Discussions of Book of Mormon issues and evidences, plus other topics related to The Church of Jesus Christ of Latter-day Saints.

Wednesday, February 08, 2006

Honesty Tip: Avoid Pirated and Stolen Goods

A number of years ago in a distant ward, a counselor in a bishopric told me how he was approached by someone on the street selling watches. The sales pitch was straightforward: "Wanna buy a luxury watch? It's cheap because I stole it." I was shocked as this member of the Church then explained that he bought the watch for $40 and went to a jeweler to see what it was worth. The jeweler took one look at the watch and said, "Let me guess. You bought this from someone who said they had stolen it, right? These are worth about $7. They are shipped here in bulk from China." Ha ha. We were all supposed to chuckle and continue our work, which at the moment involved processing tithing donations (I was a clerk at the time). But I was troubled, wondering how this man could be comfortable with having such stewardship in the Church.

The same watch scam continues all over America today, though the thieves selling the watches may not overtly state that the goods are stolen. But they are stolen, for these pirated goods violating the trademarks and patents of reputable companies represent some degree of theft of their brand and intellectual property. To profit from the illegal pirating of goods is simply wrong. To purchase counterfeit goods, or goods that were obviously produced by outright theft of intellectual property and trademarks is wrong.

Unfortunately, counterfeiting of goods has become rampant. Theft of intellectual property is rampant. And some of it is institutionalized and made to appear acceptable. When you purchase a $40 DVD player, for example, you can be sure that the foreign company that produced it has not paid the over $20 of royalties (and perhaps much more) that should be due at a minimum to the holders of the patents governing DVD technology. OK, maybe we don't need to make WalMart's problem in sourcing become our moral dilemma. But I would like to encourage all of us to do our best to avoid the temptation to buy goods that are stolen, or based on some form of theft.

Oh, and did I mention Ebay? When you buy a commercially available consumer product there for far less than its normal retail price - like razor blades, for example - you are probably dealing with stolen goods. A thief can walk out of Gillette warehouse carrying thousands of dollars of razor blades. Then what? Why Ebay, of course. (But this does not mean that heavily discounted goods were stolen, but certain product categories are subjects of rampant theft. And yes, there are many legitimate outlets of discounted and often discontinued goods.)

Update: One particular problem is ripped off DVDs and music. For organized crime groups, it is now more profitable to deal in pirated DVDs than illegal drugs. When you buy DVDs of hot movies from a street vendor at one-half or one-fourth the price of the actual DVD, or if you are buying it before the official release of the DVD, you are almost certainly buying a product of organized crime. And yes, it's a stolen product. Not that the physical DVD was stolen from someone's warehouse, but the content of the DVD was stolen from its owner and illegally reproduced and sold, without the owner receiving any compensation for his or her investment and creation. To enjoy these stolen goods (and to support organized crime) surely must be considered a sin.

"Wanna buy something cheap? It's stolen."


Stephen said...

I buy a lot of stuff on e-bay, mostly books, generally used books at prices over what Half Price Books sells them for (when they are in stock).

I'm not sure that all purchases from ebay or wal-mart constitute theft, though it is an interesting concept.

Of course it never occurred to me to buy razor blades on ebay.

Anonymous said...

I can certainly see how certain high demand goods were likely be stolen (computers, watches, jewelry). However, I bought a Hebrew Lexicon from a Christian bookstore for 1/3 the price it cost at the BYU bookstore. Was it stolen? I'm doubting that there's a black market out there for Hebrew lexicons...

Could it possible that your ward leader did not take the seller seriously, thinking perhaps that the "it's stolen" was just giving a ruse to make the supposedly high value of the watch more convincing? That would explain why the leader would have even bothered to go to a watch maker to verify the facts of the seller.

Anonymous said...

As one who's living is made by creating intellectual property, I've been fighting this idea for a while when it comes to music online. I seem to be the only one around, including many church members that I talk to, that has taken a firm stance that downloading non-purchased music from the 'net is stealing. I've encountered a lot of rolling eyes on this one. For me, it's more personal as I've had my artwork used without permission. I was lucky and was able to get the user to pay the fee, but many artist aren't able to do that, thus losing money.

Anonymous said...

As another holder of intellectual property I don't buy the idea that copyright violations are "stealing". Unethical yes, and it's correct that they should be illegal, but when someone steals, the victim loses something.

With copyright violation the only possible "loss" would be a potential fee that in many cases wouldn't have been realized anyway.

It just doesn't mesh with common sense to try to equate illegal copying to physical stealing. Imagine if you had a device that could create copies of physical things. If you used such a device to copy a brand new BMW and drove away in it (leaving the original BMW undisturbed) then would that be considered stealing also? Of course not. It'd likely be considered wrong, and would probably be criminalized, but it also wouldn't fall under the category of stealing.

Anonymous said...

I think you took your argument just a bit too far. I was mostly with you until the eBay comment. You seem to be implying that people should not buy things that are heavily discounted because that discount may be an indication that the item was stolen. However, there are many other plausible explanations for why something might be for sale at a substantial discount.

As for the comment about "copying" a BMW, I believe it misses the point. The issue is not so much the taking of the copy, but the theft of intellectual property. In the case of the copied BMW, you would not be stealing the car owner's property (the original BMW), you would be stealing the car maker's intellectual property (the design of that car) by making a copy.

Anonymous said...

