27-06-2002 20:30									#1
	Intellectual property law Full PM-box? Change here!

I'm having a discussion at another board about mp3 sharing and I'd like to know your opinion about my stance. (since there are a number of people here who know some about law) Because the board is Dutch speaking I'm not going to bother linking to it but here's an email I had sent previously.

quote: Allow me to drop a eurocent or two in this discussion as well… First off, I think mp3 has massively expanded the spectre for exploring the galaxy of music genres, in space of an hour you can experience a dozen genres you’ve never heard of before. Instead of purchasing a cd or two a month of artists you already heard on tv or on radio, you can download music ranging from a genre like techno to grunge, from jazz to hiphop, from reggae, to hardtrance… from obscure underground to commercial mainstream, in just a day or two. There’s no barrier but the psychological to try out something new. Sure, you could buy a cd with from a genre you haven’t experienced before, but since you got to pay 15€ and you got live of a limited budget, you’re not very willing to risk that money on a bad buy. Better stick to something you know. Second, I don’t think there’s any stopping to it, mp3 is there, quality will improve, broadband capacity will expand and people will continue to appreciate the convenience, legal or not. Related to this, I hate don’t “don’t download it because it’s illegal” arguments, that’s putting the cart in front horse. Property rights (of which copyright is part) aren’t absolute, they are restrictions to it, the government has the right to expropriate land for instance and patents expire. The line between what’s theft and what’s not is blurred and will always be. Copyright laws are an compromise between the interests of authors and those of consumers, while taking into account what’s achievable, and there’s no reason why it cannot be modified when changes in technology, society etc renders it out of date. Third, the author has the right for a compensation for his work when it’s watched, read or listened at, I don’t think anyone could dispute that, and current copyright law is formed to ensure he gets that compensation. But instead of clinging on to outmoded laws, try to find a new ways of ensuring an income for the author. I think that steps into that direction are already being taken, like the SABAM fee for playing music at parties, taxes on appliances used for copying and the like (however much they’re hated). Another logical step would be stepping up the prices for live-performances, which was how musicians used to make money, I think. Maybe we’ll eventually end up paying as much for music as we used to, with difference there will be an enormous freedom for trying out music.

I'd also like a question of mine answered. Suppose an employee designs a machine and the plans are obtained by another firm without prior permission. I assume this is industrial espionage and punishable as such but is this also an infringement of or another intellectual property law? Which one?

Thanks.

	27-06-2002 20:47									#2
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quote: Third, the author has the right for a compensation for his work when it’s watched, read or listened at, I don’t think anyone could dispute that, and current copyright law is formed to ensure he gets that compensation

I'll dispute that. Does a busker in a subway have a "right" to charge everyone on the subway for his music? Of course not. He has a right to whatever money people throw in his hat. He also has the right to quit busking if he doesn't like the pay.

Musicians and writers have entered the public arena. Once there they assume the risks of that arena. If technology provides a means to redistribute their creations at a much cheaper cost than they can provide them, then tough luck chump. Maybe they should consider another line of work.

This is not a bad thing. It's good. A technology which allows billions of people to gain extremely cheap access to intellectual goods is beneficial to everyone. And anyway, artists only think they are being cheated. In real measurable terms they probably aren't hurt. Only the middlemen are forced to find some other market need to exploit.

	27-06-2002 20:48									#3
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The current state of the so called IP laws is sad. That's why garbage such as Rambus happened. The laws allow entities with deep pockets to harass people, even if those are the rightful owners. The IP laws also allow the middle man such as RIAA and MIAA to fatten themselves at the expenses of both the artists and the consumers.

	27-06-2002 20:57									#4
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Vanguard, you're forgetting about the creation side of the deal. Maybe authors do not have a natural right for a compensation, but without a compensation for their work, they'll be less motivated to create and that's a loss for society. If the street musician doesn't get any cash, he won't play music and the subway will be a colder place.

	27-06-2002 21:03									#5
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Are the civ2 database files still intellecual property of kwang?

