What If Copyright Only Applied To Commercial Use?
from the a-step-forward dept
Earlier this week, we wrote about the Cato Institute’s new series on the Future of Copyright, with a wonderful first post about just how broken copyright has become, written by Rasmus Fleischer. Our own Timothy Lee has now penned the second piece in the series, wondering if a middle ground would be to just focus copyright laws on commercial use, and allow people to make use of copyrighted content for personal use. As he notes, throughout most of history, copyright laws really only did apply to commercial use, in part because personal use wasn’t even an issue.
Lee notes the inevitable trend towards having the music industry embrace things like file sharing in one way or another, suggesting that having copyright laws just forbid commercial exploitation wouldn’t hurt the industry at all — since most of the business models they’re finally embracing route around the personal copying issue — and would stop criminalizing people who are going to get access to content anyway. As per usual with Lee’s writing, it’s a great, well-reasoned, thought-provoking write up. Go read the whole thing.
However, while I agree that limiting copyright just to commercial use would be a step in the right direction, I’m still not convinced that the restrictions are necessary even for commercial use. Part of the problem is that the distinction between “personal use” and “commercial use” is extremely blurry. Is my personal blog “personal” or “commercial” if I put Google ads on it? What if I don’t have ads, but use it to get a job or promote my company? Commercial use and personal use are not clear cut.
On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem? If anything, that should be encouraged — and the end result will often be that it makes the original content more valuable. Google uses fair use defenses to protect itself from copyright infringement charges, but it’s ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity. Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway. Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others — but these are positive externalities, as plenty of benefit will flow back to the original creator as well. Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well. Sticking an artificial construct like copyright in the middle just doesn’t seem necessary, and actually makes the process less efficient. Imagine if Google needed to get permission from everyone before indexing their sites?
Lee suggests that without copyright law on commercial use, you would have a free rider problem, but that’s not necessarily true. Companies that pick up business models that turn the free rider problem into a benefit won’t have much of an issue. Issues about “counterfeiting” can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in “authentic” versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.). So, I agree that legalizing personal use is a sensible step, but I’m still not convinced that copyright even makes sense for commercial reasons.
Filed Under: commercial use, copyright, personal use
Comments on “What If Copyright Only Applied To Commercial Use?”
CC and Human Nature
1) Doesn’t Creative Commons do this already? I thought that was (one of) its purposes?
2) Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway. Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others — but these are positive externalities, as plenty of benefit will flow back to the original creator as well.
Maybe you just hold a more optimistic view of human nature than I do, Mike. Which isn’t necessarily a bad thing.
Still, tis “likely to flow back” and “plenty of benefit will flow back” stuff doesn’t convince me. Sure, if all parties act ethically, this is true. But we have laws in place precisely because we *know* that often do *not* act ethically.
I guess anti-fraud could cover this, but why are you so insistent on denying content creators to have any legal claim over the content they produce?
If I’m misreading you on that last point, my apologies.
Re: CC and Human Nature
You know..maybe people have optimistic nature because of practical experiences.
Most people aren’t in the act of scamming people. And even if they do, they get found and get their reputation burned pretty quick.
You can still see people fuming about how evil Novell is long after Novell broke the trust of the free software community. They didn’t get punished by the law, but it is probably not good long term business wise.
Re: CC and Human Nature
1) CC makes a distinction between non-commercial and commercial use, and it’s blurry as hell. Is it about the use or the user? What about the blog with ads, and other scenarios Mike mentioned? Plus, some argue that the NC permission culture doesn’t work.
2) Mike also wrote, companies that pick up business models that turn the free rider problem into a benefit won’t have much of an issue.
Smart business models can help a creator to benefit from those externalities, turn them into positives, rather than snuff them out with legal claims.
Hmmmm...
I think restricting it to commercial use copyrights only would create some problems, maybe instead alter it to commercial use over $100 or where the original content makes up over 50% of the new content.
Standard licensing should also apply, much like mechanical royalties do now for ‘cover songs’ which roughly equate to 9cents per use. This would work for products sold anyway.
As for online content, the $100/yr limit should apply before licensing would kick in.
But you’re right, suing everyone under the sun is not helping anyone but the lawyers.
Return to Registered Copyright
Commercial or Non-commercial is an irrelevant and useless destinction. But… Natural Individual vs. Legal Entity -is- a useful destinction to make in a copyright reform context.
First, what has to be recogonized is the following:
1) Copyright is a limited distribution monopoly granted by the PEOPLE to individuals as a -mild- incentive to create.
2) The act of and requisite investment needed to -create- has never been easier or cheaper, thus implying a need to further weaken the -mild- incentive.
3) The Copyright Act of 1976’s registration elimination and term extensions has proved to be a perfect model for stupid, short sighted legislation. Congress passed this bone-headed law thinking (correctly) that the coming digital age would create a flood of new works and any copyright registration function would never be able to keep pace, but rather than raise the bar on what should be protected by copyright, they lowered it. And then made it stick longer. Fools.
Intelligent copyright reform looks like this:
A) All Copyright is Registered and Serialized. This supports quick expiry verification and renewal in the digital age. Think of the domain name registry system as a potential model for this new registration system.
B) Much shorter terms. 5 years for single mode media, 8 years for multimedia works.
C) Copyright is no longer transferrable.
D) Registration fees are adjusted periodically to inflation. Entitys (Corporations, L.L.Cs, partnerships) pay 20 times the fee paid by Natural Individuals. The registrars get to keep a defined percentage of the fee.
E) Renewals are available but the fee quadruples for each successive renewal. Successive Entity renewals increase at 8 times the Natural Individual rate.
F) Non-Profit Entities may not obtain or hold Copyright. (Take that Scientology!)
Ok. That wasn’t so hard, was it now?
Re: Return to Registered Copyright
First, provide economic evidence that copyright do incentivize people to create works.
No point in weakening copyright law if we know copyright law don’t really provide an incentive at all. We just abolish it and be done with it.
Re: Return to Registered Copyright
F) Non-Profit Entities may not obtain or hold Copyright. (Take that Scientology!)
Now that you have that off your chest. 🙂
What about non profits like, say, The Red Cross, Alcoholics Anonymous and the hundreds/thousands of others that don’t use their copyrights as a sledge hammer?
In A.A.’s case some copyrighted material actually brings in a portion of the money used to support the work their doing at the lowest cost possible to the users of the service.
Other than that little bit of silliness, I agree with everything you’re proposing.
ttfn
John
I agree, a good start but ...
I agree “commercial” v. “noncommercial” is not the right place to draw the line. Not only is that line extremely hard to draw, but there are many unauthorized commercial uses of copyright that are perfectly legitimate. For better or worse, a large amount of speech in this country is produced for profit, including websites (like this one) that have ads. This is why courts in doing the fair use analysis give very little weight to whether a use is commercial. The question in many cases is essentially irrelevant.
The Two Edged Sword
Technology has allowed the consumer greater freedom. It has also given the content producers draconian power in preventing the consumer from utilizing content (DRM and Region coding).
It is unfortunate that the content producers have successfully characterized the copyright debate in terms of consumer freedom equals theft while their restrictive actions are characterized as the protection of the poor starving artist.
The copyright debate needs to recognize that the consumer has rights. Tim has taken a positive step in how we should view copyright.
I like the idea
This is what I have proposed in conversation for several years. Why are we penalizing people who just want to listen to a song or watch a movie, but can’t afford the cost? Access to art should not be restricted based on wealth. The industry is not losing if someone who cannot afford it downloads a song. That person is not going to spend money on it either way. But it would certainly be a sad society that limited the fruits of its creativity to the wealthy. That is the road down which current copyright practices are heading
However, if you are truly bootlegging, that is, selling someone else’s work for money, you should absolutely be penalized.
Re: I like the idea
Explain to me how selling a painting that I owned is wrong?
After all, the painting is done by someone else and I am just looking for money.
Dont read this if you are poor
My comment is copyrighted and every reader pay me $1. You can also avail family edition by paying $2 (up to 5 people). Company-wide edition $100 (500 reads).
That was a fun thing to do on a slow late Thursday afternoon. I hate Thursdays. Thursday is like the edge of the pizza. I have to eat it cos I paid for it. I like Hawaiian pizza. Whats the deal with Hawaiian pizza? Do they create those pizzas is Hawaii and mail it from there? Speaking of Hawaii I haven’t taken a vacation in years (I guess you can conclude that from the nature of this post!). If enough people come and read my posting I can become rich like Bill Gates. Then I can start my own company and exploit other people. I will give them enough vacations but no money 😉
Here we go again
Hi Mike
“Part of the problem is that the distinction between “personal use” and “commercial use” is extremely blurry. Is my personal blog “personal” or “commercial” if I put Google ads on it?”
Blurry only in the case of new age media like blogs. Not in the case of traditional media like music, movies, books, etc.
“Commercial use and personal use are not clear cut.”
Seems pretty clear to me. If I buy a book or DVD, I clearly have every right to read or watch it or share it, but I have no right to exploit it for commercial gain, as in make copies for resale or make money through unauthorized public exhibition. What’s so “not clear cut” about that?
“On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem?”
Simply because the creator won’t get paid. Why should someone be allowed to do something commercially valuable with my content without compensating me financially?
“Google uses fair use defenses to protect itself from copyright infringement charges, but it’s ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity.”
Google is most certainly a commercial entity, but how many commercial entities operate on the same model? Google merely directs to content; it doesn’t produce any original content.
“Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway.”
Likely? I would say highly unlikely.
” Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others — but these are positive externalities, as plenty of benefit will flow back to the original creator as well.”
I don’t see how you can confidently say benefit “will flow” to the creator. If I don’t have to pay an author to publish his work, why would I bother to send some benefit his way?
“Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well.”
Even if some others benefit? No problem with that, but there is a big problem when everyone else benefits except the creator.
“Sticking an artificial construct like copyright in the middle just doesn’t seem necessary, and actually makes the process less efficient.”
Maybe to you, but the creators wouldn’t be inclined to agree. And which is better? A less efficient process that assures the creator his reward, or a more efficient processs that strips him of financial incentive?
“Imagine if Google needed to get permission from everyone before indexing their sites? “
Again, Google. Can you cite some other example?
“Issues about “counterfeiting” can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in “authentic” versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.).”
When there’s no copyright, where’s the question of counterfeiting? I don’t understand. Take books, for instance. Why are you hell-bent on snatching away an author’s revenue stream simply because it doesn’t fit into your theory? It’s all very well to say market expands, author can actualy make more money, etc…but right now the system works fine. And unlike musicians, authors are not under any threat of falling book sales, which means the free model is only an option, not a compulsion.
“So, I agree that legalizing personal use is a sensible step, but I’m still not convinced that copyright even makes sense for commercial reasons.”
You can afford to say that because your line of business is not affected by the absence of copyright.
Re: Here we go again
Hi cram,
Blurry only in the case of new age media like blogs. Not in the case of traditional media like music, movies, books, etc.
Not true. What if a non-profit is selling a CD? They’re making a profit in the activity, even though the purpose of the organization isn’t to make a profit. Is that commercial use? Isn’t that at least a little blurry?
Also, most copying takes place through digital technology anyways, so new media isn’t some niche, it’s the focus of the whole debate.
Seems pretty clear to me. If I buy a book or DVD, I clearly have every right to read or watch it or share it, but I have no right to exploit it for commercial gain, as in make copies for resale or make money through unauthorized public exhibition. What’s so “not clear cut” about that?
What if the book or DVD is an instructional piece related to your career? Watching the DVD could be out of personal interest, or for commercial gain. What if you share it with a co-worker, who’s also a friend and in the same business. Personal use or commercial gain?
