Law in the Internet Society

The Pleasure of Ownership – A Self-reflection

-- By SharanjitSandhu - 08 Nov 2017


Before coming to law school, I worked for a film studio in their intellectual property department. I primarily worked on IP enforcement matters related to the company’s television and film properties.

As someone who loves solving problems, this role attracted me because of the possibility of being a part of something much larger than myself. I liked the idea that our group was making tangible efforts to “protect” film makers and artists. By helping various business units properly set and maintain their intellectual property portfolios, our group was not only protecting the creativity of the artists that worked on these films, but also helping the company monetize these films in order to keep making great art. That was something I felt was rewarding.

I admit, it does sound a bit over exaggerated. But as a recent college grad who was extremely excited to understand the film industry and intellectual property, I thought this was exhilarating stuff. It might surprise you, but it never really occurred to me that helping to take down a t-shirt with a picture of our studio’s copyrighted character on it from an online marketplace or shutting down an unauthorized film screening at a charity picnic was anything but necessary. It seemed to be a part of the entertainment landscape and essential to managing an IP portfolio because it was industry standard.

But after reflecting on these industry norms now, I do find myself wondering if all of this is really necessary. I hope to explore my newfound perspective and make the argument that enforcing intellectual property rights is not necessary to make money off of it.

The Landscape

Intellectual property laws allow us to claim things. The presumption being, if we do not claim something as our property, then someone else will claim it as theirs. This idea of property stands for exclusion.

But why claim anything in the first place? Well, you could argue that there is a huge financial incentive. If I do not claim something as mine, then someone will not only claim it as theirs, but make money off it and I do not want that to happen. So, we copyright our works in order to prevent other people from not only taking credit for "our ideas", but from also making money off of them.

But are these ideas really our own? Probably not. We are constantly learning from our environment and we were probably inspired by something else or someone else which led to our “idea”. However, we want copyright protection in order be able to monetize our works and not assist anyone else in monetizing off of it.

The Problem

So, we have intellectual property laws that allow us to claim things as our own in order to somehow monetize them. So, what?

The fundamental problem arises when we think we should live in a world where ideas should be shared in order to promote learning. If we want to allow every person to be able to learn whatever they want and to do it at whatever extent they desire, then the power to exclude someone from learning something is bad.

Therefore, intellectual property laws inhibit the freedom and ability to learn. Instead, you can only learn something or experience it for a price or some sort of access.

However, if your priority for creating certain kinds of content is not to share or educate, but to make money, then we may want the power to exclude other people from taking credit for our creative content.

But do these two ideas need to be mutually exclusive? Does making money need to mean we cannot share ideas or content and allow others to learn from them? Not necessarily.

Possible Solution

Larry Lessing’s TED Talk, “Re-examining the remix,” explores possible solutions to this problem. He explains that there are places for the market and places where the market should not exist. One such place where the market should not exist and where folks should be “free” is the creative space.

Moreover, Lessing identifies two creative cultures – (1) a commercial culture and (2) a sharing culture. He suggests that possible solutions to allowing both cultures to exist simultaneously is to (1) protect and broaden fair use, (2) allow freedom without permission to create, and (3) respect the creator of a work through the Creative Commons.


Fine, it sounds simple. Push for broader fair use in our copyright laws and promote the Creative Commons. But will this actually happen?

It is possible, but unfortunately, without a revamping of our intellectual property laws in the US, it will be extremely difficult.

Why? In the US, fair use is a defense to infringement, not a statutory limitation of right. Why do we have to make any change in copyright law at all in order to broaden fair use outcomes? Similarly, free software and Creative Commons licensing are intended to operate within the context of existing copyright doctrine. If your sentence is correct, please show some reason; if it isn't, you might want to reconsider the conclusory quality of this conclusion.

Also, the entertainment industry norm is to heavily enforce intellectual property portfolios. If Hollywood is pushing against the “openness” of fair use through lobbying and hefty political donations, it is likely that this problem will continue.

What would be interesting to see is if the entertainment industry shifted its perspective to embrace fans and promote fair use of certain works – allowing folks to interact with content and be creative themselves.

I do not think this shift is impossible or that one should give up hope. I was once part of the problem and I am able to see the positive outcomes of a new system. I think it is possible for others too.

This draft seems more like trying on a suit that hasn't been altered yet than actually wearing a garment you chose and that fits you.

The autobiographical segment takes up too much space. It hogs the introduction, where the reader learns what to expect from the essay. On that basis, she is likely to conclude that it's about you, rather than about an idea. When we do get to the idea, we are still in the context of beginning from property and monetization through exclusion. Though the subject is supposedly how to make monetization coincide with non-exclusion, no actual idea is presented. Some Googling has resulted in finding a TED talk, which is the 21st century idea of research ending in the 21st idea of an idea. Actually reading Lessig's "Remix," or "The Future of Ideas," which is a 20th century mode of learning what someone thinks, hasn't happened yet.

More importantly, however, no actual analysis, not even illustrations, of how non-coercive distribution works currently in the creative businesses are offered. (The very idea of coercive and non-coercive distribution, so important to the early-20th century economics of thinkers such as John R. Commons and Robert L. Hale, is missing here.) How the photographer's business was changed by CC-BY-NC licensing modes, for example, or how sharing-promoting music businesses like Magnatune work, would offer readers a useful starting-point for an inquiry you presently urge but do not conduct.

As I said above, your conclusion is more dogmatic than reasoned, as though the suit were shrugged off onto the showroom floor, not carefully marked up for further alteration and an eventual place in your own closet. The best route to the draft's improvement, I think, is to take your own offer seriously, or to replace the subject with one that you find you can actually inhabit.


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r2 - 04 Dec 2017 - 13:15:51 - EbenMoglen
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