Thinking Of Copyright As Property Is As Natural As Thinking Of Smells As Property

from the it-ain't-property dept

For many years we’ve explained why copyright isn’t property. This debate flares up on a regular basis in various circles, and even here on the blog we just had the discussion all over again on my post about why copying isn’t stealing. The comment thread on that post is already quite epic, with much of it getting into a semantic debate. And, while there is definitely a fair amount of circular talk, there are a number of really interesting and insightful points made in that (very long) discussion that are worth checking out. In the end, though, part of it is just a semantic debate. My point is merely that “property” has certain facets and “stealing” implies certain facets — and when you’re talking about copyright infringement, it matches some but not all of the key qualifications of property and theft. Pretending that the parts that match are sufficient simply means that you ignore the rather important parts that don’t match.

But perhaps getting bogged down in semantics (even if they are important) is the wrong approach to getting past this debate.

As we were discussing those issues, Paul Graham published one of his typically thought-provoking essays in which he discusses how the definition of property is changing, such that copyright is no longer property. Whether or not you agree with the way he frames things, he does provide a a great parable that makes a strong point:

As a child I read a book of stories about a famous judge in eighteenth century Japan called Ooka Tadasuke. One of the cases he decided was brought by the owner of a food shop. A poor student who could afford only rice was eating his rice while enjoying the delicious cooking smells coming from the food shop. The owner wanted the student to pay for the smells he was enjoying. The student was stealing his smells!

This story often comes to mind when I hear the RIAA and MPAA accusing people of stealing music and movies.

It sounds ridiculous to us to treat smells as property. But I can imagine scenarios in which one could charge for smells. Imagine we were living on a moon base where we had to buy air by the liter. I could imagine air suppliers adding scents at an extra charge.

Here’s the point. Even if you believe to your core that copyright is absolutely property in every sense of the word, and that copyright infringement is — without question — the absolute equivalent of stealing, to the “net native” generation, thinking of copyright in that manner is as unnatural as thinking about a smell as property. That’s the key point in all of this. Argue semantics all you want. It’s not going to matter to the generation of folks who grew up on the internet. No amount of “education” or semantic debate is going to convince them that copyright is property, just as no amount of education or debate is going to convince you that smells are property.

Given that, you have two simple choices:

  1. Continue to argue that copyright is property.
  2. Get on with your life and figure out how to thrive in a world where copyright isn’t considered property.

Which one do you think is going to be more effective? Yeah, that’s the point.

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Comments on “Thinking Of Copyright As Property Is As Natural As Thinking Of Smells As Property”

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Anonymous Coward says:

Re: Copyright isn't property.

Umm…plenty of property expires. We just call it breaking, or being used. Bullets are property. But when I use them they expire/aren’t reusable (unless you want to buy the essential components to reload the cartridges). Food is property, but it can expire. Etc…etc…

I agree that copyright isn’t property, but this isn’t the best logic to follow as to why.

But maybe it’s better to think of copyright as a service. Services expire, you have a right to a service for a period of time, have to keep paying for it, etc…

Anonymous Coward says:

Re: Re: Copyright isn't property.

“We just call it breaking, or being used. Bullets are property. But when I use them they expire/aren’t reusable (unless you want to buy the essential components to reload the cartridges). Food is property, but it can expire. Etc…etc..”

NOT LEGALLY! Not in the eyes of the law.

Jesus, way to miss the point and take my words literally.

RD says:

Re: Re: Re:2 Copyright isn't property.

“Uhm … while I agree that IP is not really property, there is such a thing as depreciation and depletion and the law does take them into account when it comes to tax write offs. Those are sorta expiration dates of products, or useful lifespans.”

Wow, you are REALLY contorting yourself into knots to try to disprove this point. NONE of what you just said applies to this point, at ALL. You are comparing a granted monopoly privilege that lasts for decades to a forced taxation that happens maybe a few times in the life cycle of your mythical example. Way to TOTALLY miss the point and attempt to threadjack and mislead the entire article. The Big Wigs need to find better shills and pay them more, because this is like shooting ducks in a barrel.

Paul Hobbs (profile) says:

Re: Re: Re:5 Copyright isn't property.

So why not create an account? I understand you probably value your right to privacy and anonymity, but you also expose yourself to the problems of mistaken identity (or no identity) – for all I know, every AC is the same person (despite the little coloured icons). What do you have to lose by creating an account? You can use a fictitious name, and no-one will know “who” you are.

Not saying you have to create an account – I just don’t quite understand why so many ACs prefer to remain anonymous.

Anonymous Coward says:

Re: Re: Re: Copyright isn't property.

“Jesus, way to miss the point and take my words literally.”

…umm…you weren’t being satirical, weren’t talking figuratively, I can’t see how taking it literally wasn’t the thing to do.
I think you’re confused at how communication works. Try and be more clear in your point next time, if you’re not don’t complain about people missing it.

Note that you’re also saying if we make IP never expire it will be more like property. Don’t give the *IAAs any more reasons to push for this, please?

