William Patry’s War on Copyright

William Patry’s Moral Panics and the Copyright Wars is not a particularly new book — it was published in September 2009 — but I was intrigued to read it when I saw him speak eloquently at the Copyright Clearance Center’s recent OnCopyright conference.  At this event, the prolific and widely-experienced copyright expert represented himself as espousing a “balanced” approach to copyright.

Unfortunately, Moral Panics is about as balanced as the US federal budget.  It is very well written, deeply researched, engaging, and erudite; but it is ultimately a copyleft screed that will not be particularly illuminating to those who have read other works in this genre.  Patry’s basic theme is that notions such as “copyright war” and “piracy” are metaphors cooked up by Big Media in an attempt to blow the importance of copyright way out of proportion to its actual purpose and value in society, and to demonize those who stand in their way.

This is an interesting and well-argued line of reasoning, but if you follow it through to Patry’s rhetorical (though not very practical) conclusion, you get the distinct impression that copyright is a virtually worthless construct.  There is no “balance” here, just an exegesis of copyright excess perpetrated by the likes of Jack Valenti and the RIAA.

This book contains nary a sentence defending the value and necessity of copyright.  At best, Patry merely cites the usual quotes from Jefferson about the value of intellectual property as if they were hoary old relics, giving them a treatment similar to that which a liberal judge might give parts of the Constitution when arguing with someone like Supreme Court Justice Antonin Scalia.

Beneath all of Patry’s talk about the insidious power of metaphors and “folk devils” to influence the public dialog lies a fairly standard set of copyleft truisms, such as: confusing the Big Media industry with actual content creators; pointing to some fringe youth content creation activity as “the wave of the future” (Japanese cell-phone fiction writers in Patry’s case, though I don’t get their relevance to his arguments); and generally ignoring content creators’ needs to make livings.

Much of the copyleft doctrine on copyright in the digital age rests on the following logic: Big Media represents the interests of copyright; many of the actions of Big Media are objectionable (e.g., Big Media sometimes treats content creators unfairly); therefore copyright itself is objectionable.  This is just plain flawed logic, yet Patry follows it slavishly in this book.

The use of such logic is perhaps understandable, given that most of the people who write about this stuff have very little contact with actual content creators.  Either they are academics, and thus sheltered under what Lawrence Lessig has aptly called the academic patronage system, or they are Washington beltway types who exist to spar with their counterparts at the Big Media lobbying organizations.   It’s more fun to talk about appropriation artists or cell-phone novelists, but all that is irrelevant to the mainstream musical artist, writer, or photographer who just wants to get paid.

Patry’s insight that Big Media resorts to metaphors and folk devils may be accurate as far as it goes, but it’s hardly novel.  In fact, it has been no more than business as usual for politicians and lobbyists of all stripes throughout history, from Jim Crow in the 1830s to Joseph McCarthy’s “red menace” in the 1950s to the Willie Horton TV ads that George H.W. Bush used to win the presidency in 1988.

Far more interesting than the accusation of Big Media of acting like typical politicians is an examination of the results of such actions on society and culture over the years.  In this respect, Moral Panics falls short of Jessica Litman’s Digital Copyright, which provides such an analysis and stands with Lessig’s first book Code and other Laws of Cyberspace as the most worthwhile copyleft treatises to date.

Litman explains in her book how the U.S. copyright law has evolved as a series of accomodations between special business interests that have been made over at least a century.  In that light,  the actions that Patry complains of in Moral Panics are merely more of the same (notwithstanding Patry’s repeated “Masterpiece Theatre”-ish references to Lord Macaulay and his ilk).

And Patry does little more than complain: he stops his book cold by calling for “reform” without the slightest hint of how to go about it.  After reading Moral Panics, one gets the feeling that William Patry’s idea of reform is to do away with the entire copyright system.  (Patry has since decided to follow this book up with a sequel on how to fix the system; his posted comment on Amazon.com tells us to expect this next year.)

By the way: the introduction to Patry’s book implores readers and reviewers to ignore the fact that he is the chief copyright counsel at Google and to treat the opinions in his book as entirely his own.  I have two things to say about this.  First, the only piece of rights technology about which Patry has anything positive to say in this book is Google’s video fingerprinting system for YouTube.  (He at least agrees with my own axiom that “the answer to the machine is in the machine,” a sentiment that actually puts him at odds with many of his technophobic copyleft brethren.)  Second, Google ultimately hired William Patry for a reason.


  1. “William Patry’s idea of reform is to do away with the entire copyright system” ?

    I suspect not. I tried to persuade him of that logical conclusion on his blog, but intolerant of such blasphemy he eventually banned me from further comment.

    An 18th century privilege that pretends to empower the holder with the ability to suppress unauthorised reproduction cannot surpass a global populace naturally able and willing to ignore it. The people have certainly been indoctrinated to regard copyright as a ‘good thing’, but then they’re experts at doublethink, maintaining that belief simultaneously with the naive notion that they have the cultural liberty to share and build upon their own culture.

    Reform is impossible – a folly. One cannot both relax and reinforce a cultural constraint.

    Albeit a heresy, abolition is as inevitable as heliocentricity. If we are to fulfil the promise of the 21st century we must remove the parasitic brakes on progress granted to the favoured industrialists of the last three centuries.

    People are beginning to notice the smoke and the smell.

  2. Thanks for your interesting comment. The point that I keep trying to make — though I see it continues to fall on deaf ears — is that copyright ought to benefit content creators, who are not necessarily the same entities as the companies that distribute their work. Talk of abolishing copyright because of the alleged bad behavior of big media companies is really just talk of throwing babies out with bathwater.

