from you, and free, open, good enough legal alternatives already exist, how will you deal with that?

Jamendo is good enough and free no pirates there.

What happens when people migrate to open licenses and stop using your dear creations?

You think laws will solve that for ya?

You have no support from the people and want to make things worst?

Go right ahead, keep pushing the enforcement button and see where it will lead you to.

Essentially flat applies up to about 2008. In 2010, there are reports of concert grosses down 12%, and indications that ticket prices will drop in 2011. The other shoe is dropping, the piracy supporting “sell the scarce” people are trying not to notice these very basic facts, it looks like the suckers have stopped spending.

Any other industry hurt to this extent by crime would have the federal government creating agencies similar to the DEA to address it.

So there it is.
The industry is in charge.

The industry instructs the government, whose agents remain at their beck and call, to carry out its directives.
In response, the US government needs to create a new agency to protect the entertainment industry’s profit margin

You know what this sounds like? It sounds like you want to deputize the mall cops and pay their salaries with my tax money.

More precious than my tax money however, is my sense of what freedom is all about in this country. If you want a country where the government uses every intrusive measure possible to ensure that there is no crime, then what you have is a totalitarian state.

In recent years, the government has made the claim that the need to defend against terror is so exigent that ever more intrusive surveillance and scrutiny of its citizens is required. The entertainment industry proposes to extend the indications for surveillance from national security to protection of their profit margin. (Proposals that ISPs be directed or incentivized by the government to perform deep-packet inspection looking for infringement)

If the mere financial needs of a single industry are sufficient to free the government from the restraints of the 4th amendment, then I’m not sure there are any restraints to government power whatsoever.

“I guess the point I am trying to make as being one within the system, intellectual property entered the legal lexicon coincident with the entry of numerous attorneys with limited legal credentials. It was not that the term was needed to better describe the subject matter areas of law, but that it was needed by the newcomers to in large measure hide the fact they were ill-suited to provide proper and professional client representation and counseling.”

Interesting! Thanks for the info I wasn’t aware of this.

Another thing that happened in parallel was the rise of economic liberalism or Neoliberalism as a political movement. The idea of intellectual property as property was heavily promoted by Neoliberals during the 80’s. Before that intellectual property was regarded as an administrative tool to temporarily protect investments from rogue business.

The video game industry is suffering from piracy as well. They just have a piracy rate that is 1/50th what music/movies are due to console/multiplayer DRM and large file sizes.

To pretend otherwise is foolish. People pirate small, non-DRM games at the same rate as music/movies.

“1. Are you claiming moral equivalence with the officer who arrests a child pornographer?

2. Does Jammie Thomas have moral equivalence with, for example the members of Medellin cartel?”

Moral equivalence is irrelevant. TECHNOLOGICAL EQUIVALENCE is the key.

These violations all take place using the same technologies. If you are telling me there is no way to pursue one online, you are telling me there is no way to purse any.

Frankly, I think that’s BS.