Radicals for Capitalism

I don’t think that it is in any way a given that looser copyright laws would result in a poorer or smaller entertainment industry: people paid for art long before copyright existed as a concept, and Disney managed to (and continues) make a fair penny off of characters that are explicitly in the public domain.

Would some of the existing players go out of business? Sure. But a public policy structured around the idea that 20th Century Fox must always exist as-is makes no more sense than policy designed to ensure that Citigroup does.

Presumably total expenditures on entertainment wouldn’t go down; demand woulnt fall, and someone would figure out how to charge what the market will bear.

But maybe– only maybe– the cash flow would end up in more dispersed hands, making it hard to have the kinds of concentrations of wealth that enable huge donations. The hypothetical Kickstarter future will presumably not be populated by moguls.

I wouldn’t bet against the studios & company, though. They’ll probably figure out a way to win…

(OK, to be fair Henry agrees the answers are emphatically yes.)

Is it even guesswork to say the entertainment industry wouldn’t really be impoverished? I thought it was quite well documented that the overwhelming majority of profits on creative works are earned early on. Only a tiny fraction of such works keep making serious money decades after they’re produced.

To add some more complexity to this issue, I believe that different branches of the entertainment industry would be disparately affected.

For example, there is some evidence that in the music market piracy (that is a good proxy for “no copyright laws”) is bad to the majors, but not so bad for the artists, that can profit more directly from live performances. The same doesn´t apply to movies, nevertheless. So maybe the movie industry would have to reorganize along very different lines, in an world where the formulaic blockbuster with huge budgets wouldn´t be profitable anymore but small and very creative productions could still thrive, specially if crowdfunding models get some traction. Is this bad? :)

But I´m at sea about the outcomes for political funding.

The money Democrats get from the entertainment industry isn’t really as important as the publicity, and the publicity doesn’t come from the industry so much as from individual performers. The party will do fine.

The idea does have one disturbing effect, though– if copyright goes down to twelve years, Republicans will be able to use any classic rock tunes they want for campaign theme music, and the artists won’t be able to stop them. (Talk about your Nefarious Hidden Motives!)

mjfgates: I am foursquare in favor of unintentionally ironic appropriation of music by the Republican party. Few things are so darkly hilarious as watching an oligarch mount the stage to rapturous applause from his toadies as the first verses of “Born in the USA” play: “Born down in a dead man’s town / the first kick I took was when I hit the ground / you end up like a dog that’s been beat too much / then you spend half your life trying to cover it up.” America, fuck yeah!

Copyright and other IP are labor rights – even if often abused and distorted. Of course multi-national marketing organizations and their flacks hate the idea of paying. Let’s go back to the good old days when artists and musicians had to find patrons and kiss their feet.

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do, and only by touring constantly, without health insurance

No kidding.

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do.

Ergo, bring back payola?

The music industry as constituted in the pre-internet era enriched a very, very, very few musicians entirely by accident or afterthought. The vast majority were sharecroppers and treated as such, and the bulk of the profits accrued to a small number of record labels. This has been amply documented, and anything that contributes to breaking the spine of that system is to be celebrated.

Not having health insurance = society fail

having a mansion with a room full of guitars (“don’t even look at that one”-Nigel, Spinal Tap) = society fail.

Artists should be supported by public endowments, not “private” rents.

Why would Republicans want looser copyright law? The reason is of course, money. They figure (or at least imagine) that there’s an untapped market in the repackaging/remixing IP industry. They want in, but can’t get there under the current rules, because the media corporations have rigged the system to their benefit.

Disney, for example, now owns not just most fairy tales, but the Muppets, Star Wars and the entire Marvel cannon, for what is essentially forever. They could spend the next century just playing mix and match with their toys, confident that they’ll make a few billion dollars annually without ever having to come up with anything new. And all the Republican law makers might get out of it is a few bucks in taxes, but even that’s not a sure thing, since tax law has been taken out back and shot through the head, there are so many loopholes.

So, floundering for new revenue streams, our Republican think tank must advocate for either raising taxes (which is a cardinal sin), or argue for looser copyright laws, in the hopes that this whole DJ/remixing sub-culture can be brought safely into the mainstream and monetized.

I don’t find the policy brief very convincing. For example, how many people have heard (much less argued) the myths that “Copyright is free market capitalism at work” or “The current copyright legal regime leads to the greatest innovation and productivity”? How would making 12-year scientific papers available on Google Scholar change “scientific analysis”? I’ve heard different and better arguments for changes to the copyright laws; this brief is just odd.

Music publishers used to retain half of the copyright earnings and all of the mechanical rights in return for promoting the music, not for physically making the records. Performers finally wised up and formed their own music publishing companies. Music publishing works entirely differently from, say, book publishing. See the wikipedia article on Tin Pan Alley, for example.

The RSC policy brief has been disavowed and teken down but I’ve posted a copy here:

http://www.scribd.com/doc/113638449/RSC-Policy-Brief-on-Copyright-Law

rootless, Asimov’s buys the rights to the first publication in English of a story.
—-
Something authors can sell only because they own the copyright.

” Trademarks do not protect design elements from being reused as far as I know.”

So sell something that looks just like Levis or DKNY without the trademark and see if you get the same premium.

“They don’t anymore because they supply much less of the capital for recording a song, and so cannot claim as much of the output in return”

But they must pay the composers only because the composers have copyright. Otherwise, like book publishers before copyright, they could reduce expenses and increase profits by marketing other people’s work.

