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January 18, 2012

Comments

what I mean is that these folks have no intrinsic property in the work product, at leas once it leaves their typewriter/easel/studio.

Why not? Because you say so? Because technology has provided you with a convenient way to work around whatever right they may claim?

I don't think you've really provided any solid basis for that intuition.

People who make things have a property in their work product.

Is there a more basic economic concept than that?

You have asserted that it doesn't really apply in this situation, but the only reason you've given for why that is so is because of the ease with which folks can work around it.

If you really want to hold the position you are holding, you need to explain why, in principle, people who do creative work are not entitled to a share of the value that their work creates.

And by 'value' I mean 'money'.

And leavened heavily with things like grants, patronage, etc., as the current system is.

??????????

I don't mean to be breaking your chops about this, but I really don't think you have a clear understanding of how most creative workers, for lack of a better term, make their living.

I wonder if what folks think about the situation.

IMVHO copyrighted works should enter the public domain upon the death of the creator.

Maybe before then, even. But as a maximum, one human lifetime seems a long enough period to hold an exclusive right like that.

Brett, way up thread:

"I swear, the way things are going, one of these days I'm going to be walking down the street, humming the theme from an old TV show, and be taken out by a sniper."

This is an amusing image. The suspicion that you may actually believe it to be possible makes me want to steal the idea and make a short movie about just such an occurrence.

I visualize a guy walking down the sidewalk on a busy city street, singing the "The Addams Family" theme just barely under his breath and even absentmindedly putting both hands up in front of himself and punctuating each chorus with the two famous finger snaps in time with the pace of his walking.

As he launches into a verse, a red infrared dot appears on his forehead and he goes down like a water buffalo in the pedestrian crosswalk.

His fellow pedestrians form a little moving eddy around his crumpled body on the pavement but go on about their business, each remembering to stop their own humming.

The sniper turns his attention to the guy across the street who, in a feeble attempt to add some drama to his quotidian life, has the Mission Impossible theme music going at full tilt in his consciousness as he runs for his bus, imaginary (but are they?) assassins hot on his trail.

The bullet strikes him right between the shoulder blades.

As he goes down, his inner theme music (the tape distorting at variable speeds as the life force leaves him) switches to the Mancini "Pink Panther" theme, a more suitable accompaniment to his bungled life.

A third person, a woman, has a stomach upset and decides to cross the street as she spots a Walgreens, cheerfully repeating the old Alka-Seltzer jingle as she trots, holding her hat on, expecting relief ...

.... you get the idea.

I was once at a McCartney concert and during the long "Naaaa, na na na-na na na" coda to "Hey Jude", which the optimistic Beatle had coaxed the tens of thousands of audience members to join in the inevitable sing-along, went into the shrewd business mode that Apple Corps lacked, and suddenly stopped the music and called up the house lights as uniformed security accompanying hundreds of process servers filed through the hall issuing subpoenas to each fan alleging copyright infringement and demanding a small royalty payment.

None of this happens, of course, because the copyright system, faulty as it is, is lubricated enough to prevent this type of petty friction.

Plus, the concert ticket cost $250 bucks as it is, for which my jewelry rattled as I handed it over the counter to the pawnbroker.

But Macca deserved every cent. Except for a few of the Wings songs.

But as a maximum, one human lifetime seems a long enough period to hold an exclusive right like that.

Maybe, but what about this: creator X is 30 years old, married with 2 kids, and supports his family with the income from his copyrighted works. X dies suddenly. Why shouldn't his dependents have the benefit of their provider's work?

Maybe: for the life of the holder, the holder's spouse and children.

but what about this: creator X is 30 years old, married with 2 kids, and supports his family with the income from his copyrighted works.

OK, also a good point.

Long story short, IMO LJ's brass ensemble should have been able to perform the piece.

I think copyright should be for X years, end of story (with X being a number more than 20 and less than 50). And no increasing (or decreasing, hah!) X after the fact Congress, just going forward.

Maybe, but what about this: creator X is 30 years old, married with 2 kids, and supports his family with the income from his copyrighted works.

Should he get life insurance or make other sorts of arrangments like everyone else whose income will go away if he dies? I don't say that to be callous. I'm just wondering why that sort of income should be treated specially. (Maybe there's a really good reason that I'm too dense to figure out for myself.)

Even without copyright, as a supplier of a specific, unique product,, the artist still has the right to restrict who is permitted to distribute copies of specific recordings for sale.

Well, while you retain unique physical possession of the first copy of a particular work, you certainly have the ability to choose who you trust to share it with.

And you could try to bind everyone in that chain of distribution with some kind of contract agreement. It just probably wouldn't work very well. IANAL, but it seems like it would only take one person to forget/ignore the license, and then the work is fully public domain. Forever.

You could sue that one person, if you can find them, but that's the end of your remedy. There's no putting the horse back in the barn.

You and your distributor might well still make some money that way -- based on first-to-market, customer loyalty and so forth -- but realistically, you'd both have to expect that any "exclusivity" guarantee you try to make isn't going to survive very long at all once the work hits even moderately wide distribution.

If you really want to hold the position you are holding, you need to explain why, in principle, people who do creative work are not entitled to a share of the value that their work creates.

It's possible this is really a semantic argument. The word "entitled" (and to only a slightly lesser extent, "deserves") really leap off the page in an unpleasant way for me.

To start with, it's not just that creative workers are not "entitled to a share of the value that their work creates", it's that nobody is.[1]

For example, AFAICT, plumbers aren't "entitled to a share of the value their work creates". If they're "entitled" to anything, it's only to try to negotiate a bargain they think is acceptable, do the work (if they want), and then get paid (if they did).[2]

I mean, silly example, but if a plumber breaks into my apartment while I'm at work, does a lot of valuable stuff -- fixes the leaky faucet, replaces some rusty pipes, etc. -- he still isn't "entitled" to bill me for a dime. I don't actually owe him a thing. Even if I take a nice hot shower and enjoy ["steal"] all that work for free. (Ok, maybe I feel gratitude and offer to pay something anyway later, but that sure as heck isn't the situation evoked by the word "entitled".)

