Suicidally strong IP?

I think this says suggests something about theft as depriving someone of something in a direct sense and not about the violation of someone’s right to something.

The reason people don’t take seriously the theft argument is maybe because they think they take something in a way that doesn’t deprive the maker–partly because in a lot of cases they would not have viewed/listened, etc. if the item hadn’t been freely available and their consumption/use doesn’t eliminate the possibility of anyone else’s use.

I wonder if it matters a lot that the item consumed is not a thing. Or is the main thing that it that it can be almost infinitely reproduced at a negligible cost?

It’s kind of interesting the arguments corporations use. They use rights-based ones– any enjoyment should result in some fee…They use consequentialist based ones…that producers will stop producing without incentive. Then they use the theft equivalence one that falls so flat. I wonder if any of the other options would be more effective. And if the tide has turned so decisively in the way it has because there’s such an incentive to do piracy or if it is either not wrong or such a seemingly small harm that it seems silly to resist it.

I was reading a John Cheever story the other day ‘The Housebreaker of Shady Hill.’ It made what I thought was a plausible point that a person can commit adultery and deception and so forth and feel at home in his community but even the most secret theft can feel like the greatest violation of that community. There’s a pretty strong prohibition against theft. I think that’s what they were trying to get at with their ‘piracy’ metaphor. They forgot that pirates are the kinds of thieves we have a romantic attachment to. And bank robbers.

The problem is that the public’s attitude is roughly similar to that on healthcare – i.e. they like the idea of Universal health care, but dislike the idea of paying for it through taxation.

Equally, while people talk about cutting out the middle man, it’s evident that the most successful artists are those who use lots of middlemen – that promotion and marketing are a huge factor in success.

Even if you run with the argument that creativity should be subsidised through merchandising, advertising, and personal appearances/live performance*, those are all forms that require (again) large middle man involvement.

Most authors I know actually want to get a publishing deal, and musicians a record deal, largely because they don’t really have any interest in the business side of publishing, promotion, etc. If we shift more in that direction, then inevitably success will flow towards those who are better at that side of things (although as it currently does anyway, this wouldn’t be a great change).

There is also the elephant in the room – a hugely profitable company who take billions out of the value from indexing and linking to content (while making sure their meta-data and algorithms are kept as trade secrets) while not investing in the production of that content at all, and funding anti-IP lobbyists and academics.

At least in the former system each middleman had a stake / risk / investment in making something a success. TV channels had to invest in producing something of sufficient quality to attract viewers. For Google it is irrelevant, so long as content exists and advertising can be served – but the slice that comes through to the producers is basically not large enough to sustain the practical production of content. Note how they have blocked people from trying to fund their content through embedding pre-roll advertising in YouTube videos.

(And of course it needs to be mentioned at this point that The Pirate Bay had links with the Swedish Far Right. Whole government is not always good, neither are those opposed to big government. Sometimes they are fascists).

* And the whole live performance thing has always struck me as an hilarious argument coming from people who are supposedly technology advocates, yet their idea of how music can be produced is pre-1950.

The problem is that the IP lobby’s message is almost precisely calibrated to encourage the expansion of copyright infringement – trying to equate it to theft of a physical item immediately breaks down as I am sure if people could take a copy of next door’s car/plasma TV/etc. they would not feel quilty about doing so. Almost the entire perceived value of physical items is usually considered the costs of creating each physical instance (even though nowadays in many cases this is far from the reality, this is most people’s perception). So the analogy they are trying to push is counterproductive I think.

In the light of this public reaction, and the absence of any corresponding electoral support for the IP lobby, governments everywhere will think twice before endorsing criminal prosecution of IP violators.

Well, maybe it’s like that in Australia, but in the US our government does whatever the corporate elite pays it to, public be damned, and our ovine electorate just swallows it.

“Even if you run with the argument that creativity should be subsidised through merchandising, advertising, and personal appearances/live performance*, those are all forms that require (again) large middle man involvement.”

I’m not sure what exactly a musician paying an advertising agency or a concert venue/promoter for their services has to do with 70 year copyrights.

“Most authors I know actually want to get a publishing deal, and musicians a record deal, largely because they don’t really have any interest in the business side of publishing, promotion, etc. ”

This is indeed an issue, but it’s also something that can be done in a different way to the traditional music industry model. It’s the sort of thing in which musicians’ unions could play a very useful role, and of course there are all sorts of ways the internet could make the business side simpler and more effective for artists.

And the whole live performance thing has always struck me as an hilarious argument coming from people who are supposedly technology advocates, yet their idea of how music can be produced is pre-1950.

This is a bit of a non-sequitur. The vast majority of working musicians make the vast majority of their money through live performance. Over half of the Performing Rights Society’s total revenue comes from live music. Even among the tiny minority who make substantial sums of money through record sales, live performance and increasingly the use of music on TV shows, films and adverts provide plenty of revenue. Getting your song on a hit TV show is far bigger for an artist than a conventional publishing deal, though of course the latter helps with the former.

The problem here is that no one outside the IP lobby, not even those who strongly support copyright and patents, believes that these things are property that can be stolen.

Why are they not property, why can they not be “stolen”? Do we define “stealing” solely as physically removing something from somewhere? Your life savings don’t exist in any concrete, physical form either (unless you keep them under your pillow), yet you surely would object to some hacker cleaning out your bank account. You are not stealing anything in a narrow, literal sense by sneaking into a theatre, cinema or music venue for free, yet you would be depriving the owners, artists and producers of their profits. And people buying a DVD are certainly not paying for the physical item, which is worth 10 pennies maybe, but for the experience of watching a film at home.

There is, I think, quite a bit of public sympathy for the view that the creative workers deserve a fair return for their efforts, and that social institutions should help to ensure that they receive it.

That’s certainly very big of the public.

you surely would object to some hacker cleaning out your bank account

Hacker transferring digitized money to his account reduces the amount of digitized money in my account. That’s stealing. If he could merely copy from my account to his, I might not care.

They don’t believe in IP – how is that compatible with being far-right?

Dunno, but The Pirate Bay received major seed money from xenophobic, far-right activist Carl Lundstroem:

In April 2007, a rumor was confirmed on the Swedish talk show Bert that The Pirate Bay had received financial support from right-wing entrepreneur Carl Lundström. This caused some furor since Lundström, an heir to the Wasabröd fortune, is known for financing several far-right political parties and movements like Sverigedemokraterna and Bevara Sverige Svenskt (Keep Sweden Swedish). (…) PiratbyrÃ¥n spokesman Tobias Andersson acknowledged that “without Lundström’s support, Pirate Bay would not have been able to start”.

_____

Because theft usually involves depriving someone of a thing.

Well, I tried to make the point that it’s not crucial to the definition of theft, that the “thing” one has been deprived of is of a physical nature.

This post is right on.

However, it’s incumbent on those of us who believe that “IP” is incoherent in theory and destructive & unworkable in practice, to make a positive as well as a negative case. That is, we need to affirmatively show that there are otehr ways of providing the income and other resources people need to do creative work.

Note that this does not mean “compensating” artists. For many kinds of creative work, all that is needed is to guarantee everyone sufficient income and leisure — something any decent society will do anyway. To the extent artists need extrinsic motivations, status and reputation work better anyway.

To start with, we need to call much more attention to the fact that a very large proportion of creative work takes place in academic settings, which are designed specifically to support the production of work that is then freely disseminated.

Well, I tried to make the point that it’s not crucial to the definition of theft, that the “thing” one has been deprived of is of a physical nature.

No one doubted that. But the problem is that the thing the industry claims to be deprived of isn’t non-physical, it’s mostly fictional.

On top of that, it cuts both ways.

Consider someone who downloads a few movies, tv episodes, and some music every month. They also spend about $100 going out to movies and concerts.

Now, what happens if we start perfectly enforcing copyright? Well, they have to cut back. Maybe they cut out the movies and the concerts, and spend the $100 a Tivo, premium cable, and a couple downloads from iTunes. Or keep the going out concerts and movies, but cut all the staying-in stuff. Either way, the entertainment industry collectively gets about the same amount–maybe slightly more, and with a different distribution– but consumers get a whole lot less.

So, in order to recoup (at best) a small fraction of their fictional losses, the IP lobby wants to beggar everyone of a large fraction of their cultural consumption. It’s a hard sell.

What people want is some policy that’s going to fairly compensate creators, but without also pointlessly depriving the public of much of their output.

“Which they are also deprived of if someone simply doesn’t buy their product. or, more to the point, if a third party starts selling a similar product.”

That is indeed the point I was making.

“But we don’t use river crossing monopolies to finance bridge construction any more, for good reason”

Actually, we do, with similarly disastrous results. See the Skye bridge fiasco.

There are aspects of properties that can’t be sold or charged for, not easily anyway. Smell of gourmet food, view of a Gaudi building. Maybe internet sharing is one of those things. You certainly can be charged for the food itself or for getting inside La Sagrada Familia. So, similarly you pay for getting into a movie theater or for a concert.

Nobody I know of would argue that there isn’t a certain percentage of lost revenue and if it’s only 20% of what the industry claims that would still be a huge amount of money.

20% seems very high – keep in mind there’s a substitution effect with non-downloadable entertainment like movies and concerts. It all comes out of the same entertainment budget.

Regardless, assuming it is 20%, perfect copyright enforcement would then mean that producers get 20% more in order for consumers get 80% less.

Possibly the additional revenue would spur some additional creative active, but it would have to be a lot to make up for the reduced consumption ability. Far better would be public policy that captures some or most of the genuinely lost revenue and channels it to creators, without artificially depriving the public of the ability to enjoy their work.

Anyway, this is all rather immaterial, since it should be up to the artists and the industry to decide how they want to distribute their products, not the consumer.

That’s not given. That’s the very heart of the debate.

I would argue the government ought to be responsible for ensuring a comfortable if not terribly fulfilling quality of life for its citizenry, and should conversely assert that innovations will receive time-limited protection for a short duration, after which the innovation enters the public domain for the benefit of all.

Which of course is what the authors of the US Constitution THOUGHT they were providing for in Article 1 Section 8. Sadly they could not foresee the future of pay-to-play government.

Regardless, assuming it is 20%, perfect copyright enforcement would then mean that producers get 20% more in order for consumers get 80% less.

The consumers have no right whatsoever to those 80%, unless they’re willing to pay for it. There was a time not very long ago before file sharing had been invented and everybody seemed to be more or less fine with things as they were then – people bought albums, went to the movies, rented videos (and occasionally copied something for a friend, which is not comparable at all to sharing a torrent which can be downloaded by millions in a couple of minutes).

That’s not given. That’s the very heart of the debate.

I agree that this is at the heart of the debate and I argue so strongly for IP, because I believe that the artist owes society nothing and can do whatever he wants with his works.

The consumers have no right whatsoever to those 80%, unless they’re willing to pay for it.

This strikes me as a counterproductive position to take if your goal is actually to craft optimal public policy.

