Why The Copyright Debate Turns Into Mush

One of the great problems with the current debate over copyright is that the loudest voices you hear are the most diametrically opposed On one hand, you have the MPAA and RIAA and all their sister organisations around the world, who regard any copying for any reason as a violation of their rights, and want technology which would effectively allow them (and them alone) to dictate when a work is copied. This is, of course, at best a misunderstanding of the role of copyright. Copyright isn’t some inalienable right: it’s there to further the purpose of greater development of the arts and sciences, which has the incidental effect of giving people like me gainful employment and keeping us away from a life of crime. And, if another, better way of governing how publications furthered the interests of the culture came along, dropping copyright would be the right thing to do.

Which is, of course, the argument of the Other Side: those who believe that copyright has had its day and now does more harm than good. I have some sympathy with this, particularly when you hear of the lengths that large copyright holders go to to push forward their interests – it’s not so long since they were claiming that it would be morally right for them to sneak into your PC to destroy illegitimate files.

Yet this argument – that we should judge copyright by the excesses of the largest corporations – is a red herring. The majority of copyright holders don’t want to abuse their rights. They’re happy for libraries to lend books, for people to use work for academic purposes, even in most cases for people who genuinely don’t have the money to buy their work to copy it. I’d rather someone see my work than not, and if there’s no way they can pay for it – fine. Of course, if they can pay for it and don’t because they’re tight-arsed bastards, that’s not fine and I’ll hunt them down with a shotgun.

That’s why things like the the Authors Guild suing Google over Google Print leaves most informed authors holding their heads in their hands and weeping. The idea that a system which makes relevant books easier to find and therefore buy is  somehow not in the interests of either the general public or of authors themselves is bonkers. What the Authors Guild is doing is simply a squeeze: an attempt to get money for nothing. While that’s an understandable motive, in this case it’s idiocy.

However, the behaviour of major copyright holders, however stupid, does not itself justify the end of the whole copyright system. Using the behaviour of individual copyright holders to justify the end of copyright is as stupid as claiming that the behaviour of individual capitalist companies justifies the end of capitalism. What matters is the overall effect of the system – and here, I have yet to see any coherent argument that shows that copyright, broadly defined, is a problem. Of course, that doesn’t mean that current copyright legislation isn’t rubbish: 70 year terms are clearly beneficial to the copyright holder at the expense of literary and cultural advancement. To use a slightly low-culture example, the fact that Disney can keep milking Mickey Mouse means it doesn’t have to bother creating new compelling characters – and I fail to see how that’s beneficial to anything but Disney’s bottom line. In the end, it won’t even be beneficial to Disney, which has ended up relying on outside companies for big hits.

But that’s all to do with the details of copyright, not the principle. The problem with the copyright debate is that the debate gets polarized, between those who see copyright itself as a problem, and those who see copyright solely as a method of making money in perpetuity. And, on both sides, there is enough rubbish spouted to keep incinerators burning for weeks.

Take, for example, Brad Hill’s attack on Walt Mossberg’s column on DRM. Walt  is, as Brad rightly says, one of those columnists who people listen to. He’s smart, accurate, methodical, and entertaining, and probably has more influence in the technology market than any other writer. Most of all, Walt is about as fair as a writer can get: he doesn’t take sides, which occasionally annoys the fanbois.

Walt’s point is that:

The real issue isn’t DRM itself — it’s the manner in which DRM is
used by copyright holders. Companies have a right to protect their
property, and DRM is one means to do so. But treating all consumers as
potential criminals by using DRM to overly limit their activities is
just plain wrong… Even if you think the record labels and movie studios are stupid and greedy, as many do, that doesn’t entitle
you to steal their products. If your local supermarket were run by people you didn’t like, and charged more than you
thought was fair, you wouldn’t be entitled to shoplift Cheerios from its shelves.

Brad, though, claims that Walt is confused. However, I think that Brad is the one that’s confused, both in his own thoughts and in what he claims Walt is saying. Brad’s first point is that "apparently, then, consumers are criminals, after all" – which of course isn’t what Walt is saying. Brad is going from Walt saying that "some consumers are criminals" to "ALL consumers are criminals" – which is, of course, false. In other words, Brad is creating and attacking a straw man.

Quite why Brad wants to deny the fact that some people use the Internet to obtain copies of software, books, music and movies without paying for them, I don’t know. But that’s what he appears to be saying, at least if he is truly denying Walt’s point that some some people do exactly that. Not all. Not even "most". Some.

The second substantive point Brad makes comes here:


Walt falls into two moldy traps. First, the word “entitle,” used twice, is inappropriate, and betrays an assumption that markets are thinking, moral creatures. They are not. Markets are more like tides, their movements dictated by conditions of supply and demand. Markets for popular media will always seek to obtain that media by the most convenient
route. Like a mountain stream seeking low ground and running in well-worn grooves, the music market has been given a smooth-flowing path by technology, and is moving within it. There is no “entitlement” about it, any more than a moth feels entitled to obtain the flame, or a person feels entitled to breath.

