This article is completely wrong. I have read a few articles (I think there was one on TorrentFreak) on this point in the last few days that seem to completely misunderstand what property is and how intellectual and real property rights are related.
Firstly, 'property' is not a clearly defined concept. It has a series of features, which may not be present in all types of property. For instance, I might own real property which my local authorities put conditions on, forbidding me from building anything above three stories, or requiring a building permit before commencing works. Nobody would suggest that this is not my property though.
So what is property? Property at its core involves society granting one or more 'property rights' in respect of an object. Those property rights are all monopolies over certain things, such as a monopoly over possession, a monopoly over any profits etc etc. Each one of these rights can be individually cut off and assigned to a third party, or temporarily licensed to someone.
Which brings us to intellectual property, or more specifically in this instance, copyright. Copyright too is a grant of a series of monopolies rather than a single monopoly. The right to reproduce, the right to create derivative works etc are what is termed 'the exclusive rights' of copyright owners. What this article is describing is the exercise of those rights. Yes, when you purchase a DVD, you are not purchasing the underlying property. If you were, then you would be getting the film company's rights (which they may have spent hundreds of millions of dollars creating) for the very low price of $19.99 (or whatever you happened to pay for the DVD). Because they are granting you a licence, you get a limited licence for a fee.
If you don't like it, contact them directly and arrange terms of a different licence for a different fee. They have the power to do this because they own the property, not you. You might think you own the property but if you think harder about it, you own the physical DVD with its copy of the film, not the right to make unlimited copies of the film itself (which would amount to you owning the film, which is ridiculous).
The problem with Hollywood has nothing to do with some sort of fundamental flaw in the nature of copyright itself that we have failed to spot - it has to do with the failings of Hollywood to build a distribution model for the digital age that uses an online intermediary as a means of protecting property rights rather than suing individuals in a bid to make an example of people. It has to do with the fact that as Larry Lessig said, in the modern era, code is law - the software we create to protect things is more important than the laws we use to do so. The fact that it took so long for Netflix and Spotify to build businesses is proof of the fact that the code here hasn't kept pace with the law - if it had, we wouldn't have this problem. If the RIAA spent half their lobbying budget funding innovative new startups, they would have saved themselves a ton of money and we wouldn't be having this discussion.
I find your definition of property lacking. I find it lacking because it implies that there's some series of ones and zeros that I cannot inscribe onto my plastic disc.
Emphasis on the word my.
If I own something, then I have the right to alter it as I please, so long as doing so does not damage the property of another. Your definition of property does not let me do this, and so conflicts with property rights in general. I am forced to reject it.
Your reliance on society (by which you seem to mean government) to define property rights defies reason. Can society declare that my person belongs to someone else? I reject such notions.
So would you reject private parties agreeing to selling you an item with restrictions? For example, if I make a painting, and only agree to sell it to you if you agree not to do anything to it, how would you handle this? Would you say it is illegal for me to add such a restriction? Would you say any such clauses would be rejected (even if we both had agreed to them)? Any such restrictions would reduce property rights, it seems, because I am no longer allowed to privately agree to terms with other parties regarding the exchange of my property.
I am not a fan of copyright law as it stands by any means, but this article (and comment) seem to go to far.
The notion of "selling with restrictions" is a contradiction in terms. If the property is transferred to a new owner, then there can neither legally nor morally be any restrictions placed by the previous owner on how the new owner may use the property.
There are ways to shift custody of objects that would honor such restrictions that you speak of - but they are not a sale, nor are they exchange of property.
I have no problem with such an agreement, actually. I would have a problem with physical enforcement of it, but no problem with social ramifications for breaking it (something along the lines of a damaged credit report).
From the article: "(Some people would argue that even property as such is a governmentally-sanctioned private monopoly, in order to downplay the fact that the copyright monopoly stands in opposition to property rights, but that would not be what we mean by "property" and "monopoly" as concepts. If I own an umbrella, I control that umbrella. If I have a monopoly on umbrellas, I get to control everybody else's umbrella too, and get to call on the government to have that enforced.)"
