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Comment to William Patry - 2 · Sunday August 23, 2009 by Crosbie Fitch

William Patry no longer publishes my comments on his blog, so I guess this is his inscrutably tacit way of encouraging me to post them on my blog instead.

Commenting upon Adam Smith and the Invisible Hand of Copyright

Crosbie Fitch said…

The invisible hand is fine if the market is free. However, it’s going to behave as a fist in a gauntlet if some of its players are granted supernatural power (in excess of that which nature has imbued in mere mortals), e.g. by privileging immortal corporations as if having the natural rights of individuals, and by granting them monopolies, the privileges of copyright and patent.

The mystery is not why corporations exploit the powers and privileges granted to them, but why intelligent men such as yourself persist in believing that such empowered corporations and the monopolies granted to them can possibly operate in the public good, and perversely increase rather than decrease mankind’s ability to share and build upon his art, knowledge, and technology.

That is the mystery.

A lesser mystery is why you believe you do your audience a service by protecting them from the argument I present.

Invasion of the Copy Snatchers · Friday August 21, 2009 by Crosbie Fitch

If you want to understand the nightmare facing the newspaper industry you need look no further for their perspective than that of Donald Sutherland’s character in the movie ‘Invasion of the Body Snatchers’.

Newspapers had evolved to a harmonious form where each copy was in effect a small, portable version of the world wide web. A little bit of news on any subject you could think of, updated daily, distributed overnight to millions, and the access fee was just a few pennies.

Unfortunately, the world is much larger and more diverse than a newspaper or even several (including more specialist journals and monthly magazines), so in continually striving to maximise revenue each newspaper must maximise its attractiveness to the lowest common denominator of its potential market. As Paul Gillin observes in Blaming the Editors, this makes it a poor competitor to the web with its wealth of well written websites on every subject a news thirsty individual could wish for – no matter how peculiar their interest.

So pity the poor newspaper, feeling that it has a far greater claim to inherit the earth than the invading hordes of individual upstarts, bloggers and tweeters – those aliens who have manifested themselves in their world as recently as ‘last night’ in their time frame. And sympathise at its dismay that each blogger of all those overrunning its territory is a dumb weakling in comparison, with a fraction of the newspaper’s aggregate resources and audience reach. And what’s worse, these blasted bloggers are imposters, pretending to be newspaper journalists.

Everywhere the newspaper goes it finds it and its fellows persistently seduced to “Join us”, “Become part of our web”. So it shouldn’t be too surprising that each time this happens either it runs away screaming in terror, or, if it is canny, it pretends that it has joined the web. It behaves as if it is now fully integrated online, but actually it isn’t, it stubbornly and stalwartly retains its true and original nature. Even now some of us have raised the alarm, “This online newspaper isn’t linking except to itself! It’s not one of us!”.

The newspaper is doomed. It may survive in vestigial form in some underground habitat, but despite its heartfelt belief that it deserves to survive, we will soon see it as an assimilated form, its quaint iconography re-created online as a historical curio of how news was once communicated in the form of ink on paper. Let’s not forget though, even newspapers adopted fonts designed not for mechanised metal type, but for the manual graving by those they displaced.

At the end of it all, if you are a remaining traditionalist looking on at the fall of a newspaper you have grown up with since childhood, the web is an insidious monster to be thwarted in order to preserve that which you love. On the other hand, if you are already an assimilated denizen of the digital domain, you will remain mystified that Luddites persist in their intransigence, looking at everything you say in horror.

Join us. There is no copy.

Comment to William Patry - 1 · Wednesday August 19, 2009 by Crosbie Fitch

William Patry no longer publishes my comments on his blog, so I guess this is his inscrutably tacit way of encouraging me to post them on my blog instead.

Commenting upon The Why of Property-Talk in the Copyright Wars

Crosbie Fitch said…

Property derives from the natural right to privacy. It is the physical enclosure, proximity, and reach of the individual’s body to possess and protect a region and objects within it (private domain) that creates natural property. Anything beyond the reach of the individual, in the commons or public domain, that requires the assistance of the community or state to secure is more a matter of allocation (of privilege, custody, responsibility, title, etc.).

Natural intellectual property is thus the physical enclosure of intellectual work (in an individual’s private domain). Published works are naturally public property.

Copyright and patent are transferable state granted monopolies – they do not exhibit any characteristic of natural property, only of unnatural privilege. Moreover, being monopolies they necessarily exceed any notion of a need to allocate care and custody of the commons or public property, they actually derogate from the liberty of the individual to reproduce or improve their own intellectual property – even in the privacy of their own home. The monopolies of copyright and patent prohibit making copies or preparing derivative works in private as well as in public. That is a suspension of an artist’s liberty to create as well as to exchange their labour in a free market.

Copyright and patent are nothing to do with property. They are commercial privileges, and being unwieldy for use by individuals, clearly intended and evolved for exploitation by corporations – at the parlous cost of individual liberty and privacy.

The Monopolists' Con of Constitutionality - part 1 · Saturday August 08, 2009 by Crosbie Fitch

This is the first of a four part series examining the way in which people who should know better maintain and reinforce the con against the US citizen that copyright and patent are sanctioned by the US Constitution.

As should be increasingly obvious in these days of instantaneous diffusion, the US Constitution is being abusively cited in ever more desperate attempts by the incumbent monopolists to demonstrate a solid foundation for copyright and patent. Naturally, the constitution can do nothing of the sort, so the corporate lackeys who resort to such abuse in pretending otherwise are attempting a con. In this way, it is solely a matter of confidence that anyone is able to persuade their audience that copyright and patent are natural rights of the individual and properly recognised by the US Constitution as deserving of protection by a necessarily empowered government.

Upon inspection there are no grounds for such a proposition. All grounds that are proposed materialise from external motives, such as may be inspired by fiscal prudence, e.g. “Monopolies are socially beneficial sacrifices of liberty – well, they certainly benefit us!”.

If you or your audience want to believe that copyright is not only good, but constitutional, perhaps because your business relies upon copyright or its litigation, then it’s not too difficult to kid yourself or your audience that it is.

Perhaps such devout believers rely upon this deceit so they can sleep soundly despite having financially wrecked the lives of Jammie Thomas, Joel Tenenbaum, and Brittany Kruger? If their persecution of such naïfs for sharing music is sanctioned by the constitution then it is surely just and ethical? On the other hand, if copyright is properly recognised as unconstitutional qua unethical, then will more people be prepared to point out the psychotic Emperor’s lack of robes?

Fortunately, lawyers must take pains to avoid lying, so in reading their allusions to the constitutionality of copyright one can sometimes discern the truth – if one shields one’s eyes from contrary insinuation.

Allow me to introduce you to Ms Dale Cendali, Intellectual Property Partner, Kirkland & Ellis LLP and Adjunct Professor, Harvard Law School. Apparently “She is a recognised leader in intellectual property (IP) litigation, who has been described by Chambers & Partners (US law firm) as ‘one of the best lawyers in the country’.”

Here is an example of her apparent confidence that copyright is sanctioned by the US Constitution:

From Copyright and wrongs an Economist.com debate.

From its inception, the United States has been a society of innovators. Americans place a high value on original thought and expression, and have benefited from innovation both in terms of technological advances and by a culture enriched by creative works. It is no coincidence that the constitution itself, inheriting the notion from protections already existing in the UK, seeks to boost creativity by empowering Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (US Constitution, Art. I, Sect. 8, Cl. 8). The concept underlying current copyright law is elegant in its simplicity: In order to achieve “Progress of Science and the useful Arts”, the law protects the ability of an author to recoup his or her investment in creating a work by granting exclusive rights to exploit that work for a limited time. The creation of films, computer programs and other creative works can be very costly and the possibility of returns risky. But individuals and firms are willing to invest resources in these projects in large part because of the prospect of greater future returns.

We can quickly pass over the insult that the Framers wished to inherit the UK’s monopolies of copyright and patent in the US Constitution. That there was enthusiasm elsewhere for those monopolies to be legislated is unsurprising, but that doesn’t mean the clause was inserted precisely so sanction for those monopolies could be misconstrued.

Notice that Dale doesn’t say that the Constitution protects, but that the law (copyright) protects, and that copyright law protects by granting ‘exclusive rights’. Moreover, note that she doesn’t even attempt to say that these ‘rights’ are granted to protect an author’s exclusive right (how can granted rights protect natural rights?), but that the granted ‘rights’ are granted to protect revenue and achieve progress.

Well, the cat’s out of the bag now.

How can the Constitution specify the securing of ‘rights’ that were granted in legislation years later?

It can’t – those legally granted ‘rights’ weren’t in existence at the time of the Constitution and so couldn’t be recognised by it. The Constitution can’t grant power to secure ‘rights’ that don’t yet exist, and the Constitution certainly can’t grant rights, because rights can’t be granted by definition. It can’t even specify the granting of privileges – even if they may only later be termed ‘legal rights’ or simply ‘rights’.

Ms Dale Cendali is expecting her audience to conflate the modern meaning of the term ‘exclusive rights’ (legally granted ‘rights’ aka privileges) with the term exclusive right as used in the Constitution, which can only refer to the individual’s natural exclusive right to their writings/designs, a right that is imbued in man by nature and to be protected by legislation (via power granted to congress for this purpose), not a monopoly granted by legislation. The Constitution does not empower congress to grant monopolies or any other privilege.