MrWilson says:

Re: Re: Re:4 Copyright isn't property.

No, the natural state, the anarchic reality, is that anyone can physically copy anything that they are capable of copying. Copyright is an artificial, legal restriction on the ability of people to copy whatever they want, however they want to. And this restriction was put in place by legislators who saw that the useful arts needed to be promoted via incentives provided to creators via these artificial restraints.

RD says:

Re: Copyright isn't property.

“Copyright, like the rest of IP isn’t property for the simple reason that it expires. I’ll say that again, it expires. It wouldn’t if it was property.”

Cant “insight” this comment enough. It should be stamped in letters of fire on the forehead of every creator, studio head, CEO, and lawyer in the world.

COPYRIGHT IS A GRANTED RIGHT NOT AN INHERENT RIGHT. The ENTIRE basis of copyright is to allow creators to have exclusive rights to their creations for a LIMITED TIME and then to RETURN THE WORK TO THE PUBLIC DOMAIN AFTER THAT LIMITED TIME. Its right there in the constitution. If these factors are not met, YOU SHOULD NOT BE GRANTED COPYRIGHTS!

el_segfaulto (profile) says:

Re: Re: Copyright isn't property.

Exactly right! The problem is they (CEOs, executives, etc.) only care about accumulating more wealth. They don’t give a damn if they deprive our descendents of their birthright culture in the long-term so long as they get paid in the short-term.

In previous eras they’d be called sociopaths, but now they’re “job creators”, and the public domain is “teh socializms”.

Anonymous Coward says:

Re: Re: Re: Copyright isn't property.

Capitalistic bastards!

You would think with all this greed, there would be plenty of space for new business models to flourish, with people flocking to the new lower priced products. But guess what? All they want is the Hollywood product!

Capitalistic bastards, making the products people want and getting rich from it! That is so shameful!

Anonymous Coward says:

Re: Re:

The problem, of course, is that by the time they get in to office/positions of power they’ll be as out of touch with the new changes as the last bunch.

There was an article on techdirt about how obscenely long it took to get a new computer as a member of congress, congressional staffer, etc… (something like 1-2 years, by which time you’re out of date…hell Intel releases new tech every year, a new architecture every 2 years). Think about that times 10 or 15 for people who truly grew up with and understand the environment (seriously…20-30 years minimum to get someone who has grown up as a net native into office from the date of their high school graduation…by which time maybe they’ve lost touch with newer ideas/information, maybe they haven’t).

Anonymous Coward says:

Re: Re:

That’s right, “property” is a feeling and a state of mind, man.

Why doesn’t anyone arguing that “Intellectual Property,” which is a non-property without the property of actually being property is properly taxed as property?

In the end, though, part of it is just a semantic debate.
I’m always up for some antics.

Anonymous Coward says:

Re: Re: Re:

It’s back to Mike playing with words again, and nothing more.

Example, property rights. We think of them as normal. You own the dirt. But really, how much do you own? How many feet down, or up?

New York City has “air rights”, basically an amount of space above your building that you own. You can SELL that right to someone else, and they can add that air on top of their building. Is that a natural right? Probably not, but it’s an important construct that makes certain things possible and explains things in legal terms.

Copyright isn’t any more natural than a paved road or a train track. Yet we need them to make the economy go.

Sorry Mike, but this is one case where your ideas truly stink.

MrWilson says:

Re: Re: Re: Re:

“Copyright isn’t any more natural than a paved road or a train track. Yet we need them to make the already rich middlemen in the publishing world richer and fuck everybody else and their democratic processes!”


Let’s conduct an experiment. Let’s take away all IP laws and IP enforcement and see how the economy does. Oh my god… More people in the general populace would have money because IP maximalists wouldn’t have monopoly rights in order to price-fix or collude with their supposed competition in lobbying associations. And when those poorer people have more money, they spend more money because they can’t afford to just save it forever and live off the interest and the profits of licensing fees for works created by people who are long dead. And when those people spend more money, it’ll be at their local retail locations and the economy will grow with that influx of consumer spending! And the inability of the entertainment industry to muster their record profits year after year means they’ll have less money to pay lobbyists to pay off politicians who pass laws that undermine constitutional rights and give unconscionable powers to people who will most definitely abuse them.

RD says:

Re: Re:

“You mean like the rights you have to the land your house is built on?”

You mean like how property rights are some of the strongest ownership rights on the planet and have been for thousands of years? Like how they dont expire after a set amount of time and my property goes back to the public? Then yes, just like that.

Anonymous Coward says:

Re: Re: Re:

What the hell are all of you talking about?

Has no one hear ever heard of eminent domain? Have you never heard of a property being condemned?

All “property” is a social contract. Otherwise we’d be living by the rule of “might makes right.” I’d think that a bunch of people who spend the better part of their days behind a computer screen would appreciate the social conventions that have miraculously saved them from a life of wallowing, disease-ridden, in their own feces. Because, trust me, the world of “natural rights” has absolutely NO place for all of you. You would have been the runts eaten by your own mothers lest you be a drain on the rest of the family.