I believe the above was meant to addresses your specific form of criticism.
I believe my right to exist stems from my "inalienable property right" to my own body. I can move it left and right and up and down. If someone were to try to take that away from me, I'd be pretty upset and I'd do more than write my representative.
Whereas, the basic idea of copyright is to encourage sharing of ideas - it doesn't actually have a basis as an inalienable or "moral right." In order to encourage sharing ideas, societies have been allowing the encroachment of imaginary property rights (a euphemism for the independent traditions of copyright, patents, and trademaks) on tangible and even inalienable property rights (making it uncomfortable to say the least). The Internet, however, has shaken even that basic premise: the Internet is full of creativity (not just copyright infringement). Only a fool would "buy" water in the rain.
We should not be allowing, condoning, or financially supporting, any unneeded encroachment on tangible rights, so IMHO we should dismantle copyright as we know it. What's more: copying itself has social value that should not simply be dismissed.
This whole conflict is about preserving the front-loaded pricing (CDs and DVDs that can sit on a store shelf) that the biggest music and movie publishers only became accustomed to this century, after the phonograph. (OK, the printing press was around a little longer before that, but scribes couldn't help read the book they were copying...) As awkward as it is for these biggest "creators" (distributors) to return to a gratuity system (beg? never!), this change only affects the biggest publishers and employers, not creators generally.
The moral argument for copyright is an illusion: it's a confusion of the right to privacy with the right to have monopoly control over distribution. I support the former but not the latter.
For independant artists and creators, the Internet is the best opportunity ever to realize their vision, to distribute it directly, and to capitalize on it directly... But the tip only comes after the meal.
I believe the long-term implications of this conflict were explored further by Cory Doctorow in the following:
This is indeed the 'correct' (or at least more correct) interpretation of what 'property' means in the digital context.
On the other hand, I can't help but wonder whether Hollywood and BigContent is trying to have it both ways. A big part of the problem is that BigContent tried very hard in the 90s and early 2000s to get it into the consumer's mind that intellectual property is analogous to physical or personal property. Remember those ads, like "Don't copy that floppy", or "You wouldn't download a car"? They deliberately (for obvious reasons) tried to make the same analogy.
And now, here they are, finally after more than a decade spent kicking and screaming and suing everyone in sight, are trying to adapt to the business models consumers have been waiting for - and now they come back and claim that "oh, we didn't really mean that this is like personal property at all - we're just giving you a limited license and we can take it away at any time!"
There's a certain degree of cognitive dissonance at work here, and if I was an "average" consumer I'd probably be a little bid confused and a little bit unhappy about the severely limited rights I've been given after all I've been hearing and what I've been used to.
The eBook industry is a good example - the oligopoly of publishers has managed to set the prices for eBooks at virtually the same prices as physical books, and in some cases even more expensive than physical books. Yet, the rights I have with my eBook are far less than with a physical book (recall the Kindle issues and the woman who had her access revoked).
Is this BigContent's new business model? Charge more for less rights? If so, I think the outrage is understandable (if not legally or philosophically well formed).
> What this article is describing is the exercise of those rights. Yes, when you purchase a DVD, you are not purchasing the underlying property.
This statement is utterly and completely false. You can examine the consumer protection laws in pretty much any first-world country to see that sale-of-goods laws and first sale doctrine both apply without mercy.
As your argument is based on the quoted premise, which is sadly factually incorrect, I read the rest of your objection to the article as logically failing.
When you buy something over-the-counter, it does become your property, in all its aspects. Any restrictions to your property rights over the object you bought are just that; restrictions of your property rights.
The copyright monopoly is one such restriction of your property rights.
Sale of goods refers to goods, which do not include intellectual property. The first sale doctrine refers to resale of goods which contain copies of intellectual property (such as books and DVDs), and refers only to the transfer of the limited licence embodied inside the good. It allows you to resell the DVD with licence attached, but doesn't allow you to copy the DVD at all. It doesn't grant you any additional rights that you didn't already have at the point of sale.
