fear Factor

Michael Factor:

I have problems explaining to my 9 year old daughter that my not helping her download songs from the Internet is due to ethical issues […]

Michael “explains” to his daughter that apparently, law and ethics are synchronous movements:

I try to explain to her that copyright infringement is a crime, even if everyone does it.

Michael then “explains” the importance of how others may perceive him:

I explain that as a Patent Attorney, I help people protect their intellectual property, so I cannot have illegal software on my computer, including illegal downloads.

First, Michael should ask himself why he has trouble explaining the “ethical” problem of file-sharing. Second, he should cease fearing hypocrisy. After all, what his daughter does is a matter of copyright law, not patent law. Perhaps Michael isn’t seeing this because he’s been blinded by “intellectual property”.

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4 Responses to “fear Factor”

  1. Michael Factor Says:

    Mr Tobak,

    Patent attorneys consult on all aspects of intellectual property.
    The UK Patent Office has renamed itself the Intellectual Property Office. I consult on copyright matters. Like most professionals in the field, I refer to myself as patent attorney, since patents are the more intellectually challenging.

    As someone who helps others protect intellectual property, I support the system and don’t file share, but I am not convinced that the current state of the law is necessarily ethical. Certainly, it is not the only ethical position.

    Ethical positions on fair use are varied. There are other, competing ethical positions to that enshrined in the US Millenium Act. Other countries, such as Italy and France, have come to different legal positions regarding downloading files.

    Everyone accepts that there are fair use exceptions to copyright. the question is what constitutes fair use.

    The RIAA in the US sued scouts for singing copyright material around the camp fire a couple of years back. Many would argue that such use is fair.

    Maybe making a copy of a song for personal use is ethical?

    David Nimmer, perhaps the world’s foremost authority on copyright, said that during the Napster trial in the US, he was not sure which way it would go.

    Do you have a video recorder? have you ever saved an episode of your favorite soap for watching later? Is that copyright infringement? Is it fair use?

    Can you explain the difference between that and downloading songs for personal use to a nine year old?

    Lets look at a parrallel issue. Lets assume you own a car and you smash a headlamp parking. Is it copyright infringement to buy a look-alike compatible piece of bakelite or should you have to buy the manufacturers part at monopolistic prices? the European Union is debating this.

    If you have all the answers, it may be that you are yet to start grappling with the questions?

  2. gnuosphere Says:

    Mr Tobak,

    I’m Peter Rock. You’ve confused me with a fellow I linked to in a previous post.

    Maybe making a copy of a song for personal use is ethical?

    Maybe? Of course it is.

    have you ever saved an episode of your favorite soap for watching later? Is that copyright infringement? Is it fair use? Can you explain the difference between that and downloading songs for personal use to a nine year old?

    Both are ethical, so what needs explanation? Perhaps (depending on one’s location) you may have to explain that current laws unjustly prohibit such action so there may be a risk, but generally speaking I don’t see what needs explanation. We could talk about time-shifting and the Betamax case history relating to fair use, but I’m doubting most 9-year-olds care. What is important is to encourage children to see right from wrong.

    Is it copyright infringement to buy a look-alike compatible piece of bakelite or should you have to buy the manufacturers part at monopolistic prices? the European Union is debating this.

    That question is so absurd I don’t know how to answer it. How can copyright law possibly apply against a consumer buying a tangible good? Perhaps you are confusing this case with patent law? Or did the company making the look-alike use another’s trademark? Would you mind providing a link where the EU is debating whether or not to hold consumers liable for copyright infringement when buying tangible goods please? I’d be very interested in reading that.

  3. Michael Factor Says:

    Headlamp designs and the like, are protected by design patents in the US. Other countries have registerered designs. Some countries have such things protected by provisions of copyright law or by caselaw brought under Copyright Law.

    Regarding the specific issues I related to, see: http://blog.ipfactor.co.il/2007/12/13/eu-considering-allowing-look-alike-car-parts/

    I can’t find a link off-hand, but when UK copyright law was rewritten in the UK the time before last, this was a big issue, and then back-bencher, Tony Blair quipped about the danger of drafting general law for particular interest groups, specifically car manufacturers.

    Copyright not only includes car part design, but also architecture in some jurisdictions. It has been extended well beyond that considered by the Statute of Anne, and now encompasses not only creative literary and musical works, but also the design of tangiable objects.

  4. gnuosphere Says:

    I would think that “design” must be seen in two different lights here. One, the design that specifies the functionality of the headlamp would fall under patent law while two, the aesthetic design under copyright law. The same would hold true in architecture I would think. That is, if you design a structure that uses physical material in a non-obvious and innovative way, you may be able to claim a patent. But if there is nothing innovative, you may still be able to claim copyright over the aesthetic design (color, shape, etc.)

    Regardless, I doubt a consumer would ever be found guilty of copyright violations. Likely that would fall upon the the manufacturer of the headlamp.

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