Chad Perrin: SOB

28 June 2007

responses to objections to some statements on copyright law

Filed under: Liberty — apotheon @ 11:12

The following is in answer to the points brought up by reader SLR in answer to my previous post, “a quick primer on theft and copyright”. I only separated this from the collection of comments there and chose to make a new post of it because it grew so long and, I think, is worth presenting more visibly — if only because it addresses reasonable questions directed at my statements, coming from the perspective of long familiarity and even comfort with our current system of copyright law. In other words, I think these are ideas and implications in need of answer.

I’ve reordered things a touch to make my points in what I hope is a more effective manner.

Thanks to a little cutie called “economy of scale,” music copyrights are probably worth more to a copyright accumulating corporation than they are to the innovator.

Economies of scale in the music industry are rapidly becoming a thing of the past, thanks in large part to the growing prevalence of the Internet and the greater natural distributability of market forces therein. It’s all well and good, then, to make the argument that copyright had its time, and was more valuable than it is now, to the music industry — but that assumes that without copyright all else would have been equal. I think it more likely that there would have been greater innovation in matters tangential to the actual production of music itself, as musicians desired greater economic value from their works. How much sooner might we have had the technological equivalent of the CD burner — so cheap to own and use that it almost makes a music distribution channel of anyone with a few thousand dollars in his pocket — if musicians actually needed it to reach a wide audience? What of the advancement of communications networks? How about business model innovations? Artificial scarcity imposes opportunity costs as well as the apparent benefits many believe justify it in the case of copyright, as it eliminates motivation for improving on the means of gaining economic benefit from musical works. At worst for the argument against copyright, that pendulum swings both ways.

The innovators need to start demanding that the copyright accumulators pay what the rights are worth.

That strikes me as effectively impossible. The only way to break the stranglehold the record labels have on conditions of copyright ownership in the record industry is to break the dependence upon them — which means not demanding value for value, but finding a way to jettison the record labels as they currently exist from the business of music distribution entirely. So much for economies of scale.

From my PoV, the likely fraudsters are the agents who say, “This is a standard contract” (true, beside the point) under the guise of and under the professional obligation to seek good contracts for the artists. I wonder if it’s possible to apply the pressures of “fiduciary responsibility” to an agent.

The fact that an agent may also be culpable in no way excuses the record industry corporations. The more people you get involved in an act of fraud, the more people are to blame, typically — and the fact that more people are to blame in no way diffuses the blame or reduces it in any instance. Unethicality is a bottomless well of which anyone may sip, with none the less refreshed for the fact that anyone else partakes.

Record labels don’t just provide effectively unreadable contracts: they provide contracts deliberately designed to take as much from the artist as possible while giving as little back as possible. There’s a point beyond which one is no longer “just trying to get a good deal”, and that’s the point beyond which one gives an impression that rewards will be granted that will not, if one gets one’s way, ever be available. Promising the world and delivering a printout from Google Earth is hardly honest dealing, and the fact it’s all in the contract is hardly justification for those who don’t understand what they’re getting into or have already gotten into it and feel they have no other option than to take whatever scraps they’re offered — regardless of whether an agent gives it the nod. That just makes the agent complicit. It doesn’t hand off the blame for the moral equivalent of debtor’s prison without the implied initial debt.

That aside, the wickedness of the record label doesn’t change the fact that they have been assigned copyrights, or publishing privileges (usually the former, because of the misery of music-industry contracts). I don’t think “stealing” is the right word for what happens when somebody ignores a copyright, but… ignoring the copyright owners copyrights is wordy. (ItCOC?)

I was a touch sloppy in how I referred to the artist as being “robbed” by the record label. I do not mean that (s)he is literally the victim of theft. It was an ironic point — that theft actually does not occur and, even if it did, the record label is the only one actually getting something valuable from the artist effectively at gunpoint. I suppose it’s kind of a dirty rhetorical trick: point out that the emotional investment in the idea that the artist is the victim of “theft” at the consumer’s hand is incorrect no matter how you look at it, with the intention of putting the reader in a position to stop thinking about that aspect of it and start thinking about the matter of whether theft has occurred at all.

It sounds totally disgusting to say it, but giving money to the record label helps to buy your artist better treatment from the label. Is that the way it should be? Probably not…

Not only does that not strike me as “the way it should be”, but it also is only true in a vacuum — and we all know nothing truly exists in a vacuum (at least within our range of experience). Paying the label only provably buys the artist better treatment in comparison with other artists. There are arguments as strong for the notion that even the artists who generate the most revenue are no objectively better off than the most valuable artists might be without the record labels at all.

So, to get down to my personal stance, I believe that copyrights do, generally (which is to say, not necessarily as they are now), have a positive effect on innovation, because without copyrights, innovation is an economic public good where the whole world is “the public.”

One of the problems with the “public good” (and that’s a perfectly valid economic term in this context, so there’s really no need to explain it) argument here is that it assumes copyright law ultimately leads to greater public accessibility to innovative works. Completely aside from the possibility that the pure, unadulterated motivation to create may be improved by copyright law (which I find wholly without supporting evidence — it’s an intuitive argument, not a logical one, largely debunked by the successes of open source software development and pre-copyright history), there’s also the problem that it is assumed that once created these copyright-motivated works then contribute more value to the general pool than would otherwise exist. This is an obvious assumption, but not necessarily an accurate one: copyright law, in fact, specifically limits distributability, as its entire motivational justification is dependent upon a state of artificial scarcity, and introduces a greater opportunity for force to be employed to prevent the potential immortality of original works.

Furthermore, reducing the span of copyright may also have the unintended consequence of decreasing economic motivation for creating certain types of original works: the environment of artificial scarcity fostered by copyright would then be optimized for works that are most valuable when acquired rapidly, which seems to me to imply technical application and secondary economic benefit. For copyright measured in a period of five years, I could imagine the fiction publishing industry all but drying up as publishers focus their efforts on works that go “stale” such as programming texts. Granted, this would bring the situation closer to a complete lack of copyright law for works of fiction in some regards, as the economic motivators would be more structurally similar to conditions of a lack of coercive power in distribution privilege, but in contrast and competition with other, more lucrative writing markets it may suffer more than it would in a copyright-less world — and, to the extent it didn’t, that would only debunk the entire economic argument for copyright motivating greater innovation.

Finally, nothing in the economic motivation argument in any way suggests it is ethical to impose artificial scarcity on a “product” that exists wholly within the mind, that can only be regulated in the form of its representation — and if it could actually be regulated in its (nontangible) substance would introduce far more troubling ethical aspects to the entire set of circumstances. Do you really want copyright law to regulate the manner in which you derive benefit from reading a book, to in effect regulate the contents of your mind, the processes of your brain’s operation? That, unfortunately, is the final consequence of copyright law in the face of inevitable technological advancement.

When in doubt, let economic principles apply naturally — distorting them with the externalities of such unnatural impositions as artificial scarcity is just asking for trouble.

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All original content Copyright Chad Perrin: Distributed under the terms of the Open Works License