You missed my point entirely, to make it more obvious lets use a very simple object, a pencil. Now suppose I use my device to create a copy of the original pencil and go off and write my assignment. Did I steal the pencil? Is the pencil maker or the pencil owner suddenly finding themselves one pencil short?

Prof. Wright said...

Of course, this whole post assumes that we accept the idea of "intellectual property."

Anonymous said...

Anonymous says the owner of a copyright doesn't necessarily lose anything because he might not have received a gain, since the future purchase might or might not have happened. But this ignores the fact that the copier is, himself, avoiding the purchase. The fact that the copyright violator has chosen to take the product for free means he does want it, and that he would have had to pay for it if he had followed the law. So there's nothing wispy or theoretical about the lost sale.

Anonymous said...

Not completely true, ltbugaf, in the heady days of Napster the First, I download oodles of stuff I had no intention of buying, ever, and then deleted them.

However, since the advent of iTunes Music Store and others of similar vein, I purchase the few songs I am interested in. My song downloading has dropped to trickle because of that.

The usage of Napster the First falls into social pressure, people didn't want to pay 18+ dollars for a CD, Napster provided a free solution, so people flocked.

The market, thankfully, responded and now you can get music on the cheap, legally.

This in now way absolves personal sins, if any, but the social context is interesting.

Anonymous said...

A pencil has no intellectual property constraints that I know of, but if it did, by copying it you would have been stealing the design of the pencil, not the pencil itself. Stealing is not defined as causing the owner to have less of something. Stealing means taking something that is not rightfully yours, and in the case of intellectual property that means ideas, designs, etc.

Jeff Lindsay said...

Assuming the pencil design is in the public domain (as it probably is) and you use your own legally purchased materials and your own workmanship to make it, it's yours. No theft has occurred. But if you then put someone else's trademark on the pencil, you have made a counterfeit and have stolen their intellectual property (the trademark). And if you sell millions of them, your are committing a felony and an act of stupidity, since you have chosen one of the least profitable counterfeits imaginable.

Instead of a pencil, if you make pirated DVDs, you have taken the work and intellectual property of someone else without their permission and deprived them of control of their property and of the income that should have been theirs for others to acquire those goods. It's theft.

And Roy, this post makes no assumptions at all about what you do or not accept. Whether you accept my car as mine, or my house, my patented technology, my registered trademarks, or my copyrighted material, is entirely irrelevant. The law has been established and those things are not yours to take without providing compensation to the owner. One's feelings about intellectual property are irrelevant and provide no excuse for theft.

Jeff Lindsay said...

Respect for intellectual property is enshrined in the Constitution and is arguably one of the key factors that took the world out of the Middle Ages. In those dark days, there was no legal protection for inventions, so they had to be kept secret to protect the investment and intellectual capital of the owner. Secrets were maintained in guilds and apprentices had to work for years to learn the secrets of a trade. This lack of protection for intellectual property kept knowledge restrained and in the dark, and hindered progress. The establishment of respect for intellectual property with legal tools such as patents provided incentives for inventors to not only invent, but to share their knowledge with the world in the form of a published patent, thus benefiting all of society in exchange for a limited monopoly on the patented invention. The US patent system arguably has been the key to Americans rapid rise to economic and technological greatness. The steady weakening of that system is not healthy, in my opinion.

When there are no property rights, there are no incentives to create and invent.

John said...

Let's not overlook computer games and other software. That, from my experience, is one of the biggest problems in this area.

Anonymous said...

"Intellectual property" doesn't exist in the constitution any more than "separation of church and state". Copyright and patent laws (and the DMCA) have tilted so far away from the average person that the current status mocks the original consitution.

Just ask Lawrence Lessig or read his book "Free Culture".

Copyright infringement is not theft. It is illegal but it is not theft.

Prof. Wright said...

emarkp, I'm afraid that for some, morality is defined by man's laws (at least in part).

Jeff, I'm all for property rights. That is why I'm against intellectual "property," which drastically undermines them.

As far as I know, their is no historical basis for the connection you make between IP and progress. If there is, please do enlighten me.

Prof. Wright said...



Prof. Wright said...

By the way, here is a good paper detailing many of the reasons that IP is incompatible with property rights, in case anyone's interested. It does a better job than I could of explaining my reasoning, so I'll leave it at that and try to stay out of any further contention. :)

Anonymous said...

In response to "At 4:48 PM, February 08, 2006, Mormanity said..."

"The US patent system arguably has been the key to Americans rapid rise to economic and technological greatness."

The orginal patent legality was elegant and just: 7 years. Now isn't it lifetime + 50 years?

Doesn't this perversion of the original intent stifle and weaken the system?

ed said...

Yes, we're obligated to follow the law, but let's not get that confused with the mistaken idea that people have some God-given natural right to their "intellectual property." I wish we could just get rid of the misleading term "intellectual property" and focus on simply making a system that maintains incentives for creativity with as little stifling of the freedoms of others as possible. In my view we're way past that point, with IP law getting more and more onerous, mostly in order to protect a few special interests.

BTW, patents now last around 20 years, depending on the product category...it's copyright that has been ridiculously extended to 75 years plus the lifetime. The problem with patents isn't that they're too long, it's that they've been extended to types of inventions where they are not suited (e.g. software), rather than just applying to areas where they're useful (e.g. pharmaceuticals.)

Bookslinger said...

