The Undiminished Flame

In answer to the response to my last post, I thought I would elaborate a bit on copyright law.

My first assumption is that justice is served only when the victim of an injury is made whole. That is, the purpose of a justice system is to restore the victim to the point (or as closely as possible) they were at before the injury occurred. Justice is not about punishment or revenge. This is because the victim has a right to compensation, and it is only by exercising this right that justice is legitimately pursued. The victim does not have a right to punish or seek vengeance against their attacker. The only thing they have a right to is that which was taken from them as a result of the injury.

My second assumption is that the so-called “theft” of intellectual property falls into the rather large category of victimless crimes. And if there is no identifiable victim, then no crime has occurred.

So, a victim of embezzlement should have little problem proving that they suffered injury — one day the money was there, the next day it wasn’t. A criminal investigation would hinge entirely on the exercise of this victim’s right to compensation. Search warrants, obtained from a court, based on probable cause, would allow the legitimate suspension of a suspect’s right to privacy. In other words, the victim’s right to compensation trumps the suspect’s right to privacy.

Not so for the author of some intellectual property (especially that which is in some digital format). Theft does not occur when a copy is made because nothing is taken from the author. The argument that potential profits are stolen is also untenable because the author must then prove that the copies that were given away or sold at a lower cost would *still* be sold at the author’s asking price. Since this cannot be proven to any reasonable level of satisfaction, no injury has occurred. If no injury has occurred, there is no victim. If there is no victim to exercise his right to compensation, any suspension of another’s right to privacy in order to investigate the alleged crime cannot be legitimate. Therefore the law is unenforceable, and is no law at all.

Here is a brief excerpt from a letter detailing Thomas Jefferson’s thoughts on this topic:

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me … Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody…”

This quote very succinctly sums up the issue for me. Society has attempted in the past to grant this exclusive right, but we have a reached a point where the will and convenience of our society are now in conflict with one another.

“Intellectual property,” as defined by our current laws, is no more property than the flame on top of a candle. Technology used to be such that one could not convey the flame without selling someone the candle. Today, that is no longer the case.

Leave a Reply