Yes — I’m a huge Dean Baker fan, though hadn’t read that piece. Reading it now, it strikes me as having all of his usual intelligence and iconoclasm. I just wish he’d push back harder on the assumption (assertion, really) that “under-investment in research and creative work” would be the result if we didn’t have copyright protection, given that most investment in those things does not really come from copyright royalties even today. (I believe the same is true for patents, but am a little less certain; for that and other reasons, I don’t like to lump patents together with copyrights, even though they have many of the same problems.)

Enjoy QuestionCopyright.org, and let me know what you think of some of the economic proposals there.

I’m just wondering now (excuse me if this is obvious from other posts) — are you familiar with the writings of economist Dean Baker?

“The Reform of Intellectual Property”
http://www.paecon.net/PAEReview/issue32/Baker32.htm

Good to hear from you, MEB!

Yes, I understand the argument you’re making about the commons; in fact I think it’s one of the best economic arguments for copyright available. It’s not really convincing to me, for reasons I’ll give below, but it certainly can’t be ignored.

First: even if the “tragedy of the commons” argument implies that we should have copyright, it still doesn’t imply that we should have anything like the copyright system we have today. Instead of extremely narrow zones of “fair use” and copyright terms that last a century or more, a simple commercial monopoly lasting at most a few years would be sufficient for the business models in use today. A reprinted New Yorker from a couple of years ago would not significantly compete with a new issue on the stands. The main thing is that works become available for copying (and more importantly, for derivation) during the time when their topics are still relevant. The freedom to make derivative works is much less useful to society if it only becomes available a hundred years or more after the original appeared.

So what I’m saying is not so much “We should abolish copyright!” (although I think that would probably be okay), but rather “We should attach much higher value the freedoms to share and to make derivative works.” Those freedoms should be an integral part of the rhetoric in the debate around copyright; to focus on business models is to miss the really important stuff.

But I think you’re also overlooking a straight economic argument. You understimate the value of brand name, that is, of trademark. The advantage of being first to print, with a reliable name and consistent packaging, is huge. For a subscriber, it is easily worth the cost of a subscription to the New Yorker (I am one, by the way). Here’s a thought experiment for you:

Imagine that anyone could grab the most recent New Yorker off the stands the instant it comes out, copy its contents, and sell the result at any price they wanted to — but, they couldn’t do it under the name “The New Yorker”, because that’s a trademark owned by The New Yorker. The after-market publisher could refer to the New Yorker, of course, but couldn’t claim to be it, and couldn’t use the marks in any way that current trademark law prohibits. (Copyright is about content, after all; it doesn’t convey any right to use commercial marks.)

So: under this circumstance, would you still pay for a subscription, to be assured of getting it in your mailbox every week, as packaged and endorsed by the New Yorker and its editorial staff?

For myself, I can answer unhesitatingly: I would. I wouldn’t even stop to think about it. A New Yorker subscription is just not that expensive (I think it’s about $90 a year, or $7.50 a month), a small price to pay for reliability and the knowledge that I’m getting the primary source. And if I didn’t subscribe, I’d still prefer that copy on a newstand to any imitator. They spent decades building up a brand, and it paid off: I know it did, because I’m one of the people willing to pay for it! (Another way to look at it: ask yourself how RedHat Linux managed to sell all those CDs of software that they openly acknowledged was all freely available for download from the Internet.)

I’m guessing you would subscribe too… but I don’t want to put words in your mouth. If my guess is wrong, let me know why.

Regarding your second paragraph: I think we may just disagree aesthetically on the value of the professionals. Bestselling authors do not seem to me to be particularly better than non-bestselling ones. Do they to you, honestly? Of the professional authors I enjoy, my enjoyment is not strongly correlated with their financial or marketplace success. Of course, there are important feedback effects (reading Jared Diamond is even more rewarding when all my friends are doing it too), but those would obviously still exist with or without copyright.

There will always be superstars, in music, in movies, even in writing. People want someone to focus on — that’s a market demand that will always find a way to be satisfied, and those who satisfy it will be well-paid (by definition, since it’s not such attractive work if you’re not well-paid). We simply don’t need to optimize our system of information flow toward ever-increasing centralization of attention and money, given that those are natural tendencies anyway.

You wrote:

“I’m aware that profitability and quality certainly don’t always go hand in hand, but it’s probably a fairer measure than anything else we have available.”

Well, actually, I think there is a fairer measure: just let things flow freely and see what ends up being popular! When there is no centralized control to interfere with people’s expression of their preferences, then you can really find out what they like. Right now we have a system that focuses a majority of its money on subsidizing expensive marketing efforts, thus underwriting the usual positive feedback loop in which that which wins, wins more. That feedback loop will always be present, but it would be silly for us to consider it a social good, or to prevent people from sharing and building on the works of others in order to strengthen it.

In other words, the case for radical reduction or abolition of copyright is essentially a free-market case. Right now, we have government-supported monopolies. What benefits are they bringing society as a whole? (It’s also about civil liberties: I really do consider it a form of censorship when people are prevented from making derivative works even with proper attribution.)

Finally, should we really suppose that popular authors — the Norman Mailers and Salman Rushdies of the world — would be left without the means to continue writing? Elsewhere on QuestionCopyright.org I’ve described other business models that don’t rely on the suppression of sharing.

You have heard of Norman Mailer, because he won the marketing lottery. (Perhaps also because he’s good, but there are a great many good authors who don’t get a seat in that game of musical chairs: at best, skill is a necessary but not sufficient conditon for success.)

