Intellectual Property is About Consumers
Sonny Bunch from the America’s Future Foundation got very upset with my post on the music industry writing:
No! False! The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music. The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts. The purpose of intellectual property law is to punish people who steal that which isn’t theirs.
Yes, copyright was created in part because there were concerns that authors wouldn’t bother creating new work if they were consistently stolen from, leading to Yglesias’s oddly solipsistic reading of intellectual property law. But, more importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors. It’s a crazy idea, I know.
He’s being sarcastic, but that is, in fact, an absolutely insane idea. The point of intellectual property law is to benefit consumers, not producers. I don’t really want to turn this into an ideological food fight, so I’m eager to note that libertarians like Julian Sanchez and Tim Lee have the right take on this. I note that this issue is specifically addressed in the Constitution, which says that patents and copyrights should be granted “for limited times”—i.e., not as a transcendent moral right—in order “to promote the progress of science and the useful arts,” again, not as a matter of transcendent moral right.
I think bringing this up in the context of the music industry seems to have confused the issue, as Bunch is very upset at what he terms “the pro-piracy, illegally-downloading-music-is-okay crowd” which I wouldn’t say I’m part of. So let’s think about something else—pharmaceuticals. Does Bunch think it’s a terrible affront to the moral rights of pharma researchers that there are generically available drugs? Does he want to see ibuprofen and penicillin and measles vaccines taken off the market? That’s crazy. As I think everyone agrees, the object of pharmaceutical patent & pricing policy is to balance the desire for medicines to be widely available and the desire to ensure that there are financial incentives for new research. Some people think we should sharply curb pharma patents and finance research some other way (prizes, more public funding) but everyone agrees that the welfare of patients, rather than pharma executives, is the legitimate point of policy.
With music and books and movies and it’s all the same. Intellectual property rights are created to ensure the existence of a supply of works for people to enjoy.
132 Responses to “Intellectual Property is About Consumers”
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February 3rd, 2010 at 1:03 pm
You are talking past each other.
Yes, you are right, they exist to ensure supply.
So how do they ensure supply?
By allowing the producers to earn an income from their work producing the new works.
It is two sides of the same coin.
February 3rd, 2010 at 1:03 pm
I think the take-away from this post is this: Is Sonny Bunch a real name? Because if so, that is fucking ridiculous. No wonder he’s a libertarian, he must have gotten destroyed in high school.
February 3rd, 2010 at 1:10 pm
What Spencer said. Or, as the old SNL skit put it, “it’s a floor wax and a dessert topping.”
February 3rd, 2010 at 1:12 pm
spencer: Yes, but the point is that the income sufficient to ensure supply is not necessarily the income that they currently make. In the original post Yglesias explicitly noted that if you compare the pre-Napster music world to the post-Napster music world, there’s a quite plausible argument that the supply of music has actually grown.
February 3rd, 2010 at 1:15 pm
spencer: No, they are not just talking past each other. Bunch calls Matt’s historically and legally correct statement that the purpose of copyright is to incent authors to create works to be enjoyed by the public “oddly solipsistic.” It is neither odd nor solipsistic. It’s accurate. It’s Bunch’s reference to copying an author’s work as “theft” and suggesting that author’s have a transcendental moral right to copyright protection that is solipsistic. The reason why copyright was created by statute (orginally in England and then subsequently here) is because copying a work was not theft and not even a crime as a matter of common law. Theft or larceny (to use the technical term) means to take property with the intent to permanently deprive the owner of it. Copying a work doesn’t deprive anyone of the work. It’s pure value added. The purpose of copyright is 100% instrumental, not moral.
February 3rd, 2010 at 1:17 pm
You’re describing the Anglo-American formulation of copyright law, and “Sonny Bunch” is describing the Euro-global Droit Morale view of copyright law.
The latter (and the US’s participation in global copyright treaties) has led to a dilution of the “for limited times” concept here. (Congress keeps expanding the length of time a copyright remains valid.)
February 3rd, 2010 at 1:18 pm
Music and medicines are not comparable. While in theory patents for medicines have only a limited life, in practice the patents go on forever because the pharmaceutical companies make minor changes that allow them to obtain new patents ad infinitum. While I don’t really care how long copyrights for songs or other entertainment may last, I do care about patents for medicines. Comparing entertainment with life-saving medicines makes no sense.
February 3rd, 2010 at 1:18 pm
They are talking past each other a little, but the purpose of the doctrine is useful when analyzing the wisdom of the copyright term extension act. The question is whether the two goals are best served by allowing copyrights for 70 years after the life of the author or 120 years for a corporate owner.
Additionally, you could say a lot of property law is meant to ensure supply and is not a matter of transcendent moral right. For a long time core common law property law had such things as adverse possession and the rule against perpetuities and compensated takings to prevent individuals from being able to keep otherwise productive resources forever unavailable.
February 3rd, 2010 at 1:19 pm
“But, more importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors.”
This is transparently false. Copyright law began as an effort to promote creative work by giving artists, writers, musicians, etc. an exclusive, temporary right to profit from their labors, because promoting creative work was considered to be in the best interest of the public.
It evolved because legislators were convinced by corporate lobbyists that whoever happens to own the copyright has the permanent right to profit from the labors of artists, writers, musicians, etc. This happened because a cartel of distributors evolved to force artists, writers, and musicians to relinquish most of their rights in exchange for a share of the profits, most of which belong to the distributors. The interests of the actual creators became a secondary concern, and the interests of the general public were ignored.
It cannot be emphasized enough that arguments like Bunch’s are built on completely disingenuous premises.
February 3rd, 2010 at 1:21 pm
“In the original post Yglesias explicitly noted that if you compare the pre-Napster music world to the post-Napster music world, there’s a quite plausible argument that the supply of music has actually grown.”
Technology has increased the amount of available music. Stealing other people’s work without paying for it is not essential to that dynamic.
Mike
February 3rd, 2010 at 1:24 pm
Sonny Bunch doesn’t describe droit morale. You can have liberal copyright and still have moral rights.
It’s not true that the US has extended copyright because they’re getting nearer a global norm. It’s because of corporate lobbying. You have barely any moral rights for creators, which is against corporate interests.
February 3rd, 2010 at 1:24 pm
The real problem with the music industry was a recording industry that took an outsize chunk of income — royalties — and stiffed artists. And many of those artists discovered they could connect with a paying audience better without the label.
It’s why artists like Miles Davis and Prince did such crazy things like not making new recordings or changing their names.
Record companies like to blame illegal downloads; but that’s a small part of the story of their demise. Their own greed was the driver on the tour bus.
February 3rd, 2010 at 1:25 pm
@spencer, they aren’t talking past each other at all. There’s a very big difference between the idea that artist compensation itself is a goal of the law and the idea that it should be considered as a means to an end.
Although the debate would be more useful if Mr. Bunch would stop the name-calling. I don’t think anybody denies that discussions about copyright law in the arts in recent years has shifted so that the goal of consumer protection has become a minor point, if not irrelevant. The question is whether that’s a bad change (as MY would say) or a good change (as Sonny Bunch would say).
More directly, is the available supply of music to the consumer a relevant point? MY and the US Constution say yes, SB and apparently the US Congress say no. It’s a real difference of opinion.
February 3rd, 2010 at 1:28 pm
I’m no expert, and don’t feel too strongly about the issue, but as I understand it, illegal downloading has increased sales for all but the biggest musical acts. So it should lead to a greater supply of music.
February 3rd, 2010 at 1:28 pm
BTW, it is a huge concession to the frame these guys use to write “intellectual property” rather than “copyright” or “patent.”
It was a brilliant coinage, converting something ephemeral to something permanent. But it is inaccurate.
February 3rd, 2010 at 1:28 pm
1) Sonny Bunch is not really defending the rights of artists –who get buttfucked by the entertainment industry’s lawyers and frozen out if they don’t sign their rights away with contracts. He defending the rights of parasitical middlemen who create nothing but collect rents for distribution.
2) The larger issue is that this “intellectual property ” bullshit shows how much allegedly “Free Market” wealth is created by bribing the US Congress rather than actual entrepreneurship.