Yes, obviously plumbers need to get paid. As do artists. But there are two parties to every transaction, and both sides need to be able to participate. There's a process of ex ante expectations and negotiations which means something, darn it. Nobody is in general "entitled" to anything just because they put in some work in one place and someone else in some other place benefited.

----
[1]: "Share of the value" is possibly another point of semantic dischord: technically anything from a penny to "100% of everything" is a "share of the value." And, wisely, you don't seem to have any absolute commitment to some particular point on that spectrum. Because picking exactly what point(s) we want is obviously a somewhat pragmatic process: how much, whether it's lump some or proportional, etc. It is all about the negotiation, including fairly arbitrary judgements about exactly how much is "fair".

But that fuzziness and willingness to compromise jars with the far more absolutist mood of the word "entitled". I end up reading this as something like "ENTITLED...[to a somewhat nebulous and ill defined quantity which may or may not even be anything in some circumstances]." It's...confusing.

[2]: If a plumber wants to negotiate some kind of royalty payment agreement based on the future uses of the pipes they fix (or the anticipated quantity of such uses), well bully for them I guess.

And if society wants to implement some kind of generalized legal framework where I have to pay particular plumbers before I have a moral right to use the toilet they worked on? Well, it's possible that would be a decent system with many very fine points to recommend it. But "intuitive" wouldn't be one of them. Nor would "plumbers are 'entitled' to a share of the benefit stream that results from all those flushes" ever be a phrase I anticipate uttering.)

I would say that plumbers absolutely do deserve a share of the value that their work creates.

Do you want running water?

What is the value of running water to you?

Do you have the skill set and/or time and/or interest needed to make water come out of your tap?

If the answers to the above are "yes", "more than what a plumber charges", and "no", then you hire a plumber.

If what the plumber brings to the situation is of less value to you than what the plumber charges, you don't.

If you do hire the plumber, the plumber will deserve, and ought to receive, compensation in return for the value his or her work creates.

Likewise, do you like music / films / photographs / graphic design / name your personal favorite creative work product?

What is the value of those things to you?

And so forth.

People who work are entitled to a share of the value that their work creates. This seems pretty freaking basic to me.

What do you do for a living jack? I'm curious.

if a plumber breaks into my apartment while I'm at work, does a lot of valuable stuff -- fixes the leaky faucet, replaces some rusty pipes, etc. -- he still isn't "entitled" to bill me for a dime.

Correct.

And if I, as a musician, make a sound recording, and sneak into your house while you're away and copy it on to your computer, you don't owe me a dime.

If, however, I make a sound recording and offer it for sale, and you find a way to make a copy of it without paying me, the situation is different.

*If I make something and offer it for sale*, the ex ante assumption is that you will pay for it if you want it. If you take it without paying for it, *you have stolen it*.

The only reason this is question is under discussion, at all, is that technology has made certain kinds of products trivially easy to steal.

The only reason this is question is under discussion, at all, is that technology has made certain kinds of products trivially easy to steal.

"Certain kinds of products" are themselves made possible by technology, including sound recordings. In its purist sense, music is a unique phenomenon in time, and would be impossible to copyright.

That's not saying that I don't think copyright is a good thing (if limited). But the law should reflect the purpose of copyright - to promote the progress of science and useful arts. Copyright wasn't designed to compensate artists except to fulfill this purpose. It's rare that people who do work can live from the very work they did for many years. Most people's work is limited in time - limited to one sale. So copyright is unique in the sense that people earn money over and over again from the exact same product. Even if you lease real property to tenants, you have to maintain it.

It's a good thing for people make a living, and copyright (within limits) is a reasonable way to compensate people for doing valuable things. But the regime is not comparable to manufacturing or services (such as the plumbing example).

What if an out-work musician breaks into my apartment during his day job as a handyman and crosses up my plumbing and electrical to the point where Ripple flows out of the electrical outlets and every time I flush the toilet, Buddy Hackett's muffled voice bleats out Sha-poopy from inside the tank.

What then?

"Certain kinds of products" are themselves made possible by technology, including sound recordings.

Yes indeed, many kinds of things are themselves made possible by technology. Like, this conversation. Like, books, at all. Like, anything that uses wheels. Like, any form of clothing. Like, cooked food.

What we are discussing in this thread is a specific set of technologies, which make a specific set of work products, offered for sale, trivially easy to copy and distribute without paying for them.

In its purist sense, music is a unique phenomenon in time, and would be impossible to copyright.

We aren't discussing things "in their purest sense". We are discussing the copying and redistribution of work products offered for sale, without paying for them.

And no, in its purest sense, music is not a unique phenomenon in time. There's quite a bit more to it than that.

It's a good thing for people make a living, and copyright (within limits) is a reasonable way to compensate people for doing valuable things.

I couldn't have said it better. Not sure there's anything else to say on the topic, frankly.

But the regime is not comparable to manufacturing or services (such as the plumbing example).

It wasn't my example, it was jack's. I'm just working with the material in front of me.

Look, the question everybody appears to be evading here is this:

If somebody makes something and offers it for sale, and you take it without paying for it, is it theft or not?

Does the answer to that question depend on how easy it is to take it without paying for it?

If so, why?

Talking about how, in some imaginary universe, nobody would even offer those things for sale, we'd all make our money through patronage and grants, doesn't fly.

We live in the world we actually live in, and in the world we actually live in, people make films, sound recordings, books, and any number of other works, and offer them for sale. And other people take them without paying for them.

I'm still waiting for somebody to explain to me in anything like a convincing way why that is anything other than stealing.

