It seems that we have a fundamental disagreement about the nature and purpose of copyright. One is a pragmatic view. People should be granted a copyright so they can profit from their work. If anyone was able to copy and sell a book, movie, or music then the people who produce those works wouldn’t be able to make a living writing books, or making movies or music. And if people can’t make a living writing or making music, there will be less writing, less music, less movies.
On the other hand, we have people arguing that someone who produces a work has a very real metaphysical ethical ownership of that work, and has broad rights over that work. If an author writes a book, that book is HIS.
But I don’t think the strict analogy to regular property applies very well to intellectual property. Yes, we can agree that some sort of legal category like intellectual property should exist, for various reasons. But making a copy of a work is not strictly analgous to stealing tangible property.
The thing is, our notion of intellectual property has always depended on technology. Take the middle ages. There was no such thing as intellectual property. It would have been thought crazy to insist that someone who owned a book couldn’t make a copy of that book. Since every copy had to be made by hand, copying rare books was the only way for those works to be preserved. If anyone wrote a book they would be flattered and pleased to learn that someone somewhere had made a copy of it, since without copying their work would die. But of course under such a system there was no way for a person to earn a living or personally profit from their intellectual work.
In comes the printing press, and suddenly books become massively cheaper. People start making books, not for their own use, but with the intent of selling them. Hundreds, even thousands of copies! At first the medieval concepts of intellectual property continued. The profit was in producing copies of the books, not in producing the content of the books. If a printer made 300 copies of a book, his property was the books themselves. The books themselves were tangible property, but the contents were irrelevant.
But pretty soon people began creating content for books, with the intent of printing the books and making a profit selling the books. But still the only real way to make money was selling the books themselves, since if your book was popular anyone could print copies and sell them themselves. And so the concept of intellectual property arose. Trade secrets used to be, well, secret, because if your competitors found out how you accomplished some task they would imitate it and destroy your advantage. But if the state granted you a patent, you would get a temporary legal monopoly on your former secret enforced by the state, in return for revealing the secret. And under copyright, the state would grant you exclusive right to publish or transfer ownership of your work, under the theory that unless they did that you wouldn’t produce the work in the first place.
But the original intent of intellectual property rights wasn’t a recognition that owners had an ethical hold over the things they produced. It was a recognition that without some incentive to produce works there would be vastly fewer works available for everyone. In other words, the public good is served by enforcing the private ownership of intellectual property.
The right to make and sell copies of a book was chosen because it was something enforceable. Since it was still difficult and expensive to print books, and books mostly had to be sold openly to make a profit, it was easy for an author’s agents or the state to track down and stop people who made and sold illegal copies. And there was no incentive for someone to give away copies, since it would be extremely costly for them to produce the copies in the first place. If no one can profit by selling the illegal copies, they won’t make illegal copies in the first place. That is why copying intellectual property came to be seen as the offense. It wasn’t illegal to read a friend’s copy of a book, or open a library and let everyone read your copy of the book, or to give away or sell a copy of a book you bought from the author or his agents. It didn’t cost more to read a book 500 times rather than once. It didn’t matter whether the book was a reference you used every day or something you read once and put on the shelf. And all this was done because it was practically impossible for the state, an author, or an author’s agents to control the use of a printed book once it had been made and sold. So restrictions on copying were the foundation of intellectual property law, because they were amenable to control.
And now we have computers and electronic storage. And suddenly the restrictions on copying that worked so well in the print era don’t work as easily. It is now so cheap to copy a work that someone may very well provide free copies of a work they do not own the rights too, because it costs them essentially nothing. People might be comfortable paying $19.95 for a hardcover copy of a book, but they have an intuitive sense that paying $19.95 for the same work in an electronic document isn’t “fair”. Copying and distributing works used to be fairly easy for the state to control, but it suddenly is now incredibly difficult to control, just as it was always incredibly difficult to control how many people read a book.
