A lesson on copyright

Law professor Jim Maule tries to convey a lesson on copyright to the zealots on Wellbert Declan McCullagh’s Politech e-mail list. Here’s one of his yeoman efforts:

Whatever Jefferson has said, the Constitution gives Congress the power to give copyright protection to the fixed forms of ideas. It is the fixed manifestation and the right to copy it that is protected, not the idea or the thought. Hopefully Declan will post this so that the discussion can re-focus on the point I think you made and that I think you made again (in your suggestion that the pirates aren’t the cause of revenue loss and in your point concerning the burden on the owners of information to invent new business models).

When the law grants a right, whether in title to real property or the right to copy, it is a violation of that law to act, without permission and without privilege, in a manner that denigrates those rights. In this regard, it makes no difference whether a right attaches to physical property or the manifestation in physical or digital form of an idea or the intangible “right” to own real property or to copy or fix an idea. The specifics of remedies, proof, and procedure may vary, but an intrusion on a right is an intrusion whatever the right.

I am not arguing for a perpetual copyright, as my careless articulation in my original posts seems to say. I corrected that in a followup.

Nor am I arguing that the term provided under existing law necessarily is the best, or ideal, or good for business or the economy. But I do argue that just because a person does not agree with a law is not in and of itself justication to ignore it.

The notion that the owners of copy rights need to rethink their business model because modern technology has made it easier for pirates to steal the profits flowing from the right to make copies (and that their failure to do so excuses the theft) is like saying that the creation of better lock picking tools means that those who don’t change their security system excuses the thieves. This is a natural consequence of the “blame the victim” mentality that permeates our culture. Sure, some copyright owners have exploited artists and consumers. That’s not enough to sanction P2P schemes that infringe on all sorts of artists, publishers and copyright owners (many of whom are not big Disneys).

How you can suggest that file swappers aren’t eating into CD sales boggles me. Who has to prove what is a different matter, and yes, the burden is on the RIAA. That the decline in sales matches the growth in the Internet and P2P and other file sharing schemes isn’t a coincidence. No one believes that in the absence of the technology the swappers would not have purchased CDs.

So I’d be happy to hear you say that you think the file swappers are violating the law and violating the copyrights. And then say you understand why they do that although you don’t think that makes it right. Then we’d be fairly close to having the same position. If that is what you are saying, then I apologize for mis-interpreting your earlier post and this one.

Declan’s people are mighty dense, so you have to admire the Professor’s patience. Music stealers know what they’re doing is wrong, which is why they try to justify it by claiming to be stealing only from the Big, Evil RIAA. But they’re also stealing from the little artist dudes, and they need to be reminded that that’s wrong.