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By: Mark R. Malek
As many of you know, I am quite active on twitter. Feel free to follow me if you would like @ptolawyer. With over 23,000 followers, I often discus intellectual property topics using the twitter interface. For the most part, I provide updates to intellectual property law and answer questions of some of my followers. I have met many colleagues on twitter, and often use it to bounce questions off of them. I especially like hearing about the success of some of my colleagues in the patent and/or trademark prosecution process. Twitter is also a great way for me to follow the various conferences that may be going on around the country.
Over the past couple of days, however, I found myself in a debate with a few twitter users about copyrights. For the most part, I understood most of their points, and I did not necessarily disagree. The big issue was the extent of copyright protection. At least that is what I thought it was. Turns out that a few people who decided to chime in were trying to advance the position that copyrights should be abolished completely.
That’s where they lost me. Let me first address the argument that copyrights are overly broad and that they are sometimes overly enforced. I agree with the later part, but not so much the first part. I guess if someone is trying to use copyrights to enforce something that they are not meant to protect, there is an issue. For example, I have seen too many times over zealous parties trying to enforce the function of software using a copyright. Let me say this in no uncertain terms – COPYRIGHTS DO NOT PROTECT FUNCTION. There simply is no discussion to be had on this.
Copyrights do have their place though, which is why I even begin to understand where the copyright abolitionists are coming from. During the twitter debate this past week, the copyright abolitionists were trying to explain to me how copyrights infringed their civil liberties and that Congress is not empowered to provide for copyright protection. Seriously? The United States Constitution specifically provides Congress with the power to promote arts and science through copyrights and patents. Guess what? They did just that.
Let me take another approach regarding the copyright abolition view. Let’s pretend that you are musician and you and your band have scratched and clawed to make it. You have played in dive bars on late Friday nights to a rowdy crowd (yes, I have been a part of those crowds before) and you might be paid barely enough to cover the expense of the fuel to and from the bar. One day, a song of yours becomes really popular and it turns out that there are some people who are willing to pay for your music. You have finally made it, and the way that you are going to make a living from now on is to sell your music. Unlike the big music business of today, you decide to go it alone without a label, put your music up on iTunes, and sell it for a reasonable price. Despite selling it for a reasonable price, some folks decide that it is not worth paying for it. These are the ones that start sharing your music in the form of digital files on some nefarious internet sites. What can you do? You can attempt to use copyright law to stop them from distributing your music without your consent and, more importantly, without paying you.
The copyright abolitionist is ok with this. Apparently, no one should be compensated for creating new works of art. To be fair, the copyright abolitionist does not come out and say this. Instead, they stop short and just say that there should no longer be copyrights. Ok, tell me the end of the story. How does the creator of an original work of art ensure that the original work of art is not misappropriated? Is the creator simply left to rely on the decency of people and hope they will pay for something that is otherwise available for free? Get real.
I guess that brings me to the question of the day to the copyright abolitionist – what does the creator of a work of art do if the work of art is misappropriated in the absence of copyright?
I will continue to post on this topic. Let me know what you want to chat about and I’ll write some more. I figure my next article will be about the over enforcement of copyright. Perhaps I’ll even discuss some copyright cases that I have had in the past and how some copyright owners are just out there on what they believe their rights really are.
Comments
Posted On
Jun 30, 2012Posted By
Crosbie FitchAmanda Palmer recently made a million dollar deal directly with her fans – which was the exchange of her art for her fans’ money. This cuts the copyright cartel out of their 18th century business model: monopolist middleman. That is why there is incredible pressure to retain copyright (and where the pressure is coming from) – not the artists who have seen the disintermediated future.
To put this in perspective, read: http://culturalliberty.org/blog/index.php?id=276
Posted On
Jul 01, 2012Posted By
Mark MalekCrosbie – why would people continue to pay her if they do not have to???
Posted On
Jul 01, 2012Posted By
Crosbie FitchWhy do people continue to pay a baker if they do not have to?
