One of the prevailing views of ownership is “not a contract between myself and my property, but between myself and the world ABOUT my property.” The point of owning something is for everyone else to respect my relationship with a thing- be it a pen, a house, or trademark. Why, then, do we frequently fail to accept that piracy is a wanton and willful disrespect of an artist’s relationship with her property?
Perhaps we misunderstand property and ownership at the outset. As I have said before, a common rejection of copyright is that “copying is not theft, because it does not deprive the owner of their thing.” This apparently rests on the notion that to own something has weight insofar as it means I can have it. The competing view is that ownership has weight insofar as no one else can have what I have. This is the difference between understanding property as a contract with a widget vs. understanding property as a contract with the world about my widget.
Fundamentally, I trace this misunderstanding to a generation that internalized all too well the elementary school maxim to mind one’s own business. I think it likely that we became too adept at seeing the world in terms of single individuals, isolated and independent, alone in the world. Seeing the world like this, it makes more sense that an act cannot be wrong if it does not directly disturb others, or does not directly interact with them. I spoke to the broad implications of this kind of view in my post “A Head in the Sand is not an Ideal Source of Rights.” Applied here, attempting to see property claims as irrelevant to anyone neither an owner nor a piece of property can cause confusion over why copying might infringe on someone’s ownership. I think our views of piracy and copyright would be rather different if our relationship (or our view of our relationship) with the artist were closer (or felt closer). I wonder: are devoted fans of a band, game studio, actor, etc. less likely to pirate the works of their idols? If so, perhaps a good way to enforce copyright is to build a strong sense of community so that consumers feel that they are helping themselves and each other by abiding copyright, rather than taking free rides through piracy.
Torchlight 2 looks and feels a lot like Diablo 3. League of Legends is a modification of DOTA, and League of Legends has been ripped off for mobile platforms. The beat of Katy Perry’s “California Girl’s” matches alarming well with the beat from Kesha’s “Tik Tok.” Despite the kinds of similarities that might make a teacher suspect plagiarism, these kinds of things (ideas, beats, the “feel” of a game) cannot be trademarked or copyrighted.
One might ask: If these can’t be owned as property, what purpose do Intellectual Property laws have? The goal of IP is to balance the interests of the producer/creator/artist with the interests of the consumer and other artists. It is partly about notions of a fair market, partly about notions of art and freedom to create and express. (These notions are not always at odds with one another.) Therefore (I argue), understanding IP requires both economics and aesthetics. Some lawyers have a background in economics, but few have a background in art.
Patent examiners and prosecutors (though not patent litigators) are required to be scientifically competent (usually by having a bachelor’s degree in a hard science or engineering) before they can even take the Patent Bar Exam. Copyright and trademark lawyers are not required to have any similar background or training. Perhaps this is because the nature of copyright does not require me to have a thorough understanding of English Literature or even proper rules of grammar before helping someone register or defend a copyright for a book.
Maybe it’s because copyrights last 70 years after the death of the author while patents typically last 20 years (14 in some cases), but US law does not allow the copyrighting of ideas, only the tangible expressions of ideas. I sometimes wonder how much more diverse the arts might be if we allowed copyrights of plots, character archetypes, narrative devices, musical rhythms and beats, cinematographic techniques, directorial visions, and so on. Some might fear that an approach to copyright modeled after the philosophy underpinning patents would dry up the artistic wellspring. On the other hand, maybe Hollywood would produce something DIFFERENT every summer…