Since many have said that my view of copyright and patent law is childish and held merely because I grew up with Napster and do not write for a living, I thought I’d investigate some more respectable views on the subject. And who better than those of our thoughtful third President, Thomas Jefferson?

Judging from his letter to Isaac McPherson, Jefferson’s thoughts are thus:

No one seriously disputes that property is a good idea, but it’s bizarre to suggest that ideas should be property. Nature clearly wants ideas to be free! While you can keep an idea to yourself, as soon as you share it anyone can have it. And once they do, it’s difficult for them to get rid of it, even if they wanted to. Like air, ideas are incapable of being locked up and hoarded.

And no matter how many people share it, the idea is not diminished. When I hear your idea, I gain knowledge without diminishing anything of yours. In the same way, if you use your candle to light mine, I get light without darkening you. Like fire, ideas can encompass the globe without lessening their density.

Thus, inventions cannot be property. Sure, we can give inventors an exclusive right to profit, perhaps to encourage them to invent new useful things, but this is our choice. If we decide not to, nobody can object.

Accordingly, England was the only country with such a law until the United States copied her. In other countries, monopolies may be granted occasionally by special act, but there is no general system. And this doesn’t seem to have hurt them any — those countries seem just as inventative as ours.

(I am not directly quoting Jefferson here, I am translating what he said to modern English and omitting a bit, but I have not put any words in his mouth — Jeferson said all these things.)

The first thing to note is that Jefferson may have been the first to say, in essence, “information wants to be free!” (Jefferson attributed this will to nature, not information, but the sentiment was the same.) Thus, all those people who dismiss this claim as absurd have some explaining to do.

The second is that while Jefferson repeatedly says “idea”, his logic applies equally to, say, a catchy tune or phrase and thus pretty much everything we commonly call “intellectual property law” (mostly copyright, trademarks, and patents).

The third is that, surprisingly (especially to me!), Jefferson is just as crazy as I am:

If Jefferson wasn’t happy with the comparatively modest laws of 1813, can anyone seriously suggest that he wouldn’t be furious with the expansionist laws of today? Forget the Free Software Foundation and the Creative Commons, Jefferson would be out there advocating armed resistance and impeaching the Justices that voted against Eldred! (OK, maybe not, but he’d certainly do more than write copyright licenses.)

It’s true that in Jefferson’s day there were no movies or networks, but there were certainly books and inventions. People made their livelihoods as writers or inventors. It’s difficult to argue that Jefferson would change his mind now on economic grounds — if anything, I suspect that upon seeing the ease of sharing ideas over the Internet, he would argue for less restrictive laws — not more.

Jefferson thought these laws were contrary to human nature when they only affected people with large workshops or commercial printing presses — imagine how angry he would be when he saw that these laws restricted practically everyone, even doing perfectly unobjectionable things (like teaching your AIBO to dance or making a documentary).

Now perhaps folks will find Jefferson as easy an argument for ad hominem attack as they found me. And just because Jefferson said it doesn’t make it true — obviously his views were even the subject of some discussion at the time. But when the suggestions of our third president are called the “a ball of self-justification”, “bullshit”, “the far left”, “selfishness”, “shallow”, that of a “moron”, “disgusting”, a “misunderstanding” of the law (!), and “immoral” (source), you sort of have to stop and wonder: what in the world is going on?

posted January 12, 2004 01:13 AM (Politics) (31 comments) #


Unspeakable Things
Apple’s Secret Strategy: TV for Everyone
Counterpoint: Downloading Isn’t Stealing
Cat in the Hat: Harmful to Minors?
Shorter Paul O’Neill
Jefferson: Nature Wants Information to Be Free
C-SPAN Crossfire
Shorter George Lakoff: The Framing of Politics
Bush Fear
The Clinton-Gore Plan to Stop Al-Qaeda: Would 9-11 have happened?
Suspected Terrorist


Aaron, since when ideas, songs, and literatures become synonyms?

posted by Don Park at January 12, 2004 08:05 AM #

Jefferson was incorrect (as quoted) about England being the first country to have an intellectual property system. From the ISI (, it appears that people have been patenting things since the 1200’s. Similarly, copyright laws first came about with the advent of the printing press in the 1500’s (though they were granted to publishers instead of authors). So I think the idea that IP protection was a new idea around the time of Jefferson is a bit misleading (and I may be reading too much into Jefferson above) and ignoring the actual historical contexts.