	27-06-2002 21:10									#6
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People have been creating works of art for thousands of years, most of those without the protection of strong intellectual property laws. I don't see any reason to think that artistic creation is going to stop because people can copy mp3s from one another.

Nobody got any residuals from the Bible, the romances fo the Middle Ages or the poetry of Shakespeare. Most writers die poor as do most musicians. They create for reasons that seem to have nothing to do with profit.

In any event, as I said before, they probably won't be hurt. Artists can always make money from live performances, where a large portion of their income currently comes from.

	27-06-2002 22:23									#7
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* Waits for Boris Godunov *

If you want to have something you'll have to pay for it. You can't force an artist giving away something for free just because he is an artist. The busker in the subway is a bad example because I didn't ask him to perform, while downloading an MP3 is asking.

On the other hand the retailers often get too much money IMO. ?2 for four pages of printed music where there is no royalty to the composer (and sold only in packs of 20) is too much.

	27-06-2002 22:25									#8
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So where will the recordings come from, Vanguard? The only reason that the current vast library of recorded music exists is because there was an economic incentive to create it. Take that away and you'll be trading MP3s of bar bands and buskers.

As for the original question:

quote: Suppose an employee designs a machine and the plans are obtained by another firm without prior permission. I assume this is industrial espionage and punishable as such but is this also an infringement of or another intellectual property law? Which one?

I'll have to assume that this occurred in the US, Canada, the UK, Australia or NZ, because they are the legal systems I'm most familiar with.

A fairly senior member of the Intellectual Property bar in Canada once told me to think of IP protection as an umbrella. Your invention hides underneath it and each panel of the umbrella is a different aspect of IP law. One invention will often be protected by a variety of panels of the umbrella.

In the case you describe you would have the protection of criminal law (if something was stolen, or if trespass was required to take pictures or something), copyright law (which would make the copying of the plans illegal), trade secrets law (which protects against this kind of anti-competitive behaviour by giving an action for damages when a trade secret is stolen) and perhaps patent law (if a patent application had been filed prior to the taking then the applicant would have rights once the patent issues (except in the US and the Phillipines which both give rights to the first to invent something, not the first to file)).

The rest of your questions aren't really questions about the laws in place, but are really more about what laws should be in place. Personally I think that copyright should stay the way it is for artisitic works (like music) but that the evolution of distribution methods will make the RIAA and its members dinosaurs fairly shortly.

	27-06-2002 22:53									#9
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quote: So where will the recordings come from, Vanguard? The only reason that the current vast library of recorded music exists is because there was an economic incentive to create it

No, economic incentive is not why the library of recorded music exists. Economic incentive is why record stores and cd inventories exist.

It costs very little to record a performance of music. Just set up a number of mics and a digital recording medium and there you go. In fact, the reason that the vast library of recorded music does exist is precisely because it is so cheap to record music. If music were very hard to record then there would be relatively few songs in the library, as, for instance, there are relatively few movies in the media "library".

	27-06-2002 22:58									#10
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Pssst, Vanguard. "Recorded music" doesn't equal "music recorded since cheap digital recording has been availalble".

And despite all the advances in equipment costs, studio time is still phenomenally expensive. So you may very well be able to get a good digital recording, but it will be a good digital recording of a bar band or a busker. Who else is going to let you set up your mikes?

	27-06-2002 23:09									#11
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quote: You can't force an artist giving away something for free just because he is an artist. The busker in the subway is a bad example because I didn't ask him to perform, while downloading an MP3 is asking.

I'm not forcing the artist to do anything. What am I, pointing a gun at him? If he doesn't want to make music in world where people download mp3s, well good luck to him.

When I download an mp3, I'm not "asking" the artist to do anything. I'm finding a file the artist has already made and copying it. The artist expends no energy in this transaction. I admit that he expended some to create the track, but that is his business. He should see that he is paid up front by whoever wanted to hear the music.

quote: Pssst, Vanguard. "Recorded music" doesn't equal "music recorded since cheap digital recording has been availalble".

Well it makes no sense to offer economic incentives to people who own the rights to music that has already been produced. What are they going to do, produce more music in the past?