The Constitution specifies the securing of an author’s pre-existing, natural exclusive right. It does not say that the privilege of a monopoly (copyright) should be granted such that it may be mischievously described as a ‘legally granted right to exclude others’ from reproduction of one’s published works – or ‘exclusive right’ for short.

The Constitution refers to the exclusive right that already exists, not to a privilege that is yet be created (and to be given a confusingly similar name).

So Cendali segues from “To promote progress, congress is empowered to secure an author’s exclusive right to their writings” into “To promote progress, congress is empowered to grant authors ‘exclusive rights’ defined as a transferable reproduction/performance monopoly to enable considerable profits to be made by their publishing agents at the expense of US citizens’ liberty.”

Clever eh?

As if to add justification for an unjustified misinterpretation she points out that, with the prospect of considerable profits, monopolies encourage risky investments. Sure, but the constitution said nothing about granting monopolies or the need to provide lucrative rewards to authors or inventors (especially not their agents or investors). That monopolies are lucrative to those to whom they are granted is obvious. The problem is the considerable loss of cultural liberty to US citizens, and the fact that monopolies represent a net cost to the economy. Preventing competition in order that higher prices are enjoyed by favoured parties redistributes wealth. It doesn’t contribute any productivity. On the contrary, there is a net loss in productivity due to tax required for policing. Monopolies also impede technological and cultural progress due to reduced knowledge sharing.

Can Dale insinuate anything in support?

The constitutional wisdom in granting creators exclusive rights in order to encourage innovation has resoundingly proved correct.

It almost sounds as if she’s saying that the constitution wisely granted creators ‘exclusive rights’ doesn’t it? It might sound like that, but she isn’t, and it didn’t.

If the ‘exclusive rights’ were granted some years after the Constitution that can’t represent ‘constitutional wisdom’, i.e. wisdom on the part of the Framers.

The ‘exclusive rights’ are not even the same exclusive right that is referred to by the constitution, but privileges granted by later legislation. She is suggesting that whoever legislated those privileges was ‘constitutionally wise’ – a rather dubious contention (given the Constitution sanctioned no granting of privilege).

It would have been wise of the legislators if they had actually adhered to the wisdom of the constitution and restricted themselves to enacting law that secured an author’s and inventor’s exclusive right, rather than completely ignoring that to instead grant a transferable monopoly for the lucrative exploitation of printers and mass producers – making a considerable sacrifice of each US citizen’s liberty.

Are you still confident that the monopolies of copyright and patent encourage innovation? They certainly encourage publishers and industrialists to obtain and exploit these monopolies, but that’s not the same as innovation.

So, aside from issues of veracity, do you feel Ms Dale Cendali wishes her audience to believe that copyright is constitutional? It seems to me that she does.

She doesn’t go so far as to say it is constitutional, but then if it was, do you doubt she’d be at all hesitant in asserting it?

So, we can conclude that precisely because of Ms Dale Cendali’s clear effort to insinuate that copyright and patent are constitutional, without actually going so far as to state anything to that effect, she recognises that there would be no truth in such a contention.

And ye shall know the truth, and the truth shall make you free.

The privileges of copyright and patent are unconstitutional.

Steve R. said 5647 days ago :

I am in agreement that the copyright maximilists have gone way beyond the constitution. Also, this is the first of four parts, so my comments may be premature.

I trust that you will cover the unfortunate Eldrid V. Ashcroft.

Additionally you may be interested in Tom Bell’s: Unconstitutional Copyrights?

Crosbie Fitch said 5647 days ago :

I will not cover Eldred v Ashcroft. That focuses on ‘limited times’. As far as the natural exclusive right goes, being the right of the individual, its term is also logically bound to the individual, i.e. the span of their natural life.

Similarly, Tom Bell focuses on ‘to promote progress’.

Both of these analyses miss the far more fundamental issue of the exclusive right itself. It is not a state granted monopoly, and so my series focuses on that, and how people persistently insinuate that the monopoly of copyright is the natural exclusive right recognised by the constitution.

Copyright is legislation enacted after the Constitution. It may well have been subsequently portrayed as a means of securing (or helping to secure) the author’s exclusive right, but it does so very poorly, if at all. It is also claimed that it was created to benefit the public by encouraging authors to release their works from the protection of their exclusive right – by providing publishers with a lucrative monopoly that they will pay the author handsomely for. Whether the monopoly benefits the public is covered elsewhere ad nauseum. I suggest that copyright was legislated in spite of the Constitution because it benefitted the press and the interests of the state in controlling the press – and yes, its existence in Britain did inform and inspire many in the states to seek its introduction there. However, those who covet monopoly should not be confused with those who recognise the individual’s natural right to liberty and the need for it to be protected by a strictly limited government.

