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Dumb Quote of the Day

I've written many times before about the fundamental absurdity of saying that intellectual property--creative works like books, movies, music, pictures and software--is the same as real, physical property. They're not: It says so right in the U.S. Constitution, and the laws of just about every country in the world make the same distinction.

But some people in Hollywood just won't let this idea go. Worse yet, some are now saying that protecting real property should take a backseat to protecting intellectual property. Yesterday, the ContentAgenda site reported on the launch of a new lobbying campaign to push for stronger "IP" enforcement. The piece contained this astounding quote:

"Our law enforcement resources are seriously misaligned," NBC/Universal general counsel Rick Cotton said. "If you add up all the various kinds of property crimes in this country, everything from theft, to fraud, to burglary, bank-robbing, all of it, it costs the country $16 billion a year. But intellectual property crime runs to hundreds of billions [of dollars] a year."

Not only is this a woefully inaccurate thing to say--it is not just impossible to prove that every pirated download would have been a paid sale otherwise, recent evidence may suggest otherwise--it's also breathtakingly offensive to anybody who's been the victim of a property crime.

Mr. Cotton, have you ever had your car broken into? Ever had somebody try to buy stuff with your credit-card number? Ever been mugged? I have. And I can assure you that crimes that deprive you of your own property--as opposed to the possibility (not certainty, but possibility) of an additional sale--are a bigger problem than people downloading movies, music or software without paying for it.

I would also submit that any elected leader who takes cops off the bank-robbery beat to send them after LimeWire users is going to have a short, painful career in politics.

By Rob Pegoraro  |  June 15, 2007; 3:19 PM ET
Categories:  Gripes  
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Comments

Too funny.

The music industry needs a fix of what the WaPo editorial implied the Pharmaceutical Industry is going through ...

Posted by: GTexas | June 15, 2007 5:23 PM | Report abuse

I'm not sure where you get your comment about the US Constitution distinguishing between IP and other property, other than the fact that it gives Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." So, for example, Congress grants 20 year exclusive property rights in inventions through the patent system.

How is that any different than the creation of any other property right? You may be right about IP rights not being as important to enforce as tangible property rights, but that's a policy choice, not something that comes about because intellectual property is fundamentally different than other types of property.

Posted by: IPLawyer | June 15, 2007 5:33 PM | Report abuse

Claims that every pirated transfer of content negates a full retail price sale is ludicrous, but then remember the music industry's campaign against used CD sales some 15 years ago. It's greed combined with sloth pure and simple. They should focus on turning out decent product for a reasonable price, realize that people want digital copies that will work in whatever system they choose to utilize, and then they will profit. As long as keep paying corporate radio stations to play schlock like Brittany Spears while demanding an arm and a leg from independent online stations and Hollywood keeps putting out garbage like the no longer so Fantastic 4 (a favorite comic from my youth); they are going to loose money. It's sad that they've chosen to joust at the windmills of online piracy rather than improve their product and distribution system.

Posted by: Norm | June 15, 2007 8:06 PM | Report abuse

intellectual property is a fundamentally different type of property than physical property. Our culture and tradition are proof that we hold the two as separate entities in the same class that are afforded different protections.

Posted by: Actually IPlawyer | June 15, 2007 8:31 PM | Report abuse

Rob, you are dead wrong. Intellectual Property is property. I have friends who were in bands and when I see their music used as background music to videos of kids riding on the tops of cars or beating each other up it makes me sick. You are nothing but a shill for the consumer electronics industry that wants music to be free so they can sell more gadgets. You must think the world is backwards because the vast majority sees the connection between theft of IP and real theft. But you know what, we're right and the law is on our side.

Posted by: DCer | June 15, 2007 8:59 PM | Report abuse

breathtakingly offensive to anybody who's been the victim of a property crime.
---------

How about Rob that I take all your columns and post them with your byline on a white supremacy website? Would that not be a REAL enough IP crime for you to be upset about? When my friends saw their song was used as background music for video of a young teenager getting beaten up, I promise you, it was more insulting to them and more painful to them than and to ME than when their van got broken into on tour and they lost a stack of replaceable tapes. In your twisted view, losing tapes is more important than losing one's self-respect. riiiight. makes sense, not.

