Fixing Copyright
Laurence Garfield, Nathan Hampton, Jeromy Stark

The Fallacy of Intellectual Property

By Laurence Garfield
Originally published December 2002

In the fundamental order of the universe, there is matter and there is energy. The sum total of matter and energy in the universe is finite. It cannot be created nor destroyed, and it cannot even be converted from one to the other outside of a nuclear reaction.

Then there is "information", which is some pattern of matter and/or energy to which a sentient being (humans) assigns a meaning. Information can be duplicated without destroying the original, simply by copying the pattern itself into a new set of matter or energy. Additional information has thus been "created", and the sum total of the information in the universe has increased with no decrease in any other quantity of information, matter, or energy. Therefore, information is not the same thing, fundamentally, as matter or energy.

Now, information must be stored in some medium, which is composed of matter or energy, but it is distinct from the medium itself. A CD is a physical piece of hardware. It is matter. It is finite. The program stored on the CD is software. It is information. It is technically infinite. The human brain itself is a medium, perhaps the most complex medium ever created, designed for storing potentially infinite quantities of information. The information itself is distinct from the medium.

Because matter is a finite resource, it is governed by what economists call the Law of Scarcity. In layman's terms, there is not enough for everyone, so people are willing to give up one scarce item in exchange for another scarce item at various times. To address matter as a finite resource, most human societies have developed a system of allotting finite resources amongst the populace called "property". (I cannot think of any non-hunter/gatherer societies that have not developed a property concept of some sort.) That is, all matter is assigned an owner and that owner and no other is allowed to make use of it or control its use by others as he sees fit. The owner may voluntarily surrender ownership of the matter to another person, but the matter is then still owned. Taking matter that is owned by someone else without the permission of the owner is termed "stealing", and one who does so is termed a "thief."

Energy, until the Industrial Revolution began about 2 centuries ago (and is continuing as we speak), consisted almost entirely of labor and manpower, and was thus expended at the will of the man to do whatever work he chose to do. Animals were also given the title of "property", and therefore the person who owned the animal owned their work. (And in societies that endorsed slavery, the slave was filed in the same category as the animal.) Once the energy (labor) had been expended, the work had been done, and some change to matter had been made, and that was that.

Now, an important point about the ownership of matter is that it is not finite. Matter, in societies that make use of the property concept of economic allotment, is always owned by someone. When the owner dies, ownership passes to another person by some means determined by law. Even so-called "public property" is owned by someone, namely the government, which is in theory the arm and will of the people. It may be "communally owned", but it is still owned. And that matter cannot be duplicated. I cannot wave a magic wand and turn one hammer into two and let you have one of them. If I give you my hammer, then for as long as you have it I cannot drive nails with it. And if I own that hammer, then I have, by law, complete and total control over whether or not I permit anyone else to drive nails with it. It is entirely at my whim to decide how or even if it is used, because I have physical control over it. If I surrender ownership of that hammer to you, however, then I also give up any and all control over how and by whom that hammer may be used.

Now, consider for a moment information. As information is not matter, it does not answer to the economic law of scarcity. The medium upon which it is stored does, but the information itself does not. If information is non-scarce, then the laws of property do not apply to it. Let me state that again, just to make certain that it is understood.

Information is by nature non-scarce, therefore laws of scarcity and property do not apply. They simply do not make sense.

But if information is not scarce, then the economic laws that would give it value do not apply, and information has no exchange value. Naturally, information does have a value to society. Specifically, it has two distinct advantages. One is pragmatic, in that the creation of new information tends towards the material benefit of society through the creation of new discoveries of what IS, and through the invention of new material constructs that aid in doing work. The other is aesthetic, in that the creation of new information tends towards the cultural and emotional benefit of society through the creation of new public discourse and the enrichment of the cultural fabric and heritage.

Both of those advantages are maximized when the information is available to as many people as possible. The more people may take advantage of a new, more efficient means of doing work, the more work can be done, and everyone benefits. The more people have access to new cultural works, the more the culture of each individual is enriched, and thereby the entire society benefits. The more people have access to public discourse, and can respond in kind, the richer the discourse becomes and the society as a whole benefits.