Perhaps I’m also being dense, but I also don’t follow the bit of argument that all things that apply to ideas (as perceived by Jefferson) automatically applies to all information. Would Jefferson considered a thing like a musical score an idea? How about a painting? Reading the quote above, I don’t get the impression one way or another. Perhaps you could quote some more to clarify this.

So to finally dissect your conclusions about what Jefferson thought:

“By their very nature, ideas cannot be property.”

This makes sense if you think that all IP is the same. Jefferson in the quote above said inventions. Did he think the same about all art, writing, and music? More information is needed to confirm this before I’d say that Jefferson thought it was true.

“The government has no duty to make laws about them.”

Conversely, the gov’t has no duty to refrain from making laws protecting ideas.

“The laws we do make aren’t all that successful.”

If you’re a downloader on Kazaa, then the laws don’t favor you. If you’re a producer of copyrighted material, then they probably are. Now this is not to suggest that we have a perfect or even good IP regime, but to say that they are not all that successful is to ignore the producers while focusing on the consumers. If you wanted to be fair, I would like to see a counterpoint to this statement written by someone who makes a living creating IP. I imagine that they would make a very compelling case about the success of the IP laws that we have.

posted by Chris Karr at January 12, 2004 08:11 AM #

I really like your metaphor of information as some sort of caged animal that yearns to roam freely on the internet.

I can hear your credit card (and pin) number calling out to me. The card numbers of your friends and family are also struggling to be free. Please post them here so that they can roam freely. Oh, and don’t forget that extra security code on the back of the credit card. It wants to be free too.

Remember, Jefferson never said that credit card numbers should be exempt from this free information idea.

posted by Tom Layton at January 12, 2004 08:22 AM #

Leaving aside the fact that Jefferson was a hypocrite (despite condeming the ownership of slaves in the Declaration of Independence he owned approaching 200, of which he freed about 3) an idea clearly means a concept. A song is not a concept, or an idea, its a song.

posted by Harry at January 12, 2004 09:27 AM #

“No one seriously disputes that property is a good idea, but it’s bizarre to suggest that [songs] should be property. Nature clearly wants [songs] to be free! While you can keep an [song] to yourself, as soon as you share it anyone can have it. And once they do, it’s difficult for them to get rid of it, even if they wanted to. Like air, [songs] are incapable of being locked up and hoarded.”

“And no matter how many people share it, the [song] is not diminished. When I hear your [song], I gain knowledge without diminishing anything of yours. In the same way, if you use your candle to light mine, I get light without darkening you. Like fire, ideas can encompass the globe without lessening their density.”

Substitute in any other idea dirvative you want in there. Ideas are the root of all IP.

Why ask Aaron to prove that ideas are equal to other IP artifacts, when clearly that is his (and my) assertion? Why do you believe they are different?

posted by Myers at January 12, 2004 10:45 AM #

Are the “Ideas” you and Jefferson referring to inspirations that come in a flash without a great deal of effort or are they the result of a great deal of time and effort? If the latter then surely the author of those “ideas,” whether it is music or a new computer program or whatever is entitled to payment for the time spent, just as the labourer digging a hole in the road is entitled to payment for his time. Equally the company employing that person or those persons is entitled to payment to cover their wages. That surely is the principle of capitalism, which has been in use well before Jefferson was born.

posted by Geoff at January 12, 2004 10:46 AM #

Anyway, as Jefferson says, paying people for their “ideas” (very loose interpretation of the word) could be a good idea “to encourage them to invent new useful things”. Basically, if you don’t reward people for, say, writing a popular song, then they won’t write any more, why should they? Its like suggesting a plumber shouldn’t be paid for his work, absolutely ludicrous.

posted by Harry at January 12, 2004 12:05 PM #

Are we talking ideas here, or their execution? It strikes me as a vast oversimplification to reduce music and art down to just “ideas.” Sure, the argument holds water that way (if I write a song about drinking, do I now hold exclusive rights to that concept? No.), but a finished song is not merely an idea: it’s are fully-realized product, the tangible end result of the execution of that idea. Does this not merit some sort of protection in an age where products as well as ideas can be digitized and distributed?