And no, I don't think we should go throwing every college kid who shares mp3's with their buddies in jail.

But that doesn't change the basic nature of what's going on.

In my own personal imaginary world, we are all ruled by the just humane and dope-slap-bestowing hand of benevolent savant and beatific court jester, Countme-in.

I for one welcome our gonzo buddha overlord.

If somebody makes something and offers it for sale, and you take it without paying for it, is it theft or not?

Does the answer to that question depend on how easy it is to take it without paying for it?

If so, why?

Well, musicians aren't making an object and offering it for sale, as when a tailor makes a coat and sells it to someone. When the latter thing happens, a person buys a coat, the tailor gets some money, and that's the end of it. The tailor doesn't get more money when a third party sees the coat, thinks it's cool and makes one just like it. In order to make continuing returns from that one project, the tailor has to invest his money.

A recording artist makes something, betting on the fact that lots of people will like it and buy copies of it. He can then make more and more money for one work product forever. Then, when people are tired of hearing that version, another artist pays him to make a different version and he gets more money. Then he gets even more when people buy the new version. Isn't that the way it works?

I'm not opposed to the system. I'm just saying that intellectual property is really not at all like other property, so the idea of "stealing" isn't really the same either. At least, it shouldn't be surprising that people who are not in the business don't see it as stealing. And intellectual property rights seem to be becoming less enforceable. Anytime laws are almost unenforceable, they are likely to be abused and enforced arbitrarily. I don't think it's a bad idea to come up with other ways of compensating people, just in case this model falls apart. It worked well in the music business for a century, but it may not last forever.

There are other ways that people make money doing creative things. For example, NPR pays its staff by asking for people to pay for what they hear, getting grants and selling limited advertising. It's not very reliable, but it is a system that rewards people's work. I don't suggest that the music industry adopt this particular model, but a lot of people pay the bills by working for NPR.

Because fewer people in this country "make things" and sell objects for money, it's becoming more important for people who are creative to come up with new ways of figuring out how to spread wealth to people who do good work of all kinds. I'm not sure it's a good idea to be loyal to a system that isn't necessarily working well anymore.

Again, the purpose of copyright has never been to remunerate artists for life, or to punish people who want to enjoy art and science for free. It was to allow a short period of time for artists and scientists to make money from something so that they would have an incentive to do more stuff.


"It was to allow a short* period of time for artists and scientists to make money from something so that they would have an incentive to do more stuff."

Yes, because it was clear that selling the first copy for enough money to make a living was unlikely or, worse, someone would have to pay a lot for the first copy even if it never sold another. Broad distribution with copyright protection and, later, revenue sharing was the financial solution to the very problem being described.

Actually, those terrible labels/studios used to take advantage of artists by paying them a fixed fee up front for the rights and then taking the risk on distribution success. Song writing was a job. Piecework at that. The actual artists didn't care a lot about copyright infringement in that system.

Then United Artists, mega artists, and indie labels decided that revenue sharing was a better solution. Now, if they want, all of that can be marketed through the internet and the artist doesn't have to share with anyone. Except the most consistent way to have a successful song/movie is still to have the capital to market it broadly, which they get from the labels and studios.

So, (despite being able to make copies easier and faster), the problem being addressed is no different than the original problem. Copying was too easy then. So they made a law. Funny, thats probably why they called it copy rights.

All this talk about the technology making it impossible to protect the rights of artists IS just like we heard when cassettes and then CD's were introduced. However, it never stopped the police from raiding high volume bootleg makers on both media.

I just don't understand the whole "we should just give up because the technology makes it so difficult". Hogwash, the technology that allows it can also stop mass illegal distribution.

*(Although the "short" here is probably not accurate, I suspect the first person to decide on 20 years for a drug thought of it as a long time).


All this talk about the technology making it impossible to protect the rights of artists IS just like we heard when cassettes and then CD's were introduced. However, it never stopped the police from raiding high volume bootleg makers on both media.

Our police don't do very effective raids in China.

I just don't understand the whole "we should just give up because the technology makes it so difficult". Hogwash, the technology that allows it can also stop mass illegal distribution.

I'm pretty sure you're incorrect about this, but a man can certainly dream.

If, however, I make a sound recording and offer it for sale, and you find a way to make a copy of it without paying me, the situation is different.

Now that's a much stronger statement than I was responding to. I feel like we're going in circles.

You're now implicitly assuming not just an entitlement to "a share of the value that their work creates", but also the existence of (moral entitlement to?) a particular legal framework which allows you to productize recordings by prohibiting me from making a copy.

I mean, the idea that everyone should get paid, one way or another for the work they do? I can basically buy that. I was offering some quibbles with the strong form of the "entitled" formulation, pointing out that like every other kind of work, whether you're actually entitled still depends on what kind of agreement you've made with the people you're doing the work for. (The point being that in the case of the arts, the 'client' is often 'all humanity', so it's more efficient to have some kind of standing agreement in place -- but that is not to be confused with artists simply being 'entitled' in principle with no background agreement being necessary at all.) But, basically, yeah, people should get paid for doing good stuff.

But the further idea that the only possible moral system is one in which the payment occurs through the granting of a "right" to prevent others from manufacturing their own copies? I don't see how that is even remotely defensible.

Does the answer to that question depend on how easy it is to take it without paying for it?

Yes, because you don't really mean "how easy is it to take it without paying for it" you mean "how easy is it to manufacture an infinite number of copies so everyone in the world can have one". The change in formulation should make the reasoning obvious.

Saying that the only moral system for rewarding creators is one in which you have a monopoly right which allows you to arbitrarily prevent a small piece of wealth from existing for the billions of people who value your work below the monopoly price you want to set is ludicrous on its face.

Whether granting such a monopoly is even moral (or at least, efficient) in the first place, given the circumstances, is actually an open question in my mind. To further imply that it's the only moral way to reward creators beggars belief.

musicians aren't making an object and offering it for sale

Seriously, WTF? They're not?