Yeesh. Get over yourselves.

jotunbane (profile) says:

Re: Re: Re: Re:

Im guessing you never read this

Proudhon’s “What is Property?”. Written in 1840 (in french) it IS a tad dry. So let me sum it up for you.


There, how is that for an argument. All property is nothing more than stealing from the rest of us. The only reason you “own” anything is because you stole it from “the public domain”.

We are simply taking back what was ours to begin with.

E. Zachary Knight (profile) says:

If copyrights are property and theft results in the loss of property, then why are copyright infringement penalties inline with theft?

If I steal a physical cd, I will get a few hundred dollars in fines and depending on previous convictions and or other things I stole, I could get some time in jail, but for petty shoplifting it is often not very long.

However, if I download that same cd, I am on the hook for potentially millions of dollars in fines.

So if IP maximalists want to continue to associate copyright infringement with theft and copyright with property, then they need to agree to bring penalties inline with actual theft.

MrWilson says:

Re: Re:

Careful. They’re probably more inclined to agree that they need to be inline with theft penalties and they’ll lobby for theft penalties to rise to meet copyright violation penalties.

Keeping the American populace either in debt or in prison/indefinite detention seems to be the general plan of RepubliCorp and the Obama DOJ alike.

Anonymous Coward says:

Semantics aside, I’d be happy if those that should get paid do. I want content creators to continue to create.
Arguing over a admittedly broken situation, due to perceptions if inequity or overwhelming desire to make the current system work, is not working smoothly for anyone.
I would think that the content creators and gate keepers would at least investigate (Until a dead end is substantially found.) the business model that didn’t label most of their fan base as Freetards.
I would cheerfully buy, nearly exclusively, from the first organization (*AA something.) that said they were moving to this type of business type. I also suspect that the masses on Reddit (Handy example.) would cautiously flock to that organization too.
Seems like a win win for everyone. Immense goodwill is built up by a once evil empire and the masses start spending money with that organization.
Yeah, I know, I seem to want my cake and eat it too.

Ninja (profile) says:

Copyright should be a means to avoid commercial exploitation of an intangible work be it new, derivative, remixed or [insert future means of working on existing material here].

Whether copyrighted works are property or not is not relevant. And even if it was property, the use of “theft” to define a download of a copyright song is not valid because theft, in its essence, is defined as depriving a person of their property. So even if copyrighted works were treated as property you CANNOT deprive the owner of their property by copying it. Scream, yell, troll as much as you want. You cannot argue with this fact.

Then we can move to the next point: the overused lost sales. One may argue that all the copying deprives the artist of the money. Something which is completely wrong. Many artists I support today wouldn’t be on my list if I hadn’t downloaded their songs first. Even if I don’t buy their music I’ll attend their shows so there’s no loss and if I hadn’t downloaded there would be no win. There’s no such thing as a lost sale but there’s the “earned sale”.

If you really want to keep total control of an intangible work you have to keep it to yourself. Otherwise, you’ll need to go beyond the ‘physical’ concept if you want to make money on it.

MonkeyFracasJr (profile) says:

Infringement vs. Theft

While I agree that infringement is not theft, I would like to see it spelled out succinctly and more often exactly what infringement is and specifically how that hurts rights holders (regardless of questionability of holding rights in the first place or the length of those terms.)

I say this be cause I think acknowledgement of your opponents position (and feelings) is a powerful negotiating tool.

ian kerr (profile) says:

Copyright is not property

Of course it is not. However that does not mean that violating it should not be illegal. Lots of things that are not stealing physical objects are illegal: fraud, false advertising, discrimination….

I don’t see why people seem to get so het up about this point, as to me it does not affect the basic issue, which is whether copyright is valuable in enabling the market to operate the way we want it to.

Angus (profile) says:

An Artist's perspective

I work hard making my music. I fucking own it. Saying that I am claiming to own a smell is insulting.

Pro-intellectual-property doesn’t always mean being against copying and sharing, guys.

I think of it like… I own a fairy floss machine, that’s the skills and equipment I’ve amounted and the labour I put in. You’re arguing that because the amount of sugar needed to create faerie floss is almost none (the ease of copying my work and the negligent amount of loss I incur from copying), that I therefore don’t have some basic right to “own” the fairy floss I’m about to give you.

If I want I can charge a buck for that fairy floss, or I can give it away for free in the spirit of charity and hope that maybe someone may buy a fairy floss t-shirt (as is the case with my music), and at least rave to their friends about how good it is.

Yes, the fairy floss has an expiry date. As does copyright. But it’s still property.

And the machine is mine, that’s the hard work and money I put into my works, and it produces new edible material (consumable music) seemingly out of nothing, that can be traded for cashmonies or services or whatever. This edible material is a commodity. It is property.

One thing that frustrates me about Techdirt and particularly this author, is the blatant one-sidedness of the debate. You guys NEVER think about us little artists who perhaps, like me, only live for their music, and value the songs they have written. To us our songs mean the world. Why wouldn’t we treat them as property?