When information is available to all, it is said to be in the "public domain". Unlike "public property", which is still owned and can only be used by a limited number of people at once, information that is in the public domain is not under the control of anyone, and the number of people who may make use of it simultaneously is limited only by the population of the world at any given time.

Unfortunately, humans on the whole do not generally think in terms of cultural enrichment and societal benefit. Man is a political animal, but he is also a self-interested animal. While the benefit to the entire society is great, the benefit to the individual is not considerable, certainly not when the individual could spend his time and labor on other tasks that have more immediate, physical benefits. There are some ("true artists") who would create new information nonetheless, either for personal enjoyment or a genuine sense of social benefit, but they are in the minority and even they are limited by laws of economics that require them to earn an income, and by the laws of biology that require them to eat.

In order to encourage the creation of new information, Western European societies developed two distinct systems of encouragement; patents and copyrights. Note that these are both distinct from the property system described earlier, and that they are distinct from each other. That is an extremely important distinction, and one that is oft forgotten.

Patents address the first advantage of information, that of material, pragmatic benefit. The concept behind a patent is to grant, temporarily, an artificial monopoly on the use of some new invention to the inventor. (Discoveries of pre-existing facts about the universe as it already exists are excluded.) That is, the inventor is temporarily given the authority to control who may and may not make use of his invention, in order that he may exact economic rewards from people for its use as an incentive for him to create the invention in the first place. In return, after some period of time, the invention becomes part of the public domain, the public commons. Note that the information may still be used simultaneously by a theoretically infinite number of people, subject to the permission of the patent holder.

Copyright addresses the second advantage of information, that of cultural enrichment and improved public discourse. The concept behind copyright is to grant, temporarily, to the creator ("artist") the right to control the duplication for profit of the work, excepting Fair Use. Note here that copyright does not give the holder as many provisional rights or as tight a control as patents do. The goal again is to provide an economic incentive for the creator to create, as they are given a limited period of time during which to exact an economic return from recipients of the information he has created. After that limited period of time, the work also enters the public domain for the enrichment of the society at large.

However, there are exceptions made to copyright restrictions, known as Fair Use. These are uses of duplication of the content that are deemed to not reduce the creator's economic incentive to create, but that do have a benefit to society as a whole. Examples of Fair Use include personal backup, in case the original is destroyed; excerpting for critical review or academic analysis; referencing for parody and satire; "space shifting", that is, moving the work from one location to another; "time shifting", that is, delaying the work so that you can make use of it at a later time. (The Sony Betamax case in the early 1980s established this one quite firmly, stating that VCRs that allowed people to record a TV broadcast to watch at a more convenient time is legal under Fair Use doctrine); conversion for personal use (recording from a Betamax tape to VHS tape, recording from LP to audio cassette, ripping from CD to mp3 or Ogg Vorbis on a PC, etc.).

None of the above uses appreciably reduce the incentive to the creator to create. There is, in fact, one key element to many of them: personal use. Once I have purchased the use of the information myself, I am free to use it for myself and do what I wish with it, for myself. I can make multiple copies of it legally, provided that those copies are for myself.

When someone makes use of an invention or work that is covered by patent or copyright, respectively, without the authorization of the patent or copyright holder, they are in violation of the law. Note that they have not "stolen" anything. The patent or copyright holder still has his original copy of the work. He still has his provisionally granted limited monopoly on it. He still has his authority to authorize others to make use of it. He has lost nothing. The person who has violated the copyright has committed a crime, and the crime is not in dispute. It is a crime of patent or copyright violation. However, it is a crime with no direct victim. No one has been deprived of any property.

"But they are stealing my income!"

One cannot take from you what you do not have. Coca-Cola produces a carbonated beverage that many people drink. They expect to make a profit by doing so. When Pepsi sells a competing carbonated beverage, many people buy that instead of Coca-Cola's offering, and Coca-Cola's profits go down. That is called competition. Pepsi has stolen nothing from Coca-Cola. Pepsi has not stolen Coca-Cola's customers, as Coca-Cola did not "own" those customers in the first place. They were not entitled to them, or to their money, or to their business.

