Discussion with Amaro and Dirk about Copyright

This lightly edited conversation contains no legal advice; none of the participants are lawyers.

Amaro Koberle
Copyright is demonic, the idea of intellectual property is disgusting and should be opposed openly.

Dennis Hackethal
I wouldn’t write it off too quickkly. Why do you think it’s demonic?

(I’m familiar with the standard libertarian arguments against it, but I’m interested in your pov in particular.)

Amaro
Interesting…
Not sure what you mean by the standard libertarian argument, but the quickest way I can summarize the issues that I see with IP is by invoking property rights and scarcity.
If you are the one paying for the copying of the information, you are using your scarce resources to make another instance of a pattern. The pattern, that which IP seeks to “protect” is, infact, not scarce. Only the substrate on which it is instantiated is. Since scarcity is central to the reason why property rights are beneficial, the concept of property is woefully misapplied in regards to information.

I suspect that is more or less the standard libertarian argument, not sure. Do you find fault with it?

To take a more utilitarian angle (blasphemy, I know): I think we’re infact paying an unfathomably large opportunity cost by protecting ideas from competition.

Dennis
Aren’t you conflating copyright violations and plagiarism?

Cuz those are separate issues… you cannot copyright an idea.

You can copyright an expression of an idea.

Amaro

[Dennis:] Aren’t you conflating copyright violations and plagiarism?

Hmm… I see those two things as related but different. If I claim to be the author of something that I am not infact the original author of, then I am lying. That is bad irrespective of the copyright issue, I think.

[Dennis:] Cuz those are separate issues… you cannot copyright an idea.

So I guess I agree with that 💯

Dennis
Yes. So it is not true that copyright impedes the competition of ideas as anyone is free to talk about ideas as long as they either express them in their own words or quote in a manner compliant with fair use.

That being said, do you still think copyright is ‘demonic’?

(FWIW I’m obviously not a lawyer but I’ve had a copyright lawyer advise me on this topic in the past.)

Amaro

[Dennis:] Yes. So it is not true that copyright impedes the competition of ideas as anyone is free to talk about ideas as long as they either express them in their own words or quote in a manner compliant with fair use.

It depends what you mean by “talk about”. I’m free to talk about Harry Potter all I want, but if I were to laboriously create a fandom graphic novel telling a new story involving the characters from the Harry Potter books and I start successfully selling them for a decent amount of profit, then I risk Warner Brothers coming after me with a cease and desist demand. In that sense I am not free.

Dennis
What problem do you think copyright solves?

Dirk Meulenbelt

[Amaro:] It depends what you mean by “talk about”. I’m free to talk about Harry Potter all I want, but if I were to laboriously create a fandom graphic novel telling a new story involving the characters from the Harry Potter books and I start successfully selling them for a decent amount of profit, then I risk Warner Brothers coming after me with a cease and desist demand. In that sense I am not free.

I haven’t thought much about copyright but I def think that should be allowed to do.

[Dennis:] What problem do you think copyright solves?

Protecting your stuff

Dennis
That’s a bit vague. Can you be more specific?

[Amaro:] It depends what you mean by “talk about”. I’m free to talk about Harry Potter all I want, but if I were to laboriously create a fandom graphic novel telling a new story involving the characters from the Harry Potter books and I start successfully selling them for a decent amount of profit, then I risk Warner Brothers coming after me with a cease and desist demand. In that sense I am not free.

Isn’t that what Yudkowsky did with HPMOR?

Amaro

[Dennis:] What problem do you think copyright solves?

I think it seeks to solve the issue that competition can disincentivize production.

Dirk
It’s a barrier for other people to use your ideas. This could on the one hand incentivise investment in the dev of those ideas but may also prevent progress related to these ideas

Amaro

[Dennis:] Isn’t that what Yudkowsky did with HPMOR?

Basically, yes

Dennis

[Dirk:] It’s a barrier for other people to use your ideas. This could on the one hand incentivise investment in the dev of those ideas but may also prevent progress related to these ideas

No, again, copyright protects an expression of an idea, not the idea itself.

Dirk
The expression of an idea is not an idea? Also patents actually protect the actual idea

Is the concept of ‘harry potter’ not an idea? Can i make a movie with him in it?