IP law may be broken, but it’s my opinion that this is true because we’ve allowed it to extend all the way down to the root, the “idea” level. So I agree with Aaron in a sense. But to imply that since a thing begins with an idea, therefore there should be no price on the end result, simply doesn’t ring true to my ears.

That’s a distinction that players on both sides of this argument fail to make. Downloading a copy of “Speakerboxxx” off of Kazaa — does that really qualify as “sharing an idea” as Aaron’s described it, outside of perpetuating awareness of Outkast?

posted by scottandrew at January 12, 2004 12:06 PM #

I’ve been reading a number of copyright / IP-related weblogs and discussions (What a hornet’s nest to jump into!), and had a thought.

I’d like to pose a simple question: Should someone spend time and labor doing something that I benefit from, should I not be compelled to attempt to do something in return to benefit that person? This question seems to be a root of a lot of the flames being thrown back and forth (here and elsewhere — I enjoyed the discussion at

So to rephrase the question: “Is it immoral to benefit from the time and labor of the other without attempting to provide some benefit to the other?” I’d answer this question in the affirmative. Others will disagree, and I don’t see how the two sides can be reconciled on this question, or any of the derivative questions such as the ones posed by this entry.


posted by Chris Karr at January 12, 2004 12:43 PM #

And a related question: “Does a person who spends time and labor to do something to benefit another have the right to demand benefit himself, given that the other has a choice whether to accept the benefit and cost?” Personally, I answer in the affirmative in this case also as I suspect most other people do.

posted by Chris Karr at January 12, 2004 12:49 PM #

How does “idea” become “music” or anything we consider intelelctual proeprty?

Just curious. You make these logical leaps and don’t provide the steps to get to those points.

An idea for a song is not the same thing as a song. Thinking about writing out sheet music is not the same as sheet music itself.

And also, when quoting someone quote them. Don’t paraphrase them, don’t re-write what they said. Quote them, then explain and modernize the quote.

posted by James at January 12, 2004 12:57 PM #

The only sentence that matters and the one that all of us except aaron agree with is:

“Sure, we can give inventors an exclusive right to profit”

When Jefferson says ideas are inherently not property he’s saying that once they get out, you cannot get them back. Sort of like the AP list of athlete phone numbers that was recently accidentally sent out.

posted by pb at January 12, 2004 01:02 PM #

Chris Karr, I posted a bit about those very questions in an earlier thread on Aaron’s site, starting with the case of some people who claimed an exclusive property right in their occupations.

Aaron has satirized copyright by talking about what would happen if he claimed property rights in his name (although in fact some legal systems recognize a “publicity right” related to that, but will not go as far as letting Aaron charge everyone who mentions him).

Your question was phrased as “Does a person who spends time and labor to do something to benefit another have the right to demand benefit himself, given that the other has a choice whether to accept the benefit and cost?”

I think this is a pretty useful question. The proviso that “the other has a choice whether to accept the benefit and cost” as well as “to do something to benefit another” may lead into some difficulty, because they try to frame the interaction as somehow contractual (as the Romans put it, do ut des, I give so that you will give).

A broader question is “Does a person who spends time and labor to do something have the right to demand benefit himself?” — this question includes a wider range of controversies. I think that’s useful because I think it’s interesting to see copyright in the context of other controversies about whether people should be “entitled to benefit from their effort”. I want to try to start collecting some examples of where the application of this principle might create some difficulty.

posted by Seth Schoen at January 12, 2004 02:26 PM #

Just some musings, so please forgive any wandering thoughts…

Seth: You are correct that I’ve made my question as one of contracts instead of morality. I did this intentionally as I’ve never found any clean-cut discussions of morality, and talking about contractual obligations is much cleaner and fruitful than those of morality. (Should one even subscribe to a notion that there is a thing called morality.)

Your comments made me ask myself if there is some sort of default contract involved between IP producers and consumers. I think that the clear answer is yes, and it’s laid down by copyright law. So, I would hold that if you decide to consume one form of IP or other, you’re obligated to hold to the default contract as specified by US copyright law unless the consumer and producer mutually agree to another set of terms (from the GPL on one side to NDA’s and the like on others). I think that if you look at things this way, then things clear up a bit.