Also, who can you share it with before it becomes an unauthorized exhibition? A spouse or family member? Living in the same house, or another house? What if you live with a friend? What about friends you don’t live with? How does the law distinguish between your friends and a stranger? What if you’re simply listening within earshot of others?
The distinctions of public versus private and non-commercial versus commercial don’t seem at all clear cut to me.
Simply because the creator won’t get paid. Why should someone be allowed to do something commercially valuable with my content without compensating me financially?
Going back to the post, should Google owe website owners cash because it does something commercially valuable with their content? Do you think the same should apply to ideas in general, or just to content?
I think someone should be allowed to do something commercially valuable with content without having to compensate the creators because everyone would be better off for it — creators included — because of the freedom and positive externalities and overall benefit to society of being able to make use of creative works. The free software community is a microcosmic example of this working in practice.
Google merely directs to content; it doesn’t produce any original content.
That’s the point. Google uses other people’s content and it doesn’t pay them. Should it be required to?
“Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway.”
Likely? I would say highly unlikely.
I’d say it depends whether you’ve got a business model in place to take advantage of those positive externalities or not. If you’re ignoring them, sure, it may not be likely.
If I don’t have to pay an author to publish his work, why would I bother to send some benefit his way?
You don’t need to do it directly. If you don’t pay to publish his work, but you and others publish it, the author may be able to derive benefit from the work being more widely published (e.g. speaking engagements, in store appearances, more sales based on higher interest, more interest in funding future works, etc.).
The benefit doesn’t have to be direct or monetary. It doesn’t need to be actively “sent.”
Even if some others benefit? No problem with that, but there is a big problem when everyone else benefits except the creator.
The problem would likely a business model problem in a case such as that, hence all the talk about the economics of abundance around here.
A less efficient process that assures the creator his reward, or a more efficient processs that strips him of financial incentive?
How effective is copyright as a financial incentive? Works were produced before copyright, and works are produced despite copyright. Is the value of the incentive at all worth the inefficiencies created? I’d argue it’s quite an unbalanced trade off.
When there’s no copyright, where’s the question of counterfeiting? I don’t understand.
Counterfeiting isn’t about producing copies of an original work, it’s about passing off some other work as the original. It’s about deception. Copyright isn’t necessary for counterfeiting to occur, and I’m not sure that it even has anything to do with counterfeiting to begin with.
Right now the system works fine. And unlike musicians, authors are not under any threat of falling book sales, which means the free model is only an option, not a compulsion.
Wait five or ten years ish. And, it’s not like there isn’t controversy over copyright with books. Look at the lawsuits J. K. Rowling has been fighting. I’m sure there are some other examples.
You can afford to say that because your line of business is not affected by the absence of copyright.
His line of business or his business model? What line of business would you say Techdirt is in? There are lots of tech companies clamouring for increased copyright protections (e.g. Business Software Alliance) and lots of journalists lamenting the “devaluation” of their work.
Techdirt has a business model that isn’t predicated on copyright by choice. It’s not because of the line of business, it’s because of smart business models.
Re: Here we go again
Seems pretty clear to me. If I buy a book or DVD, I clearly have every right to read or watch it or share it, but I have no right to exploit it for commercial gain, as in make copies for resale or make money through unauthorized public exhibition. What’s so “not clear cut” about that?
What if the book or DVD gives you an idea that allows you to build a multi-billions dollar business. You’ve just commercially exploited it.
Was that illegal?
What if a book gives you an idea that helps you invest in a stock and make a profit. That’s a commercial use.
Was that illegal?
Simply because the creator won’t get paid. Why should someone be allowed to do something commercially valuable with my content without compensating me financially?
Why should the original creator get paid?
Likely? I would say highly unlikely.
Only for those who structure their business models incorrectly.
I don’t see how you can confidently say benefit “will flow” to the creator. If I don’t have to pay an author to publish his work, why would I bother to send some benefit his way?
Again, if you structure your business model correctly, it will flow to the creator.
Maybe to you, but the creators wouldn’t be inclined to agree. And which is better? A less efficient process that assures the creator his reward, or a more efficient processs that strips him of financial incentive?
But again, it doesn’t strip him of financial incentive. As long as he sets up the right business model. If you look at the historic evidence, there’s little evidence that an absence of copyright strips anyone of their financial incentive. Instead, you see other models quickly emerge.
When there’s no copyright, where’s the question of counterfeiting? I don’t understand. Take books, for instance. Why are you hell-bent on snatching away an author’s revenue stream simply because it doesn’t fit into your theory?
I’m not hellbent on anything. And why do you insist that it takes away the author’s revenue stream? You keep saying that (amusingly, right after you admit that you “get” the model we discuss). If you got the model we discuss then you’d realize we’re not taking away anyone’s revenue stream.
You can afford to say that because your line of business is not affected by the absence of copyright.
No. I can say that because I chose a business model that is not affected by the absence of copyright. However, that’s not true of most companies in our space. But in the absence of copyright, more would shift to other business models as well.
Re: Re: Here we go again
Hi Mike
“What if the book or DVD gives you an idea that allows you to build a multi-billions dollar business. You’ve just commercially exploited it.
Was that illegal?”
Not at all. But if I make copies of the book and sell them, without being authorized to do so, that’s illegal.
“What if a book gives you an idea that helps you invest in a stock and make a profit. That’s a commercial use.
Was that illegal?”
Again, not at all. You’re talking ideas here. I’m referring to making copies of a physical good and selling them.
“I don’t see how you can confidently say benefit “will flow” to the creator. If I don’t have to pay an author to publish his work, why would I bother to send some benefit his way?
Again, if you structure your business model correctly, it will flow to the creator.”
That’s handwaving. You haven’t answered my question: If I don’t have to pay an author to publish his work, his loss is a certainty and gains uncertain. Why would he choose uncertain gains over certain losses?
“But again, it doesn’t strip him of financial incentive. As long as he sets up the right business model.”
