12.14.05
What Is The 8th Commandment All About?
2005, December 14th
I was struck recently by a bit of inspiration while listening to a conservative talk-show host on radio. The host was Dennis Prager and the topic of the show was illegal downloading of music, movies, games and the like. Quoting from his website: “Two thirds of US college students don’t see anything wrong with downloading music for free. This speaks to the paucity of character development of our youth.” During the show, he pointed out that theft was covered by the ten commandments. The tone of the show was how this fact of downloading showed that the youth of today had no concept of ethics and morality.
One of his callers (who the host eventually shouted down rather than face valid arguments) pointed out that THEFT denies one the use of his property. How can downloading music be considered THEFT if the original owner still has full use of the music? So the argument becomes one of “diluting” the value of their INTELLECTUAL property.
Consider this:
Ford and Toyota both make cars. Toyota consistently produces cars with better crash test ratings, lower maintenance costs and higher resale values. Ford begins to lose business to Toyota. Has Toyota “stolen” anything from Ford? They have diluted the value of Ford’s property, and this is REAL property. It is physical. You can touch it. It is not some ephemeral intellectual property. Why do we not consider this to be theft?
So the argument might return that this is competition and not simply copying. Toyota has produced a car that competes with those produced by Ford. It is an open market and anyone is allowed to compete. Fine.
Then consider this:
I buy a 1979 Ford Mustang and take it to my home. There I possess tools and raw materials. I painstakingly dismantle the car, produce an exact replica, rebuild the original car and sell it. The new owner has his car. I have my car. The production of the car represents a substantial investment in my time and materials. Should the original manufacturer have the right to raid my home and confiscate the duplicate?
So the argument against this scenario is that building a car represents a substantial effort. Not only did Ford build the car, but it required raw materials. Most people would agree that I have not stolen anything from Ford, however, I must not sell my replica and claim that it is a 1979 Ford Mustang. I can only sell it as a replica.
Imagine this scenario:
Thul and Gruul stand in a field wearing the fashion of the day, deer-skin tunics and loin-clothes. They smell bad. Each wields the most devastating weapon man´s mind has conceived, a stone-headed spear. Thul points to the herd of wild bovines and expresses the thought, “I shall build a wall, trap some of those inside, and feed them until they become fat, lazy and docile. Then I shall breed them until I have a vast herd. I shall slaughter them at my whim and exchange the meat, bone and other parts for the fruits of others´ labors.”
Flash forward several years. Thul and Gruul stand again in the field. Gruul shows the wear of many years of hunting and following game. Thul, on the other hand, now wears much finer clothing, perhaps a sweater (One of his wives invented knitting in her spare time.) Thul carries a brass-headed spear a much finer weapon than Gruul’s. Both the spear and sweater are available now because of the advanced trade that has sprung up as a result of the leisure time created by Thul’s invention of ranching. Now the field is surrounded by a crude wall of rocks and timber and the once wild herd of bovine is tame and quietly munching the well-maintained grass. Thul now says: “See?”
Gruul responds by clubbing him on the back of the head and taking the business — along with the spear, sweater and all of Thul’s wives.
This is theft (and perhaps murder) and Gruul is villified by society (if they are stronger than him) or praised as a strong leader (if weaker.) If, instead, Gruul found a similar field, built a similar wall, populated it with similar bovines, we would admire Gruul’s spirit of competition. Gruul and Thul would be hailed as the first fiscal conservatives operating in an open market.
The only legitimate difference between Thul and Gruul and a recording studio and illegal MP3 distributor is that Thul and Gruul each had to perform, approximately, the same amount of work in order to profit. The recording studio did a great deal more work than the MP3 distributor. This is NOT to say that the MP3 was free. The equipment that compressed it still costs hundreds of dollars. It also had to be housed, powered, installed, maintained, etc. Someone had to write the program. Someone had to build the network that carried it. Compare this with the recording studio who tracked down a decent singer, got a contract, built a market, invented a whole host of doo-dads and thing-a-ma-bobs that record music, combine it with other music and then advertised the hell out of it so people would want to listen to it on a 2 hour loop from the local radio station.
The studio certainly went to more work, paid more people and collectively created a form of art, we hope. Some would argue that this labor should be rewarded, and I agree with them. Where I disagree with the studio is in the degree to which they should be compensated.
Studios are businesses. As businesses, they invest in their own futures. One way they invest is to have laws passed that treat them favorably. This is just good business. And before you get all high and mighty about how this sounds, understand that I believe that it is GOOD that businesses can do this. However, laws should not be passed that work counter to the public good. There needs to be balance between the people who nurture the artist and the public who pays for the art.
Before the invention of the grammaphone, the only mass-produced recorded art was the printed word. The constitution of the United States of america recognized the rights of authors to exclusive profit from their works. It also recognizes the rights of inventors to exclusive use of their machines. What it does not do is confer to authors and inventors perpetual, exclusive rights. The intellectual property owners want you to think of any recording as theirs forever. But congress (in the US) has no right to make such a law.
