News & Analysis
Can a Garden Be Copyrighted?
A living garden is not eligible for copyright protection, the U.S. Court of Appeals for the 7th Circuit has ruled. The court's Feb. 15 unanimous ruling in Kelley v. Chicago Park District partially affirmed and reversed a lower court ruling about a wildflower garden that artist Chapman Kelley installed in Chicago's Grant Park. The Visual Artists Rights Act of 1990 (VARA) amended the Copyright Act to give creators of some types of visual art two rights — attribution and integrity. The integrity right enables an artist to stop changes to the work that are "prejudicial to his... honor or reputation" and to seek recovery for unauthorized changes. The opinion authored by Circuit Judge Diane Sykes noted that "VARA supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards." Circuit judges Daniel Manion and John Daniel Tinder joined the opinion. The 7th Circuit agreed with Judge David Coar of the Northern District of Illinois that a living garden is not copyrightable. It affirmed Coar's ruling on Kelley's VARA claim despite misgivings about Coar's conclusions. This includes findings that Kelley's "Wildflower Works" qualifies as a painting or sculpture but it's not original enough for copyright. – Law.Com
Dominant Social Theme: It takes perpetual ownership to build a garden.
Free-Market Analysis: We thought we would return for another look at copyright since it is such a controversial subject and received a good deal of feedback yesterday. The article we want to comment on is certainly controversial as well. We can see from the above excerpt that the concept of intellectual property really has no boundaries at this point – certainly not in America. IP is basically whatever courts decide it is.
But really, once you have gone down this slippery slope (for a libertarian anyway), what constitutes IP? Is it a garden, as mentioned above? It is possible, for instance, that an artist could copyright a house or some other such standalone object – or certainly the walls on which a picture had been painted. That would mean presumably that the former artist-owner could demand some sort of payment from later owners as regards a variety of circumstances. Does such an idea sound strange? What about this law passed by the Australian government back in 2006:
Australian Govt enacts bizarre copyright law ... The Australian Government has finally enacted fair use amendments to the copyright act, but in a bizarre and unexpected twist, recordings can only be watched once, after which they must be destroyed. The Australian Goverment has finally enacted "fair use" amendments to the copyright act, but in a bizarre and unexpected twist, recordings can only be watched once, after which they must be destroyed. Sure, you'll no longer be a criminal every time you hit the record button on your VCR (or PVR), but if you want to watch a TV program twice, it's a criminal record for you, baby. (-APC)
What was once simple grows complex; a state of affairs enhanced by the legal profession. And this is the kind of law that is created out of misapplied initial assumptions in our view. As we pointed out in yesterday's article, Why not let the market itself decide? This is in line with the larger anarcho-libertarian perspective that the best government is the one that governs least, or even not at all. It certainly was not Ludwig von Mises point of view as discussed in yesterday's feedback thread. Mises seems to have believed that copyright and patents were necessary to compensate an author or inventor for his time and effort. Without the ability to gain appropriately from creativity, Mises worried that creativity would dwindle as would inventions.
In the feedback thread, we called this view "naïve" – in contrast to Mises' many superb insights about human action, etc. – because it seems to us that there are plenty of incentives for people to create, and that people will do so regardless. A successful invention or work of art opens up many doors. People can teach, endorse products, tour and gain appearance fees. In fact, many modern musicians do not gain much from copyright and royalties but make most of their money from appearances in any case. The IP argument seems to be one where real-life outstrips rhetoric.
Another issue is whether a lack of codified IP ground-rules would have a negative effect on partnership between large, corporate entities. Perhaps so – and so what? We don't believe in large corporate entities anyway. We are involved in a hypothetical free-market discussion here, and absent legal decisions, corporations themselves would not exist anymore than copyright law.
In lieu of corporations (as we have suggested) would be smaller groups of entities, family partnerships and the like. These groups would be far more responsive to the community, being of it; and we would tend to believe as well that a lack of a "legal" IP foundation would not have a great deal of impact when it came to what ventures such entities would pursue. In fact, we would propose that patent law itself does not correlate directly to societal innovation which is disparate and uneven. Was America's industrial revolution the result of patent law? Or Britain? Obviously cultural and sociopolitical factors play a part – else why do some industrial countries (with similar patent laws) do better than others?
We would have to conclude that patent law is not necessarily a fundamental instigator of human creativity. We also believe the Misesian stance is naïve (theoretically anyway) because once the state becomes the arbiter of what creativity is and how it can be compensated, there is no end to the mischief that can and will be done. The "garden" that artist Chapman Kelley started working on the garden in 1984 wasn't kept up properly, which is why the city stepped in; but thanks to an IP law, a simple matter of remedial gardening turned into a court battle.