Dennis
Then that would be a criticism of patents, not of copyrights. And AFAIK patents protect the implementation of an idea, also not the ideas themselves (note that patents are filed publicly).

Dirk
Why did the verve pay so much money to the rolling stones?

Dennis
Was that the thing where they sampled a song without permission or something?

Dirk

[Dennis:] Then that would be a criticism of patents, not of copyrights. And AFAIK patents protect the implementation of an idea, also not the ideas themselves (note that patents are filed publicly).

And they’re often granted before you’ve done so or even know how to

Amaro

[Dennis:] Then that would be a criticism of patents, not of copyrights. And AFAIK patents protect the implementation of an idea, also not the ideas themselves (note that patents are filed publicly).

I should probably clarify: my issue is with ALL intellectual property, including copyright, patents, trademarks, and trade secrets.

Dirk

[Dennis:] Was that the thing where they sampled a song without permission or something?

Yea, in a way that’s hardly perceptible

They should own a progression of chords?

Dennis

[Amaro:] I should probably clarify: my issue is with ALL intellectual property, including copyright, patents, trademarks, and trade secrets.

OK but I think it’d be wise if we restrict this discussion to copyright for now, just for simplicity. We can branch out to other kinds of IP later if we feel we have a decent grasp on copyright.

Amaro

[Dennis:] No, again, copyright protects an expression of an idea, not the idea itself.

Can you articulate the difference between an idea and it’s expression in a bit more detail?

This distinction is not very intuitive to me.

Dennis

[Dirk:] They should own a progression of chords?

I’m not as familiar with copyright in music but I suspect it’s similar to how an insufficiently modified copy of a text can still be a copyright violation. I doubt the law can somehow quantify exactly when you cross the line, but it’s the kind of thing where ‘you know it when you read/hear it’.

Dirk

[Amaro:] Can you articulate the difference between an idea and it’s expression in a bit more detail?

Yeah, seems like a distinction without a difference invented by a clever lawyer

Amaro

[Dennis:] OK but I think it’d be wise if we restrict this discussion to copyright for now, just for simplicity. We can branch out to other kinds of IP later if we feel we have a decent grasp on copyright.

Okay, sure. My criticisms of all these aspects are pretty similar, I think. But we can stick to copyright.

[Dirk:] Yeah, seems like a distinction without a difference invented by a clever lawyer

On the surface of it, it does to me as well. But maybe I’m not seeing something.

Dennis

[Amaro:] Can you articulate the difference between an idea and it’s expression in a bit more detail?

Sure. For example, you are free to talk about my neo-Darwinian theory of the mind as much as you want in your own words. I cannot copyright that idea (or any other idea). What I can copyright is my blog post about it, say. That’s a speciifc expression of that idea; ie black on white, words on a page. The copyright gives me control over how that expression can be distributed.

To illustrate further, you could write your own blog post about my idea, and then you’d own the copyright to that blog post even though you wrote about my idea.

Dirk

[Dennis:] I’m not as familiar with copyright in music but I suspect it’s similar to how an insufficiently modified copy of a text can still be a copyright violation. I doubt the law can somehow quantify exactly when you cross the line, but it’s the kind of thing where ‘you know it when you read/hear it’.

I know it works with current laws obviously, but I think it’s nonsense. That intellectual property on some soundwaves does nothing good

[Dennis:] To illustrate further, you could write your own blog post about my idea, and then you’d own the copyright to that blog post even though you wrote about my idea.

Except that in many cases, such as in music or art, you’re not allowed to do that

Dennis
Are those cases really analogous?

[Dennis:] To illustrate further, you could write your own blog post about my idea, and then you’d own the copyright to that blog post even though you wrote about my idea.

Amaro, does that make more sense?

Dirk

[Dennis:] Are those cases really analogous?

Are pieces of art not also creative ideas?

Dennis
Yes but what I mean is, they’re not like text where you can talk about some idea without replicating the exact words used to express the idea. It seems to me that in music and art, things aren’t that explicit.

Dirk
If I built out your idea in unity, would you sue me?

Dennis
The neo-Darwinian one? I don’t see what grounds I’d have.

(In fact, I’d be thrilled.)

Dirk

[Dennis:] Yes but what I mean is, they’re not like text where you can talk about some idea without replicating the exact words used to express the idea. It seems to me that in music and art, things aren’t that explicit.

