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Apr10th

2012

April 10, 2012 @ 13:38:00
Why Courts Should Not Allow the Parody Exception to Make a Parody of the Copyright Law
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This is a repost of my article that I published at MINCOV.COM on June 28, 2009.

Recently I wrote a 100-page comparative research paper on the treatment of parody in the copyright laws of common law countries and selected European countries. Thus, I could not help but voice my thoughts regarding the ongoing dispute between J.D. Salinger and the author and publishers of a purported sequel to The Catcher in the Rye (“Catcher”).

J.D. Salinger has sued Swedish author Frederik Colting, who wrote the novel 60 Years Later: Coming Through the Rye (“60 Years”) under the pseudonym J.D. California. The disputed literary work has attracted comments ranging from “rip-off, pure and simple”1. to “a sequel”2., to “not a sequel”3., to “criticism of J.D. Salinger and of Catcher in the Rye4., to “tremendously important commentary”5., to “a parody”6., and finally to “a complex and undeniably transformative exposition about one of our nation’s most famous authors, J. D. Salinger, and his best known creation, Holden Caulfield."7.

In his declaration, Mr. Colting concedes that his earlier book cover and some promotional material characterized 60 Years as a sequel8.. One would find it hard to believe that it is a coincidence that he came to “realize that this description is inaccurate”9. only after the lawsuit has been filed. Suddenly, the “parodist” realized that his book, on which he spent “an entire year of [his] life”10.,

      “is not designed to satisfy any interest the public might have in learning what happened next to Holden Caulfield or the other characters in Salinger’s book. Rather it is intended to stand on its own as a critical examination of the character Holden Caulfield, the relationship between author and his creation, and the life of a particular author as he grows old but seems imprisoned by the literary character he created”11..

It is only after the lawsuit was filed that Mr. Colting expressed the view that he “wrote 60 Years as a critical exploration of such themes as the relationship between J. D. Salinger, the famously reclusive author, and Holden Caulfield, his brash and ageless fictional creation”12..

Granted, I may be overly sceptical about Mr. Colting’s description of 60 Years. I did not read it.

What? You might say, and yet you are writing an article on it?

Please be patient, gentle reader, as I shall expound my logic on this further on.

Indeed, it might be a true gem of a parody. Maybe, it is an “important commentary and criticism of Catcher and its famous author”13.. Colting acknowledges that he is “fascinated by the widely-reported fact that, after creating Holden, Salinger never published another work and essentially became a recluse, while at the same time exercising ‘iron-clad control over his intellectual property, refusing to allow others to adapt any of his characters or stories in other media’”14.. He specifically chose Salinger’s famous work as the basis for his “first novel”15. not only because it is one of the most famous novels of all times, but also because of Salinger’s fierce opposition to any, let alone unauthorized, derivative use of Catcher. The question is, even assuming 60 Years is indeed a true parody, should Colting get away with it?

The attempt of Colting and his lawyers to classify 60 Years as criticism and parody is not unexpected. From the documents and comments I have gathered, it appears very likely that, despite the defendants’ claim to the contrary, 60 Years will be held to constitute an unauthorized use of Catcher and its protagonist. If this happens, the only way for the defendants to avoid the finding of infringement would be to prove that the use of Catcher constitutes fair use under §107 of the U.S. Copyright Act16.. While the list of purposes that presumptively imply a fair use in §107 is not exhaustive17., the presumption, if satisfied, of course, makes the defendants’ task much easier.

The fundamental distinction between common law and civil law approaches to the criticism exception is in the fact that the former permits any type of use of the underlying works for the purpose of criticism (provided that such use is fair), whereas the latter only permits quotation of underlying works for such purpose. By implication, quotation only allows unaltered (albeit fragmentary) use of underlying works18.. Parodic modification of an underlying work, while it still may be regarded as criticism, is beyond the definition of quotation. Quotation presupposes scrupulous copying of the used portions of an underlying work and their separation from what is added by the new author. Parody, on the other hand, normally implies integration of the modified (or, in some cases, mutilated) underlying work into the new resulting work.

In common law countries, the criticism exception seemingly allows any type of use of an underlying work provided that such use is made for the purpose of criticism, without it being expressly limited to quotation. Hence, the willingness of creators of unauthorized derivative works to claim this exception as a defence. I suggest that while the criticism exception in common law countries is not expressly limited to unmodified use of underlying works, this limitation is implicit in the words “fair use” or “fair dealing” (since, perhaps, unauthorized alteration of the work for the purpose of criticism should be regarded as unfair19.).