I agree that this is at the heart of the debate and I argue so strongly for IP, because I believe that the artist owes society nothing and can do whatever he wants with his works.

If the artist owes society nothing, then society certainly owes the artist nothing – do you want to see them try to do whatever they want with their works in a genuinely free market without copyright protection?

“the artist can do whatever he wants with his works”

What if I wish to charge novakant $100 for reading this post? The artist — fairly obviously — can’t do whatever he wants with his works: there’ve always been limits. If one wants one’s brilliant idea to circulate (which means, to matter) there’s a price to be paid for its circulation — in the old days the printer or gallery owner used to take their handsome cut (just ask a 50s RB artist who got the royalties): in p2p-world the circulators are largely you and me, and the price we’re currently asking is very high (all your possible earnings) but then so is the potential circulation of your work; it’s circulating because people want it.

The consumers have no right whatsoever to those 80%, unless they’re willing to pay for it.

I should add that technically the consumer IS willing to pay something for it. They might be willing to pay, say, $2 for the Buffy DVD set. In a perfect world, maybe we could even have some system of perfect price discrimination, and they could actually get it for $2.

But in real life, they get nothing for being willing to pay $2, even though the marginal cost is nearly $0. That’s a social net loss. It’s better overall to give them the entertainment that’s worth $2 to them for free, if you can do it while still rewarding creators adequately.

Effectively they price or police themselves out of the discussion. I work in magazine production — though luckily NOT on the picture desk. When we need to run a sanctioned picture of a building by a major architect, or of a painting by a canonic painter, we can (a) steal it off the net or copy it out of a book for free, or (b) negotiate with an agency or an estate — the latter, currently, often means a nightmare of demands and conditions (including copy-approval, insistence on wording and placing of credit, colour repro approval), even before you get to the very high fee (how much goes to the agency? the artist is DEAD so none is going to him… )

The issue here is a massive corporate-bureaucratic chill on the kinds of things that can be said about — say — Mondrian, should you wish to illustrate what you’ve said with an actual picture by Mondrian.

The place I work has no great heft as a magazine; cannot negotiate from strength; if I were picture editor we’d run a lot more blank spaces saying “we wanted a nice pic of suchandsuch a building here, but the agency [insert name] were MASSIVE DICKS about it because they wish to control what gets said about their clients: so here’s a nice horsey instead…” — which is obviously why I am not allowed to be picture editor.

Art isn’t the thing itself by itself; it’s also all the things said it. Shut the second bit down and the first bit will dry up and blow away.

That rhetorical move also obfuscates the fact that most copyrights are NOT held by creators. I believe the technical term for this trope is “lie”.

Everybody else’s property is protected by laws and law enforcement and so should the artist’s property be.

And how do we decide what is, and is not, the artist’s property?

For instance, in your opinion, how long should copyrights run?

Alas technology has destroyed what had been a fairly reasonable compromise (some copying, but generally degraded enough to provide incentive to purchase originals, etc.)

However, change has come, and really the only two positions that can really be sustained in the long run are no more IP or, just possibly, draconian IP restrictions. (I’m not talking about extension to copyright, just enforcement).

I’d say that those producing digitizable media for the young are dead men (or women) walking. Among the young, the concept of IP ownership is dead. In general, if something can be had for free, then it’s “just stupid” to pay for it – you spend your money on stuff that you can’t get for free elsewhere (tangible goods or stuff that hasn’t yet been pirated/cracked). Interestingly enough, the concept of the morality of piracy doesn’t even come up.

Personally, I like the idea of piracy of IP as counterfeiting. It doesn’t impoverish or deprive the IP owner directly, but it does decrease the value of the IP.

#18 (lemuel). Most successful writers (5+ books) I know work very hard at trying to produce their work and are constantly fighting against a dozen demons (housework, children, time with spouse, World of Warcraft, etc.) that would have them write little, if nothing. The wolf at the door is usually the chief spur to continue writing at an acceptable rate. A decent guaranteed lifestyle would probably finish the careers of most of them (now you’re neglecting the children for nothing!), and if only the basics were guaranteed, the loss of anything resembling IP laws would force those capable of anything better into “real jobs” instead of writing to support their family.

You can no more produce acceptable amounts and quality of intellectual property without some IP protection than you can man the coal mines with those working them for ‘the joy of it’.

Well, creation and circulation are usually different activities: copyright is about circulation, really (it’s the alienable right to copy the original: and the copying technology and distribution technology are very likely owned by someone else, so they end up with this right). Which can be a trade-off that’s helpful to both, though the bigger party holds the whip hand, and exploits it ruthlessly. A lot of IP noise is today is really just frantic rent-seeking as an earlier technological mode of control collapses, and a new one emerges. The “bigger party” today is the p2p entity: it holds the whip-hand as regards the new copying-and-distribution technology. It remains to be seen whether it arrives at a better deal with the creator, from the creator’s perspective.

Society owes the artist nothing more than anybody else. Everybody else’s property is protected by laws and law enforcement and so should the artist’s property be.

Seconding Lemuel’s questions.

You’re really not actually addressing the point that this form of property is created. And created for a specific purpose – to benefit society. This is fundamentally a different kind of property than say, a goat.

There’s no intrinsic reason we should be recognizing and protecting an abstract claim on copies of copies of an original work anymore than there’s some kind of intrinsic mandate that the government send a team of FBI investigators to come and contain and protect my flatulent emissions – which are, after all, my creations.

The only reason to do either is if there is some positive benefit to society.

The writing that’s entered the canon is out of copyright: the agreed-on classics are available in cheap editions that anyone can run out, for next to nothing. You can defend your property, or you can belong to the ages: is there an inbetween position?

#45. Mr Quiggin, is there anything you’ve argued in the first two paragraphs that wouldn’t equally apply to physical objects? I’d certainly have not physically created anything if I hadn’t benefited from the past 10,000 years of society.

Does that justify society being allowed to confiscate it at some point when we feel that higher social good is found by taking it away from me and giving it to someone else?

I’d argue “Yes” to the last question. It’s called taxes.

But then why should IP owners be subject to losing their property at a higher rate than physical property owners? Simply because there’s more social good to be had? Seems a bit unfair to the IP producers, especially considering that most never make it above poverty level.

But then why should IP owners be subject to losing their property at a higher rate than physical property owners?

If you, as an IP owner, want to hoard your IP, you may do so indefinitely (well, at least until death) without society ever confiscating the tiniest bit of it.

Tom West-

You might want to explore the implications of your answer to this question

Does that justify society being allowed to confiscate it at some point when we feel that higher social good is found by taking it away from me and giving it to someone else? I’d argue “Yes” to the last question.

for your other question:

why should IP owners be subject to losing their property at a higher rate than physical property owners?

You also might want to reconsider whether the fact that “most [IP producers] never make it above poverty level” is really an argument in favor of the existing system of IP protections.

(I thought Novakant was setting the local record for pro-IP chutzpah. But Tom West’s “the current IP system screws artists royally, therefore we must defend the current IP system for the sake of artists” looks like a new winner.)

Hey Tom, how long do you think copyrights should run?

Not sure what happened to my punctuation in that post. Never mind.

It’s not your punctuation, GY, it belongs to the collective.

Novakant, how long do you think patents and copyrights should run?

Novakant, how long do you think patents and copyrights should run?

Oh, I don’t know, life + 50 years or something like that.

this form of property is created. And created for a specific purpose – to benefit society.

I have never, ever heard an artist claim that he created his art for the specific purpose of benefiting society – maybe this happens more often in totalitarian countries, though.

I have never, ever heard an artist claim that he created his art for the specific purpose of benefiting society

Perhaps you haven’t met one.

I have never, ever heard an artist claim that he created his art for the specific purpose of benefiting society – maybe this happens more often in totalitarian countries, though.

The legal fiction of copyright is what I was referring to as created for this purpose, obviously.

(Also, I daresay a lot of artists DO make their art principally because they think it will benefit society– i.e., so other people will enjoy it.)

Copyrights and patents are public policy vehicles designed to entice people with valuable ideas to share them with society. Period.

So they say, but perhaps it was designed primarily because anything that can be commodified must be commodified. In which case, all the morality stuff is irrelevant, and the only question is: given modern technology, can it stay commodified or not? It appears that it can’t, though.

Talk about where value comes from.

Oh, I don’t know, life + 50 years or something like that.

Why shouldn’t copyright expire during the artist’s lifetime, Novakant? Make it a fixed term irrespective of whether the artists lives or dies. 28 years maximum was good enough for George Washington.

I understood you to be arguing on an absolute natural rights basis that for any given artist, innovator, writer etc, the terms on which they make their work available are whatever terms they choose to impose, and that society is obliged to enforce those terms.

I think we misunderstood each other here – I didn’t mean to say that artists could dictate the law, the current consensus of copyright lasting for a lifetime + 50 years or something along those lines seems very reasonable to me. In a wider sense, I would argue for the absolute autonomy of the artist, which would include doing whatever they want in their art, choosing not to release works at all or destroying them, and against them owing any debt to society, because I think that’s pious nonsense and it is not how most art is produced anyway. But when they have chosen to circulate their work, they are of course subject to the law of the land. This position seems to be very controversial here.

I have no considered opinion on patents.

Tom West #44:
Re the youth thing:
In general, if something can be had for free, then it’s “just stupid” to pay for it – you spend your money on stuff that you can’t get for free elsewhere (tangible goods or stuff that hasn’t yet been pirated/cracked). Interestingly enough, the concept of the morality of piracy doesn’t even come up.
The Clovis point gets used as an archeological time/date stamp because it was such an obvious improvement its adoption was pretty much immediate following contact.
That process likely had very little proprietary gimme-gimme and/or withholding-for-profit, though as IP it’s pretty strong as a new and central change-making invention.
What’s now called music in the public domain was once all the music there was. For most of its existence as a human art form music was in that domain and of it entirely. Heard and passed on, received and sent.
Starting with the legal enforcement of copyright issues and the publication of sheet music, music began its descent toward commodity, and once recorded versions of music became real tangible artifacts that descent was complete.
The travesty of George Harrison being sued over the melodic echoes in “My Sweet Lord” by men who had nothing to do with any music creation but merely amassed the legal rights to the work of less legally sophisticated artists is a key example of how wrong all that crass perspective gets.
Now the youths, as feral consumers but not as revolutionaries, return toward the original context of music as experienced outside any mercantile context.
Music’s just there, the price tag is not integral or necessary, so Darwinian excision takes place.The price tag feeds the middle-man who may or may not have contributed some energy toward the diffusion and participatory enjoyment of that music, but is clearly not necessary to the actual process.
What’s shifting between the old and young is we all grew up with the price tag attached as an essential feature of the commodity, and the kids are growing up without that. Ours was a false paradigm, a skein of mercantile illusion.
Attackable too is the notion of “entertainment” itself as trivial luxury. Music accompanies every important ritual passage we make except birth itself. Everything else, weddings funerals graduations courtship etc etc has music solidly attached.
File-sharing may have some legal commonality with shoplifting, but it’s more like the freedom of artistic expression that we had through most of our history, than paying for anything and everything that’s vulnerable to commodification is.

