RE: Why DRM exists [was Re: Flame Linus to a crisp!]

David Schwartz
2003-05-01T19:36:53Z

> David Schwartz wrote:

> > All of these right conflicts are resolved by property
> > rights. Yes, you can
> > keep and bear arms on your property, but you can't let a bullet
> > fly onto the
> > circle K. Yes, you can smoke in your house or someplace under
> > your control,
> > but I can designate my house smoke free if I want to.

> Free market capitalism _appears_ to tend towards a structure where the
> bulk of property becomes owned by a few owners, and the majority of
> owners own very little property.
>
> So it's appropriate for rights to be distributed like that too?
>
> For example, suppose you own _all_ the land I can travel to. Then my
> right to not be shot by you is not protected at all. I do not think
> that is an appropriate resolution of rights.

While this is an interesting defect in my analogy, it's not relevant to
copyright because here we're talking solely about property wholly created.
So the alternative to my owning all the land you could travel to would be
that land not existing.

> > The author's right to profit from his creation is about as
> > absolute a
> > property right as you can imagine.

> For some kinds of profit, I agree. For other kinds of profit (read:
> coercion over others), I disagree.

As I made clear, your right to profit to the idea is the same type of right
as your right to do what you want with your bat. It doesn't include taking
it onto my property to break my windows.

> And if there are two authors who independently create something
> similar? The rights do not resolve so long as both authors demand
> that the other does not profit. The only resolution is when both
> authors view cooperation as a satisfactory kind of profit.

Since we're talking copyright here and not patent, two independent
developers would both have equal right to authorize the use or distribution
of the idea.

> I truly do not believe I have that "absolute property right", much as
> I would like it. If I write a program or create a new kind of
> technical device, I would like to profit from that. But I do not
> think I would be allowed to, as I would be pursued into oblivion by
> more powerful entities than I.

You have the right to walk the streets at night with hundred dollar bills
danglnig out of your pockets and nobody has the right to steal the money
from you. That doing so is stupid and will likely make you the victim of a
crime doesn't change your right one iota. Heer we see a difference between
rights that are both legal and moral and what you can practically achieve.

Yes, it's a defect in our legal system that wealthy powerful people can
manipulate it with extreme effectiveness. Yes, it's a defect in our
legislative system that companies like Disney can exert enormous control
over what laws are passed. But these aren't really copyright issues in
principle.

> But then, I truly believe it is conceptually impossible to create
> something which has no connection with what has come before. So I
> would not claim it as absolutely mine anyway, unless I had an agenda
> to fulfull...

This is just equivocation on the "it". Legally, the "it" you own is not any
particular word or 'diff' output, it's the original creative effort that you
added. If I translate Hamlet into Polish, there is no physical way to
isolate my contribution from Shakespeare's, but that doesn't mean we don't
understand that there is creative effort that you added and that the total
work contains your creative effort and Shakespeare's.

This may be confusing for people not familiar with intellectual property
law. But trust me (or do some research or talk to an intellectual property
lawyer), it creates no legal problems or problems of principle whatsoever.
Your copyright rights to what you produce in no way affects what anyone can
do with, or what you can do to, anything that came before you.

DS