Don't do it

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When the web started, I used to get really grumpy with people because they put my poems up. They put my stories up. They put my stuff up on the web. I had this belief, which was completely erroneous, that if people put your stuff up on the web and you didn’t tell them to take it down, you would lose your copyright, which actually, is simply not true.

And I also got very grumpy because I felt like they were pirating my stuff, that it was bad. And then I started to notice that two things seemed much more significant. One of which was… places where I was being pirated, particularly Russia where people were translating my stuff into Russian and spreading around into the world, I was selling more and more books. People were discovering me through being pirated. Then they were going out and buying the real books, and when a new book would come out in Russia, it would sell more and more copies. I thought this was fascinating, and I tried a few experiments. Some of them are quite hard, you know, persuading my publisher for example to take one of my books and put it out for free. We took “American Gods,” a book that was still selling and selling very well, and for a month they put it up completely free on their website. You could read it and you could download it. What happened was sales of my books, through independent bookstores, because that’s all we were measuring it through, went up the following month three hundred percent

I started to realize that actually, you’re not losing books. You’re not losing sales by having stuff out there. When I give a big talk now on these kinds of subjects and people say, “Well, what about the sales that I’m losing through having stuff copied, through having stuff floating out there?” I started asking audiences to just raise their hands for one question. Which is, I’d say, “Okay, do you have a favorite author?” They’d say, “Yes.” and I’d say, “Good. What I want is for everybody who discovered their favorite author by being lent a book, put up your hands.” And then, “Anybody who discovered your favorite author by walking into a bookstore and buying a book raise your hands.” And it’s probably about five, ten percent of the people who actually discovered an author who’s their favorite author, who is the person who they buy everything of. They buy the hardbacks and they treasure the fact that they got this author. Very few of them bought the book. They were lent it. They were given it. They did not pay for it, and that’s how they found their favorite author. And I thought, “You know, that’s really all this is. It’s people lending books. And you can’t look on that as a loss of sale. It’s not a lost sale, nobody who would have bought your book is not buying it because they can find it for free.”

What you’re actually doing is advertising. You’re reaching more people, you’re raising awareness. Understanding that gave me a whole new idea of the shape of copyright and of what the web was doing. Because the biggest thing the web is doing is allowing people to hear things. Allowing people to read things. Allowing people to see things that they would never have otherwise seen. And I think, basically, that’s an incredibly good thing.

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“And really, the producers of the information want it to be expensive. They want their reward back for their work.”

More than that, they want to be rewarded perpetually for work they did once, which is why it strikes so many people as basically unfair, or at least anomalous. If I pay you to put a new roof on my house, I pay you once for a few days’ work, at until I need you to come back in fifteen or twenty years to do it again. Another roofer can do my neighbor’s roof without having to pay you for having roofed my house first. And so it goes with most jobs: you get paid for the work you do. With information, you get paid for all time for having done some work at some point in the past.

Nice work if you can get it, I guess.

The system of artificial scarcity we call intellectual property rights was created because, unlike roofs, information is cheap and easy to duplicate, and without that artificial scarcity, creators of useful information would get paid so little that they’d find something less useful but more profitable to do. Unfortunately, it’s been carried to such an extreme — in large part because of the transferability of those privileges — that entire industries now make billions of work they haven’t done at all, while the actual creators, by and large, still get paid jack. What has changed with recent technological advances isn’t so much the cost of duplicating data, which was already cheap as dirt, but the emergence of the possibility of eliminating the distribution cartels that screw the creators and gouge the consumers.

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Caledfwlch writes with a followup to news we discussed a couple days ago about a study that found only 0.3% of torrents to be legal. (A further 11% was described as “ambiguous.”) TorrentFreak looked more deeply into the study and found a number of flaws, suggesting that the researchers’ data may have been pulled from a bogus tracker. Quoting:

“Here’s where the researchers make total fools out of themselves. In their answer to the question they refer to a table of the top 10 most seeded torrents. … the most seeded file was uploaded nearly two years ago (The Incredible Hulk) and has a massive 1,112,628 seeders. The torrent in 10th place is not doing bad either with 277,043 seeds. All false data. We’re not sure where these numbers originate from but the best seeded torrent at the moment only has 13,739 seeders; that’s 1% of what the study reports. Also, the fact that the release is nearly two years old should have sounded some alarm bells. It appears that the researchers have pulled data from a bogus tracker, and it wouldn’t be a big surprise if all the torrents in their top 10 are actually fake.”