I have some friends who will be very very surprised to hear this news.

The difference between a sound recording and a coat is that the former is easier to physically reproduce.

Which is what makes it easier to take without paying for it.

I'm just saying that intellectual property is really not at all like other property

Yes, that is correct. It is generally less tangible.

That is what makes it easier to take without compensating the creator.

And that is why we have copyright. To secure the exclusive right to IP and creative work to the authors, for a limited time, so that there will be some incentive for them to DO THE WORK.

so the idea of "stealing" isn't really the same either.

Why not?

I made something and offered it for sale. You took it without paying for it.

Why is that not stealing? Because it was easy for you to get away with?

At least, it shouldn't be surprising that people who are not in the business don't see it as stealing.

That's an entirely different issue.

And intellectual property rights seem to be becoming less enforceable. Anytime laws are almost unenforceable, they are likely to be abused and enforced arbitrarily. I don't think it's a bad idea to come up with other ways of compensating people, just in case this model falls apart. It worked well in the music business for a century, but it may not last forever.

I have no argument whatsoever with anything in this last paragraph.

Technology has made copyright very difficult to enforce for any product that can be digitized. That's a problem, because it makes copyright very hard to enforce.

I'm completely open to alternate ways to ensure that creative workers get paid for their work.

But none of that - absolutely none of that - makes it any less true that authors of creative content earn and deserve a share of the revenue that their work generates.

If somebody makes something and offers it for sale, and you take it without paying for it, it's stealing.

As a practical matter, nobody really cares if people swap mp3's with their friends. In general, artists, musical artists at least, encourage that, because it increases their visibility and helps enlarge their market.

People generating revenue for themselves by making copyrighted material available for little or no cost, and not kicking any of the revenue back to the authors, is a different story.

But if you are listening to a sound recording, you are enjoying the work product of a musician, and most likely that musician created it with the intent of getting paid for doing so.

Also: CCDG's summary of the history of the recording industry is IMO right on. Great summary, and thanks.

To further imply that it's the only moral way to reward creators beggars belief.

I believe the man you are talking to is made of straw.

I don't really care what legal, economic, or other structures we create to ensure that folks get paid for their work.

For creative workers, we current use copyright. In general, it's effective. So, there's a point in favor of copyright.

It's not so effective for any work products that can be digitized. So, we have a problem.

Is there a better idea on the table? No, not really. Not yet. And no, grants and prizes are not going to get the job done. And no, a tax is not bloody likely. Seriously, a tax? What country do you live in?

But folks will figure something out, over time.

The only points I've attempted to make throughout this discussion are the following:

CCDG has a point when he says that reproducing people's work without their permission and without paying them is stealing.

Why? Because, to use your language, the 'bargain' that the folks who created the work are offering is, if you want the work, you need to pay me for it. If you don't agree, you don't enter into the bargain. Just taking the work and telling them to piss off is what is not defensible.

Why do they have any right to dictate any terms at all in this 'bargain'? Because they created the work product. They recorded the music, or wrote the song, or took the picture, or make the film.

The point you and I seem to be unable to come to any kind of agreement about is whether folks who produce work that other folks want have any right, whatsoever, to receive compensation for their work.

If we can't agree on that basic point, there really is no point in pursuing this any further. We're living on different planets.

Enjoy your free mp3's.

Yes, because you don't really mean "how easy is it to take it without paying for it" you mean "how easy is it to manufacture an infinite number of copies so everyone in the world can have one".

As an aside, don't f***king tell me what I really mean.

I really mean exactly what I said.

"Changing the formulation" into something you'd prefer to respond to is horsesh*t.

My guess is that we're done here.

Thanks all!

sapient: At least, it shouldn't be surprising that people who are not in the business don't see it as stealing.

russell: That's an entirely different issue.

No, it's really not a different issue. It is THE issue. Because "intellectual property" is a construct (a legal fiction, actually) that people have to buy into in order for it to work throughout society. (Actually, it's the same with all property, but most people understand and accept the concept of tangible property rights.)

As to how intellectual property is a different concept than tangible property: as I tried to explain, you cannot make infinite copies of a tangible object. I sell you an object that I made; I don't have it anymore. If I sell you a license to use it, I don't have it while you're using it. I sell you a song that I wrote; unless I sell you the rights along with the song, I can sell that song to a gazillion other people too. And I still have it.

I'm not talking about "fairness." If you've compensated a hundred times already, a lot of people don't see why you need to be compensated thousands of times more. Those people will not be convinced out of the kindness of their heart - they just don't think you need a million times more money for that one thing. And they have an intellectual point: how can they be stealing something you still have, something for which you've already made plenty of money. In addition, one can go to a party where there are lots of people and listen to music and all can enjoy one copy to the same extent as one person does. The only reason to "buy" music is for convenience. It's not just intangible like money or stocks, which are limited. It's very different from any other kind of property.

I understand why musicians and others who make money from copyrighted work don't want to lose it. I myself think it's been a reasonably good system for 100 years. But I don't think anyone does themself any favor by insisting that intellectual property is just like tangible property except that it's easier to steal. It's not like tangible property at all.

It is generally less tangible.

Most often, it is intangible. So are services, in many instances. The idea that someone who produces an intangible product shouldn't have the right to own and be compensated for what he/she produces is just--I'm struggling for an adjective here--wrong on every possible level. I can't believe this conversation has lasted this long.

I can't believe this conversation has lasted this long.

I think because the conversation involves the method and extent of compensation, not that compensation should = $0 (though I haven't read all the comments and so maybe someone is arguing that position).

I really mean exactly what I said.

Alright. But it makes no sense. Downloading an MP3 isn't "taking" anything from you. It's copying bits.

It might result in fewer sales and less money in your pocket (in some circumstances). But that's not the same as "stealing".