  3. Bill, the corporations that have grown wealthy through the exploitation of a privilege intended for them can be expected to do nothing less than continue to safeguard the means of their wealth – even if the threat against it comes from the delinquence of those people whose liberty the privilege necessarily suspends.

    Irrespective of pretext, copyright was intended to benefit, and did benefit, the Stationers’ Guild and their contemporary descendants. It is nonsensical to suggest that something designed to benefit a printer should instead benefit the intellectual worker the printer tends to source one of their raw materials from. Copyright is a monopoly on the production of copies and it benefits the producer and vendor of copies. That’s all there is to it. It is consequently useless in a world in which people can make their own copies for nothing – much to the dismay of printers, record labels and publishing corporations.

    What benefits the intellectual worker or artist is an enthusiastic audience, a goodly proportion of whom are keen to commission the artist to produce more art.

    We can see that communication of the art to the audience is extremely cheap and efficient these days, so cheap the audience will graciously perform that service without charge (file-sharing), obviating the 99% fee they usually pay to the printer. Of course, there is that missing 1% that the intellectual worker needs in exchange for their labour involved in producing and publishing their work. So, we do need an mechanism where the artist’s fans can proffer their commission and the artist can do a deal with them directly. This is solved by the cheap and efficient communications facility we know as the Internet.

    Perhaps you’ve noticed the Diaspora project? It’s a hot topic at the mo. Via Kickstarter, they’ve raised around $100,000 directly from the more interested members of their expectant audience in exchange for producing and publishing copyleft software for the PUBLIC benefit. Why do they need a monopoly? They get the commission. The public gets the software (and their liberty to share and build upon it restored). No need for any intermediary software publishers.

    Direct, disintermediated exchange of intellectual work for money is the future business model for digital productions.

    The abolition of copyright is simply an inevitability. Not only is the 18th century privilege an ineffective and redundant anachronism, but it is an instrument of injustice.

  4. I’m sorry to see it confirmed that you have no understanding of actual content creators who want to make a living through their recorded work.

    “Direct, disintermediated exchange of intellectual work for money” and “the abolition of copyright” have nothing whatsoever to do with each other. The need for content creators to make livings off their work need not presuppose intermediaries just because it did 250 years ago. There can be copyright without media companies; you don’t need to abolish it. This 1% of yours is pure conjecture and fantasy.

    I am familiar with both Kickstarter and the FSF theories to which you subscribe to. Kickstarter has a heart of gold but the FSF theories are just pure nonsense. Please do yourself a favor and go talk to some actual musicians or writers. You might find them interesting.

  5. Bill, as you astutely recognise, it is important to have an understanding of all aspects of intellectual work, its production and exchange, the modern distribution, reproduction, and communications technology, the natural rights of individuals concerning their cultural liberty and the anachronistic 18th privileges that suspend it.

    I do talk to all manner of intellectual workers, including musicians and writers. I’ve had an extensive discussion with Billy Bragg (a staunch supporter of copyright and compulsory licensing). See http://www.digitalproductions.co.uk/index.php?id=224. I’ve also discussed issues in this field with him further at considerable length on the http://a2f2a.com website.

    I also try to engage with those IP lawyers who’ll tolerate my comments on their blogs (many don’t).

    If you’re familiar with musicians you should be familiar with 1% as a typical proportion of the retail price of copies that a musician can hope to one day recoup their advance.

  6. I’m “familiar” with musicians in a quite literal way: I was fed, clothed, housed, and educated because both of my parents are/were professional musicians, and my wife deals with them every day as a manager of an agency for musicians. And my brother and uncle are both professional actors.

    I’d love to know where you get 1%. It has nothing to do with anything, especially in a scenario where content creators distribute their work directly to the public.

  7. I’m probably being generous with 1% as the proportion of an album’s retail revenue that ends up in the artist’s pocket (for the average artist and album), but it’ll do for argument’s sake. Even if it’s 5% in some rare cases of record label generosity, 95% is still a hefty fee paid by the purchaser of a copy for the delivery of the artist’s intellectual work. This is why it’s unsurprising that a musician’s audience is happy to miss out the middle man and perform their own distribution at negligible cost.

    One can only conclude that it’s because it’s such a terrible bargain that there’s so much secrecy on the part of record labels to keep the figures out of the public eye – in terms of what proportion of revenue ends up with the label as compared to the artist.

    However, occasionally some artists do dare attempts to enlighten the public.

    Here’s a quote from Courtney Love in 2000.

    “It’s piracy when the RIAA lobbies to change the bankruptcy law to make it more difficult for musicians to declare bankruptcy. Some musicians have declared bankruptcy to free themselves from truly evil contracts. TLC declared bankruptcy after they received less than 2 percent of the $175 million earned by their CD sales. That was about 40 times less than the profit that was divided among their management, production and record companies.

    Toni Braxton also declared bankruptcy in 1998. She sold $188 million worth of CDs, but she was broke because of a terrible recording contract that paid her less than 35 cents per album. Bankruptcy can be an artist’s only defence against a truly horrible deal and the RIAA wants to take it away.

    Artists want to believe that we can make lots of money if we’re successful. But there are hundreds of stories about artists in their 60s and 70s who are broke because they never made a dime from their hit records. And real success is still a long shot for a new artist today. Of the 32,000 new releases each year, only 250 sell more than 10,000 copies. And less than 30 go platinum.”

    Here are some links:

    The Problem With Music by Steve Albini
    Courtney Love does the math by Courtney Love
    The Truth about the Music Industry by Dave Paul
    By the power of Satan… by Lee Diamond
    A Music Industry Case Study; and The Future of the CD NY Daily News

    When artists exchange their work with their fans directly, then yes, they should be getting very close to 100% (not 1%). However, copyright has nothing to do with the exchange of intellectual work for money. An artist has no use for a monopoly on the production of copies because they are not in the business of producing and selling copies.