So, I’m just covering the curious issue of why some prefer to call the ‘progress’ clause the ‘copyright’ clause, and resort to other tactics that they hope lend weight to the idea that copyright is constitutional.

Crosbie Fitch said 5646 days ago :

See Moral Panics and the Copyright Wars on Against Monopoly where Stephan Kinsella critiques William Patry’s stalwart loyalty to his pro-copyright position (despite being depressed by its corruption):

Terrible. Sure, he’s right that, as the Amazon description indicates, “copyright is a utilitarian government program—not a property or moral right.” But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, “In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal”; see criticism here. Just another legal positivist. So he of course would think that, “As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose.” Whatever

Copyright must be properly recognised as a privilege, and criticised on that basis. It would be a pity for the insinuation that it is a natural right recognised by the Constitution to transform into an incontrovertibly established fact – though it’s pretty close to this already.

The Basis for Micropatronage · Saturday August 01, 2009 by Crosbie Fitch

The idea that a publication retains value that creates an obligation upon the recipient to repay is an epiphenomenon of copyright. This is the peculiar idea that the maker or recipient of a copy of a published work extracts value from it which must be repaid to its copyright holder (or million dollar fines are liable).

It is certainly a lucrative prospect to the beneficiary publishing corporations, but it’s more akin to a baron’s tithe than the natural exchange of labour you’d find in any other form of craftsmanship. Once you’ve bought a basket that’s the end of the matter. The weaver has your money (your labour). You have their basket (their labour). Never shall you pay another penny however many times you use the basket, nor whether you sell it for twice the price you paid for it, nor even if you make copies or improvements. This is how intellectual work should have been exchanged with those who would pay good money for it too, but then the 18th century found monopolies too seductive to resist (consequent loss of individual liberty a trifling sacrifice).

As the wretched monopoly of copyright decomposes in the sunlight of the information age, the dust of its unnatural corpse blown away by the instantaneous diffusion of the digital public domain, we’re going to keep on seeing Kachingle type ideas cropping up that attempt to substitute for copyright’s anachronistic ineffectiveness by facilitating a guilt driven repayment mechanism. Hence propositions such as “Here’s how you can send me the royalty that you owe me for each copy of my work that you make”, or “Each time you enjoy my work here’s how you can repay me for the value you’ve received”.

That continuation of iniquitous privilege (publisher fealty) by misguided entrepreneurs who feel the more conscientious members of the public will still wish to subject themselves to copyright, in spirit if not in effect, misses the more natural exchange that we are now stumbling toward rediscovering: The exchange of intellectual work for money.

We should pay for the work to be produced, not for the value we extract from it. That gives us the biggest clue as to the proper foundation for future revenue mechanisms. They do not facilitate the salvation of guilt by individuals who make unauthorised copies. They do not facilitate charity from people who feel they are overdue in repaying some of the value they’ve received. They enable people to exchange their money for the intellectual work of those who will gladly produce it in exchange.

This should be obvious to anyone who looks at the copyleft market for free software. The software is published without privilege. Being so unencumbered by copyright it naturally belongs to the public as much as any basket belongs to its purchaser. You can use, share, and build upon this software guilt free. Of course it takes a while for those used to copyright ‘protected’ software to become comfortable with this radical yet ancient idea that a published work can belong to the public, but one gets there eventually. When free software stops being free is when the conversation of free speech runs dry and it becomes time to pay for the beer, time to pay for the labour of production. Those who want free software are the very ones who want to pay for its production. Those producers and those in want are the people in need of exchange facilities. They have no need for guilt nor need for conscience to be salved. They need a future as we all do, in which the people not only have their liberty restored to share and build upon their cultural commonwealth, but also the liberty to exchange that labour in a free market.

David Gerard said 5655 days ago :

It’s been odd at times using a piece of free software that was really good and useful (JPilot, to be precise), looking for a PayPal link to bung him ten quid and not finding any way whatsoever to do so … dammit, I wanted to show my appreciation!

(So I’ll do so here. www.jpilot.org/ – excellent Palm Pilot software for Unix. Way less annoying and more sensible than gPilot or kPilot.)

Crosbie Fitch said 5655 days ago :

And that’s the other side of the coin – promotion. Meritocratic selection and endorsement of good artists and good art, something that is hampered by copyright.

It is far better for the good software to proliferate through its users’ recommendation and improvement, than to be hampered by unnatural privilege.

Consequently the more users a software author or development team has, the larger the market they have of people willing to financially incentivise their work. There’s no need to sue individuals from among such a liberated community as a threatening lesson to the others that royalties must be paid. As with all natural exchanges people will pay for good work of their own free will.

Don't sell copies of the news. Sell the news! · Saturday July 25, 2009 by Crosbie Fitch

Is it a copyright infringement to link to the following press release by the Associated Press?

