Why Copyright?

People should listen to Tim Lee:

I'm going to have to respectfully disagree with Braden Cox's take on post-sale restrictions of the first sale doctrine. Braden did a good job of explaining why limiting the first sale doctrine would be good for software companies. But he did not, as far as I can see, provide any explanation for how limiting the first sale doctrine would benefit society as a whole, which is what copyright is supposed to accomplish.[...]

But the fundamental issue here is that the convenience of the software industry is not a sufficient argument for any given change to copyright law. The copyright system is supposed to promote "the progress of science and the useful arts," not to make Steve Ballmer's life easier. The two aren't always in conflict, of course, but they're also rarely in perfect alignment.

It's really impressive that IP owners have done such a good job of obscuring the basic point of intellectual property law. Impressive as a PR achievement, but also extremely unfortunate. It is, however, an important point. The nation's IP regime is supposed to serve the public interest, not the business models of today's IP-creating companies. Keep that in mind as you ponder magazine cover stories about whether or not Rick Rubin can save the music industry. Even if he can't save Columbia Records -- even if nobody can save any of the major labels -- their fate isn't identical with the fate of music, or even the fate of the music business. Once-dominant firms like IBM and AT&T fell very far without that in any way meaning the collapse of the computer or telecom businesses.

Comments

Rick Rubin agrees with Yglesias. From the NYT magazine article Matt links to:

Rubin paused. "That's the magic of the business," he said. "It's all doom and gloom, but then you go to a Gossip show or hear Neil in the studio and you remember that too many people make and love music for it to ever die. It will never be over. The music will outlast us all."

Posted by br | September 3, 2007 4:29 PM

Those who don't use the open source model must die. Like the dinosaurs.

Posted by abb1 | September 3, 2007 5:21 PM

Cue Petey being annoying in 5 ... 4 ... 3 ...

Posted by Realish | September 3, 2007 6:03 PM

Those who don't use the open source model must die. Like the dinosaurs.

In a free market, as opposed to corporate monopoly, they would.

But outfits like M$ are doing everything they can, as large corporations, to crush any free market that dares to rear its head.

Posted by Elegant Eggplant | September 3, 2007 6:15 PM

I wish there was some way we could stop calling it "intellectual property." That unfortunate metaphor has made the IP owners' PR task much easier.

Posted by ed | September 3, 2007 6:39 PM

Correct. "Intellectual property" is an oxymoron - one that only morons believe.

The facts are that there has never been and probably will never be any study that shows that IP protection of any kind HAS actually produced any measurable benefit for humanity over what would have occurred without it.

What HAS clearly happened is that IP laws have enabled the suppression of inventions and the increase in price and slowness in spreading of inventions, in many and perhaps most, if not all, cases.

It's particularly obscene in the music industry case because that entire industry started by appropriating music from others, selling it, and only THEN making deals with the original authors. Had the industry started out by making those deals, it might never have gotten off the ground.

It's irrelevant in any case. Nothing can stop technological progress from making the distribution of music and movies essentially free. The industries involved simply have to find a way to make money without distributing physical product such as CDs.

No amount of DRM or modifications of PCs or the operating systems by Intel or Microsoft will prevent the cracking and redistribution of media. You only need one cracker with the right tools - the result will be distributed freely. As long as media isn't being pumped into our heads through DRM'd implants, there has to be a point where a clear, undistorted signal is present between the device and the listener/viewer. At that point, the system can be cracked and reproduced.

Granted, it will be some years yet before CDs are truly obsolete. A lot of consumers LIKE buying physical product and don't understand or prefer the advantages of digital product. Andrea Corr said she was like that recently in one of her interviews and a lot of fans agree.

Nonetheless, the fact is that people have NEVER paid for music in history. They've only ever paid for ACCESS to music. The only time this was difficult was during the pre-tape-recording period when phonograph records were the only media available. As soon as cassette recorders came in and taping off the radio was feasible, physical media was doomed. The advent of the PC and the Internet guaranteed that.

You notice nobody sues Sony or Phillips despite the fact that they sell CD players with CD recorders built in. Why? Because those companies alone are bigger than the entire music industry, that's why. And they make the hardware the music industry needs to stay in the business of selling physical media. Sony in particular is schizophrenic since they sell the music as well - and are dumb enough to try to implant DRM on their CDs, resulting in the recent "rootkit" fiasco that almost got a class action suit on them.

The reason legal file sharing systems like iTunes took off was because using the illegal peer-to-peer systems was such a pain. This clearly demonstrates that people will pay 99 cents a song for convenient ACCESS to the music - not for the music itself.

This is how the radio industry has prospered for years - free music paid for by "free" (to the consumer) advertising - and why they're now trying to shut down the Internet radio industry which threatens their business model. Actually the real radio industry isn't that threatened by the Internet radio industry - it's the same media companies who want to control the Internet.