Anonymous Coward says:

Re: An Artist's perspective

Of course they don’t think of the little artists, or any artists. All tech punditry is exactly that, mouthpieces for an industry who’s interest lies in the appropriation of the work of others in order to give their hardware and software commercial appeal for the masses.

Don’t be fooled by the echo chamber of the internet. It’s not a philosophical issue, or some sort “change” going on through the world. It’s just the same old snake-oil salesmen trying to take advantage of the little man.

And it’s not even about piracy, that’s just both sides’ distraction technique. In the 80s, it was the first wave of bean counters who decimated the music industry by cutting costs on production and implementing way too much shitty midi programming. Now we have a new crop of shysters trying to play moneyball with our art form; heralding sampling and remixing like they haven’t already been around for half a century. It’s just another tactic to reduce the production costs of hiring musicians so the people at the top can pocket more of the profits. (When labels, or home producers, spend no money on their production, why the hell would a consumer feel compelled to pay for it? Unfortunately, this creates a very destructive feedback loop that we’re currently stuck in where labels can’t fund interesting productions because people don’t pay for them) It’s not a conspiracy, it’s simply what bean counters do. And when you hear people like Masnick here talking of “business models”, just remember that his interests align with those greasy hands in Silicon Valley who want to monopolize music distribution and continue screwing people like you and me. (Short version: ignore anyone who uses the phrase “business model.”)

Ignore them. All of their “advice” is patently useless to anyone who has experience actually making money in a creative field. Especially music. If you want to make money at music, you don’t rely on alternate revenue streams, or gimmicks, or (barf) selling your empty wine bottles to half-wits on Twitter, you succeed by outperforming every other chump who thinks that Protools and an SM57 makes them a musician. “Rock Around the Clock” was recorded and mixed in *three* minutes, and it’s still considered one of the very greatest rock and roll songs. It’s all about performance. And you don’t “connect with fans” on Facebook or Twitter; those are possibly the most shallow forms of connection that have ever been devised. You connect with them in real ways, e.g. onstage, or in their darkest hours, when they put your album on for comfort.

Hephaestus (profile) says:

Re: Re: An Artist's perspective

I feel everyone has a right to their opinion.

” It’s not a philosophical issue, or some sort “change” going on through the world. “

After studying the Arab Spring, Chinese human flesh search engines, the SOPA-PIPA-ACTA protests, the Streisand effect, Anonymous, etc, I can say you are very wrong on that. The time frames for people reacting to injustice have decreased dramatically. There is also a much lower threshold to set off these events. It is global and accelerating.

Also, you sir are a serious internet Luddite. Glad to have you here. ๐Ÿ™‚

Almost Anonymous (profile) says:

Re: An Artist's perspective

Can’t tell if serious. Was this just a really poor trolling attempt? Or do you really feel this way?

Because you “owning” your music is EXACTLY like you “owning” a smell. Neither is tangible, neither is property, but for the sound aspect, you want to treat it like property.

By the way, Mike talks about you “little artists” all the time. He suggests that you do a couple of things:

1. Don’t be a dick. (Don’t sue your fans. Don’t call them thieves or treat them like criminals.)

2. Connect with your fans. Accept their friend requests, talk with them on Twitter, etc.

3. Don’t try to sell shiny metallic discs, or at least don’t ONLY try to sell shiny metallic discs and expect to be able to pay your rent. Sell mp3s, your time, your sweaty shirts, whatever, be creative.

4. Profit!

Angus (profile) says:

Re: Re: An Artist's perspective

I’m not gonna do anything just because some arrogant prick like Mike, whose every article I’ve read is belittling artists, says I should.

It doesn’t mean I don’t do those things though. I’m nowhere near sueing my fans, I encourage viral distribution. I connect with my fans deeply on a personal level.

But I don’t need to justify anything here, because _you’re_ being a dick.

Intangible doesn’t mean not valuable. In case you’re not up with mid-20th Century physics, none of the world is tangible at all really. Where do you draw this line? Things you can touch? That’s just an illusion the condensed vibrations of energy against your fingers is causing. If intangible things like music don’t have value then _nothing_ can have value. And value is intrinsically linked with _property_ – who obtains the transfer of this value? If you are really arguing that sound does not have value than nothing does, and therefore Anarchy reigns.

chelleliberty (profile) says:

Re: Re: Re: An Artist's perspective

Originally I was wondering why this kind of response to what was a seemingly innocuous amusing post, but looking at the rest of the threads and the post times, I think I see what happened and why you were angry, so, I’ll “skip a bit”…

* RE: you categorically stating that Mike is an “arrogant prick” who belittles artists

May I ask for some examples of articles where you felt Mike did this? I can’t imagine from the stuff I’ve read that any of it was intended to belittle artists, but I’d be interested to see examples so I can perhaps avoid people thinking what an arrogant bitch I must be for belittling them… In fact, if anything Mike strikes me as someone who wants to protect artists from the predatory methods of those in big media.