” IC circuit masks are copyrighted, and there are companies that sell masks. ”

and heavily patented. And per chip production costs are low, yet IP for chips is valuable.

“LMHV does not regard its patents as important enough to warrant discussion in its quarterly results.”
Because they are a huge marketing and sales organization with valuable trademarks – ones that they protect zealously. They even went so far as to sue movie producers over use of fake LV luggage. Smaller companies and individuals, however, need design patents to keep larger competitors from taking their work – http://www.techdirt.com/articles/20120828/16214720193/design-patents-meet-fashion-world-lululemon-suing-calvin-klein.shtml

The anti-IP position is basically a pro-giant publisher position.

Rajiv has already mentioned it, but for anyone who wants to understand the economic arguments against IP, I highly recommend his post.

I’ll admit to being more conflicted about copyright law than I am about patent law. This may be partly because I know a number of authors much of whose income comes not from current or even very recent publications, but from their backlist. This is particularly true of authors who write series genre fiction. Someone coming in at book 7 of a private eye series might have an incentive to then find, buy, and read books 1 through 6. With very short copyright periods, some, possibly all, of those books would be public domain. Which somehow seems unfair to me. I’m less concerned about writers of “blockbuster” novels; they can do very well from short-term sales. But a similar issue applies. For work that endures (and we’ll see about Harry Potter), a fair amount of the total sale may occur long after intitial publication.

I therefore have some sympathy for longer copyright protection. But the current regime is more like “forever” copyright protection, which seems not to have anything to do with fostering creativity. I have no idea where the line should be drawn, but, somehow, the 28-year initial copyright with one 28-year renewal (the law when I became conscious of copyright law) seemed then and seems now to be ample.

Of course the end of copyright law would decrease donations–the opportunity to influence IP law surely motivates Hollywood to dig into their wallets deeper.

There seems something wrong where talented musicians who would have been able to live off album sales in the 70s-90s make a small fraction of what minor-league bloggers do, and only by touring constantly, without health insurance

I suppose, but if humanity has to choose between having a viable commercial music industry and having the Internet, I would vote for the latter. It’s insanity to implement the kind of surveillance/censorship regime that would be required to end piracy just because it’s not as much fun to be a rock star as it used to be.

Not having health insurance = society fail

I take this further–unlike “fuck me or your fired”, the struggling of artists actually is a problem best solved by a guaranteed minimum/universal basic income. Give everyone the capacity to do what they love as long as they’re willing to live at a subsistence level.

Anyone pushing to end copyright can count on a late-night visit from a mouse with a gun.

I think it’s a long way from a ‘study committee’ to actual policy, during which the studied ideas will be modified to suit the major stakeholders in the room, whoever they are. Libertarian-sounding noises are often heard where Republicans gather, but this does not mean the Republicans are actually libertarians; it is more a sort of seemly auditory decor which can be set aside when serious business is at hand.

Similarly, the assumption that actual workers (in aggregate) will make less money if closed shops are abolished or weakened is unproven.

Consider the fact that it was more than 40 years after his death before Solomon Linda’s family was able to collect even partial compensation for his copyright on “The Lion Sleeps Tonight”.

http://www.richardsilverstein.com/2006/03/26/solomon-linda-songwriter-who-penned-the-lion-finally-gets-his-just-desserts/
http://www.wipo.int/wipo_magazine/en/2006/02/article_0006.html

Admittedly this is an unusually complicated case.
http://www.aflsf.org/attachments/article/57/11.Owen%20Dean-%20Stalking%20the%20Sleeping%20Lion,%20Published%20in%20De%20Rebus,%20The%20South%20African%20Attorney%27s%20Journal.pdf

Of course, the public has an interest in rewarding content creation, but the public also has an interest in establishing a vibrant and living public domain (from which to create content!).

The public interest in a strong public domain has increased immensely owing to the internet and to new copying/editing technology. In a certain sense, if I can’t link to it, or if I can’t copy and paste from it, then it doesn’t really exist. It’s not living. It’s like an artifact of archaeology — like some papyrus scroll, etched with Sanskrit, slowly rotting in a museum basement.

The same arguments should be used to address patent law – and it is here that Republicans will baulk. Do they really want Eli Lilly to be denied monopoly rights over the next generation of tweaked pharma? No way!
http://www.washingtontimes.com/campaign-2012/pacs/eli-lilly-and-company-political-action-c00082792/
But as Dean Baker has pointed out, it is a direct and brilliant way of bringing down medical costs.
http://www.guardian.co.uk/commentisfree/cifamerica/2011/may/31/healthcare-pharmaceuticals-industry
I like the idea that the government auctions off patent rights – holding a percentage as the auctioneer, with a percentage going, for a certain time, to the inventor.
I’ll believe the GOP is making a truly honest libertarian effort when they release the reform paper on IP. Otherwise, it is just your usual mafia action, a shakedown of the entertainment industry.

The anti-copyright argument is basically the union-busting argument and all the fulminating about corporations obscures the reality that the workers, the people who create music/writing etc. are to be transformed into wage workers at best, and more likely into casual laborers.

Newsflash rootless: no one on this thread is talking about abolishing copyright. Right now the vast majority of authors don’t realize any gains from hundreds of additional years of copyright protection: their works get pulped when they don’t sell. But libraries, readers, and other authors all lose out when these works are kept unavailable. The question is whether the gains to the public from encouraging the production of such works outweigh the costs of the method by which that encouragement is produced. Bitching that authors won’t make as much money is completely irrelevant: they can do something else instead, which much of them already have to.