Thus it was, eventually, that Kelley charged the city had violated his "right of integrity" under the Visual Artists Rights Act (VARA) of 1990 and claimed the city should have given him "reasonable notice" before making changes to his composition. Initially he won his lawsuit and was awarded a dollar in compensation, much less than the US$25 million he'd sought. But now even that decision – and its award – has been reversed.
The current court made the determination that Kelley was not due damages based on what might be considered an arbitrary judgment. It ruled that though the garden might be considered conceptual art, it was not eligible for copyright because it was not a written work or a "work of visual art" such as a "painting, drawing, print, or sculpture," or an exhibition photograph.
It turns out that under VARA a protected work must actually BE a painting, photograph or a sculpture. Additionally, Wildflower Works – as a garden – lacks the stability that may be necessary to invoke VARA. Of course, we would think it a valid question to ask why copyright extends only so far and no farther. Why couldn't a brilliant house like Falling Water be copyrighted? Or an individually designed car? Or even, to take matters further, a special meal? Or a genetically modified animal? Or a breed of dog? The possibilities are endless in the increasingly elaborate funhouse of "ownership" that the legal profession is devising for society at large.
Conclusion: We come back to the conclusion we stated yesterday. Ownership ought to be a matter of what can negotiated, contractually obligated and enforced – but privately, on a case by case basis, not via the state. If people want to make elaborate statements about ownership, there is nothing in the free-market to stop them save natural law. Let people spend their own money to back up their notions about ownership. Let people enforce such notions without the court system (and the force of the state) as best they can. Copyright would soon be rationalized by natural law. And it should be in our opinion.
Posted by Zenbillionaire on 02/20/11 02:13 PM
GNU doesn't prohibit the commercial sale of Copyleft software, however the complete sources must be delivered along with the product. So let's say I'm a company like Red Hat and I sell an operating system, associated tools and ancillary components (compilers, linkers, editors, windowing systems, data base engines, etc.) that are all based on either stock software available under GNU copyleft or modified version of it (also of course freely available under copyeleft).
My customers purchase the software from me because I support it. I integrate changes from all over the world with the package you buy from me. I test the changes and make sure everything plays well together. You pay me for this service and that's how I make money. If you wish, you can just take a copy of the sources yourself and tell me to take a hike, which puts a ceiling on how much I can get away with charging you for the service.
I hope this brief example helps clarify the seeming contradictions.
Posted by Jeannie Queenie on 02/20/11 12:54 PM
Regarding GNU,I am confused by two disparate messages being conveyed on the GNU site. On the one hand, it says, "Actually, we encourage people who redistribute free software to charge as much as they wish or can. If this seems surprising to you, please read on."
And yet, on the home page COPY LEFT we read in the first paragraph,
"Copyleft is a general method for making a program (or other work) free, and REQURING all modified and extended versions of the program to be FREE as well."
Excuse me for being slow here, but I see two contradictory ideas being presented. Please clarify. thank you.
Posted by Zenbillionaire on 02/20/11 04:34 AM
For further information on the concept and practice of Copyleft, see
Click to view link
And have a nice day :) (that goes for you two Agent Weebley).
Posted by Zenbillionaire on 02/20/11 03:59 AM
I hold a few patents and some copyrights, they've never done me a bit of good. One of the patents I hold was granted to the company I worked for at the time of the invention and not only did I receive no compensation for it, the company fired me shortly before the patent office granted it.
I got a nifty plaque out of the deal though, it sits in the corner of my office under my synthesizer :) The only legitimate purpose I've ever found for it is to provide a means to communicate the details of an invention to the rest of the world. The system is very badly managed and extremely difficult to use. Google blows the doors off the US Patent office in that respect. The whole system should be shut down, it's a waste of tax dollars.
Almost 20 years ago I figured out that a person could either write patents or do real work. I tried doing both for a time and decided I'd rather work. The truth is that IP (at least in my experience) doesn't protect the inventor at all, rather it protects The Man against the inventor.
Without a large and well funded legal staff it is *very* dangerous to introduce a new product; if that product's successful the inventor stands to lose huge quantities of time and money defending against organizations with deep pockets (and the associated legal staff). IP in no way benefits the inventor. Patent and copyright law is designed to be a large and very accessible handle on truly creative individuals.
