5:22 PM

I've been thinking about a recent post by Aaron Swartz, in which he questions the merits of charging for software. This is in response to a post by Mark Bernstein, which refers to Dave Winer's pair of posts titled "Who will pay for software?" and "Who will pay, part 2". Aaron knows that software developers should be paid, but he doesn't think they should be paid per copy sold.

Once I got past my first reaction (which was, "what are you, a communist?") I started thinking about how they should be paid. Right now, the software business model is the same as the model for CDs or books. An author (whether an individual writer, a band, or a company) spends a significant amount of time on creation and bringing a product to market, and then individual consumers purchase it, whether it is a book, a CD, or a software package. The purchase price then flows back through the retailer, distributor, publisher, and to the author.

By now you may be wondering what this has to do with copyright. The publisher frequently pays the author for creating the work up front. The publisher is making the bet that it can sell enough copies of the work to cover the payment to the author and retain a profit for itself. Copyright guarantees that some other publisher won't start selling the same work and undercut the first publisher's sales while avoiding the payment to the author. Copyright is a necessary positive inducement for creation, since without copyright publishers would be unwilling to pay the authors and the whole system breaks down.

Where this gets interesting is in the question of what the customer is paying for. The customer is paying for the physical object. When you buy a book, you are paying for the book, not the words in the book. This is somewhat loopy, because the reason the book has value is the words themselves, but the purchase price is for the physical book. (Why is a hard cover edition of a book more expensive than the paperback? It's not because the words are different.) Every step in the chain of manufacturing and selling a book makes money based on the physical object, with the one exception of the author. The author gets paid for the words (unless the publisher has purchased the copyright from the author) but after that the words are just along for the ride as the book is manufactured, distributed, and sold.

This leads me back to software. Software sales are based less and less on the physical package and more and more on intangibles like licenses or keys. If you download a piece of software, there's no physical object, so why should you pay anything? You may be consuming bandwidth, but there isn't a financial relationship between the ISP and developer the way there is between a book publisher and the author.

Before you accuse me of asserting that software should be free (as in beer), let me say that that's not my point. My point is that pay per copy model is based on physical distribution. Digital distribution requires a different model. I don't know if that's patronage or auction or goodwill or general taxes that get redistributed to programmers based on some measure of their productivity or all software development becomes part of another job description, but the model of charging for physical objects doesn't work when there's no physical object. Obviously, the same applies to music (and ebooks, if they ever gain any popularity).

New business models have different implications for copyright. The response of the music and movie industries has been to try to make digital information behave like physical objects, modify copyright law to make that easier, and keep using the same business model. While there is a certain logic to this (from their perspective anyway), it's utterly backward.

I'm going to explore a different model. O'Reilly sells books about programs. O'Reilly has an obvious interest in the development of new programs so they can sell new books. Perhaps O'Reilly should be hiring programmers to write the software. O'Reilly could then sell books based on their software.

The interesting thing is that this removes the need for copyright protection on the software. O'Reilly would make its money from the books. The software is necessary to the books in the same way that the words are necessary, but O'Reilly wouldn't make any money from the software. Copyright provides a financial incentive to create. In this case, the financial incentive is provided by the books, which makes the copyright on the software redundant.

This example is off the cuff so you can tell me it won't work, but you'd be missing the point. The point is that digital distribution changes the rules. It changes the financial model of creation, and copyright should change along with that. Somehow, though, I think that convincing Congress that the correct response to the Internet is weaker copyright laws, not stronger ones, will be a hopeless task.

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2:54 PM

The New York Times ran an obituary for Luciano Berio yesterday. Luciano Berio was one of the great composers of the 20th century. If you are not familiar with his music or his name, that is more a demonstration of the failure of the classical music culture than a reflection of his music.

Berio is known principally for two things. He was a pioneer of electronic music and he wrote music that functions as a commentary on other music. I attended a performance of Rendering a few years ago. Rendering is based on sketches from what would have been Schubert's 10th symphony. The 10th symphony is one of many works that composers have left incomplete at their deaths. Other composers have stepped in to finish the works and allow them to be performed.