The bottom line is that most companies believe that trying to satisfy their customers is a losing proposition and they'd prefer to try to force their customers into buying their product. You see this attitude everywhere today - in Microsoft and the software and the media industries in particular. Every company wants to control your use of their product AND charge you an arm and a leg for the privilege.

It's basically the result of having a "corporate state".

Posted by Richard Steven Hack | September 3, 2007 7:13 PM

...what RHS said.

Posted by scudbucket | September 3, 2007 8:36 PM

oops, RSH.

Posted by scudbucket | September 3, 2007 8:38 PM

Is intellectual property any different from real property or tangible property?

"It's really impressive that [property] owners have done such a good job of obscuring the basic point of [] property law. Impressive as a PR achievement, but also extremely unfortunate. It is, however, an important point. The nation's [property regime] is supposed to serve the public interest."

Personally, I think that's true, but I expect no politician or pundit agrees with me.

Posted by Visitor | September 3, 2007 8:44 PM

The labels have to change their business model. Distribution isn't hard any more. All the bands I listen to these days put their stuff up on the net and/or sell CDs themselves. They don't need a label.

Posted by Church | September 3, 2007 8:55 PM

There are some many lies, half-truths and distortions in the various articles cited that it's difficult to know where to begin.

Hirschberg's puff piece on Rubin is drivel. Hirschberg paint Rubin as some kind of messiah when in fact Rubin's not much better than many of his Columbia predecessors such as Walter Yetnikoff and Clive Davis. All them presume to be maestro's who have "ears". Which isn't to say that any of them can't pick a hit. That said, when you Columbia money behind you, *making* hits isn't as hard as, let's say the guy next door to me recording solo stuff in his home and selling it at gigs. The whole story, it's fawning detail of Rubin's home, his cassette player and Morrison shrine sickens me. The idea that one doesn't see those trappings as possibly denoting the person least capable of saving the industry is bizarre to me.

Matt's right about the industry icons changing. While the majors have significant advantages, at the very most, new distribution technologies and business models will change some of the players. It certainly won't kill an industry unless one pedantically holds onto the definition of the "industry" as one of selling 12" vinyl in small retail shops (or big boxes).

The new business models are out there. And there are few different ways to make money in music that don't involved the archaic sequence mentioned above. The only surprise I've found in the business is that it hasn't changed more quickly. Seven years ago I thought we would be at a place now where the only sales of physical music media would be direct, via mail, through the majors. But you can't underestimate the American consumer. In as many ways as we are demanding and always looking for new novel things, we also cling to bizarrely outmoded and inefficient methods and products as well.

If anything, what the last fifteen years in the music has demonstrated, beyond question to me, is that there really is no such thing as a free market and any corporate entity can legislate itself profits. In face all of a sense, all proportion and frankly, the public interest, congress has continually dreamed up new ways to batter the consumer. And, sadly, the American consumer has, for the most part, stood there and taken it like a crash test dummy.

Posted by ice weasel | September 3, 2007 9:16 PM

It is completely baffling to me how often the press, in writing about the "death of the music industry", neglects to mention that the music that's being made today is absolutely staggeringly good. I barely have time to get through half the "best new music" list on Pitchfork, and I've hardly ever heard anything recommended there that didn't blow me away -- and that's not counting all the amazing stuff Pitchfork disses because Pitchfork didn't discover it, and the under the radar stuff, and mainstream R+B and hip-hop, and on and on. If you compare what's being made today to what was being done in the early '90s, there's really no comparison: there is vastly more diversity and creativity on offer these days -- and the live shows are far better too, because the inability to protect recorded material has led to renewed emphasis on physical presence.

On the other hand, the "bands don't need labels" thing is a little overblown. I just talked the other night to a 24-year-old who quit the music business last year because he was spending 90 percent of his time pitching to TV studios to license his stuff and only 10 percent actually writing or playing music. Division of labor still equals efficiency, even on the internets.

Posted by brooksfoe | September 3, 2007 9:30 PM

Cue someone -- probably Petey -- telling us that it doesn't matter what's in the interest of society, Microsoft and Columbia have an absolute moral right to as much monopoly protection as they can extract from Congress, and anyone who disagrees is guilty of theft.

Posted by lemuel pitkin | September 4, 2007 12:50 AM

"Division of labor still equals efficiency, even on the internets."

The difference is between hiring somebody to do your marketing and distribution for you and selling your first born to a record label on a long-term contract.

Second, while the music made today may be "diverse", none of it is being played on the Clear Channel radio stations or pushed by the major record labels. It's almost all indie, or minor label, and if it wasn't for the Internet and file sharing, they'd all be out of business.