Authors already have problems making money from their work. Very few are full-time writers. Changing the copyright law might make this harder. It would also make it so that there are more books to read, generally a good thing. Can you explain why this isn’t like arguing against a highway since it cuts off a motel?

Musicians were slaves to the record companies way back when because they sold their copyrights. If those had lapsed, they would get back what they had once given away. Instead they have to try very hard to get back new rights like digital distribution and such.

Newsflash fred: Copyright does not protect ideas, only their expression. Moral rights exist in French copyright law, but not the US, and are not part of the rational for creating copyright law in the US.

A copyright is a government granted monopoly to the reproduction of a particular fixed expression of an idea. It is entirely a statutory creation. From an economic perspective such a monopoly is a rent, and so its owners are holders of capital, not labor. That the producers of such capital once expended labor in its production does not change the nature of what they hold.

A union does extract a quasi-rent, but in the form of higher prices for labor. A union is a provider of labor like any other, with the exception of its political action of creating a union of the proletariat. It is the second reason for which they require our support.

The SAG demands residuals because its members do not own the capital they create. SFWA doesn’t worry about residuals, because its members own capital. This is a fundmental difference: if construction unions were also landlords, I’d be against them to. (This is not to say that SFWA is a bad idea, but rather that its interests conflict with the reading public’s in a way that the SAG’s don’t)

Bottom line: Authors are capitalists in a way that most workers are not. This has political consequences.

We seem to have ended up in the same place we often do … caught up in metaphysical wranglings about the natural or conventional status of property rights. But that doesn’t seem to be the right way to frame things.

Start here instead. Does it seem prima facie unjust if Cain uses some X that Abel claims is his without Abel’s permission (or without recognizing or compensating Abel in some way)? If the state fails to recognize or respond to Abel’s claim, is the state failing in some way to act on a reason it ought to be sensitive to?

Note that when legal systems make decisions on who owns what they often seem to be not simply applying some past state decision but trying to track widely held intuitions (that often hold cross-culturally). For example, concerning whether a hunted animal belongs to the hunter who initiated the chase or the one who seized it.

My hunch is that most of us believe that creators of original works ought to be able to restrict their reproduction, sale, etc by others and to benefit economically from their creation for a while. Certainly we believe that if Sony or Disney comes along and (in order to make money themselves) just uses what some independent person has created without permission or payment, Sony or Disney commit a wrong against that person. Accordingly, there is good reason for the state to put in place positive legislation that is sensitive to such facts and moral beliefs and which protects creators against being treated like that. Since, however, there are also other interests at stake, including of would-be creators, to make use of our shared cultural heritage, it looks as if we should have something like a time limit. Hence a sensible copyright law.

It recognizes and protects people who have done creative work, it stops the corporate sharks from eating the creative minnows, but enables “fair use”, expires after a while, etc.

Unfortunately, much of the current argument is between different species of corporate shark, betweeen the sharks who want to eat the minnows for free now and the sharks who have extensive copyrights that they are deriving rents from, who want to extend the term to ridiculous lengths. Neither species of shark has a case. But novelists, poets, artists and photographers do. A case not to be ripped off by sharks.

The withdrawn RSC report was clearly written by a slightly maverick libertarian, following ideas of Larry Lessig, who is now a somewhat-left libertarian http://en.wikipedia.org/wiki/Lawrence_Lessig
See some of Lessig’s video’s on the Web, e.g.
http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html

@56 “The harms of copyright are much greater then the harms of private ownership of food, because we would not all feast if the right to own food were abolished. ”

So we starved to death while happily listening to free Rihanna downloads.

@55

Unfortunately, much of the current argument is between different species of corporate shark, betweeen the sharks who want to eat the minnows for free now and the sharks who have extensive copyrights that they are deriving rents from, who want to extend the term to ridiculous lengths. Neither species of shark has a case. But novelists, poets, artists and photographers do. A case not to be ripped off by sharks

Agree.

@56 ” Luxemburg is instructive on this point, as is Adorno”

That’s a fundamental error derived from Marx’s internalization of the economists false distinction between state and economy.

rootless-

Do you think it is unjust that copyrights and patents expire at all?

I can’t be the only one looking on with bemusement at the curious spectacle of dialogue between rootless and Watson Ladd; on any subject, let alone one as fraught with dubious moral imperatives and dynamic conceptual subtleties as intellectual property law and economics, it was bound to be a curious and confusing controversy. Some sort of furious agreement does seem to be emerging from the exchange, though maybe that’s just seeing shapes in clouds. I wonder if the principals see agreement on important points emerging?

Yes, we do end up in metaphysical wrangling. That’s because property rights are metaphysical. If you are going to discuss property rights, you have no other place to discuss them, then in a fictive realm of moral narratives and speculative analysis and counterfactuals.

Can we start from moral intuitions and do any better in navigating this metaphysical realm? I seriously doubt it.

Every institution, regardless of the particulars of its architecture, makes use of norms and moral imperatives, but not the same norms and moral imperatives. The moral imperatives are prescribed, as part of the design, to make the institution function, and they are particular and subsidiary to the institutional design. I suppose we re-use the same moral patterns — we have a moral pattern language, in a sense similar to Christopher Alexander’s notion of a pattern language in architecture, only in this case, the architecture is one of institutional design.