OTOH, I have seen a bit of Mike standing up to the a**holes profiting off others from big media and our supposed representatives in the government, who sometimes seem to be constantly trying to stick it to us, their customers and constituents, as often and as hard as possible, for their own selfish reasons, so I suppose I can see that may come off as a little arrogant at times… although none of it IMO approaching the arrogance of those he speaks against. Anyways, it was the entire sentiment that is my main concern, although I think “strong” and “arrogant” are perhaps being mistaken, for one in the same.

RE: the fact that you seem to pretty much agree with the Techdirt/Mike’s/Our position on artists going directly to the fans and also on how to treat your fans

Is that an accurate reading? If so, am I correct in thinking that we pretty much agree on things other than whether it’s right to say music is property?

RE: your argument against saying “intangible means not valuable”

You’re responding to a straw man argument that I have seen *no one* on here ever make, although I could have missed it easily. But, in response:

Of course there are many valuable things that are not “tangible” property! But that’s because “value” is something that resides in every individual that “values” something, and there are many (most?) of us that value things like sculpture, music, painting, poetry, etc., and is entirely independent, like it or not, of something’s status as property. For instance, I think air is quite valuable, but (and let’s make it easy and just say: “in an area of the countryside, with no real pollution to speak of and few people around”) air is a great example of something that is very valuable, and yet it is not (in the countryside mentioned) a *scarce* resource, and it does not need allocation between the few people in that countryside to prevent conflict, and therefore, is not something which needs to be property in that location.

But saying something has value is a far cry from saying that the thing can be treated as property, at least for the important purpose of determining who has the right to use a resource which can only be used by one person at a time. And in the case of music, and I mean the underlying *concept* of the music, i.e. the idea, not any particular CD, but just “the song”, there is no conflict between the right of different individuals when two people both “have the song” and try to “use” it at the same time; me “having the song” at a particular would not deprive you of “having the song” at the same time, nor would there be any incentive for me to try to, say, hit you over the head and “take the song” from you, since, we’re assumedly talking about a song that’s already released and available somewhere. (You most certainly can keep complete control over the song, in which case you could be said to be the only one to “have” it. But, little short of never playing it except by yourself with no one else around to hear would really give you that kind of ‘ownership’ over it, and even then it’s a bit of a stretch of the concept of property/ownership.)

But, so, to answer your question, the line drawn which (historically, legally) has been used to distinguish property from non-property is just that: the scarcity of the thing in question–if something physically exists in the world, and can not be claimed by multiple parties with conflicting interests at the same time, then it is a scarce resource and can be property. Property law, in fact, provides ways acceptable to a majority of people to determine who is the “rightful” owner of a piece of scarce property in a conflict, without resorting to a “might makes right” philosophy.

In the case of music, yes it has a tangible effect on people! Yes, it is very valuable. I can’t even imagine how much less rich my life would have been in a world without music! But, since it (the sound of the music is what I’m referring to here) can be reproduced/play by one individual without at the same time depriving another individual of their ability to reproduce/play the exact same sound: even at the exact same time. It is not a scarce resource needing to be treated as property in order to decide the rightful owner in case of conflict; each person can play the music, therefore there is no traditional idea of a legal property conflict involved. (Yes, I realize there is a conflict here, but a property conflict doesn’t mean a conflict as in: “we have conflicting views on whether you should listen to that without paying” but a property conflict only arises when one party can’t use scarce resources because another person has deprived them of those resources.)

In fact (here’s where I am more extreme than most, including Mike, who has said on at least one occasion I saw that he is not totally against IP) considering music or other non-scarce goods as property completely turns traditional property rights on their collective head: because, in that case, whenever someone writes down an idea or makes a song or what-have-you, a corresponding restriction on scarce property, and, in fact, restrictions on the way that every other person may use their own, rightfully owned, scarce property are now given to the one who simply wrote down the idea or recorded the song. Like it or not, intellection restriction rights are not only “property” in the (historical/legal) sense of the word, they are the inverse of property: rights that you obtain in telling other people what to do with their property because you wrote something down.

Regardless of the points to be made in in favor of intellectual restriction rights, calling those rights “Intellectual Property” is misleading, and that has long struck me as fundamentally incorrect. I think those who are rabidly defend the extending of such rights beyond even their present unprecedented scope (for instance, treating them criminally instead of civilly is a rather novel concept for the U.S.

Much of this wouldn’t have gone through so easily if big media hadn’t managed to fire the opening salvos under the radar; things may well have gone differently if we had a real debate, framed as: “Hey, by having these rights, there are a lot of difficult issues, including, among other things: providing severe criminal penalties for the first time on many infringements that previously were purely civil matters; extending these rights is taking away even more of people’s freedom to use their own scarce property in nonviolent ways as they see fit; causing a number of actions which used to be, not only *not* a criminal offense, but perfectly legal under the law (such as sharing music without profiting from it); or the Constitutional issues at least in the U.S. where the explicitly stated purpose of copyright was to benefit the people, not individuals” etc. etc. as opposed to the (initially very successful) campaign by big media to frame the debate, almost in its entirety, as: “Copying is stealing someone else’s intellectual *property*, and we know that people who steal other people’s property are just thieves. We harshly punish thieves when we catch them, and we should harshly punish these thieves who are *stealing other people’s property* by copying, too. And why on earth would you listen to anyone about this issue who would copy things, since they are just thieves, and thieves will make any excuses for their behavior.”