Hard to see how one could comprehensively prohibit a company from making a contract with an author that would effectively sign over all the rights borne by the official copyright holder, though.

They’re the experts.

Maybe some sort of quickie divorce mechanism/formula that would liberate a copyright.

In a wider sense, I would argue for the absolute autonomy of the artist, which would include doing whatever they want in their art, choosing not to release works at all or destroying them, and against them owing any debt to society, because I think that’s pious nonsense and it is not how most art is produced anyway. But when they have chosen to circulate their work, they are of course subject to the law of the land. This position seems to be very controversial here.

That position isn’t controversial at all, as far as I can see. I agree with all of that 100%.

But then nothing but the very last point has anything to do with copyright. And earlier you appeared to be arguing NOT that the artist was subject to the law of the land when they released it into the wild, but in fact that the law owed them something special – a copyright.

I didn’t mean to say that artists could dictate the law, the current consensus of copyright lasting for a lifetime + 50 years or something along those lines seems very reasonable to me.

I doubt it’s accurate to describe this as a “consensus”. I think most here probably view this kind of absurdly extended copyright as something of an abomination. A complete twisting of the intended effect of copyright in favor of a small handful of corporate interests and damaging to artists, art, and society.

Hey Novakant, do you never borrow or lend books? Refuse on principle to buy secondhand books and clothes? Deny your friends’ music in the car on road trips? When you and your mates rent a dvd, do you insist on everyone paying the full rental price to the store? Or are you secretly a thieving scoundrel as well?

lemuel
#56
I tend to think the lifetime of the author or 25 years (whichever is more) is reasonable. I just have to hope that I don’t outlive my spouse :-)

#58
You also might want to reconsider whether the fact that “most [IP producers] never make it above poverty level” is really an argument in favor of the existing system of IP protections.

(I thought Novakant was setting the local record for pro-IP chutzpah. But Tom West’s “the current IP system screws artists royally, therefore we must defend the current IP system for the sake of artists” looks like a new winner.)

If there are 6 billion people on the planet, perhaps 1 billion would like to be writers :-). So, realistically, someone or something is going to have to decide who can make a living from writing unless we create a massive transfer from people-who-don’t-want-to-be-writers to the people-who-want-to-be-writers class.

To my mind, the fairest judge for who gets to make a living off their writing is the market. It’s a long way from perfect, but every other method devolves to something worse very quickly. (I certainly don’t have anything against government support for arts, but it should not be the sole arbiter of who gets to produce art, and we simply cannot support everyone who would like to do so.)

#67 Arguing that people won’t write without compensation in the comments to Crooked Timber is sort of like using OpenOffice to write an essay on why office software can’t be developed open source.

:-)

I’m not arguing that in the absence of IP laws, there wouldn’t be a substantial amount of writing. There’d probably still be huge amounts of fan-fic. But let’s just say the writers I know would be forced to abandon writing. They have houses to pay for, children to raise, rent that is due, etc.

I’m just asking why, if you to be unlucky enough to produce work in a digitizable medium you should have your work confiscated for the good of society sooner than those who produce goods or services? (How’s that for framing a question?)

That is indeed heavy framing. The obvious answer being that using the word “confiscate” is begging the question, and pretty obviously inappropriate. The content producer is still able to use the work as he/she sees fit. What’s been confiscated, if anything, is potential future revenue. iTunes is the biggest music retailer in the UK and in the US, which suggests that work in a digitised, let alone digitisable, medium is still able to provide substantial revenue despite rampant piracy. Not to mention the fact that patents, which usually involve phsyical goods, actually have vastly shorter lives than copyright.

As for squatting, I certainly believe that copyright should not be extended indefinitely without some work on the part of the author.

Fair enough. It’s interesting that under current law, trademarks have to be protected to be valid but copyright doesn’t.

Also, if we were going to pedantic about it, shouldn’t an author be able to lease IP with enough provisions to prevent legal copying even in the absence of IP laws?

Why should they? I mean, I’m struggling to think how this would even operate – you can’t be bound to a contract you haven’t signed or otherwise agreed to.

To be clear, I don’t think that there shouldn’t be IP laws. What I’m saying is that the current laws have been disastrously twisted from their proper purpose and on top of that have proven woefully inadequate at their shaper’s purpose in the face of modern technology and changing mores. As a result, they’ve disincentivised the various creative industries from adopting business models that would both be more profitable and would provide more benefits to consumers and society as a whole. They need to be fundamentally redesigned so that they are fair to both creators and consumers and so that they benefit society by promoting the creation and sharing of ideas. I’m very open to suggestions, but I lean toward some combination of compulsory licensing, shorter terms and much more freedom for non-commercial use.

It is the legal consensus in most countries.

That’s not a “consensus”, it’s the corrupting operation of multinational corporate power.

it’s the corrupting operation of multinational corporate power.

Yeah, Victor Hugo and his pals were really only corrupt agents doing the bidding of multinational corporations.

It’s noteworthy that the US was not part of that French-driven “consensus” for quite a long time- not till 1976, in fact. (As well it shouldn’t have been since the life + 50 years is grossly at variance with the spirit of Article 1 Section 8.)

Salient, property itself is not as clear-cut as that. Think of owning land, perhaps the traditional version of property if there is one. It includes the right to at least some depth of soil, but that’s hardly the core. An owner is allowed to refuse people above his land, but not to refuse aircraft from flying over. You get to determine what activities and buildings are allowed on that land, but there are heavy restrictions on that too, of the “residential use, no more than three floors” kind. You get some preference if there are resources below your land, but you do not automatically get all of that. You can pump water, but not indefinitely. Etc,etc.

Owning a (part of) a company is an even clearer example where the meaning of property is no more and no less than a very complicated set of laws on specific rights and liabilities that together form a “company”. It has some resemblance to owning land or goods, but no more than a resemblance. What about owning money? Or part of the electromagnetic spectrum? A dog?

IP is just another set of, to some extent arbitrary rights, this tme in connection with some information pattern. Owning land gives me the right to determine whether people are allowed at a certain location, IP whether they can use that pattern. We can discuss how far those rights should go, what form they should have. But saying they are not as real a form of property as owning a piece of clothing elevates the concept of property to something more intrinsic than it really is.

In a similar vein, IP is a set

Salient, property itself is not as clear-cut as that.

Granted. I’m having a hard time understanding what Novakant understands IP to be. If I write a book, how large a role would Mickey Mouse have to play in it before I’ve violated Novakant’s understanding of intellectual property?

Or part of the electromagnetic spectrum?

Your other examples make sense, but I can’t understand how one can “own” this, and it disturbs me to think such ownership is recognized. It’s like owning the air: the spectrum (e.g. radio waves) should be protected as a public good and regulated according to the public interest, but no individual ownership rights should be recognized. Usage rights, OK. But “ownership” approximately means “the right to unilaterally prevent others from using the resource, subject to governance in the public interest” (this clause accommodates laws prohibiting discrimination etc).

Radio stations have the right to uniquely use a part of the spectrum, for a limited amount of time in a limited geographic region. That’s very close to what you describe as property. They are not always allowed to sell it on (although you can of course buy the company owning that right) , but they own it at least as much as you can own a ticket for a concert.

But unlike a ticket, spectrum licences and IP do not have a specific counterparty over which you have a right, like the concert organizer, instead you get a government-granted right over all people in its jurisdiction. But that is pretty much the same government-granted right you have that others cannot wear your clothes without your permission.

@99 I am interested in personal use, so I don’t know how counterfeiting fits here; maybe it is something like buying a fake Rolex for yourself, except that no money changes hands.

Suppose I feel the urge to watch some old movie, say some spaghetti western or something. I could try to find it in a video rental, drive there, wait in line, pay 5 bucks, get back, watch it, return the next day. Or I could type filetype:torrent “movie title” in google, click, and in a couple of hours I have a 700MB avi on my desktop; I’ll watch it on my monitor and delete. Is this anything like counterfeiting?

Or maybe someone recommends a book on this blog. Yes, I can go to Amazon and order it (I’ve done it many times), pay 20 bucks and get it delivered in a few day only to find it completely unreadable after the first 5 pages. That’s just a waste. I want to download the book, read it on the monitor, and if I like it a lot maybe I’ll buy it (unlikely but possible). This sort of thing. Am I being unreasonable?

#103 Ginger, I agree that the counterfeiting is not a perfect analogy, but it seems very close indeed, at least for making it clear why it’s not a victimless crime.

If I’m producing *perfect* counterfeits, the problem is not that your wallet will be filled with unusable bills, it’s that the bills in your wallet are now part of much diluted money supply. If you can simply inflate the money supply at will, the currency is not going to be worth very much.

Copying of an IP simply inflates the supply of that IP, rendering the owners IP much less valuable.

#106, Henri, Is this anything like counterfeiting?

I’d say the torrent supplier has certainly devalued the value of the IP by providing the ability to copy the movie at will for free. How much harm has been done can be debated forever.

As Ginger put it, the analogy isn’t perfect. The analogy is mostly meant to show that serious harm can be done without loss of the original and governments consider that loss so serious that they stomp on it hard.

However, if ‘free’ is the default value of IP, then the arts world is certainly going to be a lot different in a decade or two’s time, especially as the younger ‘downloading is a right’ generation grows up. Certainly I’d advise my children against going into any field where their what they produce can be rendered worthless by digital copying.

I’m heavily skeptical about live performance of music being a good source of income once the promotion of bands dies. Big money-making performances have always been more about identity than the music, and once there’s no-one to spend the money to do the marketing to prove that everyone loves the same thing and link the music with the identity, bands are back to playing bars to avoid starving.

#107, jack lecou,

We as a society should therefore be able to debate whether that mechanism is serving its purpose

Okay, how about the difficult question. Given that any IP law policy is more or less irrelevant unless the laws are actively enforced, and given that active enforcement with penalties severe enough to have a deterrent effect are going (are already) seen as hugely draconian, what should be done about enforcement? If we don’t address *that* issue, then we’re as good as striking the IP laws off the books as they only act as a fig leaf so that the government can pretend it cares.

The trouble is that technology has destroyed the possibility of compromise. The only way to prevent wholesale destruction of IP ownership is with policies that restrict everyone’s rights including those that they have historically enjoyed, or by making penalties so draconian that there will be at least some deterrent effect from the way out-of-proportion penalties

I’ll be darned if I can see a solution. Someone’s life is going down the toilet in the next two decades, and I’ll bet 3-1 it’s the IP producers.

Not only performance, surely they can charge commercial entities, like radio stations.

How much harm has been done can be debated forever.