For example, I agree with Sun CEO Scott McNealy’s opinion that
Microsoft never invented a thing in its life — it just used its Congressionally-sanctioned Operating System monopoly to pick up the inventions of others: word processing software, spreadsheet software, graphical user interface, internet browser. Which makes Microsoft’s “intellectual property” claims today kinda hilarious. But it can afford to hire lawyers and pursue lawsuits that small startups can’t.
3) The impact on the computer industry has been devastating — computer innovation has died because no one wants to invest in developing a product so long as Microsoft can copy it, drive the innovator out of business the way it killed Netscape, and seize the profits.
February 3rd, 2010 at 1:28 pm
If after a decade or two of proper protection of copyrights (ISPs and or hosts being required to block access to sites that host pirated material and legal [even criminal in some cases] accountability for owners of sites that host pirated material) fails I might be prepared to think the fee per unit model is no longer ideal. But I’m not at all convinced that proper enforcement of copyright protections would fail.
February 3rd, 2010 at 1:30 pm
spencer,
I’m sure the supply would be fine if copyrights lasted as long as patents did, but the music and film industry would crap their pants and bitch and moan about it endlessly (Bunch would probably do the same). This, despite the fact that the vast majority of the money is made early in the life of a work, not in year 75.
February 3rd, 2010 at 1:32 pm
Copyright protection is getting longer and longer because Disney lobbyists convinced Congress that it would destroy America is anyone could use Mickey Mouse in any context. (Which is of course absurd, we wouldn’t have Pride and Prejudice and Zombies if copyright still protected the Austen estate)
Temporary IP protection is necessary in a field like pharma where the second pill costs nearly nothing, but the first one costs hundreds of millions in R & D. In the arts it has less justification, particularly in music. Artists have an alternate source of revenue available through performance fees, which, together with the simple desire to create, is enough to encourage all sorts of new production.
Also, Aqua Regia is funny.
February 3rd, 2010 at 1:32 pm
Nothing stops generic manufacturers from making copies of the original drug and consumers from purchasing those generics.
February 3rd, 2010 at 1:33 pm
[...] Yglesias responds to Bunch: I think bringing this up in the context of the music industry seems to have confused the issue, as Bunch is very upset at what he terms “the pro-piracy, illegally-downloading-music-is-okay crowd” which I wouldn’t say I’m part of. So let’s think about something else—pharmaceuticals. Does Bunch think it’s a terrible affront to the moral rights of pharma researchers that there are generically available drugs? Does he want to see ibuprofen and penicillin and measles vaccines taken off the market? That’s crazy. As I think everyone agrees, the object of pharmaceutical patent & pricing policy is to balance the desire for medicines to be widely available and the desire to ensure that there are financial incentives for new research. Some people think we should sharply curb pharma patents and finance research some other way (prizes, more public funding) but everyone agrees that the welfare of patients, rather than pharma executives, is the legitimate point of policy. [...]
February 3rd, 2010 at 1:36 pm
@zic
The reason Prince dropped the name is that he didn’t have rights to it. This is the kind of thing that doesn’t happen anymore. You don’t need the record companies anymore. Other distribution channels take a smaller cut. Take Ani DiFranco. She has never had a deal.
Also, production facilities are your bedroom, so the studio time thing doesn’t matter anymore. Oh, and in addition, demand for production quality has either diminished or never really mattered, with most people happy to listen to compressed versions on tinny earbuds.
February 3rd, 2010 at 1:36 pm
“opyright law began as an effort to promote creative work by giving artists, writers, musicians, etc. an exclusive, temporary right to profit from their labors, because promoting creative work was considered to be in the best interest of the public.”
Copyrite and other such laws are meant to deal with the problem of work that can be easily duplicated. Obviously then, such laws must change as the ability to reproduce such work changes. An understanding of copyrite when you had to physical re-record songs in order to make duplicates cannot be the same understanding applied when pushing a button can create a potentially infinite number of copies almost instantly.
Mike
February 3rd, 2010 at 1:36 pm
You can still get prescribed the off patent drug and buy the generic in the drug store. If a pharm company makes a minor change to a drug to get a patent on it, you can always decide not to use that drug and instead take the previous version.
This is an example of how the patent incentive system is a perverse one: the incentive is to do as little work as possible to get something under patent protection and then leverage that legal monopoly into sales via a marketing campaign to convince people that the slightly-different version is really “better” than the previous one. But doctors, patients, and insurers have an obligation not to fall for that hype.
February 3rd, 2010 at 1:36 pm
I know this is simplistic, but after the SCOTUS ruling of campaign financing, shouldn’t people and corporations have equality here, too?
February 3rd, 2010 at 1:38 pm
Bunch is more correct than Yglesias, in my opinion. The drug rejoinder is foolish because it’s based on a time dimension that doesn’t come into play in the music discussion; the enemies of traditional copyright for music in the digital age don’t concede the substantive rights of producers to be compensated for their work even for five minutes. And please, enough with the spurious producer vs. middleman distinction: middlemen are, in all cases, specifically charged by producers with the handling of the product. The fact that some producers have taken advantage of the digital age to cut out the middleman doesn’t give us the “right” (which, surprise, coincides with our consumer’s interest in getting music for free) to say that middlemen shouldn’t exist.
February 3rd, 2010 at 1:39 pm
“Technology has increased the amount of available music. Stealing other people’s work without paying for it is not essential to that dynamic.”
Free downloads are *absolutely* essential to that dynamic. People hear music they would not otherwise have heard, and it creates more demand for additional tracks by the same act and demand for similar music by others.
Stealing, per se, is not essential to the dynamic. Ideally, musicians ought to have the right to decide for themselves whether to make some or all of their music available for free download, or whether to demand payment.
But, again, the music industry wanted to have it both ways. They wanted the benefits of releasing digital music without accepting the risks of the format. They made windfall profits from the transition from vinyl and cassette to CD before it came back to haunt them.
Personally, I pay for everything I download unless it’s offered as a free promotion. I download entire albums for $9.99 from Amazon. In inflation-adjusted dollars, that’s not much more than half of what a new CD would have cost at Tower Records ten years ago. Not surprisingly, recording industry revenues have dropped. But the brunt of that decline is related to the demise of a more tightly-controlled distribution system that was rigged to benefit music labels.
February 3rd, 2010 at 1:39 pm
You’re describing the Anglo-American formulation of copyright law, and “Sonny Bunch” is describing the Euro-global Droit Morale view of copyright law.
Right. U.S. copyright law does recognize the concept of moral rights. It’s based solely on the goal of promoting the arts and sciences. Of course, we had to lie and say we recognized moral rights to join the Berne convention. But the Berne convention is not self-executing, and the statute enacting it into domestic law does not recognize moral rights.
February 3rd, 2010 at 1:40 pm
“Artists have an alternate source of revenue available through performance fees, which, together with the simple desire to create, is enough to encourage all sorts of new production.”
I’m sure reducing the artist to the status of serf, dependent on whatever crumbs are thrown to them by the consumerist gentry, won’t have any possible negative consequences.
Mike
February 3rd, 2010 at 1:41 pm
@Don Williams
MS did actually write Excel, which is a fine product. Their development tools are a standard, as is SQL Server.
And, of course, I am here using FireFox,which is a Mozilla product.
February 3rd, 2010 at 1:45 pm
Yglesias has the wording of the Constitution on his side. Bunch is making a moralistic argument that he may wish were the reasoning behind the government’s ability to hand out patent and copyright protection but isn’t.
Once I have a book, idea, or piece of music in my hands, it’s mine to do as I please. Because giving me an unlimited ability to duplicate, plagiarize, or re-sell copies would be bad for the system of art and invention-making, the government has decided to offer protection. Originally, this protection only extended to US citizens, for all practical purposes– the US was a hotbed of copyright and patent violation of foreigners’ art and inventions for most of the 19th century.
Intellectual “property” is a fiction we have invented because society works better that way. People who violate those rights aren’t “Stealing other people’s work without paying for it,” they are violating a copyright or patent granted by the government.
February 3rd, 2010 at 1:45 pm
Matt,
I appreciate that it’s fun to muse over whether producers or consumers are the better beneficiaries served by IP laws, but it’s not really true to say that it’s “insane” to argue that IP is intended to benefit producers.
It’s intended to benefit both.
The mechanics of IP laws are focused upon the rights of producers (and that’s part of why it’s counterintuitive to say that IP laws are really intended for consumers). The net benefits of those laws, in a direct sense, flow to producers. The net benefits of those laws, in an indirect and aggregate but no less important sense, flow to the consumer. To argue that IP laws are intended to benefit one group only kind of misses the point.