If you're really insisting on taking the "downloading is theft" line, than yeah, we're probably done here.

But, just in case, I'll give this answer another try:

If somebody makes something and offers it for sale, and you take it without paying for it, is it theft or not?

It depends.

If the something is a loaf of bread, and somebody takes it, then clearly yes.

But on the other end of the spectrum, suppose I own an old office building in the middle of a major city. There's a huge blank wall, facing a well traveled street, and so I put in a lot of hard, creative, work to paint a mural. Everyone says it's really gorgeous and inspiring, and people who walk by obviously take a lot of pleasure in viewing it, photographing it, etc.

So I decide to set up a stand on the sidewalk, and tell people that they can't look in the building's direction unless they pay me a certain amount of money.

I have certainly "made something and offered it for sale", as you put it. Is someone who walks by and looks at my wall without paying therefore "stealing" my product?

I don't know about you, but I'd say no.

To start with, there's no legal basis. The government is not in the practice of handing out "lookrights" that would grant me the privilege of deciding which people are and are not allowed to look at my building.

And then, even if they did, calling an unauthorized look a "theft" would seem to be stretching it. Certainly, as far as the law would be concerned, this would only be something like "unauthorized looking", not "theft".

Does the answer to that question depend on how easy it is to take it without paying for it?

To continue the example above, looking at things that are in the public view is a very easy thing to do. It's also a very useful thing to do. Our views of whether people who stole a glance were actually thieves would certainly take both into account.

In fact, it's such an easy and useful thing to do, we might want to ask the question of whether a legal system prohibiting looking at otherwise publicly visible things - "lookright" - was particularly moral or workable in the first place.

But how else would mural painters get paid for the obviously valuable work they do, you ask? Well, I don't know exactly. But I think that if there are ways to make it happen without restricting the direction my eyes point, maybe we should consider looking for them.

I believe the man you are talking to is made of straw.

Not as far as I can tell. For example, you responded to the plumber example (work performed without a prior arrangement) with a statement about putting mp3s on my computer (i.e., a statement about our world, one in which copyright -- the prior arrangement -- exists).

That's typical of most of your responses as far as I can tell. You're implicitly rejecting premises you regard as merely unlikely or impractical, while in the course of making a point about what you think is fundamentally moral.

The effect is that all your arguments about how to compensate musicians or others morally are premised on your own personal assumption that copyright is the only possible practical system. All this muddling of premises and practical vs. moral, is, at the very least, making it very difficult to have a conversation. If you're really prepared to allow that there might be other moral systems to reward creators, if only in theory, then I really wish you'd do so when responding to statements where that's the premise.

In light of Posted by: Ugh | January 26, 2012 at 10:28 AM, I'd like to say I'm very happy that this conversation has gone on as long as it has, because it's great, thought-provoking reading, which is what blogs are, in very large part, about.

Also, since we're not actually making policy here, there's not much to get upset about (just in case anyone was actually upset by any of this, and not that I don't get upset myself at times when I shouldn't).

Because "intellectual property" is a construct (a legal fiction, actually) that people have to buy into in order for it to work throughout society.

It's a social construct. It's an understanding that a society has about who has the right of ownership of a particular work.

And, as you note, so are many other understandings of who owns what.

Ownership of real property: social construct. Not all societies share it, certainly not in the ways that we understand it.

Another popular social construct: the idea that you have to have special training and a license to practice certain professions. That's a rent, dude, no matter how justifiable.

All social constructs, embodied in and enforced by law.

Let's put them all on the table, why don't we?

If you've compensated a hundred times already, a lot of people don't see why you need to be compensated thousands of times more.

Imagine that I own a piece of land and I rent it out to a local farmer to raise hay on. How many years can I do this before I've been compensated enough?

Imagine that I build a factory to make machine screws. Once I'm tooled up the incremental cost of making N thousand more screws is minimal. After I recoup the cost of building my factory, my costs are basically maintenance, raw material, and paying some folks to run the machines. My margin goes way up, I'm making lots of money. After how many thousands of screws should I reduce my price to just cover my cost, because I've been "compensated enough"?

If I record a song that 100 million people want, why is it legitimate for the first 100,000 of them to pay me, but the next 99.9 million not?

Seriously, I'm not sure the idea that "you've made enough money out of this, now you should give it away" is workable. It's certainly not workable in any other environment, why should it be for digital products?

How many times do I get paid for the same work before I've made "enough"? Who gets to decide that?

What about people whose product is, basically, their expertise? The incremental level of effort they have to expend the 1,000th time they, frex, advise someone on how to set up a will is minimal. Why should they keep getting paid for that, or at least paid the same amount? Why shouldn't their fees go down on a sliding scale commensurate with the cost, to them, of providing their services?

And not for nothing, but do you have any idea how many records get made in a year? Do you have any idea how many of those make money, for anyone?

There's a non-trivial capital structure behind the production and distribution of recorded music. The big hits go a long way to funding that, for everyone. They help make the odd little indie stuff that only sell 10,000 copies possible.

That, BTW, is something that is also changing, because it's technically less capital-intensive to make and distribute music. But it's still a factor.

When records were physical objects, there was no question about any of this. If you wanted the music, you bought the physical record.

The difference now is the convenience of reproduction.

As a practical matter, it makes copyright difficult to enforce, so maybe we need a new approach.

But "sorry, you've made enough money off that, you need to give it away now"? When you're ready to apply that to any other kind of way of making money, we can talk.

I'm open to finding other ways to make sure creative workers get paid. I'm not open to the idea that folks should be able to take and use their work, for free, just because they can.

Let's put them all on the table, why don't we?

Aren't they already?

Aren't they already?

Sure jack, I am going to come over to your house, eat your food, and drive away in your car. Because the idea of ownership of tangible private property is on the table.

