Philosophy of Copyright

Great Debates
41

Lord help me, I’m now going to try to absorb the crackpot geeky computer stuff you’ve thrown at me:

Fine, just don’t start selling t-shirts of my photos, or making prints.

And what is your point, exactly? If people can recognize it as my photo, they can recognize it as my photo. No matter how you parse it with your geekiness. If the photo is rendered unrecongnizable, I don’t care; if it’s recognizable, I care. Trying to “get around” this fact by smothering it with geekiness isn’t going to change the bottom line.

So what’s your point? I blew my nose on a Kleenex tonight, and I’m not making any money off of the dirty Kleenex. But I don’t see anyone else having a showball’s chance in Hell of making any money either. That’s because no one wants to pay for my snot on a Kleenex. But if they did, I’d be the one expecting the money for my snot, not someone else.

Oh good frickin’ grief. Do I have to keep repeating this over and over again?

People “sell rights” to their work, whatever work it is. If they don’t like the conditions and terms of doing the work, they don’t have to do the work.

I am quickly losing patience with you bringing this up, as if you didn’t grasp it when it was discussed before, and the time before that, and the time before that…

The author sold limited rights to that book. If he wanted to make a “clip art” or “royalty free” book or CD, where all the images could be used freely, he could do that, and he’d charge appropriately. The price is much higher for work that gives all rights.

Somewhere in that book you bought is information about copyright. That explains what the “license agreement” (so to speak) is on the use of that book. Don’t like the terms? Don’t buy the book. Don’t complain because you aren’t being allowed to use it in a way that you in no way remotely paid for.

It’s no different than the pricing differences in software—a “pro” version is more expensive than an “academic” version, because the academic version has limits on its use. That’s how they keep the price down. Don’t like it? Don’t buy the software at the lower price. You have no cause to complain about not getting certain rights when you don’t pay for the rights. That’s kinda like complaining because you only paid for one can of Pepsi and you’re not allowed to carry away a 24-pack. YOU DIDN’T PAY FOR IT and you’re not getting it.

42

The JPEG algorithm and file format is pretty geeky itself. Ever wonder why sharp edges become blurry when you save them as JPEG, but smooth gradients look fine? I could explain all about the Discrete Cosine Transform and then you would understand. But that’s pretty geeky and I doubt you want to hear it.

The same is true of MP3. Psychoacoustic modeling, frequency band encoding, blah blah blah. You don’t need to know how it works to be able to create or play MP3 files, but only because other people understand the geeky parts and have written encoders and decoders.

You claim ownership over the JPEG (right?), even though it’s nothing but a string of numbers. It only becomes a picture on your screen after being processed by a ton of geeky algorithms. The same is true of WinZip - the user sees a file magically become smaller, but internally, a lot of complicated stuff is happening. And the same could be true of my Old MacHalfdome project if there were a demand for it.

Again, the information in the JPEG file is not immediately recognizable as your image–it’s only recognizable after it’s decoded. Either you own all possible encodings of the image, or you own none. How can you only own some of them?

43

Oh, give me a break. You can geek out on the technology, but that can apply to anything. (Radio waves? They’re just waves, not music. Right?) And so on.

Bottom line, if someone can recognize it as my photograph—if they cast their eyes upon it and say, “That’s yosemitebabe’s Half Dome photo”, then it’s close enough. No matter what geeky technology translated it, it’s still recognizable to the human eye as my picture.

44

So if I have a JPEG file of your photograph, but no way to view it, it’s OK to distribute it freely? And if I invent a new image format–KPEG, perhaps–then I can copy all the photos I want, since no one can view them (yet)?

My point is not that identifying your content is hopeless. In legal terms, it’s fine to say “You shall not distribute any optical, mechanical, or electronic reproduction of this photograph, or any translation or encoding derived from the photograph, or any program or device intended to cause a reproduction of the photograph to be created in any form.”

But that’s a legal definition of copyright, a restriction on the rights of others to distribute information. It doesn’t give you ownership of anything.

If you say you “own” the photograph, and you “own” the JPEG, then there’s no limit to the amount of information you could “own”. Someone might come up with a new image format next year that represents your picture as the number 123, but that doesn’t mean you suddenly “own” the number 123.

If you’re going to claim to own information, you have to consider the consequences. As you can see, they can be pretty ridiculous, but that doesn’t mean you should wave your hand and dismiss them as geek stuff for someone else to worry about. Without geek stuff, you wouldn’t be posting here today. :wink:

45

I want to make a few observations on the following points from the OP:

The OP answers itself: we have copyright because “as a society we have deemed it within society’s best interest to have copyrights to encourage creativity.” And that’s it: copyright exists because people have, in general, agreed that it should exist. It is “a matter of societal good will” intended to encourage people to come up with good expressions of ideas. There is no other grounding, and there need be no other grounding.