And why do you think the existing model is wrong? Especially when it’s working fine for authors and publishers.
“If you look at the historic evidence, there’s little evidence that an absence of copyright strips anyone of their financial incentive. Instead, you see other models quickly emerge.”
In what fields is copyright absent? Apart from free software, can you show me an industry without copyright?
Also, there’s plenty of historic evidence that existence of copyright has helped creators gain financial incentive. Why do we even have copyright in place? One of its objectives is to ensure that content creators enjoy control over their work and reap the rewards.
“I’m not hellbent on anything. And why do you insist that it takes away the author’s revenue stream?”
Because it does. In a world where every work is treated like the Bible, what is the incentive for an author to publish a work? Don’t you realize that if there’s no copyright, publishers wouldn’t pay authors a dime? If that isn’t snatching away an author’s revenue, I don’t know what is.
“You keep saying that (amusingly, right after you admit that you “get” the model we discuss). If you got the model we discuss then you’d realize we’re not taking away anyone’s revenue stream.”
I get your model all right, Mike, but that doesn’t mean I agree with you that it works for all creative industries. If you look at from the author’s point of view, you’d realize absence of copyright will hit them the hardest.
“You can afford to say that because your line of business is not affected by the absence of copyright.
No. I can say that because I chose a business model that is not affected by the absence of copyright. However, that’s not true of most companies in our space. But in the absence of copyright, more would shift to other business models as well.”
You could afford to choose a business model that isn’t affected by lack of copyright, simply because you are in the digital business. If you were a publisher or a movie maker, you simply cannot afford to ignore the need for copyright.
Thanks for your thoughts, again.
Re: Re: Re: Here we go again
Why should someone be allowed to do something commercially valuable with my content without compensating me financially?
…
But if I make copies of the book and sell them, without being authorized to do so, that’s illegal.
you backed down considerably, didn’t you, going from the abstract and all-inclusive “…something commercially…” to the very specific and minority example of “…make copies…and sell them…”
Re: Re: Re:2 Here we go again
Hi Sailor
I think I made it clear right at the beginning (please see comment 11). My argument was in the context of the book publishing industry. In the absence of copyright, won’t authors stand to lose if any Tom Dick or Harry can publish their work without paying them a dime? No concept of royalty, no advances, no money when your book goes to Hollywood…how can these be touted as beneficial to authors?
And what happens to the publishers? What kind of model is possible in a world where every creative work is treated like the Bible?
And pray, how is making copies of a book a “very specific and minority example”? In the publishing industry, it constiturtes a bulk of revenues (aside: it still accounts for a lot of income in the music industry, but that is changing).
If you want a “majority example,” we can talk about books becoming movies. In the absence of copyright, just about anyone can adapt a creative work into film – a clearcut example of doing something commercially valuable with content without compensating the creator. Do you think this should be allowed? I don’t.
Re: Re: Re: Here we go again
In what fields is copyright absent? Apart from free software, can you show me an industry without copyright?
The fashion industry used to be a good example, though I’m not sure anymore.
Re: Here we go again
Why should someone be allowed to do something commercially valuable with my content without compensating me financially?
First off, the principle in any democratic society is (yes, I know reality does not always or in all aspects adhere to the principle) that all members are allowed to do anything, except when limited by laws which are put in place for the greater good (of its members and society as a whole). That’s why there are laws against murder, running a red light,…
Your question demonstrates a departure from that principle and hence is simply the wrong question. If you want to argue and be victorious as to why a content creator should get something, the burden of proof is on you. Nobody has to provide an answer (satisfying or otherwise) to your “why shouldn’t…” question, it is you who has to answer the question: “Why shouldn’t someone be allowed to do something commercially valuable with my content without compensating me financially?”. And only when somebody can provide an answer to that question that is satisfactory, society should start considering putting limitations in place.
Now for the practical aspect. I assume your question is inspired by scenarios where somebody reproduces and sells the content without giving anything to the content creator (or as is more often the case, content creator’s production/distribution company). However that is only one example of “commercial use” of somebody else’s content (Let’s call this “direct commercial use”)
Say I have a bar and I play music (and of course I have to pay for that “privilege”): unless I would play the music of a local band (who I could instead hire to perform), what “loss” would there be for a content creator because I play his music? U2 will never perform in my bar, nor will anybody bootleg the music I play, nor will anybody ever say: nah, I’m not buying that U2 CD, I’ll just go to Bar X and listen to it…
My playing music clearly is commercial use and playing the music is commercially valuable to me since it adds to the atmosphere of my bar and I will attract more people and sell more drinks/food. But there’s no loss to the content creator, nor do I see any reason why he/she should be entitled to anything for my use of their music.
In fact, if anything, some of my customers might come in contact with music they don’t know, like it and go out and buy CDs, concert tickets,…(so this is also an example of flow back which you consider highly unlikely, but I’ll go into that later)
So tell me, why should someone compensate you for doing something commercially valuable with your content in pretty much any scenario (like the one above) where the commercial activity is not duplicating your content and selling those duplicats? (Let’s call all these scenarios an “indirect commercial use”)
I know analogies are crippled by definition, but:
no matter how many patents the John Deere company might have on a revolutionary new lawnmower, once I buy it, they have no right to a cut of any commercial use I choose to engage in with their product, like starting my own landscaping/yard maintenance business…although John Deere is more likely to generate less revenue (because the people whose lawn I mow will likely not buy a lawnmower) as a direct result of my commercial use of their “content” than any content creator (or again, the production companies) would because I play their music in my bar.
Most likely you feel John Deere is not entitled to a slice of my pie even though you do feel I should pay for the right to play music in my bar…if so, you should ask yourself why you are plagued with that inconsistency…
Btw, I would have no problem if your opinion would be that John Deere should be entitled to a cut as well, I wouldn’t agree with it, but I would have no problem with it. I do have a problem with inconsistent opinions (or, when the inconsistency is pointed out to someone, the stubborn insistence to cling to the inconsistencies)
“Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway.”