See, that’s the thing: the harm, if any, is mostly hypothetical, especially if we choose to ignore all that highly unconvincing rhetoric about sacred ‘property rights’. The benefit, OTOH, is significant and undeniable.

The trouble is that technology has destroyed the possibility of compromise. The only way to prevent wholesale destruction of IP ownership is with policies that restrict everyone’s rights including those that they have historically enjoyed, or by making penalties so draconian that there will be at least some deterrent effect from the way out-of-proportion penalties

I’ll be darned if I can see a solution. Someone’s life is going down the toilet in the next two decades, and I’ll bet 3-1 it’s the IP producers.

That’s absurdly apocalyptic. I think you need to make distinction between preserving the existing mix of mediums and benefit distribution, and having a thriving creative culture in general. The latter can exist in many forms, and it’s not at all clear we’ve got the best one going on.

For one thing, there’s theory and evidence that we don’t need certain forms of “IP” at all.

Patents and copyright are different balls of wax, but with patents, it may well be that the “founder advantage” of being the first to innovate is more than enough reward. At the very least, patents on things like business methods and software should probably be eliminated. The existing system also offers perverse incentive in fields like pharmaceuticals, where it’s more profitable to patent 27 different slightly modified Viagra molecules than it is to develop a malaria vaccine. Something like prizes may be a better mechanism in those areas.

It’s a similar story with copyright–reduce, eliminate, modify.

Music has already been discussed, but it really is true that the vast majority of bands make no money on recordings. There’s more money in live performances and merchandise. (In fact, you’re probably losing money if you sign away your profits to a record producer, and simultaneously rob yourself of the ability to use your recordings as a promotional good.) Now, certainly the distribution of gains might change, and a handful of megabands and recording studios would get a smaller share of the pie, but music and culture can thrive in a world without (enforceable) copyright. (Perhaps do better than now, even. See “Grey Album, The”.)

There’s also a lot more room for compromise than you’re imagining. For example, we could have limited term copyright that gave artists some creative control over things like commercial use (but not for too long–we don’t want to impoverish the public domain), but include some kind of built-in open license for non-commercial use. Downloads could be financed by a tax on internet use or storage devices or whatever, and the revenues would be distributed back to artists based on popularity.

(Of course, it’s important to consider all of this medium by medium. The optimal approaches for books and for tv shows aren’t necessarily the same.)

If I’m producing perfect counterfeits, the problem is not that your wallet will be filled with unusable bills, it’s that the bills in your wallet are now part of much diluted money supply. If you can simply inflate the money supply at will, the currency is not going to be worth very much.

Copying of an IP simply inflates the supply of that IP, rendering the owners IP much less valuable.

The analogy is definitely flawed. For one thing, the inflationary losses from counterfeiting currency are real. Currency is used to purchase goods and services that are, mostly, rivalrous, and if I counterfeit money for myself to purchase them, I decrease the quantity other people are able to purchase.

But digital copies are not rival. All else (e.g., the artist’s income) equal, the optimal distribution is to give everyone a copy who wants one. It’s preventing the free copying of non-rival goods like this that imposes very real (and very large) social costs.

You can’t paper over those costs by talking about the “right” of the creator to some hypothetical income from a hypothetical sale that wasn’t going to happen anyway. It’s at least as natural to think of a “right” to freely copy anything I haven’t promised not to, especially because the latter right doesn’t require any intrusive and draconian enforcement to work.

iTunes and Amazon show that people are willing to pay for digital music in large numbers

To be honest, I think it’s ‘old people’ who are willing to pay for digital music, which keeps it viable for another 10-20 years. My exposure for to high schoolers (under the guise of Computer Science education) has been quite an eye-opener for me. The fundamental difference is the near universal belief that downloading music/movies/books is no more unethical than picking up money off the sidewalk. Literally. Unless that understanding changes as they get older, then paying for music or moves is “just stupid”. (Sorry, that quote remains with me some years later. I don’t think there was a person in the class who disagreed with him…)

At that point, any attempt to make customers pay is simply seen as government/RIAA stealing from them. That’s an attitude that makes it clear that IP holders are dead, short of the some unlikely measures. I strongly suspect it’s why the RIAA and its ilk are going the draconian route. It’s not a good one, but there is no viable business model if your audience thinks they’re entitled to your work for free.

The kids I spoke with should be in university now. Can anybody relate whether the attitude is the same among the undergraduates? (My own experience twenty years ago with software piracy was “I know it’s wrong, but I have no money”, which generally led to software purchases when we finally got money.)

Not even finding money on the sidewalk, more like looking at a picture.

Or listening to the radio.

Ginger, I think you are right that the only hope is in ‘value-added’ services. In other words, the actual content is worthless.

The music and TV industries need to make a business model that replicates or even improves that user experience in a world where people expect to be able to take their media with them and transfer between devices . Instead we get responses like the lawsuit against Real Networks, for creating software that allows users to make copy-protected digital back-ups of their DVDs.

In the end, I honestly think that the industry’s response is irrelevant. The only effect is going to be “yeah, the industry got what was coming to it” instead of “gee, it’s sad that the industry died”. No matter how responsive you are to your customers, “you can’t beat free”.

As someone pointed out, technology doesn’t guarantee that certain industries we like are viable. It’s quite likely that the era of newspapers and their effect on limiting corruption in government is coming to an end.

Certainly my wife, a reasonably successful novelist, is looking carefully at her future in 10-20 years (the time it will take before e-books are so common that physical books no longer hold much attraction and the Cory Doctorow strategy collapses). I suspect (and hope to be proved wrong) that the era of the content creator, like that of the newspaper, is coming to an end to be replaced in both cases, by those who need not make a living from their vocation.

The only effect is going to be “yeah, the industry got what was coming to it” instead of “gee, it’s sad that the industry died”. No matter how responsive you are to your customers, “you can’t beat free”.

I don’t know why anyone would have been all that sad anyway.

As Henri pointed out, there is tremendous value inherent in our collective creative output. And technology is now allowing more and more of this potential value to actually be used and enjoyed.

The only complaint seems to be that a revenue model invented in 1710 isn’t quite keeping pace. It’s like monastic scribes complaining that the printing press is both putting them out of work and letting the rabble learn to read. Quel apocalypse. You’ll forgive me if I’m not yet convinced that we’re passing into a new dark age.

“Copyright is dead. Long live creativity and culture.”

I suspect (and hope to be proved wrong) that the era of the content creator, like that of the newspaper, is coming to an end to be replaced in both cases, by those who need not make a living from their vocation.

My best wishes to you and your wife, but whatever changes are occurring, I very much doubt that smart, creative people are going to have much to worry about in the end.

I suspect (and hope to be proved wrong) that the era of the content creator, like that of the newspaper, is coming to an end to be replaced in both cases, by those who need not make a living from their vocation.

I’d anticipate books will be a special case in our lifetimes because people have learned to be so attached to the paper medium, even the young’uns who read.

In the end, I honestly think that the industry’s response is irrelevant.

I don’t know that I’m so fatalist as this. There’s a lot of money to be made here, plenty of people willing to spend it, etc. Recently read about a site in the design stage that lets you “sell your old MP3s” without even checking to see if you’ve deleted them. If I understood correctly, it’ll be OK with the RIAA because the relevant companies will get a 50% kickback. So, there’s ways to be profitably responsive.

A more useful approach (at least to me as a content provider) would be to define content as a service not unlike a haircut. After all, the cost of producing a haircut are zero.

Ummm. How is the cost of producing a haircut zero exactly? Analogy fail. Try again.

(If you’re a live performer, the analogy is probably fine, though not because it somehow costs nothing to produce a haircut. Of course, live performances aren’t really threatened in all of this.)

The second argument, that whoever copies something would not have bought it anyway is such a non-starter that it is not even worth discussing. I mean, I wouldn’t have bought the new TV either.

Wishing an argument away doesn’t make it happen. The argument is that people have limited budgets, and they will almost certainly download and enjoy more things than they would have otherwise been able to buy:

Case A: In a given month, I buy 2 CDs of music, a DVD movie, and go see 1 movie in the theater. I spend, say, $60.

Case B: I can download things, so instead of A, I download 5 CDs worth of music, 3 movies, and then still have my $60 to go to 3 theater movies, and a live music show.

Explain how it is that anyone can claim to be losing money on the “hypothetical sale” of CDs #s 3, 4 and 5? And if they can, why can’t the live musicians or theater owners in B claim to be losing money on the hypothetical tickets to their show you didn’t buy when you spent the money on the DVD in A?

In both cases I spend about $60. It’s just that in the second case, there’s a lot more entertainment actually being enjoyed. Preventing people from freely copying non-rival goods doesn’t make them spend more money, it just reduces reduces the aggregate social benefit.

It’s a long thread, but I couldn’t find a reference to open source.

I did, at 67. The point wasn’t to conflate open source with ignoring IP, of course, but to illustrate that productive creative work is possible without the particular form of strong IP embodied in current copyright laws.

But we are not talking about ignoring IP laws, we are talking about different IP laws.

Exactly. Something like GPL can fit in just fine with a less restrictive copyright regime.

GPL software doesn’t need draconian protection from kiddiez downloading GPL code off the internet. That’s encouraged. It doesn’t even need protection from parties from doing whatever they want with GPL code internally. All it needs is some protection from (mostly commercial) entities hijacking GPL code and distributing it in closed-source products.

It’s relatively easy to detect this kind of abuse, and to hold the infringing party responsible. Plus, unlike downloading music, it’s hard to point to any public harm coming from enforcing this kind of GPL restriction. Quite the opposite. After all, whatever entity wants to use the code, can. They just can’t pass it off as their own, or prevent others from viewing or improving it.

Jack, cheer me up. I need some modern examples of mass creativity and culture once all the monetary incentives have been removed. I’d hate to think we’re gaining social benefit only by eating our seed corn.

Well, I’d start by saying that to posit that “all the monetary incentives have been removed” is assuming too much.

We’ve already talked about music, and how the vast majority of musicians probably BENEFIT from the ability to share their music and promote their performances with the internet, a few major record producers and mega bands notwithstanding. This approach might be applicable, or at least adaptable, to a few other types of work too.

There’s been some mention of the fact that there’s always money in adding value here or there to transactions, convenience, portals, etc. And while probably not a big source, I’d anticipate some ramping up of things like corporate sponsorship, or private patronage for some kinds of works.

Then there’s explicit government funding. For example, although the NY Times has more readers than ever before, it’s still an open question about whether they’ll be able to make it in the long run. I think some kind of BBC-ish model might be one way to go for “authoritative” news sources like newspapers. (Frankly, I think this might improve coverage quality and pro-government bias. No more closing overseas newsrooms. And it’s not as if the NYT could have been much more ‘pro-government’ than in the lead up to the Iraq war – at least with government funding, everyone would be sensitive to the issue.)