I take it that the OP assumes that “policy reasons” provide an insufficient grounding for copyright. I disagree. The fact that a right is grounded in policy considerations does not invalidate that right as a “right.” If that were the case, then we would have to jettison a vast number of “rights.” Further, if policy debates are eliminated as a ground of argument (as suggested by the OP: “policy debates are completely useless within this line of discussion”), then nothing can be accomplished: the debate simply spins around, unable to find any purchase on anything. When we understand that arguments over copyright reduce to arguments over policy, we can solve–by eliminating–the question of the philosophical grounding for copyright.*

As for the law of the jungle: Under “the law of the jungle”–and assuming that “the law of the jungle” is a coherent phrase–the strongest person gets to control property of any type: a piece of land, a tool, even another person’s body. The strong person could even control–to a greater or lesser extent–the ability to copy, say, a tune whistled by that person: if this strong person (“the Strong Whistler”) heard another person whistling an infringing tune, the Strong Whistler could take steps to prevent the infringement, up to and including killing the infringer. The control might be imperfect–but under “the law of the jungle” any control over any “property” is subject to “leakage” or divestment (by theft, killing, etc.). Further, the Strong Whistler could extend his or her control by enlisting others to help control potential infringing whistlers. Or a Weak Whistler could somehow convince a Strong Person to assist the Weak Whistler in preventing infringement.

And that is, in essence, our current condition. We prevent people from making copies of creative works by threatening to punish the infringers. The apparatus is more complex, but it functions in essentially the same way as my fantasy above.

As for the question about what is owned: the term “copyright” defines what is owned–i.e., the right to make copies. That term includes derivative works–e.g., JPEG files from which additional copies can be made. The right thus owned is as real as any other right. For example, the right to own property reduces, in the end, to the right to exclude other persons from that property: to control the conduct of other persons. And that is what “copyright” gives us: the right to control the conduct of others.

In summary: copyright exists because some number of people in the United States (as in other countries) agreed that it should exist. Perhaps those people were wrong. Those who are opposed to the current laws creating and governing copyright can prevail only by convincing some relatively large number of (the right) people to agree with them. And to do so, the anti-copyrighters will have to engage in policy debates.

  • Actually, “policy debates” are fundamentally philosophical: such debates pose questions regarding what is better for individuals and society. Moreover, I tend to believe that the only philosophical “truths” that we have are simply matters of agreement.
46

Dan: I agree with you for the most part. My statement about policy, and what I was trying to avoid was “Copyright should be 14 + 14, or it should be life +10”, more or less I was looking for why people believe the way they do about copyrights, and less arguing about WHAT they believe about copyrights, because there are plenty of other concurrent threads addressing that very issue.

That’s all that was meant by that. As you can see however, there are others, at least to the limited understanding I have of their posts, that believe copyrights are owned inherently by the creator. Which I think is a fallacy, and you post seemed to agree with.

Erek

47

I’ll certainly agree, mswas, that “copyright” is not owned inherently by anyone, and I apologize to the extent that I misunderstood your position. Of course, we could get into an interesting debate over the question whether anyone owns anything inherently. For example, do I inherently “own” my body, or is my (limited) right to control my body a matter of agreement?

Actually I don’t want to discuss that. Such arguments make my head hurt. Well, at least I think that it’s my head . . .

I guess that this is my more important point: Yes, the right recognized by copyright law exists as a matter of agreement. But that doesn’t make it any less of a right than are most other rights. All are, I think, eternally subject to debate.

48

Yeah, I think we’re pretty much in agreement.

49

Maybe because she produced it by the sweat of her own brow.

Marc

50

Currently, dances can be copyrighted if they’re intended to be performed for an audience. I agree with that philosophy: a public dance production is analogous to a play or a movie, but the societal benefit of a social dance is the ability for a person to perform the dance himself. If social dances could only be performed by people who paid royalties, they wouldn’t become popular enough to sustain a historical interest after the copyright expires.

What does the “copyright as reward for hard work” philosophy say about dances? If I spend months perfecting the Atomic Twist, which everyone at the club will surely want to copy once they see me do it, am I entitled to decide who else can perform it and when?

51

Is this the time to revist Anthracite’s Copyright Dilemma?

I’ve asked it before, and no one’s ever been able to give me a concrete answer of all points backed up by actual case law on each and every point. Which is one reason copyright law, as implemented, sucks. It’s supposed to be simple and straightforward, but it is not.