Please try not to be so aggressive when you don't know what you're talking about.
You do not buy a license when you buy a DVD. You buy the DVD, period. You buy the good. The physical item. Consumer protection laws are adamant about this.
There is no "limited license" embodied in the good. You buy the physical item and the whole physical item, in all its aspects. Courts have repeatedly rejected the notion that additional terms can be applied after the sale (and if I'm not mistaken, this is part of the first sale doctrine).
Monopolies such as the copyright monopoly are indeed not included in the over-the-counter purchase, nor did I claim they were. I am, however, stating that they limit the property rights to the good you have legally acquired.
I apologize for coming across as aggressive, but I can get frustrated when people are not clear on the concept of property and what you buy over-the-counter as defined by law (as opposed to what other limitations may apply to the property you have legally acquired), and assert things that are plainly false and misleading.
Copyright subsists automatically in the 'work' provided it meets the definition in the Copyright Act.
The license itself may be entirely separate from copyright. It can restrict your rights under copyright, or it can grant you more rights (provided that they own it), or it can restrict you from doing things not related to the copyright at all. The license is merely a contract. It's important to know that it's a contract, because there are legal protections and doctrines that apply only to contracts (i.e. the meeting of the minds).
On physical products sometimes it is located on the packaging (i.e. "shrinkwrap" contracts) - last time I opened a Microsoft Office DVD (not that recently) it was still printed on the package. Most software nowadays have their license agreements in the installation procedure, where you click "I Agree". For music/DVDs, sometimes that is less clear (sometimes there is no license at all). If there is no license, you are still bound by copyright law - that is, if you copy it, you're infringing the reproduction right, etc.
Then you have the reason why you haven't received an answer - your question is framed (almost deliberately) to have no answer. Copyright does not exist "in an object". It _is_ a state-enforced statutory right that "exists" in a "work" whether that work is a movie, music, software, book, etc. The "physical medium" you refer to is merely one copy of the "work" that is copyrighted. The work itself is necessarily incorporeal - it is an intellectual creation of somebody, and lies beyond the mere physical expression. You can do whatever you want with the box or medium - you are entitled to do that, except to the extent that you are limited by protection of the "work" that is copyrighted.
You'd show it the same way you prove anything in a civil case: with evidence that, on the balance of probabilities, shows that it's the case. That's nothing to do with copyright law specifically.
Copyright infringement occurs when you infringe on the (exclusive) right to copy, hence the name. Stealing DVDs doesn't create new copies, therefore it doesn't violate its copyright.
That's true in that case, but strictly it isn't quite true that any act that doesn't involve copying isn't restricted by copyright law.
E.g. in the EU, doing a public performance of a work is restricted by copyright, as is renting/lending to the public, though neither involves copying. (Don't ask me why someone thought it was a good idea to make copyright cover renting/lending, but there we are: http://goo.gl/WneMs ).
You're incorrect. When you buy a DVD, you're buying the physical plastic, and licensing the content represented therein.
And the first sale doctrine isn't a "consumer protection law." It's a judicial gloss on top of the copyright act that has never been codified into statute.
§109 was part of the 1976 Copyright Act, so first sale has been codified in statute for 36 years.
I don't think the Copyright Act suggests that every purchase of a medium containing a copy of a copyrighted work should be treated as a license rather than a sale. Instead, it says (§106) that the copyright holder "has the exclusive rights to do and to authorize" six particular acts in relation to the work, independently of having sold a particular copy (but not, apparently, other acts).
Comments
This article is completely wrong. I have read a few articles (I think there was one on TorrentFreak) on this point in the last few days that seem to completely misunderstand what property is and how intellectual and real property rights are related.
Firstly, 'property' is not a clearly defined concept. It has a series of features, which may not be present in all types of property. For instance, I might own real property which my local authorities put conditions on, forbidding me from building anything above three stories, or requiring a building permit before commencing works. Nobody would suggest that this is not my property though.