Criticism is an extremely broad notion. Any use of an underlying work may be said to be a criticism of something or someone. No doubt, parody is criticism. But there are many “unfair” uses that also fall within the definition of criticism. For example, creation of a DVD collection “100 most boring movies” is criticism. However, unauthorized reproduction of 100 full movies under this title would still be unfair and illegal. Likewise, a CD collection of “100 songs by ugly hairy artists” is also arguably criticism, which cannot be excused as fair use or fair dealing20.. The mere purpose of criticism does not justify copyright infringement.

The fairness analysis with regard to parody has the same inherent difficulties as that with regard to criticism, with one additional aggravation. There exists no unequivocal legal definition of parody. Because most people (and courts) tend to agree that parody, by definition, requires more extensive use of the underlying work, compared to criticism, the so-called parody exception has become a dominant theme with those driven by the general idea that the balance of interests should tip in favour of the public by limiting the rights of authors and copyright owners (and thus ignoring the fact that the public would only benefit from the use of works if they are created and disclosed by authors).

Their attack on copyright has been carried out on several fronts. The economic irrationality of litigation in case of mass infringement of copyright on the Internet is often used as a pretext to justify the idea that what is done with impunity by so many people cannot logically constitute an infringement. Concepts of freedom of expression, freedom of seeking information and the right to cultural development have been thrown in the mix to rationalize legalization of unauthorized use of heretofore protected works. A separate trend in the so called “fair copyright” movement is represented by calls for extremely broad interpretation of exceptions to copyright.

Parody is a very convenient example for the “fair copyright” movement supporters to use. By providing examples of successful parodies, the supporters of “fair copyright” claim that copyright unfairly prevents creation and use of parodies. That a plethora of successful parodies have been created under “parody-unfriendly” copyright regimes that refuse to recognize an exception for parodies, seems not to disturb the commentators.

For example, in the UK, the proposal to add an explicit exception for parodies was formulated in the Gowers Review of Intellectual Property (“Gowers Report”) in 200621.. Surprisingly, to prove the point that “an exception to enable parody can create value”, Gowers offers the example of Weird Al Yankovic who has received 25 gold and platinum albums, four gold certified home videos and two GRAMMYs® by parodying other songs, “but had to ask permission from rights holders”22.. It is inconceivable how a special exception can be necessary if there is a living example of an artist who sold 25 gold and platinum parody albums, but never had an urge to create unauthorized parodies. Does the report suggest that he would have sold more platinum albums if he was allowed to create parodies without asking permission? Or would his parodies be any better? Indeed, the example of Weird Al Yancovic clearly proves the contrary, that no special exception for parodies is necessary.

It seems illogical to attribute greater importance to the “parody exception” than would be justified by the relative frequency of creation of parodies compared to the use of pre-existing works for the purposes of criticism, news reporting, research or private study. Overly enthusiastic attempts to introduce broadly interpreted exceptions for parody may signal that the proposal is broader than it appears to be, and that it may be only tangentially related to parodies. The parody exception is only one of many exceptions. It is not “the” exception that will significantly change the balance of interests between authors and the public.

However important the transformative element is in the fair use analysis, it does not take away the exclusive right of copyright owners to authorize creation and use of derivative works. The general idea is that there must be something very special about the parody which warrants a substantially different approach compared to other transformative derivative works. It is well known that Salinger turned down requests from Steven Spielberg and Harvey Weinstein to acquire film rights. If 60 Years is a protected criticism or parody, how is it different from an unauthorized motion picture? If 60 Years is found to be legal, how long will take until a new unauthorized commentary emerges?

Unlike in common law countries where the discussions about parody exceptions are a more recent trend, the parody exception has existed peacefully in France since 1957. Article L. 122-5 of the French Code of Intellectual Property provides that “once a work has been disclosed, the author may not prohibit… parody, pastiche and caricature, observing the rules of the genre”. Despite the somewhat vague wording relating to the requirement to observe “the rules of the genre”, the French courts have been extremely cautious in applying this exception.

The disproportionate worldwide interest in the parody exception is largely due to the U.S. Supreme Court decision in Campbell v. Acuff-Rose Music (“2 Live Crew”)23., the leading (and internationally famous) case dealing with a rap version of Roy Orbison’s song “Oh, Pretty Woman”, as performed by the band 2 Live Crew. There, the concurring24. Justice Kennedy outlined the dangers of an overly broad interpretation of parody and of creating a presumptive exception with regard to parodies:

      “…doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original. Almost any revamped modern version of a familiar composition can be construed as a ‘comment on the naiveté of the original’, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven’s Fifth Symphony or ‘Achy Breaky Heart’ is bound to make people smile. If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. Any underprotection of copyright disserves the goals of copyright just as must as overprotection, by reducing the financial incentive to create.”25.

