Critiquing Copyright Canards — Part Two of Five
Tuesday, December 2nd, 2008 by Patrick Ross
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With this post I continue my five-part series on ten myths surrounding copyright. I have tilted at these canards for years, and now I’m trying to compile those critiques into one series. In the first post I addressed the false notion of copyright suppressing artists and the false claims of rights by some creative works purchasers. Hopefully in the future this tired copyright champion, upon hearing one of these repeated again, can merely point at one of these posts and then go back to sleep.
3. “Copyright stifles innovation.”
No one buys iPods, no one buys DVD players, no one buys video game consoles. Am I right?
Actually, I’m not. Throughout the consumer electronics industry there are success stories based on copyrighted material. In fact, if you wander the aisles of the Consumer Electronics Show as I do every January, you’ll see product after product after product that is solely designed to give us more ways to enjoy creative works, and those products are legal and work under existing copyright law.
Copyright spurs creativity, just as the Founding Fathers said in crafting the Constitution. Tremendous innovations in computer software have come as a result of the assurance copyright offered that the copyright owner would have an opportunity to net returns on the significant capital investment in the development of that software.
To the extent technologies relying on copyright are stifled, these would be designed by technologists who seek to evade our current system of rights. Why do they hate copyright? They hate not being able to take someone else’s work and make money off of it through packaging and distribution without permission. I understand their frustration, but we shouldn’t change the law to enable this odd form of innovation that exists only by relying on disabling the innovation rights of others.
4. “Copyright owners need to change their business models to recognize consumer demand. They should stop trying to make money on intangible goods and focus on revenue streams from tangible goods.”
As to the first part of that statement, copyright owners are doing that every day, because they know if they don’t they will go out of business. That is true in any industry, period. Some change quickly enough to survive (Southwest Airlines), some don’t (Pan Am). But it is a peculiar digital-age argument indeed when people who are not creators and are not earning a living off of copyrighted works feel they have a right to dictate to those creators and copyright owners exactly how they should be earning a living. Do we have a right to change how they do business? I suspect not.
There are certainly some artists out there – mostly up-and-coming musicians – who are experimenting with giving away creative works and focusing on touring and merchandise. Likely that is, for their level of fame and success, the best economic strategy. But it is their choice. Copyright gives them the right to give their works away. But it also gives them the right to try to earn money on those works, whether they are in digital or physical form.
This argument is usually focused on music, where there are many copyright owners, many creators of varying levels of financial success, and many passionate fans. But let’s look beyond that. Should authors and publishers make e-books available for free and set author speaking tours and sell T-shirts of authors, bestselling and not? Should software manufacturers all abandon proprietary models and place their works for free online, even though under copyright law (reinforced by a recent ruling) both proprietary and open-source models are fully valid and thriving under existing copyright law?
There are two key points to take away here. Copyright allows any creator or owner to do whatever they want with their works, and if they’re looking to satisfy consumers, as most are, they will do as they’re doing now and continue to find new ways to make works available legally. But consumers in this arrangement have every opportunity to walk away from any copyright owner’s offer they don’t like. That doesn’t mean they are justified in taking that work without authorization if they don’t like the terms offered legally. And it certainly doesn’t mean they have any right whatsoever to dictate to other industries what their business models should be. Bitch about them? Sure, that’s what the First Amendment is for. But recognize that there is a difference between not liking the way someone does business and feeling you have a sense of entitlement as far as dictating how they do business.
Next up — Part Three of Five, dealing with the marginal cost of digital creative works and the call for collective licensing.
December 2nd, 2008 at 5:56 pm
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December 2nd, 2008 at 6:09 pm
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December 2nd, 2008 at 6:17 pm
[...] stifles artists and that the purchaser of a work is the one with controlling rights. In the second I focused on the myth that copyright stifles innovation and addressed griping about creative [...]
December 3rd, 2008 at 1:21 pm
“Recognize that there is a difference between not liking the way someone does business and feeling you have a sense of entitlement as far as dictating how they do business.”
When the business model is suing consumers, plaguing customers with *false* accusations and trying to extort money out of people who haven’t done anything illegal, they have every right to fight back.
December 4th, 2008 at 3:37 pm
“Recognize that there is a difference between not liking the way someone does business and feeling you have a sense of entitlement as far as dictating how they do business.”
Oh, Patrick, how these words will haunt you. I suspect you’ll hear them sent right back at you the next time your benefactors, the major record labels, sue the makers of a new digital music product.
December 4th, 2008 at 4:14 pm
There is a difference between suing a company that has built a business model on illegal infringement of one’s rights, and choosing to infringe on someone’s rights as a way of “fighting back” against a business model one doesn’t like.
December 4th, 2008 at 5:29 pm
Tomato, tomahto. We the people, through our elected representatives and courts, determine what’s illegal and what business models are legitimate. I could just as easily say that the major record labels have built their business model on illegal violations of the antitrust laws and outright bribery of radio stations.
You want to talk about a sense of entitlement? How about asking the taxpayers to pay the DOJ to act as civil copyright litigators for the major labels?
Oh, but I forgot - antitrust law is irresponsible meddling with the free market, while copyright-on-steroids and paracopyright are just a defense of property, right?
December 4th, 2008 at 9:58 pm
Bravo Patrick!!! Finally, a voice of reason backed by some conviction!!!!!!!!!
December 8th, 2008 at 12:02 am
“There is a difference between suing a company that has built a business model on illegal infringement of one’s rights, and choosing to infringe on someone’s rights as a way of “fighting back” against a business model one doesn’t like.”
The difference being is that has been *repeatedly* shown that mistakes have been made and the wrong people have been sued (and threated) on several occasions.
December 10th, 2008 at 3:47 pm
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February 8th, 2009 at 8:14 am
“No one buys iPods, no one buys DVD players”
There were lawsuits against the technological ancestors of these devices (the Betamax, and if my memory supports me, the Rio). If they had succeeded, iPods and DVD players would not exist to buy. It is rather transparently impossible to detail where we would be now without the DMCA and related rulings. I would imagine that, this long and arduous path of accomplishment and revision left unfinished, any primitive conceptions of such devices as might otherwise now exist would merely leave them seeming useless and unnecessary. Nonetheless, it is inaccurate to label the “copyright industry” as any friend of technological advancement.