  8. All these articles do is perpetuate the same poor logic that I have been calling out all along: recording industry evil ergo copyright bad. For the umpteenth time, this is nonsense. The two need have nothing to do with one another. Janis Ian is the one who at least understands this, although she wrote her piece under an assumption that the primary means of obtaining music is by buying CDs, which gets you back to record companies and thus induces the circular reasoning by which you arrive at your 1%.

    In a world where record companies don’t exist, and artists find ways to distribute their works directly to the public digitally, they still need resort to means of protecting their works.

    “An artist has no use for a monopoly on the production of copies because they are not in the business of producing and selling copies”? Yes they are, if they don’t have record labels — or the functional equivalent — to do it for them.

    What you’re suggesting about abolishing copyright necessarily implies one of three things:
    1. Artists put their work out on the Internet and hope to get paid even though nothing prevents someone else from taking their work and distributing it themselves for a lower price or free, or for making it more convenient by aggregation, recommendation engines, etc..
    2. Artists get paid via some sort of egalitarian compulsory licensing scheme of the sort that Billy Bragg, the EFF, and others advocate, in which some benevolent agency divvies up the pie.
    3. Some third option that I’m too dense to know about or understand.

    So, which is it?

  9. Bill, there’s not much I can do about the paucity of online documentation for my ‘order of magnitude’ figure of 99% for the loss of revenue between the fan’s purse and the artist’s pocket. However, that’s the ratio I’m working with and the only people who complain to me about it being unrealistic are those ‘on message’ with the publishing corporations.

    My mission is to switch that ratio around, to provide a means for closer to 99% of the fan’s money to end up in the artist’s pocket, with only around 1% lost in intermediary overheads or commissions. I reckon ‘closer’ is at least 95% – for a non-copyright based business model.

    Those who believe artists are still being well served by the publishing corporations, and will continue to be, are obviously not going to be interested in what I have to say. :-}

    You say “In a world where record companies don’t exist, and artists find ways to distribute their works directly to the public digitally, they still need resort to means of protecting their works”.

    This is a contradiction in terms. Either artists are interested in taking advantage of their potential audience distributing their works for nothing, or they are interested in a means of preventing their potential audience distributing their works for nothing.

    Artists can’t achieve the impossible feat of doing both. Either you pay a publisher handsomely for doing so (with them taking their fee via the privilege of a monopoly), or you let your audience do it for nothing (the monopoly having been neutralised via copyleft).

    You list three implications of doing business without copyright I’ll summarise as follows:
    1) Give it away and pray
    2) Tax the Internet
    3) Other

    ‘Give it away and pray’ doesn’t really have much chance of working.

    Taxing the Internet is a terrible idea – charging everyone $10 so you have a pot of $1 to give back to a few ($4 having disappeared into administration and $5 ending up with intermediary publishing corporations).

    The ‘Other’ is free market exchange. This is where the artist and their fans agree to exchange their intellectual work and their money. The artist says “I’ll record & publish a new song if you give me $10,000”. Their 1,000 fans say “We’ll each give you $10 if you record and publish a new song”. Obviously, given such an exchange, there’s no need to pay a publisher $990,000 to distribute copies to everyone, and no need to protect that publisher’s profits from sale of copies that cost nothing to make with the monopoly of copyright.

    It’s obvious why this idea is not all popular with publishing corporations.

  10. No, my options don’t presuppose abolition of copyright. Therefore my #1 is not “give it away and pray”; it is “sell it.”

    I agree that #1 and #2, as you put them, are lousy ideas. Your #3 is Kevin Kelly’s “True Fans” model, which is pure wishful thinking.

    Search Google (or whatever) for the blog chatter on True Fans, or read Jaron Lanier’s book You Are Not a Gadget, and you will see evidence that extremely few artists have gotten True Fans to work for them. IMHO they are the exception that proves the rule that True Fans doesn’t work. And furthermore, the few that have gotten it to work for them did so because they had fans in the first place; they didn’t just appear out of thin air. This is how Radiohead got to do its “pay what you wish” thing and come out roughly even with (or slightly better than) the money it would make through a record company. Someone — in their case, a record company — got them their fans in the first place.

    To get to the True Fans model, you need more than “give it away and pray” first; you need “spend money to market it.” No one is going to do that without some way of protecting their investment, which is where copyright comes in. We could argue about whether copyright (such as it is) is the best way of protecting such investments, but you need some way.

  11. I’ve been a champion of the ‘sell it in a free market’ model long before Kevin Kelly’s ‘1,000 true fans’ article, but it’s a relevant and resonant reference I’m not shy of.

    I think it’s very early days, and people are still finding their way. There will be confusion as to the difference between giving one’s work away (praying for donations as a charity case), and exchanging it for money in an agreement with one’s fans.

    It is in foreseeing the need for such exchange facilities (and the need to demonstrate that intellectual work can be exchanged without having to sell copies or sue kids for making their own) that I have been developing the Contingency Market.

  12. There is no “need to demonstrate that intellectual work can be exchanged without having to sell copies.” Rhapsody, Napster (legit), Spotify Premium, Play Now Plus, Omnifone MusicStation, etc., etc. have been doing this for years, and more cloud-based content services are being developed every day that don’t depend on making copies of anything.

    You may well argue that services like those don’t need copyright law because they can protect themselves contractually, via the Terms of Service with their users. I won’t disagree with this. But I think a focus on copies is rather beside the point.