February 3rd, 2010 at 1:45 pm
I’m sure reducing the artist to the status of serf, dependent on whatever crumbs are thrown to them by the consumerist gentry, won’t have any possible negative consequences.
But isn’t that the historical model? I specifically picture the travelling actors from The Seventh Seal, or Hamlet. And, wasn’t the entire model during the Renaissance exactly what you describe? The point is, great art has historically come from the model you deride.
February 3rd, 2010 at 1:46 pm
I’m sure reducing the artist to the status of serf, dependent on whatever crumbs are thrown to them by the consumerist gentry, won’t have any possible negative consequences.
Yes, and if that had happened, it would be a worry, but there is basically no evidence for that happening at all. Therefore, you are ridiculous.
February 3rd, 2010 at 1:50 pm
But isn’t that the historical model?
Yup, and try to find out what it was like to be an artist under those circumstances.
Mike
February 3rd, 2010 at 1:52 pm
Yes, and if that had happened, it would be a worry, but there is basically no evidence for that happening at all. Therefore, you are ridiculous.
And “nothing bad has happened so far” is brilliant wisdom that has led to one fantastic and unqualified success after another in human history.
Mike
February 3rd, 2010 at 1:52 pm
I’m sure reducing the artist to the status of serf, dependent on whatever crumbs are thrown to them by the consumerist gentry, won’t have any possible negative consequences.
This is hysterical, in both senses of the word.
February 3rd, 2010 at 1:53 pm
This is quite simple: Yglesias is right and Bunch is wrong, for reasons made quite clear in previous comments.
That said, most of Matt’s thoughts on intellectual property boil down to “I like not having to pay for music.” Full-bore glibertarianism.
February 3rd, 2010 at 1:55 pm
“I’m sure reducing the artist to the status of serf, dependent on whatever crumbs are thrown to them by the consumerist gentry, won’t have any possible negative consequences.”
Oh, cry me a damn river. By that standard, artists have always been chained in serfdom, cruelly compelled to perform without any prior guarantee that people would like their work enough to pay for it.
The recording industry once sued John Fogerty for plagiarizing his own work because he didn’t control the copyright. Spare us the crocodile tears for the loss of artists’ intellectual property.
February 3rd, 2010 at 2:02 pm
Fuck Lars.
February 3rd, 2010 at 2:06 pm
RSR–
You want copyright to last 70 years after the death of the corporation?
Gattigap:
No, I’m afraid this is not so!
A copyright regime designed to maximize profits to producers might look very different from one structured to maximize the creative material (and new creative material) available to the populace as a whole. When we look at whether our current laws are effective in the face of technological and social challenge, it becomes very much germane to ask: who, and what is this for?
February 3rd, 2010 at 2:07 pm
@MBunge
I am one of those serfs – a professional, recording, musician. I don’t make a fortune, and I earn virtually nothing from sales of my music, but I perform regularly and have a comfortable lifestyle. Because I can pay my rent and student loans in the same month, I think I earn enough money. Particularly since I love doing it and wake up at noon.
Digital file-sharing has been an overwhelming positive because it allows a whole generation of people like myself to get the exposure that allows the possibility of a living wage from making music. Maybe it hurts the record sales of top 40 acts a bit, but I think they are going to be ok. Bono only needs one private plane to get to the next ecoconference.
February 3rd, 2010 at 2:07 pm
Aren’t the glibertarians the ones obsessed with property rights?
February 3rd, 2010 at 2:08 pm
The drug rejoinder is foolish because it’s based on a time dimension that doesn’t come into play in the music discussion; the enemies of traditional copyright for music in the digital age don’t concede the substantive rights of producers to be compensated for their work even for five minutes.
That’s because they won’t let us sample their work even for five seconds. Even if it’s 50 years old. So yes, the time dimension does come into play.
And please, enough with the spurious producer vs. middleman distinction: middlemen are, in all cases, specifically charged by producers with the handling of the product. The fact that some producers have taken advantage of the digital age to cut out the middleman doesn’t give us the “right” (which, surprise, coincides with our consumer’s interest in getting music for free) to say that middlemen shouldn’t exist.
Are you fucking kidding me? The middlemen aren’t hired by the content producers; they’re the ones hiring the content producers. They take an enormous cut for themselves and their organizations and leave the vast majority of artists with a pittance of the total profit they’ve created. The situation is most pronounced in the music industry, where it’s not uncommon for an artist to get signed to a major label, record an album, go on tour to the support the album, and end up owing the label money on the whole thing.
The music industry’s been screwing both over artists and listeners for the last 60 years, and making a killing in the process. I have the technology to beat them. My name’s not Barack, why would I meet them halfway?
February 3rd, 2010 at 2:12 pm
Yes, agree with Spencer, but the logical step is that we should only pay producers enough to keep them producing. No way you need the expansive protections we have now to keep that incentive in place.
February 3rd, 2010 at 2:26 pm
I agree with Matt up until his recent arguments that digital music should only cost the “marginal cost of distribution” or some such nonsense, which he then goes on to claim is zero (or approaches zero, but since this isn’t calculations, I think its fair to say zero.)
I don’t see how you “promote the progress of science and the useful arts” by telling artists that their product should be worth $0.
February 3rd, 2010 at 2:27 pm
Meant to say “Calculus” above…sorry.
February 3rd, 2010 at 2:29 pm
Ever dreamt of writing a book, Matt? The pirating technology for books is lagging behind music, but it’ll get there. No one wants to read a book on a computer but an eReader? That’s a different story.
I wonder if Junot Diaz would spend a decade writing a great novel if no one was there to give him advances, and if there was little chance that the venture would be profitable. My bet is that he would be making mofongo instead.
You can shrug your shoulders now when you steal from music artists, but you are a writer. Do not ask for whom the bell tolls, it tolls for thee.
February 3rd, 2010 at 2:30 pm
MY – Sure, yes, let’s get rid of the record companies, that sounds fantastic. Except.. when we talk about health care/credit cards, etc, there is that whole ‘race to the bottom’ phenomenon. Why won’t record companies, also, simply race to the bottom (Note: I’m sure some people say they already have.)? I mean, I record a single note played over and over for three minutes on my built-in laptop mic, and the cost would be, you know, three minutes of my time. And copies would approach zero marginal cost! But then, no one would want it.
There’s a big difference between thinking that Disney has taken intellectual property rights beyond the bounds of reasonable and thinking that there should be no such thing as intellectual property rights. Saying ‘copying is free’ is a facile and ridiculous way to frame the issue, because you know you aren’t paying for the string of ones and zeros copy itself. Maybe we’re paying for music without product placement?
February 3rd, 2010 at 2:32 pm
Anthony Damiani:
I don’t disagree with your general observation here, but I think you’re getting into a side issue of (for example) what Congress has done to the copyright regime over the last 50 years in terms of extending the term of protection, etc. That’s a valid point, but I think that speaks more to the effect of producers’ influence in lobbying Congress than it does to the question of what the underlying purpose of IP laws is. Put somewhat differently, the effect has been to warp the edges of IP laws to favor producers, but it doesn’t necessarily follow that those changes mean that the overall system is intended to favor producers over consumers.
February 3rd, 2010 at 2:35 pm
Aren’t the glibertarians the ones obsessed with property rights?
No these are gliberatrians, there’s no need for logical consistency.
February 3rd, 2010 at 2:37 pm
Scythia, I think your first point is entirely out of left field since it could be addressed without wholesale gutting of the copyright holder’s rights. Oddly, by which I mean “not oddly at all,” there is very little interest in doing this because the sampling issue is secondary to the consumer’s interest in having music for free.
As for your second point, two things. First, if middlemen hire the content providers, they hire the content providers. Contracts of that sort are the basis for our economy and society. Second, a genuine win from digital technology is that producers can viably bypass middlemen, so if someone chooses not to do so, we should honor that choice and their creative product deserves the same protection regardless of whether the producer is getting 100% or 10% of the marginal dollar.
February 3rd, 2010 at 2:40 pm
Not being a lawyer I don’t know much about copyright law, but you wonder if a large class action lawsuit on behalf of artists and against the government for failing to enforce copyright protections wouldn’t be possible. Maybe a multi-billion dollar settlement passed on to taxpayers wouldn’t start to convince people that the kids should have to mow lawns and flip burgers to get music and movies again.