Now the question is whether this idea of a contract makes sense? One weakness is that you don’t sign a license to listen to music. On the other hand, music producers do not release music with the expectation that they will get any less than the full protection of copyright law. So it seems like there may be some sort of understanding between the two. I guess I view it a lot like the idea of a social contract that is bandied about so much in political theory. “I will consume your media, and thus I agree to be bound by constraints put upon me by copyright law.” or “I don’t agree to restrictions specified by copyright, and thus I will not consume your media.”

Thoughts on this?

posted by Chris Karr at January 12, 2004 02:51 PM #

pb: “all of us except aaron”? It’s great to meet you - you must be a highly evolved being to know what “all of us” believes - or are you only referring to you and your brother wizards? And how is it that you infer that Aaron disagrees? The key is “profit” - inasmuch as non-commercial file sharing is explicitly unprofitable, I see no contradiction in insisting that it is only the profitable activity that should be the creator’s exclusive right, not all possible activity relating to the “idea”. (insert favorite synonym - “information”, “IP” etc - here)

But of course, most of the profitable activity involving “ideas” in todays world is carried on by individuals and groups other than the creator - by construing these ideas as “property” they can and do become alienated from the creator and become the property of someone (or something) else. Given the massively unequal bargaining position between the media cartels and the independent creators, it’s no wonder that the creators and their creations are soon parted, under some very onerous terms indeed. For instance, are you aware that the standard record company contract calls for all expences to be “recouped” from the share of the artist? And that even after these expences are paid, the company still owns all rights to the work? This has been likened to “paying off the mortgage on your house, but the bank still owns it.”

I think the point is really to discover some middle ground between the extremist positions - one of these is the idea that some sort of compulsory licensing will be necessary to break the impasse. Consider radio for instance - in the early days many record companies considered radio play to be “piracy” - “why will folks buy our product if they can hear it on the radio for free?” Eventually, an agreement was reached which required that all radio stations pay the copyright owners for the use of their material, based on the number of listeners, along with some other rules which the stations must adhere to. (not announcing playlists ahead of time, etc.) Nowadays the labels pay big bucks to get their music played, because they know that airplay doesn’t prevent sales, it stimulates it. Now consider the Sony Betamax case - Jack Valenti and the MPAA argued passionately and shall we say expensively for years that home video technology would kill the movie business - “it’s like the Boston Strangler, with its hands around our necks, squeezing…. gasp….” Fast forward a few years - video rentals is one of the most important sources of revenues for the same MPAA members who tried to kill the golden goose in the cradle.

Is there a pattern here? In both cases some potential or imaginary harm nearly derailed a hugely profitable industry before it began - in the same way, many believe that lurking just behind the highly emotional controversy of “file sharing” lies an embryonic industry waiting to be born. Aaron owes no allegience to the status quo, so he has nothing to lose by calling it like he sees it. The question is not, how do we stop 60 (+) million people from doing what they insist on doing, but, how do we create a revenue stream from this process? Compulsory licencing is one option, perhaps there are others….

posted by Jim Carrico at January 12, 2004 03:08 PM #

Chris Karr says he thinks it is “immoral to benefit from the time and labor of the other without attempting to provide some benefit to the other”. So when he goes to parks, does he looks up all the organizations that clean up the litter and pays them, as well as the artists who provided the public sculpture, not to mention the landscapers and architects who make the area pretty. Or does he thinks this is too burdensome, so he chooses not “to accept the benefit and cost” and never walks thru parks? Neither seem reasonable to me.

Maybe what Chris meant is that he does this went people demand the benefit, so he’s off safe because park-cleaners do their jobs for other reasons and don’t demand a benefit from him. But what if one of them changes their mind and decides to start demanding to get paid?

Chris will probably say my analogy is silly, but I think this is the heart of the current copyright issue: in an age of easy copying, creative works become public goods like clean parks and lighthouses. (Terry Fisher provides the lighthouse analogy in the introduction to his ACS proposal.) Once they’re built, it’s pretty much impossible to get money from people who use them. It’s also pretty unreasonable to demand that everyone who uses them must pay for them. Maybe boats that use a lighthouse to find land should donate to its upkeep, but the fact is that doing so is rather burdensome and apparently unnecessary (there is no great lighthouse shortage, AFAIK). So I think Chris needs a better principle.

pb says that I don’t agree that “we can give inventors an exclusive right to profit”. That’s wrong, I do think we can give inventors an exclusive right to profit. (Obviously we can, since we have been doing so since Jefferson’s day!) But, like Jefferson, I’m not convinced that doing so is necessarily a good idea.

posted by Aaron Swartz at January 12, 2004 05:47 PM #

I say that you’re silly as I’ve explicitly taken this out of a moral realm and looked at it from the realm of contracts.

