There are plenty of David vs. Goliath cases in the world of Intellectual property but the case of Daniel Moore versus the University of Alabama looks to be a decided mismatch. You see, Daniel Moore is an artist who specializes in painting scenes from Crimson Tide football games. The University sued Moore seven years ago arguing that it has exclusive rights to its trademark which includes the crimson and white uniforms of the players depicted in the artist’s paintings.
The university believes Moore must buy a license in order to paint, display and sell his Crimson Tide football art and has spent $1.4 million in legal fees so far battling the pigskin painter, who graduated from Alabama in 1976. And while the artist sees his work as a form of loyalty to his alma mater, University of Alabama officials, during a meeting in 2002, demanded he pay an 8 percent royalty for both new work and everything university-related he had done since 1979.
Moore and other artists say they have free speech rights to create these images. On the other side of the argument is the Collegiate Licensing Company. A spokeswoman for the company told the New York Times the overall retail market for collegiate licensed products is valued at $4.3 billion a year, less than 1 percent of which is in the “art category.”
Our pervasive permission culture.
This is a syndicated post, which originally appeared at Mimi and Eunice » IP. View original post.
[This article is based on a speech I gave at the University of Alabama, Birmingham, December 5, 2011.]
You know that anti-piracy video you sometimes see at the beginning of movies? It explains how you wouldn’t steal a handbag, so neither should you steal a song or movie by an illegal download. Well, it turns out that the guy who wrote the music for that short clip, Melchoir Rietveldt, says that his music is being used illegally. It had been licensed to play at one film festival, not replayed a million times in DVDs distributed all over the world. He is demanding millions in a settlement fee from BREIN, the anti-piracy organization that produced the thing.
Interesting isn’t it? When you have hypocrisy that blatant, criminality this rampant, practices called piracy this pervasive – it reminds you of the interwar Prohibition years – you have to ask yourself if there is something fundamentally wrong with the law and the principles that underlie the law. Yes, people should keep to their contracts. But that’s not what we are talking about here; this case is being treated not as a contract violation but a copyright violation, which is something different. We are dealing with a more fundamental issue. Is it really stealing to reproduce an idea, an image, or an idea? Is it really contrary to morality to copy an idea?
The verdict here is crucially important because ever more of the state’s active intervention against liberty and real property is taking place in the name of intellectual property enforcement. The legislation SOPA could effectively end Internet freedom in the name of enforcing property rights.
If people who believe in liberty do not get this correct – and it no longer possible to stand on the sidelines – we will find ourselves siding with the state, the courts, the thugs, and even the international enforcement arm of the military industrial complex, all in the name of property rights. And that is a very dangerous thing at this point in history, since IP enforcement has become one of the greatest threats to liberty that we face today.
One of the reasons why IP-abolitionists oppose “intellectual property” is because IP monopolies in effect boil down to a restriction on existent ownership rights. To this charge, a common retort heard even from libertarians, is that all property rights are not absolute (i.e. “you can’t shoot your gun wherever you choose”, “the right to swing your fist ends by my nose”, etc.) and so too IP laws can morally and thus justly restrict people from using certain configurations or arrangements of their already owned property.
It occurred to me that this is a mere semantic quibble. If we substitute the word “to” for the word “with”, we no longer have an equivalence between IP and those examples. For argument’s sake, we can even agree with the gist of those examples and suppose that an owner may not always have the right to do certain actions with his property but this wouldn’t contradict a fundamental right to do certain actions to his property, which is more precisely what anti-IP arguers hold.
This retort focuses solely on the restrictionist view in that it’s [morally] just to have laws that restrict existent property rights. But those examples are a flawed comparison to begin with; we would never hold that property rights to a gun would allow the violation of another persons’ property.
This is because ownership isn’t a bundle of certain permissible actions or rights, but rather the totality of a “negative” quality– a restriction upon others from violating the owner’s right to control. In any given context, violations of property rights is what determines the impermissibility for any given action, not a deficiency in the ownership rights of the hypothetical gun or swinging-fist.