Can you own an idea?

[Callypsa]

You can find the original of this message, in its entirety, on the d20Software forum in the thread "File Discrimination". Just in case anyone is interested in how this all got started.

Originally posted by The Sigil

Ah, but to take that apple without compensation is an infringement upon the grocery store's natural right to property. You have the right to life, liberty, and property, so long as it does not infringe upon the rights of others. My personal definition (YMMV) of "infringing upon the property rights of others" is "any action that directly interferes with your ability to use - and strictly 'profit from' is not considered 'use' - your property."

Taking an apple from a grocery store directly infringes on their right to property. A grocery store which owns an apple may do with the apple as they please (they may sell it, they may throw it away, they may make it into applesauce, etc.) If I take it from them, I deny them the use of that apple.

Taking an idea, by contrast, does not directly infringe upon another's right to property. A person who has an idea may do with it as he pleases - he may write it down, he may attempt to sell the writings, he may dictate it, he may stay silent, and so on. My use of his idea in no way keeps him from doing any of these activities (though if he chooses to attempt to sell his writings, his profit margin may decline). Therefore, stealing ideas is NOT an infringement on the rights of others (under my admittedly strict definition).

Note one thing there - you have the right to ATTEMPT to sell, but NOT the right to SELL, property. There is *no guarantee* that people must buy from you. The store may attempt to sell the apple, but there is no guarantee that they will.

Therefore, taking and freely distributing your idea is NOT an infringement on your rights. If you say, "you cut into my profits" - I point out that you were never guaranteed those profits in the first place. Just as you can try to sell apples for $40 each, but don't go suing the grocery store for your "lost profits" when they sell them for (much) less. It gets murky here with the concept of "my idea" but I am of the opinion that there is no such thing as "my idea" - merely discovering something first does not make it uniquely yours.

However, I personally find it extraordinarily insulting that artists, writers, and other "creators of intellectual property" feel that their contributions are so valuable to the world that they ought to be able to do work once and be paid for it forever. It's an elitist attitude that suggests that they feel the world somehow owes them for their "brilliance." To me that is the height of laziness and greed. Screw people who think the world owes them a living.

To continue receiving money over time, most of us in the economy are required to continue producing work over time. You don't pay the plumber who installed your toilet a fee every time you flush it. He is paid once for the initial work and gets no residuals. You don't pay the doctor who set your broken arm every time you use that arm. If the plumber wants to continue making money, he must continue to work and install more toilets. If the doctor wants to make more money, he must continue to work and set broken arms. In other words, "a continuous flow of money into your pocket requires a continuous expenditure of work on your part."

For some reason, the "owners" of "Intellectual Property" want to be above this concept. They feel that a one-time expenditure of work (the writing of a book or drawing of a picture or recording of a song) should translate into a continuous flow of money. Does anyone else find this elitist and/or insulting? I say that those who create intellectual property should be asked to continue contributing work to society just like the rest of us.

The closest thing that we see in the material world to this concept is that of "leasing" or "renting" of land/real estate property. But this also requires a continued expenditure of work on the part of the landowner... if the land owner does not expend work maintaining and/or improving the land, it becomes unusable and his flow of income will stop (because he will have no tenant).

My suspicion - and I have no way to confirm this - is that you, Sm!rk, are among (or consider yourself among) the "creators" of "intellectual property." You have a strong vested interest in the subject, rather than a strictly ideological one. Of course a creator of intellectual property wants to be continuously paid for a one-time expenditure of work - who wouldn't? However, unless you pay royalties to your plumber when you flush the toilet, to your dentist every time you eat, and so on, your "ideology" is every bit as hypocritical as you claim mine to be if I denounce the RIAA while purchasing their stuff (which I no longer do).

This is really no longer on-topic at all and should admittedly be taken to e-mail. If you wish to e-mail me, please feel free to do so at the_sigil@hotmail.com . Sorry if I sound a little hot, but as I said, the attitudes and assumptions of those who support Intellectual Property are usually a bit insulting to me.

Perhaps I have it wrong and you feel that there is a compelling moral or ethical reason for Intellectual Property that I don't know about. If that is the case, I apologize for taking offense at your position.

--The Sigil

And now, with that out of the way, let the games begin.