We can also just look at this as a pretty standard externality problem–artists produce positive externalities–and try to patch things up with taxes and transfers. I mentioned earlier that you could have a tax on internet use, for example. It’s a obviously a little tricky to distribute the proceeds back to the creators in a way that nobody could possibly object to, but there’s definitely plenty of money there.

Finally, there could easily be some completely novel approach, even if it it takes us a decade or two to figure it out. Copyright itself was just an innovation in response to the technological change in an earlier day. That form of copyright may have run its course, but it’s a little early to be saying that there’s no possible innovation (or innovations) that can replace it.

I was going to get to the “amateur” part of the answer next, but Righteous Bubba probably makes the point more succinctly.

Technology is unquestionably making producing and distributing all kinds of media a lot easier. And entirely new types of media.

It’s easy to mock Youtube, Facebook, Twitter, or lolcats, and bemoan the decline of culture or whatever, but in some ways that’s probably a lot like the aforementioned monk bemoaning the spread of ‘tawdry’ vernacular novels. The fact is a lot of people spend a lot of time with these kinds of diversions, and apparently get something out of it.

Anyway, it’s clearly not all just brainless fluff. Blogs are an endlessly valuable medium, with experts and enthusiasts in all sorts of fields sharing ideas. Wikipedia, for all its flaws, is an incredibly valuable resource. Youtube has lots of good things on it. Even lolcats can be kind of profound on occasion. Etc., etc. And who knows what’s next.

The ease of production and distribution also opens up the field to a lot more “amateur” efforts for mass self-publishing in digital versions of the more traditional mediums: books, movies*, etc. It’s true that 99% of everything is crap, but there’s still a lot more stuff out there that people will enjoy–more than a publisher will ever want to print, or that than can fit on the shelf in a bookshop.

* I should have mentioned in the last one, but commercial movies are really in much the same boat as music: going to a theater is a social event, so it works a lot like a concert performance. Downloading and watching at home is a weak substitute. (It hurts DVD sales, but home movies are only a very recent phenomenon anyway.)

Ditto to 136, 138 and 139.

I’m sorry if Tom West’s wife’s livelihood (or at least her membership in the club of professional novelists) is threatened, but from the point of view of us here at CT, he is actually producing something more valuable for free than she is for money. After all, we’re reading his blog comments but not her novels.

For time reasons I won’t respond to all the points that have been made since I last posted, but I think Tom made some very good points and I would add that the problem with most of these IP discussions is that they reek of ex post facto rationalization: the vast majority of internet users have at least occasionally circumvented IP laws simply because they can – it’s free, easy and the chance of getting caught is close to zero.

Wether out of a slight feeling of guilt or simply because they’ve gotten used to the practice and want to continue it, some of these users then go on to make up all sorts of arguments designed to justify this behaviour and that’s when things morph from a minor infraction into a full scale attack on IP law. It’s like people who have occasionally broken the speed limit, cheated a bit on their taxes or not sorted their recycling properly then going on to attack traffic laws, the tax system or environmental policies as a whole.

To them I would say: hey, we’re all sinners, so I wouldn’t worry too much about it, but let’s get real here, it’s wrong and we all know it, so don’t be cheap and fork over the couple of bucks that you are otherwise perfectly willing to pay for a visit to the cinema, the theatre, a musical performance or for a painting, a photograph and, at least in the vast majority of cases, a book.

To clarify, I am not talking so much about applications, word processors etc. (it would be an interesting CS project maybe to investigate what it is about web browsers that makes them better candidates for open source than office applications like word processors and spreadsheets), but about what people in the 1980s were trying to characterize as “software ICs (integrated circuits)”: not because they wanted them commodified in the commercial sense but because they ought to be interchangeable in the sense of being plug-and-play. Nobody writes their own XML/HTML parser, for example–twenty years ago, for the equivalent technology, you would have had to, and moreover in a large organization there might be three or four groups all rolling their own.

So Novakant, you oppose people lending their friends books?

The next generation can live without books, movies or music

Also, we’ve got plenty of music, old man. Don’t you worry about that.

Academics, by the way, are very well compensated for their publication. Pre-tenure, without publications they might as well say good-bye to their job. Once they have tenure, their pay rises depend on their publication records. This acts as an incentive.

More generally, academics fit very nicely into the natural monopoly framework. And are compensated as such. Unlike most musicians, writers or photographers

The only difference between forcing the stylist and copying somebody’s work in that sense is that you take away the stylists utility at that very moment; while when you copy somebody’s work you take away the return on the work/disutility they invested at some prior point. I have a hard time seeing the difference from a moral perspective.

It’s those little words “return on”. But you probably think zoning laws are an unconstitutional taking, too.

To me this would suggest that doing away with copyrights etc would lead to the underprovision of certain goods and services.

Sure, if you assume these is no other way to compensate people for creative work except copyrights, and that there is no other motivation for creative work except financial compensation. That is, if you ignore the conditions under which the vast majority of such work — including by far the most valuable — has actually occurred.

As novokant said taking something that is not yours and that somebody who made it or paid money for it doesn’t want to give you is wrong.

But this is just not true. Not that I can see, anyway.

Say someone paints a mural on the side of their house. They pay a lot of money and put a lot of effort into it.

Then they decide they don’t want anyone to look at it (unless you pay them). Is it wrong to look?

Your intuition that it’s wrong to make copies of something that is floating around in the public sphere is based entirely on the preconception that by making those copies you are “taking” from the original creator somehow – either directly, or by marginally reducing their “return”. But that “taking” only happens under a system where creators in certain mediums have a socially granted “right” to control reproduction in certain ways. And that “right” only exists because of a social bargain, a bargain that is arguably now defunct.

We can talk about consequences and how best to continue to support a vibrant creative sphere as much as you like, but the “natural right” argument falls flat. A musician in Toronto has no more “right” to tell someone in São Paulo what to do with the 1s and 0s on a CD than the owner of a public mural has to tell people whether they’re allowed to look or not.

Jack, the point I was trying to make with your house analogy was a moral one. By me entering you house and watching you sleep or using your computer you are in no way monetarily hurt. Therefore, following your argument I am at liberty to do so. The point of exludability does not matter in this respect.

The analogy of the stylist is arguably not a good one. What I wanted to get at is that the simple fact that someone is not hurt financially may not be good enough of an argument to condone certain types of behaviour. This is also my problem with the “i would not have paid for it anyway” argument. Does this give me the right to pay everyone only what I would have wanted to pay for something, provided it is above the marginal cost of production? In any case how would you distinguish between people who would have and those who would not have paid.

The point of excludability matters with respect to the economic argument. And here I completely agree with you. It is not 1972, in that the cost of copying certain types of work have become almost neglible. This, in my view, does not make it right for me to appropriate this work. But, as I said, the moral aspect of this is debatable, as is any kind of redistribution of surplus.

What has to be examined is the consequences of this. The efficiency argument is not straightforward in this respect. When we are dealing with non-rival, non-excludable goods that are not free to produce, full efficiency cannot be attained. Copyrights, that is creating artificial restrictions use, lead to an underprovision of the good. As does the total absence of any form of copyright protection. About this I can see no argument. What can be argued about is the relative size of the welfare loss in both cases and the mechanism which gets us as closely to the optimum.

This would depend on what type of goods/services we are looking at. My hunch is that if for music the welfare loss was large, a different kind of pricing mechanism would be employed by musicians, but maybe as an economist I am too prone to rely on pricing to achieve (second-best) allocation. To some extent we are seeing this: single song downloads, falling prices for CDs etc. But this is only my hunch. In other cases, such as basic research it is most likely the case that protection is inefficient…which is why much of it is done at universities.

This is not a moral argument but an argument about efficiency. In how far one would want to give up the protection of property rights (which are all more or less due to a social contract) for efficiency is for society to decide.

This is not a moral argument but an argument about efficiency. In how far one would want to give up the protection of property rights (which are all more or less due to a social contract) for efficiency is for society to decide.

I think what I feel is being underplayed here is the fact that we really have no choice in the matter.

The “property right” in question rests on some kind of magic ability to restrict non-commercial copying and file sharing. Even if it were desirable, it’s simply untenable. At least not unless we want to give up all the other good and extraordinarily productive aspects of the internet and associated innovations as well.

Going forward we need to discuss a limited form of copyright that maybe gives creators some short-term control over things like commercial use, and then some other mechanism (probably public) for financing an adequate provision of the various now public goods.

And we also need to keep in mind that not only can’t we go back to 1972, it’s not clear that it necessarily represents some golden age of creative content that must be preserved at all costs. Our great-great grandchildren will likely have a very different idea about what the optimal mix of creative goods is. They might be interested in fewer of the kinds of goods that rely on copyright today (straight-to-DVD movies, Britney Spears CDs), and a lot more of the goods that are not reliant on copyright, or depend on internet technology (funny blog posts, local theater productions, youtube shorts, serialized internet novels…).

People entering my house and watching me sleep are okay by me. How is it that I know or care about such things? They don’t eat my food and leave my door locked, so they’re the best houseguests I’ve ever never had.

And if it were, is my right to privacy not also curtailed by you not letting me watch you sleep?

I didn’t see this before…

On reflection, I guess I’m not sure it wouldn’t be. Though if it is, it’s not an egregious one: to deny you the right to watch me sleep, I don’t have to do something like have the police put tracking devices on everyone’s ankles, or even hire a detective to follow you around.

Plus, unless you’re a ghost, a ninja or a vampire, there’s a non-zero chance I’ll discover you – that is, there’s an “expected” injury involved regardless of whether you’re actually found out. So it’s also not exactly true this is a harmless act, and even if preventing you is interfering with your privacy somehow, it’s probably worth it on balance.

I think this is also where practicality and difficulty of enforcement come into play: On the one hand we have a desire not to be spied upon in our home while asleep, plus the number of people who want to spy one someone in there sleep is pretty low. On the other hand, if they do, chances are they will leave traces, or give something away and be discovered and punished eventually (so it’s not costly to enforce a restriction).

On top of that, our experience with the sort of people who would WANT to break into someone’s house and watch them sleep suggests they might not always stop there (which is probably one of the reasons finding a stranger in your room would be distressing in the first place). It’s also useful to treat the home as a sort of inviolable bubble in which we have an expectation of privacy and control: As a practical matter, if we started allowing people to enter homes at will as long as they only watched people sleep, it becomes much more difficult to enforce restrictions on more obviously harmful things, like burglary, or rifling through private financial papers. (In contrast, it would not be much of a violation if you were to be watching me sleep on a public park bench, say. Or were digging around in my discarded trash. )

On balance, I think it’s easy to decide as a society that something like breaking into homes and watching people sleep isn’t permissible, and it’s not particularly burdensome to enforce that restriction.

Of course, I also think it might be possible for technology to change that. For example, in some science fiction scenario where brain implants, or mutations, or some trick of concentration allowed anyone to see through anyone else’s eyes at will, or to roam about invisibly and incorporeally. Not particularly realistic, but supposing something like that happened, and the technology was ubiquitous and impractical or undesirable to restrict, then I definitely see how we might need to make some adjustments to our norms about privacy.

