PRO-IP, Rights, and the Roots of Copyright Opposition

by | Nov 16, 2008 | Intellectual Property

President Bush recently signed into law the “PRO-IP” bill, an act for “Prioritizing Resources and Organization for Intellectual Property.” The purpose of the bill is to enhance remedies for violations of intellectual property laws. The law creates a copyright protection office in the executive branch of government and provides for more extreme penalties for pirates. […]

President Bush recently signed into law the “PRO-IP” bill, an act for “Prioritizing Resources and Organization for Intellectual Property.” The purpose of the bill is to enhance remedies for violations of intellectual property laws.

The law creates a copyright protection office in the executive branch of government and provides for more extreme penalties for pirates. The level of the penalties is a secondary issue; the most important thing about this law is the creation of a proper authority for protecting intellectual property–and the fact that this law makes a much-needed moral statement.

Antagonism to the PRO-IP Act has focused in part on the fact that it was backed by “big content,” including the Recording Industry Association of America and the Motion Picture Association, thus portraying the issue as a war between pressure groups, with large corporations as the ones who happen to have won. But this misses the principle of the matter, that the creator of a piece of intellectual property owns the product of his work.

If a baker bakes a loaf of bread, he therefore owns it, and anyone who wishes to acquire the bread must do so by meeting the baker’s terms. The baker may set any price he wishes for it–even a high price if he so chooses. It is also within his rights to give it away for free, which he might do for promotional purposes. But in all cases, it is the baker who sets the terms for acquiring his creation. No one has the right to acquire the bread in disregard of the baker’s wishes.

The same is true of music, movies, software. The fact that it is easier to copy these things does not eliminate the creator’s sovereignty over his own product. The price of his work, even if it is $0, is his to set.

A major root of the opposition to copyright is the altruist morality–the premise that self-interest is evil and that sacrificial service to others is the moral ideal. This premise makes people antagonistic toward selfish rights. And it gives them a rationalization for piracy: according to the premise of sacrifice, it is morally good for creators to give things away for the benefit of others–and if sacrifice is the imperative, the question of complying with a creator’s terms doesn’t even enter one’s mind.

Think for instance of the way in which the press vilified the RIAA when it brought lawsuits against file-sharers, and threw a pity-party for the defendants. The “greedy,” self-interested, profit-seeking businessmen were regarded as inherently suspicious even though they were defending the rights of music creators whom they lawfully represent, while some destitute single mother in middle America (who was not “greedy”?) was portrayed as a helpless victim, with no mention made of the fact that she engaged in theft.

What is needed is a stern reminder that the Constitution protects not the Robin Hood type of theft, but the right of the individual to pursue his own happiness by means of his own work.

In order to grasp the concept “property rights”–the idea of ownership, which is a matter of moral justice–one must function conceptually. The same toaster has a different moral and legal status in the hands of a man who paid for it, versus the hands of a thief as he runs away. Possession is not everything, since the thief possesses it wrongly. Rights are not a matter of the physical position of the object, but of ownership–of moral status.

In the case of intellectual property, the need for conceptual thought is particularly acute. An author’s right to his novel, a composer’s right to his composition, a filmmaker’s right to his movie–these rights are more abstract still. If you buy a copy of Joe Smith’s novel, you own that copy. But Joe Smith owns the particular sequence of words that are printed in that novel. So you have the right to use your copy as you wish, but you do not have the right to create a new copy of that sequence of words.

Suppose you own a copy of the novel “The Grapes of Wrath” and also an audio-book version on CD. You own both of those physical objects, and can give the book to your mother and the CD to your brother if you wish. The author, on the other hand, owns what is common to both of those. He owns the particular sequence of words embodied in the book and the audio-book. The forms of these two things are different: one form you look at, the other you hear. But both of them are instances of the same piece of intellectual property, the same novel, “The Grapes of Wrath.”

Copyright is a matter not of what a monkey sees looking at a page full of words, but of what a human mind sees. Unlike a monkey, a man is able to grasp the particular meaning expressed in particular language.

So a creator’s right is not per se to the particular physical instance, but to the creative content that is embodied in these objects. And the only practical way for a creator to control and profit from his work is for him to hold by right the power to decide when, where, how and under what conditions new physical instances of his creation may be made and distributed. That is the meaning of the right to copy.

These facts and distinctions have no reality for, and are completely unconvincing to, a person who does not think. Unfortunately, that category includes a very large number of Americans today. The anti-thought mentality comes about as a combination of personal lethargy and evasion, and an educational system that stultifies the mind.

A large portion of the guilt for the piracy problem lies with the American educational system. This is not primarily a matter of the content of education, but the method. For decades the dominant approach to teaching in America has been Progressive Education, which holds emotion and socialization as primary, and facts and logic as secondary–or even denounces facts and logic as repressive. Americans have been taught to be driven by emotion and to cast off thinking as a restrictive straightjacket. That is where the hippies came from.

Combine that with a lot of personal immorality–meaning refusal to think–and the result is a widespread practice of operating by whim. The practice of controlling one’s own choices and behavior by reference to moral principle is completely alien to the hippie mentality. This mentality’s automatized method–as a result of his own shortsighted laziness and as a result of years of schooling that encouraged shortsighted laziness–is to see something, desire it, grab it. It is the same method as that of a spoiled child or a pre-civilized savage.

It costs the creator nothing, these types argue, to copy one piece of software or music. What harm does it do? First of all, the very question evades the existence of anything other than that which immediately stares into the pirate’s passive face: in a few mouse clicks he is able to have the content he wants. He is at best ignorant of the actual costs involved in creating the content. What about the cost of the musician’s years of training, the income he forewent in order to spend the time developing his skills and creating his music, the cost of music paper, his instrument, the recording expenses? And let’s not forget the cost of marketing, without which the pirate could hardly know about the content he so nonchalantly expects to take for free.

What harm does it do, at root? Man lives by the productive work of his mind. He creates and he trades his product. Trade is by mutual voluntary agreement. A unilateral taking is the opposite of a fair trade. The pirate deprives the creator not only of the relatively small amount of money to be paid for the product. He deprives the creator of his very means of living, his ability to control, trade and profit from the work of his mind. That is a crime legally, morally, and on the deepest philosophical level, metaphysically. It is a matter of the creator’s ability to maintain his own existence.

What the pirate fails to grasp is that to take or “share” copyrighted content in disregard of the creator’s wishes is to kill the creator’s capacity to live.

The pirate’s desire for the content makes him act to destroy its source.

The PRO-IP Act is one much-needed remedy. As Tom Donohue, President of the U.S. Chamber of Commerce, stated: “By becoming law, the PRO-IP Act sends the message to [intellectual property] criminals everywhere that the U.S. will go the extra mile to protect American innovation.” It is a welcome law and a welcome message.

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M. Zachary Johnson is a composer and musicologist living in the New York City area.

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