A digital wrong?

A recent post by Geoff Livingston to his blog touched off a firestorm of controversy recently. Photographers take the stance that regardless of where the photo is posted, the photographer retains absolute copyright, even to the point of–somewhat tastelessly–insisting on the use of a watermarked photo for such uses as a  profile (as blogged by Mr. Livingston). The heading of what is legally permissible does not include everything under the heading of what is in good taste.

However, the real story here is how Mr. Livingston uses the loaded and confusing terms such as “digital rights” and “intellectual property” in clear ignorance of the viewpoint those terms assume. Indeed, the FSF has warned about such terms for some time. Despite the prevalence of the misleading, confusing, and biased term “intellectual property” the intelligent reader should note that copyrights, patents, and trademarks are not property rights and are not treated this way at all in the actual laws that set aside government-created exclusivity over artistic works, inventions, or logos and names used in trade. Copyrights and patents are time-limited, and are privileges which only exist because of the governments enacting laws which impose the restrictions on others.

I’m going to try to explain how nonsensical it really is to lump copyright, patent, trademark, and whatever else under one umbrella term. Imagine, for a moment, the confusion that would result over lumping laws governing motor vehicles, railroads, airplanes, and nautical vessels under “transportation law.” In particular, a yellow signal light means something completely different to a train than a motor vehicle, and the concept of right-of-way is completely different for watercraft (boats) than for land-based motor vehicles (for boats, right-of-way is actually the responsibility to maintain course and speed). These differences, and many more that don’t immediately come to my mind, are not unlike the differences between copyright, patent, and trademark law (and whatever else comes under the umbrella of “intellectual property” as even the definition in the Merriam-Webster dictionary is surprisingly vague).

While Mr. Livingston refers freely to social wrongs in his post, I believe it to be an equal social wrong to feed the ever-growing misconception that copyrights are property rights by use of terminology clearly intended to help promote confusion between the two. Indeed, I have to wonder if the widespread term “intellectual property” itself led Moshe Zusman, the photographer with whom Mr. Livingston had the original dispute, to greedily assert copyright as if it were a property right.

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