~Callypsa

 

[Callypsa]

First off, I would like to say up front that I am responding to this post from the standpoint of an artist, and as a result am addressing these statements only as they relate to my profession.

I will admit that my first response was to be insulted by the assumptions/insinuations you made in your post. However, my naturally generous and forgiving nature has reasserted itself and reminded me that, like so many not in the field (of art), you probably just don't understand how it all works.

It gets murky here with the concept of "my idea" but I am of the opinion that there is no such thing as "my idea" - merely discovering something first does not make it uniquely yours.

I agree that having an idea does not give you exclusive rights to it. People have ideas every day. Thousands of them even put them down on paper. As an artist, I have many hundreds of ideas, which I discard or keep at my leisure. I cannot claim any of those ideas for my own, and thus prevent some other artist from using the same idea. For example, I come up with an idea for a painting of a tiger in a jungle. I am sure that hundreds or thousands of other artists out there have had the same idea. The difference is in the execution of the piece. Every artist has a style, and regardless of whether two artists have the same "idea", the end result will ALWAYS be different, because they are two different minds with two different brands of creativity. They have the same idea and express it differently.

Another example....The artist Wyland has gotten very famous painting dolphins and whales on the sides of buildings. That doesn't mean he can prevent anyone else out there from painting dolphins and whales. He can't even prevent them from accepting a job to paint a dolphin or whale mural on the side of a building. He does have some right to complain if someone takes one of his existing paintings, which he put time and effort into creating, and copies it brush stroke for brush stroke onto the side of the building, and then accepts money for the job.

However, I personally find it extraordinarily insulting that artists, writers, and other "creators of intellectual property" feel that their contributions are so valuable to the world that they ought to be able to do work once and be paid for it forever. It's an elitist attitude that suggests that they feel the world somehow owes them for their "brilliance." To me that is the height of laziness and greed. Screw people who think the world owes them a living.

To continue receiving money over time, most of us in the economy are required to continue producing work over time. You don't pay the plumber who installed your toilet a fee every time you flush it. He is paid once for the initial work and gets no residuals. You don't pay the doctor who set your broken arm every time you use that arm. If the plumber wants to continue making money, he must continue to work and install more toilets. If the doctor wants to make more money, he must continue to work and set broken arms. In other words, "a continuous flow of money into your pocket requires a continuous expenditure of work on your part."

For some reason, the "owners" of "Intellectual Property" want to be above this concept. They feel that a one-time expenditure of work (the writing of a book or drawing of a picture or recording of a song) should translate into a continuous flow of money. Does anyone else find this elitist and/or insulting? I say that those who create intellectual property should be asked to continue contributing work to society just like the rest of us.

1. I may be wrong, but I don't think art is "intellectual property" It is property. It is a physical manifestation of an idea, not the idea itself. A painting exists as an object, not an idea. Therefore it is my property.

2. I think we all agree that a person should be paid for what they do, correct? So then, how does one put a value on an art piece? Let's use the plumber analogy again shall we? A plumber gets paid by the hour to fix your toilet. Well, sort of. An apprentice plumber will get less per hour than a plumber who has been doing it for 20 years. Additionally, a plumber who is known for his efficient and thourough work can charge higher prices if he so desires, because he is more in demand. An artist isn't much different. Most paintings are priced based on that same theme. How many hours did the artist spend creating the piece? 10, 25, 100? How much per hour does the artist get paid? Well, that can vary based on experience, quality, efficiency, and demand.

3. As a result of a very logical pricing scheme, some art can be valued very high. Some clients cannot pay the full value up front and so fall back on royalties. It's like paying in installments. The upshot for the artist is they might get more money than being paid upfront. The downside is they don't get paid for their work right away.

4. A person with a regular job, and I use regular in the sense of a salaried or wage earning position, does have to work on a regular basis, and is compensated accordingly with a weekly or bi-weekly paycheck. A freelance artist is not. They must determine the value of their work and wait to receive the full payment for it. I fail how this could be classified as laziness or greed.

5. There is no such thing as a royalty/liscencing contract that lasts forever.

I think I have rambled enough for now. I also think I have made my point. If I haven't I can always try again later.