Making copies of things that you would not have purchased anyway does steal from the inventor or artist.

By having illegal copies out there, it dilutes, and therefore reduces, the value of legitimate copies or impressions.

Using a Star-Trek replicator to replicate a BMW does hurt the BMW company because it just diluted the value of all other BMW's out there.

It would be just like how counterfeit money dilutes the value of real money.

It would be just like how third world countries have hyper-inflation because they just print up more currency to run the government, and printing more currency with nothing to back it dilutes its value, hence inflation.

Anonymous said...

My father has had musical compositions stolen from him, so I am definitely of the opinion that the creator should have rights to his creation.

Anonymous said...

emarkp says, " 'Intellectual property" doesn't exist in the constitution any more than 'separation of church and state.' "

I'm afraid you're mistaken. Article I Section 8 states,

"The Congress shall have 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"

ed said...

"Using a Star-Trek replicator to replicate a BMW does hurt the BMW company because it just diluted the value of all other BMW's out there."

Building a bunch of Mercedes also dilutes the value of the other BMWs. Would you say that the Mercedes company is "stealing" from BMW? Of course not.

Intellectual property rights are there simply because the law grants creators/innovators a temporary *monopoly* in order to give incentives for innovation, not because making use of these ideas would be "stealing."

Anonymous said...

Thanks for your comments, Jeff.

Admittedly, I have a bias, as I make my living from producing intellectual property. But it still amazes me how many people, even seemingly faithful LDS, have no moral problems with such theft.

Your mention of eBay reminded me of the time that my teenage son bought an item from eBay that turned out to have been stolen (a high school student was selling items stolen from his school). My son was disappointed when he learned he'd have to return the stolen property to its legal owner (although in theory he could have sued the seller to get his money back). As it turned out, the thief made a restitution agreement with the school, so he was able to keep the item. So fortunately, he was able to learn some lessons from the experience without it costing him anything but some momentary disappointment.

Anonymous said...

ltbugaf, you missed my point. The first amendment says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". That statement has morphed into "separation of church and state" (with some help from the letters of Jefferson) and has been taken far beyond the original language of the constitution.

By the same token "intellectual property" is a phrase invented to link natural property and the obvious rights of ownership thereof to the arbitrary rights assigned to patents, trademarks, and copyright. Yes, the constitution gives the congress the right to make those laws, but there's no such thing as "intellectual property".

Oh, and I write software for a living, so I understand the problems that unlicensed copying present to me directly. However, I'm still clear-headed enough to see the difference between natural property rights and arbitrary rights granted by congress.

Note also that since congress keeps extending the length of copyright for items already copyrighted, it can be argued that copyright is no longer being granted for a "limited time" but rather an unlimited time. That was Lessig's argument before the Supreme Court of the US. Unfortunately the SC didn't uphold the constitution.

Anonymous said...

emarkp: Thanks for clarifying your stand. Do you believe we should respect those rights created by law less than we respect those rights that are "natural"?

Anonymous said...

Theft is Theft. There is NOTHING more discouraging than seeing the Stake Choir using copied music. I really do not see how a person can "STEAL" music and hold a CTR.

Bookslinger said...

Anon at 3:35,
You're right, it's a bad thing.

The church has often sent out notices about making and using illegal copies of music, and yet some members continue to do it.

Bookslinger said...

ed: "Building a bunch of Mercedes also dilutes the value of the other BMWs."

No, it does not. Because the number of BMWs remains the same.

I also reject your analogy.

It's more like a replicating something of a limited edition. If an art print has a limited edition of 500, and someone creates another unauthorized run of 500, the value of the first 500 copies is diluted.

Anonymous said...

ed: When the law gives a creator a monopoly it creates a right. When someone infringes on that right that person is stealing--stealing someone else's right. Stealing someone else's monopoly power. Stealing the legally created right to profit exclusively from one's own creation.

Anonymous said...

emarkp: Your assertion that there is no such thing as intellectual property appears to be based on the idea that "property" is a thing that occurs solely by virtue of a natural state, without being created by law. If the Congress can't create property by passing laws, then law can't create property. But where do you get that idea? On what are you founding it? I disagree. Property is a set of rights with regard to a thing. Law can create such rights. Law can create property.

Anonymous said...

ltbugaf: Yes, immoral rights created by law deserve less respect than natural rights. The current state of copyright is immoral. When congress enacted copyrights for instance, works entered public domain after 28 years. Currently no book, movie, or other copyrightable work written in my lifetime will be in the public domain within the lifetime of my children or even grandchildren.

That is immoral. And it is a law which deserves no respect.

Patents have been so abused that trivial algorithms are protected by patent, so that only large companies with patent warchests can afford to make significant innovations.

These rights were arbitrarily granted as a balance between the public and content creators. Now they have been twisted and abused to the point that the public is almost entirely at the mercy of the creators. For instance, in order to make archival copies of work I purchase, I must break copy-prevention technology which is illegal to do if it's encrypted (no matter how trivial the encryption).

This does not excuse wholesale copyright infringement. It does raise the more general issue of the state of current law. It's not black-and-white.

Furthermore, a lot (majority? nearly all?) of the deals on eBay are not stolen goods, and it's irrisponsible to insinuate such. Many deals are loss-leaders. Others are bundles that are parted (which has been ruled legal under the first-sale doctrine).

