Question on Copyrights

Would they sell it to a corporation?

Post 21

Saturday, February 24, 2007 - 5:49am

Robert, great minds think alike! See Post 19. Our posts crossed!

Post 22

Saturday, February 24, 2007 - 9:46am

Hey Luke,

I am a law student concentrating in IP, and I think the responses so far either miss the mark or are wrong. Remember that my opinion here is just that--a law student's opinion.

I want to step back for a moment to help clarify the essential issue here in terms of basic property rights. Remember that one of the most fundamental aspects of property rights is the right to exclude others from the use of that property. That is really the essential issue that you are running into here. If you cannot exclude others from the use of your property, then you don't own the property in any meaningful sense--any and all comers would be free to exploit it. As Mr. Bidinotto stated, this would kill the potential market for your product, but that is an effect that flows from the this fundamental aspect of property (i.e. the right to exclude others).

One has to wonder where MSK was "delving" because the Copyright Act was linked to in Mr. Sconiers' post on this very thread. Far from not being "clear-cut", its an extremely well-grounded and well-drafted piece of legislation. Congress deserves credit for it.

At any rate, with the copyright, the owner maintains certain "exclusive rights". The relevant section here is Sect. 106(4), which prohibits the public performance of a copyrighted work. Sect 101 defines "public performance" as:

1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The reason for prohibiting this is that without the right to exclude such public performance, others, even rightful owners of hardcopies, would effectively be distributing the intellectual property. The copyright owner's work is now being put out into the public domain without his consent--i.e. the copyright owner is losing exclusive control of his property. Again, this would have the effect of diminishing the copyright owner's potential commercial market. So you need to see if your act fits the definition listed above.

Even small public performances, such as say 20 people, still could harm the copyright owner's potential market. Imagine that thousands of people gave such small performances, the widespread effect would substantially damage the commercial potential.

Furthermore, whether you charge a fee/admission is largely irrelevant to actual infringement. Imagine that I took a movie and started showing it publicly all over the country without the copyright owner's consent--would it be ok if I didn't charge a fee or sold popcorn? Of course not, I am infringing his right to control the use of his property. Charging a fee/admission is really only relevant to one of the exemptions or the defense of fair use (see the 4th prong of fair use in Sect. 107). One would still be essentially infringing, but one would have a valid legal defense or exemption for doing so. To assess this, you have to look at the requirements of fair use or the exemptions in the Copyright Act to see if your actions are legally justified.

If not charging a fee were a valid basis, collectivists would be lining up around the block to exploit it. They could simply obtain the physical object of copyright, then disseminate it publicly (through performance or display or copy) and not charge a fee for it. They would claim that there are acting in the "public interest" by giving the public "free" information and they themselves are not profiting from it. In fact, many trying to erode copyright protection argue on this very basis.

Don't be confused by first sale doctrine. What the doctrine is doing is protecting the free alienation of the physical object of copyright, such as a book, painting, etc. In other words, when you buy the physical object, you now have the distribution rights, but only over the physical object you just bought. It is protecting the buyer's right to distribute the physical object (for instance, the book you bought) without the original owner placing all kinds of restrictions on it. You are now free to sell or lend that book or painting or whatever. First sale doctrine cuts off the copyright owner's distribution right to that hardcopy after that first sale.

However, the rest of the copyright owner's exclusive rights remain intact. That means the copyright owner still maintains control over distribution of copies, public performance, the creation of derivative works, etc. Your ownership of that hardopy does not allow you to usurp any of these rights, you only have the right of distribution to the physical object that you now own.

The last quote you provide in post #7, does NOT show that "use-control" is not within the copyright owner's rights. The first sale doctrine merely gives you control of the physical object as a bona fide purchaser, but does NOT give you control of the underlying intellectual property. Furthermore, "maximizing a return" is not the sine qua non of one's property rights. When I drive my car on vacation or to the beach, do I lose my "use-control" or property rights because I may not be "maximizing the return" on that property? No. "Use-control" is a fundamental aspect of the nature of property and its at the owner's discretion as to how he wants to specifically use the property.

In summation, asking "permission" is not an affront to your rights. Not asking permission from a copyright owner would be an affront to his property rights. In cases of small public performances, or when somebody gets a copyrighted song off the internet, most likely the copyright owner would never know. Even if he did, because of the legal expense, he probably won't do anything about it.

