IP and the 8th Commandment

Status
Not open for further replies.

fredtgreco

Vanilla Westminsterian
Staff member
This is actually a far better argument. Certainly one could protect their product by making the customer sign a contract. However, it generally isn't the practice to sign a contract when purchasing a book or CD, but maybe it would be in a world without copyright.
But when you buy a piece of software, there is a contract. It usually says something along the lines of "purchaser agrees to not make copies for distribution without permission from . . . ."

And almost every published book says "all rights reserved" and something to the effect that you may not make copies without permission.

Under the common law of contract, those are either express or implied contracts and are historically enforceable without a copyright scheme.

In both cases you buy something produced by another subject to the rules of use. So your proper choice is either to try to renegotiate the terms or to refuse to buy it. But once you buy it, you are morally bound to what you agreed to honor regarding the restrictions.
I appreciate the point you have made, Raymond. It does seem that when contracts are involved, there is an 8th commandment violation. I still believe that in a context where there are no contracts, implied or otherwise, it is not stealing to copy someone's work. The operators of printing presses in early 16th century Germany were not guilty of violating the 8th commandment. When I want to obtain a work that has passed into the public domain, it is not my moral responsibility to track down the heirs of the author and negotiate the terms with which I will use their work. From what I understand, some here believe that copying is stealing regardless of the copyright or contractual issues. That is, ideas are inherently property of their creator. My question for them still stands. If this is true, why have IP terms? Why should a patent expire after twenty years?
Because there need to be recognized limits so that people know if they are truly taking something from someone.

The exact same principle occurs in real property. It's called adverse possession. If after a period of time (bright line rule) no one else treats the property you are possessing like their property, you can have assurance from the law that it is not. The same is true of public domain laws.
 

Philip

Puritan Board Graduate
Even if I grant you that the concept of IP is created as early as 1500, were still talking about 9000+ years of civilization without the idea that one can have ownership of ideas.
This is largely because the technology was not such that it was needed. Before Gutenberg, consider someone like Chaucer who is a literary figure: he doesn't get money from his books but from a wealthy patron who supports his writing. He doesn't care about people copying his work because that's more circulation for him, more fame for him, and therefore more fame for his patron, and therefore more support for him.

But then comes the printing press and now you start getting people who don't need patrons: instead they need to sell books. When the production of ideas becomes an industry rather than a matter of upper-class patronage, the ideas and writing themselves become the property. Thus royal patronage begins to take the form of commissions and monopolies rather than simple financial support.

This develops into the full-blown idea of intellectual property with the romantic movement of the 19th century when the personality and character of the artist or writer becomes front and center, but the roots of the idea do, in fact, lie in the Renaissance and are encoded in the common law that we have from that period.
 

SRoper

Puritan Board Graduate
This is actually a far better argument. Certainly one could protect their product by making the customer sign a contract. However, it generally isn't the practice to sign a contract when purchasing a book or CD, but maybe it would be in a world without copyright.
But when you buy a piece of software, there is a contract. It usually says something along the lines of "purchaser agrees to not make copies for distribution without permission from . . . ."

And almost every published book says "all rights reserved" and something to the effect that you may not make copies without permission.

Under the common law of contract, those are either express or implied contracts and are historically enforceable without a copyright scheme.

In both cases you buy something produced by another subject to the rules of use. So your proper choice is either to try to renegotiate the terms or to refuse to buy it. But once you buy it, you are morally bound to what you agreed to honor regarding the restrictions.
I appreciate the point you have made, Raymond. It does seem that when contracts are involved, there is an 8th commandment violation. I still believe that in a context where there are no contracts, implied or otherwise, it is not stealing to copy someone's work. The operators of printing presses in early 16th century Germany were not guilty of violating the 8th commandment. When I want to obtain a work that has passed into the public domain, it is not my moral responsibility to track down the heirs of the author and negotiate the terms with which I will use their work. From what I understand, some here believe that copying is stealing regardless of the copyright or contractual issues. That is, ideas are inherently property of their creator. My question for them still stands. If this is true, why have IP terms? Why should a patent expire after twenty years?
Because there need to be recognized limits so that people know if they are truly taking something from someone.