What about all the authors who would have created great derivative works, whom you don’t know about and whose works you never read, because they were suppressed, prevented from ever existing? What about all the translations that never get made, because rights negotiation is too daunting?

It’s fine to make economic arguments. But make all of them, then. Don’t just look at what copyright supports, look at the things it prevents, too. I suspect there’s a lot in that latter category. And there isn’t some bright line between amateurs and professionals in the arts, in general. That distinction is partly an artifact of a system that tends to concentrate resources on a very few winners (financial winners, not necessarily artistic winners).

Second, your vision of copyright, or the lack thereof, is (by design, I recognize) skewed toward amateur producers. It might well be that largely abolishing copyright would stimulate an increase in the total production of “art”, however defined; however, those most likely to be driven out of the “market” would be precisely those professionals who currently earn their primary living from it. I’m aware that profitability and quality certainly don’t always go hand in hand, but it’s probably a fairer measure than anything else we have available. I’m not sure that the world would be better served by a system in which, say, Norman Mailer or Salman Rushdie wrote less and got day jobs down at the mall, and the output of sci-fi fan fiction increased by a factor of ten.

I’d add that in addition to money (for artists), people want protection of attribution. Pretty much everyone feels that’s a moral imperative. And it can be had without restricting copying or derivation…

It’s not that people actually want copyright law. They want something else
(ultimately, money, most of the time) and copyright law is just the currently established means they’ve chosen to get it. With a little creativity, I’m sure society can come up with better ways to grant those folks what want, or at least the not-harmful-to-society subset of what they want.

I’m not advocating repeal in the total, absolute sense that you think I am. I’m advocating changes so drastic as to leave copyright unrecognizeable, such that it would probably best have a different name. For example: how about separate laws protecting attribution?

I also have no problem with sale of first-print rights. However, it’s possible to have a law that allows that (i.e., that defines the “moment of publication”) without allowing the other harmful things that are currently in our copyright system. By the way, you could, in theory, do first-print rights strictly through contract law (author agrees to show publisher the work, if publisher keeps it private until publication, etc). It might be easier for us all just to have a first-print law, but it’s not really dependent on copyright; in some ways it’s more like an extended notion of privacy.

Regarding books: if people want books, there will be people selling books. If people want books of a particular poet, there will be books of that poet.

If literary magazines are supporting themselves through sales of reprint rights, why are they organized as nonprofits and constantly needing infusions of cash and free labor from non-commercial sources? I submit that they will continue under any system, because they are labors of love.

Now, you say: “many who write professionally earn revenue from sources that mostly do not not trace back to copyright royalties: virtually all magazine piecework, for example.”

Um, no. All magazine piecework is sold as first-rights (in the US we’re talking about FNAR, FAR, FIR or just plain FR) or reprint-rights. The ability to sell first rights to a piece of work depends entirely upon the ownership of copyright; without copyright, there are no rights to sell. That’s why there’s a huge difference in the pay structure for those who do freelance work compared to those who do work for hire (where the employer retains the rights by agreement).

All writers who make their living writing articles for periodicals or books make their living selling the right to use their work to publishers. Unless they’re on staff at a publication and have agreed to do work for hire, or are incredibly stupid about how to make money as a writer and do work for hire as freelancers.

Now. Poetry. Most poetry is initially published in literary magazines, many of which pay. Only later can it be collected into a book: as you know, poetry books don’t exactly make tons of money, so to publish a set of poetry a publisher wants to see solid sales (not just placements in non-paying journals). As soon as you remove the need to buy the reprint rights to that poetry, you remove the incentive for poets to do incremental publishing (without copyright protection, publishers could anthologize the good poetry on their own without paying the author), and by removing that incentive, you remove poetry from the market. That’s because most poets would rather write their own book, but use incremental publishing as a proving ground for publishers. But if they do incremental publishing, they’re giving away their work and making it impossible to sell a collection later. So they’ll choose to hold back their work, and poetry publishers will have to either take a huge risk on an unknown quantity, or get out of the business of selling poetry books in the first place.

The thing I don’t understand is: you advocate the removal of copyright. But then you go on to assert that some aspects of copyright would remain, like attribution. If there’s no copyright, why on earth should I bother with attribution? There’s no legal basis for enforcing attribution outside of copyright law.

And yes, I do look at markets and worry about disincentives making a major negative impact. Copyright is not the problem, per se. The terms of copyright, the definition of fair use, and the ability to extend copyright beyond what was originally granted in the law bother me much more than the concept of ownership of rights of your own creation. I’m also concerned about larger markets and complex legal systems that have evolved over time. You can’t make drastic changes to a law that is the basis of several other laws (for example, if you change the way construction documents are handled, you have to modify multiple laws in every state and several international treaties) without causing repercussions.

Finally, you said “I didn’t really understand your point about recognizability of a unique work (when you contrasted, say, novels with computer code). What does recognizability have to do with copying? Recognizability is about attribution and accurate tracing of provenance and edits.”

A creative piece of work must be differentiable from other work. In order to recognize a piece as unique and therefore subject to copyright protection, you have to be able to recognize a specific style or signature. In general, my feeling is that codes can’t do that because of their limited vocabulary; it’s too easy to accidentally duplicate the work another person did because there are only so many ways to handle each problem, there are accepted best practises for handling certain situations, and the language is very rigid. When I was doing my thesis research on the vocabulary of C coders, I found that while larger groups of coders had distinctive vocabularies, in general it was impossible to distinguish the code of one coder from another except in the comments and sometimes the use of whitespace. So comments can be copyrightable, but code should not be, in my mind.