Nevertheless, as Objectivists, we must recognize the paramount importance of respecting the rights of property owners. Their creation is the product of their effort and their property rights deserve the utmost respect.

Regards,
Michael

(Edited by Michael Moeller on 2/24, 7:12pm)

Post 23

Saturday, February 24, 2007 - 10:03am

So the question is not how to understand the law and/or morality concerning intellectual property rights. The question is how to circumvent them?

Hell, I can think of some better ways than selling to a corporation. Like the lady suggested, make a group for everyone to chip in, then make unauthorized copies for all parties on most any computer with a R/W CD drive. Then you can even make your money back by selling pirated copies to others by word-of-mouth for a low price. You can rip off blank CD's from the local store by simple shoplifting.

Speaking of which, you might consider outright theft. That's not a bad option for the competent. Someone go to Irvine, CA, find out where the copies are kept, make friends with the guy who puts them in the mail for ARI's mail-order business and dupe him (there are techniques you have to learn for this, but that is no problem for the competent). Or if that seems too risky and you are willing to invest some venture capital, you could try to find a used copy on ebay to use as the master copy to pirate.

You can rip MP3s from the CDs, too. Ripping MP3s means you can do most of the pirating/distribution work over the Internet without the inconvenience of leaving your own home. Paypal works wonderfully for receiving your hard-earned profits, too. This does leave a trail, but the risk is minimal. This is strictly a small-fry enterprise and the big guys don't mess too much with small-fries. And making an anonymous surrogate Internet personality and scrubbing the tracks even to the IP level is not all that hard.

But, darn it and shucks anyway, I just can't think of any legal/moral manner of how obtain and/or use (for non-private use) recorded lectures without purchasing them (for obtaining them) or asking for permission from the owner to use them (for non-private use). There should be a law or something against this...

And for some darn reason, the illegal/immoral ways seem to come with those pesky inconveniences and risks. However, if you pull it off, you can get the added benefit of feeling that you are vastly more clever than the owner once you have his property in your mitts (or are using it in a manner he, and most likely the law, would not sanction). That's a rush you don't get anywhere else.

Also, that will teach those guys to charge a high price for their property! They have no right to be the piss-poor capitalists they are and call themselves Objectivists! After all, it is far more important to collectively spread the Objectivism on those lectures than to kowtow to the individual rights of one insignificant puny little owner.

//;-)

Michael

Post 24

Saturday, February 24, 2007 - 10:47am

Michael Moeller's Post 22 has proven the most clearly written, well-informed and useful of this entire thread for future reference;
MSK's Post 23, the opposite.

Post 25

Saturday, February 24, 2007 - 11:28am

Luke:

     I disagree, re MSK's. I read his with a solid tongue-in-cheek and smile. He was obviously being facetiously satiric about varied immoral ways to handle this issue. It was a parody of a response. --- 'Course, he could correct me if I'm wrong.

     Totally agree re MM's. Quite informative.

     I thought that both were worthwhile...in different ways.

LLAP
J:D

Post 26

Saturday, February 24, 2007 - 10:34am

Despite the ever-unresisted snarkiness and blindness to legal nuance for borderline cases (which I believe could be at issue in some instances of regular meetings in private homes, and which the Internet is blasting wide open with new concepts of use�and there are several WIPO sponsored studies and committees for this behind the scenes I knew about before I left Brazil), Moeller's explanation is spot on.

If anyone is really interested in understanding the moral/legal logic behind intellectual property rights (instead of, say, how to get around those rights), Moeller's Post 22 is simple and clear. In short, he did a very good job of explaining it.

Michael

Post 27

Saturday, February 24, 2007 - 2:14pm

I agree; Michael Moeller's post #22 very succinctly and clearly lays out the moral and legal issues. (Sanction!)

In my earlier post, I certainly didn't mean to suggest that copyright violation could occur only if someone were to charge admission and/or benefit financially via unauthorized public performance/display/playing/reading, etc., of the copyright owner's work. Even if the user did not charge the audience -- perhaps especially if he did not -- the performance would (1) violate the right of the copyright holder to set his own terms for the use of his intellectual property, and (2) also undermine the copyright owner's ability to offer the work only for sale or rent. How could the owner possibly be compensated for his work if it were being made available to the public without charge?