Studio time is only expensive because of the economic incentives to produce cds. There is nothing inherently expensive about a couple of rooms and a mixer board.

	27-06-2002 23:33									#12
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quote: Originally posted by Vanguard I admit that he expended some to create the track, but that is his business. He should see that he is paid up front by whoever wanted to hear the music.

Don't you see the inherent contradiction in what you're saying? On the one hand you say that the artist should see that he is paid, and on the other you say that you don't want to pay.

Well, don't be surprised if the artist figures this out and not only refuses to record anything but stops playing when you try to record something. There ain't no free lunch.

	27-06-2002 23:41									#13
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So I have intellectual property law to thank for Britney Spears, N'sync, the backstreet boys, and all other pieces of crap music out there?

Music has been around much longer than IP laws, and music will oulast them. Those that love music will make it even when the money dries up. Mozart died poor, but will be remembered long after the name Mandy Moore isn't even worth a spot on a trivia contest.

Artists have a right to get paid for their product when they perform, and have the right to ask for limit on distribution, but those limits should not be for ever:limits on copyright duration.

	27-06-2002 23:44									#14
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quote: Well, don't be surprised if the artist figures this out and not only refuses to record anything but stops playing when you try to record something

I'll risk it.

	27-06-2002 23:55									#15
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quote: Originally posted by GePap Artists have a right to get paid for their product when they perform, and have the right to ask for limit on distribution, but those limits should not be for ever:limits on copyright duration.

So you're in favor of IP laws? What you've described is essentially what copyright currently gives. Mozart had none of the protections you describe (other than the ability to walk away from his patron and starve).

	27-06-2002 23:59									#16
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Colon,

1. (Style) Your logic and prose could be tightened up.

2. (Content)

A. WRT point one, there is nothing stopping artists who choose to circulate their work for free, from doing so with computer files. Same thing wrt radio. Doesn't justifying illegal copies of work.

B. WRT point two, you are wrong both ethically and practically. Ethics: just because a crime is prevelant (insurance claim padding) does not mean that it should be allowed. Practice: First, legalizing currently illegal practices will lead to increases. Second, there is plenty that can AND IS being done to eliminate illegal copies of music. The record industry won some battles last year or two.

C. WRT point three, hard to really discuss it becuase you haven't clearly stated your argument. But first the points in B still apply to this issue. Secondly, there is no guarantee that artists will make the added income from live performances, etc. And a very easy argument to say they may make less. (Why pay for something that you get for free.)

3. (Aside) I wonder if your argument is a justification for your own behavior patterns. Do you have illegal music copies?

	28-06-2002 00:01									#17
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quote: Originally posted by Echinda So you're in favor of IP laws? What you've described is essentially what copyright currently gives. Mozart had none of the protections you describe (other than the ability to walk away from his patron and starve).

I do favor limited IP laws, yes. If Mozart didn't want to starve then he could have worked elsewhere. Honestly, there are many ways of life in this world that pay little, but people ollow them because they love them. ery few musicians ever manke much money, and the real money does go to the middlemen. The real problem is not that musicians starve, but that we let anyone starve at all- though that is best kept to a different thread.

	28-06-2002 00:35									#18
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quote: Originally posted by Vanguard Well it makes no sense to offer economic incentives to people who own the rights to music that has already been produced. What are they going to do, produce more music in the past?

But if you make a habit of jerking the rug under people's ffet like that, you will discourage enterprise. This is why developing countries pay such high rates for loans and why pharma companies are already cutting research. Think about it...

	28-06-2002 04:38									#19
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Actually I'm in favor of having consistent laws consistently applied. That's part of the reason I think intellectual property law is generally a bad idea. It is almost impossible to apply it consistently and is expensive to enforce.

On the general question of artists being hurt, I ask IP supporters how they deal with the parallel issue. Enforcing IP laws hurts and impoverishes billions of people around the globe who can't afford music.

Why isn't this a far worse crime than forcing people to pay for cds which they don't want in order for a tiny trickle of money to flow from buyers to artists by way of fat record companies?