Some aspects of that pattern language are adaptations to human nature. To the extent that the prescribed moral imperatives of an institution are part of a kind of user interface for a game in a virtual, metaphysical space, then the moral imperatives have to be adapted “on one end” to the particular requirements of the particular institution, and “on the other end” to the capacities of human beings. The adaptations of moral narrative/imperatives to human nature are going to be more “universal”, but those universal elements don’t tell us all that much about the design of the game, anymore than the design of a computer mouse, or a graphical user interface, tells us much about the architectural design of a computer accounting program’s database.

So, yes, in the developed world of modern capitalist institutions, when clan and tribe and lord of the manor and commons are forgotten and family is nuclear, we try to make the pattern of individual claims of fee simple possession-and-use of personal property and contracts between free and equal individuals fit every institution we invent. Somewhere in the murky commonalities, there may be a moral intuition lurking, some basic idea of equitable fairness, perhaps, but mostly, I think, we see the sharp edges of a common pattern, used and re-used a thousand times in daily life, and three or four hundred years in the making.

Copyright, trademarks and patents were, themselves, key precedents in the making of capitalist institutions, and their accompanying, prescribed moral reasoning (or “intuitions”) concerning what is “fair” and equitable. (The idea that the law should be guided by “equity” considerations was itself an innovation on the road to modernity.) The familiar species of intellectual property arose from (I suppose without knowing many of the details), and replaced an earlier scheme of guild charters and rights, contemporaneously with the gradual extinguishment of feudal tenancy, commons, manors and dues.

I bring up the history only in order to remind that institutions are emergent and that they evolve dynamically under pressure over time, as they have to be reproduced thru time in a politics of constant and strategic dispute. Going back to first principles is not just a libertarian fetish; it is a strategy for inducing institutional change, by changing the rationales that guide reproduction of rules and practice.

As economic institutions, the various institutional creatures we group together as intellectual property, are fundamentally instrumental means of facilitating social cooperation in satisfying material needs and desires. As such, we have to ask, does the institutional design “work”? Are these institutions efficient and effective means of social cooperation for economic ends? And, that includes the prescribed moral norms and imperatives that guide the “gameplay” of institutional functioning.

The language of moral rights sometimes obscures from common sense the extent to which institutions are always about mediating the conflicts, which arise from a decentralized social cooperation.

What I would say about intellectual property is what I would say, in general, about economic rents. Economic rents are a powerful means for structuring the incentives of the economy. Dynamic efficiency requires that economic rents erode over time, or, where that is not possible, that economic rents be taxed away, to finance public goods. (I think Watson Ladd was trying to make much the same point I am, about the necessity of rent erosion, by distinguishing quasi-rents. I’m not sure.)

The Coase Theorem gets a key aspect of institutional efficiency right: the point of instituting property rights is to enable people, attempting to cooperate economically, to do an efficient deal. The institutional details of what the property rights are, do not matter (to efficiency), as long as the property rights are well enough defined, that people with interests in conflict can use those rights to do an efficient deal. The point of property rights, qua institution, is the deal that resolves the inevitable conflict and allows cooperation to go forward.

The problem with economic rents is that, carried to an extreme, they allow the rentiers to block forward motion, to dictate terms in negotiation, prevent productive social cooperation and starve the provision of public goods.

Something has gone wrong with intellectual property law if the “owners” of “Wonder Bread” and “Hostess Twinkies” are ditching a $2.5 billion a year bakery business, so they can make off with the trademarks. Something has gone wrong, if Apple can replace the vast distribution apparatus for music recordings with a server farm — a reduction of invested capital and operating costs of probably two orders of magnitude (100x !) — and then raises the price of a song from $0.99 to $1.29. Something has gone wrong, when owning patents on seeming common-sense ideas implemented in software and harrassing large corporations with litigation constitutes a successful business model.

I don’t have the definitive analysis of what, exactly, has gone wrong, but I will offer that the key is the failure of rents to erode and the inability to do a deal, aka the inability to make productive use of available resources.

Prescribed morality and norms come into this, as disputes over what is a “legitimate” use of available resources. If a Sports League publishes game results, when is it “legitimate” to re-broadcast information about who won, and what the score was? When should it be permissable to make creative use of the corpus of songs and literature in new songs and new stories? I don’t know the perfect answer, but I think Coase points in the right direction: we want the deal to be done and productive activity to go forward.

The commenter, whose art work was reproduced badly and who was able to take possession of the bad copies, is adamant, a moral expression. If the institutions of intellectual property permitted him to do a deal, as apparently they did, then, to my mind, they worked. I would not want the artist’s adamancy, though, to translate into an absolutism that would retard all competition to erose IP rents, or all cultural, creative synergy.

Harold @ 65

Yes. And, as in the Hostess Twinkie case, and in many other cases, it is pretty clear that financialization of the economy is at fault.

Money in its extended forms as debt, is, like intellectual property, a form of fictive capital, and ultimately, the only uses for fictive capital are frauds, usurious extraction and gambling — all species of casino capitalism.

Something has gone wrong, when owning patents on seeming common-sense ideas implemented in software and harrassing large corporations with litigation constitutes a successful business model.

On the contrary, something has gone wrong when the instinct of people who think of themselves “on the left” is to be concerned about the bloated revenues of large corporations supposedly under siege by people who create technology or art by working.