It is hard to disagree with Justice Kennedy's words. Unless we are prepared to create a parody of our copyright laws, it is imperative that the definition of parody be limited to a very circumscribed area, otherwise practically any infringement could be excused under the umbrella of parody. Indeed, the exception cannot be so broad as to allow the creation of any new works over the existing ones under the guise of parody.

It may seem that the dangers of an expansive interpretation of what may constitute a parody identified in 2 Live Crew by Justice Kennedy are in fact seen as a great advantage by “fair copyright” activists. Indeed, an overly broad parody exception effectively creates a shortcut to a general “public benefit” exception, readily allowing an unauthorized use of an existing work if it benefits the society. I suggest that there are two reasons why a general “public benefit” exception is a bad thing. First, it does not take into account the works that may never be created by authors discouraged by the failure of the courts to protect their works from being used against their will. Second, balancing the interests of various parties is not a distinctive characteristic of copyright laws. All laws are presumably premised on the balancing of such interests. General property laws are also adopted with the view of the public interest in mind. Unrestricted unauthorized use of someone else’s physical property may also have “public benefits”, but no one seriously suggests that such measures be taken. Encroachment of property may only be allowed in some very limited and clearly prescribed cases. I posit that it is exactly the same approach that must be taken with regard to parody.

Copyright laws have always been about the balance of the interests of creators and the public, about whether it is more fair to subject the public’s access to works of art to the whim of the creator or whether it is more fair to deprive the creator of a certain degree of control over the use of his works by the public. In my view, the danger that an overly broad parody exception may evolve into an open transformative use exception is far greater than the damage resulting from a “true” parodist’s failure to publish their unauthorized parody. In other words, if lawmakers and the courts cannot provide a clearly delineated system of rules and definitions that would allow some foreseeability as to whether a particular work would qualify as a parody, then I suggest an absolute ban on unauthorized parodies would be more appropriate than the ultimate uncertainty where an infringer can ex post facto claim that the infringing work is a parody.

I do acknowledge the intrinsic value of parodies and do not necessarily fully subscribe to the words of Ernest Hemingway who once said:

      “The parody is the last refuge of the frustrated writer... The greater the work of literature, the easier the parody. The step up from writing parodies is writing on the wall above the urinal”26.

There are some truly great parodies. In my opinion, the best parodies have been those that did not parasite on the popularity of the originals. The more famous the original, the harder it is to create a great parody, since true parody needs to overshadow the original, and it is usually hard to add much to an already famous work.

The courts should never go into evaluating the quality of parody. A brilliant, sharp and socially necessary parody in legal terms bears the same relationship to the original as primitive, nonsensical mockery. Unfortunately, as with any other kind of creative works, truly valuable parodies will only make up a fraction of the bulk of garbage created by wannabe parodists. Creativity should be supported. However, in case of parodies, supporting parodic creativity necessarily means doing so at the original authors’ expense. I firmly believe that unless very strict rules and limitations are introduced to come along with the parody exception, the price payable by original authors is too high. These rules and limitations must cover both what may legally constitute a parody and how unauthorized parodies may be used. Uncertainty creates serious risks for parodists too. If Mr. Colting is permanently enjoined from publishing 60 Years, he and his publisher will have lost time, efforts and money spent on creating and publishing a work that they hoped would meet the vague requirements for parody. Of course, it is the risk one takes when one relies that their actions will be excused under the fair use doctrine. But today the parody exception is too unpredictable – and this cannot encourage parodic creativity either.

Going back to Salinger’s claim, the defendant’s argument regarding market impact deserves a special remark. Indeed, Salinger has not written a novel since Catcher. No doubt, there is no market substitution in the sense that the public will not be inclined to buy 60 Years instead of Catcher. There are three reasons why Salinger’s claim should not fail for lack of negative impact on the market for Catcher.