And for what it’s worth, while you’re sitting at home living on your parent’s dime, I’ve been paying taxes for those things like parks, sculptures on public lands, and so forth (I’m surprised that you didn’t throw in roads). Do you think that the guy who mows the lawn of the park works for free? And what of the salaries of the park mowers in the parks in the parts of town I’ll never see?

And I do think your analogy is silly. Parks are paid for indirectly by my taxes. Do any of my taxes pay the songwriters whose songs are on Kazaa? No. So, on what grounds can I claim that I have a right to those labors?

Nice try at erecting yet another strawman. I have noticed that you do it quite often. You can quit putting words into my posts that are not there and debate the points as I have made them, not as you choose to reinterpret and restate them.

posted by Chris Karr at January 12, 2004 06:01 PM #

Also, nothing in my posts said that altruism is not allowed in this sense. The people sponsoring the cleaning of the park choose not to demand payment for those services and do it for whatever reason that they do. I never said anything about not using something that has been given to you, but I was questioning whether it was right to do so with something that has expressly not been given to you without payment. Park cleaning by volunteer organizations is a gift. The latest Metallica on Kazaa is not, no matter how you hard to convince yourself otherwise.

posted by Chris Karr at January 12, 2004 06:05 PM #

Upon reflection, I think what upsets me the most is not the blatent downloading of music, movies, and literatures, but the feeling of alienation. This is probably how I would feel when my son reaches adulthood and have our first big arguments as adults.

I can take different opinions, but I am find it difficult to accept alien thoughts. It’s not that they are innovative, they are not, but they violate and taint what I thought was shared by all. This saddens me more than upsets me.

posted by Don Park at January 12, 2004 06:30 PM #

Once they’re built, it’s pretty much impossible to get money from people who use them. It’s also pretty unreasonable to demand that everyone who uses them must pay for them. Maybe boats that use a lighthouse to find land should donate to its upkeep, but the fact is that doing so is rather burdensome and apparently unnecessary (there is no great lighthouse shortage, AFAIK).

Man, Aaron. Must you always go off with generalizations that are patently false. To wit: parks are often paid for by licenses. In S.C. and elsewhere, people who go to state parks for the day or camp overnight pay for the privilege. It’s a small amount, but payment nonetheless. You must be talking about city parks. except the people who use parks do pay for them through taxes (as with libraries, civic centers, etc.).

also, the boat/lighthouse analogy is really no longer applicable, since most ships use GPS tracking, etc. these days. Also, most shipping related lighting of harbors is paid for through docking fees, etc.

Further, lighthouses and parks are quantitatively and qualitatively different than a piece of music or a piece of art or a piece of video. The lighthouse exists for very clear safety reasons. The park exists because the community decided that a green area would contribute to the general welfare of the community. No such motivation necessarily exists behind a song, movie, etc. If an artist wishes to let his/her IP be “free”, then that’s fine. But it is the artist’s decision to make, not yours, or Kazaa’s or the myriad other thieves who steal from the people they claim to support.

posted by bryan at January 12, 2004 07:04 PM #

Jim, the radio and video tape stories are totally irrelevant. The question has nothing to do with whether or not unfettered file sharing would increase or decrease sales of something. It’s whether or not the content creators should get to make that decision. They ought to be able to decide if they would like to go that route or not. Whether or not the label rapes the artist or not is also of no relevance whatsoever. The artist knowingly enters into an agreement with the label. I would actually argure that the lable provides most of the value but that’s a totally different discussion.

You lost me on the profitability thing. The compulsory tax is absolutely the wrong thing to do. If the labels want to offer that collectively or individually, let ‘em. But please don’t bring the government into this.

posted by pb at January 12, 2004 07:59 PM #

Chris, I suspect implicit contracts are about as murky as morality. For one thing, the scope of copyright law has changed over time in response to political pressures. We can say that copyright law is what it is and that it’s a certain kind of “deal”, yet many people on both sides of the bargain see it as “unfair” and resent having it imposed on them. They would still consider it unilateral and not a choice. For example, an author who believes in a natural rights theory might think that copyright expiration or fair use are unfair, yet be unable to use the law to prevent either. The author’s only “choice” in order to avoid the feeling of being taken advantange of might be to refrain from engaging in any authorship.