The mistakes that Brad is making are to identify the cost of distribution and reproduction with the cost of creation, which allows him to avoid the idea that copying is equivalent to stealing, and to equate a personal choice to act in a particular way with the decision-free actions of a mountain stream. To take those points in reverse order: the water molecules that make up a mountain stream have no free will. They simply obey immutable physical laws. The actions of markets are made up by millions of individual choices, ALL of which are taken by beings who exhibit free will.

Consider the following point: if markets were solely based on supply and demand, then the iTunes Music Store would have failed. The availability of legal, paid for music has not reduced the amount of illegal free music – and, if markets were purely about supply and demand and involved no element of free will (and thus, moral choice) no one would buy what they could get for free.

Thus, the word "entitle" – which is a word that concerns the human spheres of morality and legality, which in turn depend on free will – is entirely appropriate. Brad is using a false analogy to make his point, which thus falls. Markets are not more like tides, and they will NOT always seek to obtain media by the most convenient route.

The second mistake that Brad is making is to identify the cost of distribution with the overall cost of production. He uses the following analogy (which he claims shows Walt is making a false assumption):

Imagine a new technology that can make unlimited numbers of free Cheerios and deliver them into the home
effortlessly. Entire legal industries and stores full of legal products facilitate obtaining Cheerios in this fashion.
New packages are devised to hold these next-generation Cheerios. New bowls and spoons make eating them far more
enjoyable and convenient than the old bowls and spoons. Users love to feed their friends and family by sharing
replicated Cheerios. It feels right that sustenance should be free, though consumers also gladly pay for Cheerios with
added value that fit into new cereal lifestyles. Of course, the equipment needed to acquire, eat, and share new
Cheerios is not cheap, but the necessary products and services so exactly facilitate the new-Cheerios life that
millions find the investment worthwhile and outfit their homes accordingly. Increasingly, there is less reason to
trudge to the store and buy cumbersome old-world boxes of Cheerios.

In this scenario, the cost of production for Cheerios becomes zero, while the cost of consuming Cheerios overall increases. But the problem with this is that, again, it’s a false analogy: While the cost of copying and distributing a digital file is now (effectively) zero, the cost of producing it prior to copying and distribution is pretty much static, and, in the case of (for example) movies, continues to increase.

Take, for example, a written feature. The cost of distributing a feature on the Internet is near zero. You can make copies of it at a cost that’s so close to zero it is, as they used to say about nuclear power, "too cheap to meter".

Yet the cost of producing a feature is seperate to the cost of copying and distributing it. It takes me a few hours of my time to physically write the feature. It takes me more time to research it – and time, as they correctly say, is money. My time and my labour are not zero-cost, because, at the very least, while I’m writing a feature I’m not making any other money. The same is true for music, for video, and for code.

So Brad’s analogy is false: while in his example, Cheerios are produced at zero cost and distributed at zero cost, in the world of songs, words, and images the production cost is NOT zero. And this, again, means that when you do not compensate a creator  who asks for compensation, you’re getting "something" – a proportion of the efforts he put into creating it – for nothing.

This is why Walt is right and Brad is wrong. If I decide to seek payment for my labour, I have a right to protect my work in such a way as to ensure that payment happens. That doesn’t assume that everyone is a thief: it simply means that I’d rather that anyone who’s not prepared to pay for my work doesn’t get it, at least not easily. It doesn’t mean that I want to break into your house and check you’re paying for my work – hell, even the police don’t have the right to do that without a warrent (I hope). It doesn’t even mean that my work is worth anything, or that I’m wise to charge for it – it may be that giving it away makes me more money. But that’s MY choice, because the cost to me of creating it wasn’t zero. And that’s the point that some of the more radical copyfighters don’t seem to appreciate.


  • Chris Bidmead

    OK, this is a fascinating debate, and very nicely aired here by Ian. But let me pitch in with a few points:

    1) “I’d rather someone see my work than not, and if there’s no way they can pay for it – fine. Of course, if they can pay for it and don’t because they’re tight-arsed bastards, that’s not fine and I’ll hunt them down with a shotgun.” If as a matter of principle I’d rather have my work read than not (something Ian and I agree on), why should this principle apply to the poor but not to the rich? How am I to judge who are the “tight-arsed bastards”? What ingenious means test do I apply? How many programmers to I have to distract from their otherwise useful work to implement it?

