The Blurred Lines of Intellectual Property Rights

 

The big news in the music world this week has been the unanimous decision by a Los Angeles jury that Robin Thicke’s 2013 Pharrell-composed hit ‘Blurred Lines’ plagiarised Marvin Gaye’s 1977 disco foray ‘Got to Give it Up’. They pair have been ordered to pay $7.2 million to Gaye’s family who inherited the copyright to his music.

How ironic that the title of the song at the heart of this copyright claim is also a good description of the effect that the concept of intellectual property has on the logical distinction between ideas and property: it blurs the line.

Copyright claims are no doubt happening all the time, but this high-profile one has prompted a particularly heated reaction from those in the music industry and the public. What’s fascinating about the web chatter that’s been happening all week is that, from what I’ve seen, it’s been mostly disapproving of the ruling.

I wonder if the Blurred Lines ruling hasn’t for many shone a bright light on the usually unseen dark side of copyright law and the concept of intellectual property. Perhaps this ruling has prompted many musicians and music lovers to reflect more deeply on the idea. Maybe now in many people’s minds copyright law suddenly seems to be more predatory than protective, more chilling than comforting.

The degree to which it does depends on whether people perceive the case against Pharrell and Thicke as an abuse of copyright law, that is an instance where the purpose of copyright has been perverted to achieve an end that it’s not supposed to, or as an inevitable outcome of the exercising of the rights granted by intellectual property law.

Copyright is “the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.”

The question is whether this is and can be a legitimate right; does such a right necessitate violating the rights of others? This is one issue that divides some libertarians. There are those who argue that such a legal right cannot be moral because it requires the initiation of force to enforce it and those who argue that it doesn’t and therefore can; or that even though it does violate the non aggression principle an exception should be made, based on the belief that not doing so would seriously retard economic progress.

As far as I can tell the best reason and evidence shows that intellectual property rights cannot be enforced without violating the freedom of others to use their property as they wish; and that historically copyright and patents have not been as crucial to economic progress as we might think.

The two best arguments, one from principle and the other from consequences, have been produced by Stephan Kinsella in his book Against Intellectual Property and Michele Boldrin and David K. Levine in their book Against Intellectual Monopoly. The former is a practising patent attorney and well-known libertarian writer, the latter are mainstream economics and not confessed libertarians who argue that “the downstream licensing agreements implicit in current intellectual property law are anti-competitive and that there should be a presumption for intellectual goods as with other goods that competition is likely to outperform monopoly.”

Stephan Kinsella has produced the strongest argument so far against intellectual property, one which I think is gaining more acceptance amongst libertarian circles as time goes by. I highly recommend reading his book, but here’s some enlightening excerpts and his compelling conclusion:

At most, my use of this idea will diminish its value to the inventor by hampering his ability to monopolistically exploit it. As we have seen, however, one cannot have a right to the value of one’s property, but only in its physical integrity.

“Further, ideas in one’s head are not “owned” any more than labor is owned. Only scarce resources are owned. By losing sight of scarcity as a necessary aspect of a homesteadable thing, and of the first occupancy homesteading rule as the way to own such things, Rothbard and others are sidetracked into the mistaken notion that ideas and labor can be owned. If we recognize that ideas cannot be owned (they are not scarce resources), that creation is neither necessary nor sufficient for ownership (first occupancy is), and that labor need not be “owned” in order to be a homesteader, then the trouble caused by these confused notions disappears.

“It is simply not legitimate to restrict the use to which an owner of property can put it unless that owner has contractually obligated himself or has otherwise acquired the information by a violation of the information-holder’s rights. Talk of reserving the right to copy is merely a way to avoid the contractual notion that only parties to a contract are bound by it.

We see, then, that a system of property rights in “ideal objects” necessarily requires violation of other individual property rights, e.g., to use one’s own tangible property as one sees fit. Such a system requires a new homesteading rule which subverts the first occupier rule. IP, at least in the form of patent and copyright, cannot be justified. It is not surprising that IP attorneys, artists, and inventors often seem to take for granted the legitimacy of IP. However, those more concerned with liberty, truth, and rights should not take for granted the institutionalized use of force used to enforce IP rights. Instead, we should reassert the primacy of individual rights over our bodies and homesteaded scarce resources.”

Also, here’s an excerpt from an online essay by Boldrin and Levine entitled ‘Why IP is Not IP’:

“…it is true that my drinking from my cup of coffee does not affect your use of your cup of coffee. No one would go on to suggest from this fact that coffee is “nonrivalrous” or a “public good” and that special laws and subsidies are needed in the coffee market. It is true that there is legal protection for cups of coffee – if you drink my cup of coffee without my permission, this would be an act of theft, and you would be subject to various civil and criminal penalties. Economists regard these “property rights” in the manner suggested by Eugene Volokh as securing the fruits of labor, and providing incentive to care for property. But notice that less legal protection is needed for your copy of your idea than is needed for your cup of coffee – while it may be relatively easy for me to steal your cup of coffee by threat or when you are not looking, it is fairly difficult for me to learn your idea without your active assistance. Indeed, it would seem that the legal protection needed would be no more than the legal right not to be subject of physical torture or coercion – a right that we enjoy regardless of the state of copyright and patent law. Be this as it may, there is no serious challenge to intellectual property in the sense of your right to determine to whom, under what circumstances and at what price you will transfer copies of your idea.