Anonymous said...

emarkp: How do you decide when an intellectual property right is immoral? How long is too long? Who decides? How have you arrived at the conclusion that this particular set of time limits is wrong, and how do you argue with someone who advocates a limit different from your own favorite? Is the time limit you prefer less arbitrary than those set by Congress? Why?

Anonymous said...

ltbugaf said "laws create rights", for which I must steadfastly disagree. God creates rights. Law may discover rights, but mostly law creates privileges.

Anonymous said...

This argument is stupid.

Anonymous said...

Daylan, the Declaration of Independence's doctrine is that certain rights are given by God. But that doesn't mean that ALL rights are given by God and that no rights are created by law.

If the Declaration's assertions are true, the rights of life, liberty and the pursuit of happiness are NATURAL rights--rights that come from our Creator, which exist independent of law, and which man's laws cannot destroy, even if said laws do not honor them.

However, some other rights are not given by God but are created by law. (You can insist on calling them privileges, but you don't really have the right (or privilege) to change the language to your own liking.) Law creates rights that don't necessarily exist without law. For example, the right to a trial by a jury of certain number of people, chosen in a certain way, is a right created by law, not a right that is born with us into this world.

The philosopher John Locke believed that property is a natural right, although that idea didn't make it into the Declaration. Locke may or may not be right. If he is right, that still doesn't mean that ALL property rights are natural rights. Some property rights are purely the creation of law. Such is the case, in my view, with intellectual property rights.

b bowen says that because he believes the property rights now conferred by law are arbitrary and immoral, intellectual property doesn't exist. This makes no sense. "Intellectual property" means a set of rights created by law. Even if b bowen is right, and the rights are immoral, they still exist. They are enforceable under a real system of laws and law enforcement. There is, unarguably, such a thing as intellectual property.

Anonymous said...

I'm sorry--I just attributed emarkp's comments to a completely different person, b bowen. I was confusing two different threads.

Anonymous said...

And what I was saying is that the current state of copyright and patent law is immoral. Not that copyrights or patents are immoral in and of themselves.

Do you think it's right that many software titles are sold with 1) copy-prevention technology which prevents you from making a backup of the disk and 2) require the disk to be in the computer to run the software? The very first time a disk I owned got scratched I vowed never to buy software again that has this type of technology.

Yep, that's immoral.

Anonymous said...

emarkp: You've said, " [T]here's no such thing as 'intellectual property'." Believing that "the current state of copyright and patent law is immoral" doesn't lead to the conclusion that intellectual property doesn't exist, as you claim it doesn't.

You've also said, "Copyright infringement is not theft." But since the law of copyrights creates a property--a right of a creator to exclude others from profiting from his creation--the stealing of that right is a stealing of property. It's a theft.

In addition, you've said that the current time limits in intellectual property law are "arbitrary." Whether or not a particular choice in intellectual property law is wrong (or immoral), your own preferred time limits are no less arbitrary than those passed by Congress.

For example, you believe 28 years is an inherently better time limit for a work to pass into public domain. But the opinion of a creator might be significantly different on that point. He might say, "If I bought a piece of land I could pass it on to my children; why can't I pass on this property?" What makes your viewpoint superior to his?

Anonymous said...

By the way, emarkp, in answer to your question, no, I don't really see what's immoral about using technology that prevents backup copies, especially if you know that the product you're considering uses such technology, leaving you free to choose whether to buy or not to buy. Obviously, you're exercising such freedom, and thereby depriving the copyright owner of revenue. If the copyright owner thereby loses more than he gains, he's made a foolish choice about how to use his property. If he gains more from using such technology than he loses, he's made a wise choice.

Anonymous said...

You err sir. I didn't claim that my timeline was less arbitrary. They are both arbitrary. However, when congress can extend existing copyrights without limit, then they're no longer for a limited time.

Furthermore, the phrase "intellectual property" is a misnomer--an attempt to win the nomenclature war, just like "pro-choice".

Finally, copyright specifically allows for "fair use" including archival copies that consumers (and libraries) are supposed to be allowed make. However, when technology is used to prevent that fair use, the producer has destroyed the balance between producer and consumer. In that case, IMO they forfeit all moral claims to rights.

Oh and good luck trying to find out what copy-prevention technologies are used, because I've never seen them printed ever on a box of software. You only find out after it's installed on your system (and at that point the store won't take it back).

I'm actually surprised that WA state consumers haven't filed lawsuits against companies that have surreptitiously installed copy-prevention software on their computers, as it is explicitly against the law there to install software without the express consent of the end user.

Anonymous said...

So what about books? Should people be able to copy books wholesale and sell them? How about plagirism? Would not eliminating the principle of IP also, in effect, eliminate plagirism as an academic crime?

Anonymous said...

Who said anything about selling copies of anything? I sure didn't.

Stephen said...

Hmm, so are all purchases from Wal-Mart theft or not?

Prof. Wright said...

As far as I know, the problem with plagiarism is taking credit for the work of others, which is understandably a big no-no in academia. It has nothing to do with IP. In fact, it's perfectly acceptable to copy from others' work, as long as it's attributed. And plagiarism, if I'm not mistaken, isn't criminal, just against academic laws.

Michael A. Cleverly said...

British Telecommunications was granted a US patent (#4,873,662) in 1989 that ostensibly covered hyperlinks.

Ultimately a court ruled (in 2002, only four years prior to when it would have expired) this patent invalid (see the "memorandum and order granting summary judgement" in British Telecommunications v. Prodigy).