The exact same principle occurs in real property. It's called adverse possession. If after a period of time (bright line rule) no one else treats the property you are possessing like their property, you can have assurance from the law that it is not. The same is true of public domain laws.
I have to defer to your expertise, but is the concept the same? Isn't it the case with real property the legitimate owner merely needs to assert their right to the property and the clock is reset? Is this the case with patents and copyright (at least copyright before the Mickey Mouse Protection Act era)? If the original authors assert their ownership, does it reset the clock? If so, why would Merck ever give up the right to the exclusive manufacture of one of their drugs?

---------- Post added at 02:02 PM ---------- Previous post was at 01:58 PM ----------

The very concept of IP is a post enlightenment creation.
Not true, actually. Read up on the history of the publication of the Bible and who had the right to publish it in England as well as other European states. The idea only post-dates the printing press and the advent of mass distribution of books, actually. For example, under the Tudors, only certain individuals were allowed (by letters patent) to publish music (most notably the composer Thomas Tallis) or to publish certain books. Royal permissions to publish things like the Book of Common Prayer and the various authorized versions were highly sought-after.
Perhaps IP is more closely aligned with Mercantilism and the idea that the government has the power to grant private monopolies in many different areas.
 

ProRege

Puritan Board Freshman
Because there need to be recognized limits so that people know if they are truly taking something from someone.

The exact same principle occurs in real property. It's called adverse possession. If after a period of time (bright line rule) no one else treats the property you are possessing like their property, you can have assurance from the law that it is not. The same is true of public domain laws.

If public domain laws simply establish a bright line rule such that so that people know if they are taking something from someone, then wouldn't our current IP laws, which put works into the public domain 75 years after the death of the author, be an unlawful (i.e. unbiblical) stripping heirs of their lawful property rights in those cases where they wish to assert them?

It would seem to me that if ideas can be owned, then they should be able to be passed to our heirs in perpetuity without ever passing into the "public domain" as long as ownership is asserted by the heirs. What authority would the state have to terminate ownership? Wouldn't that be theft on the part of the civil magistrate? Certainly if no one asserts ownership, then the laws provide an orderly way for people to assert adverse possession.
 

Philip

Puritan Board Graduate
It would seem to me that if ideas can be owned, then they should be able to be passed to our heirs in perpetuity without ever passing into the "public domain" as long as ownership is asserted by the heirs.
Part of the issue, though, is that most copyrights are not held by individuals but by corporations. In addition, the right only extends within the lifetime of the creator. A work doesn't lapse into the public domain until a set period after the death of the creator(s). Ideas are copyrighted for a particular amount of time for the benefit of the creator---if he hasn't used it to full advantage by the time of his death such that he is leaving an inheritance for his progeny, how is that supposed to be the fault of copyright law?
 

VictorBravo

Administrator
Staff member
Isn't it the case with real property the legitimate owner merely needs to assert their right to the property and the clock is reset? Is this the case with patents and copyright (at least copyright before the Mickey Mouse Protection Act era)? If the original authors assert their ownership, does it reset the clock? If so, why would Merck ever give up the right to the exclusive manufacture of one of their drugs?

If public domain laws simply establish a bright line rule such that so that people know if they are taking something from someone, then wouldn't our current IP laws, which put works into the public domain 75 years after the death of the author, be an unlawful (i.e. unbiblical) stripping heirs of their lawful property rights in those cases where they wish to assert them?
I think the answer to both of these points is that IP laws are justified on both property and contractual principles. That is why the analysis sometimes gets fuzzy.

Here is the contract angle: Imagine a country full of inventors or writers coming up with useful devices and information.
Also imagine no IP law, but a robust recognition of contract law.

Those inventors and writers have several choices:

1. Keep it all secret. Don't let anybody know about what they have done.
2. Find a trusted person who can use their idea or device, enter into a contract with him to use it, and have him promise that he won't let anyone else use it unless he gets the same kind of promise from the third person, and pays a portion of his fee back to the originator. And so on.
3. Release the idea to the public without any restrictions.

Note, when the device or the book is solely in the originator's possession, it is entirely his property. If he locks it in his house, anybody who tries to get in to see it without permission is committing a crime.

When he contracts use of the device or book, he still is asserting a property right, but he is licensing use of that property to another. Part of the contract is that the licensee agrees not to replicate it and distribute it without permission.

So there is a property interest regulated (and made more available) by a contract.

Now, if enough of these inventors and writers are doing this sort of thing and trying to enforce these individually-drafted contracts in the inevitable dispute, the magistrate becomes overwhelmed.