~Callypsa

 

[Blacksad]

3. As a result of a very logical pricing scheme, some art can be valued very high. Some clients cannot pay the full value up front and so fall back on royalties. It's like paying in installments. The upshot for the artist is they might get more money than being paid upfront. The downside is they don't get paid for their work right away.

That's the strange part IMO

If I want to party, I have to pay for the music on which people will dance, and no matter the number of party, I won't ever have the right to use this music without paying.

Unless I buy the full right of the music directly to the owner, but most of the time it (Universal) doesn't want.

That's similar to loaning a car, except that in the loaning there is a cost to maintain the car, and the car will be changed once its too old.

Honestly, artist wouldn't make a living if there wasn't royalities, and I think it was meant as such, in order to have more artist producing art. Though the system is somewhat fudged, with Universal having almost a monopoly and all the distribution means (Vivendi-Universal), smaller company weren't able to make a living, it has changed back recently, the music industry loose sales every years thanlks to mp3, but strangely enough smaller company have seen an increase in sales, so we're almost back to what was intended except that some country have taxes on blank CD to pay artist (and how this tax is distributed isn't clear at all).

Also, a painting could be sold indefinetly (during several century), but its royalties can only be sold during a set period of time.

5. There is no such thing as a royalty/liscencing contract that lasts forever.

They are lifelong now, so it doesn't really matter for the artist, though it mights bother her children.

 

[Morrus]

But if that were how it worked legally, there would be no D&D, no cool novels, no cool TV shows or movies. Why would a company ever bother? Why would WotC release D&D if everyone else could legally do the same thing, copying the books? Why would Fox Studios make Buffy if they couldn't prevent everyone else from selling it themselves? Why woul corporations spend the time and money to invent cool new things?

Your position would make for a very dull world indeed. The only things available would be those you make/do yourself and those which you came across personally. The makers of, say D&D, are hardly going to spend the hundreds of thousands required to bring its existance to your attention. The only pepole playing D&D would be those who knew Gygax and Arneson when they wrote it and a small extended group of people who came across it by word of mouth.

 

[The Sigil]

Good points...

You raise some nice points. I myself am not in the field of art. It is, however, my stepfather's chosen profession, so I do have some idea as to how it works, even if I myself am not in the field (I regularly have discussions with him on how his business is going and on his model of the business world of art).

I agree that having an idea does not give you exclusive rights to it. People have ideas every day. Thousands of them even put them down on paper. As an artist, I have many hundreds of ideas, which I discard or keep at my leisure. I cannot claim any of those ideas for my own, and thus prevent some other artist from using the same idea. For example, I come up with an idea for a painting of a tiger in a jungle. I am sure that hundreds or thousands of other artists out there have had the same idea.

With you so far, and am in complete agreement.

The difference is in the execution of the piece. Every artist has a style, and regardless of whether two artists have the same "idea", the end result will ALWAYS be different, because they are two different minds with two different brands of creativity. They have the same idea and express it differently.

Again, I am in agreement with you on this as well.

Another example....The artist Wyland has gotten very famous painting dolphins and whales on the sides of buildings. That doesn't mean he can prevent anyone else out there from painting dolphins and whales. He can't even prevent them from accepting a job to paint a dolphin or whale mural on the side of a building.

Still agreeing with you.

He does have some right to complain if someone takes one of his existing paintings, which he put time and effort into creating, and copies it brush stroke for brush stroke onto the side of the building, and then accepts money for the job.

And here is where we diverge. If someone else takes the time to copy the painting brush stroke for brush stroke, did not that "someone else" do work in putting the paint to canvas (or building)? There are two phases (in my mind) to going from "idea" to painting - the "visualization" wherein the artist decides how to go from "idea" to painting - creating a list of "instructions on how to paint" if you will - and the rote mechanical process of moving the brush in the manner that visualization dictates. In my mind the true creative work occurs in the visualization, not in the rote mechanical swiping of brush along canvas. Otherwise lithographs and other such copies of original work would not be so simply produced.

1. I may be wrong, but I don't think art is "intellectual property" It is property. It is a physical manifestation of an idea, not the idea itself. A painting exists as an object, not an idea. Therefore it is my property.

