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Copyright and wrong: Why the rules on copyright need to return to their roots (economist.com)
57 points by rickmode on Apr 9, 2010 | hide | past | web | favorite | 33 comments

Let's be honest for a minute.

Copyright for music is already dead. Consumers like free music. Sometimes they'll pay for concerts, or merchandise, or convenience, or ignorance, but that's it. They might tell you it's wrong on an opinion survey, but they keep downloading.

The situation isn't going to change any time soon, either. Widespread use of DRM'd hardware might work, but the early adopters you'd need to get the new media formats off the ground already benefit the most from free downloads.

Books, movies, and TV shows haven't been devalued yet, but only because ripping and (especially) downloading them are still inconvenient to most people. Bandwidth can't stagnate forever, though. Like with music, when you can download a two-hour movie in ten minutes, and store them by the thousands on your hard drive without missing the space, the only way to prevent rampant piracy will be to stop selling media.

Regardless of the legal niceties, the marginal cost of digital media is zero plus some rounding error. Isn't that a radical enough departure for us to ask whether copyright itself, rather than just its expiration date, might have to change?

I kind of agree with you, except that last sentence.

I once worked for a client with no upfront contract and no initial fees, the agreement being that I had to get paid when the work was done. After the work was done (in an incremental agile process nonetheless) the client said that he's going to go to someone else ... and when that someone else finished his work, I discovered that he stole from me ideas from my design, articles blatantly copy/pasted and some implementation details.

Sorry, but even if the cost of reproducing digital media is zero, the cost of producing it is not. And if I'm producing something of value, it's only fair to get paid for my work.

And in the above case I only had the copyright law to defend myself.

What the media industry needs to realize is that people don't pay for crap. If you want to make money out of movies then stop producing crap like Jennifer's Body and stop promoting crap like Britney Spears.

The price of a movie/music album/newspaper subscription should also variate according to its quality / cost of production.

Personally I buy all the albums of my favorite bands (all 3 of them ... I like supporting them and I like discovering tracks for which there aren't mp3s available on torrents). I'm also going to the local cinema regularly but only to see those movies that are worth the price of a ticket.

So instead of learning to write a better contract, you want government bullies to enforce the contract you didn't write?

Suppose he had written a contract: would you support the use of "government bullies" to enforce it in that case? If not, and your tone suggests not, why do you suggest he learn how to write better contracts?

On the subject of copyright: I think the situation is a prisoner's dilemma, and one of the time-honored ways to bring such a dilemma to its Nash solution is indeed to shoot everyone who defects. Nash-equilibrium behavior when all constraints are removed is a mark of a prisoner's dilemma; for such behavior with copyright, look into what happened after the French Revolution overturned it, or at the quality of copies of _It's a Wonderful Life_ after it left copyright (in, IIRC, the early 1950s) and before a copyright was re-imposed. The second of these is sometimes used by the MPAA as an argument for the Mickey Mouse Protection Act; the first, not even they are familiar with yet.

(My position is that culturally significant works should be copyrightable in perpetuity, perhaps by an act of Congress in a perfect world in which lobbyists don't exist and Congress acts for the good of the nation; for all other works, have a 20-year copyright, renewable for 10 years up to 5 times by mailing the relevant government office a dollar.)

You like your physical properties to be protected right? If I stole something from you, would you consider it normal for me to get away with it because you haven't made me sign a contract? WTF dude ?!?

It's not a question of whether IP should be protected or not, it's only a question of where to draw the line. If I create something I want full rights on it, regardless of the ease with which it can be copied and my desire to be in control of the results of my work should supersede your desire to get free stuff ;)

If you steal a bike from me, I have lost a bike. If you "steal" a design from me, I am still free to write code from that design, but with the added benefit that if I don't want to bother, others can do so also. I don't want to have to sign a waiver every time I give some advice.

Yes it sucks that you got ripped off. But you should have had a contract before undertaking a paid project. There's a reason it's called contract work.

Yeah, but the work I did was useless to me, and I couldn't resell it.

So something was stole from me, and that's the precious time I invested in it.

And I totally understand their decision to go to someone else, but then that someone else ripped-off my work. Sorry, but that shouldn't be legal ... the world is full of jackasses that don't give a shit about your needs or about the endless hours of work you've put into it.

The alternative to having laws that protect your property is anarchy ... making your own justice ... here's your software, it's DRMed, it regularly phones back home with logs of your activity, and I can shut it down with the push of a button. Enjoy!