	28-06-2002 04:49									#20
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WHat about patents? Noone would do pharma research without a financial reward. generics companies do not research new drugs...

	28-06-2002 04:53									#21
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Sure they would. There is almost always a financial incentive to make something useful, whether you have exclusive rights to it or not.

Eliminating patents would reduce some pharma research, no doubt. But mostly it would just reduce research to find drugs that do the same thing as current drugs, but are "new" and therefore patentable.

	28-06-2002 04:58									#22
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So how much would it be reduced?

	28-06-2002 05:00									#23
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How the heck should I know? Some.

But valuable inventions remain valuable whether you get exclusive rights to them or not. Usually protected inventors just piss away their rights anyway though inefficiency and asking too high a price.

	28-06-2002 05:10									#24
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hold on buddy. Who is it valuable to? An entrpeneur makes a bet that his work will be repayed. So the more copyable and invention is and the more the cost of development, and the smaller the market size, the less someone will choose to make that bet.

Now, any idea how much money goes into developing 1 new drug? Any idea how easy it is to copy the chemical formulation?

	28-06-2002 05:20									#25
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Sure. So what? If developing new drugs is such a good idea, why doesn't the government throw hundreds of billions of dollars into developing a cure for aging or wrinkles or that keeps hair from growing out of your nose?

How much is enough? How do we know that the money we will be spending on drug research wouldn't have been better spent developing new computers that makes drug research easier? Or software that unravels genetics? Or that stops global warming?

You can't pick out one economic consequence and assume that it proves something. Economic consequences are a tangled skein of unknowable potentialities. Trying to reduce inefficiencies is about the best you can achieve.

Last edited by Vanguard on 28-06-2002 at 05:59

	28-06-2002 05:31									#26
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In cases where patent law is insufficient, it may be worthwhile to have government subsidized research. The problem is that the individual copies of songs or drugs are very cheap...but the development costs expensive. It's simlar to telecom where the infrastructure costs are huge (big fixed cost) but negligeable variable cost. (Telecom is a "natural monopoly" as such.) You can either offer a monopoly for intellectual content or can subsidize or can just do without. I think patent law is a reasonable compromise.

	28-06-2002 05:36									#27
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Question, class!

Malaria is one of the largest diseases internationally. It's well known, insofar that we know more or less accurately how it spreads, parameters such as hosts, incubation time, and actual biological mechanisms disrupted by it.

1) Why don't we have a vaccine in place? [This is the leading question, yeah]

2) What would you do about it, if you think IP laws are somehow evil and need to be retracted?

	28-06-2002 05:39									#28
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Colon, Echinda has it right on the general question concerning piracy of the machine plans. You could proceed under any number of legal theories. The best would be a trade secret misappropriation action that begain with a TRO. Regardless of the remedy chosen, the wise inventor would also file for patent protection and register his copyrights ASAP. Even if the plans have been published, one could still get a patent in the US for up to a year. US patents are by far the most valuable in the world.

On the issue of MP3's, I would be in favor of studying how we could maximize the freedom of distribution we have today with maintianing the right of compensation to the composer, singer or other copyright holder.

I could envision a system where every song had a code that could only be decoded by a computer with a license. Depending on how the composer wanted to be paid, the song could tell the computer that this is a pay-per-play song, free, or subject to a blanket license.

In fact, I believe I read that Microsoft may have something like the above in the works already.

	28-06-2002 05:44									#29
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Hmm, Ned. How are you going to deal with the plethora of MP3 encoders and decoders that's out there already? Have them forbidden by law? Authorize the FBI to break into people's houses to search their computers in the middle of the night?

It sounds like cheap melodrama, but I'm quite serious. It's not like any tech fix applied now is gonna work unless you take to quite draconian measures to repress the technology - without any such controls - that's already out there.

	28-06-2002 06:08									#30
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moomingparatrooper, We don't have to do anything, anyting at all. The next edition of Windows, Solaris or Linux could simply refuse to play or encode unlicensed MP3's. Over time, the problem would vanish as people upgraded.

In addition, non computer MP3 or equivalent encoders could be banned.