Answering Augusto…

A student named Augusto Pedroza posted a comment here recently, a comment containing such a large and complex question that I’ve decided to use this separate blog entry to answer it.

Augusto is a Google Summer of Code student, meaning he’s working in an open source software project this summer. He says that as he reads more and more about patents, copyright, and open source, some questions arise in his mind. I think I know this feeling. After years of working in open source software, I too started asking myself “Hmmm, this open, freedom-based method of development seems to be working out pretty well for software — what else could it work well for?”

The answer, I think, is “everything”. But that’s just an assertion, not an argument. Augusto’s going to need some more details to back it up. Below are his questions, with my responses interleaved.

I’ve been following [QuestionCopyright.org] too. I already read this one: The Promise of a Post-Copyright World. The more I read things about patents, copyright, open source, free source, few questions arise. Maybe you could share some of your points and perhaps indicate some articles that you might find interesting.

My first question is: In what extent are patents, copyright important and necessary? Is it fair that a company or a person who invests precious hours of his own time make his work freely available? or even worse, his new idea might give to well established companies a way to explore a new idea and make a lot of money?. In the other hand is it fair that a company that finds a cure for cancer may be able to patent that to make money while thousands of people suffer and die from this sickness?. I guess in matters of software my question really is, what should be allowed to be patented in order to avoid this huge mess caused by a current poor patent system?

Thanks for taking the time to ask. I think there are actually several questions going on at once here, and before separating them out, I’d like to gently challenge some assumptions you might hold about freedom and about what is “fair”. Take this question:

“Is it fair that a company or a person who invests precious hours of his own time make his work freely available? or even worse, his new idea might give to well established companies a way to explore a new idea and make a lot of money?”

First, when a person releases a work to roam free in the world, the person always gets a benefit from that work: the benefit that comes from being the creator of something people enjoy or find useful. This isn’t just some abstract feeling. I’ve written two books, and in neither case was the monetary reward significant enough to be a motivating factor (in fact, I made a lot less than U.S. minimum wage for the hours I worked). But the books were still very much worth it. They have helped me in concrete ways: I’ve gotten jobs, speaking engagements, conference invitations, etc based on them. Only accurate attribution is needed for this effect to take place, and attribution is unrelated to copy restrictions. Actually, for attribution purposes, it’s much better for the works to be allowed to flow freely on the Internet.

Second, be careful not to confuse “free” in the sense of “everyone has the freedom to copy and make derivatives of the work” with “free” in the sense of “doesn’t cost money”. Most artists don’t earn much money from their work anyway, but those who do mostly earn it from grants, commissions and performance revenues, not from copyright royalties. Even for non-performing, non-grant-seeking artists, there are other ways to fund their work that don’t interfere with others’ freedoms (for example, see the Threshold Pledge system).

It’s true that some artists do earn significant amounts from copyright revenues. But don’t view that as a matter of “fairness” or “rights” — view it as one possible business model out of many. There are other ways artists can and do make money. For example, in the U.S. we don’t do very much taxpayer funding of art; other countries do. Whether or not to fund art through taxes is a decision every taxation group (i.e., nation) must make for themselves. But it’s not a question of fairness, it’s just a policy question.

And what I’m saying is that copyright itself is also just a policy question. Copyright enables a particular business model: a model based on centralized distribution with restrictions on copying. That business model is inherently incompatible with any business model (such as being a DJ) that relies on unrestricted abundance. So we must decide, as a matter of policy, whether we want freedom and abundance, or control and artificial scarcity.

I’m deliberately phrasing that in a slanted way, as an antidote to the bias of asking about “fairness”. Since we already know that artists benefit just from being known as the authors of their works, your original question, I think, can be translated to this: “Is it fair for other people to reap benefits from an artists’ work that the artist doesn’t reap herself? What if those other people even reap more benefit than the artist?”