It’s striking that libertarians are concerned about “rent” in the form of payments to workers for their creative work, but not about rent in the form of – rent. Landlords sweeping people from their homes so they can convert apartments into luxury condos or driving small business from commercial space by extracting higher and higher payments is apparently ok. The actions of shareholders and bondholders to loot the pension funds of workers in profitable companies is apparently legitimate rent extraction but that of a musician who wants to be paid for works constructed by “sampling” her creative labor is not. The common theme is that “work product” is seen as the legitimate property of a corporation, but not of a worker. Not surprising. We live, after all, in a society where the plight of a billionaire sports team owner forced to share some fraction of earnings with the athletes who actually create value is considered more tragic than the plight of a debtor whose debts have been picked up at a discount by some vulture and who is then consigned to the criminal law system.

Libertarians have not changed – the same skewed moral compass and fantasy view of the world was evident 30 years ago. But what has changed is that their viewpoint has become so uncritically accepted among “liberals” and “leftists”.

The less of the universe is privatized, the better.

rootless @ 69

When you refer to a leftist crowd, eagerly protecting large corporations, do you mean the neoliberals (e.g. Brad DeLong, Larry Summers, etc.)?

(Once upon a time, CT had a comment preview function: dear lord to I miss it. Obviously the blockquote cite should have been closed after the second paragraph there.)

something has gone wrong when the instinct of people who think of themselves “on the left” is to be concerned about the bloated revenues of large corporations supposedly under siege by people who create technology or art by working.

Sure, but it may be that current copyright law extracts more from human people to bloated corporations than the other way around. To start with, when the threat is lawsuits, as with copyright, the big have an edge. The chilling effect of locking up the littoral of recent works is harder on mortal people, too: capital can sit on its backlist and maybe cross-license with other capital.

The bitter case would be one in which current copyright unfairly damages one set of Real Human Creatives, and proposed copyright unfairly damages another set of equal size and virtue.

“. . . involve entirely different issues . . .”

It depends a lot on what frame of analysis is being applied to the phenomena.

On a level of almost microscopic intellectual case analysis, copyright and patent are distinct and conceptually different in many ways.

But, intellectual property policy, can be viewed, at an opposite extreme, in a macroeconomic policy frame, as an evolving solution to the problem of giving value to money and debt. In that frame, housing and suburban expansion, which underwrote the New Deal model, is dead as a driver of the macro system, and changing property law, including IP, is a way of strengthening rent extraction in other areas, to give the dollar a new financial understructure — one more appropriate to a globalized plutocracy operating a financialized economy.

On an intermediate level of analysis, evolving IP drives a changing industrial structure and is part of a general change in property law, disempowering the individual. Software and content (music, movies) is settling into a two-tier structure. There’s a legally legitimate sector, which is paying nominal prices, which prices are outrageously uncompetitive, and a legally ambiguous sector, of tolerated piracy, which functions as a kind of safety valve cum system of potentially oppressive control.

So, a lot of software, movies, music, porn, e-books, etc., is available thru this two-tier structure. You can pay full price, or you can have it “free” thru a black/grey market channel, with some degradation of quality, perhaps, or with some other risk, including the (mostly remote) risk of prosecution. (And, the prosecution can entail draconian fines or punishment, for the rare victim.)

I know a lot small businesses, which pay for “some” of their software programs, and “steal” the rest. Some software publishers are at war with the Pirate Bay, the (defunct?) Megaupload and other pirate schemes, but others seem to tolerate this “free” distribution channel as way of preventing potential competitors from gaining traction in the marketplace, while letting creative stratups — the consumers of professional software — to get started on a shoestring.

@74. I’m referring specifically to:

“Something has gone wrong, when owning patents on seeming common-sense ideas implemented in software and harrassing large corporations with litigation constitutes a successful business model. ”

But it seems common.

@75
““Are to be”? The use of the future imperfect here begs an entire truckload worth of questions: what do you think the average working writer or musician is right now? Have you ever actually met a working artist? ”

Yes. I find few of them want to give up copyright. I know quite a few.

@77
“Usually when rootless_e is complaining about leftists and liberals, he means people that criticize President Obama. His sensible centrist moral compass is always set to correct so you can trust his non-fantasy views to be exquisitely weighted with both sides doing it wrong. ”

Beautiful illustration of both Obama derangement syndrome and the use of labels like “centrist” to replace thought.

@78
“Sure, but it may be that current copyright law extracts more from human people to bloated corporations than the other way around. To start with, when the threat is lawsuits, as with copyright, the big have an edge”

Works both ways. It is instructive to read Dickens and Twain on life before copyrights – nothing like that Libertarian fantasy that Rajiv seems to find convincing. Consider what happened to African-American musicians in the days when they did not have legal resources to defend copyright – few of them saw an effing dime. Bands like Led Zepplin, their record companies, and so on made millions from the works of people like Willie Dixon. The dynamism of the technology industry has, in a large part, been due to the mix of public domain work and IP protection. There is no way that Google would have become such a powerful force if Yahoo and Microsoft had been just able to copy their work or … many good examples.
You will not find too many successful musicians – and by this I don’t just mean rich ones – who would love to give their copyrights up and live at the tender mercies of publishers.

@72
I am deeply skeptical of markets, but having spent time in interior China in the early 1980s, a society where all power is exercised by the state and nothing is privatized doesn’t appeal much to me.

@68
“Money in its extended forms as debt, is, like intellectual property, a form of fictive capital, and ultimately, the only uses for fictive capital are frauds, usurious extraction and gambling — all species of casino capitalism”

What is non-fictive capital?

@69
“OK, so I’ll turn this around on you. “Land titles are labor rights, even if often abused and exploited. Land-value taxation is an attempt to immiserate the workers who have won land titles. Reducing the wages they receive from their tenants is just like union-busting. It is upsetting that the ‘left’ has imported libertarianism.” How is this different from your implied defense of individuals’ holding indefinite title to characters, melodies, and designs?”