    2) “Brad, though, claims that Walt is confused.” Walt _is_ confused — excusably, perhaps, because the FUD has been deliberately hurled at us all by the corporates he spends his life writing about. Equating copyright infringement with “stealing” is a major legal confusion. Under the laws of the US and UK and many other countries copyright infringment is a civil offence, and only becomes a criminal offence when carried out by way of business. Most of the unauthorised downloaders of music and movies are therefore not “stealing” in any sense. The shoplifting parallel is therefore argument by false analogy.

    3) “The availability of legal, paid for music has not reduced the amount of illegal free music.” That’s an interesting observation, but isn’t it even more interesting to observe that the availability of illegal free music shows no sign of reducing the amount of legal, paid for music. With the iTunes Music Store Steve Jobs set out to “compete against the pirates”. Of course, like “stealing”, the word “pirates” is another Orwellian weasel word slipped in through the back door to fix the game, but the bottom line is Steve seems to have achieved his goal — created a thriving legitimate business among a “market” of free goods. So the two can exist side by side. As a thought experiment I wonder what would happen if Steve were able to remove DRM completely from the tracks he sells. Would people notice? Would the leaks sink the ship. Or would what folks are currently buying — the iTunes brand, the authenticity, the convenience — keep the business thriving?

    4) ” While the cost of copying and distributing a digital file is now (effectively) zero, the cost of producing it prior to copying and distribution is pretty much static, and, in the case of (for example) movies, continues to increase.” The “static cost” is a lot less interesting than the cost per consumer, from both a psychological and economic point of view. Ask the BBC about this. Ask the trustees of public museums. It’s a complex argument I won’t go into here, but the bottom line is that as the Internet equation drops the cost of distribution towards zero, and so lets lots more consumers (and creators) into the game, the cost per user also tends to zero. You might well ask, how does that help me, the creator? The answer is complicated, but we can cut through it by asking ourselves “Who paid for Ian to write this interesting and well argued piece about the copyright debate? Who is paying for the time it takes me to make this intelligent and thought-provoking response? Would either of us have bothered if we thought only our mums and dads were reading this?

    By the way, I’d dispute that the cost of movie production is, in any meaningful way, increasing. What is probably the best film noir ever, “Gun Crazy” was made in 1949 on a shoestring. The biggest overhead — no stars, no sets — was the cost of stock. Digital has pretty much reduced that cost to nothing. So it’s not hard to see that you could make a great film today for even less than the cost of “Gun Crazy”.

    Of course that’s what frightens the studios, which is why they keep trying to up the ante with ever more expensive effects — this has been a cyclic tendency in Hollywood since the inception. The films get worse and worse as they get bigger and bigger and more and more expensive (this year has been a crowning example). The other high cost factors are publicity (80 per cent of the cost, often) and the price of stars, which really should be taken out of the production budget and factored into the distribution and publicity cost.

    There’s a lot more to be said about this, but I’ll back off and leave others to say it.


  • Chris Bidmead

    There is one other point to be made. Ian’s piece concludes by suggesting:

    “If I decide to seek payment for my labour, I have a right to protect my work in such a way as to ensure that payment happens.”

    This seems intuitively sensible. But how do we reconcile this with the caveat in the opening paragraph:

    “Copyright isn’t some inalienable right…”

    I think the first thing to observe is that we’re talking here about two rather different rights — the copyright itself in the first instance, and in the second instance the author’s “right”, whatever that may be, to “protect” that copyright. Having arrived at the point of view that copyright, although not inalienable, is indeed some kind of right, Ian seems to assume that the right to protect this copyright flows in some seamless way from it so that one right is indistinguishable from the other.

    I believe this is a mistake. A very similar mistake would be made by a man who feels he has a right to his public dignity, punches me in the nose for calling him out as a scoundrel, and is then surprised to find himself jailed for assault.

    The Jeffersonian underpinnings of copyright clearly identify it as a temporary concession made by “We, the People” to the author. Any protection or enforcement of that concession belongs in the domain of the law and the courts. So in plain fact it’s untrue to say “I have a right to protect my work”, in much the same way as it is dangerous and legally inaccurate to say “I have a right to booby-trap my home against burglars”.

    Indeed it’s arguable that the right I have to my home is much stronger and more fundamental than any copyright could ever be. In Jeffersonian terms my novel, my essay, my painting, my computer program, or the map I have drawn from my months of wanderings beyond the Rockies, will be more like an assembly of entities, ideas and experiences already in common ownership. The sole function of copyright is to encourage me to make such assemblies. To make copyright work, the law will protect that copyright for some agreed term. Jefferson does not extend to me any concession to protect my work by booby-trapping it.

    If there’s any validity to this argument (and IANAL), then it follows that digital rights management lies quite outside the scope of traditional Jeffersonian copyright. I’d go further and say that it’s a modern novelty that has surruptitiously attached itself to the arena like (as I’ve already suggested) “stealing” and “piracy”. It’s a barnacle that really needs to be prised off the hull of the good ship Copyright and examined for merit independently.