When you look at it in that light, some interesting answers emerge. For example, do we treat other professions the same way? No. As Justice Stephen Breyer (of the U.S. Supreme Court) has pointed out regarding copyright:

…few workers receive salaries that approach the total value of what they produce. The social value of the work performed by the man who invents the supermarket, the man who clears a swamp, the academic scientist, or the schoolteacher may be much greater than his pay. Moreover, workers in competitive industries make products that sell at prices well below what many of their buyers would be willing to pay for them. We do not feel that owners, managers, or workers in such industries are for this reason morally entitled to higher wages. Indeed, when a worker without competition – perhaps because he is the only doctor in the area, or the only engineer capable of building a certain bridge – could charge a price close to the total value of his services to the buyer, we normally encourage competition, which will force him to charge less.

There is nothing inherently immoral in the fact that many workers are paid less than the social value of what they produce, for much of the excess of social value over persuasion cost is transferred to the consumer in the form of lower prices. It is not apparent that the producer has any stronger claim to the surplus than the consumer or that the author’s claim is any strong than that of other workers. In fact, why is the author’s moral claim to be paid more than his persuasion cost any stronger than the claim of others also responsible for producing his book: the publisher, the printer, the bookseller, and those responsible for the literature in the past that inspired him?

In sum, simply to speak of the “fruits of one’s labor” does not show that the author should be paid more than his persuasion cost or how much more he should be paid. In particular, it does not demonstrate that the amount he receives under existing copyright law is any more “just” than what he would receive without copyright protection or under a different copyright system.

(S. Breyer. “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs” (1970) 84 Harvard Law Review 281.)

[My thanks to Jacob Tummon, in whose article The Case for the Elimination of Copyright I first encountered that wonderful quote from Breyer.]

It’s interesting that we do not ask this “fairness” question about, say, road workers or doctors. Instead, we observe that they are willing to do what they do for the wages they receive. In some cases we may feel those wages are too low, but this feeling is not dependent on the amount of benefit someone else reaps from the worker’s product — it’s dependent just on the wage itself.

So, then, why is it “worse” when someone’s “new idea might give to well established companies a way to explore a new idea and make a lot of money”? Do you consider it “worse” when a trucking company makes a lot of money using the roads that your tax money built? 🙂 Is the originator of an idea worse off because someone else, somewhere, is successfully exploiting that idea to make money?

I think we should treat creativity the way we treat most other activities that bring varied benefits to different people: by not assuming that one person’s benefit is automatically another’s loss. Life is not a zero-sum game, and neither is the world economy.

Anyway, most creators wouldn’t notice much difference, because they don’t earn a lot from copyright. And it’s not like there would be some shortage of creativity in the world: we’ve had a surplus for a long time now, and it would only be increased by (finally, again) allowing frictionless, unauthorized derivative works, the way we did for most of human history. There’s nothing to be afraid of; the free software / open source movement demonstrates this. The water’s fine,
come on in!

Second question: In your opinion, is there a perfect time to open a source code in order to obtain success as well as be competitive? Had google opened their ideas and source code in the beginning of its existence it would not have created such an empire that is able so sponsor great programs as this one (gsoc). Is it possible to measure positive points and negative points if Microsoft for example, decides to open all their code right now?

I am a big fan of open source development and I have been trying to understand these points in order to show how companies fully based on the proprietary model are able to see their companies as part of a community. I want to show them the risks, the advantages and of course this new exciting way of producing software.

Whose point of view is this question being asked from? 🙂

First of all, I agree that it is probably somewhat to Google’s advantage not to open up their core code — although the advantage is not that great. I suspect most of their market edge comes from their infrastructure and their processes for supporting it. Even if they did open up their code, most competitors couldn’t make much use of it, although perhaps those who want to game their Google rankings could derive some advantage, and spammers could better fight Google’s spam filters!

In general, though, I’m suspicious of chains of logic that say “If Foo Corporation hadn’t done ABC, then they wouldn’t have made so much money, and then they couldn’t support wonderful programs like XYZ.” The same reasoning applies no matter what ABC is — it could be illegal monopolistic practices, arms dealing, whatever.