I’m not advocating indefinite title to anything. I will argue, with Jefferson, that freedholders of some sort are more independent than those who live at the whim of the landlord. But that doesn’t translate into a defense of rent in all forms. Obviously, owning land and extracting rent from it is different from making something and extracting payment from its use. What impelled me to comment here was that that claim in the initial post:
“Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly”
I think this is sort of correct in the sense that “laissez faire capitalism” is the ideology of the use of capital to extract rent from productive work but it’s also plainly deceptive in its (standard glibertarian) implication that other forms of property do not involve government instituted rights. To me, the author of a book has a far better claim to rent than the “owner” of a building.

The arrival of a major new dick commenter in a blog comment section is always an exciting time. You get used to the pecadillos of the existing dick commenters, so when a new one shows up, sucking the air out of every discussion, you learn that the world can still surprise you, as you experience new sensations of irritation that you never felt before. The combination of Obama puffery and copyright-is-the-true-left position is not one that I would have invented. Again, God proves himself to be the superior craftsman.

_ Property rights are artefacts of specific legal and institutional regimes, regimes constructed by human actions, and and so also changeable and revokable by other human actions._

The strong anti-Lockean position here is, as ever, asserted with great confidence. However, the propensity of small children to assert (and, crucially, to recognize) claims to exclusive possession, a propensity not based in “legal and institutional regimes”, suggests a somewhat more qualified picture. There’s really quite a lot of work on this by developmental psychologists now, work which makes the “purely conventional” “anything goes” approach look really implausible.

My guess is that the stubbornness of the anti-Lockeans here is explained because they (example Nagel & Murphy) think that the purely conventional line gives them an easy block to libertarian arguments. But actually, it is perfectly easy to accept pre-institutional elements to property rights without sliding all the way to Nozick.

“Copyright violates nearly every tenet of laissez faire capitalism”, sure for the monopoly, but clearly not because it

” is a system implemented and regulated by the government, and backed up by laws that allow for massive damages for violations. These massive damages are not conventional tort law damages, but damages that are vastly disproportionate from the actual damage to the copyright producer”

The same can be said of ownership and laws against theft in general.

I’m sorry Matt, to whom are you replying? I don’t think I’ve read anyone on this thread arguing in favour of current copyright laws.

“Working writer” here. A few facts: many newspapers and magazines these days force freelancers into copyright-buyout contracts or they just won’t commission. So the situation is already one of day-labour/piecework. Meanwhile, most advances for books not pitched by celebrities work out to far less than minimum wage for the labour expended. Comfortably salaried academics who don’t expect to sell more than 50 copies of their books can of course look on this situation with equanimity; personally, I simply wouldn’t bother to write books if I didn’t retain copyright in them. But then many people who are indifferent or actively hostile to my books might be OK with this! I don’t think the world owes me a living, but nor do I think I owe the world a great deal of intellectual work for no reward exchangeable for food and rent.

In the libertarian freetard utopia where bands make no money from recording music but happily profit from touring, don’t they still in fact require a “government-granted monopoly” on the right to tour and sell tickets as that band?

Eliminating copyright on, say, the text of a computer program, would not primarily benefit individual workers vis-a-vis their employers. It would benefit, to some extent, open source. But by benefiting open source, it would also benefit producers of knock-offs. It would benefit anyone, corporate or individual, who was in a position to claim and enforce a greater right to the thing, it just wouldn’t be an IP right. Either open source would be in an alliance with shady operators, or they’d have to exclude the shady operators, with some kind of border maintaining process.

We’re not talking about, “you write a doubly-linked list for IBM using IBM equipment (or even “invent” the doubly-linked list, because you don’t know the literature), and IBM owns all the doubly-linked lists you may ever want to write in your lifetime,” kind of stuff. Any more than Niklaus Wirth owns you and your first-born because you’re using “his” doubly-linked list.

I heard something recently about the deplorable status quo w/r/t permissions for 20th-century foreign music in the US. (Apparently it was instituted to placate the former USSR in the 1990s, the potential revenues from Shostakovich presumably being very high.) I’d guess orchestras would like to change that current status quo, without giving up rights to royalties from recordings.

Chris B. @86-

it’s one thing to say that some type of “claim to possession” is universal and even innate. But that still leaves open the question of how much that claim need involve the same package of rights as canonical private property , and what is the appropriate domain of those claims. We can find people asserting property-like rights over other persons in a very wide range of contexts, for example, but that doesn’t mea that we want or need our own institutions to recognize rights of that kind.

The universe of possible “claims to possession” is quite a bit wider than private property in the strict sense, so I think there is a lot of scope for convention here without violating the bounds of psychological plausibility. Even just considering property as such, the actual legal rights it entails vary enormously across time and the type of property, so the idea that *some* type of ownership is unavoidable, even if true, doesn’t get us very far.

Personally, I think the package of rights associated with scholarly production would probably be a better fit for the claims we think artists should exercise over their work. As a scholar, you can’t in general restrict access to or reproduction of your work. But you do have an absolute, inalienable right to be acknowledged as its creator by anyone who uses it. This right is’t directly monetizable, but it indirectly provides a livelihood for scholarly creators by allowing a more or less meritocratic, stable yet open system for the distribution of academic positions. Without proposing that a system of publication and tenure could completely replace copyright as a way of respecting the moral claims of creative artists and providing them an income, I think there is certainly substantial scope for shifting from the latter to the former.