So what is property? Property at its core involves society granting one or more 'property rights' in respect of an object. Those property rights are all monopolies over certain things, such as a monopoly over possession, a monopoly over any profits etc etc. Each one of these rights can be individually cut off and assigned to a third party, or temporarily licensed to someone.
Which brings us to intellectual property, or more specifically in this instance, copyright. Copyright too is a grant of a series of monopolies rather than a single monopoly. The right to reproduce, the right to create derivative works etc are what is termed 'the exclusive rights' of copyright owners. What this article is describing is the exercise of those rights. Yes, when you purchase a DVD, you are not purchasing the underlying property. If you were, then you would be getting the film company's rights (which they may have spent hundreds of millions of dollars creating) for the very low price of $19.99 (or whatever you happened to pay for the DVD). Because they are granting you a licence, you get a limited licence for a fee.
If you don't like it, contact them directly and arrange terms of a different licence for a different fee. They have the power to do this because they own the property, not you. You might think you own the property but if you think harder about it, you own the physical DVD with its copy of the film, not the right to make unlimited copies of the film itself (which would amount to you owning the film, which is ridiculous).
The problem with Hollywood has nothing to do with some sort of fundamental flaw in the nature of copyright itself that we have failed to spot - it has to do with the failings of Hollywood to build a distribution model for the digital age that uses an online intermediary as a means of protecting property rights rather than suing individuals in a bid to make an example of people. It has to do with the fact that as Larry Lessig said, in the modern era, code is law - the software we create to protect things is more important than the laws we use to do so. The fact that it took so long for Netflix and Spotify to build businesses is proof of the fact that the code here hasn't kept pace with the law - if it had, we wouldn't have this problem. If the RIAA spent half their lobbying budget funding innovative new startups, they would have saved themselves a ton of money and we wouldn't be having this discussion.
I find your definition of property lacking. I find it lacking because it implies that there's some series of ones and zeros that I cannot inscribe onto my plastic disc.
Emphasis on the word my.
If I own something, then I have the right to alter it as I please, so long as doing so does not damage the property of another. Your definition of property does not let me do this, and so conflicts with property rights in general. I am forced to reject it.
Your reliance on society (by which you seem to mean government) to define property rights defies reason. Can society declare that my person belongs to someone else? I reject such notions.
So would you reject private parties agreeing to selling you an item with restrictions? For example, if I make a painting, and only agree to sell it to you if you agree not to do anything to it, how would you handle this? Would you say it is illegal for me to add such a restriction? Would you say any such clauses would be rejected (even if we both had agreed to them)? Any such restrictions would reduce property rights, it seems, because I am no longer allowed to privately agree to terms with other parties regarding the exchange of my property.
I am not a fan of copyright law as it stands by any means, but this article (and comment) seem to go to far.
The notion of "selling with restrictions" is a contradiction in terms. If the property is transferred to a new owner, then there can neither legally nor morally be any restrictions placed by the previous owner on how the new owner may use the property.
There are ways to shift custody of objects that would honor such restrictions that you speak of - but they are not a sale, nor are they exchange of property.
Cheers, Rick
I have no problem with such an agreement, actually. I would have a problem with physical enforcement of it, but no problem with social ramifications for breaking it (something along the lines of a damaged credit report).
From the article: "(Some people would argue that even property as such is a governmentally-sanctioned private monopoly, in order to downplay the fact that the copyright monopoly stands in opposition to property rights, but that would not be what we mean by "property" and "monopoly" as concepts. If I own an umbrella, I control that umbrella. If I have a monopoly on umbrellas, I get to control everybody else's umbrella too, and get to call on the government to have that enforced.)"
I believe the above was meant to addresses your specific form of criticism.
I've said it before, and I'll say it again...
"imaginary property" != "real property"
importanceof("real property") > importanceof("imaginary property")
I believe my right to exist stems from my "inalienable property right" to my own body. I can move it left and right and up and down. If someone were to try to take that away from me, I'd be pretty upset and I'd do more than write my representative.
