[UFO Chicago] Intellectual property

[Larry Garfield]

"Neil R. Ormos" wrote:
> 
> Jordan Bettis wrote:
> 
> > Too many times, the argument is that the 'artists deserve
> > to be paid' or that the authors 'deserve'
> > something. People think that their business model aught to
> > be protected because it's worked up until that point.
> 
> I won't comment about protecting "business models", but I
> would urge that preserving people's expectations about the
> operation of law and public policy, by avoiding
> step-function changes in same, is generally a good thing.
> Preserving expectations allows people to make plans and
> investments over the long term, and encourages negotiation
> and cooperative behavior, which IMO are generally
> beneficial.  The alternative is to induce people to attempt
> to instantaneously extract maximum value from all assets,
> lest the legal and regulatory framework change to their
> detriment, which behavior generally creates a set of very
> unpleasant externalities.

But at what cost should something be preserved?  Should the buggy-whip
industry have been preserved after cars came out and made them outdated,
because people had planned on it being there?  Is not the natural
evolution of society a fundamental part of a dynamic society, such as we
claim to be and such as capitalism requires?  Is not such evolution
critical to maintaining the free and equal competition upon which
capitalism is supposedly based?

If we attempt to legislate business models in order to preserve existing
ones, that is most certainly not capitalism.  Some might argue that it
is socialism, but it would be socialism only for businesses.  So then we
would have socialism for corporations but capitalism for individuals? 
That is hardly a fair, equitable, or stable way to structure a society.

Besides, most people already attempt to to instantaneously extract
maximum value from all assets, that's why CD prices are as high as they
are.  That's the basis behind "what the market will bear", another
cornerstone of strict capitalism.

> > This completely bastardizes the concept of Copyright and
> > Patents from being *only* to provide the possibility of
> > financial gain as an incentive to create into something of
> > a birthright.
> 
> But from what authority is this concept derived?
> 
> Even if Congress' were limited in creating copyright and
> patent rights to the justification language in the
> Constitutional grant ("[t]o promote the progress of science
> and useful arts, by securing for limited times to authors
> and inventors the exclusive right to their respective
> writings and discoveries;"), that language is conveniently
> silent about "the possibility of financial gain as an
> incentive", and does not define what "progress" and "limited
> times" mean.  Thus, it would seem Congress has a lot of
> latitude in creating a birthright, as long as it's not
> perpetual.

But the definition of perpetual is equally subject to interpretation. 
Is "70 years after the death of the author" sufficiently perpetual, if
the author was 15 at the time of the grant?  What if the author is a
corporate entity, in which case it may never die?  Would "200 years"
still be a limited time?  300?  1000?  At what point does a period of
time become "sufficiently perpetual"?

I do not purport to have an answer to that question, that is something
generally left to the courts.  (For better or worse.)

> Moreover, copyright was available to authors under English
> common law.  There are those who argue that the grant clause
> in the U.S. constitution was merely an indication that
> authority over this regulatory area was to be allocated to
> the National government, not to the several states, and thus
> the grant language was inclusive but not exclusive or
> limiting.

The question of inclusive vs. exclusive grants of power to the Federal
government is as old as the Constitution itself, and far beyond the
scope of this debate.  I would, however, simply mention that there are
fairly few places where a power is granted or restricted where a reason
is given.  I can only think of two off the top of my head, this clause
and the 2nd Amendment.  ("A well-regulated militia, being necessary to
the survival of a free state...")  That would seem to imply that is
worth bearing in mind in any and all discussion therein.

-- 
Larry Garfield			AIM: LOLG42
lgarfiel@students.depaul.edu	ICQ: 6817012

-- "If at first you don't succeed, skydiving isn't for you." :-)