Associated Press to build news registry to protect content

Why do they appear to believe that to make money out of publishing news they must prevent anyone distributing it or discussing it, or even referencing it?

The answer is that nearly all those in the newspaper industry have become irreparably programmed by the ancient cult known as The Press. This brainwashes them to believe that they are in the business of selling copies of the news. That’s why they’ve become obsessed with the idea that if a large number of websites are making unauthorised copies of their news then they are consequently haemorrhaging revenue and must stamp on any copies that haven’t been paid for.

The privilege of copyright they still believe enables them to do this may have worked when a press was the size of smith’s forge or, until recently, the size of an aircraft hangar, but those days are long gone.

Copyright is now defunct and one can no longer sell copies. (Your fellow readers will have balked at this heresy and have now clicked away to an article on prison overcrowding).

So, the mind-bogglingly obvious solution for the producers of news is to sell their product, their news, not copies of it.

That’s because although the market for copies has ended, the market for intellectual work remains. In other words, people still want news, but they’re quite happy making their own copies for nothing thanks very much.

The thing is, if copies cost nothing to make (whoever makes them), then it’s probably time the press dared to reconsider whether the 18th century privilege that grants them a reproduction monopoly remains the best foundation for a 21st century business supposedly adapted to the digital domain and the instantaneous diffusion of the Internet.

I’d say it was time to get into the business of selling intellectual work – digital products for the digital domain. Supporting that is the business of Digital Productions.

Scott Carpenter said 5662 days ago :

Nice post. It really boils down to that — selling copies isn’t going to work anymore. Attempts to prop the old way are doomed, although things can be made quite ugly in the short to medium term as foolish laws are passed.

PS: I like the new look!

Crosbie Fitch said 5661 days ago :

It was going to be a comment elsewhere, but who has time to read comments these days eh? That’s one of the things I tried to address in my ‘new look’ (glad you like it), which was to give front page prominence to comments/dialogue. I think they’re important. Perhaps we can look forward to web technologies that further remove us from the old one-way metaphors of vanity-pressed, author-focused pamphlets with letters from readers buried in the small print or overleaf?

Micropatronage · Thursday July 16, 2009 by Crosbie Fitch

In NOT AN UPGRADE — AN UPHEAVAL Clay Shirky begins to warm to the idea of micropatronage – the radical idea that an author’s most interested readers might pay them to write and publish their writings.

If the journalist has already been paid for their writing, who needs to pay the manufacturer and distributor of copies of their writings? Does the public really need to continue paying the publisher a hundred times the revenue that they’d pay the journalist?

If the publisher truly does add 99% of the value of a published copy, then with a free market in copies, there’s no copyright monopoly to prevent the publisher producing a copy of the author’s work (at $0.0001), adding their value ($0.0099), and then selling it at $0.01 a copy.

I have a sneaking suspicion the publisher adds very little. We’ll find out what happens when the audience commissions the artist directly.

  • Micropatronage = Disintermediation

It’s about time.

Traditional (Copyright+Publisher)

1,000,000 readers pay a publisher $1 for a journal comprising articles from 100 journalists. Each journalist gets $100 for their article. The publisher takes $990,000 from which they cover their modest costs.

Micropatronage (Copyleft/Abolition+Disintermediation)

Each blogger has 1,000 keen readers paying them a penny for each blog item they publish. That nets them $100 every ten blog items (for argument’s sake qualitatively equivalent to a single journal article).

An online journal, being free to copy the work of 1,000 bloggers (copyleft) and republish them, erects a paywall charging punters $1 to download a PDF containing 1,000 of the best blog items. Now each blogger has already been paid $10 for each item by their keen readership. The $10,000 it would normally have cost the journal to pay their writers has already been paid. They now get their writing free. The journal can also make and distribute copies at a fraction of a penny. So the $1 is now closer to 99.99% added value.

If the publisher sells a million copies they take $999,900 with negligible costs. Laughing all the way to the bank eh? That is, of course, assuming the market for copies hasn’t ended…

If it has ended there will still be a market for selectors. I suggest the selector is going to enjoy micropatronage as much as each writer. Thus the online journal (sans paywall) will actually get a penny from each of their 10,000 keen readers for each issue ($100). That journal may even state that it gives a 50% commission to each blogger it publishes – after all, it needs to encourage the production of good writing in order to be able to select it.

Steve R. said 5667 days ago :

One of the vexing questions with content revolves around the word “value”. Of particular concern is the role of the distributor as “adding” value to a creators work. Before the rise of the internet, it appeared obvious because the distributor could prepare the product for market and then market the product to a large audience. With the rise of the internet content creators can fully prepare the product and reach potential buyers directly. So who needs a publisher anymore?

What I am leading up to is the concept that we need to be clearer concerning how a publisher actually adds value to a product. I would assert that the distribution of a product by a publisher does NOT add value to the product. However, if publisher is involved in preparing graphics, editing, designing the layout of the product, then one can assert that the publisher/distributor is adding some value.