  13. Bill, none of those services are about exchanging intellectual work between artist and fans.

    See this article for a graph that gives an idea of just how little they have to do with that exchange:

    Funnily enough, I did post a comment on that page to point out that ‘direct exchange’ had been omitted, but for the usual ‘heresy not welcome here’ reasons my comment was not published.

    My comment concluded with:

    “Self-produced album @ $9.99 must sell 122, label: 0%, artist: $9.49.” So the artist either produces one album a month to 122 fans at $10, or to 1,220 fans at $1, or 1 album a year @ $10 to 1,400 fans.

    The artist needs free distribution, and they pretty much have it. As copyright enforcement clamps down on unlicensed distribution, the CC licensed works that can be freely distributed and performed (escaping from collection society suppression) are going to become more popular, thus assisting free viral/audience promotion.

    What the artist doesn’t have, is much of a facility to accept a commission from their fans. People are currently developing donation facilities (Kachingle, Flattr, etc.), but exchange facilities are what’s really needed.

    As for your point on contract being able to substitute for copyright, it cannot do this. Only the state via its creation of the privilege of copyright can suspend its citizens’ inalienable liberty. People cannot sign away their liberty, to attempt to alienate themselves from their freedom of speech.

    When copies can be made for nothing, when people freely communicate, share and build upon their own culture, when copyright is clearly ineffective at suspending such cultural liberty, then the business model that remains is the same as the one we’ve enjoyed from year dot until the 17th century, i.e. the exchange of intellectual work by its producers for the money of those who want it produced and to receive it.

    As you observe, copies are irrelevant. When people cease being obsessed with them, with control over their production and distribution, they might step back and recognise the more fundamental exchange that needs to be facilitated between the artist and their audience, the true vendor/customer business relationship.

  14. I’ve seen that chart. It is a good one. In fact we use it to guide the competitive analysis in a digital music startup that I’m involved with, which has a radical approach to music industry economics (which unfortunately I’m not allowed to talk about… yet).

    I’m still trying to understand what kind of scheme you’re proposing, or if indeed there is a coherent scheme at all here. For example, “People cannot sign away their liberty, to attempt to alienate themselves from their freedom of speech” makes absolutely zero sense to me.

    You want content creators to have rights but want them to give everything away after some people have “invested” in the content? Or you want some variation on the old patronage system wherein the Archduke of So-and-so commissioned the composer to write a piece of music?

    If that’s what you’re proposing: mix that with the openness and ubiquity of the Internet and you’ll see that it just doesn’t work. Two basic economic principles kill this idea.

    First, the huge quantity of new works being created every day results, via substitution economics, in perceived value for those works that approaches zero. See the paper that Michael Einhorn (an economist) and I co-wrote for the Cato Institute, http://www.cato.org/pub_display.php?pub_id=3670. My view is that in a truly unfettered free market system, consumers’ perceived value of content goes asymptotic to zero, and what we’re left with is an NPR/PBS/BBC model (except worse because we’re assuming no taxes) which applies to a tiny percentage of both content and populace.

    The other, which is related, is the cost — yes, cost — of getting your work noticed nowadays. People who don’t have any actual experience as content creators often fail to understand how hard it is to get noticed, and how much time/effort/money it takes. As I said before, fans don’t just materialize out of nowhere. For example, I just moderated a conference panel about self-publishing of books: the effort that the authors/self-publishers expended to get their names out there far eclipsed the effort they spent actually writing the books. Same with the literally millions of indie musicians who put their stuff up on MySpace for free (or even with “virtual tip jars” like Flattr) and come up empty-handed… leading the people who run MySpace to conclude that its music efforts have been (economic) failures.

    The cost of marketing one’s work can be borne by the artist him/herself, or by someone else. The vast majority of artists just don’t want to be bothered with things that have little to do with their art, so they entrust that task to others in exchange for a piece of the pie and/or some rights to their content. For better or worse, that currently includes the collecting societies as well as record labels, publishers, and online distributors/retailers. It could include other types of entities and could be based on a legal framework other than copyright (or contract), but it would amount to the same thing in the end.

    We’re stuck with these economic fundamentals; they don’t change, nor will they go back to some romanticized scheme that happened “in the year dot.”

  15. Bill, in your first paragraph you say “which unfortunately I’m not allowed to talk about” which is an apposite example of what doesn’t make sense to you in the next.

    What makes you believe you can sign away your liberty to talk about something?

    Whether you talk about something or not is in your essential liberty. You may be discreet as a matter of prudence, respect confidences as a matter of honour, and because you believe this to be in your commercial interest and in the interests of preserving your reputation as someone to be trusted with sensitive information. However, you cannot sign away your liberty to talk about something. You can’t be compelled through law to be bound to your ‘non-disclosure agreement’ as a surrender of your liberty. Corporations may make such agreements, but then they are not human beings. It is an ethical calamity to pretend contracts commonly made between corporations can be equivalently applied to people.

    Inalienable means you can’t be parted from something, even willingly, even if you sign on the dotted line.

    What is the point of recognising liberty as inalienable if people choose to recognise contracts as instruments of alienation?

    As for “wanting creators to have rights”, it is not a matter of ‘want’. All individuals are born equal, with natural, inalienable rights. All individuals are creative, it is in the nature of Homo Sapiens to be creative. However, a creative individual does not obtain a supernatural power that elevates them above their fellow man to control the subsequent use or dissemination of their work once they have disclosed it. Such a privilege is unnatural. That such privileges have still been unethically granted by kings to their favoured subjects is not a sufficient precedent, nor does abusively terming those privileges as rights make them so.

    You may consider ‘neutralising an unethical privilege’ to be ‘giving everything away’, but it is actually giving liberty back to its rightful owner. Neutralising copyright via a copyleft license restores the public’s liberty to share and build upon their own culture (at least with respect to the licensed work and its derivatives).

