From The Founder's Desk
columnist: Walt Thiessen

Topic: Copyright Law
Copyright Law Needs Reform

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Yesterday's Federal court ruling against a Minnesota mom for sharing copyrighted music online at no profit to herself shows just how badly copyright laws need to be reformed.

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by Walt Thiessen
(Libertarian)
Friday, October 5, 2007

An AP report that the recording industry won a Minnesota court battle with a woman who shared copyrighted material online at no charge shows just how grossly current copyright law violates the original spirit and intent of copyright. Whether or not the woman claimed no knowledge of the alleged infringement is only a sideshow issue.

Copyrights are one of the few things that the Constitution empowers Congress to regulate. It was a power that was mostly unused and unnoticed during the first 75 years of the country's existence. But when composer Stephen Foster ("Oh! Susanna", "Camptown Races", "My Old Kentucky Home") died penniless in 1864 the event spurred people to begin to think about ways to reward creative behavior.

That's a key point. The intention with copyright is to reward creative activity. Contrary to the claims of many copyright advocates, copyright is not a natural right. Rather, it is a state-granted franchise on originally created ideas. The reason an idea doesn't qualify as a natural right is that all natural rights derive from the three primary natural rights: life, liberty, and property. Even the Declaration of Independence's reference to pursuit of happiness is a subset of all three of these primary rights.

A copyright is a claim on an idea. Ideas cannot be considered derived from natural rights because they are not scarce. Scarcity is a key economic concept that cannot and should not be overlooked. The fact that an idea can be shared by others without lessening its usefulness to its creator proves that they are not scarce.

• Ideas do not derive from the right to life, because the right to life does not imply a right to exclusivity of ideas. Ideas are ubiquitous and easily shared at virtually no personal cost. Anyone can implement an idea. So there is no need to consider ideas to be exclusive in order for society to benefit from them.
• Similarly, the right to liberty does not imply such exclusivity under the same reasoning.
• Finally, the right to property fails the same test, because property is only necessary as a right due to its scarcity.

So getting back to copyrights themselves, the only justifiable purpose for state protection of copyrights is the desire to reward creativity for the many benefits creativity gives to society. It is felt that anyone who derives some form of income by exploiting a copyright idea should have to pay a royalty to the copyright owner during some limited period of time immediately following the creation of the idea. Having stated that, we must also state what copyright's purpose cannot and should not be.

1. Copyrights should not be protected for the purpose of excluding others from using the created ideas. Rewarding the creator of the ideas is sufficient. Granting exclusive monopoly is not necessary and is an overextension of the concept behind the copyright privilege. After all, the purpose of copyrights is to reward idea creation for the benefits it provides to society. The purpose is not to prevent or restrict those ideas from benefiting society.
2. Copyrights should not apply when there is no profit or earnings involved. If a copyright holder of a song decides to sing her song to someone else without first asking for payment, there should be no implied payment for that song regardless of whether she decides to charge an admission charge for others to hear her sing it. Thus, it makes no sense to hold her uncharged listeners to a higher standard.
3. Copyrights should not exist for the purpose of intimidation. This point shouldn't even need to be defended or explained.
4. Copyrights should not be transferable. After all, the purpose is to reward the creator, not to reward financiers who want to make millions off a creator's ideas using state-granted monopoly privileges.

Let us go over each of these four concepts in greater detail, in order to make them more clear.

This one should be a no-brainer, yet many people get tripped up on it. If the idea is to reward creativity, then perhaps we should also remind ourselves why it's important to reward creativity. The why is that creativity helps our society to grow and prosper through the spreading use of the newly created idea. Creativity helps expand economic activity. Creativity provides ways to make products cheaper and more available. Creativity provides ways for people to relax and enjoy their lives more. The potential value of creativity is enormous.

So the question must be raised: if all of the above is the goal of rewarding creativity, for what possible reason would we want to restrict the use of created ideas? Yet that's precisely what defenders of creativity monopoly argue. They want to restrict the use of created ideas to only one producer because they want us to believe that less is more: that less availability implies greater spread of the creative idea's power. That's insane, because it works in the opposite direction of our original intention with rewarding creativity...to spread its use throughout society. In other words, while the state granting exclusive monopoly to an idea does reward the creator (to excess) it also greatly restricts the use of the idea in society, which is not what our society originally intended when we decided to reward creativity.