Only copyright creates the idea of compulsory payment. In all other market exchanges the producer and customer make their exchanges VOLUNTARILY. A loaf of bread, an equitable amount of money, both agree, and both make the exchange.
Without copyright, this is how art is exchanged for money. Amanda Palmer offers to produce some art. Her fans offer to supply an equitable amount of money in exchange. Both agree. Both voluntarily make the exchange. Art for money, money for art. No-one loses any liberty. No state granted monopoly is exploited.
Presumably, her fans continue to pay her because they continue to want her to produce more music. Just as we continue to pay bakers for their loaves if we continue to want to eat them.
Posted On
Jul 01, 2012Posted By
Mark MalekSo by your logic, since people download music and movies without paying for them, they no longer wish for those artists to continue to create new works. I know that is not what you are trying to say, but some level of copyright protection must be afforded to these artists. You cannot fairly compare baked goods and original works of art to music and movies that can be readily digitized and distributed on a grand scale. I completely agree that the term of copyright protection and the sometimes over enforcement of it is out of hand, but there truly is still a place for copyright protection.
Posted On
Jul 02, 2012Posted By
Crosbie FitchThat wouldn’t be by my logic.
One could adjust your statement to have some resemblance to logic thus: “Because people make, share, and download copies of music & movies so cheaply there’s no point in either selling or paying for them, they no longer need to purchase copies licensed by the respective copyright holding publishing corporations, who consequently see the erosion of their business model based upon monopoly profits (arising from an 18th century privilege)”
The publishing corporations will obviously pretend that it is the artists who need the monopoly, when as Amanda Palmer demonstrates, for the artist copyright is redundant as well as anachronistic. The only ones who need the monopoly are the publishing corporations, but they only ‘need’ it in the sense they imagine they can lock the door after the horse has bolted. It’s too late. But, hey, no publishing corporation executive or employee currently gets fired for suggesting that copyright needs greater enforcement, their legal team needs expanding, and their litigation budget needs increasing. They end up extorting and persecuting their customers and blame loss of business on piracy and insufficient enforcement until either the prisons overflow or copyright is abolished. So you see, the cartel are the greatest driving force that’s currently pushing abolition. I’m just Chicken Little pointing out that this is what’s happening, and the sooner copyright is abolished the fewer people get hurt.
The funny thing is, that publishing corporations can join Amanda Palmer, if only they knew it. They have a back catalogue of out-of-circulation works, each one of which can be sold/auctioned to the interested public, i.e. for multi-million dollar sums. Trouble is, they are completely unfamiliar with the idea of ‘selling work for a price the market will bear’ as opposed to ‘copies at monopoly protected prices’. The choice is to sell a work to the interested public for $1m, but never be able to sell it again, or to sell copies at copyright protected prices forever. That copyright protects prices and that it will last forever are two notions that need careful re-examination. For an idea as to how to auction intellectual works to the public see http://digitalartauction.com/history/essay.htm
Can we not compare baked good to works of art? As long as the artist gets paid what they consider an equitable amount for their labour, why should they care how many copies are subsequently made of it? As long as the baker was paid for the loaves of bread given to Jesus, why should they care how much of their bread was replicated to feed the multitudes?
Posted On
Jul 02, 2012Posted By
AaeruI think Crosbie is trying to say, people are willing to pay for the ‘act’ of creation. the value here is not the copies themselves (they can get that on their own computer), the value here is the very act of coming up with the stories or the music itself. Creating it IS the scarcity. Not the copies. To persuade a musician to make music or a storyteller to write stories, it is sufficient for fans to directly hire them for the duration necessary to complete their work.
The only reason why you need to needlessly circle around Direct Fan-to-Artist Sponsorship is because Big Publishers can’t make (as much) money without copyright. This is needless market inefficiency.