When necessary I employ the Free Software Foundation's Copyleft on all of my work. I sell my products and I do protect them using technology rather than law. A person might think that publishing key components of an invention would be foolish, it is not. I benefit from the work of thousands, perhaps millions, of others who improve on my ideas, and due to Copyleft must make those improvements freely available to me and to others. I benefit, they benefit, the world benefits.
There is no shortage of good ideas in the world. Anyone who thinks they're going to have an idea that will make them rich in perpetuity while they sip Pina Colada's on the beach is doomed. IP laws are a pox on innovation, they are "The Big Lie".
Reply from The Daily Bell
Thanks for these insights.
Posted by Bionic Mosquito on 02/20/11 12:09 AM
@DB / Kurt
"...and without (collective) remorse."
I would add "and without individual or collective consequence or liability in case of error or misconduct."
Posted by Kurt on 02/19/11 03:26 PM
"... And voluntary associations are NOT governments."
Say, a group of neighbor wanted to voluntarily create an association whose purpose was to protect the neighborhood from criminals. The neighbors may vote to unanimously assign some of their inherent individual right to self-defense to a few burly neighborhood guys.
The neighborhood association might create a set of rules to determine what criminal behavior is and the appropriate punishments ' banishment, flogging, tar and feathers, etc. It seems this would be a basis for a rudimentary government. I concede that to be truly voluntary all members must agree or maybe they all agree to a majority vote in certain limited, defined situations. Numerous people did not agree with the U. S. Constitution and were free to move on to start their own country/government. We don't have that luxury today with some state wanting to claim every bit of territory.
In an ideal world the use of force would only be used in self-defense against an aggressor, but Nelson Hultberg in his "The Golden Mean" book points out that in solving a crime and bringing the criminal to justice, suspects who are innocent may have force initiated against them ' arrest and temporary incarceration ' in the effort to find the perpetrator. This would be the case whether it was a voluntary or government police force.
Reply from The Daily Bell
Yes, force can be brought to bear on individuals for a variety of reasons and in a variety of ways regardless of government. But we would argue that only government uses force in a regular, clinical and regimented - ongoing - manner, purposefully and without (collective) remorse. It is this that separates government force from other applications.
Posted by Bill Ross on 02/19/11 08:46 AM
@DB: "This is complete misrepresentation of our position."
Them's fightin words...
In reality, disagreement among the intelligent is an opportunity to converge on truth.
You have not exactly said it, but I believe your misgivings with a precise definition of the "rule of law" is the ASSUMPTION that, because it exists, some organized force (AKA: states) MUST administer and enforce it. States make the same FALSE assumption and, the "rule of law" (repeated again):
Click to view link
... is the essence of the law's pretexts (promises, rationale for existence), once all the rhetoric is stripped away. The law (now, opinions of corrupt individuals on the bench) HATES being confronted with an objective, measurable summary of their own stated position which are just false promises, pretexts to prey, refuted by their own actions, dangerous hypocrites ALL, too incompetent to determine their own survival, let alone OUR collective survival.
So, when I bandy about a precise definition of the "rule of law", I am really deliminating the REAL boundary between civilized and criminal (barbarian) which, when crossed, destroys civilization among the INDIVIDUALS involved (predation has occurred). If the scope of this predation is TOLERATED to gain significant traction in civilization, well, civilization collapses.
I am NOT stating that states should administer, enforce and adhere to the "rule of law", they cannot, since virtually ALL of their goals are achieved using some combination of force / fraud, making them criminals, by definition.
I AM stating that, among the honest and intelligent, the "rule of law" is the intellectual standard by which to personally and collectively determinine when "blowback" is called for, the target and the goals to be sought in restoring balance of power between individuals, peace and civilization. That's all.
So, its up to individuals and private entities to enforce the "rule of law", when conflict occurs, to resolve it.
If conflict does not occur, well, anything goes, including those among us who believe that voluntary servitude for political and religious reasons is tolerable and thus, consented to.
Without consent (negotiation failed, conflict), the "rule of law" can (and once did) enforce the boundaries between individuals, to insure that neither is predator, nor prey.
The "rule of law" is an intellectual, moral force, distributed throughout humanity, not the private "turf" or monopoly (copyright) of any group. For me, it is non-negotiable. Cross the line and, beware.
Hope this clears matters up.
Posted by John Danforth on 02/19/11 12:49 AM
Thanks for your kind words. The things I work with build upon thousands of other specialized inventions. I stand on the shoulders of giants (and I support them by buying their products to include in my own). I suppose since I refuse to pay lawyers, I must be an intellectual communist! Ha!
