> Giving Away Intellectual Property for Free is Free
> Advertising

I do believe you misunderstood this. It's "free advertising" in the sense of popularising the product. Microsoft's "strategic" approach to piracy in developing countries is a good example. Still, you are right - it doesn't excuse copyright infringement. However, there is a realist approach one can take when dealing with copyright and it goes like this:

The Catholic Church deems sex before marriage and birth control wrong, but Catholics do it anyway (not picking on Catholics, it's just an example). That's because technology has changed the rules of the game and it's pretty easy to have sex without worrying about pregnancy etc (Not that it stopped people before, but it wasn't quite as in-your-face).

Similarly, we can argue about 'right' and 'wrong' forever but technology has changed the rules and bits are pretty easy to copy. This doesn't change the fact that professional content creators bring value to society, but it also does not mean that society will accept increasingly onerous rules (and restrictions on new technologies) to help maintain the content creation industries' business models.

The content industries have to figure out how to adapt to their environment or perish. The VCR didn't kill ad-supported TV, it created a whole new revenue stream. Similarly I refuse to believe that P2P will "kill" movie studios, they'll just figure out a newer way to make money.

As usual, I agree 100%. It's up to the copyright holders to decide what to do with their work. It's funny how the people who argue against copyrights are the same people who so vehemently defend the GPL. I don't see the difference.

> is like arguing that calling your ex-girlfriend a slut isn't libel because you only said it
> to people over IM

It's not libel if it's true.

Hmmm, I'm a regular reader of TechDirt and I don't recall TechDirt every being anti-copyright.

As to Article I, Section 8, Clause 8 of U.S. Constitution, you seem to be throwing it around as well. Where in that clause does it say that you are ENTITLED to a financial reward? At the very most you are entitled an OPPORTUNITY for a financial reward. Being granted a limited monopoly by the government does not imply any additional entitlements, including a guaranteed stream of revenue.

Lets go through your points.

1. Giving Away Intellectual Property for Free is Free Advertising

You totally misunderstood the notion of free advertising. No one ever suggested giving IP away for free. One of the ideas is that music companies should not sweat too much about all those songs on p2p networks because they act as a form of free advertising.

Do you really believe that the increase in music sales during the rise of Napster was a coincidence? A lot of people were introduced to new music during the Napster era and a lot of those people went out and bought music based on what they downloaded.

2. Copyright infringement isn't stealing because the copyright owner still has the original item.

It's not stealing, 17th century definition or not. That's why it's called copyright infringement and, fortunately, semantics is very important in a court of law. Your argument relies on the fallacy that every illegal download represents a lost sale (or at the very least a POTENTIAL lost sale).

Please tell me you don't fall for the monotonous "illegal downloads cost us X dollars" line that the RIAA, MPAA and others keep repeating? If you do, please show where on the financial statements for any media company is the line that shows "lost income due to illegal downloads" (hint: no such line exists)?

3. Successful copyright holders and content creators are rich so they deserve copyright infringement.

I really don't know how to respond to that. I don't recall Mike at TechDirt making that point. Oh, wait, I just realized, you are responding to comments made at TechDirt, not the posts by TechDirt themselves. Hardly fair to lump the comments with the posts, is it?

4. Copyright take too long to fall into the public domain

Probably your weakest response and the point where your entire post unravels (well, maybe that happend in point 3). You seem to agree that the life copyright is too long, but leave us dangling and change topic by arguing that even 14 years wouldn't be good enough for the "'free stuff' brigade on sites like TechDirt".

You offer no compelling reason why copyright should extend beyond the life of the creator of the content. Exactly how does extending copyright for 70 years after death help in the promotion of "the Progress of Science and useful Arts"? The original creator is dead and is unable to improve on his own works or even create new works based on old works.

So it was okay for Disney to create new works based on works in the public domain, but it is not okay for others to create new works based on Disney works that should have been entering the public domain? I'm sure that sometime before 2023, the rules will change, again.

5. Middlemen like record labels and publishers make most of the money from copyrighted works

I'm not really sure what you are getting at with this point. I don't recall Mike on TechDirt arguing that it was somehow wrong for the middleman, record labels and publishers for making a lot of money from copyrighted works. Like you, Mike has pointed out that content creators have new avenues to get their content out.

Mike's argument has been that the middlemen need to evolve to survive. Your argument seems to be that we need more laws to ensure that the middleman does not have to evolve - why should they change because people are infringing? Correct me if I am wrong.