There are also lots of people who feel that their investments of time or effort entitle them to some kind of property right, even if it isn’t recognized by the law at some point in history. So they believe that they should be able to stop people from “taking advantage” by deriving some sort of disapproved-of benefit. You could say that these sentiments are too murky to be analyzed, and we should just conclude that some people are weird, but I might be disappointed by that. Some people’s sense of entitlement is supported by the law and other people’s isn’t? Is there a better story than that about how this came to be?

I mean, one problem with a social contract theory is describing exactly what the terms are. Another problem is describing exactly how the terms came to be that way.

I want to emphasize, as I did in the other thread, that there are property claims that get made other than for copyright. Some of them might seem silly to us now, but they don’t seem silly to the people making them. One example is the schoolmasters’ argument that they have a right to the schoolmastership and therefore that their exclusive right is violated when someone else comes along and starts doing a similar job. We might call that “ordinary business competition”, but might find it a challenge to describe qualitatively why performing a job that someone else has traditionally performed (to the detriment of that person’s income) is a more legitimate kind of competition than making copies of a work that someone else has traditionally been the exclusive publisher of (to the detriment of that person’s income).

Another case is the European droit d’auteur rules, which may seem to Americans to impair what we would call first sale rights. Yet perhaps European artists might be very offended that their droits d’auteur aren’t respected in the U.S. Can you tell whether there’s an implicit social contract that has something to say about this question?

If I felt offended that someone else was getting a benefit from my actions — since there are so many things we do that benefit others for which we aren’t directly compensated — and started to lobby for a new kin of property right, could you predict how you would react? I do, as I said, want to make a catalogue of hypothetical property rights and see how people feel about them. In the old days, the right to trade with a particular country was sometimes treated as a property right; we could probably find some others that have lapsed into obscurity and try to see what it was that had discredited them and what it was that had made them seem appealing in the past.

One other interesting point for me is that question of contract versus morality (lawyers might call it contract versus status). A lot of people’s sense that their rights have been violated arises when they have made some kind of investment in the expectation of some kind of result. You gave an example of that when you pointed out that people make music under the expectation that copyright law will be enforced. If copyright law isn’t enforced, they may feel wronged. One interesting point is that this doesn’t necessarily depend on whether they thought the copyright law was a great idea, or whether they thought it should have been changed. They may first and foremost notice that they relied on it. You can probably find a lot of cases where there is no explicit contract at all, and yet someone formed an expectation (based on law, custom, personal belief, hope, physics, social norms, or many other possible reasons) that an investment would yield a certain result. If another person frustrates that expectation, the person making the investment may well be extremely upset even though there may have been no prior agreement whatsoever.

For instance, suppose a mining company buys mining rights to a tract of land in a developing country from some seller. And suppose that there are indigenous people living there who didn’t know about the transaction and didn’t convey any kind of consent or authority to the seller. The mining company has already paid for the land and may expect to recover its investment by mining, which might harm the people who live there. Those people didn’t do anything wrong to the mining company (in several different senses!). Nonetheless, their actions have ended up in conflict with the company’s expectations, and its sense that its investment should be protected necessarily implies that their way of life should be undermined. They may have a disagreement about property rights even though neither specifically intended to harm the other (and perhaps both can be seen to have made relevant investments that would give each a certain kind of claim to the land). The same kind of conflict can develop in other ways. Professor Lessig has talked about property rights in equipment that uses the radio spectrum, which can be impaired (and vice versa) by property rights in the radio spectrum itself. If you bought a walkie-talkie, someone who later comes along and says you can’t use it (because he’s got a claim to that part of the spectrum) will seem to you to be interfering with the legitimate use of your property. If someone else buys some spectrum from the government and you come along and use it with your walkie-talkie, you will seem to him to be trespassing on his spectrum. And neither of you has any kind of obvious contractual relationship to the other!

posted by Seth Schoen at January 12, 2004 09:31 PM #

Great points, Seth. I guess the way that I look at it — and this may not be supported by history, the law, or morality — is that copyright is like a default license for content. It’s used because people understand the terms and limitations of the license. Producers wanting to grant more rights to users can do so via the use of things like Creative Commons licenses. People wanting to limit the use can do so through things like the traditional licenses and user agreements. I guess the thing that is key to me in all of this is not that the producers and consumers are required to like the terms of the licensing, but they both understand the agreement and are able to make informed decisions whether to engage in the transaction or not. Of course, this depends upon whether both sides fully understand the “contract” (and your mining example is a great example of problems that can happen).