So everyone agrees (legislatively) that the best way to sort this out is to come up with a uniform system of administering these agreements. It becomes a policy question about which bright lines to apply and how.

Which is how we got to where we are.

But note a couple of other things:
1. Nobody has to patent his device or copyright his book. He can always keep it a secret. The counter-reality is that there are other people out there working on similar problems, and if he keeps it secret too long, he has no ability to profit from his work.
2. Even without an IP framework, and only a contractual framework, challenges to the contracts would look a lot like IP challenges. For example, the inventor licenses his device to one individual and makes him promise never to show it to anyone else. Lo and behold, a year later, another similar device shows up across the country. If the originator sues the licensee because he thinks he breached the agreement, the licensee can get off the hook by demonstrating prior art or the fact that the idea was not so unique. Maybe he can counterclaim for being sold something that he was led to believe was special but turned out to be common.

The IP laws are an effort to bring uniformity to practice. It's sort of a meta-contract. You play by these rules, you get predictability.

I do think the IP laws are therefore justifiable under contract theory, meaning 9th commandment foundation. And a promise under contract gives a form of property right that invokes the 8th commandment.

But I also think IP laws are horribly abused and messed up these days. Of course, in my view, that is a policy question trying address how to recognize moral rights.
 

ProRege

Puritan Board Freshman
It would seem to me that if ideas can be owned, then they should be able to be passed to our heirs in perpetuity without ever passing into the "public domain" as long as ownership is asserted by the heirs.
Part of the issue, though, is that most copyrights are not held by individuals but by corporations. In addition, the right only extends within the lifetime of the creator. A work doesn't lapse into the public domain until a set period after the death of the creator(s). Ideas are copyrighted for a particular amount of time for the benefit of the creator---if he hasn't used it to full advantage by the time of his death such that he is leaving an inheritance for his progeny, how is that supposed to be the fault of copyright law?

Philip, thank you for your answer, but I don't think you have answered my question. Instead of copyrights, assume we are dealing with a chair that has become a family heirloom. Ownership of that chair passes to the heirs for as long as the heirs desire to assert ownership. Obviously, if they set it out for the trash man to pick up or give it away, they could lose or transfer ownership. But until they do, they continue to own the chair. It would be unjust (unbiblical) for a law to make it legal for anyone to take the chair from my heirs' living room without compensation 75 years after I died by declaring the chair had passed into the public domain. If ideas can be owned, then how is it just for a law to declare at some arbitrary point that the ideas cease to have a private owner and pass into public ownership? I don't see how it makes any difference if the copyright is held by a corporation or an individual. Corporations can own property too. It would be just as unjust for a corporation to lose their property rights as it is for an individual.
 

satz

Puritan Board Senior
I don't see the point or profit in quibbling about whether IP rights (as defined by modern law) fall into the exact categories of property rights set out in the bible. It is obvious in the scenario described in the OP that selling or giving away the CDs while retaining digital copies of the contents will deprive the artist of income - two persons may now enjoy the music but only one has paid for that privilege. As was mentioned in earlier in this thread the principle is that the labourer is worthy of his wages.

It is also far too simplistic to look at this issue simply in terms of whether it is legitimate to claim ownership of an "idea". Anybody can have an "idea", not may people can actually bring their ideas to fruition in a workable form. Copying music from a CD is not just sharing an "idea", it is also making use of the musician's talent, time, work and opporunity cost (i.e. using his time to produce music instead of taking up some other work). If the musician has done all this in the expectation that he should be paid by those who wish to enjoy his music, it is simply an act of loving your neighbour to not share the music in away that deprives him of income.
 

fredtgreco

Vanilla Westminsterian
Staff member
Because there need to be recognized limits so that people know if they are truly taking something from someone.

The exact same principle occurs in real property. It's called adverse possession. If after a period of time (bright line rule) no one else treats the property you are possessing like their property, you can have assurance from the law that it is not. The same is true of public domain laws.

If public domain laws simply establish a bright line rule such that so that people know if they are taking something from someone, then wouldn't our current IP laws, which put works into the public domain 75 years after the death of the author, be an unlawful (i.e. unbiblical) stripping heirs of their lawful property rights in those cases where they wish to assert them?