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Jul 03, 2012Posted By
Mark MalekI’ve got to tell you that I am not yet hearing a good argument for true copyright abolition. All I am hearing is that the publishing companies are greedy and got too big. Very justifiable argument. The same can be said for many industries. For example, real estate agents. It probably was not that long ago that people just put a for sale sign up on their house and that is the way the market worked. Real estate agents took it to the next level with advertising and hustling to try to get the house sold quicker and for more money. That is how they justify their commission. I guess publishers and record labels are trying to do the same thing. It costs an enormous amount of money to bring a true hit to market, and the record labels are trying to protect that investment in the form of copyright.
Let’s focus our attention, however, on the musician that decides to go it alone. They record their own CD and sell the tracks through their website. Their success will be limited if there is no way that they can stop people from distributing their songs without payment. The only way that it does not happen is if the musician simply relies on the goodness of people and hope they do the right things and pay for the work of art.
In the end, I would agree that the copyright code needs revision, but not abolition. It sounds from the above that you agree as well.
Posted On
Jul 03, 2012Posted By
Crosbie Fitch“They record their own CD and sell the tracks through their website.”
Yes, precisely – given facilities for selling the tracks (as opposed to copies of them that the market prices at $0).
“Their success will be limited if there is no way that they can stop people from distributing their songs without payment.”
Funnily enough, a musician’s fans don’t tend to require payment. They will generally distribute the musicians’ songs to all their friends without payment.
This is a far more cost effective way for the musician to promote themselves and their music without having to contract the services of a publisher/record label (who will require the transfer of the 18th century privilege arising in their music).
I look forward to an increasing number musicians inviting their fans to commission recording sessions, so they can lay down a few more tracks of their latest compositions.
Posted On
Jul 03, 2012Posted By
Mark MalekWait a minute – there is definitely a disconnect here. Do you think that I am some kind of proponent of the fans who are distributing the music being paid? Of course not. I am only saying that the musician should be paid for his/her work, and that money should come from everyone that gets to enjoy that work. When the musician’s songs are distributed freely without payment, how is the musician to make a living? How do you expect that musician to move on to the next song? They probably will realize shortly after their work is widely distributed and their bank account remains at $0 that they cannot continue doing this. This will lead them to some other job that can pay the bills and, eventually, they will abandon the hope of making music for a living. Tell me – how does allowing the free distribution of someone else’s original work advance creation again?
Posted On
Jul 03, 2012Posted By
Crosbie FitchThe disconnect is merely the invidious 18th century privilege of copyright.
I think we’re both agreeing that musicians should be able to sell their work to those who value it.
We’re probably also both agreeing that musicians should be able to avail themselves of the cheapest promoters, distributors, and reproduction facilities that the market can offer them.
Where we seem to diverge is that you seem to think that anyone who enjoys a musician’s work who hadn’t paid for it (loan, gift, library, illicit copy) is a thief, and anyone who makes an illicit copy is a pirate. Obviously, if copyright is abolished there are no infringers – no ‘thieves’ or ‘pirates’.
The lack of a state granted monopoly does not prevent artists selling their work to their fans, it prevents corporations grown fat on that monopoly from continuing their ‘business model’ of buying a copyright for a pittance to sell digital files MP3s, eBooks, etc that cost nothing to make, for an infinite mark up.
This is why Richard O’Dwyer is facing extradition at the bequest of the copyright cartel, not because he infringed copyright (he linked, but didn’t inhale), but because he disrespected copyright, and may have induced others to disrespect it – and therefore is to be made an example of – a fate for other would be delinquents to fear.
So, copyright should not be abolished or immortal corporations that depend upon it will go bankrupt – nothing to do with artists or the benefit of the public. And those still wealthy corporations are lobbying for ever more draconian enforcement (per their fiduciary imperative) and unwittingly hastening the very thing that they fear – abolition. I suggested a way out for them earlier, the lifeline of an alternate business model (selling back-catalogue direct-to-fans), but it is probably too antithetical to countenance.
We thus have a collision between immortal corporations (for which their monopoly is vital), and the people (for which their cultural liberty is vital) – unless the former averts it (or the state realises it needs to call a halt and abolish copyright).
Posted On
Jul 13, 2012Posted By
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Posted On
Aug 14, 2012Posted By
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