Whereas, the basic idea of copyright is to encourage sharing of ideas - it doesn't actually have a basis as an inalienable or "moral right." In order to encourage sharing ideas, societies have been allowing the encroachment of imaginary property rights (a euphemism for the independent traditions of copyright, patents, and trademaks) on tangible and even inalienable property rights (making it uncomfortable to say the least). The Internet, however, has shaken even that basic premise: the Internet is full of creativity (not just copyright infringement). Only a fool would "buy" water in the rain.
We should not be allowing, condoning, or financially supporting, any unneeded encroachment on tangible rights, so IMHO we should dismantle copyright as we know it. What's more: copying itself has social value that should not simply be dismissed.
This whole conflict is about preserving the front-loaded pricing (CDs and DVDs that can sit on a store shelf) that the biggest music and movie publishers only became accustomed to this century, after the phonograph. (OK, the printing press was around a little longer before that, but scribes couldn't help read the book they were copying...) As awkward as it is for these biggest "creators" (distributors) to return to a gratuity system (beg? never!), this change only affects the biggest publishers and employers, not creators generally.
The moral argument for copyright is an illusion: it's a confusion of the right to privacy with the right to have monopoly control over distribution. I support the former but not the latter.
For independant artists and creators, the Internet is the best opportunity ever to realize their vision, to distribute it directly, and to capitalize on it directly... But the tip only comes after the meal.
I believe the long-term implications of this conflict were explored further by Cory Doctorow in the following:
http://www.youtube.com/watch?v=gbYXBJOFgeI
Do you also disagree with him?
This is indeed the 'correct' (or at least more correct) interpretation of what 'property' means in the digital context.
On the other hand, I can't help but wonder whether Hollywood and BigContent is trying to have it both ways. A big part of the problem is that BigContent tried very hard in the 90s and early 2000s to get it into the consumer's mind that intellectual property is analogous to physical or personal property. Remember those ads, like "Don't copy that floppy", or "You wouldn't download a car"? They deliberately (for obvious reasons) tried to make the same analogy.
And now, here they are, finally after more than a decade spent kicking and screaming and suing everyone in sight, are trying to adapt to the business models consumers have been waiting for - and now they come back and claim that "oh, we didn't really mean that this is like personal property at all - we're just giving you a limited license and we can take it away at any time!"
There's a certain degree of cognitive dissonance at work here, and if I was an "average" consumer I'd probably be a little bid confused and a little bit unhappy about the severely limited rights I've been given after all I've been hearing and what I've been used to.
The eBook industry is a good example - the oligopoly of publishers has managed to set the prices for eBooks at virtually the same prices as physical books, and in some cases even more expensive than physical books. Yet, the rights I have with my eBook are far less than with a physical book (recall the Kindle issues and the woman who had her access revoked).
Is this BigContent's new business model? Charge more for less rights? If so, I think the outrage is understandable (if not legally or philosophically well formed).
> What this article is describing is the exercise of those rights. Yes, when you purchase a DVD, you are not purchasing the underlying property.
This statement is utterly and completely false. You can examine the consumer protection laws in pretty much any first-world country to see that sale-of-goods laws and first sale doctrine both apply without mercy.
As your argument is based on the quoted premise, which is sadly factually incorrect, I read the rest of your objection to the article as logically failing.
When you buy something over-the-counter, it does become your property, in all its aspects. Any restrictions to your property rights over the object you bought are just that; restrictions of your property rights.
The copyright monopoly is one such restriction of your property rights.
Sale of goods refers to goods, which do not include intellectual property. The first sale doctrine refers to resale of goods which contain copies of intellectual property (such as books and DVDs), and refers only to the transfer of the limited licence embodied inside the good. It allows you to resell the DVD with licence attached, but doesn't allow you to copy the DVD at all. It doesn't grant you any additional rights that you didn't already have at the point of sale.
Please try not to be so aggressive when you don't know what you're talking about.
You do not buy a license when you buy a DVD. You buy the DVD, period. You buy the good. The physical item. Consumer protection laws are adamant about this.