Posted by: DCer | June 15, 2007 9:07 PM | Report abuse

Dumb Quote of the Day:

"I've written many times before about the fundamental absurdity of saying that intellectual property--creative works like books, movies, music, pictures and software--is the same as real, physical property."

They don't get much dumber than that.

So, Rob, it's worse to steal physical property (say a car) than it is to steal the creative work that enabled the creator to buy that car? Or enables him to feed and house his family?

The music industry's problems derive in large part from its concentration into a (very) few radio station chains and even fewer recording companies, guaranteeing that the tiny number of people who are making the decisions are concerned solely with marketability, rather than creativity. This is a formula for crap. But there is no way to argue that the ability to create perfect digital copies of a creative work has not had a huge negative impact on the bottom line of video and music companies, and more importantly, the creators themselves.

And on an important practical level, once the owner loses any monetary interest in enforcing his copyright, he also loses any interest in preserving the original elements that created the copyrighted work. Just take a look at the poor/fragentary quality of movies that have fallen into public domain -- Fritz Lang's Metropolis for example, where the best restored version in existence incorporates less than half of the footage of the original.

Posted by: rashomon | June 15, 2007 11:56 PM | Report abuse

I'm sorry, but some of y'all just aren't getting the point. Physical property endures, but intellectual property always evaporates at some point--copyrights have finite terms, remember? If you take my real property, I no longer have it; if you take my intellectual property, I still have it.

So, DCer, your friend can and should make a case out of the theft of his song in that video--but once its copyright expires, there's nothing his heirs will be able to do about it. Rashomon, the theft of a creator's work doesn't stop him from continuing to sell that work to other, honest customers.

I think just about every intellectual-property lawyer that I've talked to would regard these principles as first-semester-of-law-school material. It really puzzles me that some folks are still trying to argue otherwise.

- RP

Posted by: Rob Pegoraro | June 16, 2007 10:39 AM | Report abuse

OK, Mr. Cotton. Let's round up everyone who has ever quoted someone else without permission, or copied a CD to their computer/Ipod, and send 'em to jail. Guess what? There won't be anyone left outside of the cells, IP lawyers included.

Keep up the great work, Rob... and keep on fighting the good fight.

Posted by: Kevin McKnett | June 16, 2007 11:36 AM | Report abuse

You know, Rob, I'm definitely down with anything that wrests some small degree of control over the machinery of distribution out of the hands of the commercial music industry. But I'm having a hard time seeing the difference between your position and the view that once a work exists in digital form, enforcement of fair use is out of the question. Sure, the industry has made a real a** of itself by suing college students, but in no other field do commentators honestly suggest that the fruits of one's labor should be given away merely because it is technologically convenient for people to take it without paying.

If you go get your hair cut, you pay for the service. If you are entertained by an album for an hour, why should the person who provided you with that entertainment not receive some monetary reward?

I'm less concerned with legality than with the ethics of it. The idea of getting something for nothing is one of the oldest ideas out there, but what is new is that we have the means to do it without getting caught, and we have serious journalists arguing that the people who make the something (which other people are getting for nothing) have basically no recourse. It's insane. In every other area of society, we would say that theft is simply morally wrong, no questions asked. Here, IP thieves might almost be regarded as heroes for sticking Limewire up the industry's tush.

It's real simple. If you liked it when you downloaded it, buy the bloody cd. If you didn't like it, why did you download it anyway?

Posted by: James | June 16, 2007 3:29 PM | Report abuse

Rob,

I'm sorry, but you're the one who doesn't get it. Yes, copyrights expire. I believe the current law covers the lifetime of the creator plus 50 years. That is entirely fair. But your argument is that there is nothing wrong with taking the results of a creator's effort -- not 50 years after he dies, but the day that he releases it. That position by itself is morally indefensible. But to say that he can "continue to sell ... to other honest customers" is either disengenuous, naive or outright hypocrisy. The value of the creation depends on the size of the customer base. If that base shrinks by half because half of them think it's okay to steal it, than so does the creator's income. That is theft -- real and concrete.