All intellectual property must eventually fall into the public domain. The only question is, when. At this time, inventors can arrange to hold their patents in the US for, at most, 25 years. After that, anyone can make a polaroid camera, much to the chagrine of Polaroid (they lost that lawsuit.) However, copyrights (Authors. Printed word. Remember them?) were recently extended to 85 years. They had previously been limited to 50 years (considered an adult lifetime at the time) or the death of the author, whichever came last. But companies wanted to buy the rights from authors and companies never die and the companies argued that what would come last was the death of the company as long as it existed. It was changed to whichever comes first.
But then Disney was about to lose their exclusive rights to Mickey Mouse and the full weight of the happiest-place-on-Earth decended on Washington in a succession of years and made them extend the time. The last time they got an extension, it created a span of 25 years during which no copyrighted work will fall into the public domain.
But copyrights are not possessions. They are rights. And they are exclusive, but they must not be perpetual. Sony no more owns the sounds on their CDs than I own the air blowing over my front yard. The recording studios, game studios and movie studios all want you to believe that they own their songs, computer games and movies. If you start to believe it, if they can make it the common understanding, the “fair” understanding, then the public good is not served.
Look at what has happened to the movie studios. They did not publish their works for sale for many years. If you wanted to see Gone with the Wind, you had to go to a theater. This was understandable given that the average movie wouldn’t fit in a car and the equipment needed to view it costs a small fortune. This is very different from books, the media for which copyright was invented. With books, once a work fell into the public domain, many thousands of legitimate copies would exist. Some in private collections, some in libraries, they were everywhere and anyone could copy, translate or derive other works from them without asking permission from anyone.
The same is not true for many modern recorded materials. The motion picture studios have not been good custodians of the cultural history entrusted to them. They have selfishly hidden from view materials with a cultural, but no real monetary, value. Many hundreds, if not thousands of movies have been lost forever. They were left, untended, to rot in warehouses. The full impact of this loss is only now being felt. The studios have taken steps to preserve what they can. Some of the material is lost forever. Some is being preserved in its current state until better technology for recovery can be invented. Some is being destroyed right now, as you read this, in an attempt to recover it. The attempts are not guaranteed to succeed.
But the studios only released films when they could make money from them. Disney re-released (trotted out) its old material for every new generation of children. Some old favorites were replayed on TV every year around Christmas, Thanksgiving, or Easter. But if it didn’t have a wide audience, or if it languished in bad press or didn’t express the public opinion of the day, chances were, it became forgotten.
The problem here is that ancient laws were not designed with the comprehension that the information age would come to pass. The ancient mind could not concieve of the industry that would spring up from the ability to record a performance. But industry has always lead politics into dangerous territory. For many decades, American (colonial) cotton growers had to sell their raw materials to mills in England. They could not produce cloth or even thread on their own. The reason? No one in England would sell them a mill. In fact, it was illegal to take the plans for a power loom out of England. However, a colonial born man visited England and learned enough about the mills to build his own, with a little help. He got rich, and has a town named after him, Lowell, Massachusetts.
Now the English would cheerfully have strung him up for this theft. But they couldn’t because America was already a sovereign nation. England had also just lost a second humiliating war with their former colonies and may not have wanted to push the issue.
Here is where the distinction between Intellectual Property and Real Property lies. By taking Real Property, I deny you its use. This is theft. By taking Intellectual Property, I infringe upon your rights to exclusivity. Exactly what is this? It isn’t theft, as such. You still have your property. You can probably still profit from it, though not as much. But this is not THEFT. It is never THEFT. Civil, not criminal processes should be used to protect copyrights. And in the information age, we should be insisting that authors and performers must continue to create new works in order to profit from them. Copyrights should be getting shorter, not longer. There is almost no incentive for a company that owns a 10 year old computer game to produce it for sale, but they will not release it to the public domain. This assumes you can even find the legitimate copyright holder.
It is time for the public to demand a change. How long should an artist profit from one performance of a song? In days of old, the performance could not be recorded. It had to be repeated again and again, never twice exactly the same. Did the invention of inexpensive tape recording equipment put an end to concerts? No, they flourish. Did the invention of the VCR put an end to television? No, there are now twice as many television studios as there were when the first Betamax was sold. Has the invention of the DVD put an end to the motion picture studio? No. They still have one of the most powerful lobbies in the US.
The rights of the custodians of popular culture need to be cut back hard. They have proven unworthy of their role in society. We need a new law that defines not copyrights, but performancerights. Maybe a record label or movie studio should only have exclusive rights for a few years, say 5. They make their first round of money in theater release, then general release on portable media. They still own exclusive rights to the high-quality original. If they hold on to it, they may be able to take advantage the next wave of media technology.
Now, everyone wants to replace their VHS tapes with higher quality DVDs. Soon, Blu-ray, or something like it, will hit the retail shelves and people will compare with their crummy old DVDs (just like videophiles had to switch from laserdiscs) and a new level of performance quality will allow the studio to renew their performancerights, but only for another year. A year is a lifetime for a fan to wait. They will buy the commercial copy. The studio will make money.
Look at the phonograph. Do you want to listen to your old, scratchy plastic record copied onto a tape with all that hiss? Or, would you like a digitally filtered and remastered CD of Purple Haze? Shorter, not longer exclusive rights will force creators to continue to create, if they intend to continue to profit. This is a Good Thing. Why don´t we try that for a while.