Likely? I would say highly unlikely.
Here’s just one (actually two, but same difference) examples: currently, one has to pay (for the right) to use music in a movie, commercial,…
Let’s say they didn’t have to, so there would be no direct flow back to the original creator.
However:
1) the obligation (or lack thereof) to pay for the use in the movie would have no influence whatsoever on the sale of OST CDs (which do have a flow back to the content creator (or more likely the creator’s production company))
2) I remember plenty of songs being used in commercials (for example Levi’s/Coca Cola in the 90’s) that, because they were used in the commercial and people got exposed to them and liked them so much, were re-released as singles and did extremely well (with the appropriate flow back to the original content creator, or rather the company holding the copyright)
Those are just 2 examples that clearly refute your “highly unlikely” opinion/statement that if one doesn’t have to pay for commercial use of your content, there will not be a flow back to you.
I don’t refute “direct commercial use” does “cost” the content creator (or again, more accurately: whoever “publishes” the creator’s content).
And I am not dead set against some restrictions (if they would be necessary which, with the models/mechanisms Mike writes about, is not clear to me at this point), when those restrictions target “direct commercial use”.
However, so far I have never read or heard any sufficient justification as to why a content creator (or the creator’s production company) should be entitled to any (direct) flow back for the “indirect commercial use” of his content…
Limiting copyright to commercial use is exactly what the Swedish Pirate Party is fighting for.
So why and how should one treat commercial and noncommercial use differently?
Because freedoms primarily apply to individuals and in order to strictly enforce the copyright of today you need a broad monitoring system that seriously hurts privacy and basic human rights. Since it’s hard to find infringers, those who are caught are punished unproportionally hard, almost as if to set an example. Furthermore, many if not most people (almost all young people here) think it’s ok to share files for private use, so the law doesn’t reflect the public view. Many countries already have tax laws which differentiates between commercial and noncommercial activities.
Commercial companies on the other hand don’t have a right to privacy in the same way so in that case the incentive that copyright provides may outweigh the negative sides.
Blurry indeed
1. I have bought a CD, of which I make 100 copies to give out to strangers on a random basis and without me getting anything back. Non-commercial
2. I have bought a CD, of which I make 100 copies that I want to sell for money. I spend the noney on buying new CDs. Commercial
3. I have bought a CD, of which I make 100 copies that I exchange for copies of other CDs I’d like to have, but rather wouldn’t pay for. File “shearing”
In my view, example 2 and 3 are similar regarding whether the copying is regarded as commercial, the only difference being that example 3 drops the intermediary of money. My goal is in both cases is to get myself more CDs at (close to) no extra cost. The difference to the creators is that I actually pay for the CDs I obtain in example 2 (the commercial version), while I pay nothing to the rights holders for the copies I obtain in example 3.
Music Royalties
This was one of the most challenging things for me, as I was looking into the best license to choose for my music. To choose a Creative Commons license that allows for commercial use is to waive one’s ability to collect royalties. From all my exposure to the songwriter circles of the music business, royalties seem to always be the focus. When I tell other songwriters I’ve waived my right to collect royalties, they think I’m crazy. 🙂
Thanks Blaise
Hi Blaise
Thanks for your take.
“Going back to the post, should Google owe website owners cash because it does something commercially valuable with their content? Do you think the same should apply to ideas in general, or just to content?”
As I said, Google doesn’t create content, nor does it claim ownership over the content. I don’t think Google not paying web site owners is the same as a publisher not paying an author. As for ideas, I think execution matters more and people should be able to profit from that execution.
“I think someone should be allowed to do something commercially valuable with content without having to compensate the creators because everyone would be better off for it — creators included — because of the freedom and positive externalities and overall benefit to society of being able to make use of creative works. The free software community is a microcosmic example of this working in practice.”
I disagree. Are you saying all software should be free? That there should be no proprietary software?
“That’s the point. Google uses other people’s content and it doesn’t pay them. Should it be required to?”
Google merely directs users to content. Why should they be required to pay site owners anything?
“I’d say it depends whether you’ve got a business model in place to take advantage of those positive externalities or not. If you’re ignoring them, sure, it may not be likely.”
What is the incentive to try another business model when the current one works fine?
“You don’t need to do it directly. If you don’t pay to publish his work, but you and others publish it, the author may be able to derive benefit from the work being more widely published (e.g. speaking engagements, in store appearances, more sales based on higher interest, more interest in funding future works, etc.).”
MAY be able! That’s the operative word. If the author signs up with a publisher, he WILL derive benefit. And all the other options you mention are nothing new. I don’t see any compelling need to do away with copyright, from the author’s point of view.
“The benefit doesn’t have to be direct or monetary. It doesn’t need to be actively “sent.”
I’m sure authors would appreciate “direct, monetary” benefit more than anything else.
“The problem would likely a business model problem in a case such as that, hence all the talk about the economics of abundance around here.”
I don’t have a problem with abundance; what I’m asking is how it will benefit an author if copyright goes. I see more harm than gain.
Re: Thanks Blaise
“I think someone should be allowed to do something commercially valuable with content without having to compensate the creators because everyone would be better off for it — creators included — because of the freedom and positive externalities and overall benefit to society of being able to make use of creative works. The free software community is a microcosmic example of this working in practice.”
I disagree. Are you saying all software should be free? That there should be no proprietary software?
He didn’t say that if what you’re trying to say is that software ought to be free as in “here’s a case of beer for free”.
The free software movement is about usage freedom by the user to do what they wish with it, change it, modify it, fork it and so on. As long as they give their changes back and keep the license intact.
In that way Free/Libre and Open Source software is both a philosophical and business model difference with proprietary software.
Nor does it prevent the writer(s) of FLOSS software from making money on it though mostly in services to support it.
(Come to think of it a hell of an incentive to release high quality software so that all your time supporting what you wrote isn’t filled with fixing bug releases so that you actually lose money on the support end.)