However, Michael is correct that this second, financial consideration flows from the first: the absolute right of the copyright owner to his intellectual property, and to set terms for its use and distribution. If a copyright owner's terms for the public use/performance of his intellectual property were that all purchasers or audience members had to give Nazi salutes, or stand on their heads, or send him a million dollars -- well, it's his property; and if you want to use it, then abide by the terms he's set down. If you don't like the terms, then don't use it in an unauthorized way.

(Edited by Robert Bidinotto
on 2/24, 2:15pm)

Post 28

Saturday, February 24, 2007 - 3:09pm

Robert Bidinotto wrote:

However, Michael is correct that this second, financial consideration flows from the first: the absolute right of the copyright owner to his intellectual property, and to set terms for its use and distribution. If a copyright owner's terms for the public use/performance of his intellectual property were that all purchasers or audience members had to give Nazi salutes, or stand on their heads, or send him a million dollars -- well, it's his property; and if you want to use it, then abide by the terms he's set down. If you don't like the terms, then don't use it in an unauthorized way.

I would question how the copyright owner would ever enforce such a demand under current law -- and an unenforced law is no law at all.

In any case, I did not want to give the impression that I have no regard for the concepts of intellectual property rights and copyright law. I simply wanted to explore the limits of the law itself, not just what the owner of a piece of intellectual property expresses as his wishes. All sorts of people "say" all sorts of things they want that have no merit and no basis in reality and no possible enforcement mechanism save social ostracism. Even Howard Roark had to resort to extraordinary measures, undergo arrest and trial and risk extended jail time to enforce his desires for how his ideas became manifest in reality.

I have to wonder how many dues-paying social groups with newsletters announcing video nights and so forth in members' homes have violated the law over the years by playing movies in their homes for the entertainment of their friends.

So ... which Objectivists out there will start a campaign to sue YouTube for copyright infringement over the posting of the Ayn Rand interviews with Phil Donahue and Mike Wallace? The deafening silence over this egregious violation of intellectual property rights continues to shock me.

Post 29

Saturday, February 24, 2007 - 6:52pm

To those who found my explanation useful, I'm glad to have helped.

Robert,
On the fee/admission issue, I actually wasn't referring to your post. I believe Mr. Malcom suggested this and it wasn't made clear whether this was right or wrong. I don't remember you stating the same in your post. Actually, I was impressed that you picked up on the potential market argument--I wouldn't expect that to be obvious.

Luke,
From my point of view, I thought you were just looking for clarification on the issue. Nothing at all wrong with that. In fact, its always good to know just how far one's rights extend. And besides, these issues aren't always easy to see or that easy to understand.

In regards to your specific question, I think the best thing to do is to just seek permission from the copyright owner. Explain to him/her how you will be using it and exactly why you will be using it. Even if he/she denies the request, at the very least you can still explain the work. However, I would wager in most cases the author would grant your request. Afterall, it gets people discussing the his/her work. It may induce an audience member to go buy the work or other works by the author, or even spread it by word of mouth to still more people. The author is not without his benefits as well.

Regards,
Michael

Post 30

Saturday, February 24, 2007 - 4:22pm

(sigh)

It is not a violation of the law to play a video for some friends. In order to explore how far a law goes, it is necessary to understand it first in basic terms. I suggest more careful reading for correct understanding.

btw - Who are the copyright owners for the Rand TV interviews? I suspect the TV stations or the different TV show production companies are.

Michael

Post 31

Saturday, February 24, 2007 - 8:42pm

Michael M. --

The "potential market" argument is obvious to me because I have to make a living as a professional writer. If anyone could reproduce, broadcast, circulate, or otherwise make publicly available my works without compensating me, I'd have to leave the profession.

This, incidentally, is my huge beef with many libertarians, particularly anarchists, who oppose on principle legally enforceable intellectual property protections. These people not only would allow the violation of individual rights; they also would obliterate all incentives for creative individuals to make publicly available the products of their thinking and effort. They would turn producers into the equivalent of monks, creating in private (if at all) hiding their creations from the world. After all, why allow oneself to become the unrewarded, starving benefactor of humanity?

Post 32

Sunday, February 25, 2007 - 1:53pm

Robert writes:

This, incidentally, is my huge beef with many libertarians, particularly anarchists, who oppose on principle legally enforceable intellectual property protections.