My biggest problem with your rant is that most of your rant seems to be in response to what is mentioned in the comments and not the actual posts made by the staff at TechDirt. A discussion is just that, a discussion. Or do you believe that people should judge your rant based on what comments are left by the public?

That's a good summary! But I think there are a couple of other misconceptions that ought to be cleared up.

A. Copyrights are an aspect of a free market. This just isn't true: copyrights are a RESTRICTION of the free market intended to provide a greater good.

B. Copyrights exist to keep creators and companies in business. This isn't true either. The existence of copyrights and patents has both costs and benefits. Example benefit: there is a greater incentive to create works and come up with new inventionxs. Example cost: these new inventions and works will be distributed at a higher price than if there was a free market.

The big difficulty in having a rational debate is that almost no attempt seems to have been made to work out the value of these costs and benefits.

However, if you look at incidents like the Eolas patent, it seems likely to me that at least in some cases the costs are greatly exceeding the benefits. The inventions are often trivial, the costs of complying with patent law immense.

I read the Scott Adams blogs on the subject and found them irritating, because he quite clearly assumes that copyright exists as a fundamental human right guaranteeing his personal benefit. "Life, liberty, the pursuit of happiness and Scott Adams' wealth".

Copyright does not exist for his benefits but ours (the public's): it assumes that the economic and cultural benefits that WE get from new Dilbert cartoons outweigh the costs. If it turns out that those benefits don't outweight the costs, then we should reconsider the law. He doesn't have a fundamental human right to his copyright: he has a privilege which we have extended to him in our interest.

Furthermore, if technology changes these costs and benefits in some way, we may need to adapt the law to take account of it.

For instance, the relatively new field of computer software has allowed a vast number of inventions to be created about it. The purpose of patent law is to encourage such inventions. But if so many are being created, that could be a sign that we've drifted across the line where the benefits of patents outweighs their cost. This could be a sign that we need to raise the barrier of originality.

Similarly, suppose new technology makes it much easier to create and distribute certain forms of content. The purpose of copyright law is to give people an incentive to do this. But if it's now easier, then people need less incentive. We may want to take this into account in the law, reducing the extent and duration of the copyright, so that we can lower the costs but get the same benefit.

Dare,
I think you do a good job of explaining the POV of the afore-mentioned middle-men. However, you seem to dismiss without much factual evidence the argument that copyright terms are entirely too long to properly balance the incentive to produce with the right of the public to learn from and build upon previous work. Saying that some people wouldn't be happy even if terms were 14 years doesn't change the fact that society as a whole loses out when terms are longer than the lifetime of either the work or the author.
In fact, the two greatest concerns I have with the current copyright compact are:
(1) Terms are too long, and compounded with the lack of registration formalities, this leads to most work being kept out of the public domain for its useful lifespan. Thus, no other authors can make derivative works, transform the content into different formats, etc.
(2) Content producers are attempting (and succeeding, in the current legal framework) to control not just the distribution of their works, but the personal use of it, curtailing both the rights of fair use, and the doctrine of first sale.
So, holding up a particular article or community as a strawman in order to argue that the debate against copyrights is without merit is avoiding the real deficiencies of our current system, and the perverse incentives in the legislative system that work against any kind of reform.

--kirby

re: point 5

I think most artists get screwed by their record company in exchange for being famous. The record company promotes the heck out of them, gets them on TRL, pays for their tours, hotels, everything. In return the record company keeps the artists IP. Their fame gives them the opportunity to get rich on their own terms later.

Metallica is a particularly loathsome example. Their entire fanbase was built on them saying "here's a free copy of our EP. Take it, make copies, give the copies to your friends. Tell all your friends about us." Then, once they became famous, they started suing their fans for doing the very thing that got them their exposure. The hypocrisy is why Metallica sucks, not their defending of their IP. They were rewarded for their defending, and suing, with oblivion and obscurity.

Hi Dare,

Thanks for discussing my post -- though, I think you may have mischaracterized much of my argument. I would like to respond to a few points.

> I tend to avoid TechDirt because I find the writing particularly poor, full of monotonous arguments and specious generalizations.

I'm truly sorry you feel that way. We do try our best, and if you have specific complaints about the writing or arguments (beyond what you've written here) I'd appreciate hearing about them.

> I felt dumber after reading the article.

That seems like a cheap shot -- but I'll apologize if that's truly the way you felt. However, the arguments you make following suggest that you didn't actually read what we said, but what you WANTED me to have said so that you could rip it apart. I don't think that's very nice or very fair.