They also take a cursory look at isoHunt, finding that 1.5% of torrent files come from Jamendo alone, “a site that publishes only Creative Commons licensed music.”

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"The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities."

"Despite what appears to be a big-budget lobbying effort by the pro-patent fraternity, Hon Simon Power announced today that he wouldn’t be modifying the proposed Patents Bill hence software will be unpatentable once the Bill passes into law."

"‘Brazil has just created the best-ever implementation of WCT [WIPO Copyright Treaty]. In Brazil’s version of the law, you can break DRM without breaking the law, provided you’re not also committing a copyright violation.’ This means that, unlike the US, where it is illegal to break DRM, in Brazil it is illegal to break the public domain."

"We recently had a fun post about Hollywood accounting, about how the movie industry makes sure even big hit movies “lose money” on paper. So how about the recording industry? Well, they’re pretty famous for doing something quite similar. Reader Jay pointed out in the comments an article from The Root that goes through who gets paid what for music sales, and the basic answer is not the musician. That report suggests that for every $1,000 sold, the average musician gets $23.40."

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The fact is that the idea that copyrights and patents are a benefit to society is based on no evidence at all. It is one of those ideas that were accepted for a long time without being examined in any detail. There are many examples of places and times where copyrights and patents did not exist and innovation there certainly was not harmed, and careful studies have found pretty good evidence that innovation was helped by their absence. The site techdirt.com discusses these issues regularly, frequently pointing to academic research in peer reviewed journals so you can check out the research yourself if you don’t trust the reporting. But you don’t have to depend only on research. There are examples today where industries thrive in the absence of copyrights or patents. One easy to understand example is the fashion business. No copyrights or patents. Lots of copying, yet good money is being made by many players. And there’s certainly no lack innovation there.

It certainly is true that eliminating copyrights and patents would be kind of disruptive, since some large businesses have come to depend on the artifical monopoly authorized by copyright and patents. But there is reason to believe that we would be better off now had they never been invented. Whether the disruption that would come from eliminating them is reason enough to keep them is questionable. I am pretty sure we would quickly adjust to their absence if they were abolished tomorrow, and be better off, on the whole. Of course, that is unlikely to happen because our government is bought and paid for by the businesses that depend on copyrights and patents, so we will have to suffer the burden of these government-granted monopolies for some considerable time to come.

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"If copyright infringement is theft, photographing someone is kidnapping?"

"Some experts we interviewed and literature we reviewed identified potential positive economic effects of counterfeiting and piracy,” The GAO wrote. “Some consumers may knowingly purchase a counterfeit or pirated product because it is less expensive than the genuine good or because the genuine good is unavailable, and they may experience positive effects from such purchases. Consumers may use pirated goods to ‘sample’ music, movies, software, or electronic games before purchasing legitimate copies,” the GAO continued. “(This) may lead to increased sales of legitimate goods."

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Here’s the thing though: no amount of legislation will put that particular genie back in its box. Or at least no amount of legislation that is either acceptable in a democratic society (Yes, the Digital Economy Act arguably crosses that line already, but it’s easily circumvented by technological means and I certainly don’t believe we can go much further beyond the line.) or cost-effective to enforce. Content has never been a rival good and recent technological progress has made it, for all intents and purposes, non-excludable. It’s time to face the music: Content is a public good.

Here’s what this doesn’t mean: It doesn’t mean content is free (Cleverer people than me have explained why information doesn’t want to be free.), or cheap to make (though it can be), or that content creators should not get rewarded for their efforts.

And here’s what it does mean: It means that old business models based on content being a club good simply don’t work. It means we have to rethink our relationship with content - as creators, as distributors and as consumers. It means that there are a lot of giants in the content distribution industry whose livelihoods (profit margins) are being pulled out from under them faster than they can say “illegal downloads”, and they are fighting it. Of course they’re fighting it. They’ve had an incredibly profitable business model for about a century and suddenly they don’t. Let’s face it, human beings don’t like change at the best of times, and we sure as hell don’t like it when it means less cash in our pockets.

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"The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas."