The practical limits of copyright and IP

Added: 2026-05-05

[00:00:00]Hey folks, David Stewart here. I hope you guys are having a fantastic day.

[00:00:03]Let's talk a little bit today about copyright, everybody's favorite subject on this channel. We've had so many debates, so many discussions about it.

[00:00:10]I'd like to have a few more and just talk about the nature of whether intellectual property exists and whether you can enforce it. We're going to most mostly focus on copyright. Now, before I get into that, you can check out my Patreon down below. That's a great way to support me. You get some books as part of the membership, get some music, or you can buy some books on Amazon.

[00:00:30]That also helps me out. Very important to mention that because that's very relevant to what I'm going to be talking about today cuz a lot of these systems like Patreon are created because of the realities of copyright. I'm going to take a little bit of a more Nietzschean approach to how we evaluate whether copyright or whether intellectual property is real and what circumstances, which really boils down to whether or not you can enforce your ownership over a thing.

[00:01:00]So, I'm going to divide this into two categories. One is consumers and one is producers. I'm going to start with consumers and then we'll move to producers because they're really two different worlds and two different with lines of thinking and two different realities when it comes to enforcement.

[00:01:16]So, when we're talking about consumers, the question of whether intellectual property exists is kind of downstream of whether or not you can punish somebody for violating some for whether you can conjure up a law about copyright and then punish somebody for violating it.

[00:01:30]And I think in the real world, you can't. Consumers can just pirate things and there's not any real consequence to the consumer of of media when he pirates things. So, can you say that copyright exists? You can make lots of good philosophical arguments, but people are not going to pay for things and people can choose not to pay for things and so they don't. Um just to give you an anecdote that illustrates what I'm talking about. 25 years ago, I was a music student at a university and I was the only person I knew of who paid for music.

[00:02:12]I bought CDs.

[00:02:15]I loved having CDs.

[00:02:17]I loved the physical product, but I also felt artists should be paid for their work.

[00:02:22]Uh I as an artist, I wanted people to pay for my work and I knew that my favorite bands, they spent money, they spent time recording those albums and I felt like they deserved to be compensated for that. But my generation just stopped buying music as soon as Napster became available.

[00:02:42]My generation really jumped on the idea.

[00:02:43]It's like, "What? I don't have to go and buy pay $20 for a CD where most of the songs are shitty? Okay, great. Uh where do I sign up? Yeah, I want all the free music." Nobody really uh stopped and thought, "You know, I probably shouldn't be pirating it."

[00:02:57]People maybe thought, "Will I get in trouble for pirating it?" No one really thought, "Uh maybe artists should get paid for their work." They just pirated everything because they could. And these were music students. These were people that were in the industry and wanted people to pay them for their work were unwilling to pay for recorded music. And the fact is that Napster actually destroyed the music industry. Um record sales really fell off the cliff.

[00:03:23]And as far as the recording industry goes, everything changed with that.

[00:03:26]There used to be recording budgets in the six figures in the '90s and those disappeared because you can't really make much money off of selling recorded music. It that avenue for revenue kind of disappeared. The whole industry had to realign around playing live concerts, which doesn't scale the same way as selling CDs it does, right? You have to physically be present in a location and convince a large number of people to come and pay a concert ticket for you to play. And if those things don't line up, then you're selling your time for less than possibly nothing. You know, and I've I've documented that on this channel where lots of bands have quit the music industry because there's no money in it. Um they'll make $12,000 for like a whole year of touring because they just didn't sell enough tickets. There weren't enough people wanting to come to that live show. So, the whole idea like, "Oh, if I like their music because I found it on Napster, I'll go see them live."

[00:04:18]which was like an argument from South Park. It just didn't pan out, you know?

[00:04:22]That uh the the way to make money was built on a lot of things including record sales, merchandise sales, and now you had to shift everything over to like playing the live show and selling merchandise um because the consumer had the option to not pay for music and they took it.

[00:04:39]And there's nothing that you could do to stop them. You you know, the RIAA sued LimeWire, but people still use Pirate Bay. They just shift over to the next thing. And streaming was really just a more convenient piracy. Artists don't really get paid for streams, you know, unless you're doing it in the billions and then it's barely anything. It's just a more convenient piracy. And so, when you look at it as that, it's like, "Oh, well, consumers aren't willing willing to pay any money at all for music, so you know, maybe getting paid 1/10 of a cent is better than getting paid nothing." So, artists will put their stuff on there mainly because they are hoping people will listen to it and then come come see them at the show.

[00:05:20]But my point is consumers have the option and they just aren't going to pay for that.

[00:05:25]Uh the only way that they'll pay for media is if it's more convenient than piracy.

[00:05:29]As soon as it becomes less convenient or more expensive, they just will put in the effort to pirate it. So, for the consumer level as a practical part as a practical thing, trying to say that there's enforceable copyright is like trying to say you can enforce the ownership of air. Like, "You can't breathe my air. I own that air." It's like, "How are you going to stop people from breathing it?" They're just breathing. They're breathing and you can't do anything to stop them. So, it's almost like a moot point to have a debate over whether intellectual property exists when individuals uh when it comes to piracy, the piracy question, they simply can and will ignore whatever you happen to say. This is common for a lot of things. People would do what they want and then they find a justification for it after the fact. You know, they cheat on their spouse and they come up with an idea of like, "My spouse was bad enough to make me do this." You know, it's very very common for people to come up with uh to do things that they know would probably be immoral and they actually wouldn't want like if they were recording artists, they would want people to pay the music. They would wouldn't want people to just pirate it, but they're not recording artists. And even when they are, they're like, "Uh I don't want to pay for it. I don't want to pay for the CD. It's Intellectual property is not real because I don't want to pay for it." is what it ends up coming down to. Same thing with software piracy. And so, what you're left with is the only way to enforce say uh intellectual property with software is to be really clever about it. So, like if people don't authorize the software, it like bricks your computer or something. And people complain about that, too. They're like, "Uh the cracked software uh installed viruses on my computer." It's like, tough cookie, you know? Uh I'm sorry that the cookie crumbled for you with that, but it's not like the person making the software didn't have a right to like sabotage the software.

[00:07:14]Right? Are they are they liable because they created sabotage software? You're the one who chose to install it. You're the one who put it on your machine.

[00:07:21]Right? If they can't own it, then they can't be liable for what you do with it, either.

[00:07:26]You know what I mean?

[00:07:27]Um so, that's consumer. That's the consumer side. The producer side I think is a lot more interesting and fruitful because with courts and with the force of government, you actually can enforce intellectual property.

[00:07:39]Um and I'm going to give you just before I focus on on copyright, let me give you a broader idea of intellectual property because lots of the people who say, "Ah, intellectual property doesn't exist."

[00:07:49]They love intellectual property because they like owning equities in companies.

[00:07:53]Companies are intellectual property.

[00:07:55]Companies don't exist. A corporation is a legal fiction. It's a thing that we that we assemble legally into a concept and treat as if it's a real thing that we can hold and we can sell and we sell stock and thing People love contracts. And contract is is it Does a contract go away if it's burned? If you sign a contract and then I lose the contract, did the contract disappear or are you still bound to an agreement that you made? We're We're talking about like, you know, a lot of interesting ideas. And and I would love for you guys to to parse those out or or to think about them and come up with great answers for them. But people love intellectual property. Uh they just don't like paying for music.

[00:08:36]But we when we get down into producers, we have all of a sudden a way that we can actually enforce this, which is we live in a world with a government and courts and you can sue someone for copyright infringement. And this is actually one of the few ways that the little guy can protect himself from big corporations. Uh a lot of times the the narrative is really focused on like Lars Ulrich rolling up with a list of names of people who downloaded their songs off of Napster and the big corporation is coming to squish the little guy cuz he just downloaded a song. He just copied a song onto his computer. And the reality is almost no one ever suffers any consequences for pirating as an individual person. It's like it's so rare we might as well not even even talk about it. You know, I I'm going to guess that at least 80 to 90% of the people watching this video right now have pirated something and I don't think you're in jail for it. Okay? So, but when it comes to producers, it's a little more interesting, which is uh can a studio take my book and film it and keep all the money, access their distribution network, take my idea, my work? No, they can't. I could sue them for that. And this has happened. So, um Harlan Ellison sued um whatever studio made Terminator. The the lawsuit was over Terminator, James Cameron's original Terminator movie because the premise was was really really similar to a story that he had already written where like guys from the future come back to the present and they're fighting a battle in the present and that's basically the premise of Terminator except one of them is a robot, right?

[00:10:08]Uh now, we can have a great little debate over whether Harlan Ellison's story really was like copied in order to make Terminator. The studio capitulated. James Cameron didn't agree with it, but that's what they did.

[00:10:23]The fact was there was an ability to challenge that.

[00:10:27]You had the ability to actually litigate that in court and take it to people and have someone enforce some sort of consequence for uh taking somebody's idea and publishing it um or or transforming it without their permission, whatever whatever line of reasoning you want to think there. So, having copyright exist between producers, not perfect, right? You deal with bad copyright systems on YouTube.

[00:10:53]You deal with You can deal with patent controls. You can deal with all kinds of things that that are negatives of this, but the positive is that it keeps the little guy from having his innovations be stolen and having um basically the biggest player be able to crush any and all opposition by just taking everybody's ideas and just doing them. Um you give you have some little incentive to be original as a as a little producer because you have some way to enforce a consequence on a big corporation. So, I do see a huge amount of benefit to intellectual property um between producers, those sorts of conflicts being resolved between producers. Now, as far as figuring out the like nitty-gritty of like when should something enter the public domain, I think that's just a debate that we can have for practicality purposes and we do want the public domain to exist, but not because of some sort of philosophical line of reasoning like property if you have intellectual property until you die and obviously you can't have it because you're the author and you control it and authorship's tied to ownership or you can pass it on, but only for so long. Like it's really hard to come up with a good solid reasoning for why your children should inherit intellectual property and then lose it at some point. It's really just a practical thing in terms of the the benefits to the entire culture, which is at a certain point um stories are just part of the cultural landscape and we should be able to publish them and share them freely because otherwise we'll lose them. Uh if you have completely locked down copyright system, you can have something like the Song of the South. Actually, the Song of the South is a perfect example of everything I'm talking about here, right? Disney owns the copyright to Song of the South and they want Song of the South to disappear.

[00:12:43]So, they don't publish it. They don't let anyone else publish it. It's illegal for you to publish a copy of Song of the South. And so, as a result, it has been attempted to be removed from the public consciousness so that it's it can't exist and until it gets to the public domain and then all of a sudden, ah our culture can have access to this really important film from way back when.

[00:13:07]Well, the thing is because of piracy, that movie exists and we can watch it.

[00:13:13]If it weren't for piracy, that movie would have disappeared from the public consciousness.

[00:13:19]They erase it off of their rides in Disneyland.

[00:13:22]They're so embarrassed that there's that Song of the South exists.

[00:13:27]Um but because of piracy, people are able to still have access to that cultural product. And so, the public domain is kind of like that, which is if somebody is not actively publishing a book, it falls out of print, how do people get to access that story? Well, if it's in the public domain, then they're able to get it even if it's really not super profitable for whoever happened to inherit the copyright in order to you know, publish it, you can still maybe publish a short run. You can you can do something with it. Um that's my big point. So, having the public domain, this is just sort of a collective benefit. It's a and where you want to draw the line, that can just be debated. Is it going to be life? Is it going to be life plus 20 years? I think life plus 20 years is probably pretty reasonable. After 20 years, you know, you've made all the money for a for most of the products and then it should be able people should be able to to kind of access them freely. Um as far as like keeping Mickey Mouse under copyright, we're talking about two different things, copyright and trademark. I've talked about this in the past. Um you can't just make a Mickey Mouse cartoon and say it's a Mickey Mouse cartoon because Mickey Mouse is a trademark, which gets into some really hairy business where companies can own certain ideas basically forever, but I actually don't see a downside to this, which is uh should you be making Mickey Mouse cartoons? And the answer is no and it's not because of some moral reasoning.

[00:14:51]It's because you should be an original person that does original work. So, having Mickey Mouse be held in copyright, right? To have um some sort of intellectual property control by a company makes you be original instead of trying to milk on the popularity, trying to milk the popularity of or that's the leech, trying to leech on the popularity of Mickey Mouse by making your own Mickey Mouse cartoon, you have to come up with something new and original.

[00:15:18]Sorry.

[00:15:20]You have to be original. So, copyright forces people to be original and the fact is if you were making a Mickey Mouse cartoon because you wanted to make money, I just really wouldn't have a lot of respect for that. It's not a very it's not a very respectable artistic endeavor. Uh so, you don't really need to be making derivative works of Steamboat Willie. First thing that happens, you know, Winnie the Pooh goes into public domain. We're going to make a Winnie the Pooh horror movie. It's like you know, I get it. You're trying to cash in on the past popularity of Winnie the Pooh because part of it went into the public domain.

[00:15:53]That's pretty cheap though. Like do you guys really respect that or would it be better to come up with something new and original? Uh so, I don't see a whole lot of downside to even long copyrights for producers other than things can go out of print, right? So, you should be more original and eventually things should enter the public domain so that things can be accessed by the public. Otherwise, information gets lost because the person who owns the item can just keep it locked up forever. But anyway, I'd love to have y'alls thoughts on this um and leave them down below whether you think intellectual property is real. Like I said, people love intellectual property in some areas and then when they want to not pay for a thing, all of a sudden intellectual property's not real.

[00:16:38]You know, I would love to know what your thoughts are on any of that. Try to keep it civil and I will check you all next time. Please check out my Patreon.

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[00:17:10]That helps me out as well, too. So, uh I have to go with that line because you have to do Patreon because there's no other way, right?

[00:17:19]Right? People have the option to not pay for something. Like that's where we are. Uh anyway, take it easy and I'll see you all next time.