I also think that the scholarly model respects our moral institutions at least as well as the tangible-property model. Even on a thread like this one, if you were to use a nice phrase or interesting link from some earlier commenter without acknowledging who you got it from, that would be recognized by most of us as morally wrong.

So again, there are lots of “claims to possession” that aren’t property. And even if we accept the idea of “IP,” there still is a lot to be negotiated. For instance, everyone recognizes a fair use exemption, but how wide should it be? Perhaps fair use should be restored to what it was in the 1980s, or perhaps it should be expanded to cover any use that is not producing a profit, or maybe that’s too broad. Anyway, saying that *some* kind of property right is morally and/or psychologically required does us precisely no good in deciding how broad the fair use exemption should be.

So it seems to me that the anti-Lockean position is right in terms of all the practical questions around copyrights and so on, even if it isn’t true at the most abstract and universal level.

Consumatopia:

Copyright certainly imposes costs on lots of other laborers (people who don’t own IP paying rents to others who do</blockquote?
What is this imposing costs of which you speak? No one is forced to buy books or any other copyright-protected products.

Th obvious difference between buildings and music, books, movies and so on, is that use of buildings is rival while use of music etc. is not.

Of course some buildings can function on a public domain basis — museums; hostels; plazas and parks. But bedrooms, kitchens, workshops, classrooms, etc. are of much less social value without some enforced rule about access to them. That rule doesn’t have to take the form of private property, but some uses are going to have be excluded, just as a matter of physical necessity.

The difference between IP and tangible property issue isn’t that the owner of one has a better moral claim to it than the owner of the other — as consumatopia says, they both are acquired the same way. The difference is that intellectual property involves social costs that tangible property doesn’t because, the alternative in the case of intellectual property is universal access while the alternative in the case of tangible property is a different set of restrictions. So for eliminating property rights over tangible goods to be socially beneficial, the new uses have to be more valuable than the current uses; while in the case of IP, it’s sufficient that the new uses have any positive value.

Going back to Chris B. and anti-Lockeanism, the reason we describe certain norms as conventional is not (just) that we think this is true as a matter of historical fact; it’s because we wish to ask what those norms *should* be. Human beings are not blank slates with regard to any kind of social behavior; it remains true that our political constitutions are capable of being based on reflection and choice.

“What is the incentive for a large international publishing house to pay Ms. Rowling millions absent copyright? One can easily imagine an editor impressed with the initial volume giving it to an in-house professional to finish and extend.”

Ms. Rowling can sign a contract with a publisher that requires publication of her manuscript unaltered and pays her a substantial advance, plus a share of revenues. This does not require any restrictions on what others might subsequently do with a legally owned copy of her work. British authors entered such contracts with US publishers routinely in the 19th century.

Why would a large international publishing house do this? For the same reason as Norton and Macmillan both published the 9/11 Commission Report, which is not copyright protected. Norton’s version alone sold over a million copies even though the content could have been downloaded for free. Profit was estimated at a dollar a copy. Ms Rowling could further leverage her reputation by selling signed copies, consulting on movies, etc. There’s no question that she would be very well compensated, though nowhere near as affluent as she now is. Would the lower compensation affect the quality or quantity of her creative output? I doubt it.

It’s really misleading to compare copyright protection with ownership of land or financial assets. One cannot make copies of landholdings, and one cannot increase the value of a firm by making copies of share certificates. Copyright restricts what an individual can do with a legally owned copy of a product. Producing additional copies has effects on prices and distribution, but does not damage, destroy or require appropriation of existing copies.

The benefits of universal access to food are obvious, so clearly we should force farmers to give their crops away, keeping only what is required for their own subsistence. As I airily pontificate about this as someone who has never even seen a sheep, I see no reason why this would dissuade them from continuing to farm. After all, they probably love doing it!

Ms. Rowling can sign a contract with a publisher that requires publication of her manuscript unaltered and pays her a substantial advance, plus a share of revenues. This does not require any restrictions on what others might subsequently do with a legally owned copy of her work. British authors entered such contracts with US publishers routinely in the 19th century.

When the unknown Ms. Rowling, on the dole, sends her manuscript out to a publisher, their incentive to offer her millions is what? And your history of what happened in the 19th century is based on Libertarian Fantasy Commerce. Charles Dickens could not get decent payments for his works in the US – at the height of his popularity. What do you think happened to less popular authors? Publishers, being interested in profits, saw little reason to pay someone for what they could get for free. Similarly, Mark Twain had incessant troubles with Canadian publishers. And this doesn’t even scratch the surface of all the “improved” versions that publishers commissioned. “hey that book by Rowling Scholastic published is doing well, let’s get Jack to make it more American maybe put in a vampire love interest and Fox can serialize it and do a movie deal”

Why would a large international publishing house do this? For the same reason as Norton and Macmillan both published the 9/11 Commission Report, which is not copyright protected.

Nobody suggests publishers could not make money without copyright – in fact they did and do. The issue is whether AUTHORS would get paid. Of course, Libertarians want a world that consists of all-powerful employers and cowering wage slaves, so they don’t care.

that would mean that, practically speaking, only rich people ever got to do interesting work, yes? Unless I’m missing something, I don’t see anything socially just in that scenario.

Or it could mean that everyone has sufficient leisure for creative work. A world divided into rich and poor will never be a just world, no matter what we do with copyright.

Publishers can’t make money without content, and they will pay for content with or without copyright.