I agree with you. The painting DOES exist as an object. However, assume I am some sort of savant painter who can see a painting once and duplicate it perfectly. If I see your painting and I go back to my home and create a perfect duplicate, in what way does this harm your property? You still have your painting and are free to do with it as you wish. The fact that I have another painting exactly like it does not diminish your painting's intrinsic value - though value due to rarity may be decreased. The value of your painting is unaffected by the existence of my copy in the same way that the value of your 1995 blue Honda Accord with standard features is unaffected by the existence of my 1995 blue Honda Accord with standard features.

2. I think we all agree that a person should be paid for what they do, correct? So then, how does one put a value on an art piece?

Here is the tricky question. I would be foolish to tell you that painters and similar artists get paid an amount commeasurate to hourly pay for the work they do. They get paid much less. That is not the issue, however - my rant was on copyright, not on physical works of art.

Let's use the plumber analogy again shall we? A plumber gets paid by the hour to fix your toilet. Well, sort of. An apprentice plumber will get less per hour than a plumber who has been doing it for 20 years. Additionally, a plumber who is known for his efficient and thourough work can charge higher prices if he so desires, because he is more in demand. An artist isn't much different. Most paintings are priced based on that same theme. How many hours did the artist spend creating the piece? 10, 25, 100? How much per hour does the artist get paid? Well, that can vary based on experience, quality, efficiency, and demand.

Very true - there is no set hourly wage. The artist can also create lithographs or other copies of his work and sell them as well. Is that his right? Yes. I think we're not as far apart as you may think.

4. A person with a regular job, and I use regular in the sense of a salaried or wage earning position, does have to work on a regular basis, and is compensated accordingly with a weekly or bi-weekly paycheck. A freelance artist is not. They must determine the value of their work and wait to receive the full payment for it. I fail how this could be classified as laziness or greed.

Here we are definitely arguing different points. You seem to be coming from the point of view of "artist" as we thought about it in grade school - someone who paints, draws, or illustrates. You are correct that these types of folks usually have to continue producing.

What my rant was on was individuals and (more importantly) companies that produce "works of creative art" that have no truly tangible form... those that produce writing (the book itself is a tangible object, but only has value because of the ideas it communicates), music (while a CD may be in tangible form, the music itself certainly is not), and software (again, the disk is in a tangible form, but the code and associated electromagnetic impulses are anything but tangible).

5. There is no such thing as a royalty/liscencing contract that lasts forever.

Oh, really? US copyright law is currently under challenge in court as being unconstitutional on the grounds that the US Constitution provides for "the ability of Congress to legislate so as to secure, for a limited time, rights for copyright holders" (I'm paraphrasing, but that is the gist of the clause) and since every few years, copyright law gets extended by another few years (to keep anything from going out of copyright), this is in effect an "unlimited amount of time" which is expressly against the mandates of the Constitution.

An individual artist may not have a royalty/licensing contract that lasts forever. However, with current copyright law, he must be paid royalties on his work forever - it never passes into public domain. Therefore, if I want to use your work and it's still under copyright, I have to pay royalties. Maybe I don't have a contract with you specifically, but under the mandate of law I have a contract with you to pay you if I use your work... even 70 years from now.

---

I honestly think we are a lot closer than you might think. My rant was not against an artist that creates tangible art. However, the problem is that current US copyright law also covers "derivative works." Tangible art is much more difficult to call "derivative" for the very reasons you suggest (everyone's is different). However, look at copyright law and understand how that works as far as derivative works, then look at how unevenly that is applied to art.

If copyright law were applied to art in the same way it is applied to writing, software, and music, here is how it would work (I'll use your Wyland example). I see that Wyland paints dolphins on the sides of buildings. I decide to use chalk to put outlines of dolphins on the sides of buildings. My style is rather different than Wyland's (obviously), and the dolphins look rather different (I'm a horrible artist and they're barely recognizable as dolphins). I do it for free, not accepting any money. Somebody interviews me about it, and I admit in a newspaper article that I saw Wyland's work and thought dolphins on the sides of buildings was cool.

