Tatiana Moroz is a wonderfully talented singer-songwriter, lover of
liberty, and member here at liberty.me. A few months ago I engaged her
on the issue of copyright.I asked Tatiana if it was OK that I downloaded her songs, put my own name on as writer, and then licensed them for use on a TV show so that I could collect the license fees and performance royalties for myself.
Tatiana was reluctant to take a position on copyright, with me anyway, and I get it. I think she feels really conflicted. On the one hand, she instinctively understands that her songs are just that – HER songs. On the other hand, she’s been told that copyright is somehow “illegitimate”, imposing a “negative servitude” on others, and a “violation” of the property rights of others.
My discussion style is highly confrontational, which doesn’t make me a lot of friends around here. Such is my choice, and it might have at least something to do with your willingness to endorse the abolition of my property rights over my songs.
But what about Tatiana? She is a sweetheart with a golden voice and wonderful words. So tell her. Call out Tatiana Moroz, by name, and explain to her PERSONALLY why she doesn’t own her songs, and why I should be allowed to put my name on them as author, and do anything I want with them.
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Way to butcher that strawman.
Plagiarism is copyright infringement. Without a property right in a pattern of information, then there’s nothing wrong with plagiarism.
A slightly different question is this:
Why can’t I just take Tatiana’s music, use it in my TV show without Tatiana’s permission, and without crediting her?
It pains me that you somehow typed this without thinking about the fact that it’s fraud.
“Why can’t I just take Tatiana’s music, use it in my TV show without Tatiana’s permission, and without crediting her?”
I don’t have a problem with that qua libertarianism. I would dislike it personally because I place a value on giving credit to people, but as someone who has had their graphic design work used quite a bit without credit (and who has made money on that freely-released work anyway, in spite of your doomsaying to the contrary), I don’t think it should be illegal because it doesn’t violate property rights.
Fraud requires 3 elements – deception, reliance, and damages. Without showing damage to property, there is no fraud. As I pointed out to Dave, “lying” is only wrong when used to deprive another of property. No property – no fraud.
You might want to know that I’m a 3rd year law student, and I’ve passed the California FYLSE, widely considered to be the toughest law exam in the U.S.
In your hypothetical, you put your name on the songs *and licensed them for use*. That’s fraud against the licensee, because without knowledge of the original authorship, the licensee cannot effectively consent.
Damages in fraud don’t have to be to a property right; if as a result of your hypothetical fraud, reputation damages to the parent company were suffered because some people don’t like being lied to about authorship, this would suffice for the damages element, even though one does not own reputation, because the licensee is in a worse state than would have been the case if the representations made had been non-fraudulent.
If I license Tatiana’s song to a TV show, with my name, yes I deceived them. Perhaps they relied upon my deception, if my name somehow encouraged them to buy. Perhaps not, if their decision was based solely on the music. In either case, they are not damaged.
They paid for a song, I delivered a song. Right Mr. Esquire?
You’re right, you shouldn’t get into a pissing match with me on this, because you obviously don’t know what you’re talking about.
If you offer a song written by you and deliver a song written by you, then consent was ineffective, and even if there weren’t damages, the contract would be voidable at the option of the licensee. I already explained how there would quite easily be damages as a proximate result of the fraud, since damages in such a claim don’t have to be to a property right. They can be any harm or loss that puts one in a worse position after than before, even if a property right is not affected. If the TV show lost even just Tatiana as a viewer, that would be damages sufficient to meet the element.
1. All legal rights are property rights, all legal wrongs are property wrongs. This is the libertarian view. I’m quite aware that there are any number of statist “laws” that purport to find “rights” and “wrongs” unrelated to property. They are all bogus.
If you wish to allow tort action against a defendant when the plaintiff has suffered no property injury, then this completely defeats the anti-IP theory you’re trying to defend. You copy my song, so I sue you for defamation, or negligent infliction of emotional distress, or something else.
Right? The whole point of Kinsellism is to DISALLOW legal action against copiers, by REMOVING the property right that makes legal action possible. If a property injury was unnecessary for a tort action, as you suggest, then Kinsella’s thesis is moot.
2. You assert that lying about authorship would somehow render consent to license ineffective, but you don’t explain how or why. Not every detail is automatically relevant. Whose name appears as author MIGHT make a difference to the licensee, but it might not. Even if it does, it could cut either way.
You’re correct that a reduction in audience size would be the licensee’s damages, AND THAT IS A PROPERTY DAMAGE, because the licensee can trace audience size to ad revenue. Absent this connection to licensee’s bottom line, the licensee is not damaged.
3. And, suppose using my name INCREASES the audience share enjoyed by the licensee. The licensee is certainly not damaged in that case. OK? Me and the licensee are both happy. Why would the licensee sue me?
4. What about Tatiana? Tatiana is the proper plaintiff here, in my view. But my view absolutely requires a property right over the pattern of information known as her song. Absent copyright, I certainly didn’t didn’t defraud Tatiana, because I didn’t make any representations to Tatiana at all. Absent a property right in her song, what are Tatiana’s damages?
No, I’m not ignoring her. She just hasn’t had her property rights violated. Sorry.
“All legal rights are property rights”
Yes.
“all legal wrongs are property wrongs”
Sorry, but no. Damages don’t have to be direct damages to property, as I’ll show using your example in a moment.
“If you wish to allow tort action against a defendant when the plaintiff has suffered no property injury, then this completely defeats the anti-IP theory you’re trying to defend.”
