[UFO Chicago] Intellectual property

[Neil R. Ormos]

Larry Garfield wrote:

>"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 came out and made them outdated, because people had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?
 
I'm not aware of the addition or substraction of any
particular law, directed at the buggy whip industry, which
was responsible for the destruction of that industry.

> If we attempt to legislate business models in order to
> preserve existing ones, that is most certainly not
> capitalism.

You haven't identified a particular law which you have
claimed preserves existing business models.  However, the
general notion that "legislating business models in order to
preserve existing ones" ... "is most certainly not
capitalism" seems inconsistent with reality.  Laws
preserving business models create the environment in which
capital can reliably be invested and exchanged.  In many
ways, these laws are essential to the stable operation and
liquidity of markets that are the hallmarks of capitalism.

Apparently, "legistlating business models" is one way of
preserving expectations.

> 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.

Well, that's obviously wrong, or there would be no
investment in R&D and no investment in manufacturing
equipment and processes.

>>> 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"?

When Congress says it does.  Perhaps when a court says it
does.

Note that I'm not arguing that Congress' current balance
between the rights of Copyright owners and the rights of
various users is particularly provident, but rather that the
balance does not appear to be indefensible under the
U.S. Constitution or under reasonable theories of natural
law.

> 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.

Even were the language interpreted as limiting, it is
unclear that any court would consider the current copyright
term as beyond the scope of the grant.