Then, I'm going to buy a bunch of law books, hang my shingle, and start working as an attorney, because the idea of professional licensing is on the table.

Sure jack, I am going to come over to your house, eat your food, and drive away in your car. Because the idea of ownership of tangible private property is on the table.

Then, I'm going to buy a bunch of law books, hang my shingle, and start working as an attorney, because the idea of professional licensing is on the table.

Which one of us is unclear on what "on the table" means? I'm asking. It could be me.

I thought tables were where discussions took place. But I guess it is also the place where you might eat my food.

It could be me.

I think it's you.

How many folks on this thread have suggested revisiting the social construct of private property ownership?

How many have suggested revisiting the social construct of professional licensing?

How many have suggested revisiting the social construct of copyright?

One and only one of these numbers is non-zero.

Imagine that I own a piece of land and I rent it out to a local farmer to raise hay on. How many years can I do this before I've been compensated enough?

Not the same thing. Local farmer pays you and raises hay. You can't use the same land to raise hay; other local farmers can't use the same land to raise hay. It's limited. Your scheme might last through your lifetime but you can't copy your income from it billions of times.

[re: screw factory] my costs are basically maintenance, raw material, and paying some folks to run the machines.

Maintening machinery, purchasing raw material, managing and paying folks, etc. - those are absolutely not trivial costs, and require continuing work.

What about people whose product is, basically, their expertise? The incremental level of effort they have to expend the 1,000th time they, frex, advise someone on how to set up a will is minimal. Why should they keep getting paid for that, or at least paid the same amount? Why shouldn't their fees go down on a sliding scale commensurate with the cost, to them, of providing their services?

They may know how to do it, but they still have to show up and do it. And they have to figure out whether the situation they're looking at is different from the last one or they'll get sued.

All of the above examples involve people actually giving up something (the landowner can't lease or sell the same ground; the factory owner has to continue to buy raw material, pay management and workers, produce, market, and transport screws; the lawyer has to show up, talk to clients, make assessments and produce a document.) In contrast, the recording artist puts his work out there, goes to the beach, and forever collects a check.

Look, I pay for all of the music I carry around on my iPod. I buy CD's or use iTunes. I don't mind doing it, and I don't begrudge anyone their money. I can afford it. I subscribe to the New York Times, even though it's easy to get behind their firewall. I respect intellectual property rights because it's the current way we compensate some people for valuable things they do, and I'm not opposed to people being paid, especially since I can afford to buy these things.

My objection to the current regime is that the duration of copyright is way too long, and uneven enforcement is likely to punish the people who least deserve it. Also, I think there's more room for "fair use" in the sense that intellectual property has always been widely available to people who don't pay for it if they've had access to a good library, or have friends who share books, records, etc. Nobody ever called it stealing to enjoy reading somebody else's book, so "enjoying intellectual property without paying for it" has never been the issue.

Um. That's because it's a thread about a copyright related law...

Or seems to be now. It (was) also about free speech. You'll note that back then, there was a lot of discussion about revisiting social constructs/contracts related to that (or what they really mean in the first place).

Ditto the social constructs known as corporations. Lots of talk about what they are and what limits they should have. (Which certainly does touch on certain other kinds of property ownership.)

And I don't know about Obsidian Wings per se, but I'm pretty sure there are healthy discussions to be found from time to time and place to place on matters like private property and professional licensing.

You'll forgive me if I don't share your view that copyright is somehow being unfairly persecuted.

Nobody ever called it stealing to enjoy reading somebody else's book, so "enjoying intellectual property without paying for it" has never been the issue.

Good point.

How many have suggested revisiting the social construct of professional licensing?

Well, although that's not the subject of this thread, I'd be happy to revisit it. Licensing is a regulatory system. Although it creates a privilege to engage in a certain profession, it also imposes standards. I don't know that copyright in any way regulates artists.

One and only one of these numbers is non-zero.

But they don't have to be. We could have any one of those discussions. Of course, there might be less reason to, because technology hasn't changed the nature of those things nearly as much. But they're "on the table" - as in not verboten.

If we think of copyright as something that is useful, rather than something that enforces certain notions of morality and fairness (even if it does enforce those notions), how do we best deal with new technology that makes it less useful, even if only in certain areas?

Copywriting NFL broadcasts doesn't seem to be as much of an issue simply because no one wants copies of games to watch over and over again, potentially over the course of decades, whenever the mood strikes, as people do with music and, to some extent, movies.

It's a bit paradoxical, that the value of a copy of piece of music is so great, in that it can be enjoyed countless times by the same person, but that that is also what makes people want to copy it for free.

Myself, I have no problem paying a nominal fee for a digital copy of a song or an album. I'd just like to realize some of the savings in the distribution costs at the consumer's end of the deal. And eff the middle man.

Well, although that's not the subject of this thread, I'd be happy to revisit it.

Me too. And there are some important issues to discuss there.

To the extent that it's maybe not quite as popular as copyright, it's because there really are exogenous technological factors driving the urgency of the conversation.

If someone invented a device tomorrow that could, say, easily and reliably download all the expertise needed to be a doctor or a lawyer or whatever into your brain instantly, I think the urgency of the conversation about professional licensing might increase considerably.

Somewhat apropos post which happened to pop up in the old feed reader just now:

http://www.antipope.org/charlie/blog-static/2012/01/hello-my-name-is-the-problem-o.html

Puts things in perspective a little bit. The world really does change radically, all the time. And reality doesn't usually pay much attention to our own individual human difficulties in imagining how things could be -- will be -- completely different one day.

If someone invented a device tomorrow that could, say, easily and reliably download all the expertise needed to be a doctor or a lawyer or whatever into your brain instantly, I think the urgency of the conversation about professional licensing might increase considerably.

No, it'd go away instantly. I mean, if everyone could instantly become insanely competent as a physician, why do licensing?

