Intellectual property law

[Colon™]

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.

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what’s achievable, and there’s no reason why it cannot be modified when changes in technology, society etc renders it out of date.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.

[Vanguard]

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.

[Urban Ranger]

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.

[Colon™]

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.

[Ecthy]

Are the civ2 database files still intellecual property of kwang?

[Vanguard]

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.

[Adalbertus]

* 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.

[- Groucho -]

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:

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.

[Vanguard]

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".

[- Groucho -]

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?

[Vanguard]

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.

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.

[- Groucho -]

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.

[GePap]

Big whoop!

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.

[Vanguard]

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.

[- Groucho -]

Re: Big whoop!

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).