There is no "limited license" embodied in the good. You buy the physical item and the whole physical item, in all its aspects. Courts have repeatedly rejected the notion that additional terms can be applied after the sale (and if I'm not mistaken, this is part of the first sale doctrine).
Monopolies such as the copyright monopoly are indeed not included in the over-the-counter purchase, nor did I claim they were. I am, however, stating that they limit the property rights to the good you have legally acquired.
I apologize for coming across as aggressive, but I can get frustrated when people are not clear on the concept of property and what you buy over-the-counter as defined by law (as opposed to what other limitations may apply to the property you have legally acquired), and assert things that are plainly false and misleading.
Cheers, Rick
Ive asked this question plenty of times, with no answer.
Where does the copyright 'license' exist at? Is it in the medium, the UPC, the box, or perhaps more intangible than that?
Why aren't thefts of media (music/DVDs/games) filed as copyright infringement due to lack of meeting of the minds?
Copyright subsists automatically in the 'work' provided it meets the definition in the Copyright Act.
The license itself may be entirely separate from copyright. It can restrict your rights under copyright, or it can grant you more rights (provided that they own it), or it can restrict you from doing things not related to the copyright at all. The license is merely a contract. It's important to know that it's a contract, because there are legal protections and doctrines that apply only to contracts (i.e. the meeting of the minds).
On physical products sometimes it is located on the packaging (i.e. "shrinkwrap" contracts) - last time I opened a Microsoft Office DVD (not that recently) it was still printed on the package. Most software nowadays have their license agreements in the installation procedure, where you click "I Agree". For music/DVDs, sometimes that is less clear (sometimes there is no license at all). If there is no license, you are still bound by copyright law - that is, if you copy it, you're infringing the reproduction right, etc.
Congratulations. You highlighted a misuse of the word license, and ignored the underlying idea that still is not answered.
"Where does the copyright exist at? Is it in the medium, the UPC, the box, or perhaps more intangible than that?"
Thought I was pretty clear I was not talking about a EULA or similar.
Then you have the reason why you haven't received an answer - your question is framed (almost deliberately) to have no answer. Copyright does not exist "in an object". It _is_ a state-enforced statutory right that "exists" in a "work" whether that work is a movie, music, software, book, etc. The "physical medium" you refer to is merely one copy of the "work" that is copyrighted. The work itself is necessarily incorporeal - it is an intellectual creation of somebody, and lies beyond the mere physical expression. You can do whatever you want with the box or medium - you are entitled to do that, except to the extent that you are limited by protection of the "work" that is copyrighted.
Then how do you prove your copy is legitimately made copy from the rightsholder?
You'd show it the same way you prove anything in a civil case: with evidence that, on the balance of probabilities, shows that it's the case. That's nothing to do with copyright law specifically.
Copyright infringement occurs when you infringe on the (exclusive) right to copy, hence the name. Stealing DVDs doesn't create new copies, therefore it doesn't violate its copyright.
That's true in that case, but strictly it isn't quite true that any act that doesn't involve copying isn't restricted by copyright law.
E.g. in the EU, doing a public performance of a work is restricted by copyright, as is renting/lending to the public, though neither involves copying. (Don't ask me why someone thought it was a good idea to make copyright cover renting/lending, but there we are: http://goo.gl/WneMs ).
You're incorrect. When you buy a DVD, you're buying the physical plastic, and licensing the content represented therein.
And the first sale doctrine isn't a "consumer protection law." It's a judicial gloss on top of the copyright act that has never been codified into statute.
The first sale doctrine is statutory as well as judicial. See 17 USC §109 (http://www.law.cornell.edu/uscode/text/17/109).
§109 was part of the 1976 Copyright Act, so first sale has been codified in statute for 36 years.
I don't think the Copyright Act suggests that every purchase of a medium containing a copy of a copyrighted work should be treated as a license rather than a sale. Instead, it says (§106) that the copyright holder "has the exclusive rights to do and to authorize" six particular acts in relation to the work, independently of having sold a particular copy (but not, apparently, other acts).