All of this brings us to what intellectual property law is really about – a reality that is simply obscured by analogies to other types of property. Intellectual property law is not about your right to control your copy of your idea – this is a right that we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. This is not a right ordinarily or automatically granted to the owners of other types of property. If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself. But my property right is not an automatic right both to sell you the cup of coffee and to tell you how to drink it.”

The absurd conclusions packed like coiled springs within any theory of rights that lacks coherence will eventually have the lid opened on them, spring forth and be manifested as nonsensical outcomes by virtue of the human urge to follow to the fullest extent the logical paths of those theories believed to be correct and just. This is what we are witnessing happen with copyright and patents. Musicians, artists, lawyers and judges are following the logic of IP and assuming the rights granted by intellectual property law are legitimate, which is resulting in some crazy copyright lawsuits and plenty of patent wars/trolling.

We can either follow where our reasoning minds lead us and accept that if we treat ideas and property as if they are the same, then it will lead to absurd and unjust outcomes, or we can simply learn from experiences like the Blurred Lines lawsuit. But we must do one or the other if we are to progress.

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7 thoughts on “The Blurred Lines of Intellectual Property Rights

  1. There are blurred lines here. The Pharrell song is clearly inspired by Marvin Gaye’s song, but most people seem to think that is cool, and in fact a homage to the original. Similarly, a cover version of another song is itself a creative act. The end result is cultural enrichment.

    On the other hand, if I publish a novel, and then another person copies it word for word and publishes it under their own name, the majority of people would see that as theft. If I write a play and someone performs it without paying me, this would hardly encourage me to write more plays.

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    1. Most probably the majority of people today would see that as theft, I agree, but I would argue that this belief exists because the law says it is theft; and because people know that that if they took someone to court for doing so then they would most likely win damages (sometimes BIG damages).

      Under current law you have to convince a jury that the accused violated your ‘copy right’, that is the right afforded to you by copyright law (which apparently isn’t very difficult, but I guess it doesn’t happen a lot more often than it does because most people can’t afford the legal fees). In a society where there was no such legal concept as intellectual property, however, you would have to convince a jury that the accused’s actions restricted your freedom to publish your book (not diminished its market value), or otherwise violated the terms of an enforceable contract you had with them.

      The key is the point that once someone peacefully acquires a copy of your idea, then they become ‘first occupier’ of THAT copy, and can do with what they please just like any other property. There’s no way to restrict what they do with that copy (which is what IP is all about) without violating their property rights.

      I think Boldrin and Levine made this point powerfully when they wrote:

      “Just as your labor is bound to your person, so is your knowledge of ideas, regardless of whether such knowledge may have been acquired directly or by learning from someone else. Once the ideas have been voluntarily transmitted to you, and the established market price paid, those ideas are bound to your person as much as your labor is. Preventing you from freely using such knowledge is logically equivalent to forcing your mind into slavery. Even in the case of objects you voluntarily purchased in the market at the asked price, such as books, CDs or computer files, these typically reside in your house, your office or some other space which belongs to you. They are your private property very much in the same way that the cup of coffee you are drinking is your private property. To enforce an intellectual monopoly restriction on the usage of those objects requires intrusive, expensive and morally offensive measures. It is no coincidence that intellectual property law is everywhere the enemy of privacy and freedom. Contrary to the rhetoric of those who advocate the current law, it is not theft to make copies of a book legally acquired. On the other hand, the measures used and proposed for preventing the owners of those books from making copies are akin to breaking and entering.”

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      1. Many writers self-publish these days, and that must be a good thing. But if other publishers could simply take their work and publish it under their own name, surely you would agree that is unfair?

        And regardless of whether it is fair or not, how could it be beneficial to society? It would simply remove any incentive to write a book. Nobody would ever write a book, and if they did, they would certainly never write a second one, as they would be unable to generate any income from it.

        The Pharrell case is different. The existence of Pharrell’s song does not in any way damage the earning potential of Marvin Gaye’s song – on the contrary, it gives it a new wave of publicity. A cover version of a previously released song has a similar effect. But a copied version of a book is the same as the book itself.

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      2. It’s certainly deceitful to take someone’s else’s novel and publish it as your own, but not all acts of deceit necessarily result in a violation of someone’s freedoms. We limit the problem of dishonesty in society quite effectively through ostracising those who consistently act dishonestly. I think anyone that took other people’s novels and published them under their own name would be quickly outed by anyone concerned with this particular kind of dishonesty, especially in the Internet age.