Just ask yourself, what exactly is the fundamental difference between me reading an electronic version of a document that I paid for, then calling my friend over to the monitor after I’m done and letting him read the same thing, perfectly legally–and me making a copy of that licenced electronic document and sending it over to his computer on the other side of the room and having him read it there? Why exactly is it different? It is uncontroversial for me to buy a physical book and lend it to my friends to read. Therefore, it is uncontroversial for me to buy an electronic book, and let my friends read that copy of the work. But practically, there is no difference between me creating a copy of the work and sending it to my friend compared to me letting my friend borrow it on a disk, assuming I promise not to access my copy until my friend deletes his copy. Same practical effect, right?
So what is the difference? I made a COPY! That’s the difference, borrowing is OK, copying is bad. But WHY, for heaven’s sake. Because if I can make copies and distribute them to my friends then the author of the work doesn’t get compensated. And I agree. But the copying isn’t why he isn’t getting compensated. The author doesn’t get compensated when I let my friends read my copy of a book, or borrow it from the library. So why is it different if the library just makes me a copy of the book and gives it to me? Suppose I have a file on my hard drive. If I make a copy of the file and put it on my hard drive, and now have two copies of the file, I’ve violated the copyright. If I make 100 copies of the file and put them on my hard drive, I’ve violated the copyright 100 times. Suppose I have a server and make a million copies of the file and put them on my storage array. I’ve violated the law a million times. But suppose I were caught and suppose the penalty for making a copy was $10 per copy. In the first instance I’d be fined $10. In the second, $1000. In the third, $10,000,000. But was my offense really a million times worse? Yes, if I kill a million people that is a million times worse than killing one person. If I steal a million cars it is a millin times worse than stealing one car. But is making a million copies…all sitting quietly on my hard drive, accessable only by me…really a million times worse than making one copy? I could write a script that copies a file until it fills up the hard drive, then erases the hard drive, then starts again. If I let it run for a few months I could concievably create many billions of copies of the file. Do I really ethically owe the creator of the file hundreds of billions of dollars, every copy an offense that should be compensated at $10? Because it seems to me the real ethical offense against the author of the file is not making the copies of the file, it would be distributing them in such a fashion that he cannot profit from creating the file.
The real answer is that we have restrictions on copying that were created under a technological regime where they made a rough sort of sense. Not perfectly, but roughly. An author could create works and get a rough approximation of fair compensation of the use of those works.
But that will not work anymore. If we stick to the sacredness of copying as the criteria for compensating authors, the authors will no longer be compensated in some proportion to the success of their work, simply because copying is too easy, too trivial, too hard to track, too hard to stop, too hard to control. If copy restrictions remain the way intellectual property is controlled, creators of intellectual property are going to get screwed massively, and that will mean fewer incentives to create intellectual property, and that will mean less will be produced.
I don’t want that to happen, I want authors to be rewarded in some rough way for their work. A new regime doesn’t have to be perfect, we can tolerate a certain percentage of people circumventing the intent of the new law. But copying a work isn’t using a work. A person should really, ethically, pay not for making a copy but for accessing a copy. It shouldn’t matter where that copy is, or how many servers it is stored on. It shouldn’t matter if the work is copied a million times onto a million desktops, or one copy is stored in one central server and accessed a million times, it seems to me the situations are functionally identical. There should be some agreed upon method of compensating the author for accessing that work. And I’m not sure exactly how this should work, since it is going to take some trial and error. But treating ISPs as publishers, and tracking the distribution of “copyrighted” files in some way, and compensating authors based on that data is one way. I’m not sure whether the users should be charged per-use access fees or monthly flat fees for unlimited access, but either method would be workable.
The biggest problem with this scheme is the vulnerabilty to spoofiing…set up two servers to email copies of your band’s latest release back and forth to each other for a month and suddenly you’re a millionaire. But I imagine identifying information can be tracked, and only real instances counted, and instances where identity was too hard to track could just be thrown out. Sure, that means that if a goatherder in Kazakhstan used an anonymizer to download music the author would lose that one download/access fee. But it seems a small price to pay, since the majority of messages are going to be traceable.
Accessright, not copyright should be the new standard for the new technology. If we keep with the old paradigm everyone loses, authors and fans both.