Proprietary software support is considered, at best, a loss leader and, at worst, a money sink. Why do you think it’s so bad?
What is the incentive to try another business model when the current one works fine?
I’m wondering how much longer as the big difference between a book, till now, has been ease of use. You can dog ear the pages, make margin comments, highlight passages you find useful, flip back and forth with ease and so on.
I’m amazed at, in the past couple of years, how rapidly PDF is coming towards that kind of ease of use. Particularly Acrobat.
I don’t have a problem with abundance; what I’m asking is how it will benefit an author if copyright goes. I see more harm than gain.
The way I see it, which Mike and Blaise can agree with or not is that with the way copyright is used today and how it is seen to be used by the public at large is that it’s rapidly losing support and being seen as a disincentive to the other half of your equation…the purchaser and user.
If a legal construct becomes a barrier and is seen as disreputable then the consumer end of the bargain set by it in the first place falls apart.
You can, more than anything, thank the RIAA and MPAA for that.
Though legislators who have done some incredibly stupid things with what was once a limited monopoly have also done their fair share of damage.
Escalating copyright violation from a civil law dispute into a criminal infraction has made the situation far, far worse.
If the public (consumers of the content) no longer respect copyright and refuse to abide by it because it is no longer the bargain with the legal system and creators that it once was it eventually will die.
Either because it can’t be enforced or because the courts will finally get tired of it all landing in their laps and start to look back at what it was supposed to mean originally and strike down the laws that extended it so far beyond that that it’s unrecognizable.
Creators do need to be paid for what they create in line with the value set in the market for their creation. Not just because they create and can slap a copyright bug on whatever they please.
I would say that expensive first editions will continue to be published in the traditional way, art and photograph collection books (the infamous coffee table book) will continue to appear and be purchased.
The harm should copyright go forever will be transitory as people move from the existing business model to something more in tune with reality.
Copyright will continue, in some form or another though it won’t be DCMA type copyright nor the various Hollywood copyright extentions unto the 7th generation that the likes of Sonny Bono left us with.
Perhaps more in line with what was actually intended by the framers of the US Constitution and those who first brought it in in England a century or so before that.
ttfn
John
Re: Thanks Blaise
I disagree. Are you saying all software should be free? That there should be no proprietary software?
The point of my comment was to reference the free software / open source community as an example of these ideas working in practice. Namely, free software licenses put no restrictions on commercial reuse. The non-commercial restriction makes software non-free. The success of copyleft culture isn’t predicated on restricting people from doing things which are commercially valuable without paying the creators, rather it’s based on freedom.
If free (libre) software is better for developers and better for users, why make non-free software? I believe it’s better, but that’s a longer conversation I’m sure. I think it makes more sense to convince companies and developers to use/produce free software, rather than forcing them too, however. Same goes with artists and free licenses. Change people’s hearts and minds, show them everyone is better off, show them the opportunity to grow their market, etc.
Google merely directs users to content. Why should they be required to pay site owners anything?
Sometimes Google reproduces some of that content, and it certain profits off it. (Have you been following the Belgium newspaper story?) I don’t think Google should owe website owners money, but you asked, “why should someone be allowed to do something commercially valuable with my content without compensating me financially?” Isn’t that exactly what Google does? We both think this should be allowed.
What is the incentive to try another business model when the current one works fine?
Because business models based on copyright aren’t working fine in the face of digital technology. If a business isn’t yet heavily impacted by digital technology, then it may be alright in the short turn to rely on copyright. However, growing your market and preparing for the future both seem like good arguments for trying business models based on the economics of abundance.
A good business always tries to improve, no?
MAY be able! That’s the operative word.
I used the word “may” because the author also needs a business model and a plan in place to capitalize on the benefit. With the proper business model and a good product, an author will derive benefit.
What I’m asking is how it will benefit an author if copyright goes. I see more harm than gain.
If copyright goes, or becomes less excessive, an author would benefit in the big picture. It’s not necessary about short financial gains (“direct, monetary”), but in the long-run. Sure, cash helps. But building a name and reputation is more valuable, because you can monetize that and build a career on that. If an author writes good books, he/she would benefit from having them widely read. The difference is that monetization would come through content creation (e.g. commissioned works, fund-and-release model) or other scarcities (the book signings, speaker engagements, etc), rather than necessarily through the distribution of copies (though, that’s still a possibility for some income).
Ultimately, authors would benefit from having a wider market to monetize. I see more opportunities than harm. I only see harm for those who rely on copyright when it fails and ceases to make sense (e.g. RIAA/MPAA).
Re: Re: Thanks Blaise
Hi Blaise
Thanks for your thougts, again. Though I must say I still don’t agree with the need to do away with copyright [let’s agree to disagree:-)].
“..not necessary about short financial gains (“direct, monetary”), but in the long-run.”
The existing model is not only about short-term gains; it HAS helped authors in the long run. Ultimately it all boils down to how good you are as an author, and how well you’re able to preserve the audience’s loyalty. I don’t see how sticking with copyright will diminish an author’s chances of gaining long-run benefit.
“But building a name and reputation is more valuable, because you can monetize that and build a career on that. If an author writes good books, he/she would benefit from having them widely read.”
But authors are alreaady doing this now. They are building reputations, monetizing them, getting their works widely read, AND benefiting from copyright by signing deals with publishers. And the digital landscape isn’t posing any threat to their existing model. People are still buying books. It’s a scarce good they are already exploiting. I don’t see any compelling need for authors to give up copyright.
And what about the publishing companies? How would they benefit if copyright goes?
“Ultimately, authors would benefit from having a wider market to monetize. I see more opportunities than harm. I only see harm for those who rely on copyright when it fails and ceases to make sense (e.g. RIAA/MPAA).”
I think we ought to bear in mind that the dynamics of consumption of music, movies and books are all different from each other.