WHAM! I am slapped with a lawsuit for millions of dollars of damages for copyright infringement, since my work, even though stylistically different, is obviously a derivative of Wyland's work (because I admitted he inspired me). Even though I received no money for my efforts, I cost Wyland money in that he has now lost the opportunity to make money on the buildings I painted. Furthermore, I am sued for millions in punitive damages because I am obviously malicious and trying to bring down Wyland's ability to make a living. Furthermore, anyone who puts dolphins on the sides of buildings has to pay Wyland royalties, because that's his idea they're using (just like you have to pay royalties to a songwriter when you sing his songs, even if you do a much different version). In fact, anyone who draws on buildings - even if it's not dolphins - was obviously inspired by Wyalnd. In fact, drawing dolphins on anything - not just buildings - is obviously inspired by Wyland and so if you do so you must pay him royalties. Have you grasped the ridiculousness of it yet?

Thankfully, it does not work this way in the world of art.

Unfortunately, in the world of the written word and in the software world and in the music world, this is EXACTLY the way it works. Song copyright owners (read: the RIAA) seem to think that the world owes them every time someone sings their song. What about the artisitic ability of the one who is doing the singing? Doesn't matter - and they'd better not make any changes or they're altering my copyrighted work without my permission. Copyright holders of published writing - including software, which is, in essence, a special type of writing (read: Software Companies) seem to think the world owes them every time someone writes something inspired by their work. Or, in the case of software companies, preferably they are owed something every time you read their work... and you had better read the latest version (but you'll have to pay for the upgrade).

The bottom line is, I'm fed up with companies that want to charge me every time I want to use something. They want me to rent it. I want to buy it and have the right to do with it as I please. If I buy a painting from you, I can take it home and throw paint thinner on it. I can take it home and draw moustaches on it. I can take it home and burn it. But the way companies want to restrict my rights as a purchaser is to rent it to me with no option to buy, enabling them to retain complete control... or charge me for damaging their property when I throw paint thinner on it.

If I decide to rent something, I'm fine with restrictions, but it is my opinion that anything that I can rent, I should have the right to buy (not necessarily at the same price, but at some price). More and more, artists (or more accurately, the giant corporations that represent them) want to rent their work instead of selling it. This is in my mind an assault on my right to property, as I should have the right to trade my property (money) for property (buy instead of rent) instead of "licensing agreements."

To be clear, my rant is not against the individual artist who struggles from paycheck to paycheck. My rant is against the companies who tie the artist down to screw him, buying his work (yes, they buy it, they don't rent it), then turn around and rent that work out to others rather than selling it, then complain when someone copies them. Artists - except the top 0.0001% of them (who have enough "pull" or "money" to keep their work and effectively or literally create their own company to "rent/license" the stuff) - get the shaft. Especially in an age where it costs a company pennies to stamp another CD and then they turn around and sell it for $17 (a CD) or $500 (commercial software). The offense doesn't even come there. It comes 50 years later when even though they haven't used their "IP" for decades, they will continue to fight to keep it in copyright, on the odd chance that someone MIGHT want to use it and therefore they can get paid a few more bucks. Bleh.

--The Sigil

 

[drnuncheon]

I'll say this as someone who has never been published.

I don't have a full time game designer working for me. But if I did, I'd feel justified in doing whatever I wanted with what he produced - including copying it and giving it out to everybody I met for free - because I bought the damn thing lock, stock, and barrel.

I certainly can't afford to pay a couple of dozen full time game designers and the hundred or so full time novelists it would take to support my reading habit. So I have to band together with other people who want the same thing, so that we can split the cost among ourselves. It drives the total price up but the price per person comes down dramatically.

People who copy books or software are getting a free ride. They're taking advantage of the system. They aren't just cheating the author, they're cheating me, because I paid for the stuff and they didn't. They're parasites, and they're sucking my blood.

Maybe in an ideal world, an author would be able to say 'this amount of money is a fair price for this work' and then everyone who wanted it would pay and divide up the cost equally, and everyone would be happy. But that's not going to happen - and even if it did, the leeches would find some other way to justify their behavior. ("I don't buy it because it's $#!+" is a favorite one...but it's apparently good enough $#!+ that you want it badly enough to cheat...)

So you know what? I don't think the creators of IP are "expecting a continuous cash flow" like Sigil assumes. It's not like they write one novel or gaming book and get $30,000 a year for the rest of their life. I think they're expecting to get paid for their efforts, and rather than pay them in one lump sum (like we pay the plumber or the dentist) they get paid by a bunch of people in partial payments. Everybody shares the cost.

Except for the leeches, of course.