An issued patent is presumed valid until succesfully challenged and overruled in the courts.

I am not aware of any Church members licensing BT's patent before 2002. I know I didn't. Yet I created websites that were larger than a single page and so naturally made use of BT's (at the time) hyperlink property. (In fact I was employed by a prominent LDS publisher to do so.)

Was I morally culpable for infringing on BT's government-granted monopoly to the "intellectual property" of hyperlinks?
Was I being employed, in part, to steal?

At the time should I have refrained from making a web site larger than a single page, or one that linked to anything else, if I wasn't prepared to challenge the validity of the patent in court myself?

Does the fact that someone else later succesfully fought the patent, absolve my pre-2002 behavior? Legally it does, but morally?

How do those of you here who created websites prior to August 22, 2002 feel?

Anonymous said...

emarkp: I'd also like to address something you said earlier--that the Supreme Court "failed to uphold the Constitution," because they didn't buy Lessig's argument that there were no longer any time limits on copyrights. I view the legal question quite differently. It would be more accurate to say that the Supreme Court declined to interpret a statute which, on its plain face, contains a time limit, as one that contains no time limit, and that the Supreme Court failed to interpret the current law by applying pure speculation as to what the Congress will or will not do in the future.

One more question: If "intellectual property" is a misnomer, then what is the correct term? Why is it is misnomer?

Anonymous said...

I've noticed a lot of people interpreting Jeff's original post as meaning that everything sold on eBay is a stolen item. Nonsense. He said no such thing. Go back and read more carefully before you fire off such missives as Stephen's.

Anonymous said...

I want to make sure my language in the 12:02 post doesn't confuse anyone. In case it has, let me clarify:

1. Lessig asked the Supreme Court to say that the statute which set a time limit didn't really set one at all, because Congress could always change the law again in the future and do another extension. That's a little bit like saying the law doesn't really mean you have to stop at a red light because the legislature could always change the rule at some future time. Thank goodness, the Court looked at the statute, saw that it did indeed contain a specific time limit, and refused to say that it didn't.

2. Lessig asked the Court to apply a standard of wild speculation in interpreting the law. Since Congress is free to change the law in future, Lessig argued that the Court should assume Congress will do so, and therefore conclude that the time limit in the current law is meaningless. Poppycock. The law means what it says. The fact that Congress may or may not decide to change it at some hypothetical future time should have no bearing whatsoever on how we interpret the law we have now. Thank goodness, the Court declined to take Lessig's advice.

Anonymous said...

To quote: When you buy a commercially available consumer product there for far less than its normal retail price - like razor blades, for example - you are probably dealing with stolen goods.

So what Jeff said was that more than 50% of products sold at a significant discount compared to retail are stolen. He has no way to prove this, and should back off of it.

Okay ltbugaf, you disagree with me about the copyright ruling. What about the patent on hyperlinks? Did you license the hyperlink patent?

Oh, and do you ever break the speed limit?

As to "intellectual property"... Property means physical stuff. So-called "intellectual property" is intangible property, i.e. non-physical physical stuff. It doesn't make sense.

But people use the term so they can lump patents, trademarks and copyright together and accuse people who don't honor the licensing system of theft. Even if it's a backup copy for their own use, or a download of a song they have non-digital copies of (for instance).

Anonymous said...

Actually, plagiarism is very much a crime, and I have that good authority: Alex Haley. He was slapped with a 650,000 dollar judgment for "borrowing" Roots from Harold Courlander's "The African."

If we did away with IP laws, then a fellow could do just as Alex Haley did, but w/impunity. If IP really doesn't exist and ideas belong to everyone in some nebulous way, then we just ought to give up any delusion we have of a publishing industry, authorship, or even original argumentation. OK by me if we were living the law of consecration, but until then, I'm not a fan.

If for no other reason than to at least convince ourselves that we have original thought, I am in favor of maintaining IP laws.

Anonymous said...


Sorry I misunderstood you before: When you said you had vowed never again to buy software with the copy-prevention feature, I thought you meant there was a way to identify it before buying it. If there is no way to know, how will you keep your furious vow?

As to the latest post, I'll try to answer each of your points in turn.

1. Your first point about razor blades is aimed strictly at Jeff, so I'll leave that one to him.

2. As to hyperlinks, I've never inserted or created one, and don't really care about those who do, since the supposed patent on them turned out not to be valid. Rather moot point, wouldn't you say?

3. Actually, "property" doesn't mean "physical stuff." It means a set of rights with regard to a thing. For example, several different persons may "own" the same piece of land, because one may own a right to live on it only until death (a life estate) while another may own the right to possess the property after the life estate expires, another may own the right to drill for minerals under it, etc. A landowner may deed land conditionally--as, for example, when it is given to a school district only for so long as it is used for educational purposes; if the school district converts it to a used car lot, it reverts to the former owner (or his heirs). In each of these examples, the "property" is not the piece of land but rather the legal rights that various persons have with regard to the land. In the case of intellectual property, the rights are with regard to creations or identifiers, rather than mere physical items.

4. I'll pass on your irrelevant question about speed limits. This has nothing to do with whether there is such a thing as intellectual property.

5. You say that people use the term "intellectual property" so they can lump together trademarks, copyrights, and patents. Please tell me--Why shouldn't they lump them together? On the other hand, if we don't lump them together and view each of them separately, what difference does it make?