First, the analysis is not limited to direct market substitution of the original work and the parody. It also covers potential legitimate licensing opportunities the plaintiff may have and the parody’s impact thereupon. With every new day of Salinger’s refusal to authorize anyone to create derivative works, his exclusive right is worth more. While 60 Years may not ruin the market for Salinger per se, it is the legalization of 60 Years that is very likely to do so. In other words, if 60 Years is found to constitute a protected parody, what would prevent a film company from creating a motion picture based on 60 Years, which would incorporate a good deal of reminiscences to Catcher? What would prevent the emergence of new sequels under the guise of important commentaries and parodies? It so happened that a part of the value of Salinger’s copyright is due to the fact that he never authorizes others to touch Catcher. It only takes one shot to break a mirror.

Second, it would be incorrect to use the negative impact on the legitimate economic interests of the original author as the sole or even a dominant factor in the parody analysis, because – by way of analogy – if someone was to make pirated copies of software or music CDs and give them away for free to the homeless, one could say that the homeless would never be able to buy the authentic CDs, therefore the copyright owner suffered no loss. There could even be cases where copyright infringement may have a beneficial economic effect on the market for the original author’s works, because the infringing work may in fact revive interest in the original work. However, it does not make these acts any less an infringement.

Finally, there is nothing wrong with an author’s decision to live secluded from the public eye after publication of a phenomenally successful book. Salinger must have made this decision on the basis of trust in the protection offered by the copyright laws. This is the deal between the author and the public. The public should not attempt to force an author into writing new works by removing protection from the existing ones. That the value of the work is so great that it allows the author the luxury of living as a recluse should not be used against the author by depriving the author of the promised protection.

On June 17, 2009 the federal judge Deborah Batts granted a temporary restraining order enjoining the defendants from publishing, advertising, selling, or otherwise distributing 60 Years. It is clear that this case will go through all possible stages of appeal until the losing party loses the final appeal. Apart from the issue of whether Catcher’s protagonist may be protected by copyright separately from the book itself, this case will set an important precedent for the treatment of parody.

If Salinger fails to permanently enjoin dissemination of 60 Years as a result of the court’s finding that it constitutes protected criticism or parody, it will signify a very substantial diminishing of the value of the right to create and use derivative works. It will mean that a sequel to a pre-existing work may not require authorization from the original author, if the defendant suddenly remembers that the sequel was in fact created as an important commentary or parody. This is precisely what Justice Kennedy was warning against in 2 Live Crew. If 60 Years is anything less than a true parody or criticism, the decision in favour of the defendant would signify the emergence of a general “transformative use” exception, incompatible with the exclusive right to control derivative works.

With today’s attempts of the activists of the so-called “fair copyright” movement to use parody as a flagman ship to break the ice of protection that copyright laws afford, parodists seem to be in a win-win situation. If the author of the original work does not sue them, then they are left to parasite from the fame of the original work. If they do get sued, then the activists will make sure that the parodist becomes widely known as a martyr standing up for the rights of creators of transformative works, if not simply famous as a writer27.. If the parodist successfully defends the case, they will be able to sell many additional copies of the parody based on the fame attracted by the lawsuit. Even if the parodist loses the case and the distribution of the parody is enjoined, the newly acquired fame generated by the lawsuit will allow the parodist to sell whatever he or she writes next in their new status of celebrity.

The courts need to come up with a pronounced “Enough!” to the attempts to compromise copyright through labelling (often in the alternative) each case of non-literal copying of a pre-existing work, a parody. The parody exception cannot be claimed as an alternative. This has been understood in France28., where the dual requirement of recognisability and substantial creativity precludes a defendant from using the parody exception as an alternative to the defence of not borrowing from the underlying work. In other words, the defendant cannot say: “I did not copy this work, and if I did, it was a parody”. Parody requires the parodist’s positive intent to borrow from the underlying work to create a new work with a comic effect29.. An infringement does not become a parody simply because the result it funny. Much less when it is not.

60 Years looks like a blatant attempt to test how decidedly the courts would be prepared to turn their backs on authors for the dubious public benefit of having access to the book whose primary value is that it is either a sequel to or a commentary of the famous pre-existing work. If the courts are unable to defend Salinger, an iconic example of an author who had dedicated his life to preventing unauthorized use of his prior works, then we should ask ourselves, why do we still have copyright laws at all and whom they are supposed to protect.

Categories:Intellectual Property:CopyrightIntellectual Property
 Values:PassionFreedomIndividual Rights

Apr06th

2012

April 6, 2012 @ 10:11:36
Contrary to the Best Interests of the Public
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Yesterday, I received a call from the Law Society of British Columbia. It appears that a lawyer informed the Law Society about the video ad that I posted on this blog on April Fools’ day.