Personally, I’m not opposed to producers licensing all content such as text or media. As long as the consumers know what they are getting into, great. If someone wants to see the latest Bond film and is willing to limit what they could do under normal copyright, that’s fine by me. If a producer wants to give away music or code, that’s also okay. I guess I’m just a market idealist as I think that if producers and consumers are informed about the licenses and the costs that they entail, the optimal balance between producers and consumers of IP can be reached using the usual market mechanisms. If producers want to put onerous terms on one piece of IP or another, let them and let the consumers vote with their dollars by not purchasing a license to the content. If a producer wants to get his stuff out as widely as possible, let him give it away. I guess the key thing for me here is that the transaction involves the mutual consent of both producers and consumers.

And before anyone goes after me about expirations, I don’t think that this view exempts copyright expiration. I’m all for the public domain, and would support the “contracts” listed above losing effect after X amount of years. Of course, I would also like to see market forces encourage producers to liberate the content earlier if consumers are willing to pay for it.

Just my $0.02. Have I beat this dead horse enough yet?

posted by Chris Karr at January 12, 2004 10:25 PM #

Can you hear something, Aaron? Is that a trembling distant voice unclear calling out? Can it be? I think it is. Indeed: WikiDB is calling you!

Surely when you’ve been honed on the likes of Dan Connolly and Robert Swartz, you don’t need to further practice this kind of rhetoricization? As amusing as the Park thread was, I think it’d’ve been a less futile use of time to cosy yourself in front of a fireplace with an Ayn Rand tome.

The shorter posts on Park’s site—from Mark Baker, Mark Nottingham—were the more interesting to me. Mnot’s especially. I understand how it’s difficult when you receive a wealth (or should that be a poorth?) of ad hominems—most of which weren’t even justified [duck]—and that responding clearly and calmly to your opponents without resorting to the same tactics is a nice moral high ground. But all is vanity.

Sure I’ve been engaged in megathreads with Patrick Stickler on the URI lists, and this very message is ironic; but I think there’s a clear limit: when you start to take comments such as being on the “far left” as ad hominems, something’s wrong! Wasn’t Gandhi far left?

I’m not sure why you chose to “translate” Jefferson’s letter to McPherson. It’s not as if he’s the Poet in Timon of Athens: Jefferson is an excellent writer, and one whom we can only do an injustice by trying to clarify. If you want intelligent conversation on a subject, you would do well not to admit those who can’t even follow the communicational prose of the third president. But again, your intention is not clear to me; the engendered side effect is that it appears you’ve tried to embellish the original.

The paragraph above was supposed to segue into a warning against debate and logic, but it didn’t. Park already tried to make this point in the hillarithread; perhaps I can explain it better by pointing to the W3C member-privacy issue as an example. Being a slave to logic and process isn’t so good when you start to believe in it too much. It’s the quickest way to an impaired judgement. But cf. our conversation about the aim of debate.

When you’re getting resistance on a subject—whether you’re discussing heliocentrism, women’s/blacks’/invalids’ rights to vote, capital punishment, or whatever—it’s either because you’re wrong, taboo, people are stupid, there are powerful people who have something to lose by the comments, or some combination thereof. That’s self-evident. What’s less evident is that in order to overcome those things, you really have to pick your battles.

Ben would probably be willing to play a game of Go with you. Like all strategy games, it’s infuriating if you take it too seriously. Enjoy, Aaron.

posted by Sean B. Palmer at January 13, 2004 01:24 AM #

pb: you misquote me - the phrase I used (twice) was “compulsory license” - this is what allows radio stations to play whatever they like without negotiating individual licences for each copyrighted work as long as they pay the statutory rate and comply with the other stipulations of the blanket license. In other words, copyright owners cannot withhold permission for anyone to use their work within the limitations of the licence. (ie. it is compulsory for copyright owners, rather than end-users.) If radio stations had to get separate permissions, and negotiate separate rates, for every track they play, radio as we know it simply would not exist. Recall as well that copyright itself is precisely the result of “bringing the government in” - it is a “right” created by the state, for the public good, so arguing that we need to keep “government” out of the copyright debate is like saying we need to keep the sun out of a discussion of solar energy.