Incorrect once again. Because the consent is not valid since the contracted-for song by you is not delivered, there is a functional theft of the license price. Other losses derive from that property violation. Damages must derive from a property violation, but not all damages have to themselves be property violations.
“You assert that lying about authorship would somehow render consent to license ineffective, but you don’t explain how or why. Not every detail is automatically relevant. Whose name appears as author MIGHT make a difference to the licensee, but it might not. Even if it does, it could cut either way.”
Res ipsa. Why would you claim authorship if it didn’t matter? OF COURSE authorship claims matter, even if they don’t have anything to do with property rights. There’s definitely a value to presenting works licensed directly from creators, because even without IP, people still care about authorship. I also mentioned that, at best, it’s voidable if not void. There’s a claim there whether the licensee chooses to make it or not.
“You’re correct that a reduction in audience size would be the licensee’s damages, AND THAT IS A PROPERTY DAMAGE, because the licensee can trace audience size to ad revenue. Absent this connection to licensee’s bottom line, the licensee is not damaged. ”
One does not have a right to revenue or audience. Come on.
“And, suppose using my name INCREASES the audience share enjoyed by the licensee. The licensee is certainly not damaged in that case. OK? Me and the licensee are both happy. Why would the licensee sue me?”
If the licensee doesn’t want to sue you, I’m fine with that. That’s obviously their option.
“What about Tatiana? Tatiana is the proper plaintiff here, in my view. But my view absolutely requires a property right over the pattern of information known as her song. Absent copyright, I certainly didn’t didn’t defraud Tatiana, because I didn’t make any representations to Tatiana at all. Absent a property right in her song, what are Tatiana’s damages?”
She has none. Sorry. I know that grinds your gears.
Well, which is it? Do tort actions require property damage, or not?
You keep saying that if the plaintiff is “in a worse position”, that will suffice to show damages. That’s a crass equivocation. When we speak of being “in a worse position”, that MEANS PROPERTY DAMAGE.
And for crying out loud, are you really going to hang your JD hat on this: “One does not have a right to revenue or audience.” Matt, YOU are the one who offered a reduced audience as a showing of damages, remember? That was your case counselor, not mine, LOL.
I simply connected the dots of proximate causation from the audience reduction, to loss of ad revenue, to lost profits.
I did not claim that tort actions did not require the violation of a property right. In fact, you’ll notice that I explicitly said that the damages must result from a property violation. This does not mean that the damages themselves are property violations — in fact, many and possibly most damages aren’t.
“Matt, YOU are the one who offered a reduced audience as a showing of damages, remember? That was your case counselor, not mine, LOL. ”
Yes, and it’s completely consistent with what I’ve said. A reduction in audience is a damage that derives from the violation of a property right (the fraud) but is not itself the violation of a property right. It’s almost as if you aren’t reading my responses. Allow me the liberty of quoting myself, since you missed it the first go-around: “Because the consent is not valid since the contracted-for song by you is not delivered, there is a functional theft of the license price. Other losses derive from that property violation. Damages must derive from a property violation, but not all damages have to themselves be property violations.”
That said, i think there is a happy medium to be found. I don’t see the point of patents; in essence they reward the first person to run to the patent office. Copyrights? Hmmm. More of a grey area there. I do not agree with copyrights that last more than say a generation.
If there is a property right, it should be forever. If you think copyright should expire, it seems you don’t find a property right at all.
Thus “Lying” is only illegal when used to deprive another person of property. “Fraud”, for example requires 3 elements – deception, reliance, damages. If the plaintiff cannot show damage (to property) there is no fraud.
Lying can even be virtuous, as with lying to a robber who demands to know where the jewels are hidden.
“Lying about authorship” has a name. It’s called “plagiarism”. Absent copyright, what does Tatiana do about plagiarism? And what does she do about any form of copyright infringement, like simply using her music on a TV show?
There are 3 parties in my example – Tatiana, me, and the TV producer. You want to construe plagiarism as fraud. Who is the plaintiff, and who is the defendant? Who is damaged, and who is unjustly enriched?
Note: This is a joke. (Not guaranteed to be funny to all persons on Earth.)
You are perfectly free to have this view. But let’s please call it what it is: Intellectual Communism.
I’m not suggesting that falsely claiming authorship would be the right thing for those pop stars to do or that there should be a system that institutionalizes false authorship claims; only that this scenario would be a massive boon to Tatiana’s career, reputation and earnings power. Use some common sense and you’ll see why viewing this unlikely event as a nightmare rather than a boon is absurd.
Your assertion that Tatiana would automatically become famous because a famous singer plagiarized her song is unsupported. Famous singers become famous in large part because they are very skilled at publicity. So what if Tatiana can “prove” she really wrote Katy Perry’s latest hit? Prove it to whom? The 200 people that visit her website? Who cares?
You’re attempting a utilitarian economic argument which suggests that Tatiana will be economically better served by surrendering her property rights than by enforcing them. This is straight out of the Communist Manifesto. Modernly, it smacks of “Zeitgeist”.
Conversely, the “Common Sense” that I rely on is the Austrian School of Economics, and free market economics in general. Abolishing copyright is abolishing property rights in producer goods. The results of abolishing property rights in producer goods are theoretically understood, and empirically well-documented in the real world (e.g. farm produce in the Soviet Union, Bangladesh, factory production in North Korea, etc. )
Do you see? Getting 100,000,000 people to listen to your complaint about plagiarism is just as difficult as getting 100,000,000 people to listen to your song.