Posted by Richard Steven Hack | September 4, 2007 3:02 AM

RSh makes two excellent points. And I want expand, however briefly, on the quote he cites.

To a point, brooksfoe is right. To a point. The other side is that now, contrasting now with say, twenty years ago, bands have the option for self-promotion that musicians in other times did not. It is much more possible today to bring your work to a national level than it has ever been. This is possible because of the net and the decline of the majors and the decline of broadcast radio.

So while no artist is an island and it does make sense to farm out some functions of the music business, as RSH so astutely points out, one need not sacrifice their work and money just get the career.

Posted by ice weasel | September 4, 2007 8:37 AM

"Once-dominant firms like IBM"....

Snort.

Yeah, IBM has fallen pretty far into obscurity, hasn't it? I'm sure you'd be shocked to know how much of your beloved Web 2.0 is powered in some fashion by Big Blue.

Posted by slave to the dogs | September 4, 2007 10:18 AM

Well, the reality about IBM is that it once was dominant. It gave up that dominance when it didn't realize in the '80's that PCs were going to be dominant over mainframes.

It DID realize that eventually - although it continues to sell mainframes, most of which are running Linux, a free OS - and changed itself to a services company, eventually selling its PC business to Lenovo in order to get a big chunk of the Chinese market.

And currently is having a ton of problems with that services end of the company.

The problem today is Microsoft, which now has the dominant position IBM once had - and is abusing it as much or more than IBM ever did. Microsoft currently is THE biggest impediment to the advancement of the computer industry.

Fortunately it seems clear that it will continue to lose ground to Linux, and unless it seriously re-invents itself as IBM did - which is unlikely as long as Bill Gates has any association with the firm - it is likely to be whittled down significantly over the next decade. The recent decisions by Dell and HP to sell PCs with Linux pre-installed is a significant change that bodes ill for the future of Microsoft.

The situation won't change much more, however, until corporations realize that making Bill Gates the richest guy in the world (or number 2, depending on what figures you read) is not an effective use of their IT capital. Given the stupidity of corporations, this could take some time yet.

Posted by Richard Steven Hack | September 4, 2007 11:45 AM

Corporate lobbyists have become increasingly good at co-opting powerful moral language. I remember back in 1997, when I was working for a Blue Dog Congressman and a banking lobbyist came in pitching one of the early versions of the bankruptcy bill. His first words were "This is a moral issue - we think people should pay their debts." During the napster wars, IP lobbyists developed the "downloading is stealing" meme along the same lines. People should not underestimate the power of such language to make rent-seeking and influence-peddling seem downright noble.

Posted by Kevin | September 4, 2007 2:03 PM

To get back to something one of the original posters said, and to correct an error, the Constitution of the USA says, on the subject of copyright:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Please note - how did the framers of the Constitution think you go about promoting the progress of science and useful arts?

By giving authors and inventors exclusive rights to their writings and discoveries. The Constitution does not say that the progress of science and useful arts will be achieved by making music, video, inventions etc., free for everyone.

Now, obviously they were not thinking of digital media at the time. But the point is the same regardless - if someone is not going to get remunerated for their efforts, they quite simply will not do anything. Of course, there will be exceptions in the case of altruistic musicians and some inventors but, by and large, the vast majority of people will not spend time, money, and energy to create something without the expectation that they will get paid for it.

And the framers of the Constitution, who were much wiser than all of us, recognized this.

Posted by Sober second thought | September 4, 2007 2:56 PM

Of course, since almost nobody does anything creative without being paid for it, it stands to reason that Sober Second Thought is a paid astroturf lobbyist...

But seriously, this is a wonderful conflation of ancestor worship, bad economics, and pure non-sequitur. Congress was granted the power to give exclusive rights, for a particular purpose, on the assumption that those rights would serve that purpose; perhaps they were right then, but it clearly doesn't serve that purpose now. (And there's certainly no constitutional *duty* to use that power.)

The idea that we should somehow take our lessons on the economics of innovation from a bunch of aristocratic warrior-statesmen, lawyers, and planters--many of whom relied on a rather peculier method of extracting wealth from human bondage--would be funny if it weren't so widespread and pernicious.

Posted by x. trapnel | September 4, 2007 4:48 PM

Hack, you're semantically off on quite a few points you made about IBM (the most heinous being that most of the servers it sells now do run Linux, but on a PC architecture, not mainframe), but we can let them slide. My point was that IBM is still plenty dominant, just not in the way that the average consumer is used to seeing anymore.

If Yglesias wants to site trip-ups based on poor IP decision-making in the computer industry, companies like Wang and Micron are far better examples than IBM.

Posted by slave to the dogs | September 4, 2007 5:28 PM