Mob Rule Proposes to Eliminate Private Property Rights

Imagine waking up one morning to the above headline, and wondering whether the world of law and order, at least as you knew it, was coming to an end. Imagine also that the entire rest of the planet, or at least the small portion with which you commerce, just continued to carry on, business as usual. You would likely pinch yourself, hoping to awaken from a dream that was beginning to shade toward nightmare.

That’s precisely what happened to me last week when I opened the newspaper to a Los Angeles Times story concerning a new website, EBookFling, that exists solely for the purpose of enabling electronic book readers to “borrow” books off the site, without providing compensation to either publisher or writer.

“Logically, one could say that publishers can end up losing money,” said Nick Ruffilo, an executive with the company. “It would be hard to argue with that, because it’s not incorrect. But it’s also not the whole picture.” Presumably, that is NOT the whole picture – the whole picture would include the fact that Mr. Ruffilo’s hands would be reaching into the pockets of copyright owners (authors) and licensees (publishers), the lawful recipients of compensation for enabling access to the content under their purview, and transferring that compensation to him. Regardless of the spin Mr. Ruffilo wishes to put on his business methodology, that’s conversion – in both a literal and legal sense.

Whistling in the dark, the company is cited by the Times as claiming their service to be “perfectly legitimate and allowed by the lending policies set by Amazon for the Kindle and Barnes and Noble for the Nook,” (although “calls to [both companies] were not returned”). Ruffino adds, “Legally, this is using a feature that already exists. It fits with the terms of use.”

Whose terms?

One of the oldest premises of the law – some would say the reason for its very existence – is the recognition and protection of private property. The protection of physical property is not an exclusively human trait. Animals mark the boundaries of their territories with urine (we use surveyors), and will defend them with tooth and nail (we use the sheriff, or the militia), but it is the establishment and protection of intellectual property that is unique to our species. Now, I am an intellectual property developer – not a lawyer – but my understanding of the entire coda of copyright, trade mark and patent law has evolved around the concept that the novel product of one’s mind is worth protecting, and the violation of it is no less an offense than the unpermitted trespass to our land, our bodies, our “stuff”. Mr. Ruffino thinks that it should be okay if he “borrows” it for a while, without permission, so that millions of others can “borrow” it from him – for a price. If that’s not illegal – no, downright cheeky – I don’t know what is. Why is it, I wonder, that his company can even entertain the notion that what is mine should be theirs?

The answer is because they can. The same electronic medium in which my publisher insists my work must appear (you’re reading this on line, after all), is prone to getting reproduced – a nice way of saying ripped off – by the very audience to whom I am addressing it. Technology enables the crime, and renders the punishment problematic, but that doesn’t make it right. Just ask the parents of kids who thought it wouldn’t hurt to download a song or two without permission, and found themselves on the wrong end of a six-figure judgment.

There are those who feel that art should exist for a purpose higher than that of material compensation, but the vast majority of those who feel that way about art are incapable of generating it. I admit to having a dog in this fight: I own dozens of patents, trademarks, and copyrights, and I have fed my family with the fruits of my labors only because the law has protected my right to obtain compensation from anyone who wishes to benefit from my work product. There’s the operative word – wishes.  The creator of intellectual property relies on a contract with his public, the willing exchange of pleasure or utility for a fee. The notion that the artist should create a gratuitous endowment out of what was once the exclusive province of his mind is as fundamentally unfair as it is unsound. Am I to work for free?

Check that – I suppose Mr. Ruffilo would hold that I should work for HIM.