Let's try another approach to get this through to you. There are two neighbors: Smith and Jones. Smith builds guitars for a living. Jones uses guitars to create music for a living. Smith's store is broken into, and 6 month's worth of his production is stolen. He's out half a year's income. At the same time, bootleggers steal half of Jones' customers, so the album he spent a year creating sells only half as many copies, so he loses half a years income. Your argument is that, somehow, Smith has suffered a greater loss. Get it now?

Posted by: rashomon | June 16, 2007 9:50 PM | Report abuse

"But your argument is that there is nothing wrong with taking the results of a creator's effort -- not 50 years after he dies, but the day that he releases it."

It would be terrible if I'd said that. But I didn't. I am not arguing here that stealing intellectual property is not a crime. I am saying that we should not shift law-enforcement resources from prosecuting physical-property crimes to go after intellectual-property crimes. I say that because I believe the theft of somebody's real property, in general, causes more damage than the theft of somebody's intellectual property.

(Remember, I'm also saying this as somebody who makes his living off his intellectual property.)

I enjoy this conversation, but I think it'll be much more productive if it doesn't have to yield a binary output. You can think that downloading music or movies without paying for them is unethical and illegal but also believe that it's not the worst problem in the world, or that we must enact a batch of new laws to combat it.

- RP

Posted by: Rob Pegoraro | June 17, 2007 4:12 PM | Report abuse

"You can think that downloading music or movies without paying for them is unethical and illegal but also believe that it's not the worst problem in the world, or that we must enact a batch of new laws to combat it." -- spoken like someone whose own intellectual property is protected by corporate lawyers retained by his newspaper :)

I agree with you that the way the record industry goes about it is ludicrous. We have a new technology that breaks the iron-fisted control over distribution. It's a predictable, but wrong, response for them to try to repress these changes. And I LOATHE that the industry tries to pass its retrogressive strategy as "fairness for the artist" when all they really care about is maintaining absurd profit margins without having to do their homework and adapt to a new world. (Not to mention that they rip off artists every bit as much as illegal downloaders.)

I'm all for new means of distribution that are symbiotic with filesharing AND ensure that the artists get their fair share.

The problem is that for most filesharing users, the ethos is very much "Why should I pay for it when I can get it for free?" When napster started charging fees, it lost its cool.

I'm not in favor of a binary outlook but I think this is what we get by default. When you oppose DRM in basically every form without further qualifying the statement, it sounds an awful lot like filesharing = good (which practically speaking means, ripping off the artist = good).

Where do you draw the line? 'Cuz I don't hear much more from you than "Get your filthy DRM paws off my downloads."

Posted by: James | June 18, 2007 11:12 AM | Report abuse

Notice any DRM around my intellectual property? Right, there isn't.

But I'm not anti-DRM under all circumstances. The existence of the loosely constructed DRM covering iTunes Store music downloads has not stopped me from repeatedly recommending the site and spending my own money there. In some uses, DRM is pretty much mandatory--I don't see how you can run a movie-rental site without it.

I just don't like DRM when it stops me from using stuff that I own. And I particularly despise it when it's forced upon me by some government mandate.

- RP

Posted by: Rob Pegoraro | June 18, 2007 12:36 PM | Report abuse

I have no wish or need to defend Mr. Cotton, but for the record and in the interests of clarity, neither Cotton nor my story mentioned downloading or copying. NBC/Universal has indeed taken some extreme positions on unauthorized file-sharing, social media, etc., but in this case Cotton was addressing the importation of counterfeit and bootleg physical goods.

In most cases, importing bogus goods is already, uncontroversially a crime and what the new coaltion is seeking is stricter enforcement of existing laws against it. Whether it represents a greater threat to the republic than bank robbery I'll leave to others to debate.

