“Opportunity makes a thief.”
-Francis Bacon, Letter to the Earl of Sussex
No one snivels more loudly or less convincingly than a three year old child deprived of a toy or a record exec unable to squeeze every last drop of profit from someone else’s talent. No one sympathizes with a lazy tycoon who wants to put a teenager in prison for downloading a song, and the rantings of the RIAA and other aggrieved exploiters of creativity serves only to undermine public sympathy for the very existence of copyright laws.
Not that the laws themselves are wrong. When anyone puts his or her own precious time, energy, and skill into creating something, it is rightfully his or her own property. It is no less real, no less an investment of human effort, and no less worthy of ownership than a steer – moreso, because the latter is directly a product of grass, land, and bovine ancestors that came originally to human hands ready-made for the taking. That a thing is easy to steal does not mean it is not property, anymore than I forfeit ownership of my furnishings by leaving my door unlocked. Nor does the argument that the creator is not diminished by the theft have any weight; the person who has made the exertion to create something, or purchased it by voluntary exchange, has the right to deny any other person the use of his labor. One might as well say that rape should not be a crime, if the victim be uninjured.
And what of the argument that copyright exists only to encourage the production of creative work, and that such work actually requires no encouragement? Beside the fact that property remains property even in the absence of laws to protect it, that claim is certainly fatuous. To make bad music, write bad poetry, publish unfounded speculations, make a crude video of one’s living room or paint a canvas with random colors is easy and common enough, and indeed the world is deluged in such items, made at no profit and even for a loss. What is not so common is worthwhile instances of creation; to attain mastery of an art, and to put that mastery to full use, is no trifling thing. Rarely do people take the trouble to produce powerful music, good poetry, reliable texts, quality films, or artistic images with no thought of reward for their effort. Nor do they release them to the public in the hope that others will take them, distort them, present them falsely, expand on them in any direction they please, or even claim authorship. Any “artist” who submits a work to the public domain admits implicitly that such work is inferior, and unworthy of reward, or else has abandoned all hope of being rewarded.
Instructively, those persons who are opposed to the idea of intellectual property are invariably those who have never created any worthwhile intellectual property and have no prospect of ever doing so. What they propose is parasitism, by the lazy and the inept, of the few who possess the talent and industry necessary to create the things they want but would rather not pay for. They have duped themselves into believing that good artists, writers, and inventors will work just as hard absent any prospect of profiting thereby, just as inferior artists, writers, and inventors are always willing to work for mere fleeting attention. They think that confiscating all intellectual property would enrich the public – but the reality is that free art and free information are generally worth what you pay for them.
The difficulty with copyright laws is not – in spite of the excesses sometimes committed (like the inevitable periodic extension of copyrights on material by the long-dead Disney) – moral, it is practical. The extant laws simply cannot be enforced. In a perfect world, those who create would own their creations absolutely, whether those are tangible or not. But in the real world, it is no longer possible to have much control over information products. Technology has made reproduction perfect and virtually free, and methods of copy prevention range depend on artificial constraints that are not only intrusive, but defeatable.
The root of the problem, perhaps, is that most people don’t see anything wrong with taking intellectual property for their own use. The author thereof is not thought diminished thereby, and certainly not if the taker is not reselling it and would not have otherwise purchased it. When people see no harm in breaking a law and are accustomed to seeing it broken, they will not refrain from breaking it, will not report others breaking it, and will not support the draconian punishments or intensive hunting for violators that would alone furnish a deterrent. (The loss of credibility of government in general also contributes to the disrespect of law, but that’s another issue.) The result is massive disobedience, impossible to suppress, just as hundreds of millions of people speed every day in spite of the huge amount of resources devoted to fighting it. People won’t stop copying things for each other unless they’re convinced it’s wrong, which seems improbable.
On the other hand, those who condone or even practice “piracy” often consider the selling of copies, and perhaps the stealing of material by those who could easily afford it, to be wrong. Most of us sympathize more with the homeless man who shoplifts than the lawyer who pilfers from the offering plate, or with the jobless teen downloading music as opposed to a businessman using stolen software. Moreover, it’s much more difficult to sell pirate copies without being caught, since non-cash transactions can be traced and also because people tend to resent such profiteers and are more likely to turn them in. Compared to the volume of illegal copying, very little reselling of it occurs.
The current marketing method of most copyrighted material creates a feedback cycle that keeps piracy at a maximum. When some consumers of a product fail to pay for it, the cost is passed to the others – those who create the product must be compensated somehow. As the price becomes more burdensome, more and more consumers will choose to steal the product instead of buying it, and the price goes higher still. Some software vendors are now in the position of dealing more or less exclusively with businesses; no one else can afford their product. But if the cost were spread among all those who would like to use it, it would be too cheap to bother stealing. If twenty million copies were sold at just a dollar each, the revenue would be adequate for many programs – programs that otherwise might be free but more likely won’t get written at all. The problem is collecting the money without putting the buyer through too much trouble or spending too much on processing.
