By: Mark R. Malek
As many of you know, I am quite active on twitter. Feel free to follow me if you would like @ptolawyer. With over 23,000 followers, I often discus intellectual property topics using the twitter interface. For the most part, I provide updates to intellectual property law and answer questions of some of my followers. I have met many colleagues on twitter, and often use it to bounce questions off of them. I especially like hearing about the success of some of my colleagues in the patent and/or trademark prosecution process. Twitter is also a great way for me to follow the various conferences that may be going on around the country.
Over the past couple of days, however, I found myself in a debate with a few twitter users about copyrights. For the most part, I understood most of their points, and I did not necessarily disagree. The big issue was the extent of copyright protection. At least that is what I thought it was. Turns out that a few people who decided to chime in were trying to advance the position that copyrights should be abolished completely.
That’s where they lost me. Let me first address the argument that copyrights are overly broad and that they are sometimes overly enforced. I agree with the later part, but not so much the first part. I guess if someone is trying to use copyrights to enforce something that they are not meant to protect, there is an issue. For example, I have seen too many times over zealous parties trying to enforce the function of software using a copyright. Let me say this in no uncertain terms – COPYRIGHTS DO NOT PROTECT FUNCTION. There simply is no discussion to be had on this.
Copyrights do have their place though, which is why I even begin to understand where the copyright abolitionists are coming from. During the twitter debate this past week, the copyright abolitionists were trying to explain to me how copyrights infringed their civil liberties and that Congress is not empowered to provide for copyright protection. Seriously? The United States Constitution specifically provides Congress with the power to promote arts and science through copyrights and patents. Guess what? They did just that.
Let me take another approach regarding the copyright abolition view. Let’s pretend that you are musician and you and your band have scratched and clawed to make it. You have played in dive bars on late Friday nights to a rowdy crowd (yes, I have been a part of those crowds before) and you might be paid barely enough to cover the expense of the fuel to and from the bar. One day, a song of yours becomes really popular and it turns out that there are some people who are willing to pay for your music. You have finally made it, and the way that you are going to make a living from now on is to sell your music. Unlike the big music business of today, you decide to go it alone without a label, put your music up on iTunes, and sell it for a reasonable price. Despite selling it for a reasonable price, some folks decide that it is not worth paying for it. These are the ones that start sharing your music in the form of digital files on some nefarious internet sites. What can you do? You can attempt to use copyright law to stop them from distributing your music without your consent and, more importantly, without paying you.
The copyright abolitionist is ok with this. Apparently, no one should be compensated for creating new works of art. To be fair, the copyright abolitionist does not come out and say this. Instead, they stop short and just say that there should no longer be copyrights. Ok, tell me the end of the story. How does the creator of an original work of art ensure that the original work of art is not misappropriated? Is the creator simply left to rely on the decency of people and hope they will pay for something that is otherwise available for free? Get real.
I guess that brings me to the question of the day to the copyright abolitionist – what does the creator of a work of art do if the work of art is misappropriated in the absence of copyright?
I will continue to post on this topic. Let me know what you want to chat about and I’ll write some more. I figure my next article will be about the over enforcement of copyright. Perhaps I’ll even discuss some copyright cases that I have had in the past and how some copyright owners are just out there on what they believe their rights really are.