I’d like to add to Jack Lecou’s point about the IP-protectionists wanting to tell people halfway around the world what they can do with the 1s and 0s on a CD. Not only do they want to do this, but when they do they enact a kind of theft on anyone who bought legitimately any product elsewhere in the world. When I took my laptop to Japan I lost the ability to use it to watch movies; and I can’t buy the soundtrack for Full Metal Alchemist and take it back to Australia, or even play it on an English-language PC. The company has stolen part of my laptop from me, and they have stolen the content I purchased, when they do this.

By introducing zoning protection these companies also restrict my access to cultural goods from other countries, since I can only use those they choose to sell in my zone. I don’t think they have the right to tell me what I can and can’t see, or how I can and can’t use my laptop or DVD player; and they certainly don’t have the right to effectively damage or destroy those objects just because I moved country or wanted to view product from that country. The heavy-handedness of their tactics doesn’t lead me to believe they have any respect for property rights.

We also know that these music companies don’t respect the artists’ property rights either. The band Girlfriend had to beg food and money from their roadies on their first world tour, and finished their career in hoc because of their contract. I don’t have much respect for the property rights of a company that foists a band like Girlfriend on an unsuspecting world and then rips off the band members, all while claiming to be protecting their rights as artists.

I published a book once, in the 90s; it went out of print years ago. A few years ago someone emailed me from Mexico asking for my help in getting the book, and I mailed him one of my personal copies. I paid for shipping and didn’t ask him for money. And I am not an altruist by any stretch of imagination. I assume this is a pretty normal pattern of behavior.

Right, exactly. part of the weirdness of this discussion is the way the pro-IP folks create a binary distinction between doing something for direct monetary gain and doing it out of pure altruism, as if no other motivations were possible.

Real creators (as opposed to the businesses that end up owning most IP) have a strong selfish interest in seeing their work widely disseminated, whether for reasons of ego or personal gratification, for public recognition, to gain status in their reputational community, to improve their professional prospects, etc. It’s a very strange and unrealistic view of the self-interest of someone doing creative work that it is, except in the rarest cases, to restrict access to their work rather than having it as widely disseminated as possible.

When I took my laptop to Japan I lost the ability to use it to watch movies; and I can’t buy the soundtrack for Full Metal Alchemist and take it back to Australia, or even play it on an English-language PC.

Try VLC.

Sorry, but this smacks of hypocrisy. If we had

Sorry, an overreaction that I unsuccessfully tried to edit out.

But a point still stands. A world where we could snatch IP from your thoughts rather than from your papers might increase the dissemination of ideas, but I doubt it would improve the overall quality of IP in the academic world, especially when they fired all the professors (after all, how can you prove they’re the ones producing the IP?)

Better dissemination does not necessarily mean better social good.

It’s a very strange and unrealistic view of the self-interest of someone doing creative work that it is, except in the rarest cases, to restrict access to their work rather than having it as widely disseminated as possible.

There are two stages in a creative career. Building, in which case you accept a low price point and greater distribution for future reward and the later stage, where if you have been successful in building a base, you might actually want to earn enough to do this full-time, in which case, distribution is not so important as earning a living. The dilettante approach to the arts only goes so far.

By the way, in case anyone still thinks books are competitive with blogs in terms of social value, it’s a fact that a lot of books only get written because the author, on the basis of a short proposal, has been paid an advance against future royalties, which the author can then use for research/travel/time necessary to write the book. In a brave IP-free future, the publishers obviously wouldn’t pay advances because there would be no royalties from which to recoup them, so those books just wouldn’t be written.

Of course a lot of crappy books get written this way, so the outcome wouldn’t be all bad.

If you have half a million or a million people paying attention to you, then you’re socially relevant. And I’ll claim that you very rarely (not never) get that sort of relevance without money being a big part of the incentive to spend the months and years of work needed to reach that relevance. Funnily enough, I’ve seen a number of blogs that I thought might approach social relevance get shut down because the owner wasn’t interested in the money, and it was too much damn work to do for free.

I don’t understand how this even matters. So, you’re conceding that there might we be new forms of vibrant creativity going on, but maybe no (single) work or creator will rise to the heights of “social relevance”? This is your catastrophe?

Why should we care about this kind of “social relevance” in the first place?

Right. By the way, I’d like you to submit any academic papers to me before you publish them. It will disseminate them a little farther, which is a public good, and if I’m quick, I’ll be able to submit them in my name before you. I’ll gain significant benefit. (I can show my friends I’m a learned academic, not just a computer programmer!) And all you’ve lost is the ability to profit from your IP by getting a publishing credit. It’s not even money!

This part doesn’t make sense to me at all. Wider distribution and use absolutely is a public good (all else equal, of course), and I think you’ll find a lot of overlap between IP reformers, and people who think the academic publishing system could use some rethinking.

But you seem to be rather ridiculously conflating two very different things here: distributing a work, and taking credit for producing it. The latter we can probably all agree is wrong, and it doesn’t happen anyway. (No one on Piratebay tries to take credit for filming the Battlestar Galactica episode they just uploaded…)

If I commission Hans Huhfurr to write a symphony for ten grand, he’ll quit his temporary job on a construction site and write the symphony. If no one commissions him, he’ll have to continue working construction to pay the rent and won’t have the time and energy to write a symphony as soon if ever.

Right, this is precisely the problem we all want to solve. Let’s agree that for Hans Huhfurr to write the symphony, two things need to be true: (1) he needs to be able to enjoy a reasonable standard of living without spending too much time on non-symphony-writing work, and (2) he needs some external incentive or reward for writing the symphony. IP is one system for satisfying these conditions, but it’s not the only one. (In fact, it’s not clear if your example even involves IP, since you didn’t say who, if anyone, would hold the copyright to the symphony once it’s done.) Nor do both conditions need to be satisfied the same way.

For a long time, government granted monopolies on distribution (IP) were a reasonable way to achieve these goals. They were never without problems, and they were never the sole way of sustaining and rewarding creators, but they worked OK for many purposes. Now technology has changed that. Copyrights and similar forms of pseudo property have become much less effective at providing income and recognition to creators, and attempting to enforce them is much more socially costly.

So the challenge is to find better ways to support and encourage the Huhrfurrs of the world. The right norms already exist, I think; people *do* recognize the moral rights of creators, as our strong taboo against plagiarism makes clear. The challenge is creating the right institutions.

But — and this was the original point of the post — insisting that strong IP in its current form is the only possible way to provide incomes and incentives to creators only makes that task harder. Saying “IP or nothing” just makes it more likely that creators will end up with nothing, given that strong IP is less and less viable, technologically or socially. It’s perfectly understandable that a company like Disney would want to convince us that a world where they can’t make (as much) money off creative work is equivalent to a world with no creative work at all. But there’s no reason the rest of us should look at it that way.

By the way, in case anyone still thinks books are competitive with blogs in terms of social value, it’s a fact that a lot of books only get written because the author, on the basis of a short proposal, has been paid an advance against future royalties, which the author can then use for research/travel/time necessary to write the book. In a brave IP-free future, the publishers obviously wouldn’t pay advances because there would be no royalties from which to recoup them, so those books just wouldn’t be written.

I don’t see how this has any bearing on whether books are ultimately competitive with blogs in terms of social value. That aside, this entire paragraph rests on the phrase “there would be no royalties from which to recoup them.”

You seem to be ignoring the variety of mechanisms which have been proposed, not only here but also on the thread you linked to at your blog, for providing monetary support and reward to authors. And wherever there is a stream of money, I see no reason why there couldn’t be entrepreneurs willing to offer an advance in speculation of your success and the future cash stream.

This accusation seems to be a strawman of your own creation.

Steven can speak for himself, but there is an underlying assumption among the “everything should be free” crowd that creative content is just there for the taking and that it will by some magic always be produced, no matter how the economic incentives are distributed. And they tend to go on to say that it is up to the consumer to decide what incentive structure is the correct one and how artists should be reimbursed (“bands should make their money from live concerts”, “I’ll only pay for a DVD if it contains a ton of unique extras, we want added value”, “I’ll check out everything for free first and will only pay for it if I really, really like it, happen to have the money, feel like it”). Some commentators above have embraced this concept, others are arguing for a weaker, but similar form, namely that we should assure artists a basic income, but in turn deprive them to varying extents of the right to exploit their works financially.

While subsidizing artists is a good thing in general, it also has its fair share of problems: the process of deciding who is worthy of such support and who is not, is intrinsically arbitrary and open to all sorts of political manipulation. The concept of the salaried “culture worker” employed by the state clashes with the freedom of the arts. And while the capitalist media industry certainly does not guarantee that those who deserve it will also make it big, it tends to be pretty good at sorting the wheat from the chaff and there are plenty of people working there who love the arts and are willing to cross-subsidize projects that might not be financially rewarding.

I think that it is both presumptuous and counter-productive to tell artists that they should forgo the right to exploit their work financially in favour of some utopian economic model that whose chances of actually being realized are close to zero.

oops, that I’ll post that second para again:

As for mainstream features, the juvenile fantasies might appear to be dominant because of the massive budget, marketing and returns, but the numbers tell a more complex story (e.g. “Gran Torino” cost $35 million and returned $260 worldwide, “The Reader” cost the same and returned $80, “Milk” cost $20 and returned $50 and so on – they equaled or outperformed “Star Trek” and “Wolverine” in terms of ROI). And yes, indies and art-house films are having trouble finding financing in a recession, because independent investors are less likely to take risks, but for instance in France they are quite healthy, both because the public goes to the theatres in droves and because many have financial backing from Canal+.

there is an underlying assumption among the “everything should be free” crowd that creative content is just there for the taking and that it will by some magic always be produced

An example, please?

This discussion is utterly depressing. On the one hand you have industry lawyers arguing, with no pushback that I’ve ever seen except from absolute extremists, that ordinary citizens should not be able to back up their DVDs, copy old VHS to DVD, or use the DVD equivalent of Super-8 technology (and then whining when people bypass physical media altogether in favor of peer-to-peer networking). On the other hand, you have Lawrence Lessig evidently taking seriously an argument that Web 2.0 “is socialism” (see link above), and good luck trying to get a definition of Web 2.0 if you doubt the basis of the entire discussion. And here we have people questioning the very morality of IP as a concept (as if the point were to establish one’s personal morality), or alternately showing off how they have argumentative skills their interlocutors don’t.

Corrected, please delete previous comment:
This discussion is utterly depressing. On the one hand you have industry lawyers arguing, with no pushback that I’ve ever seen except from absolute extremists, that ordinary citizens should not be able to back up their DVDs, copy old VHS to DVD, or use the DVD equivalent of Super-8 technology (and then whining when people bypass physical media altogether in favor of peer-to-peer networking). On the other hand, you have Lawrence Lessig evidently taking seriously an argument that Web 2.0 “is s——–” (see link above), and good luck trying to get a definition of Web 2.0 if you doubt the basis of the entire discussion. And here we have people questioning the very morality of IP as a concept (as if the point were to establish one’s personal morality), or alternately showing off how they have argumentative skills their interlocutors don’t.