Likewise, how many people would be too miserly to shell out fifteen cents for a song? Probably most people would donate that much even if they could legally get the song free. Yet that’s more than most musicians get from royalties. Again, the only obstacle is processing the transactions.
Of course, the record labels wouldn’t like that – where music is concerned, they are strictly middlemen, and they would be eliminated. But it isn’t music per se that they are selling in the first place.
When Americans (at least) pay for entertainment, they are not just buying the content, they are buying something even less tangible – participation and image. In our society, music and movies are an important way of being accepted into a larger group (whether society at large or some small clique of fans) and are also a tool by which people build their self-images. Listening to music and watching movies is an induction to the common culture and earns a place therein – tastes and experiences that are (somewhat) individualized, but fit into a framework that we have in common. Thus we can discuss among ourselves which entertainments we like and which actors or musicians we admire, and each of us can have different opinions, but we (mostly) share the conviction that such things are important personal identifiers and worthy of discussion.
The business of Hollywood and the record companies and the television studios is not so much producing content is it as producing cultural referents. The conventional view is that the millions spent on “promotion” and the images so expensively cultivated serve to facilitate the sale of the content – the reverse is true. The content, music and movies and shows, is rather an inducement to buy the real product, which IS the promotion and the image – the cultural and personal referents.
The cost of actually producing music (at least) is not very great; advances in technology may do the same for movies in the future. The talent required to produce good music is not common, but is hardly so scarce as to create a dearth of supply. Copyright laws or not, the cost of music sold for its own merits could be expected to fall toward the cost of its production, which is not very great. The issue, for the RIAA and its ilk, is the image and social valuation of music. This is what they are really selling, and it not so cheaply created. Their problem is that their existing means of charging for this service is to bundle it with music, a commodity which is now so cheap that many people prefer to acquire it separately (for free) – and they get the image along with it, at the same price.
If groups like the RIAA are to continue successfully milking the public appetite for referent images, they’ll have to quit bundling image with recorded music, and find some other way to induce people to pay for cultural participation. If they don’t, the funds for “promotion” (their real product) will eventually dry up, “rock stars” will be a thing of the past, and some other industry will step into the gap and market some other kind of image. If they want to get into the music business, “record” companies could sell their marketing services to artists, or even to consumers (for instance, providing personalized music recommendations to subscribers). This wouldn’t support any billionaire record execs, but they themselves are the only ones who see that as a problem.
For the actual producers of content, there are several potential solutions to the problem of copytheft. One has already been mentioned – basically volume selling. The cost of a billion copies being essentially the same as one copy, the object is to sell the product so cheaply that no one would bother stealing. If the cost of transaction processing can be reduced to a few pennies, this might be a very effective way of marketing low cost, easily copied content like songs, magazines, images, or small programs – much like iTunes, but without the high prices and spyware.
For established artists, or those who are good at self-promotion, one marketing option (which as far as I know hasn’t been tried yet) would be to sell works to a buying audience collectively. Potential buyers would tender a minimum sum to an escrow account, and when (if) the total balance reached the selling price, all would receive a copy, and perhaps resale rights as well, or rights to publish derivative works, depending on how much the buyer paid. If the sale expired without meeting the price, the money would be returned. There would be fewer and larger transactions than with the above scenario, ameliorating the burden of transaction costs.
Another possibility, something like the GNU Public License, would be to sell certain rights along with the product itself. An artist might, for instance, sell the original work to distributors with the right to not only sell copies but to resell that right (perhaps to smaller distributors). Individuals who bought the work would get the right to make copies, and perhaps even to sell copies. In this kind of system, the artist would get the money up front, based on speculation, instead of after the fact based on end consumption. This system wouldn’t finance any millionaire rock stars, because no one would pay too much up front for a property that would rapidly depreciate as pirate copies inevitably began to circulate. It might, however, allow content producers to make a living. For a little while after a new release, the only owners of copies would have paid dearly for them, and would presumably be more reluctant to give the property away – and they might be more vulnerable to detection if they did, since there would be a limited number of sources to investigate for any leak. Such a method of distribution might work for things like movies and tv shows, or inventions, that are harder to copy than music or software and can be profited from without giving every customer the ability to produce more.
Finally, there is the possibility of giving content away as a means of marketing something else, thus making the content valuable at least to the marketers. Software vendors often do this, giving away an inferior version of a program as an advertisement for the real one (which includes customer service that can’t be copied). It also works for radio and broadcast television, and seemingly now for some internet services. It does require that copyright laws exist and be enforced; luckily, it’s hard to use stolen material for advertising without being detected. Unfortunately, this system depends on the existence of some suitable (non-stealable) product or service that can be sold, and the profitability of the creative content itself depends on the value of the secondary product, not the demand for the content itself.
One might wish that intellectual property could be guarded as an absolute monopoly, but the reality is that it cannot, and some new way of profiting from creative effort must evolve. Clinging to the models of the past will, as ever, be fruitless: the days of vinyl are gone and the days of paper are numbered. It will be interesting to see what new models are tried and how they work out. It would be nice if certain business concerns would place less emphasis on futile rearguard struggles and start preparing for the future.