Don't get me wrong ... 100 years of copyright is a lot. 10 years of protection would be much more appropriate. I'm not advocating against changes for the good of the public ... but having a healthy copyright law also encourages content-authors. So IMHO, all I'm saying is that we need copyright, not that it doesn't need changing.

If I own a chair and someone take it without me ok:ing it first, then it obviously isn't ok, since I wouldn't have any chair left.

If, on the other hand, I had made a chair and someone looked at it and made a similar chair, then I would think it ok. This since I would still have my chair.

See the difference?

You seem to think I want to get rid of copyright. What gave you that idea?

I'm just saying that on this issue, the reality is very different than what people are allowed to acknowledge in public, and that's stupid.

> What the media industry needs to realize is that people don't pay for crap. If you want to make money > out of movies then stop producing crap like Jennifer's Body and stop promoting crap like Britney Spears.

Somehow I doubt that the mainstream agrees with you on what it constitutes crap. I don't think people are pirating pop because they don't like it. They do it simply because they can get away with it.

The article does not address the central problem with copyright protection: that it is founded on industrial-age assumptions which no longer apply. As long as copying was capital- and labor-intensive, copyright was enforceable with reasonable measures. But it's now so easy to privately copy a work that copyright protection has become similar to the war on drugs in that it can only be enforced with draconian measures.

Patents and copyrights are artificial government grants making the intangible tangible. It's the artificialness that bothers me.

Our culture has come to think ideas are real like real estate. But they are not. They are intangible, and so is information. This feels an awful lot like the meme "ideas are cheap; execution is everything".

As all media become more like raw information--as the cost of transmission and storage of media falls--it will act more like ideas. All that will be left is the government grant to exclusive rights. Thus IP holders lobby governments for larger and larger hammers to beat down infringement.

And anyway, the point of limited IP terms is to allow derivative works for the greater good. I don't hear this greater good argument often enough.

The system is flawed. Perhaps short copyright terms as the article suggests are more workable as the information will be fresh. It may also be the only realistic solution when the time comes that infringement is effectively free (as in beer).

I very much agree with this article, copyright terms have become way, way too long, and are very close to no longer being the 'limited time' that the constitution requires. Another good read on the matter is http://besser.tsoa.nyu.edu/howard/papers/copyright99.html .

Copyright is essentially a law of physical objects. Information is only involved superficially, to modulate it. When information doesn't need objects anymore, copyright is basically dead. It exists only by vestiges of behavioural convention.

Debating the length of copyright term is pretty much useless. As are refinements of 'fair-use'. If there are no solid 'attachment points' for payment, and no discrete identifiable product, the machine is just spinning but going nowhere. We need entirely different ways to pay for abstract creative effort. It is an opportunity to make something better -- copyright was fundamentally economically suboptimal anyway.

> The notion that lengthening copyright increases creativity is questionable

Really, I find it blatantly disingenuous. As "IP" owner I can sit on my ass milking my original creation for 90+ years or I can be "forced" to actually produce more works every 5-15 years.

But a theoretical someone who has not yet created any intellectual "property" might get encouraged to get of his ass and write something to get profits for 90 next years, while the "mere" 5-15 years might not have that appeal.

Not that I agree with the original assertion, I just think that your counterargument is a bit weak.

Nope. A person who is a creator will build and write things regardless of the copyright protections. There is not a single person out there who is going to say, "You know, I should publish this song, but I won't because it's just going to end up in the public domain in 10 years."

"A person who is a creator will build and write things regardless of the copyright protections."

That's an interesting thought, but almost certainly not true. Some forms of creation require a large amount of time and effort. Some people will squeeze in time around their jobs and friends and families no matter what so that they can create. Other people will not.

But even if you're right, I want some creative people to be able to create full time. If I can get twice the output from Neal Stephenson or John Darnielle or Linus Torvalds because they don't have to work a separate day job, that is a world I want to promote. This doesn't mean that copyrights should be defined the way they are, or that copyrights are even the way to achieve this world, but don't act like economic compensation for creativity isn't useful.

Sorry, but the record seems to indicate that your viewpoint, although common and valiantly expressed, is wrong:


Copyright on music got introduced part way through composer Giuseppe Verdi's career. He clearly coasted for the latter part. Want more from Stephenson or Torvalds or even Stephen King? Shorten or eliminate copyright.

Yeah, cause no one ever agrees to a job unless they get a 90 year guarantee of employment.

And contractors never take on gigs unless there is a we'll keep paying you for 90 years after you finished.

My argument is based on reality. Yours and the Copyright Lobby is based on "magical IP land".