I think you can only express ideas, there isn’t ‘the idea’.

Dennis
Wdym?

Dirk
I mean there isn’t the idea and then its expression. There are only expressions

Dennis
My theory is an idea, no? And then if I write about it, that’s an expression of the idea. And if you write about it, that’s your own, separate expression of the same idea, is it not?

Amaro

[Dennis:] Sure. For example, you are free to talk about my neo-Darwinian theory of the mind as much as you want in your own words. I cannot copyright that idea (or any other idea). What I can copyright is my blog post about it, say. That’s a speciifc expression of that idea; ie black on white, words on a page. The copyright gives me control over how that expression can be distributed.

Thanks for the elaboration, that makes things clearer.

Let’s assume I were to start my own blog that blatantly plagiarizes your work, copying it almost exactly word for word, not mentioning your name even once.

I think we’d all agree that that would be a great social faux pas on my side and that my reputation for integrity and honesty ought to take a great hit in response to such poor behavior.

However, do you think this infraction is of such a grave proportion that you’d be within your right to threaten the use of force lest I don’t stop plagiarizing you?

In my opinion, if you were to attempt this coercive response to my bad behavior, that would immediately turn me into the victim and you into the criminal, whereas before this attempt at coercion there was infact no crime involved, just awfully poor manners on my side.

Dirk

[Dennis:] My theory is an idea, no? And then if I write about it, that’s an expression of the idea. And if you write about it, that’s your own, separate expression of the same idea, is it not?

Yea, I think your blog situation is hard for me to quarrel with because there isn’t any copyright blocking me from progressing there

Dennis

[Amaro:] Thanks for the elaboration, that makes things clearer.

Let’s assume I were to start my own blog that blatantly plagiarizes your work, copying it almost exactly word for word, not mentioning your name even once.

I think we’d all agree that that would be a great social faux pas on my side and that my reputation for integrity and honesty ought to take a great hit in response to such poor behavior.

However, do you think this infraction is of such a grave proportion that you’d be within your right to threaten the use of force lest I don’t stop plagiarizing you?

In my opinion, if you were to attempt this coercive response to my bad behavior, that would immediately turn me into the victim and you into the criminal, whereas before this attempt at coercion there was infact no crime involved, just awfully poor manners on my side.

The scenario you describe strikes me as both a copyright violation and plagiarism. I don’t believe plagiarism is even a legal matter, so I couldn’t sue for that. I could only sue for the copyright infringement.

But note that you can infringe on someone’s copyright without plagiarizing them. For example, if you hosted an unauthorized mirror of my blog on some other domain: it would still have my name, hence there’d be clear attribution to me, so it couldn’t be plagiarism. But you’d be distributing a copyrighted expression of my ideas, so it’d be a copyright infringement.

Plagiarism is when you don’t credit the originator of an idea. Plagiarism and copyright violations can coincide but they need not and they’re not the same thing.

[Dirk:] Yea, I think your blog situation is hard for me to quarrel with because there isn’t any copyright blocking me from progressing there

My blog is copyrighted.

As it says in the footer on the bottom of every page: “© 2023.”

Amaro

[Dennis:] Plagiarism is when you don’t credit the originator of an idea. Plagiarism and copyright violations can coincide but they need not and they’re not the same thing.

Agreed

Let’s assume I did what you described. I uploaded an unauthorized mirror of your website.

Do you think you would be within your right to use force to prevent me from doing that?

Dennis
Appropriate force, yes, because you’re an aggressor in that situation and I’d be justified in using defensive force to defend my rights.

Dirk

[Dennis:] My blog is copyrighted.

I’m not arguing against all copyright. That’s Amaro. I only dislike the instances where it hampers progress, such as many patents, pointless royalties on a riff, and so on. You owning your words, and book, seems fine to me.

Amaro

[Dennis:] Appropriate force, yes, because you’re an aggressor in that situation and I’d be justified in using defensive force to defend my rights.

Okay cool, I think we may have located the disagreement there. I don’t think that uploading an unauthorized mirror of your blog would count as a violation of the non-aggression principle.

In case you haven’t read it, this is a great read:
https://mises.org/library/against-intellectual-property-0

Logan recommended it to me in a comment on your blog Dennis. That was the first interaction I had with both you and Logan, if I recall correctly

Fond memories, no homo 🥰

Dennis
I remember.