However, it should be realized that all these value adding activities can actually be performed by the person creating the product. For example the content creator can hire his/her own free lance design team or their own free lance editors.

Seems that I am getting wordy. My overall point – the limited role of the publisher/distributor, in marketing a product, does NOT add value.

Crosbie Fitch said 5666 days ago :

The price of a copy is higher than its cost either because its manufacturer has added value, has a monopoly, or is remedying a market inefficiency. I am admittedly being a little sardonic in suggesting a publisher’s 99% cut is mostly made up of added value rather than monopoly.

If the publisher is adding value then the loss of monopoly won’t hurt their bottom line. Indeed, without copyright, authors and audiences will continue to commission and patronise the publisher to obtain their valuable services. Thus the publisher’s extreme enthusiasm for copyright betrays a tacit admission that they add very little value.

Ship of Fools · Thursday July 09, 2009 by Crosbie Fitch

Paul Sanders brings my attention to a PlayLouder blog item concerning a speech by Viviane Reding, where she says:

If we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services.

If we do not stop flogging the dead horse of forcing people to pay for copies they can make themselves for nothing, and start helping people pay artists for the art they want from them, then we’re not doing much to help either artists or their audiences.

Unfortunately, the interests of the artists and their audiences aren’t on the radar of the EU Commissioner for Telecoms and Media.

All lobbying is driven overwhelmingly by manufacturers of copies and others privileged with monopolies over the use of published works (copyright holders).

And the one thing the lobbyists and lobbied cannot even conceive of let alone confront is that the market for copies has ended. Their monopolies, their centralised control over the people and the people’s culture, have become impotent. Fortunately, there’s at least one European I know who Viviane could consult regarding the end of that control.

Viviane does at least reveal some glimmer of recognition of this predicament:

Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers.

I suggest that a necessary precursor to this is to first get the publishers and collection societies currently on board to walk the plank. Whilst they still have the ear of the captain the ship will stay lost in the doldrums and eventually sink.

It would also give her lip-service a little more credibility if she stopped using terms such as ‘content creators’, ‘natives’, ‘users’, and ‘consumers’. These are the derogatory terms of publishing corporations and their enforcers (aka policy makers). I recommend less distant and more human terms such as ‘people’, ‘artists’, ‘art’, etc. After all, it is people we’re talking about, innocent families faced with million dollar fines, not producers and consumers of content (whether she means soma or filler is not clear).

It is necessary to penalise those who are breaking the law.

Is it? And what if the law the people are breaking is an unethical 18th century privilege that tramples over the ancient and natural law that predates it by a few ice ages?

People have been copying stone tools, baskets and cave paintings from each other since the year dot. People have been sharing their art and knowledge among each other and building upon it since we had two brain cells to rub together. The policy makers who believe that mankind progresses by enacting laws to prevent this from happening are either brain dead or in the pay of corporations.

Restore to the people their cultural liberty.

Abolish the privileges of copyright and patent.

That will stop people breaking the law.

Steve R. said 5675 days ago :

Respect for the law depends on its acceptance by society. Once laws become irrelevant, people begin to ignore them. But those who are “behind” the law will continue to assert: “It is necessary to penalise those who are breaking the law.” Unfortunately, too many people unthinkingly ascribe to literally following the law without questioning its rationality.

Of particular concern, modifications to laws that further reduce the rights of the public to use content, such as diminishing the concept of “fair use” and extending the length of the copyright privilege.

If we are to have meaningful laws that will be accepted by society, onerous laws need to removed from the books, especially those that are aimed at depriving the public of its rights to use content.

fungo said 5673 days ago :

Well said.

What’s often called the “content industry” was actually the content DISTRIBUTION industry. But the cost of distribution has now fallen to essentially zero; hence this industry no longer contributes any value. But it refuses to go away, and in fact insists on being paid perpetual blackmail for not PREVENTING distribution from taking place.

It’s not a moral issue, and it doesn’t need to be a legal issue. It’s just the future trying to happen.

Super-Negotiation · Wednesday June 24, 2009 by Crosbie Fitch

In P2P And Putting In Place A Workable Business Model Chris Gilbey is right to observe that the obvious alternative or adjunct to a monopoly on the manufacturing and distribution of copies is a tax on the distribution of copies. In other words, if people start ignoring the monopoly by making and giving away their own copies they can be taxed for the copies they distribute.

Unfortunately, all this is ‘obvious’ only from the perspective of a monopolist publisher. What those publishers and their friends in high places don’t want to recognise is that not only was the monopoly of copyright an iniquitous piece of legislation in the first place, but a tax would compound it.