Posted by Huh on 02/18/11 11:53 PM
Hmmm, gotta put in the customary comment about the "@ Copyright 2008-2011 All Rights Reserved" towards the bottom of this webpage.
Why not go for CC licenses, or maybe even the mysterious and playful copyheart?
And using the WTFPL would be pure pwnage in the age of the internet... think about it.
Click to view link
Reply from The Daily Bell
Very funny. And quite convincing.
Posted by Dave Narby on 02/18/11 11:10 PM
Ah, I see Intellectual Communism rears it's ugly head on the DB once again.
I recieved no small measure of abuse from you the last time I challenged you, let's hope you can be a bit more equitable this time..
Inquiring minds might want to read this
Click to view link
And then ask yourself: who would it serve to eliminate IP? A suggestion to the DB: You might want to re-think your support of Intellectual Communism. It degrades every other thing you do.
Updating IP laws to reflect 21st century realities is something reasonable people can discuss. Eliminating it altogether is in my not so humble opinion, unreasonable.
The concept and practice of IP is quite literally as old as democracy itself.
Reply from The Daily Bell
Do you purposefully conflate communism with free-markets or is it just that you cannot help yourself? Allowing the market to decide on just compensation is not communism. Allowing people to enforce their own price mechanisms - if they can - is not communism. Inviting people to create (or participate in) workable, informal judicial procedures is not communism. You are either obtuse, delusional or facetious. Perhaps a combination?
Posted by Bill Ross on 02/18/11 08:54 PM
"People with wealth and power can protect their property, intellectual or tangible, through private police forces"
I think this is true, apart from the fact that "their property" is "our STOLEN property" and their "private police forces" are, in actual fact, OUR "public police forces" (paid for by OUR taxes)
As to the "rule of law":
Click to view link
... I must agree with you and disagree with DB. It is the interest of no honest person, honest elites included to have criminals running amok, collapsing civilization (peaceful trade / commerce).
Reply from The Daily Bell
"I must agree with you and disagree with DB. It is the interest of no honest person, honest elites included to have criminals running amok, collapsing civilization (peaceful trade / commerce)."
This is complete misrepresentation of our position.
Posted by Geoff Masen on 02/18/11 08:11 PM
"Maybe those who think creative people should just give away their inventions, would be willing to be patrons."
I think it's many of the creative people who reject IP. Agreed about the corporations, but ultimately the corporation is a board of self-serving boomers. The younger inventors are each others patrons in a way and have generally rejected corporate notoriety in favor of self gratification. I think they smell something funny about the traditional corporation and are choosing cooperation instead. In any case they're not all zombies.
Posted by Kurt on 02/18/11 06:37 PM
Bach and Mozart had patrons who provided for them while they created. Today, corporations are the patrons. As a prerequisite to employment an engineer signs away his property rights to any invention created in conjunction with his work at the corporation.
Like the dukes and barons of old, the corporation owns the IP of their employees. While it's true that creative people will still create, they also have to feed themselves and their families which may require spending time at jobs with minimal creativeness thus taking time away from developing inventions that might add values to others' lives as well as their own.
Say, I spend years developing a useful invention ' one that numerous people would value. What are my options? Keep it for my own use. If I have enough money, I can produce and sell it myself until someone else reproduces it at a cost I can't compete with (as previously mentioned). Maybe I can sue in court to restrain him from reproducing my invention, but then the courts are whimsical and are after all creatures of the state. Or maybe I can hire a private police force to intimidate my competitor into stopping production ' free market or anarchy?
Alternatively, I could find a patron who would fund production and sales, and negotiate a cut and trust in his ability to milk production for as long as possible. Possibly, I can sell the invention outright to a company and hope I get enough from the sale to fund a few years of more inventing. Perhaps there are additional alternatives, but the bottom line is that useful inventions take time and usually money to develop and new inventions will be postponed to the degree the time and money is lacking. Maybe those who think creative people should just give away their inventions, would be willing to be patrons.
People with wealth and power can protect their property, intellectual or tangible, through private police forces, but I thought that the rule of law and its equal protection of individual rights was created to help those who lacked sufficient ability/funds to protect themselves and their property. Yes, you could create an "Inventors United" organization and pool resources, but isn't that tantamount to creating a kind of government or at least something like the RIAA?
Reply from The Daily Bell
"I thought that the rule of law and its equal protection of individual rights was created to help those who lacked sufficient ability/funds to protect themselves and their property."
You probably thought wrong ... And voluntary associations are NOT governments.