    So, there is a difference between giving one’s intellectual work away (which I do not advise except as a promotional loss leader) and giving one’s reproduction monopolies away, or rather neutralising them.

    The monopoly of copyright has come to an end, in that it is completely ineffectual. All it is now is a superstitious tradition surviving on the inertia of indoctrination and a means of publishing corporations to exact litigious spite against a delinquent (insufficiently indoctrinated) younger generation of technological adepts.

    So, as to business model, it is also not a matter of what I ‘want’. It is what remains after you have eliminated the impossible. When you can no longer sell your intellectual work to the manufacturers of copies in exchange for a paltry royalty on monopoly protected prices (because it is impossible for them to sell sand to Saharans), then you have to sell your intellectual work to those who want it and have money to pay for it.

    Two topical projects, Diaspora and the ‘Humble Indie Bundle’, have raised over $100,000 and $1,000,000 respectively. This can certainly be compared to the pre-copyright patronage system, but I think you’ll find that the patrons number in the thousands and tens of thousands, and that they are not wealthy archdukes but plebians of modest means.

    It is precisely because of the openness and ubiquity of the Internet that we have a far more effective facility for bringing the potential customers of intellectual work face to face with the producers and potential vendors of intellectual work.

    It is not economic principle that kills this idea, but the dogma of copyright and the fear of anything that might question its holy sanctity.

    Why else do you think people such as William Patry decide to cease publishing my otherwise polite and innocuous comments? If there was such a good argument for copyright, why would its proponents fear to permit my dissident words to grace their pages? My arguments should be so feeble and easily countered that they can be held up as paragons of insignificance, veritable paper tigers. It is this unconscious dread and gut recognition that there is indeed something rotten to copyright that persuades people to silence any possible erosion of it in their ideological bedrock. “No, slavery is right! It cannot be wrong, for to admit otherwise makes me wrong – and that is abhorrent.”

    Here’s an example (of which I see far too many): http://www.perceptric.com/blog/_archives/2010/5/17/4530649.html

    The author cannot help but recognise the increasing injustice of copyright enforcement legislation, but in the same breath, to allay any doubt, must demonstrate unwavering faith: “Now, I am not going to argue against the idea of copyright laws”. Why not? Because it would be heresy to do so.

    This dogma of copyright being the only way to remunerate authors for their writings blinds almost everyone (even the growing number of copyright critics). How can you conceive of directly exchanging intellectual work for money without a reproduction monopoly if you cannot conceive of doing any business that involves intellectual work without copyright?

    Copyright must be involved because it is essential. If it wasn’t essential then that undermines the argument for copyright – and that cannot be permitted. Therefore direct exchange is impossible, or at least impractical and uneconomic – except in rare cases (of course). Copyright being sacred and essential, must always be the norm.

    So, every exchange like Blender, Diaspora, and Humble Indie Bundle are written off as ephemeral snowflakes in hell, perverse oddities that still don’t break the rules of normality. Even when it begins to snow, people begrudgingly recognise the phenomenon, but discount it because it fails to settle. For some people it must accumulate to a depth of two metres and block the door to their house before they will finally undergo the apostasy of recognising that yes, it has snowed in hell and perhaps the Earth orbits the Sun rather than vice versa.

    You conclude that copyright is an economic fundamental and cannot change. It is possible that we will try to make it so. Perhaps we will even rewrite the history books such that authors have always been able to reach across the ocean and through almighty fiat prohibit any other scribe from copying their words, any bard from retelling their story, any minstrel from singing their song. It is no doubt through cultural constraint that our folk songs, folk tales, and folk lore have developed. It is our ability to prevent this knowledge being shared or built upon that has permitted its development.

    Let’s get back to business.

    No merchant has a right to a share of the market. No labourer has a right to be paid for their work. All business is a matter of marketing, finding people who agree that your price is equivalent to that which you would both exchange. If no-one likes the sound of your voice, no-one will pay you to sing. You cannot sing and demand to be paid a price of your choosing. Similarly, if the payment you offer a singer does not meet their price, then you cannot expect them to sing. All business is a matter of agreeable and equitable exchange (or should be, if you’re doing it right).

    Just as Diaspora can find thousands of people agreeing that the work offered is equitable to $100,000, so a musician can find thousands of fans agreeing that the production and publication of a studio recording is equitable. But yes, not all musicians are as good at making music and attracting enthusiastic fans as others. Music has subjective value. It is not a price regulated commodity that all musicians deserve equal payment for. This appplies to all intellectual work. It may be convenient for iTunes to price all singles the same, but this is not derived from a stone tablet. Similarly, if you sing in a forest to the wildlife you cannot expect as much custom as in a lively pub with a receptive audience.

    There is no magic wand that solves the intellectual worker’s marketing needs, that allows them to focus on creativity, and leave the business of finding customers to someone else. Well, aside from employment some might suggest. However, the employer is still a customer that it can take considerable effort to find.

    Direct exchange then does not magic away the need for marketing (fostering the vendor/customer relationship). It is a means of exchanging intellectual work with the money of your customers those you have found, and those that have found you. Whether you believe it is possible without copyright is a matter of apostasy, not economics. Though, for those who aren’t dogmatic adherents of copyright, it is a matter of ethics, but with the advent of the Internet it is now also plainly a matter of pragmatism.

    And that’s why I spend my time producing a system to enable thousands of customers of intellectual work to name their price and producers of intellectual work to name theirs, and that manages the exchange of money contingent upon the publication of the intellectual work. Hence ‘Contingency Market’, a market where people agree to directly exchange intellectual work for what they agree is an equivalent amount of money.