History, not to mention basic profit seeking behavior, shows otherwise. Consider the first edition of Tom Sawyer, published without a penny of compensation to the author by a Canadian publisher that did very well from it. This is a clear case of Libertarian Ideology versus Reality.

Sorry, in the last comment I meant to start by saying: I’m perfectly happy to agree with all of this.

Publishers can’t make money without content, and they will pay for content with or without copyright.

If they can persuade people that in order to become a person whose content a publisher wants to buy, you have to do a lot of unremunerated self-publishing–and not only that, but do your own marketing and market research to “build your brand”–or even that the criterion for getting paid is not having your stuff picked up by the big guys, but at some point after you’ve been picked up without (much) pay, getting tapped to be “really published” (or for some other thing, punditry, say, or showrunning, or whatever)–they don’t really have to. They only have to pay enough, and frequently enough, to keep the fish biting.

I doubt having a large group of people who think unremunerated self-publishing is its own reward, or even a moral imperative, would hurt very much, or would be worse than if they preferred working for a slightly less than middle-class wage.

Also, I was under the impression everyone knew this, but the open source movement depends on copyright and IP law. Copyleft, Creative Commons, and so on, would all be impossible without the traditional copyright regime, which they’re designed to work within.

I have something to say about this, but first I will announce a new cartoon I put up last night, which is about government deficits and debt. Despite the dry topic, everyone will enjoy it. It has no “ecolanguage” flow-charting in it, so you may find it passable enough to send to your un-kookier friends. Indeed you find that you may wish very much to pass it on to them, because it may help us to win this fight:

http://www.youtube.com/watch?v=Wd4HDautaUw

I really think that this one is important. It should help remove much of the argument that comes out of misunderstandings. So please forgive me if I post this one all over the place — I actually try NOT to do that sort of thing. But promotion is a bitch.

Which actually gets me to my copyright point: small artists need strong copyright, because otherwise any profit will be almost impossible in the current socioeconomic system. There are too many ways to get ripped off by others who are big and small.

I stamp “copyright” at the bottom of my little videos because a Supreme Court lawyer personally told me to, though this was before YouTube stepped in to protect their moviemakers (because they are in the business of inserting Google ads upon them. The ads are aimed to be placed opposite the apposite eyeballs. Which is why Google bought YouTube.) Before YouTube’s (rather self-aggrandizing) protection of the videomakers’ intellectual property, which is to say before their advertising regime, I observed advocacy videos on YouTube that were ripped-off and reloaded by putzes of the opposing persuasion, with their own snarky narrations on top: “Here you see, this guy is lying,” etc. etc. “Libertarians” were doing this, I kid you not. You would have to follow copyright relaxation with a Byzantine maze of additional rules to prevent this sort of slimy shenanigans. Perhaps there would be lots of transaction costs in dealing with the resulting courtroom legalities.

For the pop-up ads at the bottom of the videos (YouTube also does full-screen “pre-rolls” replete with smiling actors, which I summarily uncheck, in preferences) — just for the little pop-up banner ads at the bottom: YouTube pays around US$.002 per view (two-tenths of one cent, per hit). So a million hits gets you around $2000.

I have made $70, all together.

I need those tenths of a cent! Although I have been a plumber in one of the toniest residential markets on the planet, that sucks a big goose egg, now.

With the copyright law as it is, all small artists are still stuck with a huge hurdle: “marketing”. I haven’t quite got it yet, but it is something about one degree of hand motion, allotted to each one of seven billion people, who have six degrees of separation.

This very nice post by Peter Frase is relevant here, I think. Much of the best creative work is done by people who don’t care if they get paid. It’s even quite arguable that *assuming they have sufficient time and income*, people do better, more personally satisfying creative work when they don’t expect to get paid for it. If we want to maximize people’s opportunities to be artists, writers, musicians, etc., our goal should be to maximize their chances of getting paid for that work, but to minimize everyone’s need to get paid for any work.

rootless (@root_e) 11.18.12 at 5:30 pm:

‘@58 To me, there has been an amazing “body snatcher” type of transformation in which the “left” has now accepted the tenets of libertarianism as axiomatic. This transformation is somewhat dizzying.’

The viruses of libertarianism and anarchism are spreading across the Left because there is a lack of ideological competition.

(My comment at 122 is missing a “not”. I suppose anyone who cares can figure out where it goes.)

@123 — Sure, send me $70.

@122 in the 1970s, even Milton Friedman was arguing for a universal basic income. As John Holbo pointed out, while Libertarians talk about autonomy and freedom incessantly, they are really about something else.

even Milton Friedman was arguing for a universal basic income.

And he was right. Note that both Milton Friedman and Ayn Rand supported intellectual property, so I’m afraid your guilt by association game has come full circle back to you.

I suppose no one is still reading this — sic transit! but if there is (are?) the following URLs might be found moderately interesting. They demonstrate the sort of efflorescence which naturally occurs in the arts and which copyrightists desire to kill for the sake of Disney’s money. We begin with a Beyoncé video; then see a bit of a predecessor; then a tribute imitation (two versions) and finally the judgement of the artist in the middle.

http://www.youtube.com/watch?v=2XY3AvVgDns

artsbeat.blogs.nytimes.com/2011/10/10/beyonce-accused-of-plagiarism-over-video/

http://www.youtube.com/watch?v=6GohpyK5Y3g

http://www.youtube.com/watch?v=w4aiwTkDwCY

http://www.beyonce.com/news/brilliant