Finally, I stand by the statement that deliberately depriving someone of a legal right--including the right to exclude others from using one's own creation for profit--is a stealing of property and hence a kind of theft.

Anonymous said...

Walker: I'd never heard of the Alex Haley case. Was it a case of borrowing elements of the story? Surely not wholesale word-for-word lifting of lengthy passages??

Anonymous said...

It's true. I haven't done a full comparison myself, but it was enough to prompt the judge in the case, Robert Ward, to later tell journalist Phillip Nobile that had Haley not offered the settlement to Courlander, he would have ruled against him and charged him with perjury (Haley claimed under oath that he never read Courlander's work). Who wants to be the fellow to expose a Pulitzer prize winning author who gave a consciousness of the black man's plight to white america? It could only be done after his death in 1992.

We think James Frey pulled a doozey; he's got nothing on Alex Haley.

Anonymous said...

Here's a website for more info (short bio of Haley and more details on the plag. controversy):


Anonymous said...

Sigh. Walker, please point to where anyone has suggested abolishing all laws regarding copyright, trademarks, or patents. I certainly can't find anything of the sort. Actually, I don't think plagiarism is a crime--that is I don't think it's a criminal offence. In certain circumstances it's illegal, and it's immoral, but I don't think it's in any criminal code.

ltbugaf, if you want to sidestep inconvenient points, fine. But it renders your viewpoint bankrupt.

Yes, property does mean "physical stuff". The phrase "intellectual property" was invented (according to my OED) in 1845 in a legal argument. The classical definition of property (by Locke) goes something like: He...is willing to join in Society with others...for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property.

The reference to speed limits was regarding your question about natural vs. arbitrary law. I assume you've dropped this line of inquiry.

Finally, I stand by the statement that deliberately depriving someone of a legal right--including the right to exclude others from using one's own creation for profit--is a stealing of property and hence a kind of theft.Well, you can stand by an unfounded opinion, but that doesn't make it reasonable or respectable.

No one has a right to profit. Furthermore, it is a fallacy to assume that unlicensed copies always result in a reduced profit. Basic economics shows that if a product's price is lowered, the quantity demanded increases. Hence when unlicensed copies are "free" many people acquire copies who wouldn't have otherwise made a purchase. In those cases, no revenue is lost. Note: please read carefully and note that this is not the same as claiming that revenue is never lost when unlicensed copies are made.

Furthermore, many studies have shown that unlicensed copies actually increase sales. (Hint, in the old days this used to be called "radio" re: music).

As for the hyperlinking, you haven't responded to the question about lds.org. Did the LDS church violate patent law by making a web page before the (approved) patent was ruled invalid?

Anonymous said...

What will the logical outcome of loosening laws on music use? If one can argue that such music should be free for open use, why wouldn't that same argument apply to any intangible property, including any copyrights or patents? The old cliche of the slippery slope is quite revelant here.

Michael A. Cleverly said...

ltbugaf, the fact that BT's hyperlink patent was later ruled invalid doesn't make the question moot.

My question was framed explicitly to inquire into the state of mind of those of us who had ever made a hyperlink prior to August 2002 when the BT patent was still presumptively valid.

Jeff wrote "The law has been established and those things are not yours to take without providing compensation to the owner. One's feelings about intellectual property are irrelevant and provide no excuse for theft."

I agree in principle wholeheartedly. My reservations have to do with patents where even "innocent infringement" is still "theft" (though not as costly as "wilful infringement" that can expose someone to treble damages).

Having been made aware of the BT patent (thanks to media attention) prior to the patent being ruled invalid, would I have been a wilful infringer and definite thief if Prodigy's legal team had dropped the ball and BT had ultimately prevailed?

If we follow this logic (all intellectual property offenses/violations == theft) through to it's conclusion it seems to me that, as a computer user (thanks to software patents), I don't truly know if I'm a thief or not. (Certain Excel macros I might write could very well violate someones rights.) I don't believe that I am, but the law says that ignorance is no defense. My opinion that innocent infringement, esp. viz a vis software patents, should be a defense is irrelavent as Jeff said. Does it make a moral difference, though?

Since Jeff works in the area of patents, I'm genuinely curious to hear his thoughts.

Anonymous said...

emarkp: I'm afraid you're confusing "irrelevant" with "inconvenient." I have violated speed limits before. This has nothing to do with whether intellectual property exists. I've never argued that speed limits don't exist. I inquired into the distinction between natural rights and legally created rights only because I was trying to figure out how you could deny that the latter exists.

You claim to side with John Locke when he defines property as "lives, liberty and estates" yet you don't seem to see that lives and liberty are not "physical stuff" or that "estates" are rights pertaining to things, not the things themselves. The example of a "life estate" which I already gave above should be ample illustration of this concept.

Radio play of copyrighted songs does not constitute unlicensed use. It is a licensed use. Radio stations pay fees to organizations which, in turn, compensate artists. They're paying for the privilege as required by law, rather than stealing.

As to whether illegal copies of music or movies will actually tend to increase legal sales, it doesn't matter one bit. The creator's property--his right to exclude others from using his creation--is his alone, to use as wisely or as foolishly as he will.

You say, "no one has a right to profit." What intellectual property gives (or rather what it IS) is a right to use a creation as the creator desires. Most of the time he will try to profit from it. It's a right to try.

