[DMCA-Activists] Re: [DMCA_Discuss] Zittrain: Call Off the Copyright War

[Jean-Michel Smith]

On Wednesday 27 November 2002 02:04 pm, William Abernathy wrote:

> Paid a commission out of what?

You gave an example of doing research and writing an article for a newspaper.  
If the paper were to commission you to do an article, pay you a fee (plus 
expenses, of course), that would be a commission for the work.  In a 
non-monopoly context they would have first crack at the article you wrote in 
exchange for paying you to write it.  However, as they would not own a 
monopoly copy right to the article, you could use or share it with others as 
you wish. 

As an employee doing the writing, it would be a work for hire under the 
current system and you lose all rights even to reuse your own work, as 
someone else owns the work you've done!  This doesn't strike you as absurd, 
that your own creation is the exclusive property of someone else?  As an 
employee in a system without monopoly entitlements (see below) your employer 
would never have exclusive rights to your own work.

> I've heard Stallman argue for a copyright system, sharply limited and
> different in many ways from our current one, but at its core, a system of
> limited monopoly grants. Zittrain is pro-(limited) copyrights, Lessig is
> pro-(limited) copyrights, Stallman is pro-(limited) copyrights, as are all
> the trained legal minds in this movement.

Well, appeals to authority are perhaps convincing to some, but IMHO Stallman 
et al are simply wrong.  They are trying to apply bandages to a fundamentally 
broken system, bandages that will further their own agendas but not address 
the underlying problems with copyright, which include:

* granting of monopolies, which in turn
  - discourage competition (and sometimes ban it outright)
  - facilitate the formation and sustenance of cartels and oligopies, whose 
existence merely requires obtaining key monopolies on key items, be it 
particular artists' works, rights to movies, or what have you.
* the formation of powerful, concentrated interests who can lobby for greater 
controls, vs. a diffuse opposing interest that has a greatly reduced ability 
to lobby the other side of the issue.  Now we have the copyright cartels 
wishing to turn every electronic device in our homes into a governance and 
monitoring system designed to spy upon the populace, track their data usage 
habits, and report any activities unapproved of by those very same cartels.

As long as there are government entitlement monopolies, and concentrated 
interests that benefit from them, this sort of draconian measure to counter a 
new, emerging technology will always rear its ugly head, and even if we win 
the battle today against the DMCA, DRM, and its ilk (and there is certainly 
no guarantee we will), we can be certain that at some point, when some new 
technology emerges that threatens these business models once again (be it 
nano-tech, or something we haven't thought of yet), we will lose this 
argument, with what would likely be catastrophic results vis-a-vis individual 
liberty and, perhaps, the deployment of new technologies altogether.

This is what makes copyright so dangerous ... it empowers a few, entrenches a 
few, and those so empowered balk at literally nothing to promote their 
further interests, even in a world where technology may well render the very 
notion that sustains them obsolete.  It is a stance that is part and parcel 
to the monopoly and cartel mindset: the desire to be 100% (or close thereto) 
of a market of size N, rather than compete and have perhaps only ten percent 
of a market 100N in size (AT&T fought tooth and nail to keep its telco 
monopoly, despite now being one competitor among many, the free market 
blossomed so large they are far better off than before.  This tends to be 
true with most monopoly markets that become competative).

> The problem is not copyright, but
> copyright taken to an extreme unforeseen by the founders and detrimental to
> the public good. This was Zittrain's point, grounded in a realistic
> understanding of how the world works. We do our cause a disservice
> advancing the notion that because software can be developed on a free
> creativity model, all intellectual endeavors can likewise be advanced.

Yet history shows that, while perhaps not Free in the free beer sense, 
artistic endeavor in every field thrived and prospered prior to copyright.  
Indeed, the number of published books plummeted to a fraction of its former 
amount when copyright was introduced.

Free as in Freedom is critical ... without a public commons, there is no 
material for artists to draw upon, and hence a severe limitation on the art 
that can be produced.  Of course, a wealthy film studio or record label can 
license material to create a derivative work, so "corporate artists" are 
perhaps not so constrained, but certainly the smalltime artist creating 
someting in his home or studio doesn't enjoy such a privelege.

> I am at a disadvantage here. I received your critique on a cross-post from
> one of six or seven different lists. And I apologize for the poor
> nettiquette of the massive cross-post, but that's how it hit me, and it's
> the only way I know to make it back to all players.  Please direct me to
> your alternative vision, as I cannot tell which of these lists you're
> referring to. If your vision does not involve A) a monopoly grant, B)
> patronage, or C) creating alternate monopolies (i.e. giving away the record
> and charging for the concert and t-shirts), then you may have something new
> and different here, and I (and bunches of others) will be delighted to run
> with it.

Sorry, I didn't realize you were on a different list (I'm on the DMCA_Discuss 
list).

I won't drag out the details, but a quick summary of one possible alternative 
that avoids monopolies, disempowers cartels, while keeping a financial 
incentive in place to benefit artists goes as follows:

1) Incorporate into law academic standards for plagerism.  The Brothers Grimm 
didn't stop being the original creators of Snow White just because their 
copyright expired ... Disney should have been free to use their work, but not 
free to attach their name and not Brother's Grimm to the story.

2) Replace Monopoly Entitlements with a Right to Revinues.  No limits on 
copying, sharing, etc., but if a copyrighted work (e.g. book, movie, CD) is 
sold by a competitor to the artist (or their duly appointed publisher), then 
a sales tax of some amount is placed upon the competitor's work (tilting the 
market economics in favor of the artist, who can sell their work without said 
tax, and therefor at a lower price), with some portion of that tax (perhaps 
all of it) going to the original artist who owns a time limited Right to 
Revinue.

So, if RCA sells your CD and competes with it, they are taxed some amount on 
each sale (say, 20%), with some percentage of that tax (perhaps the whole 
thing) going back to you as a form of royalty.

This wouldn't stop people from sharing music online, but then, neither will 
copyright, indeed, nothing short of an authoritarian police state complete 
with governance devices in every home will do that.  What it would do is 
insure that the artist has a fair cut of any economic activity (sales, etc.) 
of their work, without restricting how that work is used.

E.g. I make a movie and want to use the latest hit single in the film.  If I'm 
giving away the film, then no problem (and nothing illegal is being done).  
If I'm selling the film, then the amount that that hit single contributes to 
the film (say, some percentage of the entire soundtrack) would be taxed, and 
that money would go as a royalty back to the artist.  But, and here's the 
important point ... my ability to use that work and build upon it isn't 
constrained, nor is anyone elses to take my work and do the same, and the 
public cultural base grows as a result.

There are all kinds of variations on that theme, any of which would work 
without monopolies, without draconian measures to enforce them, without going 
back to a patronage system, without alternate monopolies, and even without 
government subsidy (beyond having the government collect and distribute a 
sales tax as a form of artistic royalty).

The idea is to have a reasonable compromise between public domain and 
copyright monopolies, one that maximizes artistic freedom and cultural 
exchange and growth, while insuring that those who create works are given 
credit for their contribution, and share in any economic activity and 
benefits that is derived from their work (for a limited period of time).

Anyway, sorry to have gone on so long.  That is the general gist, though there 
is plenty of room for fine tuning such a scheme so that the numbers are such 
that competition is sustainable, while the artists ability to earn a good 
living is also sustainable.

Jean.