Patents and copyright are a reduction of competition, a restriction on trade, intended to guarantee to inventors and artists, for a limited time, the opportunity to try and make a profit, and thereby encourage them to produce more information. It does not guarantee that they will make a profit, it guarantees them a period of time in which they will be protected from competition by means of a monopoly (which is otherwise horribly destructive to an economy) so that they may try to make a profit. They do not have that profit guaranteed to them. They do not have it, and therefore it cannot be stolen from them.

That is (in part) why the term "intellectual property" is so ridiculous. It implies property that happens to be of an intellectual type. That is not the case, because as we have shown above information is not the same thing as property, and is, in fact, governed by different laws. A more accurate term would be "proprietary information", that is, information that through smoke and mirrors we pretend is kinda-sorta-like a pseudo-property for a short period of time in order to encourage people to create it. After that period of time, whether they have made a profit or not, their monopoly is lost and the information returns to its natural state: Free and in the public domain.

Why am I making such a big deal out of such a simple grammatical point? Because the definition of information is the heart of the very issue. To call copyright violation "theft" is to call walking across a street against the light "speeding". It is simply inaccurate. It is still illegal, but not for the same reason in any way shape or form.

Nothing in the above says that it is not illegal to take a work that is still under copyright, duplicate it a hundred times, and distribute it (free or for profit) without the permission of the copyright holder. Yes, it is illegal. But it is not theft, and the perpetrators of the crime in question are not thieves.

What does it matter? Because to think of information as being property when it fundamentally isn't leads one to make the wrong arguments, and to be more susceptible to those who really wish that information were property, while they know full well that it is not, because it allows them greater public justification for the extortion of the public and the locking-up of our national and cultural heritage. I speak, of course, of the "copyright cartels". These include primarily the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA). Both organizations are technically illegal under certain interpretations of the Sherman Anti-Trust act as anti-competitive collusion (that is, a cartel), but remain in existence for political reasons.

Both organizations are "business associations". That is, they are an organization that represents the interests of the leaders of the business that are members of the organization. In short, they are the collusion of the largest audio recording studios and movie studios, respectively. There is another similar organization for the book publishing industry.

All of these collectives neatly hide the fact that the vast majority of the commercial information in the country comes from a very small set of very large companies, often through dummy companies and wholly owned subsidiaries. Examples include the AOL/TimeWarner conglomerate, which owns AOL, TIME Magazine, Warner Bros. Studios, Warner Music, and about half of cable (CNN, Comedy Central, Cartoon Network, HBO, MTV, and others); Viacom, which owns the other half of cable plus CBS, Paramount, UPN, and Blockbuster Video; and Disney, which owns ABC, the last few cable channels, and the Mickey Mouse empire.

These organizations are responsible for pushing through legislation that is actively working to restrict and alter the balance of copyright for their own profit, and to circumvent Fair Use. Laws such as the Digital Millennium Copyright Act of 1998 make it illegal to access information that is protected by a digital copy-prevention system, even if the reason for doing so is to exercise Fair Use rights. That means an end to critical review, academic analysis, time-shifting, space-shifting, and conversion. It also means that even when the copyright term on the information expires, the information will not enter the public domain because there will be contractual preventions to people accessing the information in the first place. The information will then simply die and be lost to society, or else serve as a means for the company in question to extort money out of the public domain for permission to access the now public domain works.

Perhaps the best example of this sort of manipulation is DVDs. All DVDs include an encryption system called CSS, which is a rather poor security system that requires a special decryption key in order to view the information contained on the disk. CSS is a form of so-called "Digital Rights Management", which is a nice name for "Digital Rights Removal". Getting the key requires a company to sign a non-disclosure agreement with the MPAA, saying that they will not let anyone else have the key, and then they can make a DVD player according to the MPAA's rules. Those rules include honoring the region code, a simple flag on each DVD disk that specifies which of seven world regions the disk is intended for. All DVD players are also region-coded, and DVD players are required by the MPAA to reject any disks not from their own region. Unlike NTSC/PAL/SECAM, which is different encoding schemes, the DVD region code is a completely artificial division of markets. (Which is itself the textbook definition of a cartel; collusion to divide up a market.)