Which was indeed a very powerful argument for those standing to benefit from ‘winning’ the debate, but which, as you can see, ignores every relevant point in an intellectually honest framing of the debate.

Hey, I disagree that copyright could ever be implemented in a way that does not reward or punish the wrong people. I also believe that the fact that intellectual restriction laws conflict with long standing property law used to remedy and reduce conflict over scarce resources in free societies is more than enough to reject it out of hand without very strong evidence showing, not only that there *might* be some benefit to intellectual restriction law, but that the benefit is so strong that it outweighs the benefits of having a simple, consistent way of dealing with the conflicts that naturally arise around scarce property. But I would’t for a second try to frame it, even if I knew I could score a quick “win” by doing so by saying, “Hey, people that want copyright law want to throw close to 1,000 years of property law out the window so they can steal the rightful use of your stuff. And people that want to steal your stuff are thieves…” etc. But that’s because I actually care to understand and to come to understanding, not to just ram my beliefs down someone else’s throat.

Of course, I’m sure if you were ask some of the people that post here, it’s clear that anyone that thinks what I think must obviously be a ‘freet*rd’ who ‘just wants something for nothing’ and wants to ‘screw the rightful owners of intellectual property out of their due.’ And, of course, anything I say must be just an attempt to obfuscate and confuse, because I’m just a thief trying to justify stealing your works as well as others’, and that’s what you get for coming here and talking to people that actually agree with that scoundrel Mike Masnick. ๐Ÿ™‚

Anyway, post is far too long and it’s far too late, so I leave all typos, mistakes, ambiguities and other errors to posterity, but perhaps this is too long after the original post to be read by many anyway and people will mostly simply pull it out as evidence from time to time that I am far too radical on intellectual restriction law and therefore should be dismissed out of hand without really reading it closely enough to realize the plethora of errors which certainly remain. ๐Ÿ˜›

(*) the “tian” in “techdirtian” is pronounced like the “tian” in “martian”, and I immediately lay claim to this as my own work and place it into the public domain, or I give a license to it under the least restrictive license in your jurisdiction, or under your choice among several if there are several equivalently less restrictive licenses in your jurisdiction. damn, someone probably already has used techdirtian, though, haven’t they? ;D

Angus (profile) says:

Re: Re: Re:2 An Artist's perspective

I have to apologise to Mike and the Techdirtian (nice term) community in general. I wrongly thought that Mike had written this article:

In which the words “Naively, then, you might expect him to be a typical artistic fat-cat who regards every act of piracy of his photos as a personal insult that in a just world would be avenged by amputation of limbs and life incarceration at the minimum” appear.

THAT author has tainted my view of Techdirt for many months now, thinking that you all believe artists to be “typical fat-cats who regard every act of piracy yadda yadda”

Your points, Chelle, are very valid. And too many to independently address, although rest assured I have read everything with my eyeballs glued to the screen.

Mike, you’re right I shouldn’t “come out swinging” – but also, I know you only said you’ve probably spent more time thinking and posting about artists needs than I have working on my music as a raised-hackles thing. That pushed a button. Cos believe me I’ve spent a LOT of time on my music.

But you’re both right in the areas that matter. I think everyone I’ve flared up against is right and myself too… it’s just that we have different definitions for words.

So, I guess when it comes to the fairy floss analogy… you’re right, I work hard on my music and thus I OWN the skills and labour I put into it (let’s not mention the software or we’ll spiral down a rabbit hole), in a sense I AM saying “I own myself”, but I think fondly of my creations as part of myself.

Of course the world is as free to listen to my music as they are to breathe the country air.

But one thing we haven’t talked about is the concept of “moral rights” – in that sense I think it’s important to distinguish that no one “owns the intangible sound” – I realise that’s what you’ve been saying all along, I realise that now and I acquiesce. I thought you were trying to say, basically, that “everyone owns it” – my point about moral rights here is that if someone were to take one of my creations and fuck it up so it sounds horrible, that would be treating it as if it were their property to misuse as they like.

No, no one owns my sounds, but I do have something over everyone else who hears my works – I am allowed to impinge on my own moral rights, I can fuck up a song and make it sound like shit, because I created it and I have moral rights to the song.

So what is this “something” that I have that others don’t, cos there’s no denying it’s there… yet I agree, it’s not property. Interested to hear discussion from both of you, chelleliberty and Mike

chelleliberty (profile) says:

Re: An Artist's perspective

It’s just not true that we don’t think about the little artists. In fact, many of us are very likely the ones that, if we like your stuff, and we aren’t dead broke, then we will pay you the full price directly for it instead of you having to pay almost everything to make to the record companies. That is, if you get a record contract with them.