Bianca, is there some point where you actually disagree with John Q., Jack Lecou, or I?

Ah, the kooky ideas. Here: books will be written in the same manner opensource software is, or wikipedia: as a collaborative project of thousands of people. Each book will branch out in a dozen different directions; good ones into hundreds. No one will want to read (let alone to buy) a book written by a single individual, it’ll sound ridiculous.

TV shows will be produced by government bureaucracies. And yet, they will not suck.

I should add that these competitions have been denounced by both the Pope (on the grounds that building robots with creativity infringes on the domain of God and the human soul), and by the Robot Pope (on the grounds that forcing innocent robots to produce an endless stream of buddy-cop movies or country music is a violation of their right to self determination–and good taste).

Steven @ 192: I am not an economist, so perhaps someone could explain what sense it makes to say that I, as the copyright holder in a book, thereby have a “monopoly”.

It’s called monopolistic competition. Since I don’t know much about it I’ll leave you to Google. I do know that the literature is vast and while it may not answer your questions it certainly discusses them at great length.

Well, Bianca, you did say that the IP-skeptics here (I just named the most active three) haven’t made any substantive arguments but are just showing off our argumentative skills. Whereas it seems to me that in fact, a lot of very concrete arguments have been made about the basis and social usefulness of IP and alternatives to it. If the discussion is all so utterly depressing, I’d think you could find something actually said here to criticize, instead of something Lawrence Lessig apparently said once.

Well, maybe we’ll just have to agree to disagree. But for an example, you say:

Real creators (as opposed to the businesses that end up owning most IP) have a strong selfish interest in seeing their work widely disseminated

By “real creators” I assume you mean handbag designers. Unless you believe painters would rather everyone had a copy of their painting in their living room but nobody knew who they were and they were widely known as the worst crap painter ever.

Bianca, in almost every comment I’ve made here I’ve stressed the need for some form of public recognition for people doing creative work. I specifically cited norms against plagiarism as an important part of the post-IP system of supporting creative work. So no, I don’t believe that. Obviously.

Or look at Jack L.’s 177. Nobody here has said that creators shouldn’t have their work publicly acknowledged. The issue is the desirability of giving them a legal monopoly on its distribution.

Real creators (as opposed to the businesses that end up owning most IP) have a strong selfish interest in seeing their work widely disseminated

Perhaps this could be tested by means of a poll. Let’s ask a sample of, say, writers: “Would you rather have your work distributed to 0.01% of the population and thereby earn a guaranteed $500k, or would you like it distributed to the whole world along with the address of an internet tip jar?”

Yes, perhaps the first option should be 0.001% of the population and $50k.

Steven, are you trying to make an argument of some kind?

Actually, the hypothetical bet proves my point quite nicely. If creators’ general interest was in restricting access to their work, rather than disseminating it, it would be the option of universal access you would have to pay them for.

When you say, “I could pay someone to forego X”, you are assuming they have an interest in X. So Steven is agreeing with the sentence of mine that he quoted, even if he doesn’t realize it.

copyright only really comes into play, at least as a vital means of compensation, in a few specific classes of creative work: photos, books, recorded music, recorded movies, software. There are a lot of classes of work where lack of copyright wouldn’t affect much
(…) .

I think there could indeed be a lot of creativity going on without copyright. It obviously doesn’t mean I think all traditional industries would continue on unchanged, or that with no intervention we’d necessarily be getting an optimal quantity of output, but there are a lot of mediums which could continue on in some form or another, and new mediums that could be invented.

Please, please explain a.) why in the world the time-tested media of literature and film should change just because someone found a way to circumvent copyright and b.) exactly how literature and film are supposed to change as media to accommodate your demands. Are writers supposed to read their novels in public for a fee, are filmmakers supposed to stop “recording” movies and put them on stage instead as a live event? How is this supposed to work? Or are you just not all that interested in the continued existence of these art forms and willing to let them die a slow death so that your demands can be satisfied?

You can surely understand the potential resistance among creators to discarding a regime under which they can and do get paid in favour of some vague made-up ones in which they might get paid?

With the caveat that I don’t think the mechanisms being proposed are quite as ephemeral as you’re making them out to be, and that I would certainly not emphasize the word ‘might’ in the sentence of mine that you quoted, then I can understand that, yes.

But while I’m sympathetic to that kind of fear of the unknown, it doesn’t actually mean that we as a society are better off preserving the current system at all costs. (Or even that authors themselves are better off under the current system–uncertain futures can also hold nice surprises.)

Jack@210: Creators whose goal is wide distribution of their work are likely to be satisfied with a setup that provides them fewer other things. Creators with other goals may be less content with such a setup. And not only creators.

Lemuel@211: You and Jack obviously have your own point(s) of view and if you’d like to articulate them, go ahead. I haven’t seen a reason that would cause me to want to help you articulate them. (You want an enforceable right to be cited in footnotes, whenever the ideas in a derived work are dependent on your own ideas, but no other property rights in a text? Do I have this right?)

I think the discussion has been seesawing all over the place without anyone acknowledging it. It could create the appearance of a consensus that isn’t really real. Or, for example, a lack of consensus about where a reasonable middle ground might be, between the position the film and music industries’ lawyers are pretty much obliged to take, and the Fourierist position. The argument appears to be that the left side of the argument will win because technology makes it impossible to enforce the wishes of the supporters of the righthand side.

This is so obvious that it seems certain I’m not understanding something about your point of view(s).

Jack@210: Creators whose goal is wide distribution of their work are likely to be satisfied with a setup that provides them fewer other things. Creators with other goals may be less content with such a setup. And not only creators.

In that comment I was only asking for clarification to what I read as the conflation of copying with plagiarism. They’re not the same by any means, nor do they go hand-in-hand. And unlike free distribution, plagiarism has no social upside.

Beyond that, yeah, it’s obvious that some creators’ goals might line up with wide distribution, while others would prefer to have more control. Equally obviously, we shouldn’t axiomatically prefer the latter group’s goals to the former’s…

Jack@227: unlike free distribution, plagiarism has no social upside

What kind of plagiarism are you talking about? Nonfiction or fiction? Academic or popular? What’s the difference between freely distributing the Encyclopedia Britannica and publishing a book that’s plagiarized from it?

Do you think Shakespeare has no social upside? Shakespeare plagiarized Boccaccio, popularizing him for the English masses so they could be entertained without learning Italian. He did the same with some Tudor historians.

228: Lemuel, I think, had envisioned a world in which intellectual property rights were not recognized, but a responsibility not to plagiarize was. Isn’t that like saying, “there are no property rights in land, but trespassing is forbidden”?

What kind of plagiarism are you talking about? Nonfiction or fiction? Academic or popular?

In context I’d say we’re mostly interested in film, tv, music, and popular books, both fiction and non-fiction.

What’s the difference between freely distributing the Encyclopedia Britannica and publishing a book that’s plagiarized from it?

Depends. I imagine the Britannica’s sales department, a consumer looking for an encyclopedia, a rogue (print?) publisher, and someone uploading it to Piratebay would all have different ideas about what the key distinctions are. If it’s important, I can go into them.

I think things would also change if the Britannica were a single author work, and depending on the disposition of copyright laws.

Do you think Shakespeare has no social upside? Shakespeare plagiarized Boccaccio, popularizing him for the English masses so they could be entertained without learning Italian. He did the same with some Tudor historians.

Bubba and wikipedia seem to disagree with you, but regardless. If it occurred, it obviously wasn’t pure plagiarism. At minimum, it’s translation (maybe some “jazzing up” too). Even current copyright considers a translation to be an original expression worthy of a separate copyright. (Although it’s a derived work, so publishing would have to be negotiated with the original rights holder–not a problem here, since Boccaccio died 189 years before Shakespeare was born.) Not cool to not offer some acknowledgement, if it was due, though.

(The Tudor historians probably don’t even rise to that level – unless they were writing dramatic histories that included lots of dialogue. History isn’t copyrightable and there isn’t traditionally any particular onus on a fiction writer to say where he got his facts from.)

The argument appears to be that the left side of the argument will win because technology makes it impossible to enforce the wishes of the supporters of the righthand side.

This is so obvious that it seems certain I’m not understanding something about your point of view(s).

Well, I’d say that the reason it’s worth debating is that it’s NOT necessarily inevitable. If we put enough resources into it, and sacrificed enough, we obviously could stop internet copying.

The fundamental point is more that it’s now very costly to maintain, especially in terms of opportunity costs: you crack down, you not only get much lower social utility as fewer people are able to use creative works, but in the process you probably also quash all kinds of new creative works that we haven’t even thought of yet.

In addition to that basic point, it’s just not true that copyright was a perfect system, or that it will be terribly difficult to replace the kind of financial incentive for authors that “retail copyright” provided. It’s key advantages were always more that it was cheap to administer, and that the monopoly rents didn’t suck too much back when the biggest part of the cost of a book was still paper, glue and ink anyway.

Martin Ranger’s comment, as well as some others assume or use anecdotal evidence on one important issue: does a government grant of monopoly over creative works increase the production of those works? It seems to be a question that could be answered in a more reliable form than people discussing the relative merits of “The Wire” vs. “Star Trek” or something from an earlier era. In the little research that I have done (which admittedly concentrated on patents) there was no statistical evidence of a real change in the production of ideas as patent strength changed.

It seems to me that this is a fairly important point if one is to use the argument that IP law is important as an incentive to create, that there is some evidence that it indeed does have that effect. Looking at it in a simple model, there are reasons to believe that it might, but there are also a lot of reasons why such restrictions might also hinder creativity. One basic example of this is in the book “The Gridlock Economy”.

Righteous Bubba has again answered more concisely than I’ll ever manage.

I don’t find this continuous sniping from the sidelines with one-liners particularly enlightening.

this has absolutely nothing to do with any “demands” I am making. It’s not about ego, just reality.

I am unwilling to surrender to law-breaking, even if it’s widespread, and simply accept it as “reality”. In reality all sorts of people commit all sorts of minor and major crimes on a daily basis, that doesn’t mean that our laws are wrong or we should cease to enforce them.

What makes you think it’s a lasting medium? Why shouldn’t film just be a blip, in the scheme of things lasting barely longer than the kinetoscope?

Because I love film and most of the people on this planet love film – its success as an art form has been overwhelming and universal. Pretty much the same goes for literature, even if slightly less people actually read it.

I don’t feel tempted to pull the emergency brake on our collective cultural evolution just so I can preserve film in whatever I self-absorbedly designate to be it’s one, true, “time-tested” form.