February 3rd, 2010 at 2:45 pm
Can’t sue the federal government. Sovereign immunity. Plus you’d have to come up a legal theory, which would inevitably be a stretch.
February 3rd, 2010 at 2:53 pm
I agree with Matt up until his recent arguments that digital music should only cost the “marginal cost of distribution” or some such nonsense, which he then goes on to claim is zero (or approaches zero, but since this isn’t calculations, I think its fair to say zero.)
Yes. Why doesn’t the cost of producing the music factor into this? In real life, it obviously does. No one is going to distribute music for free unless it was created for free, because any distributor is going to at least attempt to recover the costs of production and distribution.
February 3rd, 2010 at 2:53 pm
You’re almost right. Copyright law was written because the artistic community was deemed beneficial to the United States of America. The creative output of this country is enormous and brings billions into the national economy. But legislators realized that artists need to have an incentive to continue to produce or all that contribution to GDP would begin to dry up. In other words, it’s in the country’s interest to make sure musicians, et. al. can make a living. The laws were written to protect creators from unscrupulous advisers, etc. but artists are no less threatened by their own fans.
February 3rd, 2010 at 3:01 pm
In real life, it obviously does. No one is going to distribute music for free unless it was created for free, because any distributor is going to at least attempt to recover the costs of production and distribution.
Except for the part where that isn’t true. There have been numerous albums distributed for free, and almost every band at least gives away their singles for free. They don’t do this out of the goodness of their hearts obviously (well, Radiohead might have), they did this because of their expectation that it would benefit them later on.
February 3rd, 2010 at 3:07 pm
It is the field of microeconomics, not Matt Yglesias, which states that prices go to the marginal cost of production in an efficient competitive market.
It does not say anything either way about what a “product should be worth,” just how prices behave in a competitive market.
February 3rd, 2010 at 3:16 pm
The arguments of the pro-copyright people here are pretty amusing. It doesn’t really matter what the sorry status of copyright protections in the music industry is like right now. What matters is that there are still plenty of people willing and eager to produce quality music. Their motivation or level of compensation is hardly relevant. I certainly don’t see much reason to worry about it for now as the cheap availability of massive amounts of content would easily balance the social consequence of a small drop in production.
The people on the wrong side of this argument seem to find it morally objectionable that people are getting something for free. It’s almost as if that is really the driving force behind their objections. It’s kind of sad.
February 3rd, 2010 at 3:16 pm
Or to quote from Lil Wayne’s last (free!) mixtape, in response to people who ask why he gives music away for free: “Because I’m Weezy, I’m different. I have plenty of it, so it’s nothing for me to share. It’s priceless, that’s why it’s free.”
February 3rd, 2010 at 3:17 pm
But legislators realized that artists need to have an incentive to continue to produce or all that contribution to GDP would begin to dry up.
Jesus, for the millionth time, no. Copyright laws exist to protect corporate interests – any benefits to the actual creators are purely accidental. Only a very small percentage of name music acts makes any money from sales of recordings. Really everybody screaming about how illegal downloading hurts the artist needs to read Tim Quirk’s piece about “unrecouped” bands:
http://www.toomuchjoy.com/?p=1397
February 3rd, 2010 at 3:17 pm
No, Rich, Matt is explicitly defined as right by the US Constitution. There is no moral right to own intellectual properety. There is a temporary right granted only for the pragmatic purpose of creating the optimum conditions for the people of the United States to enjoy the fruits of creativity.
At any time that any intellectual property law is deemed not to serve the larger interests of the people, it should be declared unconstitutional.
Today, there is a very real possibility that any copyright at all on music is counterproductive. If free distribution of music increases the attendance of live performances to such a degree that more music is created and consumed, then music should not be copyrightable.
Books and movies are a different story. I find it hard to believe that production would still flourish if they were not copyrighted. Even so, copyrights could be scaled back. Seventy years past the death of the creator is awful. It certainly detracts from the general welfare rather than adding to it.
February 3rd, 2010 at 3:23 pm
Jack Valenti’s salary in 2004 was reported to be $1.35 million.
What the fuck did he ever create?? Aside from the idea of applying the Mafia shakedown to the motion picture and music industry?
http://en.wikipedia.org/wiki/Jack_Valenti
February 3rd, 2010 at 3:26 pm
If anyone would like a PDF copy of Heads in the Sand please let me know. I can be reached at trustfundscum@hotmail.com
February 3rd, 2010 at 3:29 pm
The nominal justification, and quite often the real reason, is to give incentive to creators. Nobody would make a major film if they couldn’t copyright it. All authors would need day jobs, publishing just for vanity or passion. TV stations could broadcast eachother’s programming with about a half second delay.
Music is the artform under discussion specifically because there is a chance that ending copyright would not diminish creative production enjoyed by Americans (other countries have different law, so I’m only talking America here).
Now, there is no doubt that corporate lobbyists engineered extensions of copyright specifically to enrich their employers at the expense of the general public, but it is the extension rather than the existance of copyright that is wrong.
February 3rd, 2010 at 3:30 pm
“Can’t sue the federal government. Sovereign immunity. Plus you’d have to come up a legal theory, which would inevitably be a stretch.”
I believe there are provisions in specific areas of federal law that allow suits to be filed against particular parts of the government for failing to enforce certain laws. For example, citizens can file suits against the EPA for failing to enforce Clean Water Act provisions against particular violators.
February 3rd, 2010 at 3:31 pm
Any time that Lil Wayne is backing me up, I know I am on the right side of an argument.
February 3rd, 2010 at 3:32 pm
Since no one is buying Heads in the Sand anymore (and few people actually did, sorry Matt), widely distributing it via PDF is probably in Matt’s economic interest because it will tend to increase the audience for his blog and articles — things that actually generate non-trivial income for him.
February 3rd, 2010 at 3:32 pm
The point of intellectual property law is to benefit consumers, not producers.
This is both wrong and egregiously stupid. Simple thought experiment: in the absence of IP law what prortections would IP producers have? Ergo IP law exists to confer limited property rights to IP producers to the end of the general betterment of society. But of course that;s not the distinction Yglesias made. He is channeling Megan McCardle here: when you write something stupid and are simply wrong on the facts then don’t cortrect yourself, double-down. Hey Matt, take that apprpoach to Las Vegasa, it worked for the guys from the other school in Cambridge, though they happened to have a clue what the f they were talking about.
February 3rd, 2010 at 3:33 pm
By the way, who the fuck is Sonny Bunch and why should we give a shit what he thinks?
February 3rd, 2010 at 3:34 pm
Intellectual property rights are created to ensure the existence of a supply of works for people to enjoy
Well, as I pointed out in the other thread, we already have an overabundance of these works. The job is done. There are now far more pieces of recorded music, more books, more plays, and even more movies than one person can reasonably consume in their lifetime. Maybe it’s time we stop subsidizing artists, musicians, and writers and even encourage them to do something else with their talents. A world where only “amateurs” (i.e. people who create purely for the love of creating) produced artistic works would be a much better one as far as I’m concerned. Why do we need to effectively subsidize the Dan Browns and U2s of the world? Why do I need a new novel by Dave Eggers or Jonathan Foer when there are so many great 19th and 20th century novels lying around I still haven’t read? Who even thinks new jazz recordings are a good idea? Copyright has outlived its usefulness.
February 3rd, 2010 at 3:40 pm
Nobody would make a major film if they couldn’t copyright it. All authors would need day jobs, publishing just for vanity or passion.
Even today the vast majority of published authors need and have day jobs. Film, I agree, is a different story – you essentially need a corporation, or something like it, to provide the resources for a film or TV show, which means maybe film should enjoy copyright protection, if, that is, we think subsidizing big budget blockbusters is really a worthwhile goal for our culture.
February 3rd, 2010 at 3:43 pm
Too bad that the constitution disagrees with you, Gene. As many others have quite correctly stated, copyright protection exists in the United States “To promote the Progress of Science and useful Arts”. I would say that that is not exactly the same thing as Matt said, which is that it is to benefit consumers, but Matt is far closer to correct than his critics. Copyright protection doesn’t exist for fairness, or just competition, or to criminalize free stuff. It exists for the benefit of promoting the progress of science and the useful arts.