The Law Society’s position is that the video is a marketing material whose contents are contrary to the best interests of the public.

I decided to take the video down, even though I disagree with the Law Society’s conclusions.

First of all, there is no such thing as “best interests of the public”, because no such entity as “the public” exists. Each member of the public has his or her own interests. No person or organization can claim to represent the interests of a non-existing entity.

Secondly, in fact, I do believe that the contents of my video were beneficial for the interests of those who were choosing to watch it, because it allowed them to decide whether or not they wanted to be represented by someone who does not necessarily look or act like the stereotypical lawyer.

As I stated earlier, I decided to take the video down, since a fight the Law Society would distract me from the objective of building my firm and helping my clients Protect their Ideas and Cover their Assets™

Now the video is private and only available to my friends.

Categories:Values:FreedomIndividual RightsPassionIntegrity
 Website Updates:Website Updates

Feb13th

2012

February 13, 2012 @ 21:49:28
Why Today's Copyright Laws Make No Sense
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Most people will agree that today's copyright laws make no sense. Many of them would have a hard time explaining why. Here is my take on it.

1. If the only purpose of copyright laws is to create minimal conditions under which talented people are not going to refuse to create, then our copyright laws provide WAY TOO MANY unnecessary rights to copyright owners.

2. If, on the other hand, copyright laws are to protect the vulnerable party that, in absence of such laws, would be unable to sell the results of their work on their terms, then our copyright laws provide WAY TOO MANY “user” exceptions.

3. The worst thing about our laws is that they are expressly attempting to create a balance between the interests of copyright owners and users. Same as creating a balance of interests between rapists and their victims.

4. Before any meaningful debate about modernization of copyright laws can happen, there must be a debate on the foundational level as to WHY we have copyright laws at all.

Categories:Intellectual Property:CopyrightIntellectual Property
 Values:Individual RightsPassion
Additional Tags:PhilosophyFair Dealing

Jan09th

2012

January 9, 2012 @ 21:58:34
Common Roots of Expanded Fair Dealing and the Occupy Movement
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To be able to practice law, lawyers must know what the law is. This does not prevent some of us from spending a lot of time thinking about what the law should be. The most important part is to be able to know one from the other. This article is based on my understanding of what the law should be, and I’m not deterred by fact that there are several provisions in the existing law that go against that understanding.

This article develops what I have written in Copyright and the Great Socialist Degradation, Failed Business Models of the Past, Eh?, and Modernization of the Inconceivable.

It is well-settled law and also the mainstream understanding that copyright exists to balance interests of creators and users. As stated by the Supreme Court of Canada in Théberge v. Galerie d’Art du Petit Champlain inc., the balance sought is the balance “between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. In the U.S., the protection of copyright is now invariably linked to whether it would “promote the progress of Science and the Useful Arts”.

In my opinion, this approach is diabolically incorrect. I don’t even know what’s worse – that it is settled law or that it has become the mainstream understanding. It is especially alerting when this argument is brought up by the supporters of strong copyright laws.

In this paradigm, copyright is seen as little more than an unfortunate inconvenience that we all must suffer to be able to enjoy that what is created by others. This paradigm is also based on the assumption that everything ever created by others should be readily available to the masses, subject to certain pesky reservations invented to appease greedy authors and corporations.

It is no wonder that with preponderance of this approach, more and more people genuinely believe that today’s copyright laws are “ridiculous”, “antiquated” and “crazy”.

Google’s copyright counsel, William Patry is absolutely right that copyright is not the basis for creativity. J.S. Bach wrote more amazing music than most other composers combined – before the advent of copyright laws. A great many designers upload their works online for anyone to use them freely. Soviet Union had copyright laws that only provided to authors the right to be recognized as the author, the right of first sale and a right to a "fair remuneration" (the amount of which was determinable by the government) for subsequent uses of the works over which authors had no control whatsoever – yet many great works were created in this period of Russian history.

However, Mr. Patry is dead wrong when he concludes (I oversimplify here) that because authors would continue to create even without being granted the full scope of exclusive rights and because copyright laws otherwise fail to fulfill one or another social purpose, governments should then only confer legal monopoly on copyright owners to the extent that such a grant would add value to the public.