Take movies, for instance: Why would a company produce a film if they cannot exercise control over it? The movie hall experience that you tout as a scarce good is dependent on copyright, as are television revenues, international rights revenues, DVD sales income, etc. I just don’t see the copyright-free model working for the film industry.
Re: Re: Re: Thanks Blaise
Hi cram,
It’s taken me a while to respond, but better late than never!
I don’t see how sticking with copyright will diminish an author’s chances of gaining long-run benefit.
In the long-run, don’t you think electronic books will become more popular? Holding onto copyright has put publishers in the music and movie business in direct conflict with their consumers as digital audio and video have risen in popularity. What makes you think copyright and digital books will magically get along?
One compelling reason to look beyond copyright for a business model is simply in anticipation of that.
And the digital landscape isn’t posing any threat to their existing model. People are still buying books.
Yet. There haven’t been many compelling offerings, most are hindered by some sort of DRM. But yes, there is something about books that is less replaceable by a screen, maybe, which makes them the perfect scarce good to complement a digital offering.
But even if there isn’t a serious threat now, that doesn’t mean there isn’t an opportunity for authors to grow their market by leveraging digital goods.
And what about the publishing companies? How would they benefit if copyright goes?
The provision for intellectual property laws in the U.S. constitution is to promote the progress of science and the useful arts, not to benefit publishing companies. The key goal is to provide an incentive to produce art. If publishing companies aren’t needed, why would that be problematic?
But publishing companies will still have an important role to play, in the same way that there’s still a role for record labels in the music business. Not every author can or would want to manage their own distribution, whether digital or physical.
It seems like another case of a company needing to define their market based on the benefit they provide, rather than the product. Publishing companies are in the business of providing distribution for authors (or something along those lines), rather than simply selling books. If publishing companies look to the benefits they provide, there would definitely be business opportunities in the absence of an author’s dependence on copyright.
Take movies, for instance: Why would a company produce a film if they cannot exercise control over it? The movie hall experience that you tout as a scarce good is dependent on copyright, as are television revenues, international rights revenues, DVD sales income, etc. I just don’t see the copyright-free model working for the film industry.
First of all, the motivation for most artists to produce art isn’t their ability to exercise control over it, but a desire to produce art. Art was produced before copyright existed as an incentive.
I don’t think the movie experience is necessarily dependent on copyright. There are lots of reasons a movie theatre would want to maintain a good relationship with a movie company. Even if digital video might be an infinite good, high-quality video (i.e. the kind you might want for a giant screen in a theatre) isn’t as abundant. What about other high-quality movie experiences, like an IMAX theatre for example? There are some things that can’t be copied, or can’t be copied easily, and it would be much easier for a movie theatre to get them from the source, which would require a good relationship.
I agree the dynamics of consumption are very different between movies, music, books, etc. I don’t think it follows that simply because you or I can’t imagine how it might work that it wouldn’t work. If there is a demand for a certain type of movie and companies/filmmakers interested in producing it, there is a market that can be monetized with the right business models, even if it takes some experimentation on the part of companies to figure that out.
The trouble with this never ending stream of words about copyright is that as long as only one side is heard – or allowed to talk and be listened to – there will be no solution.
There seem to be no end of computer nerds that know how to fix copyright. All of them with the same end goal: the nerds wants to have their way to 100%
There seem to be no end of over-paid nerds that have opinions on how much (or even at all) an artist is allowed to make money. This is called plan-economy and has been tried in the old soviet with joseph stalin and so on.
This all become even more ridiculous as they only seem to debate commercial pop/rock music and how it is produced and how it is financed. Which is just normal as most of the nerds seem to be the children of overpaid white people from rich countries.
There are ridiculous arguments floating around like “you cant stop the progress of technology” – which history will show you is completely false and is just another way for the nerds to say “this is not for you to discuss – this is only nerd-only territory”.
Pirate Bay is a good examle of commercial use. They made milions on ad-sales by atcing as brokers for illegal trafficking. This money was then laundered through a chain of companies/countries to avoid tax and to avoid debate. The guys had violent rightwing original financing and one of them is now also wanted on drug charges.
Re: Re:
The trouble with this never ending stream of words about copyright is that as long as only one side is heard – or allowed to talk and be listened to – there will be no solution.
Excuse me? Considering the dominance of the copyright lobby over this issue for the last 100 years or so, I find it difficult to believe that you think our side is drowning out the other.
Multiple points of view are being heard, and we’re taking into account the other side’s viewpoint — and then showing why it’s wrong.
Not everything in life has “balance.” Sometimes one side is right and the other is wrong.
There seem to be no end of computer nerds that know how to fix copyright. All of them with the same end goal: the nerds wants to have their way to 100%
Then you haven’t been paying attention. This is not from the “computer nerd” perspective, but the economic one. And it has nothing to do with “getting our way” and everything to do with just explaining what the economics of the market are.
There seem to be no end of over-paid nerds that have opinions on how much (or even at all) an artist is allowed to make money. This is called plan-economy and has been tried in the old soviet with joseph stalin and so on.
Actually, we’ve never said anything about how much an artist is “allowed” to make. In fact, we’ve simply shown the economics at work and how artists can use them in order to make more money.
It’s got nothing at all to do with a “planned” economy. The only central planning I see is in this gov’t monopoly called copyright. What we’re pushing for is a truly free market.
There are ridiculous arguments floating around like “you cant stop the progress of technology” – which history will show you is completely false and is just another way for the nerds to say “this is not for you to discuss – this is only nerd-only territory”.
Can you tell me when the progress of technology was stopped?
getting personal
Since there’s so much theoretical in these comments and most people here blog, how do these scenarios sound (ya know, theoretically):
1. someone scrapes all of your blog pages, word for word, and publishes them without a link to you.
2. escalating that idea just a little, the scraping is published on 100 sites and those sites have a link to something that is, once again, not you.
3. same idea, but this time from a site or sites that google considers more authoritative than your blog.