So when you measure the “positive points and negative points” of someone opening their code, you have to ask: “positive” and “negative” for whom? For the company? For its customers? For society as a whole?

By the way, I’m not making the argument that service providers like Google (and, to some degree, Microsoft) should be forced to open up their code. I do think certain applications should be open source by law (voting software used in public elections, for example, and software that controls medical devices). But the boundary between copyright and trade secret law starts to get very fuzzy, especially when dealing with companies whose software runs on their own servers. So I don’t think Google should be required to open their code. I’m just pointing out that your question, at least the way you asked it, contains an assumption that competitiveness (for a given company) is inherently good, that it should be a primary goal for society.

I don’t think that’s a good assumption. There are no sides here; we don’t have to “balance” the needs of all the “stakeholders” (to use language that economics journalists are so fond of). We just have to figure out what’s best for society, and that’s the only criterion we should consider. Private property itself exists only because we have decided it’s good for society — and note that we have the doctrine of eminent domain, for situations where private property interferes with the public good. (You might take a look at the article Proportional Registration for Copyrights, to see what a system based on these assumptions could look like.)

Now, I know you were partly asking about arguments that for-profit business would be receptive to. There is no general answer to that. You just have to look at each situation and see. Sure, I could write a separate blog entry about the business case for freedom, but I wanted to stick to the social case here, as I think it’s a more important argument. There is no need to worry about business: clearly, for-profit activities can flourish in a world of unrestricted abundance of works of the mind. If someone claim’s they can’t, I’d like to hear why that means we should favor the profits rather than the freedoms! But in the end, it’s a false choice, because there is no conflict between freedom and economic prosperity. There is a conflict between freedom and certain business models.

I hope that helps answer your questions,

-Karl

P.S. Most of these arguments apply to patents too, but not all of them. Patents and copyrights differ in some important ways. Regarding software patents, and perhaps other kinds as well, this post and this post offer some methods by which one can tell whether a given patent regime is useful to society or not.

13 Responses to “Answering Augusto…”

  1. Ayse Says:

    You and I have talked about this before, and I think there’s a problem with your “that’s just a business model” assertion: there are major businesses that revolve around the idea of selling limited rights to a piece of digital property and then being able to control those rights. These businesses are not going to be able to weather the removal of the source of their income. We’re not talking about individuals here; we all know individuals are hardly of interest in the creation of the law. We’re talking about entire industries.

    I question the use of copyright for software (which, as a code, is not as recognizable as a unique work as, for example, a white paper or a novel), and it seems obvious that the music industry is totally out of control, but for writers, ALL of their income comes from sales of rights. Oh, yeah, there are a small number of writers who have managed to make commissioned work work for them, but for the most part readers are uninterested in the threshold grant idea except for work from established authors, who are a very small portion of the market. With very very few exceptions, professional writers make their living from sales of rights. I question how well the entire publishing industry is going to handle having its business model removed and being told that now writers will have to make a living some other way. Sure, the publishers will love it: no more royalties, so more profits! But why would a writer publish a book if they were not going to make money on it and there was no clear path to using it to make other income? Goodbye books of poetry, goodbye novels, goodbye quirky reference books.

    Another example: construction. All construction. Any set of building plans is controlled only by copyright, but if the plans are stamped by an architect or engineer, that architect or engineer is personally responsible (as in, cannot be protected by incorporation, can lose their own house) for the outcome of the building designed from that plan (this is why they get a professional monopoly on creating those plans). Right now, firms use copyright to protect themselves from the use of those plans for unsupervised construction, but if there were no copyright at all, then either construction would have to get very, very expensive to cover the liability insurance costs, or it would simply not be possible to be insured (and therefore not possible to be in business). A more limited copyright that allowed copying with accreditation and a revision of the laws of all 50 states and internationally to restrict the use of architectural plans to the sites they were intended for might work, but we’re talking about making a massive change to a massive industry, and to international treaties.