The reason for the DVD region code is simple; the studios can then charge more for a DVD in the US and Europe, where people can afford $20-$30 per disk, than in India or Africa, where they can afford only $5 per disk, without worrying about people legally buying DVDs in New Delhi, bringing them legally to San Francisco, and selling them legally at a profit. It is an accessory to price fixing. (Mind you, the actual artists do not see any of that extra profit from price fixing.)

While the DVD encryption system has been broken, those who so much as provide web links to places where the decryption code can be found have been charged under US law with what amounts to "accessory to potential copyright violation". Having the decryption code does not make it easier to make direct unauthorized copies of a disk. You could always do that. It makes it possible to write software DVD players for computer platforms (GNU/Linux, BSD, and so on) that the MPAA has chosen for whatever reason to not support. That way, people can watch their legally purchased DVDs, even if they are in Detroit and the DVD is from Japan. (They ignore the region code.) Yet that is illegal, and is only the beginning of what the movie studios and record labels want.

Of course, it's now unlikely that information will ever enter the public domain again. Copyright, which was once a term of 14 years, has been extended over and over in the past few decades to now be 70 years after the death of the author. That extension was made by the Sonny Bono Copyright Term Extension Act of 1996, also known as the "Mickey Mouse Protection Act", as it was passed shortly before the Mickey Mouse character was to pass into the public domain. Despite the clear violation of such extensions of both ex post facto and the "limited time" phrase of the copyright clause in the Constitution, the Supreme Court recently ruled, in effect, "yes, it's abuse of the system, but we're not going to do anything about it." So with carte blanche to perpetually extend copyright ad infinitim, no information produced after 1930 or so is likely to ever fall into the public domain. That is, as shown above, clearly to the detriment of society.

That is, also, only scratching the surface of what the copyright cartels have done or are planning to do. Other plans already underway include requiring all consumer electronics to use encryption systems similar to the DVD CSS system, particularly systems created by the copyright cartels (thus handing legislative power over to private corporations); requiring all digital TV broadcasts to include an optional "no copy" bit that recorders like TiVo would be required to honor (so no more taping a show while you're out and watching it later); preventing the fast forwarding or muting of commercials (the CEO of TimeWarner has gone on record stating that he feels that going to the bathroom during TV commercials and therefore not watching them is "stealing"); not permitting you to install software on your own computer that was not pre-approved by a single company (Microsoft Palladium, or "Trusted Computing" which is all about not trusting the user, and anything involving Microsoft .NET or Passport); and requiring that users allow third party companies to access their system at will to disable features they feel may be a danger to them. (If you have installed Windows XP, Office XP, or any version of Windows Media Player 7 or higher, you have already signed a license agreement that gives Microsoft that right. It's in the End User License Agreement that to which you clicked "OK" when installing it, or accepted tacitly when you bought the computer with it pre-installed.)

What is the main rallying cry and justification used by the copyright cartels for these actions? "We have to protect our intellectual property against pirates!"

Protecting "Intellectual Property" with "Digital Rights Management" and making all electronics based on "Trusted Computing", that is the war cry of the copyright cartels, with words carefully chosen to sound innocuous and protective, when in fact they are subversive, destructive, and extortionary.

That is why I make such a big deal out of such a little term. It is the cornerstone of a massive push to co-opt society's right to its own cultural heritage and essentially extort money from the populace to access what is rightfully theirs in the first place. It is a perversion of the natural order of the universe, made for the financial gain of a select few.

So the next time you get into a discussion of copyright, information, creativity, or similar topics, be careful of what you are saying. Check yourself to make sure you aren't falling into the trap that has been carefully laid for you by the copyright cartels for the past 30 years. Do not violate copyright. But stand up for your right to information, your right to Fair Use, and the purity of the fundamental order of the universe.

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