Instead we should recognise that the publishers are being rightly ejected from their privileged position in the value chain. They aren’t needed for manufacturing copies, distributing them, retailing them, or even promoting them. The public can do this all by themselves thanks to the Internet, or as Chris describes it: ‘super-distribution’.

What may easily slip one’s notice is that hand in hand with super-distribution goes super-communication. In fact the former came from the latter.

One of the key commercial advantages of copyright in the 18th century was that it removed the then considerable costs involved in what should have been communication/negotiation between the customers of books (words, not paper) and the authors thereof. The printers (in pursuing their monopolies) were thus in an ideal position to commission the author’s work – to negotiate a price of the work on one hand, and the price of each copy on the other.

Now just as super-distribution renders the monopoly of copyright ineffective, super-communication also renders the prospect of an author negotiating with their readership feasible. They can eliminate the costs imposed on the value chain by the printer, publisher, distributor, and retailer, eliminate the promotional costs of copyright, and thus negotiate what may well be a more lucrative commission from their readers directly. The market for printed copies is thus free and independent of the market for the intellectual work (qv WikiTravel & WikiTravelPress).

What should have happened in the 18th century was that the readers commissioned the author directly (via subscription), and then printers competed with each other in a free market to print copies of the author’s work. No doubt subscription technologies would have improved no end in the absence of copyright – and the price of books would have been a tad lower.

Today, with copyright ineffective, necessity is spurring the invention of efficient subscription or negotiation facilities. This is what I’m working on (ContingencyMarket.com), a means of enabling the author to haggle with readers, the audience to haggle with the artist, to make a collective bargain concerning the exchange of art for money, money for art. After all, it’s art the audience wants to pay for, not copies.

So, I don’t think the future business model for intellectual work will be quite as complicated as Chris suggests (no compulsion, levy or tax should be necessary). It should actually be rather simple, e.g. the author says “I’ll sell my book for $10,000”, and 9,000 readers say “We’ll buy your book for $1” and then the author says “Aw, alright then, done!”. Well, perhaps that’s an oversimplification. The negotiations and exchanges will no doubt be far more subtle and fluid (low friction) – or will be when this approach takes off. But, the point is, the author no longer needs to pay the publisher for printing, distribution, and promotion. They simply need a tadette of money from their readers, their customers. In exchange, the readers get the author’s words, and their liberty restored to share and build upon published works.

As Chris says, we need to “get people to the table to negotiate”, and that’s the artist and their audience: the negotiator with the art, and the negotiator with the money. Having enabled their negotiations, and once their deal is done, both sides have what they want. The artist has their audience’s money. The audience has the artist’s art – and both retain their liberty (there’s no longer any motive to preserve the monopoly in the production of copies). As with WikiTravelPress, if any CD manufacturer reckons there’s still a market for copies of the art, there’s no monopoly stopping them. After all, you can still buy CD copies of Red Hat Linux, and there’s no monopoly to prevent anyone else making and selling copies of that.

We could call this direct exchange of art and money between artist and audience super-negotiation.

Maniquí said 5682 days ago :

Really interesting concepts.

Just a a few quick comments/questions

“I’ll sell my book for $10,000”, and 9,000 readers say “We’ll buy your book for $1”

So, the author should release the book (on a digital format?) once he received the $9000?

How would buyers/readers do the payment “all at the same time”?

Or is this somewhat similar to ransomware?

Maniquí said 5682 days ago :

Ok, I’ve read the FAQs on ConvergencyMarket.com and now it’s more clear to me what is this all about.

Crosbie Fitch said 5682 days ago :

> So, the author should release the book (on a digital format?)
> once he received the $9000?

That is the effective exchange, although bearing in mind the large number of patrons, it isn’t a single transaction, but a cascade. $4,000 may be cash in hand, $3,000 due from readers with a good credit rating, and $2,000 from those new to this revenue mechanism. It’s likely to match the advance+royalty revenue stream provided by traditional publishers (the role soon to be taken over by the audience). And don’t forget, the author doesn’t have to accept the deal if they don’t want to. Moreover, each would be patron can also change their mind (prior to any deal of course).

This is not the only approach – there are many (see PayyAttention for example). Some approaches I think are worth a try, and some I think are dubious. However, because as Dirty Harry is wont to say “A man’s got to know his limitations”, I have created the Contingency Market, a general purpose back-end, precisely to permit many different approaches to be more easily explored. I can’t predict which one will become the most popular, but I can at least predict that one or two of them will be.

> How would buyers/readers do the payment “all at the same time”?

Well, via some Internet based system, e.g. the Contingency Market. That would be the system that makes the simultaneous payment. Each payee has made the decision to pay asynchronously, and will similarly pay their dues asynchronously (with a lump sum).

> Or is this somewhat similar to
> ransomware?