The danger of this paradigm is that once it is accepted, today’s copyright laws indeed appear ridiculous. If the only purpose of copyright laws is to make sure that the consuming public be put to the least possible trouble as it consumes whatever works have been, are, may and will be created by other people, while making sure that the creative potential of authors is exploited to the fullest extent, then today’s laws are truly insane. There is no conceivable reason why authors (and subsequent copyright owners) should have all rights enumerated in our copyright laws, if the only motivation behind them is to take care of the public who may find it beneficial to enjoy these authors’ works. As I wrote in here, "provision of a bare minimum of food by a master to his slave, only sufficient for the slave not to die and to keep working, can hardly be called a ’balance of interests’".

The root of this problem is in the false premise that copyright laws exist for the benefit of the public, the collective. The other side of this premise is that somehow by virtue of being born in the shape of a human being, one should expect to have free and unrestricted access the legacy created by others.

I strongly believe that it is entirely irrelevant whether the public, our children and the future generations will benefit from the legal recognition of the right of creators to control the use what would not have existed but for their creative input. Interests of users should only come into play in the most limited of cases, where there is clearly no detriment to legitimate interests of copyright owners. The only exception to the “no detriment” rule should be the use of insignificant fragments of a previously created work for the purpose of critiquing that particular work, even if the copyright owner’s interests would suffer. The reasoning behind it is not that the creator should not be able to control the use of his works, but that the creator should not be able to use his copyright to silence opinions of others about his work.

Lawrence Lessig and Jennifer Jenkins lament over the works of Shakespeare that may not have been written if he had been required to obtain permissions from prior sources. This is supposed to develop into the following argument: because unauthorized use of someone else’s works may lead to the creation of a masterpiece that will be enjoyed by the masses, would it not be reasonable to disregard the interests of the author of the first work? My answer to that question is no. Interests of the collective do not trump the rights of the individuals – no matter how much benefit the collective may derive as a result of infringement of such rights.

The arguments about whether copyright laws should benefit the public only come into play in the paradigm where the interests of each individual are subordinated to the interests of a group, a collective, or "the whole society" (which, of course, is a non-existent entity, since society is nothing more than a collection of individuals each of whom has their separate interests).

This is where we see the common roots of the Occupy movement and the appeals to castrate copyright laws and create guaranteed rights for the public to consume something created by others.

Just like the Occupiers believe that interests of the 99% (although the number has been proven to be greatly inflated) should dictate the amount of property that the 1% should be “permitted to keep”, copyright collectivists believe that the interests of the public should define the scope of rights of copyright owners.

I do not see a conceivable reason why an author should not have the right to prohibit libraries from making his books available to the public. Or to put it differently, I do not see a conceivable reason why we became accustomed to expect that libraries should have the right to make these books available even if the person without whom the book would have never existed argues against it. To those who say, “well, this is the implied contract that authors make with the state: the state protects the results of authors’ work in exchange for authors making their works available to the public” I counter: “how is it different from saying that the government agrees to protect merchants from their goods being stolen on the condition that they will be mandated by law to give out some of them for free to the less fortunate”?

Just like a person who does not have enough money to rent a home should not have the right to demand that he be provided with a place to stay (housing is not a right); just like a person who cannot afford a doctor should not have the right to demand that others pay for him (regardless of what the law says, healthcare is not a right); just like a person cannot demand that the government should extort money from others to pay for his children’s schooling (regardless of what the law says, education is not a right); no one has a right to enjoy someone else’s works unless the author (or the subsequent copyright owner) and the user voluntarily agree on the terms of such use.

There is nothing more dangerous than buying into the arguments about what benefits the society as a whole.

Millions of people from different countries honestly believed – just some 70 years ago – that killing Jews and Gypsies would somehow benefit the rest. According to modest estimations, 65 million of people were killed by their own regimes in China, 20 million in the Soviet Union, 2 million in Cambodia, 2 million in North Korea – all in the name of creating a better life for the collective at the expense of individuals that make up the collective.

Placing the interests of the collective over the interests of an individual is the most horrible characteristic of all the barbarian regimes – no matter how benevolent their goal appears to be. People are not the means to a greater end. Authors do not exist to ensure that the rest of the globe enjoys a more inspired lifestyle; they pursue their own happiness. If in the process of this pursuit they are fortunate enough to create something that most of us value, we should be forever grateful to them. If they choose to give away their rights to the public (and as we can see, many do) – great. But just because a lot of us may enjoy their works does not entitle us to their unauthorized use. Authors are not our serfs – regardless of how great their works are. If they don’t, feel like sharing for free, there is no moral reason for us to extort a free license from them.

Categories:Intellectual Property:Copyright
 Values:PassionIntegrityFreedomIndividual Rights
Additional Tags:CollectivismFair DealingPhilosophy
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