    These are two fields where I’ve worked and understand the business model fairly well. I find it unlikely that other fields that use intellectual property law as a basis for their business model would be more flexible with the removal of ALL copyright protection (as opposed to changes in the law).

  2. Karl Fogel Says:

    You start out by saying the problem is there are major businesses that will not be able to weather the storm, and that they are the issue, not individuals; but then you go on to talk more about individuals than businesses.

    First of all, many businesses will weather the storm: my publisher, O’Reilly Media, already publishes many books under open copyrights. But what I’m arguing is that we let market forces do their work here, instead of imposing unnecessary monopolies (which is exactly what modern copyright is). Some businesses will survive, some won’t. So what? When was the last time you shed a tear for the huge, multi-national rubber extraction industry, which vanished almost overnight when synthetic substitutes for natural rubber were developed?

    We also simply disagree on some matters of fact:

    “With very very few exceptions, professional writers make their living from sales of rights”

    I don’t think that’s so… In fact, I believe the opposite is more likely true. It’s very, very hard to do a quantitative study, because of definitional issues (who counts as a writer?), but many who write professionally earn revenue from sources that mostly do not not trace back to copyright royalties: virtually all magazine piecework, for example. On the other hand, if you’re defining “writer” as “someone whose books I see in Barnes and Noble”, your statement might be true, but there ’s a pretty huge selection bias in your sample!

    And… “goodbye books of poetry”?? What universe is that in? ’:-)’ Poetry doesn’t make money. Poetry books are often published at a loss! People don’t go into poetry expecting to support themselves from copyright royalties; if they expect to earn a living from poetry at all, it’s from grants and teaching.

    You look at copyright and say “Without this, what works would be missing from the world?” But why not also ask “What is copyright preventing from being created or distributed right now?” That (and not term lengths) is what Eldred v. Ashcroft was really about, IMHO. What makes you so sure you’re better off under the current system?

    Can you seriously look at the explosion of creativity on the Internet and worry that, without copyright, there will be a shortage of stuff out there? I just don’t see it happening. There wasn’t a supply shortage even before copyright… and that was before we had a worldwide copying, remixing, and editing machine in place.

    The point about the construction industry is a non sequitur. The issue there has nothing to do with copying, it has to do with endorsement and certification. Copyright law is not necessary to achieve the liability effects you describe. Simply make a engineers and architects liable, in the same way they are now, for a use of their plans which they have endorsed (where “endorse” has some official meaning, probably involving a notary). For uses which they have not endorsed, they are not liable. Then if you’re worried about unendorsed construction projects, you can pass laws in your district requiring all construction to have the appropriate endorsement.

    Whatever’s going on the construction industry right now, it’s certainly not an argument for the necessity of copyright.

    I’ve never argued that fields which depend on current copyright law are likely to favor drastic change. I’m merely arguing that drastic change is still desirable. To say that change will have opponents is true, but it’s not exactly news. Many conventions that are considered normal today had opponents when established; many things that have opponents now will be considered normal in the future. I don’t see how that’s an argument for or against the desirability of a particular change.

    I didn’t really understand your point about recognizeability of a unique work (when you contrasted, say, novels with computer code). What does recognizeability have to do with copying? Recognizeability is about attribution and accurate tracing of provenance and edits. And about brand identity in some cases, I guess.

    Part of the reason we have this strange, modern focus on uniqueness is precisely because copyright has been preventing derivative works for so many years! What if you don’t like the way a book was written? Why shouldn’t you have the right to re-edit it and release your own edition? Remember, we’re not talking about theft of credit here: you still have to attribute accurately, you can’t claim that you wrote the whole thing from scratch or something. But why is it desirable that, currently, the original author has the right to censor you from producing dissenting (or merely unauthorized) derivative works? Why is the right to fork” important for code but somehow not important for other works of the mind? Back when we had that right, we used it all the time. Let’s restore it.