The SPP is a rather simple subscription mechanism, and as described on the Wikipedia page you link to, has a long pedigree. Something a tad more sophisticated (and unprecedented as far as I’m aware) is the Digital Art Auction, which enables a single price per copy to be determined from a collection of valuations.

Skeptical said 5665 days ago :

>
It should actually be rather simple, e.g. the author says “I’ll sell my book for $10,000”, and 9,000 readers say “We’ll buy your book for $1” and then the author says “Aw, alright then, done!”. Well, perhaps that’s an oversimplification.
<
Yes, oversimplification. Many assumptions here. The biggest being the arbitrary figure of $10,000 that you have plucked from somewhere. The writer has just spent 18 months writing the book. Living in a western country, the writer feels that a slightly better than average wage is acceptable. After all, the writer is the one that is providing the creativity to entertain others. So let’s say 18 months x $900 (gross per week, lets not forget taxes) So that’s $64,800 gross the writer needs just to get their wages for the 18 months. Lets say that it’s a good book (but not a “harry potter”) and people are prepared to pay $3 to download it (after all you can buy books for a dollar now under this new system so they wont pay too much). So now the writer has to get 21600 people to pay the $3 each. So now the writer has to get the word out. OK, it can be twittered, or blogged, etc, but ultimately the writer will probably have to resort to adsense (lets forget about the traditional mediums) to promote it. More cost that has to be recouped. So more books have to be sold, so more advertising is required to get the message out. So more expenses need to be recouped, etc, etc.

Or doesn’t the writer deserve a decent wage?

Crosbie Fitch said 5665 days ago :

Everyone deserves a decent wage for decent work. Unfortunately, not everyone appreciates decent work, so not everyone will get what they deserve. If you spend years researching and writing a book on a subject that few are interested in you may well find fewer people willing to pay you a decent amount for your work, compared to many who might pay a good deal for hastily scribbled thoughts, by a celebrity say.

I’m developing a revenue mechanism that enables writers to exchange their writing with their readers’ money – without suspending those readers’ liberty to share or build upon that writer’s work, and without forcibly extracting money from the readers (taxation). I suggest it’s also better than removing value from one’s work to sell one’s audience’s eyeballs to advertisers.

Building up an appreciative audience (to maximise revenue) will depend upon the author’s ability to demonstrate that their writing constitutes decent work, the existence or development of a market demand for the writing, and maximising the ability for that market to discover the author and their writing. There are many others to help in those respects. I’m focussed on providing help at the point where reader and writer need to make an exchange (including the haggling).

To an unknown/undiscovered author, I would suggest that either they work on building up their audience/market with a series of smaller publications first, or if they can afford to invest 18 months of their time unfunded, to publish that book free, as a promotional work (exchanging sales revenue for marketing costs). You can’t get paid unless there’s a market for your work and that market has discovered you. Of course, with a reproduction monopoly, it is possible future sales could be predicted to warrant an advance from an investor (publisher). However, irrespective of the fact that a monopoly is unethical, I think you’ll find it’s no longer viable. We’re left with the choice of exchange in a free market or taxation.

If the author is known/discovered then being a decent writer they’ll have a decent audience and a decent wage in exchange for their writing. This will also help increase the size of their audience. Hopefully, by the time most authors decide to invest 18 months on a book they have already built up a large enough audience that they can be confident that around 20,000 readers will be prepared to exchange $3 each for it – or 2,000 readers $30, or 60,000 $1.

IP Triumvirate · Monday June 15, 2009 by Crosbie Fitch

There are three theories as to how intellectual work should be recognised as property (or not):

  1. Privileged IP – extended by unnatural monopoly
  2. No IP – material property only
  3. Natural IP – no unnatural monopoly

Privileged IP is the predominant and received thesis. Moreover, to the most extreme of IP maximalists, the privileges of copyright and patent are seen as actually deficient, that the reproduction monopolies should be perpetual, and are otherwise dilutions, albeit tolerable if in the public good.

No IP is the predominant counter-thesis, that there is no such thing as intellectual property, that the only thing that can be the subject of property is matter, not information. Thus if a poem written on a sheet of paper is stolen (from someone’s private possession), only the theft of paper and ink is recognised, and if a copy of the words is stolen, no theft is recognised to have occurred at all.

Natural IP is the recognition of intellectual work as property from a natural rights perspective. It is offensive/incomprehensible to advocates of both the predominant thesis and counter-thesis, as while on the one hand it holds that the monopolies of copyright and patent are unnatural and derogate from the individual’s liberty, on the other hand it recognises that intellectual property is natural, that individuals have a natural exclusive right to their intellectual work. Thus with natural IP, poems can be stolen (theft of IP recognised with/without any material), though no monopoly over the poem is granted, e.g. purchasers of poems are free to make and sell copies or derivatives.

 

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