Oh yeah, that's definitely one thing we can agree on. I recently argued with a libertarian on this point, and he wasn't even of the anarchist variety. They're even worse--rationalism par excellence. Its amazing to me that in the midst of the Information Age and the Mind Economy, that these creatures would allow intellectual property to be trampled and exploited with reckless abandon. Considering the untold billions invested in research and development and in bringing such products to market, what do they think would happen to production and trade if these people's creations could be copied and exploited at minimal expense to the exploiters? Why would somebody invest in something that will get stolen tomorrow? How could the investors and inventors possibly recoup their investments in the face of parasites running rampant with their intellectual property? Somehow--is their answer. The reality is that production and trade would come to a grinding halt.

I became acquainted with the anarcho-libertarian material when I was only 15 or 16 years old, including the Tanahills' book--which was absurd to me even then. If one sits down for two seconds and projects what a society would look like without an objective legal code defining which actions are legally impermissible, without a legal code defining punishments, without a sole arbiter to enforce one's rights, one would see it is the complete breakdown of objective law. Instead, "competing governments" would be using force by whatever arbitrary standards they set--i.e. you would have no legal system at all, but rather a free-for-all in the arbitrary use of force. Some society that would make.

Post 33

Sunday, February 25, 2007 - 2:17pm

Robert, Michael M,,

Someone once told me that in Scotland, in the 1600's, you rented your house by the year - and didn't pay till the end of the year. Wow - we don't have that level of moral responsibilty even in areas where people agree to what "should" be done.

I suspect that one of the things that will happen (and within the next 4 or 5 years) will be a strong collition between software and hardware makers to make it impossible to do unauthorized copies (except for the professional pirates and they will only get away with it in some countries - not all). And that will help a lot for digital properties like music and video.

But it will stay an endless struggle until most people respect the moral rights of the producers.

The big picture is that morality has been the province of religion but religon is on its way out and during that time till the void is filled with a rational code, there will be lots of rationalizing of immoral actions.

Post 34

Sunday, February 25, 2007 - 3:25pm

"If anyone could reproduce, broadcast, circulate, or otherwise make publicly available my works without compensating me, I'd have to leave the profession." Robert Bidinotto

Be careful Robert! You have enemies, you know. You might be giving them some ideas... :)

Jeff

Post 35

Monday, February 26, 2007 - 3:24pm

Anyone who did not know better would think that you communists never heard of the free market.

The American Arbitration Association
ALTERNATIVE DISPUTE RESOLUTION FOR COPYRIGHT AND TRADEMARK MATTERS
This paper discusses the use and benefits of arbitration in resolving Intellectual Property disputes involving copyrights and trademarks. Additional topics covered include the costs of litigation vs. arbitration for these types of cases, interim remedies and customization of arbitration clauses to address intellectual property-related disputes.
http://www.adr.org/sp.asp?id=29191

ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP's licensees encompass all who want to perform copyrighted music publicly. ASCAP makes giving and obtaining permission to perform music simple for both creators and users of music.
http://www.ascap.com/about/

The American Federation of Television and Radio Artists (AFTRA) is a national labor union representing over 70,000 performers, journalists and other artists working in the entertainment and news media.
     The union negotiates and enforces over 300 collective bargaining agreements that guarantee minimum (but never maximum) salaries, safe working conditions and health and retirement benefits. When the union is unable to resolve disputes with employers, AFTRA contracts include procedures for binding arbitration. The cost of these proceedings is paid by the union.
http://www.aftra.com/benefits/arbitration.htm

AFTRA-SAG Washington/Baltimore
Who We Are Nationally, AFTRA represents more than 80,000 professional actors, news broadcasters and writers, announcers, vocalists, and others who work in the fields of television, radio, sound recordings, and industrial productions. SAG represents over 98,000 professional actors who work in film, television, industrial productions, and infomercials. The Washington-Baltimore Local of AFTRA was chartered on December 5, 1940, making us one of the first AFTRA Locals in the country. (This was before television, so it was called AFRA back then.) We have approximately 2,600 active members. Our SAG Branch was chartered on August 1, 1978 and has 1,800 active members.
http://www.aftrasagdcbalt.com/?q=node/1

BMI: British Music Industry
If you're a songwriter or composer and have written songs that have the potential to be used on radio, television, the Internet, in restaurants and or any of the thousands of other businesses that use music, you've come to the right place.
     You are about to begin a process that will make you a part of a family of more than 300,000 of the world's top songwriters, composers and music publishers, and, more importantly, will ensure that you get paid when any of those businesses plays your song.
http://www.bmi.com/join/

Of course, as we all learned in our cost-free and mandatory tax-funded public schools, the free market often fails. Fortunately, there is always the United Nations to protect your rights. Joining the WIPO was one of the last acts of the Reagan Administration in January 1985. This UN Treaty is now US law.
The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.
     WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland.
http://www.wipo.int/about-wipo/en/what_is_wipo.html
Article 9
Right of Reproduction:
1. Generally; 2. Possible exceptions; 3. Sound and visual recordings
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350

Post 36

Monday, February 26, 2007 - 6:45pm

Leave it to an Anarchist to be unable to see any difference between Capitalists and Communists - Hey, they both start with 'C' and have governments!