Just yesterday, I ran some calculations based on a different assumption, just on raw economics. It goes like this:

1) Suppose that "intellectual property" (IP) is taxed, like real estate. Say at a T = 1% rate, to keep it simple. This pays for the property protection service the state provides.

2) But the holder does not actually pay tax. He just accumulates back payments to the state, at an interest rate R per year.

3) When the state is owed 100% of the value, the IP reverts to the public domain.

This has the advantage that the property value does not matter - it can be 1, 100, 100k; nothing to haggle there. It is just assumed to be constant for the period considered.

Run your own calculations. Mine were that with a T=1% tax rate, and a R=5% interest rate on unpaid tax, you get 37 years. (26 years for R=10%, 47 years for R=3%.)


I got curious, and just checked with a lower tax rate T=0.5%. R seems to dominate T. Here is a little table:

            R=3%  R=5%  R=10%
    T=0.5%   66    50     32
    T=  1%   47    37     26

Lessig had a simpler idea.

The first n years of copyright protection are free, for a modest n (say 10). After that, the copyright owner can get extended protection by paying minimal fee every so often, say $1 every 5 years.

Lessig's numbers were almost certainly different.

I think there's an idea where copyright extension fee grows exponentially, so free for first N, $1 for the next N, $10 for the next N..

And after a few N's, it'll either be economically infeasible, or you can still keep them, but it'll be worth it for you (Mickey is worth quite a bit after all these years).

I think Lessig's idea was basically get the "dead" copyright properties into the public domain, where you can't get permission because you don't know who owns things.

> I think there's an idea where copyright extension fee grows exponentially, so free for first N, $1 for the next N, $10 for the next N..

There are lots of ideas. However, few of them can be realized.

If we can't enact Lessig's plan, what makes you think that an exponential fee schedule has any chance?

> but it'll be worth it for you (Mickey is worth quite a bit after all these years).

"Micky" isn't copyrighted. Mickey is trademarked. Things where Mickey makes an appearance are copyrighted. (Trademark is what keeps you from producing new works containing Mickey. Copyright keeps you from copying existing works and deriving new works from said existing works. For example, porn mickey need not have copyright problems.)

There are literally millions of such things. Do you really think that applying an exponential fee to them has a chance?

Steamboat Willie is still not in the public domain.

I'm just stating an interesting plan, not that it is realistic. Please do not make unnecessary assumptions.

> Steamboat Willie is still not in the public domain.

That's true, but misses the point. Even if Steamboat Willie enters the public domain, Mickey Mouse doesn't enter the public domain.

Sherlock Holmes is in the public domain - I can sell new Sherlock Holmes stories. Mickey Mouse is protected by trademark, so I can't sell a new Mickey Mouse story, no matter how many Mickey Mouse stories have gone off-copyright.

Some questions about the copyright status of Sherlock Holmes stories still exists: http://www.techdirt.com/blog.php?tag=sherlock+holmes&edi...

If I had any literary talent, I'd think twice about writing any Sherlock Holmes sequels, etc, althought I cheerfully bought, read and enjoyed "Shadows over Baker Street", a mashup of Sherlock Holmes, and HP Lovecraft's Elder Gods.

Surely this illustrates that "chilling effect" on free speech that copyright has, eh?

This is an outstanding audio essay on the state of copyright in America: http://www.negativland.com/news/?page_id=16

So, is this article interesting because it comes from The Economist? I think most of us here have been reading copyright law analysis and critique that's far beyond this since before the DMCA was passed.

One of my yardsticks is that when the Economist supports something, it's clear that those that claim that it would be "bad for business/bad for the market" are no longer to be believed.

I agree. When it was Lawrence Lessig saying this, there was a certain note of the crank about the idea (very much increased by the performance of Michael Hart of Project Gutenberg in the lead-up to _Eldred v. Ashcroft_). But when the world's magazine of record says it, it's as mainstream as UNICEF. (Not that being as mainstream as UNICEF is necessarily a good thing.)

That's how changes to the world normally occur: not through a revolutionary minority, but through the development of a consensus which serves as a suitable powder keg. Look at British and French SF from the twenty years before WWI, for example.

Although the analysis in the Economist is excellent, they can still get it wrong. Perhaps not in this case, but often, there are valid counter-arguments which are worth listening to.

> One of my yardsticks is that when the Economist supports something, it's clear that those that claim that it would be "bad for business/bad for the market" are no longer to be believed.

What's the basis for that belief?

Surely it's not "biz survived" because biz can survive things that are bad for them.

Also, the flourishing of other biz doesn't imply that some biz wasn't hurt.

For example, criminalization of morphine (early last century in the US) hurt legal drug retailers.

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