February 3rd, 2010 at 3:46 pm
“Maybe it’s time we stop subsidizing artists, musicians, and writers and even encourage them to do something else with their talents.”
Insisting that people who create something be compensated by others who enjoy/utilize that something is not “subsidizing” them. Good grief.
Mike
February 3rd, 2010 at 3:48 pm
A lot of people are talking about what should or what should not be in terms of artists compensation and whatever. But the economic principles that matt mentions have nothing to do what should and should not happen. Economics is a science, and like all sciences it has nothing to do with normative questions.
When matt says “under conditions of perfect competition, the price of a song ought to be equal to the marginal cost of distributing a new copy of a song,” he may think he’s making a normative argument, but he’s not. He’s making a positive one. Think of it as a Law of economics.
Ask yourself: In a system where copyright infringement is unenforceable, does a rational actor pay for music. I don’t think he does. Or more complicatedly the actor assumes x amount of risk that he will be caught, how high are the penalties and how great a chance is there for him to get caught before a rational actor will pay for music? It’s the point where (the risk of getting caught) x (the severity of the penalty) = the value to him of the music. right?
February 3rd, 2010 at 3:49 pm
“Too bad that the constitution disagrees with you, Gene.”
Then the Constitution should probably be amended, so folks who think they’re entitled to the work of others can stop using it to justify their behavior.
Mike
February 3rd, 2010 at 3:56 pm
MS did actually write Excel, which is a fine product. Their development tools are a standard, as is SQL Server.
Nonsense. Spreadsheet applications were invented long before MS, see Supercalc, Lotus 1-2-3, etc. And SQL Server started from a version of Sybase that they bought.
autoit 0.418467115378007
February 3rd, 2010 at 4:18 pm
vanya, I’m hoping your post was tongue in cheek, it’s so ridiculous. Please tell me that you don’t seriously believe that no new artist, musician or author deserves compensation for their work, simply because there are already plenty of books, movies, paintings, songs, etc.! Remember, this hasn’t just affected the U2s of the world, it’s the more innovative artists, not the mainstream ones, who’ve seen their tiny incomes disappear.
As a side note, I hope the movie industry is preparing to see their profits evaporate just like those of the music industry…we’re just a little bandwidth away from movies being as easy to copy and distribute freely as music.
February 3rd, 2010 at 4:26 pm
we’re a little bandwidth away from seeing dvds go the way of cds, but they’ll still make a lot of money in the theatre. We’re still a long way from having huge screens in every home. Which means that spectacle will be more privileged than it is even now.
February 3rd, 2010 at 4:33 pm
As a side note, I hope the movie industry is preparing to see their profits evaporate just like those of the music industry…we’re just a little bandwidth away from movies being as easy to copy and distribute freely as music.
They know what’s up. Why else has there been such a big push to add value to the theater-going experience? Relentlessly pushing 3D visual extravaganza movies that happen to be things you can only experience by paying your hard-earned money to see it in a theatre is not an accident. It seems to have worked, too. I would note that we are not just a little bandwidth away, we’ve been able to watch movies as easily as music for years, but box office grosses have been growing this decade.
Also, do you happen to have statistics to back up your assertion that innovative artists have seen their income disappear? That’s a hell of a claim.
February 3rd, 2010 at 4:45 pm
So you want people to pay user fees whenever they make chicken soup? It was somebody else’s idea to cut up a chicken and cook it, boil the nasy bits for an hour, strain it, add herbs and vegetables and then dump in the cooked chicken. When you make soup, you’re stealing their idea without paying.
February 3rd, 2010 at 4:45 pm
Since no one is buying Heads in the Sand anymore (and few people actually did, sorry Matt), widely distributing it via PDF is probably in Matt’s economic interest because it will tend to increase the audience for his blog and articles — things that actually generate non-trivial income for him.
Anyone who thinks MY wrote the book in order to make money is under some misapprehensions about the money serious books typically bring in. I’m sure he would have been happy to have made a bunch of cash, but he wrote it in order to enhance his status as a pundit (which will likely enhance his income indirectly).
February 3rd, 2010 at 4:49 pm
To maintain the rule of law we should at least cap the damages that can be extracted in file sharing cases. No more than 10k seems about right.
The same logic should apply to drug cases. We can’t claim to have a lawful society when such a common activity is so stiffly punished if you happen to get caught. There’s little proof that file sharers inflict much if any harm on creators and something like 85% of Americans possess pirated music. One entire home mortgage per song simply isn’t just.
Our last three presidents have used cocaine, and I’d guess the children of at least two have possessed pirated music. We can still discourage certain behaviors as a society if they are deemed destructive, but laws should certainly not be arbitrarily harsh and arbitrarily enforced. If many or even most of us are serious criminals at various times, then we forfeit any conception of justice.
February 3rd, 2010 at 4:51 pm
Insisting that people who create something be compensated by others who enjoy/utilize that something is not “subsidizing” them.
Of course it is. Try to step outside the narrow mental framework of 19th/20th century Western civilization. There’s no natural law that says works of art shouldn’t be copied, most human societies didn’t/don’t recognize that principle. The effect (purpose really) of copyright is the creation of artificial legal barriers to restrict entry into the entertainment industry – driving up the price to the consumers of those goods. Like many subsidies, copyright arguably has benefits to society at large – it creates a greater supply of artists, musicians, etc. But it is still a subsidy, just as subsidies to corn growers creates a greater and cheaper supply of corn.
February 3rd, 2010 at 4:52 pm
This is the section in the earlier post that gave me pause:
When you could buy a vinyl 45 RPM single, part of the cost was the production. When you bought a CD, part of the cost was production. But this quote seems to suggestion that digital content should be completely free, just because there’s no physical reproduction.
I’m not in favor of the trend of extending copyright indefinitely. I think public domain is a good thing. But content creators ought to be compensated fairly for their intellectual labor, not just for the form in which it is delivered.
February 3rd, 2010 at 4:52 pm
As a side note, I hope the movie industry is preparing to see their profits evaporate just like those of the music industry…we’re just a little bandwidth away from movies being as easy to copy and distribute freely as music.
I think this is a much trickier social issue than music, actually. These days, you can make an album that sounds like it came from a major label for a few thousand bucks (if that) in your basement by yourself. But in order to make something that looks like a Hollywood movie you need to employ hundreds of people and spend millions of dollars. Someone has to front that money, and I’m not sure what happens to movie-making once their expected profits evaporate.
February 3rd, 2010 at 4:56 pm
Not really. New, innovative artists never made money from record sales. Almost all of that money went to the labels. It’s only the bands who were big enough to negotiate a better deal who got any money from selling records. That’s the reason this discussion is about music, rather than movies.
If this happens to movies, the only way they’ll raise the money to make them is with product placement ads.
February 3rd, 2010 at 4:56 pm
What Vanya said.
autoit 0.238309573149309
February 3rd, 2010 at 4:58 pm
Please tell me that you don’t seriously believe that no new artist, musician or author deserves compensation for their work, simply because there are already plenty of books, movies, paintings, songs, etc.
I’m not saying they don’t deserve compensation, but restrictive copyright laws are not necessarily the best way for society to provide that compensation – and for most artists/musicians/authors are not necessarily a guarantee of compensation anyway. I was also specifically replying to Matt’s point that copyright is a guarantee of supply of artistic product. I am arguing copyright is no longer needed for that purpose, it may have other purposes.
February 3rd, 2010 at 4:59 pm
…and what – 88 comments – and no one has mentioned the opensource model?
autoit 0.127780929673463
February 3rd, 2010 at 5:15 pm
This looks like a case for the Department of Law.
February 3rd, 2010 at 5:29 pm
I think you have it backward. In the absence of any law we can all copy and perform whatever music we want. The ideas of copyrights and patents are in the interest of the public good, but the idea is that by protecting the rights of the artists and inventors to control their works exclusively for a limited time it will spur artists and inventors to create those works.
In the absence of patents every invention needs to be kept private or it will be copied by your competitors without recourse. In the absence of copyright every song can be performed and every performance can be copied without compensating the original artist.
People like to portray this as we the little consumers fighting against the big evil record companies and the artists they have in indentured servitude. But, more importantly, copyright allows individual artists to actually receive any money for the works they create. It would be a lot cheaper for the record companies to hire people and never pay royalties, but copyright makes that sort of arrangement difficult.