        It’s really tough to argue that without enforceable intellectual property rights no one would have any incentive to write books. Primarily because you’d have to explain why books and plays (many of which are now considered Great Works) were written in the centuries and millennia before the concept of the exclusive right of the originator to publish, copy and perform their creation existed. In Shakespeare’s time there was no law to prevent others from performing his plays or copying them, but this didn’t deter him from writing plays. It’s quite possible that without the folio of his plays created by two acquaintances of Shakespeare’s, which they confessed was created without his permission, we wouldn’t know Shakespeare today at all. Food for thought at least.

        Copyright enforcement of sorts first emerged in the early 16th century around the time of the birth of the printing press, not coincidentally. It was basically a form of state/religious censorship, a way to suppress the dissemination of any works that were critical or dissenting of the rulers or state religion at the time. This was achieved by giving copy-rights to the king’s or Pope’s favoured printers, which meant they could dish out lots of bibles and other state propaganda, and suppress anything else. In fact early copyright privileges in England, during the reign of Elizabeth I, were straight-forwardly called ‘monopolies’.

        Boldrin and Levine recognise in their work that at the root of IP is government-granted monopoly, hence their book title.

        Again, I can’t put it any better than they do:

        “It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is not like ordinary property at all, but constitutes a government grant of a costly and dangerous private monopoly over ideas.”

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      3. Ah, but …

        In Shakespeare’s age, it would have been physically difficult to copy his works, and manifestly dishonest, leading to the copier quickly becoming ostracised. In the digital age, things are very different. Suppose that copyright law disappeared and anyone could reprint another’s book. A big publisher would simply reprint popular books and sell them via book shops or over the internet and not pay any royalties to the author. There would be no need for the publisher to change the author’s name, or to do anything dishonest or deceitful.

        Similarly, Apple could take the digital recordings of all music ever published and sell it on iTunes with no royalty to the artist.

        Google could take a copy of every website on the internet and display that to its users instead of the original, preventing the original website from earning money through advertising.

        WordPress could take a copy of every article published, and direct all its visitors to the copy, so that the original blogger gets no traffic.

        These things would be very easy to do. In each case, there is no dishonesty, but the author/artist earns nothing, and the distribution network keeps all the profit.

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      4. On the face of it that does seem like a potential nightmare scenario, but standard property rights and contract law should be sufficient to prevent it. The music Apple currently has in their databases was given to them under contract by its creators – i.e. on condition that Apple does certain things like pay royalties. If Apple stops paying royalties then millions of musicians have grounds to sue Apple for contract violation. Furthermore, Apple would seriously harm its reputation by treating content creators in such a way, and would drive them into the arms of rival content distributors – ultimately threatening its own profitability. So even if only a few people actually took Apple to court, it would be suicide for Apple to behave in such a way.

        As for Apple somehow acquiring all music in digital format, the key question is how? They could acquire copies of all music that was being offered for sale through websites or was available for download from openly accessible databases, but they couldn’t acquire music residing on databases and computers that were secured or offline because that would require hacking, which is a violation of property rights.

        The same incentives argument applies for Google and WordPress. There would be no incentive for Google to do such a thing because no one’s going to want to advertise with Google if they get no return – and if no one wants to advertise with Google, then Google dies. 97% of its revenue comes from advertising.

        If WordPress started doing what you suggest then this would prompt an exodus of bloggers to other blogging platforms. Again, it would be business suicide.

        When you think about, intellectual property doesn’t really exist in the world of the Internet. Everyone’s ‘violating’ everyone else’s intellectual property all the time. Everyone’s content is all over the place and everywhere it ‘shouldn’t’ be. Enforcement of IP on the web is basically impossible for anyone except the largest media corporations and mega rich artists like Prince – but even they can’t stay on top of it. IP enforcement is virtually non-existent and has been since the Internet’s birth, and yet the total economic value of the U.K. music industry in 2013 grew 9 percent year-on-year to £3.8 billion, up from £3.5 billion the previous year (according to a report published by umbrella trade organization UK Music). Other factors contribute to this growth, but surely what we can say is that a lack of vigorous IP enforcement is not significantly diminishing the incentives of musicians to continue to create music. And if I had to bet on it, I would bet that it’s the same for literature, art and film.

        If Apple, Google and WordPress destroy their own customers’ chances of making money or of attracting an audience, then they destroy themselves.

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      5. Apple’s customers are the people who buy music. Google’s customers are its paid advertisers. Neither of these groups need protection. It is the producers of music and websites who need the protection that copyright law provides. Google doesn’t even have contractual arrangements with the millions of website owners that produce the content Google feeds off. And publishers of books would have no contractual arrangements with new authors – only with the authors they already publish.

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