My brother is a professional muscian (Bill Wolfer) so I get to hear the inside stories.

It's hard enough trying to making a living selling what people can hear for free on the radio. Harder still if the labels claim high returns and the foriegn distributers short-count you. And still harder when the pirates burn CDs in big enough numbers to kill some of the foriegn markets. And then your customers makes copies for all his buddies.

With all the money soaked up by the people working for all of those associations, organizations, crooked distributers, dishonest labels and the pirates there isn't a lot of money left going back to the artist that made the product.

Post 37

Tuesday, February 27, 2007 - 11:39am

OK, I take it back. You are not communists because, really, communists were not looking to reform capitalism, and you are.

You are trying to fix market failure caused by a non-rival, non-excludable good (service). On the one hand, the mixed-economy advocates apparently think that if one person has a contract, a million other people can enjoy the same contract at the same time, like watching a sunset. On the other hand, the reformers of imperfect capitalism seem to think that if there is one person with a contract then a million other free riders benefit without paying -- and if they do (stipulated) that some horrible crime has been allowed. Either way the problem is stated, the advocates of regulated capitalism agree that we need government to correct this market failure.

The mixed-economy conservatives admit that the free market works when it comes to producing shoes and (maybe) software (though the government created the Internet), but there is a long list of services for which market failure has been so clearly established that only complete government monopoly will bring justice. No mere pigouvian tax, here, no "service fee" on private contracts -- which apparently derive some hidden benefit by dumping their negative externalities on everyone -- no, only total government monopoly on patents and copyrights should be allowed according to the semi-capitalists.

Why not put broadcast back into the government sphere? They do that in Europe: everyone pays a radio and television tax and the government runs the stations. That's how they fix market failure in Europe.

Do you realize that every day millions of passenger train commuters read newspapers over the shoulders of other commuters! That is a huge free rider problem! If the newspapers were run by the government and distributed free, then we would not suffer this travesty against intellectual property.

Surely someone here would be an author of children's books, but the market failure prevents their doing that work. Daycare centers charge for the service of reading books to children. That denies authors the profits they are due as writers. On the other hand, if all daycare were tax-paid and provided free through the government, then they could just send in a list of what books they read to how many children, and the author would could get proper royalties.

Government protects physical property.
Government protects intellectual property.
Government should protect emotional property.
If I am walking down the street feeling efficacious as a man of self esteem is wont to do, and someone sees me, and it makes them feel good, then they have benefited without paying me. It took me time and thought to create that good feeling and someone who "shares" it without my permission has stolen from me. Perhaps the government should have a smiles and frowns tax and then from that fund they could redistribute feelings back to the creators, perhaps by sending out clowns, mimes, and other actors... Oh, that is what Congress does...

(Capitalists understand that the term "market failure" is a fallacy.
Markets do not fail. Start with that and reason from there.)

Post 38

Tuesday, February 27, 2007 - 12:46pm

Oh, Michael...

You're playing word games. "Mixed economy conservatives" - I'd be upset at your name calling, but then I realized that an anarchist sees all non-anarchists as either mixed-economy or controlled-economy advocates. Do you really believe that the market place will protect individual rights all by itself?

Here's the thing. There is no reason to discuss intellectual property rights - or any rights of any kind - with an advocate of anarchy because they don't really believe in rights. "Rights" are just word games to an anarchist because it will be a struggle between those "protection agencies" - competition between different providers of force - that determine all outcomes.

One thing requires a government and that one thing must be a monopoly - the laws. There must be only one set of rules. Just as there is but one set of individual rights. Anarchists won't accept the idea of a government and are willing to throw away or twist into non-recognition the concept of individual rights inorder to stay with their ideology.

Post 39

Tuesday, February 27, 2007 - 1:45pm