Yea so on page 10 Kinsella writes:

Copyrights protect only the form or expression of ideas, not the underlying ideas themselves.

(Just repeating for clarity and emphasis.)

Amaro
Right, yes, I have no quarrel with that description of what copyright aims to do. I’m not sure the distinction is useful but I can roll with it for the sake of discussion.

My quarrel is rather this: Even if I were to use your specific expression of an idea in ways that you disapprove of, that wouldn’t count as a violation of the NAP. Just bad manners.

Dennis

[Amaro:] I’m not sure the distinction is useful […].

Isn’t it useful to know that copyright doesn’t prevent you from talking about ideas in your own words?

Amaro
In my mind, you have no right of ownership to neither your ideas nor your idiosyncratic way of expressing ideas.

[Dennis:] Isn’t it useful to know that copyright doesn’t prevent you from talking about ideas in your own words?

In a pragmatic sense, sure! It’s useful to know what laws are in place irrespective of whether those laws are just or not.

I just don’t think the distinction is infact necessary for deciding whether copying expressions of ideas without prior permission is a crime or not.

But I may change my mind on this, haven’t thought too much about it.

Dennis

[Amaro:] In a pragmatic sense, sure! It’s useful to know what laws are in place irrespective of whether those laws are just or not.

Dirk thought copyright is a “barrier for other people to use your ideas”. That would be an important criticism of copyright, if it were true, but it’s not.

Dirk
It is in many instances.

Dennis

[Amaro:] I just don’t think the distinction is infact necessary for deciding whether copying expressions of ideas without prior permission is a crime or not.

I think it gets back to what problem copyright solves. You wrote “I think it seeks to solve the issue that competition can disincentivize production.” I’m not sure I follow. Can you clarify?

Amaro

[Dennis:] Dirk thought copyright is a “barrier for other people to use your ideas”. That would be an important criticism of copyright, if it were true, but it’s not.

I think it is infact such a barrier because the distinction between an expression of an idea and the idea itself is murky in my mind.

Dirk
https://www.bbc.com/news/topics/c4wl5zqxv9xt

Tell me this is not a list of pointless idea protection

Amaro

[Dennis:] I think it gets back to what problem copyright solves. You wrote “I think it seeks to solve the issue that competition can disincentivize production.” I’m not sure I follow. Can you clarify?

Kinda like “would JK Rowling have written Harry Potter if anyone could just reprint and resell that book without compensating her for her work?”.
I think the usual stance is that, no, JK Rowling wouldn’t have bothered and therefore we need copyright. I think that’s wrong.

Dennis
Gotcha. Yea I think we’re on the same page in terms of what problem it solves. I would have phrased it as: it ensures that the originators of creative works get paid.

Do you think there are no authors that wouldn’t have published their books without copyright?

Amaro

[Dennis:] Gotcha. Yea I think we’re on the same page in terms of what problem it solves. I would have phrased it as: it ensures that the originators of creative works get paid.

Ah yes, I can get behind that way of phrasing it. More succinct.

[Dennis:] Do you think there are no authors that wouldn’t have published their books without copyright?

There are many, I’d guess. Perhaps not as a total proportion, but in total number there must be a bunch of such cases.

Dennis
So isn’t it fair to say that we’d be missing out on their creative works? Or that they’d be missing out on compensation without copyright?

Amaro
Yes, fair.

I think conversely, it is equally fair to say that we are missing out on all the Batman vs Goku fanfiction because creators feel like they will be prevented from collecting any kind of revenue for creating their “derivative” work of fiction (the quotation marks because all knowledge creation is derivative of background knowledge, I think).

Dennis
Re the NAP: if you spend thousands writing a book, then try to recover that by selling the book, and somebody instead uploads it to where others can download it for free, thereby robbing you of your ability to recover your expenses and make a living, doesn’t that sound pretty aggressive?

[Amaro:] Yes, fair.

I think conversely, it is equally fair to say that we are missing out on all the Batman vs Goku fanfiction because creators feel like they will be prevented from collecting any kind of revenue for creating their “derivative” work of fiction (the quotation marks because all knowledge creation is derivative of background knowledge, I think).

What derivate works could there be without the originals, many of which only exist due to the protection copyright affords their creators?