Posted by Clive Edwards on 02/18/11 03:39 PM
Protection rackets abound. They all have the potential to become like ethnic community protection rackets, where you pay the gang in order to not have your restaurant burn down.
I believe 9/11 was (and still is) a racket. Lack of competition encourages rackets. Insurance can be a racket. For example, ICBC is the mostly monopoly car insurance company in British Columbia, and it is a racket (don't like how they operate or their cozy relationship with the motor vehicle branch? Too bad, pay up or else).
Ethical behavior cannot be legislated. It either exists or it doesn't. The dirty little secret of life is that when negotiation and agreement don't work, violence is the only answer. That is what Thomas Jefferson meant when he said "the tree of liberty needs to be watered by the blood of patriots and tyrants". We can be as civilized and libertarian as we like. As soon as any individual or group stops being civilized the game has changed. If you can't compete and prevail in the new game, you'd better be able to hide.
Posted by Agent Weebley on 02/18/11 03:11 PM
Wanna hear something funny? Occasionally, when someone on our site embeds a video, and you click on it to play it, you get a message saying:
"This video is restricted on certain sites by EMI due to copyright infringement," or some blather to that effect.
There is also a small integrated link below that says: "Watch on YouTube."
To me, that means they are condoning free sharing and everyone is doing nothing wrong to:
(a) have anything embedded on any site,
(b) allow anything to be watched on YouTube, as well as
(c) allow anything to be uploaded to YouTube
(d) allow anything to be downloaded from YouTube
I have seen EMI, and Sony do this to our site, but cannot remember if Warner has done it to us yet. If anyone is browsing through the songs, could you let us know where Warner has done it, please? Much appreciated. I try to adjust to another version whenever this message is received; quite irritating and a nuisance to weed them out. MacGyver can only do so much, you know.
Weeds? More like posies.
A ring, a ring o' artist-cons,
A pocket full o'diamonds,
Atch chew! atch chew!
Copyright falls down!
Click to view link
Posted by SP on 02/18/11 02:28 PM
A true artists work would be so unique that it shouldn't need a copyright. As the internet has proven to the music industry their is profit in the free transference of music. I would like to copyright my sons blue eyes so no other child could have them since I created my son with help from his mother.
There is no end to this lunacy. If you don't want your work to copied hide it and find new work.
Posted by Bill Ross on 02/18/11 01:13 PM
OK, DB, I've made up my mind regarding IP and copyright.
It is unenforceable outside of what you can personally protect and control the release of. Any attempts to enforce outside of the personal or group IP control equals ownership, acting using their own defensive resources is a social / economic cost, attempting to prevent people from exercising their freedom to copy which can only be achieved by draconian intimidation.
We are, after all, a "monkey see, monkey do species".
Proceeding on this course will destroy innovation and result in information control monopolies. The main thing driving this MUST be control of the internet, a very big collective loss to organized power / monopolists.
So, as I understand DB's position, I concur.
Posted by Geoff Masen on 02/18/11 01:05 PM
I don't know if IP has ever enriched an inventor. An inventor with a novel idea, whose invention embodies a novel idea, has no equal. A functionally equivalent design would necessarily mean that the design isn't novel and therefore should be prepared to compete. Are competent inventors so easily shut out?
It seems to me that much of the IP today has never been implemented and ends as a barrier for someone else that might be so inclined. It makes perfect sense in our something-for-nothing culture anyway. I vaguely remember reading about the PB&J...
Posted by Bill Ross on 02/18/11 12:50 PM
"What options might we have as individuals, especially if we don't have the talents to do much more than create? Do we need options?"
Nothing happens in a vacuum, without resources. Creativity is no exception. Invest in your own tools, develop and create your own proprietary methodology and infrastructure. If you do it correctly, you have a competitive advantage and "monopoly of self".
And, accept that once your work has been paid for and is "out in the wild", it is fair game. In fact, you can plan on this creating a market for more work, by releasing work with logical implications that, by odd coincidence, only YOU are prepared to provide in an economical manner.
Posted by Pragmatico on 02/18/11 12:32 PM
It's easy to get caught in a paradigm when discussing things like copyright. This thread got me to thinking: If I were creating something, and I knew that it could not be "protected" from "theft" once I released it, what would I do differently? What do creative people do in other, non-protective parts of the world do? Lets face it: One who is creative won't stop creating just because others "steal" his or her ideas. Creativity tends to be compulsive. What options might we have as individuals, especially if we don't have the talents to do much more than create? Do we need options? Just a thought.
Reply from The Daily Bell
Ha, we need a free-market in IP?