Property isn't just things you can touch, kids!

My life seems defined by the field of intellectual property lately.  First, I've been writing my substantial paper on a topic of IP law and, second, there's this whole Todd Goldman fiasco going on right now.  Intellectual property has always interested me, though, and if there was the slightest possibility I could ever litigate in it, I'd be more than willing to practice IP law.

That's neither here nor there.  What this particular note is about is society and how we've come to view intellectual property.  Before I continue, let me make something completely clear here:  What Goldman has done is vile and inexcusable.  And his response to the allegations (and I used the term allegations quite loosely here since the evidence of his guilt is overwhelming, conclusive and beyond all reasonable doubt) has been… well, I’ll quote Jerry Holkins here, for he said it far better than I can: “Todd Goldman is an asshole, to be sure - and given his nuclear response to the issue, I believe he may also be called a monster.” Notice how I attributed the quote to its original author rather than co-opting it as my own?  That’s an important lesson to this whole issue, but I digress.

Todd Goldman is, without question, a monster.  But he is a monster we ALL had a hand in building.  Every time you download a song, a video game, or a movie, you’re sewing another grizzled, dead finger, screwing in another fastening bolt.  Todd Goldman is but an example of the dead monster we have all helped reanimate.  Years ago, and I don’t mean the 60s, I’m talking about when Michelangelo, the non-turtle, still walked to roads of Italy, European society had no concept, no respect for the very nature of intellectual property.  Murals on church walls were no more valuable than the brick and mortar those walls were built from.  Unless it was physical, it wasn’t property.

The past four hundred years have been one, distinct movement away from that concept, towards recognizing the importance of such endeavors.  And the law has grown to protect them through copyright, patent and trademark.  However, modern American society has failed to establish a full scale of protection.

There is a growing mentality in America, a “who cares?” mentality.  For the children who download a hundred songs and hour and use the Internet as a free video store, the copying of a picture is insubstantial.  Now, make no mistake, I’m as guilty as others.  At the risk of exposing myself to litigation from massive corporations who own these copyrights, I have pirated video games and music on multiple occasions.  However, I’ve never shamelessly stole these items.  I download music only to sample it in most cases.  I still buy the CDs of those artists I like and wish to support but use the Internet as a buffer to prevent myself from being bamboozled into purchasing an album from an artist that has only one quality track on it.  I also limit my piracy to games that are not currently published, and for which there is little potential revenue for the holder of the right to sell it.

But, while my motives are more idealistic and pure than many, my underlying ethics are the same endemic problem that has birthed Todd Goldman.  American law and American society defines our views of intellectual property entirely in economic terms.  My justifications for piracy are ones of either supplying or withholding the proper economic supports for a given product.  Todd Goldman is given a pass by many an ignorant reader because what he has done has little economic implication.  The art he has stolen was producing little, if any, revenue for its creators.  There are, in a strictly legal sense, no damages to be found here.

But copyright and intellectual property is about more than just economics.  The economy of the web comic industry is substantial and growing.  We hear about that in many trade and financial magazines.  However, the economy for each individual artist is still miniscule.  Most of the silly pictures produced on these websites are worth amount in the thousands, at most, of dollars and, in many cases, their true value in a strictly economic sense can counted on ones fingers.

There is more to the picture, however.  The economy is not what makes this crime so vile.  Todd Goldman’s lifting someone else’s art and publishing it without permission for profit is thievery, without doubt, but that is not why Goldman is worthy of Dante’s Eighth Circle.  Goldman’s greatest crime was failing to attribute the work to its originators.  It is one thing to improperly publish the work of another and to steal his profits.  It is another thing entirely to steal his identity, by taking his work and pretending it is your own.

Todd Goldman violated the moral rights of Dave Kelly and countless others.  If the term “moral rights” sounds odd to you, that’s because it is.  It is a foreign concept in our country, but commonly recognized in Italy, France and Germany.  It is the missing piece to the puzzle that has warped our concepts of intellectual property and served to protect horrible people like Goldman.  Every creative endeavor has two values to its creator.  The economic, that is to say what it is worth to the author on the open market, and the moral, which is the work’s very value to the pride, the dignity, the reputation of its creator.  Illegal publishing is a crime to the pocketbook.  Stealing the attribution of a piece is a crime to the soul.

This is the distinction that our law and our culture fail to appreciate.  We have no federal statutes to protect the attribution or integrity of a piece.  Our country refuses to acknowledge that copyright is about more than money and, on the rare occasions that the morality of the author is protected it is in strictly economic terms.  We’ve come to accept widespread piracy of digital media, and, really, it’s quite likely the genie is out of the bottle on this one.  In the long run, the scale of the economy of digital is doomed to one degree or another.  No matter how much DRM we employ, no matter how strict the encryption, it will be likely be defeated and everything that can be reduced to a computer screen will be available freely to all.

That is not the end of the story, though.  There is a lot of outrage out there from those who do respect the moral rights of the artist’s Goldman has violated.  But, while their hearts are in the right place, they’ve missed the proper target entirely.  Dave Kelly, for better or worse, is up a proverbial creek.  He has no real recourse because this crime has occurred in a legal system that deems his harm unimportant. 

American copyright is there to protect the flow of money, and it does that remarkably well.  Our society’s ability to balance the economic rights of the individual against the fair use and public domain doctrines that enrich the transmission of ideas as a whole is nothing short of astounding.  We have perhaps the best economically based intellectual property systems in the world.  But that is all it is.  It is a system designed by corporations, by industry for corporations and industry.  Designed by people who mass market creativity for commercial gain, and that trend is continuing to this day.  The wars in IP law are fought by the RIAA.  They are fought by Microsoft and Sony.  These corporations care little for artistic rights that don’t earn them higher profit margins.

That is where you, the individual artist and the supporter of individual artists, come in.  Unlike the dinosaurs that compose the record and movie industry, Web comic and other internet authors realized long ago the fight for economic rights was a lost battle.  Their media is easily stolen, their works easily transmitted.  Instead of trying to charge for their art, they rely on the sale of physical merchandise and the generosity of fans to make their livings.  They know they will not be able to monopolize and extort exorbitant fees for their works so they simply look to make enough profit to get by.  But what Goldman has done is strike to their very ability to do that.  In order for the Internet author to get the economic support of others she must be able to retain the credit for her work.  She must be able to impress those people who consume her free works to respect them enough to donate, or pay for merchandise carrying that work.  When another steals the credit, the very authenticity of these pieces, it destroys that potential.

And it hurts us all.  We’re all better off for having this Internet, this expansive and wonderful tool of free thought and expression.  We’re all better off for the contributions these artists have made.  But, and this is where American law has it right, without money, without some form of economic support, many of these works will dry up.  But it goes beyond that.  Not only does Goldman’s theft serve as a deathblow to those artists seeking to earn money, it also kills those who do it for free.  The only two incentives to create art are personal creative satisfaction and economic gain.  When art is plagiarized, it destroys both.

So, if you want to do something, if you want to protect those like Kelly, Holkins and Krahulik, Kurtz, McConville and Boyd, Milholland and the hundreds of others who create these works, then you must form a voice worth listening to: something that can be heard in the American political system amidst all the shouting of the behemoths pushing for more economic protection.  You must form a voice shouting for the recognition and preservation of the artist’s moral rights.  Make no mistake: you must change the very law itself.  And that will require nothing short of a call to arms and a revolution.  The industry and its supporters must form a unified voice, combine their resources into a political action group and launch an actual assault on Congress and the Courts.  That is the only way that people like Goldman can be stopped and that Internet entrepreneurs can retain a viability to their products.

Anything short of that is spitting into the wind.

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