February 3rd, 2010 at 5:33 pm
My point is that stealing a copy of an album from an artist is hardly what copyright is designed to protect. Without copyright there would be no reason that Warner Music couldn’t simply release their own copies of any album they wanted, charging whatever they wanted, and never giving the original artist a penny. Yes, it affects bands like U2 and the Beatlesin a big way in that only their record company can release their albums. Warner Music can’t just decide to reissue their own version of all the Beatles albums without compensating Yoko.
February 3rd, 2010 at 6:04 pm
So, the problem with this argument is that the other side of it is wrong. The reason there is intellectual property law is to encourage production. If intellectual property law discourages production, it’s not working.
February 3rd, 2010 at 6:07 pm
Speaking of factually false, people who argue that copyright laws aren’t by definition subsidies are wrong. I don’t understand why anyone thinks that there is a debate here. Does the government intervene in the market or not? If so, it’s a subsidy. If not for intellectual property law, music would be free. Copyrights therefore provide a subsidy to music industries. Again, this is a definitional question. You can raise abstract arguments about how you think artists ought to be subsidized, but don’t pretend that you’re not advocating for massive government intervention in a market that’s functioning better now than it has since the beginnings of recorded music.
February 3rd, 2010 at 6:24 pm
MBunge:
This might speak to changing enforcement and penalties for things still in copyright, but offers no support for the actual changes made to copyright in recent decades, whose main effect has been to extend the time of copyright.
MBunge:
Of course we’re entitled to the work of others. It’s just a matter of time before we’re entitled to it.
It’s a good thing that Leonard Bernstein and Martha Coolidge didn’t have to pay the estate of Shakespeare for their appropriations of “Romeo and Juliet.” And it’s a shame that the law has changed in recent years, such that one would need Disney’s permission to remix and appropriate Disney’s Pinocchio (1940) for a new work, while they neither needed nor obtained permission from Collodi for their appropriation of his work (1883).
February 3rd, 2010 at 6:26 pm
Matt, so how would you recommend a songwriter make money? Using your understanding of economic theory.
Given your marginal cost argument, it means that songwriters can no longer rely on the sales of cds to generate meaningful income, because as soon as they hit a cd ripper, then it’s economically inefficient to continue to sell the cds.
I’ve got some insight here – I’m a beginning touring musician, gigging material while I work on creating my first EP. I also run a podcast where I interview many acoustic songwriters (http://acousticconversations.com/) that are a few steps further along than me. And the scene is generally this:
Write some songs (which is difficult). Spend money on equipment. Gig a lot, for free. And for almost no audience members, so the mailing list doesn’t grow as fast as you’d expect. Spend money to record online. Give the music away for free. Everyone else is too, so music gets ignored. Mailing list doesn’t grow as fast as you’d expect. Spend money to cut a cd. Try and sell it online – everyone else is doing it too, and no one knows how good your cd is because they haven’t bothered to listen to it. Give the cd away for free. Gig. Try and sell the cd. And so on. So, you’ve spent money on equipment, you’ve spent money on recording, you’ve spent money on pressing cds.
Note that the people I’m interviewing are considered excellent songwriters, with a stellar reputation among other songwriters. They are sought after to do cowrites, a couple of them gig regularly in Nashville. But none of them are making a living at it, unless you count a “living” as bouncing from sublet to sublet and having no family. Every “big success” has a huge lucky break as a necessary condition, and that’s not something you can plan on.
February 3rd, 2010 at 6:27 pm
Sonny Bunch should read more. For instance, legal treatises etc. Virtually no one asserts an unqualified right in IP because “people have a right to profit from their labors”. This is nonsense. You’ll note that conservatives actually make FUN of such nonsense when they talk about Marxian “labor theory of value”. But when it comes to IP, conservatives will assert same.
February 3rd, 2010 at 6:36 pm
And by the way, I see a real self-serving contradiction when people simultaneously argue that artists should/will continue to produce music when there is no expectation of monetary reward, just for the love of it, and also that people shouldn’t pay for music simply because the marginal cost of distribution is zero.
People should pay for music because they *should* – because it is the right thing to do. Because it should feel good to do so, and feel bad to not do so. I also agree that musicians will continue to produce music for personal reasons, but if consumers are going to defend their right to take advantage of them just because of economic arguments, then they are lousy people, and shouldn’t we expect better of people?
February 3rd, 2010 at 6:48 pm
Keep paying for music, save MTV cribs!
February 3rd, 2010 at 7:10 pm
Write some songs (which is difficult). Spend money on equipment. Gig a lot, for free. And for almost no audience members, so the mailing list doesn’t grow as fast as you’d expect. Spend money to record online. Give the music away for free. Everyone else is too, so music gets ignored…
Well, you know, you could do some stuff to help your music stand out…like hiring a producer and a mixer to edit the album and make sure it sounds its best. Maybe a graphic designer to come up with some eye-catching art for the CD package and the website. Hell, who knows, maybe even hire a promoter or two to get the word out about your music.
If I remember right, there used to be organizations which, in return for contractual considerations, would take care of such things for musicians. I seem to recall they were called “record companies,” but reading this thread I feel that can’t be correct because every single commenter here seems to be in agreement that “record companies” were an unalloyed force of evil with which the only legitimate comparison would violate Godwin’s Law.
But I speak for all those commenters when I say I have the utmost confidence, Curt, that you’ll figure out a way to make it work somehow. (Unless you want to make a living, which you have no right to expect because of the “zero marginal cost” of producing copies these days.) Good luck!
(FYI, Curt: I’m totally on your side. In case it’s not immediately clear, the above is intended sarcastically and aimed at the general commentariat.)
February 3rd, 2010 at 7:12 pm
If I may interject, I think we need to recognize that the end of being able to charge rent (basically, a premium above the marginal cost of producing a copy of a song or songs – royalties, more or less) on music will not be the end of music. Music existed and was profitable before copyright, and it will exist and be profitable after copyright.
Are we assuming a progression of what is going on right now, where CD albums become unprofitable to produce due to the zero marginal cost of producing electronic copies and near-universal capability to engage in file-sharing?
Sorry to say (particularly since your post mentions that they’re having a hard time with it), but a lot of it is going to involve selling out concerts and clubs, so they can demand bigger cuts from higher ticket prices. Luck is going to be a major factor, along with how capable you are of raising the initial money to get things going. Even then . . . the competition for paying venues will be and is brutal. The only people making any real money will be bands and artists who can sell out venues at high ticket prices and hopefully sell merchandise as well.
I’m hoping we’ll see some patronage as well, which is what sustained musicians before copyright. And if you’re very lucky, you might be able to sell music to movies, television, etc – at least a studio is, in theory, easier to sue for copyright infringement than a bunch of faceless file-sharers.
I sympathize – my best friend wrote for and performed with a metal band for while before they broke up. Getting gigs was rough – I remember that at their usual venue, they had to get a certain number of people to show up and buy tickets, otherwise the owner would kick them out, even if they were going to perform in under an hour.
That seems to be the fate of most performers/writers in the music business, often even when they are good.
I’m actually uncertain of what the effect on the film industry will be when internet connections fast enough to rapidly download and stream entire movies becomes relatively universal. The film industry was definitely alive and thriving before the introduction of the first at-home recordings (VCRs and video cassette tapes in the 1960s), and there were even high-budget films made like War and Peace. My guess is that we’d probably see more merchandising, combined with higher and more quickly rising ticket prices as the studios pressure the theaters with higher prices to show the movies.
I’m most worried about R & D. It doesn’t really have the profit mechanisms that music and film have outside of copyright and patenting.
February 3rd, 2010 at 7:15 pm
I don’t argue that people shouldn’t pay for music, I just point out that in a world where information and networking technology has reduced the marginal cost of producing an electronic copy of zero, the profit is going to have to come from somewhere else – live performances, merchandising, possibly commissions.
I expect and continue to expect artists to perform and write songs in search of making money, as they’ve done for centuries.
February 3rd, 2010 at 7:26 pm
I feel with you guys. Those stupid socialist should just shut up. We are under similar attack for some off our activities. They say our high frequency tradeing adds no value to society and therfore we should stop doing it. Those poor fuckers just dont get it, we do gods work, alocating capital to the most deserving with those activities. Everyone able to read Atlas Shurg knows competition enabling monopolies are good for the citoyens.