So the people ripping off creatives are now the driving force of our “collective cultural evolution” – not. It’s the creatives for the most part who keep it alive and sometimes push it forward a little. The pirates are actually remarkably conservative in their tastes, they’re not downloading avantgarde films or experimental music en masse, rather the vast majority of them just want the latest blockbuster or pop album for free. I don’t see much potential for innovation coming from this crowd.

And as for the “one, true, ‘time-tested’ form”, both in the field of literature and film pretty much everything that can be done has been done as far as the possibilities of the medium are concerned – and all these experiments were initiated by artists pushing the boundaries, not people circumventing copyright. While some of these experiments have been taken up by the mainstream and there certainly is some potential for innovation still, it remains true that the vast majority of the output in these fields relies on traditional rules of story telling, because that is what people want to see and read. I’m taking a wild guess here and claim that for the most part they will do so in the future.

Anyway, I don’t see how piracy is going to further innovation and since you have failed to come up with any substantial description of how this magical process will work, I cannot take your claim seriously, just as I fail to see how your model for reimbursing artists is supposed to work. You seem to be less interested in the arts and their continued existence, than in coming up with vague justifications for circumventing IP-laws.

I see, so you are demanding that we abandon IP in favour of a plan that runs, if I understand it correctly:
1) Put thing on internet
2) ???
3) Profit!

The continuing arguments from incredulity aren’t convincing. They don’t make the actual arguments go away, and anyway, quite a number of concrete suggestions have been made, both here and elsewhere.

“I see, so you are demanding that we abandon IP in favour of a plan that runs, if I understand it correctly:

1) Put thing on internet

2) ???

3) Profit!”

Worked pretty well for Radiohead. I seem to recall the average price paid in their tip jar was just over $2. Now, obviously, not every content producer is Radiohead. But the point is this, as Steven (presumably unwittingly) acknowledged:

On the other hand, it’s clear that we haven’t arrived at a complete breakdown of IP yet, since Microsoft/Ubisoft/Eminem/JK Rowling are obviously still all making shitloads of money out of it despite rampant “piracy”

Even in a world where consumer piracy is rampant, easy and virtually unprosecuted, people still make lots of money from content using more or less their old busines model. It hardly seems too much of a stretch to think that there’s money to made using a model that takes advantage of new technology rather than avoiding or crippling it.

Anyway, I don’t see how piracy is going to further innovation

I don’t see how piracy is going to automatically stifle innovation either. Well, it depends on how you define piracy. My problem with the word is, “piracy” roughly means “breaking property law” — we’re not talking about what is or is not legal, we’re talking about what ought to be legal in our societies.

What do we want to include in IP-owner’s rights? What should a publisher be able to prohibit with force of law? Making a copy without paying the publisher? Making a derivative creation without paying the publisher? Making a derivative creation without mentioning the original work? Is it piracy for me to write and illustrate a Cinderella story? Is it piracy to make a copy of someone else’s Cinderella story from 1879 for myself? Is it piracy to copy out a quote I like from a 2009 Cinderella story and post it on the Internet, if I cite the source? Is it piracy to do so without citing the source?

It’s easy to presuppose the lines are clearly drawn where you’ve drawn them, but other than an authoritarian appeal to what the law happens to be right now, it’s not clear which actions we should agree are or aren’t wrong.

Now, obviously, not every content producer is Radiohead

No shit. And since I pointed this out myself on my blog post two years ago, I still haven’t seen any actual detailed “concrete suggestions” for the non-Radioheads of this world (ie people who didn’t already get famous through the evils of IP). All I see is a) vague resentful moralizing against the legal status quo and b) handwaving arguments that, absent the status quo, maybe grateful netizens will club together and buy every artist a pony.

No shit. And since I pointed this out myself on my blog post two years ago, I still haven’t seen any actual detailed “concrete suggestions” for the non-Radioheads of this world (ie people who didn’t already get famous through the evils of IP).

I’m not quite sure who you’re talking about by the non-Radioheads. If you mean the vast majority of musicians, as I said upthread, they already make most of their money with little to no help from IP law, by performing live in bars and clubs. They don’t have record deals to benefit from strict enforcement of IP law and they genuinely want to reach as many people as possible because some of those people will pay to see them live and will spred the word. Hence the availability of tons of free music on MySpace. Their reputation may also get them session work, which does to a certain extent depend on IP, but often in a way that non-commercial copying doesn’t really affect.

If you mean signed bands who just aren’t huge, iTunes, Amazon MP3 and Spotify are pretty obvious concrete suggestions and at least in the first two cases, very successful ones.

Anyway, I don’t see how piracy is going to further innovation

The really big problem with this is that it isn’t “piracy” we’re talking about, and this misunderstanding undercuts most of your post. The innovation is obviously not coming from the “piracy” (sharing) per se, it’s coming from the underlying technology and social change that enabled that sharing in the first place.

And not only is the wider sharing good in itself– a very large net good even, assuming somebody, somewhere can still figure out how to continue to be creative without demanding that consumers be locked up for doing the same thing libraries have been doing for centuries–but the open internet and digital technology is also bringing along a whole spectrum of new creative forms, new twists on old forms, new communities, millions of “ordinary” people newly figuring out how to share their creativity widely with others. In short, a lot of new artists out there “pushing the boundaries”.

We’re swimming in new creativity, and the best you can come up with is bitterness about “pirates” getting things for free.

…rather than the wholesale abandonment of it for which some are shouting.

Who? Certainly not me.

“piracy” (sharing)

Btw, “piracy” vs “sharing” is one of those clashes Unspeak terms for which AFAIK there is not yet an obvious unmoralizing alternative.

Another thing: The whole question of illegal sharing and piracy is really a red herring. Even if copyright laws could be enforced perfectly, advances in information technology would still make IP-based compensation for creative work much less viable.

First, as the non-IP costs of distributing a work fall, the markup over marginal cost required to generate the same income for IP owners rises. E.g. when physical CDs in bricks-and-mortars stores were the only way to distribute music, it might take a markup of 50% to produce an income of $4 per CD for the copyright holder. (Made-up numbers, obviously.) But when music is distributed online, it might take a markup of 500% to produce the same $4. This means competition *among legal sellers* will put much more pressure on IP revenues than formerly.

Second, even if you rule out the currently illegal perfect substitutes for a book, film, etc., we now have far more perfectly legal *close* substitutes, and economically that’s just the same. For instance, most of us reading this blog would, ten or fifteen years ago, probably have been giving the same time and attention to some print magazine or journal. We’re not infringing magazines’ copyrights here but we’re undermining their business model just the same. Similarly, every musician who finds a way to make money by giving their music away online (or who just gives it away regardless) makes it that much harder for similar musicians to make money selling recordings.

That is why IP owners want to extend their monopolies as widely as possible. (See former Sen. Santorum’s bill to prohibit the US Weather Service from making its forecasts publicly available, to protect the business model of for-profit forecasts.) The economic logic of IP requires you to have a monopoly on your work and any close substitutes for it — any time someone chooses competing product Y rather than your product X, they are depriving you of the same revenue, whether Y is legal or not.

In fact, if you do choose to sell DRM-free music on iTunes, you are in effect abandoning part of your legal right to proscribe copying

The DRM is always broken in any case, so as a practical matter one has to accept that one’s music is out there.

Btw, “piracy” vs “sharing” is one of those clashes Unspeak terms for which AFAIK there is not yet an obvious unmoralizing alternative.

There’s some truth to that, but I’d be a lot more convinced that “sharing” wasn’t the correct term if anyone could either A) point out why “piracy” is the correct term for what libraries do, or B) point out how someone “pirating” a digital copy of a song or a book by sharing it with a bunch of people is (in effect) different from what libraries do (or at least try to do).

I get a cheque every year whose amount, calculated using sampling and a complicated formula, is based on the books I have authored which are in Canadian libraries.

This is a very nice example of a non-IP based system for compensating creators. It’s not clear how generalizable it is, but conceivably royalties based on number of downloads, etc., paid for out of general taxation, could replace copyrights as the main source of creator income. There would be practical problems, no doubt, but this system does have the major advantage over IP of being incentive-compatible for consumers, who have no reason to evade it.

Right. It just couldn’t be a per-download tax or fee.

Also, speaking as someone who played in a band and ate noodles with butter and sugar because those were the three food items I had, I keep thinking that a rise in welfare rates would certainly help creators more substantially than haggles over IP.

I keep thinking that a rise in welfare rates would certainly help creators more substantially than haggles over IP.

Right. As somebody said way back at comment 18…

Righteous Bubba @236
Universal Music, the world’s largest record company, said Monday it would offer its catalog on Virgin Media’s upcoming unlimited download service in return for the U.K. broadband provider agreeing to suspend service to people who persistently download tunes illegally.
Except it appears they won’t actually check whether you are downloading tunes illegally – presumably anything that looks to them like P2P filesharing will be assumed illegitimate.

Some light (if slightly distastful) relief – don’t know if they have the same kind of ads in the US, but: The IT Crowd clip

Claiming that all these people are simply unreasonable is a bit rich.

I dunno. A lot of people sure seemed to support invading Iraq. I think they were unreasonable, etc.

C’mon, though, can I persuade you to address #97? I’m more interested in exploring your perspective than I am with arguing with you, and you said some things about an artist’s right to hide/destroy their own work that were interesting. Example: what you said in #78 earlier upthread implied, to me, that you might support (for example) a definition of “sell” that allows an artist to later demand the artwork back so it can be destroyed. In this case “sell” = “right to view/read/listen to for an indeterminate period of time” (or maybe the artist would be required to refund money if s/he wanted the artwork back to destroy it). That’s interesting and I want to know if I’m understanding correctly.

—

I don’t understand IP very well from a theoretical perspective. Open question, who is currently doing analytical work & writing on ethics re: intellectual property? Is anyone empirically researching what IP policies result in the maximum level of innovation, however that gets measured?

I think IP seems roughly equivalent to “laws that prohibit others from profiting off the new stuff you’ve created unless they have your permission.” I thought the main point of such law was to prevent, for example, Person Y from selling copies of Person X’s book for half the price Person X was charging. That’s very naive. Perhaps IP = “laws that help make sure you can make money off the new stuff you come up with, if you want to try.”

So it’s not protecting “property” in the way I normally think of protecting property (right to prohibit use); it’s protecting “right to control distribution” (I guess there really is strong parallel with owning a business; other people can’t open new locations and claim to be part of your chain w/o permission).

Perhaps we should move the discussion over to the other thread?

According to his wikipedia article Victor Hugo died in 1885. He was 83.
According to the wikipedia article linked above the Berne Convention took place in 1886.
Hugo was indeed involved with ALAI, but we can only speculate whether he would enforce the Convention; he was dead when it was signed.

Sorry, lemuel, I wasn’t aware you were addressing me in particular lately, but since you ask I do find eg #263 quite curious. Why would you want to replace wholesale a system of voluntary selective patronage (IP) with a system of government-enforced obligatory universal patronage (tax to pay artists)?