It would seem to me that if ideas can be owned, then they should be able to be passed to our heirs in perpetuity without ever passing into the "public domain" as long as ownership is asserted by the heirs. What authority would the state have to terminate ownership? Wouldn't that be theft on the part of the civil magistrate? Certainly if no one asserts ownership, then the laws provide an orderly way for people to assert adverse possession.
I think the answer is found in Raymond's post. All ideas can't be owned. It is only a certain subset of ideas - namely, those that meet the guidelines for public disclosure for the medium. IP is really a very diverse field. Patents are very different from Trademarks, and both from Copyrights. The magistrate has determined that it will protect the ownership rights of the work for a certain period of time to allow the owner to bring the IP to market and know the investment of his working capital will not be taken. The justification is that without this protection, owners would not be able to handle the contractual complexities (see Raymond's post) or would not be willing to spend the capital to develop the idea.

The history of law bears this out. I think it would be hubrisitic to believe that Americans are innately better inventors or smarter than the rest of the world. Yet, most major innovations/inventions have come from America. It is because of the IP law that developed at the founding of the nation.
 

ProRege

Puritan Board Freshman
If ideas can be owned, then how is it just for a law to declare at some arbitrary point that the ideas cease to have a private owner and pass into public ownership?
Because it's not that kind of property.
The definition of property, in the sense we are using it, is "The exclusive right of possessing, enjoying and disposing of a thing; ownership." Webster, 1828. To say that ownership of property can justly be arbitrarily terminated by fiat because it is a different kind of property is to say that some kinds of property ceases to be property while other kinds don't cease to be property. I think this begs the very question that is being asked. Why is it lawful (i.e just) that some property ceases to be "property", i.e. ceases to be owned or ceases to have the right of possessing, enjoying and disposing?
 

ProRege

Puritan Board Freshman
If public domain laws simply establish a bright line rule such that so that people know if they are taking something from someone, then wouldn't our current IP laws, which put works into the public domain 75 years after the death of the author, be an unlawful (i.e. unbiblical) stripping heirs of their lawful property rights in those cases where they wish to assert them?

It would seem to me that if ideas can be owned, then they should be able to be passed to our heirs in perpetuity without ever passing into the "public domain" as long as ownership is asserted by the heirs. What authority would the state have to terminate ownership? Wouldn't that be theft on the part of the civil magistrate?
I think the answer is found in Raymond's post. All ideas can't be owned. It is only a certain subset of ideas - namely, those that meet the guidelines for public disclosure for the medium. IP is really a very diverse field. Patents are very different from Trademarks, and both from Copyrights. The magistrate has determined that it will protect the ownership rights of the work for a certain period of time to allow the owner to bring the IP to market and know the investment of his working capital will not be taken. The justification is that without this protection, owners would not be able to handle the contractual complexities (see Raymond's post) or would not be willing to spend the capital to develop the idea.
Your statement "All ideas can't be owned" is an interesting assertion that after some reflection provides a resolution for me. I would change it to "No ideas can be owned, but for a certain subset of ideas, the magistrate has determined that it will grant monopoly rights to publish or produce certain products based on those ideas." This moves IP from being an issue of property rights to being solely an issue of contract rights. This also resolves the difficulty of the magistrate's termination of IP rights. He can't terminate property rights, but he can terminate monopoly rights on production. This also answers Webster's argument in his 1828 Dictionary (what an odd place to lodge a compliant about IP laws!) in which he asks:

Literary property, the exclusive right of printing, publishing and making profit by one's own writings. No right or title to a thing can be so perfect as that which is created by a man's own labor and invention. The exclusive right of a man to his literary productions, and to the use of them for his own profit, is entire and perfect, as the faculties employed and labor bestowed are entirely and perfectly his own. On what principle then can a legislature or a court determine that an author can enjoy only a temporary property in his own productions? If a man's right to his own productions in writing is as perfect as to the productions of his farm or his shop, how can the former by abridged or limited, while the latter is held without limitation? Why do the productions of manual labor rank higher in the scale of rights or property, than the productions of the intellect?​

So while Plato will forever remain the author of the words he wrote and the ideas he articulated, he doesn't own these ideas anymore than anyone owns the air they breathe. And neither he nor his heirs have a monopoly on the printing or publication of what he wrote. Anyone can print what he wrote on paper they own using ink they own, so long as they tell the truth about who authored the words. No one else can claim authorship of what he wrote without violating the 9th commandment.
 

Philip

Puritan Board Graduate
This moves IP from being an issue of property rights to being solely an issue of contract rights.
Contract rights are a certain kind of property rights since certain kinds of property are created by means of contract.
 
Status
Not open for further replies.
Top