Not having read the case on BT's invalid patent, I don't really have any more I can say about it. But in general, I don't get too worked up when I hear that someone's invalid patent may have been violated.

Anonymous said...

Michael Cleverly, I agree with you that "innocent infringement, esp. viz a vis software patents, should be a defense." I really don't think Jeff said otherwise. I can't see anything in his comments that says it's irrelevant whether an intellectual property rights infringer is acting unknowingly. Just as with nearly all laws, an element of "mens rea" (guilty mind) is important in addition to "actus reus" (guilty act).

Anonymous said...

In other words, Michael Cleverly, in a case of "innocent" patent infringement, the infringer would almost never be PUNISHED for malfeasance but only enjoined from continuing to use someone else's property and possibly required to give over the money made by using said property to the rightful owner. These are not punitive forms of relief. As you said, in a case where the act is willful (where mens rea is present) then the courts may apply punitive remedies such as treble damages, rather than merely compensatory damages.

Anonymous said...

Oh and I forgot to explain that the way I plan on avoiding software with egregious copy-prevention is by following sites like http://www.glop.org/starforce/ that list the programs. Good luck finding it on the box.

Anonymous said...

emarkp: It seems to me that a software manufacturer is forced to choose between, on the one hand, making things difficult for those who want to make backups for personal use, and on the other hand, allowing any pirate who feels like stealing their work to do so with impunity. I'm not surprised that many opt for the former by using copy-prevention technology. They have property rights to protect.

Anonymous said...

Software manufacturers aren't "forced" to do anything. In case you didn't know, people can get unlicensed copies of just about any software title out there. Indeed, have used cracks so that I don't have to have a CD in the drive to use some software.

Software is already protected by copyright. Adding technology which prevents me from making my own backup is infringing on my right of fair use. Historically, treating your customers as theives first hasn't been an effective business strategy.

Anonymous said...


1. I'm rather surprised you haven't responded in any way to my 5:15 post. But if there's nothing more to say about it, that's fine.

2. In saying that software manufacturers are "forced" I simply mean that if they don't use such technology they can expect a large number of unscrupulous people to steal their property by making unlawful copies, for the purpose of avoiding purchase or for selling to others. I'm sure you must agree that happens all the time. Although their intellectual property is legally protected, the enforcement of those legal protections is inadequate and difficult. So they choose to apply other means.

If this is treating their customers "as thieves first" and if this is indeed an unsound business strategy, then the market will punish them accordingly and they will lose out on money they could already make. You, for instance are making a free choice to punish them by not buying their products. If enough other people feel the same, then companies using copy-prevention technologies will lose out. So far, however, it appears they have greater incentives to use such technologies, to try to stop those who are selling hundreds of thousands of illegal copies of their creations without respecting their intellectual property.

Anonymous said...

"In case you didn't know, people can get unlicensed copies of just about any software title out there."

Yes, I did know that. I also know people can get stolen cars and television sets in just about any model out there. Neither course of action is legally or morally right.

Anonymous said...

Yeah, I'm pretty much done with this conversation. You've ignored several important questions. Sorry, but it's not worth it to me if you're not going to actually discuss things. Feel free to think about the morality and legality of downloading a copy of a song that you have on a record, or using a crack to bypass copy-prevention on a computer program in your spare time.

Your usage of the word "steal" remains incorrect. Use the term "unlicensed copying" when that's what you mean.

Although their intellectual property is legally protected, the enforcement of those legal protections is inadequate and difficult. So they choose to apply other means.

This is typically called "taking the law into your own hands" and is generally frowned upon.

My comment about being able to download unlicensed copies of programs was to make a point which you apparently completely missed. Your dismissal of the point is a bit weak. The point is: attempts at copy-prevention have failed. As a result, people who are intent on getting unlicensed copies of software (or music, or electronic text) aren't impeded, but the customer is inconvenienced.

Oh, and Re: your 5:15 post...when radio first played music, it was criticized as unlicensed copying. Congress stepped in and provided a method for compulsory licensing.

Read Lessig's "Free Culture". And try to think beyond simple dismissive comments. Believe it or not I've though pretty carefully about my stance, and find it logically and morally consistent. Of course, you really haven't made any attempt to find that out.

Anonymous said...

By those criteria, putting a lock on your front door is "taking the law into your own hands." Sorry, but no reasonable person is going to believe that.

Anonymous said...

emarkp, if I've actually "ignored several important questions" please point out what they are. As near as I can tell, none of your questions have been important, and I haven't left any of them unanswered.

Anonymous said...

To expand on my 4:32 post: emarkp said that when a software publisher uses copy-prevention technology to foil thieves, the publisher is taking the law into its own hands, and that such a course of action is (or should be) frowned upon by the law. He apparently rests this on the notion that since the property is already protected by the law, the publisher should not be allowed to take any protective measures on its own. So apparently, a software publisher should rely purely and solely on copyright laws (which emarkp says are currently immoral laws) to protect it.

I have personal property that is protected by the law: I have the right to exclude you from the use of my television, my chair, my sheets, my computer, and so on. That property (in other words, that right of exclusion) is protected--and possibly created--by the law. So if we follow emarkp's logic, I should have to rely purely and solely on the law to protect me and not be allowed to use any protective measures of my own. This means I must take the locks off all my doors, take down the fence around my yard, and stop using a cable on my bicycle or my laptop computer.