Having a copyright doesn’t guarantee people will buy your music. But really, even in a system without copyright, you are probably one of the increasing numbers of people who can now actually make a living off your art (as opposed to the great great minority that have been able to up until now) while you “only live for your music”.

Instead of say, waiting tables the rest of your life, waiting for your big break. Yeah, gotta love the way it was before people starting trading songs over the internet, huh?

Seriously, there are some good articles on Techdirt about leveraging the current system: if you truly have been around enough to validly make comments like “One thing that frustrates me about Techdirt and particularly its author” then you damn well ought to take the time to read the things that show its author actually is very concerned that you be able to make a living and he has written many articles pointing you towards how to do that.

Just look to the right under “From the Techdirt Archive…” and please don’t act like you know anything about how much I or others care about artists like you when you don’t even get that we do think you’re better off now than when copyright was hard to violate, and that our push back against big media is something far more valuable to you than trying to prevent those that already weren’t going to pay for your music from listening to it.

Angus (profile) says:

Re: Re: An Artist's perspective

This is hard to take seriously. “Waiting for my big break”???

“Instead of me having to pay almost everything to record companies. That is, if you get a contract with them”??????

You are absolutely, completely, living in the past if you think that’s how a modern music artist’s mind works.

There is no middle man anymore, we go straight to the fans.

chelleliberty (profile) says:

Re: Re: Re: An Artist's perspective

> You are absolutely, completely, living in the past if you
> think that’s how a modern music artist’s mind works.

I was painting a picture of how it used to be vs. how it is now; I totally agree it’s not how a modern music artist’s mind works; you seem to understand a lot better than your original post let on.

> There is no middle man anymore, we go straight to the fans.

Then great! You seem to have the right idea. But, so I imagine you realize that copyright law ain’t gonna be what draws your fans to ya.

But, so, you really shouldn’t be accusing Mike or the other regulars here of trying to screw you since we actually care about you, the artists, and those of us that can afford to actually do pay to help artists we enjoy create the art we enjoy, as evidenced by the growing number of people who are able to make a living at things like music, despite copyright having become a non-impediment to anyone who wanted to try to simply get everything for free…

Angus (profile) says:

Re: Re: An Artist's perspective

To further expand on my incredulity, I’ll just make it clear that I’m perfectly happy with my current situation regarding music. I’m not looking to the future for some magic thing to happen that means I never have to write a new song again. Why the FUCK does everyone think that’s how musos work? We just like performing in front of people and recording stuff. I get so much satisfaction out of it, I don’t give a shit about marketing to anyone or trying to get a label deal.

And no, I’m not a Techdirt regular I’m a noob, but it’s fucken annoying when I see posts with headlines like this one on my Twitter feed.

chelleliberty (profile) says:

Re: Re: Re: An Artist's perspective

“I’m not looking to the future for some magic thing to happen that means I never have to write a new song again. [etc.]”

Read my post again. When did I EVER say that?!

I simply pointed out that a very very small minority could even make a living, because about the only ones who could were those who struck it rich.

You call out an assumption you think is made by others, but why would you assume that I must not be a musician, or understand musicians’ concerns, if I support Mike and Techdirt and *gasp* actually even go farther in my dislike of copyright than most anyone else here? And perhaps I have just seen a different perspective, but where do you get that “most people” think that musicians want to make a big payoff and retire? Seems like you’re making another fairly big assumption there yourself…

I actually am a musician and have created some music, and one who would have likely been able to make a living creating and enriching the lives of others rather than coding up a bunch of stuff for industry. (No, I’m not saying what I did wasn’t valuable, just not as good for as many other people in the world and certainly not what I would have preferred…) I would have much rather had a life where I could hear people say “wow, she really made a difference in my life with her music” rather than “wow, she really coded up some great systems to run our hardware”… I mean, I released a little bit of my music (12-string instrumental guitar if you’re interested) on the original (now, kinda, wikipedia has some comments on it), and I was very grateful for the opportunity to have had my 5 fans for the time I did.

But, I was unable to dedicate the amount of time it takes to be a truly professional musician (by “professional” I just mean one dedicated to the craft, not simply someone who gets paid) and instead took satisfaction in providing what little enjoyment I could to people I knew, as an amateur, because that’s what was available to me. Don’t get me wrong, I don’t feel like my time was wasted. I took one of my talents and used it to its fullest and I am proud of that. But I saw, even back then, how messed up the whole situation was, and how different my life could have been if I could have fast forwarded 15-20 years.

Being a professional was not an option for me at the time precisely because of the f**ked-up-ness of the industry which funneled almost every entertainment dollar into its own coffers and only to a very small percentage of the artists involved; charging $15-20 for a damned casette, CD, etc., while barely paying anyone except in that aforementioned small minority, even the ones that did “make it” onto a label. I just wish you could realize that (IMO) you’re actually blessed that people don’t treat music as property, because if they did, the entertainment giants would probably be able to maintain a stranglehold on the system and still be the gatekeepers to musical success.