Paul Sweeting
Content Agenda

Posted by: Paul Sweeting | June 18, 2007 1:12 PM | Report abuse

" At the same time, bootleggers steal half of Jones' customers, so the album he spent a year creating sells only half as many copies, so he loses half a years income. Your argument is that, somehow, Smith has suffered a greater loss. Get it now?"

The idea that the 1/2 who stole from Jones would have been paying customers if they couldn't have gotten their hands on an illegal copy is ridiculous. Many (if not most) of them wouldn't have bought a copy if they couldn't steal one. That doesn't make their theft morally defensible, but it does make Jones' losses considerably less than Smith's. You should also consider that a minority those who obtained an illegal copy liked what they heard and obtained a legal one.

"When you oppose DRM in basically every form without further qualifying the statement, it sounds an awful lot like filesharing = good"

DRM is so easy to get around it does little to nothing to prevent serious piracy and everything to prevent Fair Use. I don't want to distribute Music and Movies I've obtained legal rights to I just don't want to be limited in how I chose to view/ listen. Right now I'm technically breaking the law every time I watch DVD on my Linux box, never mind that I might want to make backups or rip onto an ipod or laptop so that the kids don't destroy the original legally obtained DVD. Arguments such as this are always bundled into any "DRM is bad" commentary. If you choose to ignore them that's not the author's fault

Posted by: Norm | June 18, 2007 3:17 PM | Report abuse

Just because you can´t prove that every download would be a sure sale does not mean that someone has the right to download someone else's IP indiscriminately
Just because you can't prove that every download would be a sure sale does not mean that someone has the right to download someone else's IP indiscriminately. I'm for free downloading of music and movies if and only if they are not available on any purchasable format in the marketplace. Not allowing this will eventually lead to the loss of a lot of this kind of artistic creation.

Posted by: Greg | June 18, 2007 6:51 PM | Report abuse

The "piracy" issue is principally a red herring to detract the public from the reality that the content industry is "stealing" the consumers right to fair use. For example, I can buy a book. I can read this book in England or I could choose to wait ten years and read it. The content industry, through region codes, tries to deprive me of the ability to watch a DVD bought in the US in England. The content industry also claims that if you paid to watch a movie, but missed watching it, that you do not have a right to record it for later viewing. Its unfortunate that the content industry has hoodwinked the general public and lawmakers into only seeing piracy.

Rob: I would like to clarify your statement: "And I particularly despise it when it's forced upon me by some government mandate." I think the "government mandate" is really indicative of the government failing to do its job of protecting the American public. These laws exist because the content industry has essentially bought the government. What we really have is a weak willed government that has failed to stand-up to the special interests.

Posted by: Steve R. | June 18, 2007 10:16 PM | Report abuse

Dumb Quote of the Day...

I've enjoyed reading both the original article and the running commentary. It seems that everyone has an opinion on intellectual property theft--and that is a good thing, right? But I see more than one issue being discussed and we are confusing the issues of piracy vs. fair use--just as the copyrighted product industries and their friends want us to.

For years the software industry has been paying for "independent" research into "piracy". That research--even though it is obviously flawed and self-serving--has been used by law makers to enact new laws as well as to modify old ones. Anyone who has invested an hour or two researching UCITA or the SDMCAs is well aware that the United States has some of the most impressive intellectual property rights that industry money can buy.

Unfortunately for consumers of copyright protected products, legislators consistently listen to corporate America to the exclusion of human America. Conversely, and unfortunately for big copyright protected product businesses, the average consumer is well aware that intellectual property theft has essentially nothing to do with depriving the actual creator of the product of revenue. We are all aware that the actual creative minds are most frequently "paid" to create and "expected" to give up their property rights for the good of the corporation.

Instead, personal acts of copyright consumption are focused more along the lines of creating a change in the outdated system of corporate ownership. Throughout the history of the world we have improved our lives by an interconnected step-by-step process of create, modify and improve on that creation, discover new concepts based on those modifications & improvements and start the cycle over again. That model is now at risk through multi-national corporations that "buy" intelligence; use it up; then dispose of it, moving on to newer, (younger?) minds to harvest anew. Those same corporations have ensured that IP law guarantees that only they can enhance or improve a given product. This narrow mindedness severely limits the potential for our entire society to improve.