> Thanks to the Mike's article I've decided to write this rant on how to avoid sounding like a 15 year old high off the fact he can download the latest Billboard Top 100 hits off of The Pirate Bay without coughing up $15 for a CD when talking about copyright

That's another totally uncalled for cheap shot. I've made it clear repeatedly that I do not download music and certainly don't encourage others to download music. It's very much illegal. My point from the beginning (and I've made this very clear) is that the companies that rely on bad business models are going to get hurt one way or the other.

Obviously, from your statements, you don't read Techdirt very often, so I can understand why this element of our argument was not clear to you -- but I find it a bit self-serving on your part to assume what are position is when you get it so very wrong.

> Lots of folks throw this statement around but never really internalize what it means. A key purpose of giving authors and other content creators exclusive rights to their intellectual property is to enable them to be rewarded financially from their works for some time before allowing these creations to become "owned" by society.

Indeed. However, that does not *require* those who create intellectual property to make use of that exclusivity. The point I've been making all along is that you can do better by ignoring that exclusivity... and that those who rely on the exclusivity will find themselves eventually beaten in the marketplace by those who don't.

> This is supposed to be an incentive that enables the creation of a professional class of content creators and thus benefits society by increasing the number and quality of copyrighted works as well as creating a market/economy around copyrighted works.

Indeed. It is *an* incentive, but it is hardly the only one. To assume that it is the only one is where people run into trouble. If there are better incentives that the marketplace can provide by ignoring that monopoly power, wouldn't that be of interest? Wouldn't it be especially of interest in cases where it means that companies that rely on that monopoly power may face a difficult competitive situation going forward?

> Most arguments against copyright laws are directly or indirectly an attempt to challenge the existence or benefits afforded the professional class of content creators.

No. Not my arguments (though you imply they are). My point is that you can do better without that incentive... not that there's anything wrong per se with the incentive. Just that it's not needed, and those who use it as a crutch will face difficulties going forward.

> Giving Away Intellectual Property for Free is Free Advertising: It's only free advertising if there is something of even more value that the content creator can sell. In many cases, this simply isn't the case.

Well, there are few problems here. The first is that you assume that there are cases where the isn't something more valuable that can be sold. If you name the content, I'll name you the more valuable product that can be sold alongside it.

The second is that you state this by itself without understanding the entire business model that we've presented. We don't just say "give it away, it's free advertising." We say "here's what you give away, here's what you charge for -- and if you don't do this, someone else will."

> And trying to apply that rule uniformly is as foolish as trying to point out that since companies like Microsoft and IBM give away free T-shirts with corporate logos as a form of advertising then Nike and Abercrombie & Fitch should do so as well.

Again, if you took the time to actually read what we write, you would see that we would never say that. I'm really not sure how to respond to you when you make up our arguments for us and they're stuff we've never said.

We've made it clear, repeatedly, that the business model that makes sense is giving away the non-scarce goods that make the scarce products you sell more valuable. It's really that simple. You expand your market by giving away the products that have no marginal cost, but which make your non-scarce products much more valuable. That's not the same as giving away t-shirts.

> Copyright infringement isn't stealing because the copyright owner still has the original item: This is one of those attempts to split semantic hairs instead of debating the actual cost of copyright infringement

No, it's not splitting semantic hairs. It's a very important point that shows how copyright infringement is VERY different than stealing. Even the Supreme Court notes the difference between the two -- and the fact that the person who originally had the content still has it makes as HUGE difference in the impact of the "crime."

> What the copyright owner loses when people pirate his or her materials is the ability to sell to those customers who are using the pirated goods.

I'm not sure why you call our arguments specious when you then make the above comment. "Losing the ability to sell" is not a crime. The ability to sell is about market choices. When you go out for lunch and pick the deli on the corner instead of the pizza place across the street, that pizza place has lost the ability to sell you lunch. By your logic, you've just stolen from them. See the difference?

Someone *copying* content is not stealing. They may make the business model for someone trying to sell content more difficult, but there is no law guaranteeing you your business model.

No one is out any resources, however, so there is no theft And that really is the key. Resource allocation means everything here, and if no one is out any resources, then it's hard to see how there's a problem economically.

> The more people who choose to grab the latest songs off the Internet for free, the less money the music industry makes. Not only is this common sense, it is a documented fact.

