5:25 PM

I think I just figured out what "Information wants to be free" actually means. What's more, I think I agree with it. The idea that information has an economic value is dependent on a certain level of technology, and that time has passed.

Copyright is a consequence of the printing press. Prior to the invention of the printing press, there was no such thing as copyright law, because there was no need for copyright law. The primary means of information transmission was word of mouth. The cost of information transmission was nothing. There are no expenses associated with talking or listening. Information transmission also occurred through writing, but the effective cost of writing was nearly infinite. Literacy was limited, and the labor cost of copying the Bible, for example, was so high that an copying required massive subsizidation. Either way, there was no economic value to reproducing information.

That changed with the invention of the printing press. The printing press made the expense of reproduction low enough to allow an economic benefit to copying. There's an interesting balance here. Without the printing press, no price was sufficient to justify selling a book. Book sales allowed the book business to arise, which in turn created a financial value for information.

It's useful to review the origins of copyright. Copyright was originally a state granted monopoly in publishing. State sanctioned publishers were the only publishers permitted to publish anything legally. When the original monopoly on publishing ended, the publishers sought to reassert their monopoly and copyright was reborn as the authority to publish possessed by the author.

The rationalization was an economic one. Publishing books was capital intensive, with the publisher incurring the expense of publishing and then attempting to regain the investment through sales. If another publisher was selling the same book, that threatened the publisher's ability to profit and therefore threatened the entire industry.

The Internet changes the expense of distributing information. Copying information on the Internet is nearly free. After spending several centuries with a non-zero cost per copy, we have returned to where we began, with downloading a file costing the same as listening to someone telling a story. Copyright arose because of the cost of copying. Now that there is no cost to copy, there is no economic need for copyright.

I'm going to qualify this a little and state that this only applies to digital copies. The economics of physical copies hasn't changed, which implies that there may still be an economic value to the exclusive right to copy in a physical medium. Bits, however, are free.

John Perry Barlow has been saying this for nearly a decade, assuming that his Wired article from March 1994 was the original formulation. I'm feeling behind on thinking about the cost of information.

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2:04 PM

The most appropriate title for today's news roundup is "Weird but True." The most appropriate conclusion to draw from today's news roundup is that copyright is utterly broken and the discussion of copyright is utterly broken. Read on to see what I mean.

Hatch Wants to Destroy Your Computer

You've probably already seen this, but I can't let it go. Orrin Hatch stated during a hearing on illegal downloads that "I'm all for destroying" users' computers in response to illegal downloading. He has since backed away from that statement, saying "I do not favor extreme remedies — unless no moderate remedies can be found." By now, everyone in the blogosphere has responded, as cataloged by Begging to Differ, but I think I'm entitled to my own comments.

The maximum possible value of an MP3 song is about $2. Computers can easily be worth $2000. If we start by accepting that downloading an MP3 is equivalent to theft, Hatch is suggesting that the correct response to theft is to destroy an asset worth 1000 times the value of the stolen object. That's like saying that the correct response to shoplifting a candy bar is to destroy a refrigerator. And that's ignoring the value of everything else on the computer, such as anything that the owner has created, which could potentially be wiped out with the hardware. If you were still looking for proof that the discussion of copyright is fundamentally insane, I think you've just gotten it. (links from Tech Law Advisor)

Music as Rent-Seeking

At the other extreme, over at the Volokh Conspiracy, Tyler Cowen is arguing that there's no economic justification for copyright, at least as applied to popular music. I have to say that I think his line of thinking is whack, assuming that I understand it.

The argument seems to be that people don't buy music for the music; they buy it to belong to a social group. If that's the case, less music is preferable, since more music just increases the cost of membership. He goes on to state that he owns 5000 CDs, apparently in defense of his argument.

I can't imagine actually listening to 5000 CDs. At the same time, I listen to music constantly. Actually listening to music enough to appreciate it takes effort and repetition. I listen to music for many reasons, but fitting in isn't one of them. If anything, music excludes me from social groups. I don't know anyone who likes the same range of music that I do. I know many people with significant overlaps, but there are limits, and sooner or later I find myself defending something which others find boring, incomprehensible, or unlistenable.

I don't buy CDs to fit in. I buy them in spite of the fact that I don't. Tyler Cowen's thinking is just bizarre. I'm wondering if it's intended to be taken seriously or if it's satirical, but if so, I don't know what it's satirizing.

Copyright Fails to Do Its Job

In 1939, Solomon Linda wrote "Mbube," the original version of "The Lion Sleeps Tonight." He was paid a lump sum for the song. Since then, the song has been recorded 170 times, but he hasn't seen any money from that and his family lives in poverty. His family is now trying to seek the royalties they are entitled to. Somehow, I doubt that his family appreciates the extensions on copyright that have occured since he wrote the song.

Justifications for increasing the duration of copyright are based on several arguments. "Artist's rights" states that creators own their works and should be paid for their creations. This has obviously failed to occur in this case. The logical conclusion of artist's rights is that copyright should be non-transferable. If copyright exists to make sure that artists get what they deserve, corporations should not be able to buy that away from them.

It's rude to ask this about a destitute family, but I wonder if there's a limit to how much they should earn off the song. After all, we're talking about one song. If copyright rewards work, how much work goes into a single song? Assume for a moment that "The Lion Sleeps Tonight" had made Solomon Linda into a millionaire. We're talking a million dollars for what, a week's work? Is that reasonable?

I realize that just by asking the question, I'm setting myself up as an enemy of the free market, but I can't help it. I'm all for a day's work for a day's pay, but the current copyright system allows two lifetime's pay for one song, regardless of how much work went into creating it.

His family has a legitimate grievance, but I wonder what the correct response really is. After all, they're seeking money today for work done 60 years ago. Sure they deserve to be lifted out of poverty, and I hope that people who have profited on the song would have the decency to help them out, but the idea of legal action on the family's behalf just makes me nervous.

I fear that I'm degenerating into incoherent, unreasonable ranting. We better move on to the next topic.

Fanfic Copyright Woes

It's been a long time since Harry Potter and the Goblet of Fire was published. The next book in the series goes on sale this weekend, but for many fans, the wait was too long. They've taken to writing their own Harry Potter stories and sharing them on the Internet. Too bad for them that they're violating copyright. The Washington Post reports that an uneasy truce exists between J. K. Rowling and fan fiction authors, with the author generally looking the other way.

Many fanfic authors seem unaware of the stakes involved in the creation of new works using copyrighted characters. The article quotes Vicki Dolenga, who runs a site devoted to fan fiction with "adult" themes which has received cease and desist letters from copyright holders, as saying "My opinion is that if we aren't making any money off of it, it shouldn't be any of their business." That may be her opinion, but whether that will hold up in court is a different question.

The article points out the many legal ambiguities of fan fiction without attempting to resolve them. It also features a plug for Creative Commons and mentions a librarian named Jenny Levine who is evidently not The Shifted Librarian. (The Shifted Librarian is from Illinois while this one is from Maryland.)

I'm going to repeat my theme from my discussion of "The Lion Sleeps Tonight." Rowling has made an absurd amount of money off of Harry Potter, to the extent that she really doesn't have a financial incentive to keep writing. What's the benefit to society in preventing other authors from writing Harry Potter stories, and does it matter? At the same time, what's the benefit to society of Harry Potter fanfic and the community that has developed around Harry Potter fanfic, and does that matter? And does the fanfic community benefit or harm Rowling? I think a broader question is what should the balance be between the interests of the individual and the interests of society. Copyright law as it now exists provides answers to these questions that I think many individuals would disagree with.

The Value of the Public Domain

Speaking of The Shifted Librarian, she has a pile of good links lately (as always). I'll start by pointing out another example of the value of the public domain. I try to regularly call attention to the importance of reusing other works (see the banner at the top of this page) and by extension, the importance of the public domain. We all need to do this. Figure out how the public domain touches your life and let people know.

Harry Potter fanfic fits into this. The value of the public domain is difficult to express in economic terms, but it's what society runs on. It gives a common ground for us all, while giving us space to create and express ourselves, in turn redefining the common ground. Corporations may not value that, but we as individuals should.

Digital Preservation

Also from The Shifted Librarian, a post on "Preserving Our Digital Past and Future." One of the great things about culture is its history. I can listen to music by Bach or watch a play by Shakespeare, despite the fact that they were written hundreds of years ago. Digital technology threatens that in a multitude of ways.

Copy protection is really access protection. As a user, you can only use the work if you are given permission to use it. If there's no one to give you permission, you can't access the work. If you can't access it, it effectively doesn't exist. There's some comfort in the fact that no copy protection scheme has been found to be unbreakable, but should we trust in that?