But that's kind of a diversion; there's no such thing in the remotely near future.

I think russell's issue isn't so much what could change a lot in a few decades so much as the reality of right-this-second. Be here now, man.

the recording artist puts his work out there, goes to the beach, and forever collects a check.

Yes, that indeed is the life of the recording artist.

What is your feeling about people who live off of investment income? Hit a couple of home runs, get to some kind of critical financial mass, and you're done, right? Sit on the beach and cash the checks.

Shouldn't there be some kind of limit on how much money someone can receive for a given level of capital investment?

Or is the counter-argument that the investor can't then use the capital for something else?

Sound recordings, movies, photographs, etc., do not grow on trees. They are *created*, most often at significant if not enormous expense and effort, by people. I assure you that those people could have done many, many other things with their money and time.

Among the reasons those people spend their time, effort, and money making those products is their expectation that they will get paid for doing so. That's their side of the 'bargain', to use jack's language.

The *vast majority* of creative products made generate little or no revenue for the creator. Quite often they are a net loss. And creating all of those non-renumerative works is another part of the cost, to the artist, of creating the ones that actually make any money, at all.

A lot of those works, BTW, are quite good, they just don't make money for one reason or another. I can guarantee that you have some of those works on your ipod, or on your computer, or hanging on your wall. Consider them a gift, from the artist, to you. Because whatever you paid for them did not cover the cost, to the creator, of making them.

The occasional successful work is what makes all of the many years of freaking unending labor that is required to be reasonably good at any kind of creative effort worth doing.

And the folks who are extremely successful are, I can assure you, not sitting on the beach cashing checks. They are working their freaking @sses off.

Creative work is an extremely high-risk entrepreneurial pursuit. It's f**king hard work, and there are just not that many people that are up for the level of effort and risk involved. And very few of the folks who pursue it sit around on the beach, living large off of the 99 cents you paid for their song on iTunes.

By "very few" I mean statistical noise. Absolute outliers.

As an aside, among the things I take away from this discussion is that none of the folks arguing for getting rid of copyright have any freaking idea how creative industries function. Just for the record.

I agree that current copyright law is crappy, and I agree that technology is making copyright as we currently understand it very problematic. I'm fine with the idea that we need to find better ways for folks to get paid for creative work.

What I by god will not accept is that folks who spend their freaking lives doing the unending hard work involved in doing creative work for a living are not entitled to a share of the revenue their work generates.

All of the talk of social constructs, legal fictions, etc is all very entertaining.

But folks who use other people's work - work created and offered for sale in the marketplace - without paying for it are stealing from them.

If you want to drop an mp3 you got from your buddy on your ipod, or print a picture you grabbed off the web and hang it in your cubicle, or watch a movie you grabbed somewhere on your computer, frankly nobody is going to give a crap. As a practical matter.

But the Pirate Bays of the world are making money - sometimes lots of money - off of other people's work and putting it in their own pockets.

People do, in fact, give a crap about that. It deprives hard-working people of revenue that they have earned and deserve, and makes it that much less feasible for creative folks to earn a living from their work.

Enjoy your free mp3's y'all. Next time you see a musician, or actor, or film-maker, or photographer, or what have you, do me a favor and at least buy them a sandwich.

It's the least you can do.

I doubt I have anything further of any use to offer to this discussion, so I'ma check out. See you on the flip side.

russell: If I record a song that 100 million people want, why is it legitimate for the first 100,000 of them to pay me, but the next 99.9 million not?

Seriously, I'm not sure the idea that "you've made enough money out of this, now you should give it away" is workable.

Well, that's sort of the system we have now, except that it's time limited (in theory) not copy-limited. There are differences, e.g., someone who can sell 100 million copies within the copyright time limit will receive greater compensation than someone who can only sell that many copies over a longer time frame, but once the time is up, we are essentially saying "you've made enough money out of this, now you should give it away," no?

I'd just like to realize some of the savings in the distribution costs at the consumer's end of the deal.

A 45 RPM record ca. 1970 cost about 75 cents. You got an A side and B side, so two songs.

That's about $4 in 2012 money. iTunes downloads are generally a buck each.

Plus nowadays you can make the purchase at 2AM in your pajamas.

So, mission accomplished.

but once the time is up, we are essentially saying "you've made enough money out of this, now you should give it away," no?

No, we're saying the time period during which your monopoly lasts is over. It has nothing to do with how much money you make.

And if you sell 100 million copies in your time frame, you get paid for them.

Seriously, it's hard for me to hear this discussion as anything other than "I should have it for free if I want to, because I can".

Apply it to your own way of making a living and see how it suits you.

And I'm seriously checking out of this discussion before I have to go find a baby to punch.

Thanks.

But folks who use other people's work - work created and offered for sale in the marketplace - without paying for it are stealing from them.

I don't know why you're not willing to address the implications of counterfactuals like my post at 10:37 ('lookright'), or the 'reciperight' one, etc., etc.

But I don't see anywhere that you have. Blind assertions like the above are going to be pretty unconvincing until you do.

russell: What about people whose product is, basically, their expertise? The incremental level of effort they have to expend the 1,000th time they, frex, advise someone on how to set up a will is minimal. Why should they keep getting paid for that, or at least paid the same amount?

This brings to mind the joke about the plumber who gives the customer a bill for $75.00 for tightening a bolt. The angry customer demands an itemized bill. The bill reads: Bolt tightening, $0.25. Knowing which bolt to tighten: $74.75.

[admission: I have been reading this thread sporadically, so I no doubt have missed some things. I appreciate the conversation and just want to say "thank you" to russell, jack lecou and others.]

Seriously, it's hard for me to hear this discussion as anything other than "I should have it for free if I want to, because I can".

I appreciate that that's what you're hearing.

I assure you, it's not what anyone else is saying. But it's very hard to say things in enough different ways that it will get through.

