From The Founder's Desk
columnist: Walt Thiessen

Topic: Copyright Law
Rethinking Copyrights and Patents

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Columnist John Kusumi has published an article decrying Viacom's court-authorized seizure of YouTube user logs. While I agree with what Kusumi is saying about this issue, I think it's important to realize that the problem is much broader than what he has presented.

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by Walt Thiessen
(Libertarian)
Monday, July 7, 2008

John Kusumi has written and published an interesting article this past weekend discussing Viacom's assault on YouTube users.. As a public website owner and operator (of the Nolan Chart website), I am very sympathetic to YouTube on this issue. Despite the fact that individual users violated the copyrights, it's YouTube itself who is being wrongly investigated here, as well as all the people who unwittingly downloaded the videos. Since YouTube is the repository, and since they're owned by Google, they're a major legal target for the Viacom attorneys, because suing attorneys always go for the money. It's not the individual violators who have the money. YouTube is the one with the money. Kusumi's main point was that downloaders of the videos are being targeted, and I agree with him, although I also think that the injustice of targeting YouTube should also be pointed out.

However, I think we need to go further than what Kusumi has discussed and take notice that copyright and patent laws themselves need to be rewritten entirely. The original intent behind copyrights and patents is a good one: reward creativity for the benefits their creators offer to mankind. However, the way copyrights and patents are currently applied works contrary to this basic intent, because the courts (and the Congress) foolishly consider copyrights and patents to be property. They are not, of course.

Property is always about finite, limited resources. Land is property because there is only so much of it. Individual items are property, even if they're something that come in large numbers such as video games or eggs or plastic combs, because a finite number are available, thus defining the "supply" side of supply-and-demand. However, ideas are not scarce or limited. You and I can have the same idea, and neither of us is poorer for it. In fact, trillions of people can have the same idea at the same time without stepping on each others' toes in the process, and all are thereby enriched by it. This is why it is inappropriate to consider ideas to be property.

But there is also a practical side to why ideas should not be considered property. Another defining characteristic of property is that it can be withheld from the marketplace. This is contrary to the intent and purpose of copyrights and patents. Many copyright and patent purchasers (such as oil companies, auto manufacturers, movie studios, software developers, etc.) have a long history of taking ideas off the market by purchasing ideas and then filing them away, while suing anyone who tries to use them. This is a great way for the copyrights' newest owners to protect their other products' prices from the effects of competition and technological development, but it's bad for all the rest of us (not to mention the original creator of the idea, who immediately stops reaping any rewards for his/her creativity).

Copyright and patent laws should be rewritten so that anyone can use new creations regardless of whether the copyright holder gives permission to do so, provided that the user also pays a royalty for its usage. They should also be rewritten to prevent the original creator of the idea from having to give up his rights to the idea in order to get paid for it.

Imagine the effect such a change would have, for instance, in the world of computing. Right now, mega-companies like Microsoft have legalized corners on the market because of their copyrights. No one is permitted to replicate or improve on Microsoft operating systems without Microsoft's permission....and Microsoft never gives their permission. This means that improvements on the product cannot be made by anyone other than Microsoft.

This is particularly important given the huge numbers of security flaws found within Microsoft software over the years. Microsoft has the tendency to concentrate more of their time and energy on adding features than on making the software secure. Because of copyright laws, no one outside of Microsoft is permitted to patch those security holes. This often means that security holes remain open to attack for long periods of time, often to the frustration and consternation of IT professionals trying to keep their respective enterprises secure.

Of course, copy-protected software like Microsoft's isn't the only kind that has security issues. Open source software often suffers from the same problem. The difference is that, particularly where it's popular, third party developers will usually jump in more quickly to help figure out ways to patch the security holes in open-source software faster than, say, Microsoft will do with their own software.

Software security is only one, tiny example of the problems creating by legally treating copyrights and patents as property. The list of similar issues is almost endless.

Some will wonder how the copyright owner will be conpensated if anyone can use his/her ideas. How can a poor, simply idea creator protect themselves in such a Wild West? In the age of massive database-driven websites, this is no longer the problem it once was. Google, for instance, already has a patents section to their search engine. It would be easy for them to also provide a mechanism for copyright and patent owners to open an account and register their stuff online, so that anyone who wants to use them could know how and where to make their royalty payments. If some software developers fear that Google is wrong for the job, they could create yet another open source project to accomplish the same goal. Let the marketplace decide which solution is better.

Personally, I'd like to see a 10% across-the-board royalty standard applied by Congress, so that copyright and patents holders can't simply hold the population for ransom. Such a standard would be needed in this new scenario for patents and copyrights.

Will some people take advantage by not making royalty payments? Sure. That already happens. It's called copyright or patent infringement, and it's a rampant problem under the current system. That's why Viacom is suing. Nothing about what I've proposed would change the necessity of that kind of action, nor should it. However, there's no reason to think that improving enforcement should be the reason for whether or not to implement the changes I'm suggesting. The motivation should be to make the products of human creativity more broadly available, while continuing to reward that creativity. Besides, if there were a central source showing who was making their royalty payments, it would actually make it easier for copyright and patent holders to enforce them. Copyright and patent attorneys would also love it, because such public repositories would also make their jobs easier. I could even see the day when an open-source, public organization were created, because of this new approach, that would help small copyright and patent owners seek damages for violations, something that is not available under current law.

By the way, creators are often forced (because of the current "property" interpretation of copyrights and patents) to sell their ideas away entirely, often for a pittance, just to make any money on them. But with the new approach I'm proposing, anyone could use their ideas in exchange for royalty payments. This would make it much more likely that the creators themselves will reap much greater rewards. That's what happens whenever competition enters the picture. Imagine an Ebay for ideas, and you'll get the picture.

Corporate apologists will complain that if companies like Microsoft can't legally corner a market to develop a new idea, or if Warner Brothers can't legally corner the market on the latest Harry Potter film, then they'll stop pouring millions of dollars into their development. That's rubbish. So long as the playing field is relatively level, they will gladly spend their millions. And let's face it, when everyone can build on ideas (not just a limited few), the playing field will actually be much more level than it is now. Meanwhile, we'll all benefit even more from such creations.

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2008 Walt Thiessen, all rights reserved.
Published: Monday, July 7, 2008
Last modified: Monday, July 7, 2008

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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