By the way, does techdirt hold the rights to the comments here? Just curious.
Re: getting personal
Since there’s so much theoretical in these comments and most people here blog, how do these scenarios sound (ya know, theoretically):
I’ve answered this at least a hundred times. On those scenarios: GO RIGHT AHEAD.
Here’s the full explanation:
http://www.techdirt.com/article.php?sid=20070412/183135#c612
—
As we’ve said repeatedly, we have no problem with people taking our content and reposting it. It’s funny how many people come here, like yourself, and assume you’ve found some “gotcha.” You haven’t. There already are about 10 sites that copy Techdirt, post for post. Some of them give us credit. Some of them don’t. We don’t go after any of them.
Here’s why:
1. None of those sites get any traffic. By itself, they offer nothing special.
2. If anything, it doesn’t take people long to read those sites and figure out that the content is really from Techdirt. Then they just come here to the original source. So, it tends to help drive more traffic to us. That’s cool.
3. As soon as the people realize the other sites are simply copying us, it makes those sites look really, really bad. If you want to risk your reputation like that, go ahead, but it’s a big risk.
4. A big part of the value of Techdirt is the community here. You can’t just replicate that.
5. Another big part of the value of Techdirt is that we, the writers, engage in the comments. You absolutely cannot fake that on your own site.
So, really, what’s the purpose of copying our content, other than maybe driving a little traffic our way?
So, if you really want to, I’d suggest it’s pretty dumb, but go ahead.
—
The only difference is in your 3rd point, about a site more authoritative. Again, that’s fine. It would end up harming their reputation as people realized what was going on, and that would end up hurting their “authority” and improving our own.
Off the mark
Hi Sailor
A late response to your totally off-the-mark comments.
“First off, the principle in any democratic society is that all members are allowed to do anything, except when limited by laws which are put in place for the greater good (of its members and society as a whole). That’s why there are laws against murder, running a red light,… “
You can add “copyright infringement” to that list, because when I last checked, there were laws in place to check copyright infringement. So, your statement that people are allowed to do anything in a democracy is rubbish.
“If you want to argue and be victorious as to why a content creator should get something, the burden of proof is on you. Nobody has to provide an answer (satisfying or otherwise) to your “why shouldn’t…” question, it is you who has to answer the question: “Why shouldn’t someone be allowed to do something commercially valuable with my content without compensating me financially?”. And only when somebody can provide an answer to that question that is satisfactory, society should start considering putting limitations in place.”
I don’t know what world do you live in, but in my planet people have already thought over these questions and put in place laws to protect content creators. In your utopian world the burden of proof may be on the creator, but not in the real world. That’s why civil society ALREADY HAS limitations on who can do what with someone’s content.
“no matter how many patents the John Deere company might have on a revolutionary new lawnmower, once I buy it, they have no right to a cut of any commercial use I choose to engage in with their product, like starting my own landscaping/yard maintenance business…although John Deere is more likely to generate less revenue (because the people whose lawn I mow will likely not buy a lawnmower) as a direct result of my commercial use of their “content” than any content creator (or again, the production companies) would because I play their music in my bar.”
This analogy makes no sense. That would be as absurd as stating that all photographers should pay Canon or Nikon royalty for every picture they take. See, lawnmowers are tools; once you buy one you don’t owe the company anything anymore. However, you don’t have the right to commercially exploit their technology or brand name for profit by making knockoffs.
“Most likely you feel John Deere is not entitled to a slice of my pie even though you do feel I should pay for the right to play music in my bar…if so, you should ask yourself why you are plagued with that inconsistency…”
I’m not plagued with any inconsistency; you’re mixing up issues and arriving at a conclusion. I was talking with reference to the book publishing industry. You avoided talking about the issue and instead dragged in a musical analogy.
Here’s just one (actually two, but same difference) examples: currently, one has to pay (for the right) to use music in a movie, commercial,…
Let’s say they didn’t have to, so there would be no direct flow back to the original creator.
“I don’t refute “direct commercial use” does “cost” the content creator (or again, more accurately: whoever “publishes” the creator’s content).”
Phew! Finally, a point of agreement. And it’s too huge a cost to be ignored.
“And I am not dead set against some restrictions (if they would be necessary which, with the models/mechanisms Mike writes about, is not clear to me at this point), when those restrictions target “direct commercial use”.
However, so far I have never read or heard any sufficient justification as to why a content creator (or the creator’s production company) should be entitled to any (direct) flow back for the “indirect commercial use” of his content…”
Now, aren’t you being inconsistent here? Initially you said the burden of proof is on the content creators, but in the end you do agree that unrestricted direct commercial use hurts the creator. Actually your last statement contains a kernel of truth: copyright concerns are more to do with direct commercial use than indirect use because of the greater potential loss to the creator.
Re: Off the mark
I don’t know what world do you live in, but in my planet people have already thought over these questions and put in place laws to protect content creators. In your utopian world the burden of proof may be on the creator, but not in the real world. That’s why civil society ALREADY HAS limitations on who can do what with someone’s content.
I think Sailor was just going through an exercise of rethinking copyright laws.
That would be as absurd as stating that all photographers should pay Canon or Nikon royalty for every picture they take. See, lawnmowers are tools; once you buy one you don’t owe the company anything anymore. However, you don’t have the right to commercially exploit their technology or brand name for profit by making knockoffs.
Software is a tool covered by copyright. Tools aren’t exempt, it’s just a difference between intellectual property and real property.
> Commercial use and personal use are not clear cut.
Indeed. If content is advertising, then content is inherently commercial. It’s just a question of degree.
You’re right, it’s a problem carrier. In addition, most of the copying takes place in any case with the help of digital technologies, so new media is not a niche, it is the center of the entire discussion. Now this topic is already blurred, as many companies have found a good way around this copying system and are just working on improving the product. My commercial intermediary from the firm https://www.lyblaw.net/ says that there used to be a lot of commercial disputes about this