52

The answer is actually pretty simple. There is a world of difference between claiming you have rights in something, and actually having those rights. There are no legal restrictions on claiming something is protected by copyright, but if you actually decide to enforce those claimed rights, you have to prove them up. Registration confers some presumptions in this regard, but if you don’t meet the threshold requirements of creating an original work of authorship.

So, under the facts you provide, assuming that there really is no original contribution by the photographer, then there is no copyright in the original photograph. The book publisher can claim copyright over those elements that are original to him/her. In the case of an art book, that would not be the underlying images themselves, but it could be the selection of images, the arrangement of those images, any commentary associated with those images, and, of course, any images that the author himself or herself created.

The scanner has the least claim to copyright. He/she is not, as you say, contributing anything. There is therefore no original expression. If he/she reproduces only one image out of the book, then he/she is not infringing any copyright of the book publisher/author because, for the reasons discussed above, the author doesn’t have a claim of copyright in the original images separate and apart from the overall arrangement.

The website person is in the same position as the book publisher. He/she can claim a copyright in the arrangement and selection of images, but not in the images themselves (unless he/she created one or more of them).

The person clicking and downloading the image, to the extent they’re infringing anyone’s copyright, would be only infringing the copyright in the original photograph held by the original photographer. Under the facts you’re postulating, we’re assuming there isn’t any.

Again, these people may all think they have a copyright in all the stuff they’re using. Some may claim copyright out of simple ignorance. Others may claim it as a prophylactic to prevent any copying from their website, book, or whatever. (And to put people on notice). Doesn’t mean that at the end of the day, they’ll be able to prove up their rights.

53

And, she isn’t much of a criminal. Two important elements are missing - there isn’t a copyright, and no money was made through the copying.

The DOJ seems to think these elements are important.

I think that it is also worth noting that the original copyright in the book has nothing to do with whether the photograph can be copyrighted. The original copyright likely would have been in the expression contained in the words. That the copyright expired only matters if the photograph is of the text, rather than of the book. The dilemma here is whether a publisher can claim a copyright over the book for simply issuing a new edition of the old words.

The scope of copyright is for “in original works of authorship fixed in any tangible medium of expression”. (17 USC 501). In your example, we are to assume that the photograph fails to meet this standard. Most of the remainder of your dilemma is based on misunderstandings of what copyright law protects, as jeevmon explains. It should be worth noting, that a compilation can also be the subject of a copyright, if the compilation meets the sec. 501 standard. (see e.g., Feist Pub. v. Rural Tel. Serv., 499 U.S. 340 (1991)).

54

Quick clarification - profit is not required for a finding of liability. That’s why there is a way for a copyright owner to recover statutory damages. It’s a common misperception that so long as no money or other consideration changes hands, it’s OK to copy and distribute another’s work. Simply not true.

55

jeevmon, I think that we are referring to different sections of 17 USC. A finding of criminal liability requires making money:

I was referring to the description of Una’s heroine as a criminal. The scenario doesn’t include facts to suggest any criminal liability.

56

Um, no:

17 USC s 506(a) (with emphasis added):

(a) Criminal Infringement. -

Any person who infringes a copyright willfully either -

(1) for purposes of commercial advantage or private financial gain, or

(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.
So, if you either reproduce for purposes of profit or reproduce or distribute works having a value of more than $1000 (whether this value was realized or not), you’re subject to criminal liability. You have to act willfully, but actually making a profit is not a prerequisite to liability for either civil or criminal infringement.

57

Well, you see, the thoughtful answers provided thus far are the ones that I thought applied, and the ones which I thought were correct. But I know I have received different answers on this Board from people who were supposed to be in the know, and thus I have never really been able to feel totally safe assuming one thing or the other. Thus, my confusion, and my frustration which is conveyed via my post (which I apologize for, but I do get exasperated over it sometimes).

The important key in my suppositions is that, at each point in the chain of transfer, no substantive artistic or creative content is added or modified. And assuming that, I feel that from my armchair lawyer’s reading of copyright law, that I should be in the clear, completely, downloading scans of ancient art (and clearly out of all known copyright art) to organize in a not-for-profit website gallery.

And yet, every other online gallery owner has numerous dire warnings about how every single image is under THEIR copyright, and dire legal penalties will be inflicted on anyone who downloads “their” work.

And for works of the Great Masters, and those which are clearly out of all known copyright, that cannot be in line with either the letter or the spirit of copyright law - I think. :confused:

58

While that is a suitable answer it’s extremely unsatisfying.

Erek

59

-sigh-

The thread’s been officially hijacked. :smiley: