Julian Sanchez header image 2

photos by Lara Shipley

Things That Are Irrelevant to Copyright Policy

March 30th, 2011 · 42 Comments

Sometimes individual creators decide it’s in their best interests to transfer rights to their works—a song, a movie, a story, a character—to big, faceless, generally unsympathetic corporations. This should have exactly no impact on anyone’s view about the proper scope of the underlying right. Yes, sometimes people are hoodwinked into making unwise deals, and that’s bad and unfair—but it’s a kind of generic sad fact about life and contracts and whatnot, with no special significance in the realm of copyright. Often, the value of a right derives primarily from the ability to transfer it, and doing so will genuinely be in the best interest of the creator. So if you think that underling right is properly defined and deserving of respect when held by the creator, it is exactly equally deserving of respect when voluntarily sold to an entity you might not particularly like.

Sometimes, on the other hand, rights are retained by independent and sympathetic creators, who unsurprisingly want those rights to be as expansive as possible, and object to either general narrowing of those rights or the recognition of any number of “fair use” exceptions. These will often be wonderful, likeable, creative people, and the correct policy response to these objections as such is: Cry me a fucking river; now piss off.

Wise assessment of copyright policy should have nothing to do with how you feel about the person or entity who holds the right at any particular time, because copyright policy is not about identifying wonderful and meritorious people and ensuring—certainly not as an end in itself, anyway—that their income is proportioned to their intrinsic moral desert—or lack thereof. We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything do deserve a jot of it. We’re all just extremely lucky not to have been born cavemen. The greatest creative genius alive would be hard pressed to create a smiley faced smeared in dung on a tree trunk without that huge and completely undeserved inheritance.

So banish the word “deserve” from your mind when you think about copyright. Nobody “deserves” a goddamn thing. (I say this, for what it’s worth, as someone who makes his living entirely through the production of “intellectual property.”) The only—the only—relevant question is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation. That’s an empirical question, and while I strongly suspect the answer will generally be “not by a longshot” beyond a whole lot more limited level of protection than we currently provide, I’m happy to be persuaded otherwise along any particular dimension. But if you want to make an argument that turns in any significant respect on how unlikeable big corporations are or how marvelous creative people are… well, spare me. And the rest of us. Because in both cases it’s probably true, but as a policy matter, nobody should really give a damn.

Addendum: As some commenters note, there are of course practical reasons the law might distinguish between corporations and private persons—a “life of the author plus…” standard will obviously be a weird fit when the “author” is an immortal legal fiction. I certainly didn’t mean to deny that there might be good policy grounds for those kinds of distinctions; I’m just sick of arguments from all quarters that act like our level of sympathy for (A&R tools)/(indie artists) should determine the answers to general questions about the scope or duration of copyright. This generalizes beyond the particular context of copyright, of course—and I’d be happy to strike the word “deserve” from the lexicon of political discourse entirely.

Tags: Tech and Tech Policy


       

 

42 responses so far ↓

  • 1 Patrick // Mar 30, 2011 at 1:14 am

    While I agree wholeheartedly with this post, I’m curious whether you’re completely unsympathetic to European-style “moral rights” arguments; do they have no place whatsoever in policymaking?

  • 2 Julian Sanchez // Mar 30, 2011 at 1:39 am

    completely; none.

  • 3 x.trapnel // Mar 30, 2011 at 7:36 am

    I’m sympathetic to much of what you’re saying here, but I you may be painting with a bit too broad a brush here. Sometimes the structure of the relevant industry is an important consideration when thinking about whether property/contract/ancillary rules are well formulated, irrespective of questions of desert. Different sorts of producers (starving artists vs. subcontracting conglomerate) may simply respond differently to incentives, and so even a purely how-do-we-extract-the-creativity approach would rightly be attentive to this. (There’s another danger here, of course, of locking in incumbent, undesirable, industry practices through legal policies that effectively prop them up.)

  • 4 Tom // Mar 30, 2011 at 11:15 am

    You’re clearly right that we should divorce our affection for a rights holder from how strongly we defend their claims. But I think you’re wrong to collapse “individuals” and “entities” — we already make distinctions in the strength of copyright between the two, if only because entities can’t be counted on to die.

    And I think it’s probably wrong to insist that salable rights have to be considered atomic as they’re transferred. Consider the class action system: individuals’ rights are, in effect, weakened as they’re aggregated in an effort to overcome a collective action problem. Or consider the tax privileges that might be available to a small business owner, but which disappear when she sells to a larger company.

    I think both cases make sense as a matter of policy: essentially, we create tiered systems of rights that attempt to remediate imbalances of power by privileging those who lack it. (All of this needs an admittedly squishy “within reason” attached to it)

    I can certainly imagine philosophical objections to this general premise (though as you might imagine I’m not very sympathetic to them), but it seems pretty thoroughly baked into our society.

  • 5 bjza // Mar 30, 2011 at 12:53 pm

    If someone is basing arguments against corporations’ rights on their unlikeablility, it’s probably a symptom of anti-corporatist attitudes having a wider impact than the anticorporate/anticapitalist philosophies that spawned them. The law is certainly clear, but not everyone is in agreement on what rights should be granted to which classes of entities. So it’s understandable how someone wouldn’t find an entity deserving of rights when they don’t believe the entity should exist in its present state. Now, how coherently they communicate that attitude…

  • 6 MasterThief // Mar 30, 2011 at 2:30 pm

    There is an empirical reason for treating corporations, partnerships, and other legal persons differently than human beings with respect to copyrights: corporations are essentially immortal.

    An individual author or artist, sooner or later, is going to have to transfer their copyrights to someone else, for the simple fact that the individual will die. Those rights could go to their estate, their heirs, a business they’ve established, a foundation, or into the public domain, they could be transferred before death, or after by will, trust, or intestate succession, but they *will* have to be transferred. “Legal persons” who own copyrights are under no such pressure. Corporations, partnerships, and foundations can exist in perpetuity, they can hold copyrights on works for as long as the law allows. And as a matter of public choice theory, “immortal” legal persons with substantial copyright interests and money to back them up have strong incentives to game the system. In fact, this is precisely why U.S. (and international) copyright law is such a mess – media corporations with large copyright portfolios wrote a business model based on perpetual copyright, and then literally bought the laws to prop it up (ACTA, DMCA, etc.).

    I’m not saying this because I hate corporations. They’re just being rational economic actors, no more than the rest of us. I say this because I hate rent-seeking and economic inefficiency, and the abuse of the concept of property rights to justify it.

    The solution, of course, is to settle on a definitive, non-infinite, non-extendable copyright term that best incentivizes content creation. (I remember seeing one economics paper a few years ago concluding that the economically optimal copyright term is 15 years. It’s at http://rufuspollock.org/2007/07/09/forever-minus-a-day-some-theory-and-empirics-of-optimal-copyright/.) But what are the odds of such a settlement when Disney, Vivendi, Sony, Bertelsmann, the RIAA, MPAA, BSA, and publishing industry et. al. have a vested interest in keeping their perpetual copyrights perpetual?

  • 7 sardonic_sob // Mar 30, 2011 at 3:04 pm

    MasterThief:

    We don’t treat them differently… save for one logical distinction directly related to your objection. Since a WFH whose “author” is a corporation can’t be limited by a finite life-in-being, as you note, we don’t set the copyright term of such a work according to a life-in-being. However, a corporate-authored WFH has a limited copyright term, which is not THAT far misaligned with what one might expect the average human-authored work’s copyright term to be.

    You probably know this, but for humans, it’s life+70 years. For corporations, 120 years tops. If the average author can be expected to live 50 years after authoring the average work, the two are in complete synch. Otherwise, the disparity gives some slight advantage to the heirs and assigns of young authors in good health, and some disadvantage to the heirs and assigns of older authors in poor health.

    If I assign a copyright to a corporation, the copyright does not magically get extended. I cannot give what I do not have, and what I have is life+70. The fact that the corporation will never die does not affect the term of the copyright.

    Now, if your objection is that corporations have more incentive to lobby for continuous extension of previously fixed copyright terms than living people do, then you certainly have a point. However, while they may have *more* incentive, given that all corporations are owned by living people that incentive just devolves into the desire of the living people to increase the value of their ownership which indirectly leads them to support copyright extension. Corporations do not have minds or existences of their own.

    All that being said, I would be the first to agree that the current Mickey Mouse Protection Schema which seems to control our law is not in our society’s best interests. I would prefer a single fixed term of some reasonable duration.

    I would be willing to consider a life term for non-WFH works, on the basis that inchoate but broadly sympathetic principles of fairness make it seem reasonable to allow someone to share in the success of something they created while they are alive, take it never so long to come to fruition. (And also to disincentivize people from “waiting out” fixed term copyrights when they see a market opportunity near the end of the work’s term.) Perhaps a simple selection – if the work is a WFH, the term is a fixed twenty years, say, but if the author is a human being, they may select a term of twenty years (incentivized by much stricter control privileges, maybe) or life. If they drop dead the next day, so be it. We would allow the author to select which term they wanted upon registration, with unregistered works automatically switching to some default term (say an extra ten years) if the author dies before registering.

    This is all just off the top of my head, but my point is that this is eminently solvable, and the potential immortality of corporations is not now and does not have to be in future any justification for treating their creations and assigns any differently, once the term is established.

  • 8 MasterThief // Mar 30, 2011 at 3:35 pm

    Sardonic_sob, I understand your point, but it reminds me of the joke about the economist who gets shipwrecked on a desert island with a box of canned food but no can opener, and who simply assumes one. You’ve described how copyright works and how to fix it in theory; in practice it is much trickier, and fixing it even trickier still.

    Yes, copyrights held by corporations aren’t magically extended; it takes substantial political donations and lobbying clout to keep Steamboat Willie from 1928 out of the public domain in 2011. The clout of corporate IP interest has been used before and will be used again to rent-seek. Copyright wasn’t always 120 years, or life + 70 years; the Copyright Act of 1976 was 75 years, or life + 50 years. (You can see the steady expansion of copyright terms at http://upload.wikimedia.org/wikipedia/commons/2/2f/Copyright_term.svg). Yes, life expectancy plays a role, but once copyright terms go beyond all possible human life expectancy that explanation loses force.

    True, the fact that a corporation will never die doesn’t affect the term of the copyright per se, but it *will* grease the skids all the way to perpetual copyright, one 20-30 year extension at a time. (Thank you Eldred v. Ashcroft.) Individual authors have neither the clout nor the incentive to do this; besides, I don’t know very many authors who think their great-grandchildren deserve royalty checks for their work.

    Once a unified copyright term has been established, you’re right, there’s no reason to treat corporations and individuals any different. But getting to that sane and economically efficient copyright policy will require taking on those same corporations whose very profits depend on copyright law being so messed up.

  • 9 JAZ // Mar 30, 2011 at 3:58 pm

    I left the below as a comment on Megan’s post on this issue but I figured I’d leave it here to on the off chance you’d like to respond:

    While I like that [your] reasoning somehow reminded me of Bill & Ted, this argument relies on a causal fallacy and is susceptible to a reductio.

    1) The casual fallacy, an instance of reverse-chronological snobbery: Just because previous generations did all the incremental work to invent musical notation and guitars and advance our collective understanding of rhythm, harmony and melody does not mean “A Day in the Life” is not a unique work of staggering, mind-blowing genius. Yes, the boys from Liverpool would not have written and recorded it without a chain of achievements stretching back to the very first caveman who banged a stick on a log. But that doesn’t mean that the first cave-drummer or baroque guitarist could ever in a million years have produced Sgt. Pepper’s, even with the exact same tools, knowledge and cultural referents at their disposal.

    2) The glaringly-obvious reductio: If we only deserve benefit for those things we create that we don’t owe to earlier people in history who made contributions necessary to their development, than what do deserve? Does Monsanto deserve the profit from it’s drought-resistant seeds, since they rely on the work of Mendel? Does my favorite local cupcake bakery deserve to profit from the sales of their original Cherry Blossom flavor, since the Romans invented cake-baking? Does Megan deserve to be paid for this post she typed on a computer she doesn’t fully understand that she didn’t even attach any commentary to?

    Obviously, the correct analysis is that all economic activity relies upon the work of others, stretching back to the nameless, long-dead caveman. And there is no compelling reason that I see or Julian provides to distinguish between material and immaterial innovation.

    —-

    Oh, and I’m going to start calling any argument that includes “Quit whining, you’re just lucky not to be a caveman!” the Silence, Caveman! Fallacy.

  • 10 Corporate Serf // Mar 30, 2011 at 4:02 pm

    What’s your take on the underlying question, viz, are ideas and/or expressions of idea, whether creative or not, property?

    After all, if I copy this article verbatim, does it take away anything from the original? What if I get an idea from it, but which is clearly derivative, is that worth protecting against?

    The only protection I see needed under this view is one of misrepresentation; where I represent as being created by me.

  • 11 Mark Barrett // Mar 30, 2011 at 6:34 pm

    My take:

    http://www.ditchwalk.com/2010/02/05/on-being-smarter-than-the-problem-copyright/

  • 12 When Is Copyright Just? | Sinting Link // Mar 30, 2011 at 6:36 pm

    […] Sanchez says the only question that matters when debating copyright is "whether a marginal restriction on […]

  • 13 Mark Barrett // Mar 30, 2011 at 6:40 pm

    Oy…

    In the above comment I also originally wrote that I agree with your post, with the proviso that the time-limited aspect of current copyright law works to mitigate the yes/no aspect of the debate.

    Apologies for just dropping a link.

  • 14 Freddie // Mar 30, 2011 at 7:43 pm

    http://en.wikipedia.org/wiki/Proof_by_assertion

  • 15 Brian Daly // Mar 30, 2011 at 7:47 pm

    Wow, I rarely comment on random blog posts but this just struck me as obnoxious and baseless.
    Law is not and has never been just about what is best or most theoretically efficient for society. Ideas about fairness, morality, respect for precedent and tradition, non-equitable outcomes based on societal standing and resources, crazy ideas of legislators, the emotions of juries, and downright arbitrariness are a huge part of the fabric of the legal system.
    Ironically, the whole concept of property is of a piece with intellectual property: Is a physical object or piece of land somehow intrinsically connected to its owner via some inherent physical property of the matter? No. It’s a societal construct. Its all part of a complex social contract.
    If you argue that the laws of intellectual property should be constructed strictly for the basis of a theoretical benefit to “society,” to be consistent you should argue that all laws should be constructed that way. Good luck with that.

  • 16 Dr Know // Mar 30, 2011 at 7:51 pm

    Perhaps we could start with the constitution
    This is the clause that creates the Copyright, Patent and Trademark in the USA.

    “To 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;”

    It’s not so complicated. It’s not vague. There has been an incredible amount of lobbying to make this simple directive given to congress into the monstrous mess we live with today.

  • 17 Superflat // Mar 30, 2011 at 8:14 pm

    I agree with your point, and have long made it myself in regards to copyright. However, it’s no use focusing on intellectual property, as the argument you raise points to a broader difficulty with Capitalism itself.

    The entire idea behind Capitalism is, just like copyright, to ensure creators of goods/ideas/wealth have enough incentive to continue improving civilization. Because it’s difficult for some central structure to dole out funds appropriately, we instead create laws that ensure people can be compensated for their work through commercial transactions.

    However — and this is the big issue — not all products are the same. On the one hand, most IP can be duplicated with almost zero cost, meaning it’s far easier for a musician, say, to generate profit than it is for a carpenter, who has to sink money into every product he sells. On the other hand, the low barrier to entry means only few people will ever be successful and the fluid and ephemeral quality of information makes “theft” of ideas incredibly easy.

    Capitalism as it exists in the US, it turns out, is struggling to deal with the obvious benefits of the information age (in theory every citizen could have access to a library of every book, movie, academic document etc. ever created). Why? Because freely spreading information conflicts with our model for creating incentives for information production.

    Yes, there are adequate solutions — creating modest copyright and patent laws that allow people a certain amount of profit motive. But of course even limited laws can be hugely problematic when considering life-saving drugs, alternative fuels that may stave off air pollution, or the simple fact that limiting access to information (even with a modest fee) is yet one more way to disenfranchise the poor.

    I don’t mean this as an indictment of Capitalism — I simply wish to draw attention to the fact that you’re hitting on the much broader problem of the tension between fairly allocating wealth and simultaneously progressing society.

  • 18 quote out of context | clusterflock // Mar 31, 2011 at 12:13 am

    […] anything do deserve a jot of it. We’re all just extremely lucky not to have been born cavemen. The greatest creative genius alive would be hard pressed to create a smiley faced smeared in dung on… trunk without that huge and completely undeserved inheritance. posted by Joel Bernstein in culture, […]

  • 19 ??? // Mar 31, 2011 at 6:04 am

    Re: bjza and Corporate Serf, I think the law stops being clear when we face derivative works, which have exploded in the last decade thanks to the Internet, and the legal basis of “originality” and “transformativeness.” Whether it is a music or video mashup, or a game machinima animation, or audio commentary over videos/gameplay. There can also be further derivative questions involve reworkings of original works, such as mods, remixes, and ROM hacks. None of these have been consistently answered, nor has there been any case since before the development of the World Wide Web to establish a basis of legal precedent (last significant case was Campbell v. Acuff-Rose Music, Inc. in 1994, last I checked).

    Consider the Let’s Play phenomenon: Since the middle of last decade, there’s been a growing community of video game players who record themselves playing a video game, and provide audio or text commentary over the gameplay. A wide variety of games are Let’s Played. The question at heart for them is, is it copyright infringement for someone to be recording these gameplay videos? Or are these works original enough to be considered fair-use derivative? Or is it somewhere in between, where a full play-through may constitute an infringement, but a single level or match would not?

    This seems silly to mention, but there is an immediate relevance to the very subject. In the past couple days, Machinima.com, a site dedicated to machinima (animations based on video game engines) and a sponsor of YouTube partnerships, privatized a large number of partner videos, particularly those of Let’s Plays, on very sketchy copyright grounds. This has irked quite a few LPers who have extensive archives (some have over a thousand videos, believe it or not) locked out due to this.

    I think that the unanswered questions that remain in this particular front are just as important as the transfer of rights and how they are interpreted. Hell, in all honesty, when you remove the issues surrounding piracy, the issue of derivatives is probably a much larger question than rights ownership. Because not a lot of people would be putting up such a front on rights were it not for that.

    That said, I agree with the gist of Master Thief saying, and even extend it to work for hire: Simply because the rights were essentially the corporations’ to begin with does not necessitate a perpetual copyright. It is bad business to begin with: Holding on to several IPs for longer than the vast majority of human lifespans is ultimately disruptive to creativity and overall profit, even within the context of the rights’ holders themselves. As people like to say, shit gets old after a while.

    Someone I saw on another forum somewhere the other day offered a compromise: Perpetual royalties on the original work, but the copyright itself would expire after a short period. That’s a minefield and a half (because of the unanswered questions on derivatives), so I thought of tweaking it a bit: Perpetual royalties for the original work, but either a narrow and strict definition of “original work,” or a major expansion of derivative fair use alongside a shortened copyright length. It would probably mean that abstracts such as characters or settings could not be copyrighted because of their transformative properties. Not the best idea, but it’s something I suppose.

  • 20 Luminous Muse // Mar 31, 2011 at 6:21 am

    I’m afraid I can’t match the intellectual highbrow tone of this post or the comments (not ragging on it, just don’t have the chops.)

    Here’s my visceral take on the whole copyright argument. I’m a composer who has been lucky to live off of royalties for stuff I’ve written over the last 30 years. Since Napster people have been stealing music, particularly those of a younger generation. (OK, I should say “stealing”, as many believe it’s their God-given right.) Many musicians from that generation grew up believing music was free. Now they give theirs away. Inide bands in Brooklyn work day jobs and make music at night, and give it away to ad agencies for “exposure.” In ten years they’re going to be tired. Imagine how impoverished we’d be if the Beatles, not to speak of Beethoven and Bach, had been forced to work day jobs?

  • 21 Julian // Mar 31, 2011 at 1:19 pm

    Luminous-

    Hey, I agree! That’s exactly the kind of argument I am happy to entertain, and I certainly don’t argue we don’t need copyright AT ALL,though FWIW, composers of Bach’s era made their living off patronage, not so much royalties (let alone sale of recorded works, obviously).

    But that, ultimately, is the right question: What set of rules gives us the combination of incentives (e.g. Royalties) and freedom (lots of people exposed to lots of creative work, able to do interesting things with it w/o permission) that we get the most good stuff?

  • 22 Julian Sanchez Eviscerates Copyright Moralists | Schismatism // Mar 31, 2011 at 8:19 pm

    […] Sanchez’s “Things That Are Irrelevant to Copyright Policy”: Sometimes individual creators decide it’s in their best interests to transfer rights to their […]

  • 23 Glen // Mar 31, 2011 at 9:58 pm

    I generally agree with your position, Julian, but I take issue with your restrictive use of the term ‘deserve’.

    If that word is taken strictly to mean something about the personal virtues of particular persons or entities involved, then yes, I’d like to abolish ‘deservedness’ from the discussion.

    But I use the word more broadly than that. When I say that someone deserves to get paid what they were promised in a contract, it’s not a statement about the recipient’s virtue. It’s a statement about the obligations I think are imposed by contract. When I say a craftsman deserves the money he’s voluntarily paid by the buyers of his crafts, I’m not saying craftsmen are necessarily nice people. I’m saying we should respect the craftman’s self-ownership and freedom to trade.

    Notice that neither of these examples involves intellectual property. In my (admittedly utilitarian) perspective, the justification for traditional forms of property is also largely a matter of good incentives and efficiency. Yet I have no problem saying that people ‘deserve’ their property or ‘deserve’ not to have it invaded or stolen. As I use the term, deservedness is a matter of honoring certain principles — even if such principles are ultimately justified on utilitarian grounds.

  • 24 Julian Sanchez // Apr 1, 2011 at 12:12 am

    Glen-
    I agree on the substance, though (maybe under the influence of Nozick) I tend to use “entitled” or “have a right to” for what you’re talking about. “Deserve” has a broader moral connotation that I think tends to muddy the waters, at least if I’m not way out there in how I tend to interpret the difference between the terms. Which I might be!

  • 25 RN // Apr 1, 2011 at 9:13 am

    You piss off you, pile of dried horseshit.

    I feel as charitable to you as you do to creatives. Fun, isn’t it?

    I’m open to thoughtful, open-minded empathetic discussion about what’s the best level of intellectual copyright protection.

    But people with your vituperate attitude toward creatives should just be run down with a truck. You’re completely unhelpful, and a waste of carbon.

  • 26 Freddie // Apr 1, 2011 at 9:14 am

    You’re not going to like the world we’re going to get, where we have no professional artists.

  • 27 Freddie // Apr 1, 2011 at 9:27 am

    Not that I’m saying your attitude is to blame, of course, or that you would want such a thing. I just have become deeply pessimistic about preserving the ability for artists to make a living in our society, and I think that’s terrible.

  • 28 Gunnar // Apr 1, 2011 at 10:26 am

    Strangely enough, there are several industries that work totally without copyright. Fashion, food, furniture, automobile shapes, magic tricks, jokes, open source software, databases, tattoo artists, fireworks, rules of games, smell of perfumes… no copyright and they seem to do just fine…

  • 29 Michael // Apr 1, 2011 at 12:06 pm

    I blame Mark Twain for the current problems with copyright in the US. Because of him and his successors, the public domain will have great gaps where very little is added to the public’s repository.

    This is a regulatory capture problem caused because Congress did not say “Cry me a fucking river; now piss off.”

    I think the original copyright bargain was a pretty good deal for creators and the public; we will grant you a limited time wherein the government will allow you to have control over your works. In exchange, they will become available to the public after a set period of time. The problem with the concept of eternity −1 copyright is that it offers no benefit to the public. Our representatives have given away our piece of the original bargain and AFAICT, did not even get a handful of magic beans for it.

    Now I’m depressed about copyright again.

    [note: I agree completely with Julian’s comment at #2]

  • 30 Julian Sanchez // Apr 4, 2011 at 1:33 pm

    Freddie-

    First, as Gunnar notes, we actually manage to have lots of folks professionally devoted to creative production in many domains with no copyright protection at all. At the high-art end, you’re mostly talking about a revenue model based on commissions and the sale of originals anyway.

    Second, what I’m saying is precisely that we should have as much copyright as we need to make high-quality content production viable, when balanced against the cost to the public domain entailed by any set of restrictions. If you have some research showing that significantly shorter terms (say, 15 years renewable once) and a broader understanding of fair use would make the difference for many people between being able to produce art professionally or not, by all means, share.

    Third, while I neither want to live in a world without professional artists, nor think there’s any credible evidence that this would be the upshot of a world with less draconian copyright policy, I do think it’s a serious error to only weigh those people’s interests. It has gotten a LOT less costly for someone who ISN’T a “professional” to create and distribute a work to an essentially unlimited audience without any of the enormous capital costs that would, until very recently, have required the promise of a steady revenue stream off the work to make its production and distribution worthwhile. Often the biggest practical barrier will be the legal uncertainty about using existing works as raw materials.