Good luck with the baby punching. ;-)

...someone who can sell 100 million copies within the copyright time limit will receive greater compensation than someone who can only sell that many copies over a longer time frame, but once the time is up, we are essentially saying "you've made enough money out of this, now you should give it away," no?

This is an interesting point, at least for me, because I was thinking earier about artists who create material that is groundbreaking and ahead of its time, see almost no revenue from it, but eventually create great value for generations to come. Van Gogh comes to mind.

I'm sure russell, being a jazz enthusiast, can attest to the existence of extremely talented musicians, in both the technical and creative senses, who will never sell enough of their music to match, let's say, Justin Bieber's earnings to date. (The commercial market place, for them, is a rocky place where their seed can find no purchase.) Years later, someone picks up a hook or an interesting rhythm some relatively obscure jazz artist made up, puts in in a pop song and makes millions.

I'm not too sure where to go with this in terms of copyright, but I thought it was interesting.

russell: No, we're saying the time period during which your monopoly lasts is over. It has nothing to do with how much money you make.

Well neither does the number of copies, unless you're assuming everyone has to sell their songs (for example) for exactly the same price.

And the "monopoly" is part of what people on this thread object to, or at least the extent of it, but even you agree the monopoly should be limited. So part of the question is: how? A time limit probably makes the most sense for a variety of reasons, ISTM, but that doesn't mean a "sold-copy" limit wouldn't be viable.

I think russell's issue isn't so much what could change a lot in a few decades so much as the reality of right-this-second.

Thank you.

Slarti: I think russell's issue isn't so much what could change a lot in a few decades so much as the reality of right-this-second. Be here now, man.

I think that's at least part of what's animating people arguing with russell, the current copyright regime (at least in the US, but AFAIK most other places in the developed world) is horribly oppressive, and so you get this backlash of people questioning the foundation of copyright, whereas if copyrights lasted 25 years, we wouldn't be having this argument.

It's almost like Roe v. Wade (I kid! I kid!)

I think that's at least part of what's animating people arguing with russell, the current copyright regime (at least in the US, but AFAIK most other places in the developed world) is horribly oppressive

Yes, I for one am certainly talking about the here and now.

It is, after all, in the here-and-now that prohibitions on non-commercial sharing are constituting a huge (and growing) dead-weight loss to society as a whole.

And, the point that got me into the latter half in the first place, it's certainly relevant to the here-and-now to observe that copyright is indeed not a "natural right", just a scheme (arguably the only practical one, but still) we currently use to accomplish a particular purpose.

(Which further implies that controlling copying and sharing is not in-and-of-itself morally obligatory, just a (possibly) necessary cost we'll have to live with. Which some took objection to.)

I for one am certainly talking about the here and now.

Except when you're talking about instantly acquiring all the skills of a skilled doctor or lawyer. Or when you're talking about some hypothetical system that might more equitably, in some notionally objective way, reallocate cash flow to artists from consumers.

From this reader's point of view, jack, you're talking about many, many things outside of our current reality. It's fine that you have issues with the way copyright works currently, but a complete toss-out of the current rules is NOT in the works, here and now.

Sort of OT: Spider Robinson wrote a short story years ago regarding the necessity of limiting copyright, but not of doing away with it altogether.

Except when you're talking about instantly acquiring all the skills of a skilled doctor or lawyer.

No, that was an analogy to the current state of affairs re: copyright, where technology change has similarly spiked need/interest to discuss reforms.

It's fine that you have issues with the way copyright works currently, but a complete toss-out of the current rules is NOT in the works, here and now.

On the level of actual proposals, I have nowhere suggested tossing out the current rules entirely. Only some (relatively) small modifications to adjust them to a changing reality.

OTOH, I have presented a lot of counterfactuals, to illustrate the problems with some of the flawed arguments some have made about why we have the current system, or how it works.

Is the difference really so hard to understand?

I find Bob Lefsetz to be one of the more thoughtful thinkers on the copyright / piracy / SOPA-PIPA issue as regards music.

NB: I'm not looking to spark this thread back up, I just got this piece yesterday via email and thought folks might find it of interest.

I have presented a lot of counterfactuals

Yes. Those are things that are contrary to current reality, no?

Presented in a what-if-we-did-this fashion, sometimes.

Why we have the current system is not completely unimportant, but it is kind of beside the point that: this is what we have, and it will take a nontrivial amount of work and produce a nontrivial amount of change (along with nontrivial potential hardship) to move it to a different place.

These counterfactuals and assorted other rhetorics are wrapped up in a package of just-lay-back-and-enjoy-it. This may not be your intended communication, but this is the flavor that is coming across to me, and (by their reactions) others are seeing something simlarly objectionable. I don't have the skin-in-the-game that russell and (IIRC) Phil do, so it hasn't spun me up emotionally quite so much. Just noting how it's showing up on this side of the screen, is all.

As always, the mileage of others may vary.

Just noting how it's showing up on this side of the screen, is all.

Yeah, I appreciate that. I wasn't completely unaware that what was showing up on that side wasn't quite what I thought I was putting through on this side. The...volume of posts reflected my failed attempts to get the point through in slightly different ways, hoping one might be clear enough.

Speaking in general, I do think it's pretty important to talk about the whys sometimes. Maybe not so much why we have the whole system, but certainly what the basis for Feature X may be (where Feature X is something that may plausibly be on the table for reform). At least it is when the "other side" is advocating strongly for Feature X on what (appears to me to be) a rather thin basis. And it's hard to do that without hypotheticals, or analogies to equivalent contexts where the reasoning is less "obvious".

I'd also object a little bit to the idea (which may not be quite what you're saying) that only things we judge relatively politically tractable can be on the discussion table. Sometimes part of the hard work of political change is to introduce some far out views so that the horizons of what is "politically tractable" can expand a bit. (Not that I necessarily did a great job of that here.)

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