February 3rd, 2010 at 7:45 pm
Yes, Lloyd, you’re right. High-frequency trading is exactly analogous to producing and promoting records. What a clever observation!
February 3rd, 2010 at 8:08 pm
True, you popstars are even closer to god according to Mathew than our high frequency traders. But make no mistake, overall we still do gods work much better. Our other activities are much better than the high frequency traders at replacing merit with path dependency through buildup of undeserved reputation.
For to all those who have, more will be given, and they will have an abundance; but from those who have nothing, even what they have will be taken away.
—Matthew 25:29, New Revised Standard Version.
February 3rd, 2010 at 9:39 pm
MBunge @ 23
“…Obviously then, such laws must change as the ability to reproduce such work changes . An understanding of copyrite when you had to physical re-record songs in order to make duplicates cannot be the same understanding applied when pushing a button can create a potentially infinite number of copies almost instantly.”
Movable type printing presses have been around for 500 years
February 3rd, 2010 at 9:49 pm
I’m not Matt, but I’ll take a shot at it:
Songwriters should make money by selling their songwriting services, the same way that barbers make money by selling their haircutting services and house painters make money by selling their house-painting services. “Want a song written? Give me some money and I’ll do it.” Presumably their customer base would consist of (1) performing musicians who can’t write their own songs, and (2) fans who want new songs written so that other musicians can perform them.
Likewise, performing musicians should make money by selling their music-performing services. We already have this model today: it’s called a concert.
February 3rd, 2010 at 11:07 pm
Aqua Regia Says:
February 3rd, 2010 at 3:43 pm
Too bad that the constitution disagrees with you, Gene.
Yes I understand that, which is why I specified “to the end of the general betterment of society” in my orignal post. Which the framers believed would be achieved by conferring limited property rights on the part of the IP producers (authors and inventors), and it is glib and yes egregiously stupid of Yglesias to wave his hands and pretend that that part of the equation does not exist.
February 3rd, 2010 at 11:33 pm
I don’t think Yglesias is pretending it doesn’t exist. He is just acknowledging that it could be in the interests of the betterment of society that music is free, and that if it is, then there is no real reason that we can’t make it free, since the purpose of intellectual property rights is to benefit society, not to benefit the creator.
February 4th, 2010 at 2:18 am
I agree with Matt–there is no, as he said, “transcendent moral right” to extracting rents from consumers by way of a government-created monopoly right. If IPR actually INCREASED innovation and consumer welfare, I’d be in favor of some sort of patent/copyright protection. But there’s a growing body of empirical research that says that IPR likely do the exact opposite in virtually every market (with the possible exception of pharmaceuticals, although there’s reason to be skeptical). That said, I have no problem with artists or inventors or corporations trying to control their material or trade secrets or whatever; that’s their business, not the state’s or the public’s.
As an ideological libertarian (Yay for corporations as legal persons and limited liability!!!), I love it when I’m to the “left” of a bunch of progressives… on property rights, no less.
February 4th, 2010 at 4:25 am
The problem with copyright laws lies in the fact that they all assume that duplication is an expensive process, which is why the publisher needs to be protected. Copyrights aren’t as concerned with the artist as they are with the publisher having a monopoly on the ability to make copies.
And that’s where it all breaks down, of course. The ability to make copies has become so cheap in the age of computers that it’s no longer a viable way of looking at copying. Publishers are no longer threatened by other printing presses but by individuals not interested in profit, only in sharing the information. It’s good for the individual artist, as he or she can now “go busking” online and connect directly to the audience, and the audience can more easily “toss a coin in the hat” by donating directly to the artist. Of course this gets more complicated with movies and similar media, where the number of artist involved increase dramatically (actors, editors, and so on), but there have been minor success stories here as well.
No, the only ones really threatened is the publisher, the guy who owns the printing press since he really isn’t needed any more, and the few artists who have profited from the old system’s promotion to “superstar” status. The vast majority of authors, musicians, songwriters and other artists instead profit from the way publishing is escaping from the cartel of publishers.
So please, spare me discussions of “intellectual property”. It isn’t property, it isn’t something that can be taken, only an agreement restricting who is allowed to make copies.
February 4th, 2010 at 9:09 am
I read the post and some of the comments all of which in my view strikingly miss the point. It’s a bit of both and there are also differences between copyright and patents. Copyright exists for a period of 50 years (sometimes 75) after the author’s death – so it’s not just about rewarding the author but his/her estate as well. That’s really got nothing to do with incentivising people to produce works or art or things like that since copyright is available for anything that is created and only protects the expression of an idea not the idea itself. So, in the case of music (in which copyright subsists) the idea is precisely what Sonny knickers in a Bunch says it is – it is rewarding people for their work – a Lockian theory of the law, if you will.
As for patents, they only last 20 years and yes the purpose of patents is to encourage innovation and to allow society to benefit from the patent. So the deal is that the inventor makes his/her invention public (or “patent” if you will) in exchange for a limited monopoly on the idea – 20 years. very different motivation than for copyright.
However, each one is an intellectual property right which is a “property” right so yes, it is also theft if you steal that property, just as it would be if you stole a car or other physical tangible property. Clear? thought so.
February 4th, 2010 at 10:09 am
Copywrite as it is most commonly used today is a tool of the recording industry to maintain control over a product that they distribute. The artist makes most of their money from performance, not distribution—CD sales, iTunes sales and the like are mostly promotion for tours, fashion lines and other merchandizing. Seriously, if you think that people “stealing” tracks from the internet makes artists lose money, you have a simplistic understanding of the economy of the music industry.
February 4th, 2010 at 10:52 am
John, that unfortunately just is not true. whatever you may think of music studios – and believe me I understand – the deal is essentially two way – the artist assigns the right to make sound recording/publishing rights in the song to the studio – so that they can exploit it. the studio in turn spends the actual money on doing the cd’s, recording, marketing etc. artist gets a cut of the sales of cd-s depending the deal worked out. But the basic fact is that without any copyright protection the artist just wouldn’t factor into the equation at all since the music studio would not have to lay out any money at all for the rights in the first place.
and in any event, if it’s wrong to steal then it’s wrong to steal from the artist and it’s wrong to steal from the record company. just like it’s wrong to steal money from a bank even though they have loads of it and won’t necessarily mean it. selective morality is not morality at all.
February 4th, 2010 at 11:32 am
I agree again and feel empathy with the musicians like homerkh again. Those utilitarian socialists that think laws should be an imperfect a framework implemented with more or less sucess to maximices everyone well being just dont get it. They even think such odd things like that legal ways to screw others are immoral. Some outright anarchists even claim it would be morale to do what one thinks is right when it break the laws in a country. Crazy people.
The point is to maximice the well being of the haves. Just like monarchs had a god given right to their throne in the past, so have the rich and powerfull today. The fact that they are rich proofs that god holds them in high regard. When they stay rich and get richer, that proofs that god agrees with their doing. The poor deserve their fate, its a punishment by god. Our laws are not the mere outcome of negotiations within society between actors of different power. Laws could never be wrong. There is of course a rich peoples expectation to that rule.
February 4th, 2010 at 12:41 pm
it’s been pointed out before, but it seems not to have taken with some folks. The term “intellectual property” is a misnomer. These interests are not property. Copyright and patent are, alike, State created monopolies. If copyright law were to be abolished by statute tomorrow, the takings clause would not be invoked. The existence of copyright is a permissive clause in Article I. Congress need not act in that area.
February 4th, 2010 at 12:59 pm
OK. I happen to be a poet. I don’t make my living as a poet because poetry is produced by and large without compensation, or with compensation so laughably minimal that it barely counts. This does not stop me from “producing.” Nor does it stop thousands of other poets from producing. The same is generally true for other kinds of “creative writers” as well: writers of short stories and novels, for example, typically earn their living by doing something else. The point being that new works will be created with or without financial incentives and the copyright laws that in our corporatocracy are used to protect those incentives. One could even argue that works whose producers simply would not create them without financial incentives are better left uncreated. Perhaps such works—created to make money (a quick buck or bucks in virtual perpetuity)—simply clutter the finite marketplace and crowd out new works generated by creative necessity.
