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Monday

J Neil Schulman writes

For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.


"Rights" to me, and I think to a lot of people, implies things that are legitimately addressed by force.

Here's what I do recognize: the creator of a work has moral ownership of it, at the very least the link between his name and the creation should not be severed. (And every one of the alternative business models that have been proposed, some of which I think are very viable, rely on that link being maintained.)

Copies made and sold under false pretenses, such as a claim that the author authorized the copy, is fraud.

Modified work presented as the author's own work is fraud.

Unmodified work presented as the product of someone other than the original author is fraud.

Modified work, such as parody, commentary, or other fair use should maintain the link between the author and the original work, as well as to acknowledge the modifications as not the original work.

It is immoral to try to make money from another's work at the expense of sales by the original author, but this does not preclude all copying nor distribution as immoral.

It is immoral, and ultimately self-destructive, to always seek value for nothing.

None of this has clear lines, and much of how these principles apply to a given concrete situation will always remain subjective.

Enforcement of any of this is immoral, both by the above, and because enforcement in any but small numbers of edge cases, is not possible without prior restraint or a requirement to prove innocence. Social sanctions are the only way to discipline behavior toward those principles, and that relies on how people evaluate the behaviors.

Libertarians will generally tolerate casual copying, convenience copying, sampling, parodying, previewing, and transient copying....

But, they should have a very low tolerance for abusive copying, such as seeking to parasitize an author's sales, changing the work in such a way as to undermine its original intent without being blazingly clear it is a parody, or just seeking to take a lot of value without giving any in return. They should be ready and willing to use social sanctions to address this. It should be uncool to admit that you torrented 500 songs and never sent a dime to any of the artists.

Artists, on the other hand, should, though obviously cannot be forced to, do several things:

Make it easy to pay for something. Often the price of a movie or song in money pales in comparison to the indirect costs involved in buying it legitimately, such as figuring out how to actually effect payment, DRM and other "protect my computer from me" BS, and arcane pointless rules about copies for backups, car vs work vs home, multiple computers, and time-shifting. Just stop. If I buy a copy of something the copy is mine to do with whatever I please.

Stop expecting the market price of work to be maintained anywhere near the level that the media companies, with the help of their captured legislatures, have set. Those days are long gone, and will not come back. So long as artists and media companies try to hold on to them, crass pirating will continue and expand, and there's nothing anyone can do about it. Social pressure works both ways, if you expect people to pay on the honor system, start charging honorable prices and cut out the dishonorable middle men.

Stop threatening casual copiers, and work on converting them to paying customers through incentives and persuasion. Accept that there will be free-riders, that nothing you could ever do will stop that, except to stop producing. Understand that people who become fans from free downloads are likely to eventually become paying customers of not just the music, but live performances, special packages, merchandising, etc., especially after they get out of high school and get jobs. (BTW, Microsoft has admitted that they are a 12-figure company *because of* pirating. It locked in millions of people to Windows products. )

Stop expecting artistic work to be a possible golden ticket to untold wealth without ever lifting a another finger. The Beatles and Michael Jackson were a fringe side-effect of a state granting of IP privilege that never existed as rights, back when there was no internet to call their bluff.

There are viable non-IP business models that can allow good artists to make a living, and mediocre artists to make some money.
Find one that does not rely on state-enforced IP. IP, for the arts at least, is a dead letter regardless of what libertarians say. It's a buggy whip, and the only market for it ten years from now will be sado-masochists. Deal with it and move on, or expect to keep getting smacked around. There is no "safe word" for economic pain.

Stop looking at fans of your work as enemies. And fans, stop looking at the producers of the art you love as milch cows or mindless automotons who are and always will be just categorical "artists". They can always become plumbers if the pay is better. But hey, maybe John Mayer will whistle a tune while he is unclogging your sink some day.

Comments

Good essay. I've commented on my own blog:

<a href="http://cinderbridge.blogspo..."> cinderbridge.blogspot.com/2010/06/libertarian-analysis-of-copyright.html</a>

I didn't say it in the post because I wanted to stay focused, but ... right there with you on DRM. At least with traditional obsolete media like vinyl records, you could convert your collection to the new medium. Once your DRM'd file is obsolete, it's gone.

Posted by cinderkeys at Tuesday, June 29, 2010 12:10 AM

"It is immoral to try to make money from another's work at the expense of sales by the original author, but this does not preclude all copying nor distribution as immoral."

That really is the crux of the whole copyright thing.

The first that strikes my eye is your use of the word "immoral" in place of the present truth, "illegal".

But there is a far more insidious beastie lurking in there which gives me conniptions...

"...to try to make money from another's work at the expense of sales by the original author..."

The obvious implication you make is that it is NOT immoral to give away free copies "at the expense of sales by the original author...". That is essentially the "moral justification" that is used by a great proportion of those who pride themselves as "copyright busters".

I think that attitude stinks. It is not just immoral, it also happens to be illegal.

Posted by probligo at Tuesday, October 05, 2010 08:13 PM

"it also happens to be illegal."

That has nothing to do with the question of morality, and is completely irrelevant to any consideration beyond risk assessment.

I'm not clear on which attitude it is you think stinks.

Posted by kylben at Wednesday, October 06, 2010 05:33 PM

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