    Does that mean amateurs making mashups and bands recording songs for fun after work are going to replace dedicated, full-time artists? Of course not. But it does mean you can’t calculate the impact of policy on the richness of creative culture by focusing exclusively on the interests of a professional class of creators, let alone some vague sense of how much control they “deserve”.

  • 31 Anonymous // Apr 9, 2011 at 12:51 am

    Ding! Ding! Ding! We have a winner of an argument here. Julian actually took the time to read the U.S. Constitution and interpret the powers granted to Congress, and interpret the framer’s intent. Too bad that the Supreme Court does not always honor that crusty old document in favor of the realpolitik imbalanced interests of publishers under the Berne convention, et al.

  • 32 If You’re Arguing That Someone ‘Deserves’ Copyright, Your Argument Is Wrong | My Blog // Apr 9, 2011 at 6:21 am

    […] has been doing excellent work on copyright issues of late, has a nice post about how such arguments are totally irrelevant to copyright policy. He notes that it’s no surprise that artistic and creative people want greater copyright […]

  • 33 If You’re Arguing That Someone ‘Deserves’ Copyright, Your Argument Is Wrong – My Wordpress Blog // Apr 9, 2011 at 6:53 am

    […] has been doing excellent work on copyright issues of late, has a nice post about how such arguments are totally irrelevant to copyright policy. He notes that it’s no surprise that artistic and creative people want greater copyright […]

  • 34 ictus75 // Apr 10, 2011 at 10:57 am

    Hey, since this is a well written piece, I’ve taken it for my own blog and put my own name to it. I know you won’t mind, because copyrights are for shit anyway. Thanks for the piece, I didn’t have to spend anytime writing it and was able to go to the beach for the afternoon after I just blogged it.

  • 35 Jenny Creed // Apr 11, 2011 at 9:57 am

    You make a fascinating argument against the very concept of merit, which I’ve struggled with for years. Thanks!

  • 36 David Allsebrook // Apr 11, 2011 at 2:36 pm

    Your premise that copyright relates to protecting information is not true, at least in Canada. Information may be freely taken from copyright works. Only the expression is protected.
    Our Supreme Court has emphasized that copyright is an incentive scheme to publish. This is a major policy goal, but like patents, the extent to which it serves as an incentive is not evident.
    There is however a strong public sentiment that creators should be rewarded for their creations with a property right. Most people consider it just and fair. Intellectually we can squeeze that tube of toothpaste all we want, but ultimately we live in democracies.

  • 37 Desert vs. Entitlement // Apr 14, 2011 at 11:14 am

    […] a recent post, I suggested that claims about “desert” are generally misplaced in arguments about […]

  • 38 Who Benefits from Copyright? | Copyhype // May 5, 2011 at 6:29 am

    […] A couple of recent online posts provide examples of this argument. The first is from politician and Swedish Pirate Party founder Rick Falkvinge, who writes at TorrentFreak about Why the Copyright Industry Isn’t a Legitimate Stakeholder in Copyright. Journalist Julian Sanchez provides the second in Things that are Irrelevant to Copyright Policy. […]

  • 39 精力剤 // Jun 22, 2011 at 9:30 pm

    巨人倍増
    精力剤
    媚薬
    曲美
    きょくび
    天天素
    MAXMAN
    威哥王
    三便宝
    五便宝
    三体牛鞭
    三體牛鞭
    勃動力
    FLY D5
    SEX DROPS
    アリ王
    狼1号
    性霸2000
    花痴
    ハナチ

  • 40 sac à main // Aug 26, 2011 at 3:17 am

    Welcome to http://www.replicabagsell.com .Our company was founded in 2004 and was committed to internet marketing businesses in 2006.

  • 41 Auto Glass Repair Austin TX // Nov 5, 2011 at 9:24 pm

    I couldnt agree more this on post and who commented on this topic. Great post!

  • 42 On Originality | Minor Scratches // Jun 5, 2012 at 11:57 pm

    […] – Julian Sanchez, Things that are Irrelevant to Copyright Policy […]

Leave a Comment