Finally and, in reality, the core comment embedded in the article is this: The intellectual property rights corporations want taxpayers to pay for law enforcement personnel to investigate and enforce copyright laws. I can accept that--on some levels. In reality, the Department of Justice already has a Cybercrime Task Force that investigates IP crimes. The FBI and Secret Service also dip into the anti-piracy pot of gold, as do the Coast Guard, U.S. Marshals, and U.S. Customs. However, I cannot accept the concept of copyright holders' wholesale use of American law enforcement personnel to root out and initiate litigation against Americans and American companies--especially when those same copyright holders can use that initial litigation to reap additional revenue via the cash settlements.

In the United States, over 1,800 children disappear every single day. Genuine human lives are being destroyed or crippled in every community. I do not argue the absolute right of copyright holders to defend their products. However, in my book, our law enforcement personnel need to gain control of the destruction of the human element before they expand their efforts to enhance corporate revenue streams.

And yes, I have had my intellectual property stolen by a company that insisted that all of my written works were "work for hire"--even though we had no contract defining it as such. Like a majority of other creative people, I couldn't afford to fight the corporate legal machine to regain my property. And, like multitudes of others, I have to sit back and watch helplessly while that company continues to generate substantial revenue using materials based on my creativity.

It is time to change the way we permit corporations--and governments--to control, limit, and spin information and personnal creativity.

Posted by: Alan L. Plastow of BizTechNet.org | June 20, 2007 11:36 AM | Report abuse

Rob, I've been off this thread for a few days, but I want to go back to your comment:

"I'm sorry, but some of y'all just aren't getting the point. Physical property endures, but intellectual property always evaporates at some point--copyrights have finite terms, remember? If you take my real property, I no longer have it; if you take my intellectual property, I still have it."

You also say that these are first-year law school principles. I'd suggest attending a year of law school and then seeing what you think, because your statements have two basic flaws:

1. You say physical property is forever, IP is temporary. That is wrong. It is common for someone's property rights in physical property to be temporary. For example, I could deed Blackacre to you for 20 years, and then to your son. Just because your right only lasts 20 years doesn't make it any less of a right, does it?

2. You think that since you can't deprive the IP owner of his ownership (like you can with real property), it's not the same. Again, that fundamentally misunderstands IP. The property right given by the government for IP is the right to EXCLUDE others. So if someone takes your IP, they are depriving you of the right granted by the government in that property. It's the same as someone camping out in your front yard, and you not being able to prevent them from doing so.

I'm not trying to come down on you because you're not a lawyer - thankfully, most people aren't. But don't mock those who write in for faulty legal thinking, and act like you have some superior knowledge on the subject.

Posted by: IPLawyer | June 21, 2007 9:23 AM | Report abuse

I think the fact that various owners of IP rights over (for the sake of argument) recorded music, are prepared to negotiate all sorts of nuances* over it indicates there is something fundamentally different from tangible property. That these nuances have evolved in a very short period of time, and continue to evolve is a further indication of the elusiveness of these rights.

On a slightly different matter, I always think it is amusing to see that the folks who decry Microsoft for "stealing" Apple's IP (that they "stole" from Xerox et al), are quite happy to promote Open Office which is quite exemplary in "stealing" Microsoft's UI execution.

* fully DRM'd copies, previews, playing on free to air radio(which is recordable) or free downloads for viral marketing, etc etc

Posted by: Mike | June 25, 2007 2:45 PM | Report abuse

Steve R wrote "the content industry, through region codes, tries to deprive me of the ability to watch a DVD bought in the US in England. "

and "the content industry" overlaps with "the distribution industry" in that content producers like Sony also manufacture region-free players to circumvent these codes.

The lawyers should go after the big fish like Sony rather than individual hackers who are trying to liberate the content we paid for.

Posted by: Mike | June 25, 2007 2:53 PM | Report abuse

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