The point of creating such a compulsory license would be to stimulate a functioning market in an area in which entrenched interests have persistently shown their willingness to stifle the development of such a market. For example, the whole file-sharing “movement” from Napster onwards can only be properly understood in the context of the enormous void created by the refusal of the RIAA to license music to internet startups for any price. It took a company with the deep pockets of Apple (and one with ulterior motives ie. selling iPods) to produce a situation - arguably, 5 years too late - in which it is possible to at long last actually buy digital music files.

posted by Jim Carrico at January 13, 2004 01:39 AM #

Seth Schoen: The most obvious property right under debate now, is databases, and revivifying the associated sweat-of-the-brow theory of legal rights. We are, right now, witnessing the attempts to create a new property-right in raw data itself, a “data-right”. So it’s hardly a hypothetical issue.

And look at the “hot news” property right discussion in

posted by Seth Finkelstein at January 13, 2004 10:20 AM #

Well, Aaron, you haven’t stated it right.

Jefferson said, quite simply:

Information is free.

And as a matter of fact, it’s a well-established principle of copyright jurisprudence: the fact/expression or idea/expression dichotomy. Look at Feist Publications to see how the principle is applied:

In fact, please start stating it this way, because this principle is essential to how natural rights settle with exclusive rights. Coyright does not cover information, and it never has. It’s just that the stakeholders have been a long time coming to face up to where this puts us in the digital age.

Information is free. It always has been.

posted by Seth Johnson at January 13, 2004 11:39 AM #

Exclusive rights are not determined by authors or inventors. They are not determined by hardware or software. They are not determined by private contracts or licenses.

They are determined by Congress, for a purpose other than the interests of those who are granted these statutory rights, and within the constraints of other, fundamental rights in the Constitution.

posted by Seth Johnson at January 13, 2004 12:44 PM #

Jim, if your compulsory license is not government mandated, then OK. Obviously, I was referring to government involvement in the financial transfers, no in copyright which of course involves no financial transfers.

posted by pb at January 13, 2004 10:31 PM #

ok let me try this one more time.

Of course a compulsory licence must be “government mandated” - how the hell else would it be compulsory? The key sticking point here seems to be the notion that creators have an innate right to control the terms on which their work is to be made available, that is, each and every end user needs to negotiate a unique permission to have the use of the work - by buying it or some other mutual contractual agreement. This sounds good (maybe) - but the point I was trying to make is that that’s not what copyright is about, and that’s not how radio works, or video rentals for that matter. This has been around for, oh, a half-century or more, so it shouldn’t be news to anyone with an interest in this subject. You as a creator have no choice if someone wants to play your song on the radio. Music publishers tried to prevent this scenario, they agreed with you that they should have the right to refuse the use of their work to any and all as they saw fit. The point is, “the public”, via it’s representative “the government” disagreed, and passed laws which stated that, no, you don’t have the right to refuse to allow people to play your song on the radio - as long as they follow the rules laid down about allowable use - these rules are the same for everybody, no exceptions. That’s what a compulsory license is. It’s not a “tax” because it mandates that the radio station (the beneficiary) pay the copyright holder, not the government - it is a licence that the copyright holder must accept, whether or not they feel like it. Extropolate to the internet, and broaden the scope to include software or any type of “intellectual property” and you can see where this is going.

posted by Jim Carrico at January 15, 2004 12:02 PM #

Well, I’ll admit that I do not know exactly how this works bu my understanding is that the RIAA (a non governmental association) represents the artists and reached an agreement with radio stations regarding the playing of tracks owned by its constituents and the remuneration. Artists would technically have the right to forbid their music from playing on the radio but I suspect standard label agreements include radio play as it is primarily a benefit. THe only government involvement is in the enforcement of contracts and the notion of copyright, without which the song owners would have no grounds to request payments.

posted by pb at January 15, 2004 11:25 PM #

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