Note that people are always free not to enforce their copyright and use other licensing terms.

Amaro

[Dennis:] Re the NAP: if you spend thousands writing a book, then try to recover that by selling the book, and somebody instead uploads it to where others can download it for free, thereby robbing you of your ability to recover your expenses and make a living, doesn’t that sound pretty aggressive?

I don’t think so. It sounds rude.

Dennis
I wonder if you’d still feel that way if you were on the receiving end.

Amaro

[Dennis:] Note that people are always free not to enforce their copyright and use other licensing terms.

Yes, true. I just happen to think that if they do attempt to make use of their copyrights, i.e. by recruiting the government to threaten the copyright violator with force, that makes them the sole criminal in that scenario (and the government, of course).

[Dennis:] I wonder if you’d still feel that way if you were on the receiving end.

I suspect that I would, but of course I may find myself unexpectedly enraged once this occurs.

Dennis
Aren’t criminals people who break criminal law, not those who enforce it?

I’m guessing you’re speaking of moral crimes here, not legal ones.

Amaro
Yes

Dennis
FWIW, I’m open to the idea that the gov’t currently goes too far in establishing and enforcing copyright laws. But I don’t think any libertarian society would necessarily not have such laws.

Amaro

[Dennis:] Aren’t criminals people who break criminal law, not those who enforce it?

In my mind, the person enforcing the law is a criminal if the law is mistaken about the victim/perpetrator relationship that is being enforced, as would be the case when enforcing a moral abomination of a law such as copyright. It’s like enforcing the draft or something, a criminal activity in all senses except in terms of civil law, and civil law is BS anyway, I think.

[Dennis:] FWIW, I’m open to the idea that the gov’t currently goes too far in establishing and enforcing copyright laws. But I don’t think any libertarian society would necessarily not have such laws.

Okay cool 😎

Perhaps you will join my cult of information communism in time.

There’s hope yet

Dennis
I could envision a society with Friedmannian legal providers, some of which offer differing copyright protections or sell packages that either have or do not have copyright protection (it’s nuts that everyone is forced to pay for copyright legislation and enforcement even though very few people are creators).

[Amaro:] In my mind, the person enforcing the law is a criminal if the law is mistaken about the victim/perpetrator relationship that is being enforced, as would be the case when enforcing a moral abomination of a law such as copyright. It’s like enforcing the draft or something, a criminal activity in all senses except in terms of civil law, and civil law is BS anyway, I think.

I’d agree with the draft example. But why you still consider copyright a “moral abomination”, I’m not sure. Isn’t it more of a moral gray area, at worst? At least it serves the purpose of ensuring creators get paid. And like I said, people are free not to make use of it – I don’t think the gov’t will enforce copyright unless the creator sues.

Amaro
I doubt it actually helps with getting creators paid as much as it helps to disincentivize creation. People pirate stuff regardless, industries have to adapt to the free flow of information regardless. Look at the music industry. It’s not like creators weren’t kicking and screaming about streaming platforms and things like limewire, but that didn’t change the fact that they had no choice but to adapt. Copyright had very little say in the matter.

Infact, violating copyright is so trivially easy and useful that almost everyone who’s even remotely technologically literate has done it at one point or another.
It’s only in the big success stories where it comes around to bite you in the ass. Once your Batman vs Goku fan animation hits 5 million views on YouTube, you have to start worrying about cease and desist demands and what not. If it only has 5 views, nobody cares. The sad thing is that the success which will bring the wrath of copyright upon you is also exactly the proof that your fanfiction was satisfying a need that neither Batman nor Goku could have satisfied by themselves.

It also ends up making creative professions these winner take all affairs where JK Rowling gets incredibly rich while most other creators can’t even dream of making their living using their craft and must instead do it during their free time because it isn’t profitable enough.

You know I am not in favor of people feeling entitled to income and the same goes for artists that fail to make a living doing art. That’s fine. I just happen to think that we’d actually have many more professional artists without copyright

Dennis
Where do the derivative works come from if creators are disincentivized to make originals in the first place?

Amaro
Interesting question, would love to continue this later. Just arrived at a carnival, gotta go. Lovely chat

Dennis
Amaro, Dirk, may I post this discussion on my blog?

Amaro
It would be an honor

Dirk
Sure