February 4th, 2010 at 1:38 pm
The word “piracy” is a catchy motherhood word that needs to be vigorously debunked. Those who favor a “strong” copyright loudly proclaim how pirates are stealing. Hidden from the public discourse in this assertion is the fact that the content creators are actually stealing form the public by denying the public full use and enjoyment of their legally bought content. For example, you buy a CD and upload it to your computer. Those who favor a strong copyright immediately claim that that is theft and the user should be unceremoniously punished (without due process) in some extreme manner. Exactly how does a technology automatically give the content creator new rights? From the position of the consumer uploading the content is a legitimate fair use of content that you bought. We should not let the content industry be the sole source definition of what is “right” and what is “wrong“. Consumers have rights too!!!
February 4th, 2010 at 2:18 pm
Copyright law is supposed to be good for both consumers and producers. What copyright law is not supposed to protect is distributors. And unfortunately they’re what is being mostly protected today, in the music, literature, and small-software industries.
But the perversion of copyright does not mean it isn’t still critically important. I read enough authors’ blogs to know “nothing bad has happened so far” is blatantly false. Creativity – of word or music or any other form of information – is a process that historically yields at best modest financial returns to the majority of professionals in these fields (the occasional bestseller author or successful rock musician notwithstanding), but copyright law used to provide the middleweights enough income to feed and house themselves, and piracy is destroying that income stream.
Yes, the noncreative middlemen were always screwing artists out of most of their deserved income even as they (properly) worked to generate more of it, and the middlemen are being hurt worse as the trickle dries up for everybody, and no one should cry for then (much), but deserved distaste for the soulless corps (recording studios, big pharma, publishing houses), coupled with the temptation of technology, is wrongly justifying an attitude change that one should not have to pay to access someone else’s creative work.
And that has the danger of restricting the generation of creative information — from music to movies to books to journalism to software — solely to dilettantes.
If we were approaching a society like STTNG, where no one had to work for a living, I wouldn’t worry about creativity. But out here in the 21st century, artists have to eat. And clothe themselves and have somewhere safe to sleep and have access to medical care, and put braces on their children and have access to transportation and good schools. And all that takes money, and if we don’t have a revenue stream for creativity, only dilettantes will produce information.
As a liberal, that scares the fuck out of me, because inherited wealth becoming the sole provider of information cannot avoid becoming a propaganda vehicle for aristocracy.
February 4th, 2010 at 2:28 pm
Consumers have rights too!!!
To quote Bob Weir, a member of a band that made much more off touring and selling merchandise than off their recordings, to the point where they actually encouraged bootleg tapes of their concerts:
“If you want something for nothing then try jerking off”
February 4th, 2010 at 2:43 pm
As a liberal, that scares the fuck out of me, because inherited wealth becoming the sole provider of information cannot avoid becoming a propaganda vehicle for aristocracy.
Rest easy! Up-From-The-Class-Matt Yglesias undoubtedly has your best interests at heart.
February 4th, 2010 at 2:43 pm
Um, that’s “Up From The Working Class.”
February 4th, 2010 at 3:09 pm
Several unrelated points:
* We need to laugh the term “piracy” out of legitimate discourse in these discussions: Neither artists nor distributors are being surrounded, hung from yardarms, and threatened with death if they don’t surrender all their goods. The metaphor was never a good one and should never have been allowed to take hold and frame the debate.
* I submit that there is an important correlation between making copyrights nearly perpetual and consumers’ increasing contempt for the idea of copyright. To say that a copyright owner had 28 years exclusive control over a work from publication with a possible extension of another 28 before the work was elevated into the public domain seemed to me, when I was growing up, as a fair deal, both to the consumer and to the artist. Today’s virtually perpetual copyright, not so much. Is it surprising that consumers would use the means at their disposal to tip the playing field back in their direction in response to the distributors’ raw power plays in 1976 and 1998? Certainly this doesn’t apply to everyone–some people will just take stuff no matter what–but can’t some of the change in attitude toward copyright be attributed to people feeling their sense of fair play has been violated?
* How much piracy happens because there is no clear way for consumers to legitimately pay for the uses they want? Ever make a family video from slides and movie footage in iMovie or something like it that you’re going to burn 20 or 20 copies of for the same family and friend. Want to find out how to license that pop song that captures the era, something you’d be willing to pay a reasonable fee for? Good luck with that? How about for that YouTube video or mashup? Someone like Pogo/Faggotron would just have to flout copyright law until the Pixar folks decide they liked what he’s doing and start distributing his releases on Disney’s own YouTube channel. How much money are artists/distributors leaving on the table by not making this easy for consumers who would like to be honest about it?
* Why should DMCA anti-reverse-engineering provisions apply to works that have already been elevated into the public domain?
February 4th, 2010 at 3:32 pm
This argument about the ‘marginal cost of downloading’ is leaving out something, too, because the total cost of hosting is high enough to hamstring institutions that are *trying* to give away their content:
http://blogs.nature.com/news/thegreatbeyond/2010/01/arxiv_seeks_donations.html
February 4th, 2010 at 3:37 pm
How much piracy happens because there is no clear way for consumers to legitimately pay for the uses they want?
Well, ChiMaxx, you can go to any BitTorrent aggregator/tracker site and see for yourself. As of this writing, there are 8,100 people seeding Lady Gaga’s album “The Fame Monster,” and 1,922 people currently downloading (i.e., stealing) it.
You can decide, or delude, for yourself how many of those people want a copy of the album to use as the soundtrack for their family video.
February 4th, 2010 at 5:37 pm
What a relief…now that no one has to pay for my music anymore, “the man” can’t take a higher percentage of the money than he deserves! I’m free!!! Free to do my own press, club and radio promotion!!! Free to create and pay from my own internet presence!!! Free to front the money for my own recordings!!!
Lord knows.. all those folks working at the indie label were just blood suckers, taking a chunk of MY money!
February 4th, 2010 at 6:33 pm
Thanks for the totally nonresponsive answer.
Of course few of those 1922 people are likely to pay for it. A few may want to listen to it before buying a copy–I know people who did just that during the AudioGalaxy years–and a few may want to sample it to decide whether to buy a copy, but the vast majority are just illegally copying. And illegally copying, while a bad thing in and of itself, is not the moral or practical equivalent of theft; if someone steals the Mona Lisa from the Louvre, it is no longer there for anyone to see; if the Chicago Art Institute starts showing a molecularly perfect copy, the one in the Louvre may well lose some of its value (that’s the point of copyright law), and some Midwesterners who might otherwise have visited Paris may decide not to, but the original has not been stolen–not by any reasonable definition of the word. If you can’t make a good argument for why unlicensed copying is a bad thing and ought to (continue to) be prohibited without falsely equating it with theft, then you will never convince the public, even though the law is on your side.
Even if we agree that those 1922 and 8100 people are miscreants and would not pay an extra licensing fee to use one of Lady Gaga’s songs in their wedding video, that doesn’t suggest that it is at all impossible that some of the 12,304 people who have rated the album on iTunes or the people who have bought some of the 6 million + legitimate copies already sold might be willing to pay an additional licensing fee to legitimately use a song in their wedding video if doing so were as easy as buying the album or its tracks on Amazon or iTunes.
February 4th, 2010 at 7:54 pm
And of course this is ridiculously too late for any meaningful reponse, but the James Gary’s bittorrent comment triggered a realization that there is a huge missing factor in this discussion (as interesting as I find it in general).
Take the figures at face value (they are surely poor yardsticks, but all the same I’m sure there are many copies made). What is the appropriate response?
Enforcement comes at a cost. In the case of virtually free copies that very large numbers of people take as their natural right, it seems clear to me that enforcement by necessity requires drastic and draconian response to be meaningful.
I suspect most folks arguing the moral case conciously or un-conciously assume some clean technical enforcement, but I don’t see that happening. Right now we have RIAA token scare suits, but realistically these do nothing to stop file trading. So, are we really ready for house to house searches? Massive imprisonment and or massive application of fines? At what point does this cost start to outweigh the presumed right of copyright?
February 4th, 2010 at 8:30 pm
Oh, come on. Like I mentioned earlier, movies and music both survived and did reasonably well in an era where there was no money being made on the sale of copies of the film (the film industry before VCRs and music before recordings). They’ll survive a situation where recordings become unprofitable to make again.
February 5th, 2010 at 5:06 pm
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February 6th, 2010 at 11:02 pm
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