As you can see, that thinking is just plain silly. Of course software publishers have legal protections (which, by the way, means they have "intellectual property"). But no one should have to rely only on the legal protections. Using other safeguards of one's property--including intellectual property--is a perfectly sensible and valid thing to do. It's not "taking the law into one's own hands." It is reasonable self-enforcement of a right of exclusion.

emarkp has already pointed out that he's able to ascertain what software contains such technology and choose not to buy it. Therefore the publisher is not forcing anything on him. He can, and does, deprive the publisher of revenue by choosing not to own the product. However, if someone chooses to own the product without paying the owner, that's a different matter.

Anonymous said...

Michael Cleverly: You describe the court's action in striking down BT's invalid patent in terms that I think distort the picture. What I mean is this: Your description portrays the patent as being valid right up to the point where the court MADE it invalid. But the court didn't invalidate the patent; the court merely found that the patent had never been valid in the first place. In other words, no one ever held a patent on hyperlinks. That's why I don't worry about who may have used them without the permission of an invalid patent holder.

Anonymous said...

Wow--I haven't seen anything like this since the good ole days of the DNA wars.

Anonymous said...

Walker, as a law student, I'm afraid I don't have a lot of tolerance for misapplications of terms such as "property" so maybe I'm more worked up than I should be. I hope it's at least useful discourse.

Anonymous said...

Just a timely news article: The RIAA is now claiming that ripping your own CD's to a portable player is not fair use.

Anonymous said...

No list of "important questions" that have been ignored? Aww... :(

Anonymous said...

Does ANYONE out there want to introduce ANY argument or evidence supporting the idea that there's no such thing as intellectual property? emarkp made that assertion, and I kept waiting for him to support it. He gave a lot of support for why he thinks the current laws are "immoral" but nothing to support the proposition that intellectual property doesn't exist. Since that was the main thesis I was arguing against, it ended up sort of one-sided.

Prof. Wright said...

Are you seriously asking for evidence of a negative? How about you prove the necessity and morality of coercive intellectual monopoly laws?

In any case, I have already posted a link to a paper (Feb. 8, 6:16 PM) detailing many objections, including most of my own, to the concept of intellectual property.

Anonymous said...

Roy, for the most part, I am not arguing for the "necessity" or "morality" of any particular intellectual property law. I am simply arguing that, contrary to emarkp's reckless declaration, there really is such a thing as "intellectual property." The only way to conclude otherwise is to wrest legal terms such as "property" until they no longer mean what they mean.

However, there's already been plenty presented here about the valid reasons for establishing intellectual property by law. Person A labors to create a beautiful piece of furniture. Person B labors to acquire and improve a piece of land. Person C labors to create a song, novel, or mechanical invention. A and B can enjoy the fruits of their labors, to the exclusion of all others, for the remainder of their lives and then pass on the right to do so to their heirs, forever. For C, it's not so nice. He can enjoy the exclusive right to his creation for only a limited term of years. But in the public interest, we nonetheless force him to yield up the product of his work to others. Now, take away even this limited protection and what do you get? C has to either give away his labor for free with no hope of profiting thereby, or keep his creation a secret. I'm puzzled that some believe that world--the world with no incentives for creators and inventors--is a better one, or a more "moral" one.

Prof. Wright said...

Your reasoning above makes liberal use of the labor theory of value, to which I hope no sane person would knowingly adhere. It also belies the fact that thousands of academians (as an example) profitably produce massive quanities of intellectual material without the aid of intellectual "property" laws. They profit from the reputations their work builds for them. There are many ways to profit from intellectual/creative work, and not all of them involve the threat of violence.

As to the term "property" itself, I am not interested in the legal definition, but instead a sensible, natural, and non-contradictory one.

Anonymous said...

Although I find your example of academicians who never profit from copyrights weak, because most academicians do their best to make money by publication, let's accept it. What about everyone else? How can a novelist profit from reputation, if anyone can immediately republish his novel as his own? There won't be any reputation. How can he charge for his writing services if anyone can immediately publish the book without paying him? He can't profit by keeping the novel a secret, and he can't profit by publishing it unless he owns the printing presses (and even then, anyone else can print the same book in competition). Should I assume, then, that novelists have no right to profit from their writing?

Anonymous said...

Perhaps, rather than using cutesy and dismissive terms to wave away the labor theory of value, you could instead offer some actual reasons not to accept it?

Anonymous said...

It's also worth mentioning that the legal remedies imposed against violators of intellectual property rights are not "violence."

Anonymous said...

"As to the term "property" itself, I am not interested in the legal definition, but instead a sensible, natural, and non-contradictory one."

Whether you are personally interested in the legal definition doesn't entitle you to claim that the legal definition doesn't exist. "Property" is a legal term. The legal system that enforces it is real. There is such a thing as "intellectual property."

I would also like to see you demonstrate, rather than merely claim, that the definition of property as "a set of rights in connection with a thing" is in any way contradictory.

Anonymous said...

... and while you're at it, you could explain by what authority you appoint yourself the arbiter of what is "natural" or "sensible."

Anonymous said...

Let me clarify my 8:48 post:

You've dismissed my reasoning by saying it's associated with a certain theory you don't believe in. But you haven't offered any reason, logic, or substance--just dismissal. Mere contempt, whether in large doses or small, is no substitute for reason or substance. Please tell us what is actually wrong with the reasoning I offered, rather than merely telling us that you think it's insane.