  3. Karl Fogel Says:

    By the way:

    http://www.boingboing.net/2007/07/12/nobel_laureate_publi.html

    The headline is: “Nobel Laureate publishes new novel free online”

    :-).

    (Thanks to Jeff Ubois for the forward.)

    Much is unanswered there, though. For example, is that “free” as in “freedom”, or do the terms prohibit commercial use? And what about derivative works? Can someone download her new novel and produce new things based on it? I don’t know the answers, because her website is in German and my German’s terrible.

  4. Ayse Says:

    First of all, let’s get some terminology clear here: you are advocating a repeal of copyright, not a revision. Under a total repeal of copyright, O’Reilly’s business model would be shot, too. Because they do rely on the copyright laws to maintain their ownership of the work. And second, I would say that construction and publishing are major businesses rather than individuals, though I explained them in terms of how disincentives for one player in that business would cause a major problem for the business as a while.

    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.

  5. Karl Fogel Says:

    I think I just haven’t been clear, sorry.

    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.

  6. C. Michael Pilato Says:

    Ayse: I respect the experiential background you bring to the table here, but I think your perspective lacks creativity. You seem to be consistently assuming that the benefits some people get today via copyright law are only available via copyright law. Having been informed that Karl would like to see a world without barstools (or maybe a world where barstools were designed so differently that they no longer serve as people perches), you’re so concerned about the number of people for whom barstools provide a great way to relax that you overlook all the lounge chairs, sofas, and beanbags in the room.

    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.

  7. Karl Fogel Says:

    Mike, I think you said what I was trying to say, but much better (and a heck of a lot more efficiently).

    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…

  8. Augusto Pedroza Says:

    First of all, thanks for taking the time to answer my questions. It has helped me to analyze things in a different way.
    I do want to comment this phrase:
    “We just have to figure out what’s best for society”
    Developers are for me artists, a piece of code is the fruit of our “crafting”. As any professional, we all seek to make our living out of our skills and even better using our own creative ideas. Creativity is probably the only tool we have to compete with major business.
    When I asked about the perfect time to open a piece of code I had few things in mind. If I were to start a new company today, I would definitely want to produce software in the open software model. There are many things that can be reaped by doing that. Going back to the paragraph above, imagine the following scenario:
    I start a new business with an excellent idea that will benefit society. It’s all open-source so a company using the proprietary model may be able to create something similar and copyright it. Even the future improvements my company could made will be hinderer by laws protecting proprietary software. At the end creativity is hindered, money goes to major business and society has to pay much more for something intended to initially cost much less. Maybe it’s a matter of maturity. Maybe the code has to be mature enough. IMHO that’s the reason Google could open part of its code.
    Another point to consider is the great loss of opening the code too late since It becomes more difficult to establish a successful community.

  9. malvasia bianca » Blog Archive » random links: july 28, 2007 Says:

    […] good stuff from Karl on […]

  10. MEB Says:

    Karl, I think your suggestions re: copyright don’t take into account a couple of economic realities. First off, it may indeed be true that many authors receive most of their income from one-time sales to magazines, etc. However, those magazines have money to *pay* salaries because someone buys them. What’s to stop an enterprising businessman from buying the first copy of the New Yorker to hit the stands, running off his own copies with a new cover, and selling them for half the price? Yes, in the long run, it would kill the goose laying the golden eggs, but that wouldn’t stop such behaviour; see deep sea fishing or clearcut logging as examples of the so-called “tragedy of the commons”.

    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.

  11. Karl Fogel Says:

    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).

  12. Jared Says:

    This is one of very few blogs where the comment responses are as interesting and insightful as the original post. Keep up the good work Karl — I’ll be checking out QuestionCopyright.org right now.

    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

  13. Karl Fogel Says:

    Thanks so much for your very nice comment, Jared.

    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.

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