J

 

[Blacksad]

[snip]
Your position [snip]

Was it addressed to me?

I just pointed what I found strange, and what happens with the music industry curently.

Did I say somewhere that every thing should be copied freely?

 

[The Sigil]

But if that were how it worked legally, there would be no D&D, no cool novels, no cool TV shows or movies. Why would a company ever bother? Why would WotC release D&D if everyone else could legally do the same thing, copying the books? Why would Fox Studios make Buffy if they couldn't prevent everyone else from selling it themselves? Why woul corporations spend the time and money to invent cool new things?

Simply put, because they would do it first and/or do it best.

Remember, Green Ronin publishing's Freeport series (the early portions of it anyway), are 100% OGC. In effect, that means that anyone can sell it themselves. Why haven't we seen an explosion of "ripoff" copies of Freeport stuff? Bastion Press's material is 100% OGC, yet I don't see "cheap ripoff" copies running around. Why not?

They were first, and they have done it best. The fact that Green Ronin and Bastion Press are both thriving, and their products are popular, despite the fact that it is legally possible to make cheap crappy copies, tells me that people ARE willing to pay for quality.

There's my counter-example to your argument, Morrus.

--The Sigil

 

[Staffan]

Personally, I think copyright is a good idea that has been taken too far - largely because of efforts by The Mouse. The exact length something remains copyrighted can be debated, but I definitely think it should be shorter than the "life of the creator+75 years" (or is it 90 years) that current law says. Me, I think something like 30 years is more appropriate, regardless of how long the creator lives.

 

[The Sigil]

People who copy books or software are getting a free ride. They're taking advantage of the system. They aren't just cheating the author, they're cheating me, because I paid for the stuff and they didn't. They're parasites, and they're sucking my blood.

An interesting twist, and I had not thought about it in those terms. That's the best counter-argument I have heard thus far. Excellent job, and I don't have a good counter for this except to say that "over time, since returns diminish to near-zero, why can't we limit copyright terms so that eventually everyone can use it?"

Maybe in an ideal world, an author would be able to say 'this amount of money is a fair price for this work' and then everyone who wanted it would pay and divide up the cost equally, and everyone would be happy.

I have said it elsewhere and I'll stand by it. I have in my mind a figure that is a fair price for my work on rpgnow.com, the Enchiridion of Mystic Music (i.e., the total amount of money I think it is fair that I make on it). Once I hit that threshold, I will release it into the public domain. I'm putting my money where my mouth is on this issue at personal cost to myself (even if it is a small cost, it is a real one just to show that I *do* stand by my principles). Call me stupid - but don't call me hypocritical.

So you know what? I don't think the creators of IP are "expecting a continuous cash flow" like Sigil assumes. It's not like they write one novel or gaming book and get $30,000 a year for the rest of their life. I think they're expecting to get paid for their efforts, and rather than pay them in one lump sum (like we pay the plumber or the dentist) they get paid by a bunch of people in partial payments. Everybody shares the cost.

I also am certain that companies (not so much individuals) sit on tons of "useless/no longer profitable" IP on the odd chance that someone wants to use it 40 years from now - so they can make an extra few bucks.

I am also of the opinion that in order to maintain copyright past, say, 7 or 10 years, a minimum number of copies of the CD/book/software/whatever must be produced each year (say 1,000 books, 100,000 CDs/software titles since CD creation is cheaper than dirt) or the copyright lapses. This would mean that IP that no longer sells enough to recoup the continued cost of maintaining the copyright (publishing costs for the books/CDs) goes into the public domain, thus preventing the "sitting on IP" problem I currently see.

I suppose my problem is that I'm just convinced that it is a right of members of a society a rich intellectual inheritance based on the collected intellectual efforts of that society over time - in the form of material flowing into the public domain - and am frustrated that this flow has basically been stopped since World War I on account of the creation of "Intellectual Property" and an appeal to protect the "starving artist" (who gets raped by the companies that hold the copyright to his stuff worse than he would if he could hold the copyright and have the stuff drop into public domain in 7 years). 7 year copyrights were good enough for the US's Founding Fathers, why aren't they good enough for us? Especially considering that back then, it took 7 years just to get your stuff out there and distributed whereas it takes about 7 minutes in the age of the internet...

--The Sigil