Mozart's Requiem, for example, was completed by his student Süssmayr after Mozart's death. It is generally assumed that Süssmayr and Mozart had discussed the Requiem and Süssmayr completed Mozart's work. His contribution has been reduced to a footnote and the completed work is known as one of Mozart's masterpieces, rather than being credited to both composers.

Berio took a radically different approach with Schubert's fragments. Rendering presents Schubert's writing where it exists, and dissolves into a haze for sections that were uncompleted. Fragments of melodies, other music by Schubert, and possibilities for music that might have been resolve themselves out of the haze and then disappear back into the uncertainty of the missing sections of the symphony. The music goes from strict symphonic writing to gradually becoming indistinct as melodies trail off into nothingness to a formless sound, out of which the music reorganizes back into a Schubert symphony.

The overall effect is fascinating. I can't possibly do it justice by describing it. The piece is credited to both Berio and Schubert when it is performed. It's a concrete example of a creator working from creations from the past to create something new. In that, it's not that far from Schubert's writing, which relied on the classical forms developed by Haydn and Mozart while developing a new harmonic vocabulary to support a powerful lyricism. Berio's use of Schubert is explicit, while Schubert's use of Haydn is internalized, but the past composers were equally important to both of them in the new works they created.

This is the key to my interest in copyright. Creativity depends on past creations. If Haydn had been able to copyright the sonata form in the 18th century, Schubert could not have written the music he did in the 19th century, and Berio would not have had the source for his music in the 20th century. Placing limits on copyright isn't about theft or getting the results of someone else's labor for free. It's about encouraging and rewarding creativity. I hope that Berio understood that retaining absolute control over the use of Rendering would be dishonest and directly flies in the face of his own composing style. I hope that the copyright holders for his works will allow other composers to use his music in the same way that he used the music of other composers.

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1:24 PM

I haven't been doing any copyright blogging this past week. What I've been doing instead is thinking about what my goals are and how I should achieve them. I haven't come to any dramatic conclusions yet, but I've been moving in a useful direction.

About two months ago, I discovered that I care about copyright issues much more than I had previously realized. This discovery wasn't completely out of the blue. After all, I went to the symposium because I was interested in copyright issues in the first place. I didn't expect that I would feel the need to write it up or that it would lead to copyright issues dominating the content of this blog ever since.

That fact is striking, as anyone who knows me well can attest. I have a long track record of inadequate follow through. The original intention of this blog was to give myself an external incentive to work on a project which has since failed to advance as planned. There are exceptions to this, and writing about copyright is one. Since I started writing here, I have been thinking about copyright issues every day, even when I haven't been writing about it.

I've had several goals in my writing, including raising awareness about copyright issues and developing my own thinking on the subject. But the thing that keeps me going is a need to express my thoughts. Reading a story about copyright and not responding to it would be a denial of myself.

I've been helped in this by my unemployment. Not having a job to go to every day has given me the time I've needed to do the writing for this blog and the thinking behind it. There are, of course, limitations to unemployment. It's not indefinitely sustainable. That leads to the question of what type of job should I be seeking, to which I don't yet have an answer.

I have some hints. Obviously, I have an interest in copyright activism or policy work. There's also the realization that, duh, despite my love of technology, I'm more interested in thinking about tech than doing tech. Beyond that, I'm not so sure. What sort of work should I be trying to do, and how should I be positioning myself to do it?

That leads to this blog. I spend a lot of effort following news items, which is nice, but not something I find really inspiring. The essays and analysis I've written are closer to the point. I've tried to find a balance, and I expect to continue to work on that balance going forward. But in all, this blog isn't enough. Although I appreciate everyone who is reading this, I suspect my audience isn't large enough to have a significant effect in changing or informing the thinking of the culture at large, and I doubt that I'm getting the attention of the people whose attention is needed, such as the Congressional Caucus on Intellectual Property Promotion and Piracy Prevention.

I anticipate continuing to track copyright issues on this blog, but I need to move beyond just doing that. I need to work on determining my next moves, which will take time away from the blog itself, but will take me in the right direction.

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