Oh, and I just want to point out that I’m not hypocritical about this. I have given some of my code, that I’ve had time to do in between jobs lately, to the world via a Creative Commons CC0 dedication+free licensing for jurisdictions that don’t allow for an author to give things to the public domain, and when I finally get my first album released, it shall be the same. It will be my gift to anyone in the world that gets something out of it. And always, “with love”. I’ll provide a way that people can support me if they so choose, but I will not voluntarily participate in a system that has harmed so many…

And there’s a hell of a lot more damage done than just within artistic communities, but this post is already far too long.

chelleliberty (profile) says:

Re: Re: Re: An Artist's perspective

> And no, I’m not a Techdirt regular I’m a noob, but it’s
> fucken annoying when I see posts with headlines like this
> one on my Twitter feed.

Perhaps it’s annoying for reasons other than anything inherent in the headline? I thought it was an interesting attempt to draw an analogy; dunno if it exactly works for me, but at least it’s food for thought. But I don’t get what’s so offensive about it…

I mean, I imagine the fact that you are here to begin with and were willing to try to get your point of view across so that others might learn something shows that you are not one of the people here that believes they are completely 100% right about everything they think ever, or that believes no one here might be willing to listen and learn, and I very much admire that you came and tried to make your point.

But, really, the thing is that most of us in the world actually have very similar goals: we want people to be better off, not worse off; we do not desire to gain everything at the expense of others having nothing; in general, people believe what they believe because they think their opinions on things are to the benefit of all. I believe there are a minority, a very vocal and currently in-power minority, that actually do not care about others, but frame their arguments to attempt to make people believe they do. I also believe, however, that it’s practically impossible to tell them apart short of direct admissions.

Therefore, I believe it’s better to take people at their word, and to argue as if everyone is out for what they think is right and good; in any case, especially in a forum such as this, there will be people that come and read the comments who hold very similar ideas who truly DO want what’s best, and there’s no advantage to making it an Us vs. Them argument. I try just treat everyone as Us, although I probably often fail.

But, the main point I want to make in response to your comment is that, as an admitted newcomer to Techdirt, was it really appropriate to come out swinging? Please put aside your assumptions about our motivations and approach it from the perspective that maybe we really do care, and maybe we really do mean what we say, and maybe, just maybe, if you treat people with respect, and you have valid points, at least some of us will listen and understand; or, we’ll disagree respectfully and say why.

Also remember that many of us have put many years (urm, or decades for some people, no idea who could be that old ;D) into thinking, discussing, and coming to conclusions about these issues, so we are not necessarily just trying to be contrary if we disagree, nor do we necessarily consider our ideas to be above those of all others. I have put enough thought into most of what I talk about that I’m pretty sure I’m right due to having had a constant debate with myself when I wasn’t talking with others. No, not everyone has done so, but why assume things about anyone when you can’t know who has put the thought in and who hasn’t?

Isn’t learning something new really about the only good reason for having a discussion about our beliefs in the first place? I’m not here to ‘win’ or to score points against someone else, I left those tactics behind along with the debate team I was on in school. I certainly don’t think a flame fest ever really helped anyone, or at least in the sense of helping that I have in mind…

Anonymous Coward says:

Reminds me of an old story, where there’s a miser living above a bakery. Every day, the baker’s cooking gives off marvelous aromas which the miser gets to enjoy – for free! Incensed, the baker takes him to court insisting on being paid for the aromas the miser enjoys daily. The judge hears the arguments and at the end tells the miser to bring in stacks of cash. The baker is then to count out the cash and tell the judge what its value is. He does so and the judge tells him to return the money, to which he protests. The judge declares that ‘he smelled your baking, you counted his money. Fair exchange.’

Hmmm… seems familiar!

Nastybutler77 (profile) says:

Thanks a lot, Mike. Now you’ve given someone the idea to patent and/or trademark a smell. It’ll start with high end perfumes, like Calvin Clien’s Obsession. With the way Louis Vitton sues over trademark, you think they wouldn’t jump on this idea? I’m surprised they haven’t trademarked the smell of their handbags.

As soon as Nestle gets the patent on chocolate chip cookie scent, no bakery can ever have that scent eminating from their shop without a license. Then were looking at a whole new set of collection groups.

mc says:

Agree or not, smells can become trademark. And that’s not new at all. I am not saying that I agree or not, simply putting a fact that in many countries you can register smells as a trademark.

I didn’t give much thought to this, but imagine if a perfume smell is unique to one manufacturer, that anybody that smells that fragance knows immediately that it belongs to xyz. I don’t know if this is even possible, because smells are very subjective and depends on the evironment, your body, state of mind, etc. But if it is possible, should the company be entitled to claim exclusivity? Just food for thought… I have my doubts, but I also understand that there can be some valid points

historicist says:

King Solomon

I also like the apocryphical story, but heard it attributed to King Solomon in King Solomon and the Greedy Baker. The conclusion of the Solomon story has a verdict. Solomon orders the “thief” to pay the Baker with the sound of clinking coins. Then Solomon doubles the Baker’s taxes. The point may be a bit more subtle. The Baker owns the smell, but is entitled to nominal compensation.

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