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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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January 31, 2005
On Copyright Law and MyopiaEmail This EntryPrint This Entry
Posted by Donna Wentworth

Seth Schoen has a nice exercise in reductio ad absurdum, pointing out that the only argument the Business Software Alliance (BSA) makes in its recent legislative agenda to refute the notion that copying is beneficial to society is that restricting copying will make the software industry larger and more profitable. Says Seth, "The idea that helping a business sector get larger and richer is a primary duty of legislators or of the public is so peculiar that it bears trying to come up with a few parallel arguments."

For example, BSA asserts:

Some have attempted to paint copyright piracy as a victimless crime, arguing that "if I make a copy of a computer program, you still get to keep your copy, and we are both better off." This is hardly the case.

Reducing piracy offers direct benefits. The equation is a basic one: the lower the piracy rate, the larger the IT sector and the greater the benefits.

...so Seth suggests we might also argue:

Some have attempted to paint conjugal sexual intimacy as a victimless crime, arguing that "if you and I have intimate relations, we both derive pleasure and a sense of togetherness, and we are both better off." This is hardly the case.

Reducing sex among committed partners offers direct benefits. The equation is a basic one: the lower the intimacy rate among committed partners, the larger the prostitution sector, and the greater the benefits.

BSA's logic is not unlike that of the National Association of Broadcasters (NAB). As Fred von Lohmann points out in Kill P2P to Save TV?, its brief in MGM v. Grokster suggests that the northern star for copyright law ought to be whether or not it keeps a single group of businesses -- broadcasters -- big and rich. Or more specifically, that one particular business model (adverts) for one particular industry be protected.

Of course, BSA and NAB are doing no more than using the best arguments they have to further their own self interest. But it's important to recognize the arguments for what they are: myopic. You can argue all you want that because intellectual property protection is good, any form that props up your particular business model is also good -- but that doesn't make it so.

Category: Big Thoughts

Brad Hutchings on January 31, 2005 04:25 PM writes...

Seth's oh-so-clever metaphor breaks down in the follow-on sentence. Here is how Seth would rewrite it:

A survey conducted by IDC concluded that a 10-point reduction in the global conjugal sex rate between 2002 and 2006 could deliver 1.5 million new jobs, $64 billion in additional tax revenues, and $400 billion in new economic growth.

In attacking the "big and rich" players in the industry who are members of the BSA, Seth and Donna gloss over all the commercial developers on "the tail" who actually account for a majority of software produced and global revenues. Go to your favorite serial number site and scan through the vast number of small products that find themselves listed there. The intent of such sites is not by any stretch of imagination "fair use" and we all know it. Yet the sites and the people who operate them remain out of legal reach of all but the biggest software developers. There are clearly laws being broken and harm being done, but nobody is culpable.

For crying out loud people. We are talking about software piracy here. The market reality here is that 90% of the products we are talking about were developed and released within the past 5 years, well within even the most radical copyfighter's definition of "limited time". How are copyright holders supposed to conclude anything but that copyfighters are really a bunch of communists from the stance on this? I am really curious.

Permalink to Comment
Rafael Venegas on February 1, 2005 09:03 AM writes...

How are copyright holders supposed to conclude anything but that copyfighters are really a bunch of communists from the stance on this?

Look at it this way. I am a copyright holder. Music. No one respects my rights. The copyright industry, including RIIA members and big music publishers are among the worst violators of my rights. The courts are inoperative: Too much money is required, so only the big guys can go to court and win. This makes me a copyfighter rebel. It is because the copyright system is broke and useless. I'm I a communist because of it? Of course not, but it doesnt matter if we believe in democracy, where a communist has the same rights as a capitalist.

Frankly, I thought MCarthysm had ended.

Permalink to Comment
Brad Hutchings on February 1, 2005 02:21 PM writes...

I think (scroll up and read) I used the "small-c" version of communism. That is a philosophy, not a party affiliation. So your McCarthy insinuation is not particularly thoughtful.

You certainly do have all rights to express whatever point of view you want. If you want to advocate having sex with young goats, by all means, go ahead and advocate. I am simply asking, if the copyfight advocates essentially no IP rights and no ability for rights holders to enforce them, what else are rational observers to conclude except that the movement has a problem with the concept of ownership of expressions of ideas (note that I didn't say "ideas" themselves)? If you were advocating abolition of home ownership, for example, and your ideas gained sufficient political traction, we would be solving the issue with guns.

I would very much like to conclude that this copyfight is something more than "we want the shitty music big media produces for free". But I still see no evidence of that. "Evidence" would be a thoughtful, practical suggestion for how creators get paid, hopefully in the context of a system where creators own their works and there is general respect for that ownership.

Permalink to Comment
Stephen Downes on February 1, 2005 06:01 PM writes...

Brad Hutchings writes, "But I still see no evidence of that. "Evidence" would be a thoughtful, practical suggestion for how creators get paid..."

The presumption is that, without copyright protection (and, one presumes, patents), software authors and other content producers would not be paid. But this presumption is ridiculous.

How is it the case that a chef, who owns the copyright over virtually nothing of what he produces, gets paid? That Roy Kroc, who owned no part of the deign of the hamburger, built an empire based on the design? How does a hockey player, who cannot patent a certain style of play, get paid? No construction worker retains all or part of the rights over the building that he constructs.

Most people don't own lingering rights and control over what they create and sell. In fact, it's only a small number of people, those who work in the (increasingly misnamed) creative arts.

The reason why there is a software market at all is that customers pay for software. In a post-copyright era, customers will continue to pay for software. They will hire programmers, and programmers will write code, because there is a value in this.

What will not be the case is that it will not be possible to prevent other people from writing the same, or very similar, code in other situations. But this, in addition to lowering the cost of code for customers, increases the capacity of software authors, who are now able to freely leverage their own and others' work into increasingly value-added product.

The supposition that there would be less creative work - less software, fewer novels, less music - in the absence of copyright protection is, on analysis, absurb. The point of copyright and similar protections is to ensure that there is not *too much*. It is an artificial scarcity impose in order to increase the returns for content creators.

It is, indeed, ironic to see the supporters of copyright balel their opponents 'communist'. For it is the copyright holders who benefit from, and demend, the intervention of government into the marketplace to enforce a restriction that, aside from promoting the interests of an influential few, serves no good economic purpose.

Permalink to Comment
Brad Hutchings on February 1, 2005 08:00 PM writes...

Stephen, There may not be less code, but there will be different code. For example, if I have to play in an open source world that you describe because there is no copyright protection for my work, I will not play. In my line of work, most of the investment is upfront. Paying customers want something they can plunk down $30 or $40 for and then not enjoy my work without worry for awhile. I am not building a hamburger shop so I can sell them hamburgers. I am building a hamburger that will last them a couple years, and delivering at a price of a family dinner out at Dennys.

Your "influential few" are millions. Read The Long Tail in Wired. All of these works have production costs associated with them that need to be recovered for creators to thrive. In a digital world, a certain level of general respect for copyrights of creators (or their assignees) is needed to such an environment to thrive. You need only examine why businesses adopt DRM (hint: done right enough, it increases sales) to see the necessity of such respect for business to thrive.

By the way, a free culture slash open source world can exist right alongside the world where IP rights are important. Patent law is about the only real "threat" to open source software and read the BSA's agenda on patents. You're on the same side. So given that commercial and free creative works can live side by side, what is the objection to copyright other than wanting the commercial stuff for free?

Permalink to Comment
Marcus Barber on February 1, 2005 08:40 PM writes...

Interesting discussion going here. The issue seems to me over what is fair and reasonable with regard to someone 'making a living'.

Here's a perspective - if the only time you had to pay for something was AFTER a derived benefit had been received (reversing the current model) then it would be in the interest of the majority to ensure they paid in order to keep those people who helped them gain a benefit to create more of the same.

The challenge might be over perceived value. How about we get a few performance guarantees built into the creation - if it doesn't actually DO what it says it will do then NO fee could be requested.

Imagine what that would do for the software industry, upfront development costs or not. Whilst I don't condone piracy, the argument that sharing one program (say a dysfunctional one like those often coming from Redmond) actually hurts them is odd - surely the one negatively impacted is the one who got hold of a program that didn't work - not the one who sold it?

Now as to the RIAA's complaints - the reason file sharing of songs took off so quickly is that for the most part the 'albums' put together and distributed were of overall poor quality, say one or two good songs versus 10 duds. Customers do not want crap and happily pay (as is being proved) for quality and things they want. As soon as the RIAA start a 'quality guarantee' they'll have a right to complain about file sharing harming them.

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