How can copyright apply when there is no material gain? If the purpose of copyright is for society to reward creativity for its productivity in society, then we can't simultaneously claim that an idea can't be given to someone else at no charge, because money is how we measure real productivity. Even statisticians who measure productivity in terms of man-hours are directly implying that the men (and women) are being paid for those hours. No one would expect a man-hour of work to be performed without pay, and therefore no measurement of work done can reasonably exclude the concept of monetary payment. Clearly then, productivity implies the use of money to measure itself. Attempts to include gifts and other forms of generosity that expect nothing in return in the concept of what must be "rewarded" are at best gross distortions of the concept. Free, non-profit exchange of ideas should not be protected by copyright.

This is another no-brainer that I shouldn't even have to defend. I'll just limit myself to one comment on this point. If intidimidation is not something our society wants to reward, why would we want copyrights to reward intimidation, which is a major reason why the RIAA pursued the Minnesota woman in the first place? The RIAA said as much. From a news.com article on the story:

"When the RIAA does sue individuals, any money it receives from settlements and judgments are generally reinvested into the group's antipiracy program, said Jonathan Lamy, an RIAA spokesman. 'This is not a money-making venture,' he said."

In other words, the RIAA claims that the whole point of their lawsuit is to raise funds for their campaign against music downloaders....it's not to be used to reward the music's creators for their creativity. That's nothing more than intentional intimidation. The concept fails completely.

Copyrights should not be transferable.

This is probably the most difficult concept for many people reading this article, so let me take a few moments to discuss it. It is difficult for some people to believe that an original idea such as a film or a book can be used to benefit mankind if someone isn't given the exclusive right to produce it. The thinking goes that since most creators don't have the means to exploit their own ideas directly, they must be able to transfer their rights to someone else who can exploit them in return for some payment.

The problem with this line of thinking is two-fold in that that it directly implies (1) that only one exploiter can exploit the idea at one time and (2) that only by transferring the privilege of copyright can the idea's creator benefit from someone else's exploitation of the idea. Neither point is true. Any number of people can exploit an idea. Advocates of current law object that no one would want to invest millions of dollar in making a film, for instance, if they couldn't have exclusive access to delivery of the product in movie theatres. This isn't true. Historically, before the advent of copyright, numerous publishers often published the same work over and over again in competition with each other. The famous American Revolutionary pamphlet Common Sense by Thomas Paine was published by hundreds of publishers and printers throughout the American colonies. There was no need for commercial exclusivity, and it was successfully published without such exclusivity.

What is true is that movie producers and distributors would not be guaranteed windfall profits from the films they make and distribute. In other words, they'd be required to participate in a competitive marketplace where others who also wanted to distribute the film would be permitted to do so at a lower price, provided that they also honored the original copyright by paying a royalty to the creators. That's no different from any of the rest of us, who also participate in competitive marketplaces when we ply our trades.

But how do you separate the various acts of creation that go into making a film? That's the counter-argument my opponents make. Actors, directors, scriptwriters, and props makers (as examples) all produce creative ideas. How can they possibly be paid separately for their work? That's a red herring argument. There's no need to force other distributors to pay them each separately for their creative contributions. They can sign a contract that grants someone else the power to collect their royalties for them. There's no reason that can't be the original movie company. What they cannot do is transfer their right to someone else, including to that movie company.

The Victim in Minnesota

Clearly, the woman in Minnesota who was convicted of violating the copyrights of the recording industry by distributing their work at no charge was convicted wrongfully. Her conviction was not wrongful under the law. Rather, the law itself is wrongful, which makes her conviction wrongful. We must change our copyright laws.

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©2007 Walt Thiessen, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Friday, October 5, 2007
Last modified: Friday, October 5, 2007

The views expressed in this article are those of Walt Thiessen only and do not represent the views of Nolan Chart, LLC or its affiliates. Walt Thiessen is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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