First of all, this is very, very wrong. The more people who choose to grab the latest songs off the internet just means that the places where you can capture the money are shifting. The fact that the traditional CD sellers are making less money doesn't prove that. It just shows they haven't learned how to adjust their business model properly. The fact that CD sales are down does not prove your case. All it shows is that CD sellers haven't figured out how to adjust to the changing marketplace.

Also you seem to have confused the "recording industry" with the "music industry." Recent studies have shown that the *MUSIC INDUSTRY* is actually doing fantastic these days. That includes those who sell instruments, tools for recording, those who run live shows... basically everyone but the traditional recording industry who still (wrongly) believes they're in the business to sell CDs. So, yes, there may be fewer CDs sold, but there were fewer horse-drawn carriages sold once the model T came out and no one went around accusing Henry Ford of theft.

The fact that tools to create, distribute and promote music have only become much much cheaper has actually INCREASED the size of the music industry. It's INCREASED the number of musicians out there. It's INCREASED the number of songs being distributed. It's INCREASED the amount of choice for what people can listen to and how they can spend their entertainment dollars. Just because it's DECREASED the dollars spent on an obsolete piece of plastic doesn't mean that the entire music industry is in trouble. Look at the numbers. It tells the opposite story.

> Successful copyright holders and content creators are rich so they deserve copyright infringement

I never have and never would make this argument. I don't believe it's true and never would have said it. Please tell me why you think I've made this argument. It's a ridiculous argument and to imply that I've made it is simply incorrect. I'd ask you to retract it.

> Copyright take too long to fall into the public domain

I'm not sure what you're getting at with this point here. My problem with copyright extension is that it clearly goes against the purpose of copyright. As even you note, the purpose is to put in place the incentives to create content. Once that content is created, why would you change the incentive for content that is already created?

> It is true that the pendulum may have swung to far towards the wants of copyright holders in this regard but it should be noted that even if we did go back to the rules from the Copyright Act of 1790, it is unlikely that the "free stuff" brigade on sites like TechDirt would be happy with copyrights that lasted only 14 years.

Again, I don't really care how much copyright lasts for, other than to note that almost all companies would be better off simply ignoring copyright, because they can expand their market much further without it.


> Middlemen like record labels and publishers make most of the money from copyrighted works:

I've never made this argument. I never would. I don't have any problem with middlemen making money. Again, I don't believe it's fair to imply that we've made this argument. Again, I ask you to retract it.

As long as middlemen provide a valuable service in expanding your market, I have no problem with middlemen making money. I've never said otherwise.

> After reading that, it is probably clear why reading the monotonous and ill-considered arguments on TechDirt gets old for me

Actually, it doesn't. Because a bunch of the arguments you claim we make, we don't. Others are taken out of context. Finally, on the remaining few, you haven't taken the time to understand what our position actually is. So, I'm sorry if it gets "old" for you, but it doesn't seem like you actually read what we have to say, but prefer to pretend we've said what you'd hope we said. If you actually read what our position was, perhaps you'd realize that there's quite a lot in there that you apparently haven't bothered to consider.

So, it's easy for you to argue against a strawman. If you want to actually argue against the points we make, I'd be glad to discuss them with you. To make up our arguments and knock them down is hardly compelling.

Again, I'm sorry you dislike our site. I'm sorry you think my arguments are dumb and somehow eat away at your intelligence (though such claims hurt my feelings personally I'm certainly an adult and can live with the fact that some people dislike what I have to say). We always strive to improve our posts and if you have concrete recommendations, I'm all ears. But I find it somewhat baffling to find myself at the end of an attack that doesn't actually represent my views, and when it does, takes them totally out of context.

I'll summarize the point, once again:

We are not "against" copyright. We are simply pointing out two things:

(1) You can build a much larger market for yourself by ignoring copyright
(2) If you don't, someone else will, and then you'll be in trouble.

Our position is hardly advocating that individuals infringe on copyrights. It's very much from a business perspective of recognizing how these things impact your market and how you can do much better for yourself without relying on the copyright crutch.

I understand that you disagree, but if you're going to disagree, disagree with the actual points we make rather than blatantly attacking us by painting us with the wrong brush.

I have 50,000+ MP3's. 95% downloaded. Here's why I don't feel bad: The music industry is run like the mafia, i.e. it's basically a criminal enterprise. Price fixing, payola, etc. Every few years they're fined millions of dollars, and then it's back to business as usual. So, I don't feel bad stealing from criminals.