  16. OK, I am going to reply one last time, then I am going to give up. Not only have you failed (or proved unwilling) to understand at least half of the arguments I have repeatedly, but your arguments show a lack of respect for the rule of law coupled with a reading of facts that I will charitably (pun intended) call “selective.”

    Just to cite one example: “You conclude that copyright is an economic fundamental and cannot change.” I concluded no such thing. I cited economic fundamentals about content and the internet, and I claim that some redress needs to be interposed in order to preserve content creators’ ability to get paid for their work amid an extremely hostile environment. I never said that copyright is the answer. I merely said that it’s the system we have now, and that some system is needed, whether copyright or something else. I have never espoused a “dogma of copyright being the only way to remunerate authors for their writings,” nor have I ever claimed that music is “a price regulated commodity that all musicians deserve equal payment for” (that’s the “tax the Internet” EFF argument, with which we both disagree).

    I’m sorry I don’t follow your standard talking points.

    I see by your background that you are a software engineer. I am also a former software engineer. Many software engineering types have made the mistake of trying to impose the economics of software — including open source software — onto the economics of creative content. Perhaps excluding gaming software, the two are different beasts; for example, substitution economics work completely differently for software than they do for entertainment content. The one piece of advice I will leave you with is not to confuse the two. It just doesn’t work.

    Finally, one last anecdote: I remember when Eben Moglen, then general counsel of the Free Software Foundation, made the mistake of confusing software with music in a speech he gave at the Future of Music Coalition Summit in 2002. The theories he espoused, to an audience composed mainly of indie musicians who wanted to find ways around the label/publisher/collecting society system, were — stripped of all the embellishments, and as I said at the beginning of this interesting exchange — more or less in line with yours. The reaction to Moglen’s speech was such that he was lucky that the chairs in the hall were bolted to the floor.

  17. Well, despite your intention to end this conversation, at least we now have a better idea of where we each stand.

    I am well aware that the idea of directly exchanging intellectual work for the money of its patrons is currently ideologically repugnant and politically taboo. I do not expect to be invited to speak at any conferences, let alone those concerned with the future of music.

    Nevertheless, it remains possible that direct exchange is inevitable as the business model of the near future, and that the cherished privilege of copyright is inexorably doomed to abolition.

    However powerful you believe him to be, King Canute cannot legislate against the tide, against the nature and cultural liberty of its denizens. That is a natural law more deserving of our respect than the man-made laws against it.

  18. “3. Some third option that I’m too dense to know about or understand.

    So, which is it?”

    Well, I finally read all the posts.

    Bill, something you might be missing in Crosbie’s take is that he proposes a system where there is payment in full to the artist before the artists publishes the work. No need to protect the work after that as the artist is already paid in full for the work done creating the work.

    That would be the key point to argue against I think.

  19. Thanks, no, I got that. What I think Crosbie is proposing at a simplistic level is a combination of Kevin Kelly’s “True Fans” model (fans contribute money until $X is reached, at which point the artist creates a new work) and the patronage system (the Margrave of Brandenburg commissions Bach to write concerti). I argue in various posts why neither of these options scale in the Internet age. See for example my post dated May 16, 2010 at 9:42 am.

    People who think this model will work generally fall into three camps:
    1) successful artists who got that way under the traditional system (e.g. Radiohead)
    2) software people who confuse the economics of music with the economics of software
    3) naive idealists

    It’s been proven time and time again not to scale.

  20. It was not clear to me from your responses that you got that.

    “It’s been proven time and time again not to scale.”

    In the internet age? Examples?

    “2) software people who confuse the economics of music with the economics of software”

    In your view does this partly relate to a difference in the fungiblity of music versus software?

  21. The True Fans model has a number of problems. There is a general admission among people who have discussed it in the blogosphere (and in Jaron Lanier’s excellent book You Are Not a Gadget) that it’s a nice sounding idea but doesn’t work. Read Lanier for a more complete list of reasons, but here are some:

    1. Scalability: the model assumes that you have fans who will pre-finance your work. Fans don’t materialize out of thin air. There is just so much “stuff” out there on the Internet that it’s very difficult to find fans. You basically have to get lucky, and the need to get lucky is a poor incentive to spend time and effort creating content. Back in the old days it was a lot easier. In the 18th century, if the Archduke wanted music written, there was a very limited number of composers to commission. In the 1960s there were ad-hoc networks of people who supported itinerant folk musicians, because this was a small, tractable community. There is no small, tractable community on the Internet. Just ask the thousands of indie bands trying to find fans by giving away their music on MySpace. There are a handful of artists who make True Fans work, but they tend to be artists who found their fans in the first place the old-fashioned way, such as through record labels.

    2. Another scalability argument: with the Internet, there’s many orders of magnitude more content out there, but the amount of money being spent on it is at best the same. Given the moves that the major labels are making to lower the perceived value of content these days (e.g., trying to get advertisers or device makers to subsidize it), people are coming to expect it to be free. For a while there was an illusion of more money coming into the system through VCs throwing money at digital music startups, but that’s pretty much gone now. The patronage system doesn’t scale for the same reason; there’s only so much money to go around. You could argue that 99.9% of what’s out there is crap, and I wouldn’t disagree, but the problem is (once again) finding the 0.1% that isn’t crap, not to mention getting a critical mass of people to agree that it’s not crap so that they can fund it.

    2. Music vs. software: Artistic/entertainment content has very loose substitution economics – that is, if X and Y are similar songs but Y is free, most people will choose Y and not bother with X. There are very few Xs for which that is not true. I assume this is what you mean by “fungible”. The True Fans model is roughly analogous to custom software development – which is why many people who think True Fans will work are confused or naive software people. People generally want a piece of software that does X and will not accept one that does Y even if Y is similar to X and it’s free. Case in point: OpenOffice vs. Microsoft Office. People will pay hundreds of dollars for MS Office even though OpenOffice is sort of the same thing and free.

  22. I think you may be arguing against yourself with 1 and 2.

    But at another level.

    “There is no small, tractable community on the Internet. Just ask the thousands of indie bands trying to find fans by giving away their music on MySpace.”

    “with the Internet, there’s many orders of magnitude more content out there, but the amount of money being spent on it is at best the same.”

    So, either this level of musicians and music is sustainable without the money. (They are making the music without getting the money now right?) Or, the numbers will collapse and could once again be manageable in your thinking.

    re: 3. (2.) Music vs. software: Artistic/entertainment content has very loose substitution economics:

    It is funny in that I have heard people make the exact opposite argument trying to make the exact same point you are trying to make.

    They claim that people will substitute one piece of software for another but will not do so for art.

    But to go alone with your take, so long as some are willing to make Free and copyleft music, traditionally copyright music is doomed anyway as people will just substitute the usually gratis, libre music for the costly all rights reserved music.

    If this does not result in the quantity or quality of music needed to satisfy the music lovers of the world, they will need to find a way to fund the creation of more which is the problem Crosbie is trying to solve.

    I do however think that the filter/gatekeeper/trend setter function/position will remain an important one for a good while yet.

    all the best,


  23. Hello Bill, this is Jesse. Thank you for having me in your comments section.

    What I am taking from this thread is that you are voting “no confidence” in any system folks have proposed for remunerating creators for their creative efforts aside from traditional copyright. I take that you do not believe Copyright to be the end-all solution, however you do not feel willing to abandon it until someone demonstrates what you would classify a workable alternative.

    One alternative you specifically eschew being old-style Patronage. Before the hegemony of copyright, artists lived and worked at the behest of wealthy nobles instead of at the behest of wealthy labels and the dissimilarities appear to sour you.

    I however fail to see that Copyright has changed the economy of scale inherent to popular music. Startups today have a difficult time accumulating fans, so they court the interest of labels which then provide all of the backing.

    Abolishing Copyright would change this dynamic no more than introducing copyright did. Breaking into the business would still be challenging, those who already have a fan base can market directly while those without will compete for recognition. The amount of cash listeners wield does not change (though not having to pay middle-men helps fatten the global pie somewhat) but the motive would change from “paying to hear any music at all” to “paying to hear the sort of music I prefer” or more precisely “commissioning the kind of music I enjoy from folks who have demonstrated the ability to perform it”.

    There are an endless number of ways to pair creator with fanbase, but one I am warming to now is the idea of microgenre. Imagine (internet) radio stations accepting subscriptions from listeners which they use to finance independent artists to release new works which fit the station’s genre. Then the listeners do not have to micromanage single creators, but get more of a genre-specific supermarket experience. You like techno, so you throw some cash in the kitty at this techno station which plays current tunes, but sponsors new artists as well. So long as the station properly represents it’s listener base with it’s wholesaling decisions, it foments loyalty and attracts new listeners while aggregating patronage to creators and selecting which ones are likely to appease the masses. Thus the mantle of populi aggregate moves from wealthy noble to greedy label to friendly disk jockey.

    Now, we could debate the relative benefits of post-copyright business models all day long, but I think Crosbie highlighted the point that is really pivotal to the entire discussion. Copyright’s essential effectiveness.

    Today, the very instant any person on the planet wishes to share any digital copy of entertainment to any audience who wants a piece, they can do so with no demonstrable legal repercussion. And while Jammie Thomas-Rasset may or may not disagree, she represents as you so eloquently put it an exception which proves the rule.

    I am not aware of any Copyright reform that will change the fact that Copyright has no teeth to start with. Reduce the term to 7 years. Require authors to register into some kind of database. Expand fair use to include format shifting. While generous-sounding concessions, none of these pragmatically obligate me to pay for a digital copy of canned entertainment.

    Abolitionists see no value in quibbling over the details of rules you demand from horses who are now simply absent from the barn. Perhaps you view this as “disrespect for law” and seek to close your ears, but St Augustine taught us that an unjust law is no law at all.. and I add that neither is one that is unenforceable.

    So, I won’t take the time here to try to sell you on the immorality of limiting the ability for third parties to share information with one another based solely upon the creator of the information in question wishing to either tithe the world for ROI or gag it to control it’s impact. I won’t try to highlight that all creation is an act of synthesis, or that you cannot harmonize with an audience without invoking material they are already familiar with. I won’t belabor the nontrivial and expensive legal complication of either identifying or proving authorship over all or part of allegedly synthesized material. Instead I’ll just quietly gather my salt and hope that my favorite artists continue to weather the sea change.

    I’m happy to brainstorm business models which acknowledge this fact. Charge for convenient, warranted, official delivery. Charge for live performance. Charge for new work fitting patronal request. Loss lead with work to wet the communal palate. Work a day job as you vie for recognition. Band together with other artists to pool marketing resources. I simply advise against living off of a century of FUD or expending effort to reform dead letter law.

  24. Drew,

    Regarding my point about MySpace, I see where you can conclude that “So, either this level of musicians and music is sustainable without the money. (They are making the music without getting the money now right?) Or, the numbers will collapse and could once again be manageable in your thinking.”

    But this is not quite right. The main reason is that a large number of people will make and put out music for non-pecuniary reasons, not expecting to get paid (think open source software or wikipedia), or will be able to subsist on ticket sales from live performances and T-shirt sales.

    In fact, the latter has often been proposed as the future of music, and in fact that’s where we may well end up. But this will just kill off any type of content whose expression is dependent on what we now call copyright. Or put more simply, if you talk about music, this scheme kills opportunity for musicians whose music is not suited to live performance. For example, the Beatles could not exist under such a system. The future for book authors looks even bleaker under such a system.

  25. Jessie,

    Thanks for your comments. Much of what you say makes sense… however:

    “Before the hegemony of copyright, artists lived and worked at the behest of wealthy nobles instead of at the behest of wealthy labels and the dissimilarities appear to sour you.”

    First of all, I have nothing against patronage. On the contrary, it’s alive and well today – throughout the university system (for scholarly publishing) and in fine arts such as classical music. I’m just saying that it’s a tiny piece of the pie and can’t be relied upon to scale. Secondly, there is an extremely important difference between wealthy nobles/philanthropists and record labels: the latter exist to get a direct monetary return on their investment. Without a system to help ensure that, all of that money for backing artists disappears from the system like that “giant sucking sound” that Ross Perot used to talk about.

    The second problem I have with what you say is your view that copyright is outright useless just because it’s virtually free for people to make copies of files, the horses have left the barn, so why bother with it at all. I remember when Charles Blow made a similar argument (not about the need for copyright per se but about the economics of the music biz) in an op-ed piece in the NY Times. The letter to the editor that I wrote about that (which they printed!) pointed out that there is an enormous B-to-B economy that exists behind the scenes of the entire consumer side of music — through things like statutory license fees for broadcasting, levies on hardware and blank media, and so on. Now I will readily admit that the current system of statutory licensing and levies has many, many problems, but it’s the only part of the music business that is in decent financial shape. And it is built on a framework of copyright. You can’t just throw that out the window without having something else in place.

    Now having said that: your idea of microgenre radio stations being the vehicle for pre-financed new artist support is an interesting one, and it goes hand-in-glove with Drew’s comment about the value of “filter/gatekeeper/trendsetter” — I follow Peter Gabriel and use the term “curator” to mean the same thing — becoming more and more important. I agree with Drew on this point, though (as Lanier points out) the economic problem with this is that the bulk of the money goes to the curators (or what Lanier calls the aggregators), leaving a tiny trickle for the artists.

    I am a fan of microgenre web radio and have contributed money to it (Soma FM, AuralMoon). The question remains as to whether this type of scheme generates enough money to make it viable. I’m skeptical. Look at the example of U.S. satellite radio, which — after having spent hundreds of millions of dollars on original content to run on its genre-based stations — is on life support. I’m willing to admit that this is not a great example for various reasons (it requires people to buy special devices, it’s not connected to the Internet, the stakes were too high, the investors too delusional, Howard Stern is just not worth $500 Million, etc.)

    Having said that, I could see a company like Pandora or Last.fm doing something like what you suggest. They won’t be entirely dependent on the economics of commissioning new music (not by a long shot, especially last.fm which is owned by the broadcasting giant CBS), so they could take the time to see if this can work.

    Now watch what happens with this with respect to copyright: this is “radio,” which means that it’s subject (at least in the US) to rules about things like not pre-announcing what you’re going to play, not playing more than X songs from the same album or artist in a row (I forget exactly what the rules are), etc. This limits users’ ability to indiscriminately make copies of the music they hear, and the very nature of it makes it difficult to leech off the entire system by constructing a copy of it, the way some websites leech off news publishers. So, here you have ways for the business owners to protect their investments *without* relying (much) on the copyright system. Instead you have limits imposed, at least in part, by technology.

    So, interesting idea, worth more exploration. In fact it would not surprise me if the clever folks at Pandora (I’m a huge fan) have been thinking about this already…

  26. “But this is not quite right. The main reason is that a large number of people will make and put out music for non-pecuniary reasons, not expecting to get paid (think open source software or wikipedia), or will be able to subsist on ticket sales from live performances and T-shirt sales.”

    But if this source alone meets the worlds music needs, then copyright protection for music is indeed unneeded and those who cannot now make a living on music will need to find other more useful ways to serve the people of the world to earn their way.

    “Or put more simply, if you talk about music, this scheme kills opportunity for musicians whose music is not suited to live performance.”

    Since one of the things I do these days is try and write lyrics, I understand this point in my guts and hope to soon embark on various experiments on ways to deal with this.

    Certainly, I hope Crosbie gets his market into high gear so that I can use that as one of the experiments.

    all the best,


  27. Re: Crosbie’s NDA comment.

    I don’t see it that way.

    I think he is getting at the idea of an inalienable right.

    Sort of like in parts of Europe where you cannot sigh away your moral rights along with your economic rights in a copyright.

    You can sign any agreements to do so that you like, but the law says such agreements are worthless. You can honour them if you choose, but you cannot be legally held to them as the law itself invalidates them.

    So, if Freedom of Speech is indeed an inalienable right…

    I think that may be his thinking.

    all the best,


  28. William Patry makes a lot of great points in his book. I have profound respect for him because he is one of the very few who is not afraid to dig deep to the foundational question: why do we have copyright laws at all He correctly debunks many myths behind today’s mainstream justification behind copyright that it is supposed to balance the interests of creators with the interests of the public. 

    Because Patry’s book is based on erroneous conjectures, the big issue is, it consequently it concludes with extremely dangerous proposals. Patry thinks that copyright laws are not about giving creators the right to have power over how their works are utilized. In his view, the purpose of copyright laws is to ensure the most benefits to the public but only give authors the bare minimum to would encourage creativity.

    In my review, How Not To Fix Copyright – My Response to William Patry (http://mincovlaw.com/blog-post/how_not_to_fix_copyright) , I clarify the faults in Patry’s approach and offer numerous precise notes to extracts from his book.

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