Proprietary file formats are a far more insidious problem. If you've ever received an email attachment that you couldn't open, you have some appreciation of the problem. I've used probably half a dozen different word processing programs on a variety of computers over the years. Most of them used formats that can only be read by that program.

My earliest computer writings were written on a computer that hasn't been manufactured for over ten years. Everything I wrote on that computer is probably lost forever. This creeping obsolescence will catch up with today's computers eventually. Things I wrote ten years ago may not be worth that much, but the combined writings of our culture certainly are. How much is being lost to technical obsolescence?

Jenny points to an article discussing the response to this problem in the UK. She emphasizes the importance of libraries on this issue, in keeping with her interests, but this affects everyone who cares about culture.

It's a small gesture, but I refuse to save files in proprietary formats. That means no MS Word or Excel files for me. RTF gets the job done. Not everyone has this option, because of work requirements or needed features, but it's something everyone should think about.

iTunes Side Effects

The hype around the iTunes Music Store has focused attention on other legal online music sources. Jenny Levine has been signing up for new services as fast as she can find them. This is really an "everybody wins" situation. Maybe the lack of success of online music services up to this point has been due to marketing as much as anything else. The performance of the iTunes Music Store has been explosive, but I'm wondering about its effect on everyone else. I'm waiting for another service to acknowledge a boost in sales since Apple launched its service.

Are Downloads Destroying Music Sales?

If we assume that what's good for the music services is good for music, we might conclude that downloading should boost music sales. I'm not willing to draw that conclusion yet, but in the meantime Epeus' Epigone takes issue with a study that draws the reverse conclusion. There are so many factors involved that drawing simple conclusions seems impossible, but people keep trying to do it anyway. I'm not sure if the public should be looking out for the record labels' interests, which is another way of saying that the legal response to file sharing shouldn't necessarily depend on the impact of file sharing on the record labels.

There are more fundamental questions at work here, such as what is the impact of file sharing on society and what is the impact of copy protection on society. I'm not sure those have simple answers either, but if we're asking the wrong questions there's no way we'll get the right answers.

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2:11 PM

Frank Field objects to the "copyright is property" meme. As I've said before, I'm not sure that arguing that copyright isn't property is the way to go. Instead, I'm going to talk about what property is. Property does not back up claims that copyright should grant unlimited exclusive rights.

Arguments based on copyright as property are simple. "My works are my creation. Therefore, they are my property. As the owner, I am entitled to final say on who uses my work and how." In the face of this, saying that copyright isn't property is something of a nonstarter. First of all, it leads to really boring arguments that reduce to each side asserting what copyright is or isn't without anything to back those statements up. Second, intellectual property isn't really a new concept. I'm not sure when that phrase was coined, but it's been around sufficiently long that disputing it is an uphill battle.

The copyright as property argument still doesn't hold water, because it ignores two key features of property. The first is that all property is subject to limits. The second is that different forms of property have different rules and restrictions.

As an example of limits on property, I'll consider my car. You might think that since my car is my property, I can do whatever I want with it, but that's far from the truth. I paid a tax on my car when I purchased it, and I pay an annual excise tax based on the value of the car. If I want to drive it, I have to have it registered, insured, and inspected. There are limits on how I can drive it, as well, as anyone who has gotten a speeding ticket knows. Beyond that, the city can impound my car and take possession of it against my will if, for example, I park it in a tow zone. This list isn't intended to be comprehensive, but it proves my point. I may own my car, but I don't have absolute control over it.

There are many different types of property, each with their own laws, restrictions, and limitations. A few examples include land, physical possessions, cash, stocks, bonds, copyright, patents, and trademarks. Copyright, patents, and trademarks tend to get lumped together as intellectual property, even though the laws governing each of them are independent, as are the justifications for each. Intellectual property can be lumped together with financial property in that all of them are abstract. But no one can reasonably argue that all abstract property should obey the same laws. How should bankruptcy be applied to copyright law?

It's clear then: different kinds of property function according to different principles and laws, and all property is subject to regulation and limitation. The argument that copyright is property and entitles the owner to absolute control therefore fails twice. The argument depends on the claim that all property should obey the same rules and that property is unregulated. The correct response to "copyright is property" is "Yes, but different types of property operate by different rules."

The unresolved problem is that "copyright is property" is a great soundbite, even if it's not true. People who favor limited copyright laws need an equally effective soundbite, and the best I can offer is a reasoned argument.

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