Ultimately, Doctorow argues against DRM altogether, and this speech is a concise and convincing presentation of that argument. His message for publishers in particular is that, whether or not they decide to use DRM, it should be the publishing house that makes that decision, not the distribution platform (i.e., Amazon).

Somewhat jokingly, Doctorow gives us his “law” related to DRM: “Anytime someone puts a lock on something you own, against your wishes, and doesn’t give you the key, they’re not doing it for your benefit.” Sadly, not a joke.

Here’s the link to the the speech on blip.tv. Also see EFF.org’s write-up about this speech²

1. A great site with videos and resources from the conference
2. You might also be interested in checking out my “copyright” tag on the blog and on Delicious

For one, the simple accident is always a risk. Granted, I’m more likely to screw up my own saved data than a major company is, but witness the recent catastrophic crash of Magnolia. A great company, nothing but the best of intentions, but now the hours of work that some users put into collecting, organizing, and commenting on content stored on their servers is just … gone. At least if I’m the one causing the catastrophic loss, I can only blame myself.

And even if the loss isn’t accidental, if the company goes bust, you may have a very short time to get your data out of its servers. Hopefully, the company will make that process easy, but there’s no guarantee of that, either.

On the other hand, the company might just change its terms on you. The latest Facebook controversy involves a change to its terms of use that many interpret as meaning that Facebook can do anything they want with users’ content forever, though that doesn’t seem to be a correct interpretation. Still, if a company does decide to change its terms in that way, what do you do? And when the content is more than just status messages and wall posts, when the content is a script you’ve been building for months in the hope of someday selling it to someone in the hope that it will actually get produced, have you shot yourself in the foot by using someone else’s servers to store your work?

All of these free, collaborative tools are great in many ways. I mean, I use Flickr to share my photos, I use Wordpress.com to keep a photo journal, I use Facebook to keep in touch with others, I use Scribd to share some of my writings. And I believe in the principle of free and open content, the idyllic vision of people freely and easily sharing information and ideas. And yet, I blog on my own domain under an “Attribution Non-commercial Share Alike” license … What does that mean? How much is smart protection of my creations, good-business-sense planning for the future, and how much is overly-anxious guarding of what’s “mine” learned from an overly-possession-obsessed culture?

I don’t know. But for now, at least, the complexities of these issues (not to mention the great angry tangle of copyright law mutating its way across the web) give me pause and keep me tapping away at my creative writing on programs that live on my hard drive.

1. In short, you hold the copyright for anything you put in a “private” area, and you agree to select one of four Creative Commons licenses for anything you put in a “public” area: “Attribution Share Alike (by-sa)”, “Attribution No Derivatives (by-nd)”, “Attribution Non-commercial Share Alike (by-nc-sa)”, or “Attribution Non-commercial No Derivatives (by-nc-nd)”. Also, once it’s public, you can’t revert it to private.

I’m encouraged by Boyle’s optimism, his assertion that this issue is important for every citizen, and his assurance that the intellectual property debate is accessible and interesting ("… at the heart of intellectual property law are a set of ideas that a ten-year-old can understand perfectly well").

But what’s most intriguing to me is this quote: "Property’s outside, whether it is “the public domain” or “the commons,” turns out to be harder to grasp than its inside."

Figuring out how to talk and think about things that are not "my property" is an important part of this discussion, and something I hadn’t thought specifically about until now.

If you’ve got an interest in this topic (and you should because it affects you, whether you realize it or not), add this to your reading list. It’s on Amazon, or available free as a PDF from the author’s website.

Let me see if I have it right. The discussion centers around:

Thieves (illegal downloaders)
Freeloaders (can be thieves too, believe Everything should be freeee!!)
Stupid Mules (stubborn labels)
Artists (content producers: will play for biscuits, new strings, one sheet of toilet paper {all that’s needed} and a tank of fast food grease to get the refurbished micro bus to the next gig)
Old Fashioned (a majority of consumers, deemed moronic Luddites by the Silicon Valleratti because of their willingness to pay for content)
Econo-Mighties (my brain is bigger than yours-types who dole out a hodge podge of absolutist hoo-ha picked up the one day they didn’t fall asleep in Economic Principles 101)

Did I miss anyone?

I think he might be missing bloggers who pontificate endlessly on the topic with little/no training in relevant areas of law and economics …

As a writer, English teacher, lover of film and literature, and friend of many artists, I’m very concerned about this issue (as a survey of recent posts here should indicate). However, the more I learn, the less sure I become of which position to take.

I’m semi-clear on a few things:

• The original intent was to provide incentives for inventors and artists to share their work with the public by providing a limited monopoly. This provision was not understood as a “natural” right by the founders, and the concern was more about the common good than the individual inventors and artists.¹
• Current copyright law, wielded less by individuals than by corporations, is restricting the benefits that the commons can derive from art, and it is doing so to an ever greater degree as controls tighten and copyrights are extended.
• Further restrictions on fair use only make this matter worse.
• We (the commons) should be concerned with our collective good, the right to build on the works of others, the freedom of information, and the right to “share culture” freely (as in libre).
• On the other hand, we should also be worried about reducing or eliminating incentives for artists and inventors to create and share their creations. Similarly, we should be concerned about the impact this will have on journalism and journalists.²

When I argue, I tend to argue from this last point. Art, literature, film, etc. … these are vital and important aspects of culture, though you’ll get no argument from me that too much has been co-opted by the corporations.³ Still, the artists themselves are not (and should not be) the enemy. We, the commons, should be interested in their success even as we actively fight against the legal and corporate limitations that have been built around them.

Collectively, I believe we can find a solution to these difficulties, but only if we are focusing on building solutions rather than, or at least in addition to, destroying the problems. If we just storm the walls and tear down the keep, the artists, inventors, and journalists are also likely to be crushed in the process.⁴

One example I applaud is Google’s recently-stated approach to newspapers, saying they have a “huge moral imperative to help.”⁵ I think this approach — the new industries, technologies, and markets reaching out to and working with the existing ones to help them make the transition effectively — is the most responsible one, and the one most likely to bring success to both the artists and the commons who benefit from their creations. I hope to see more examples like this.

1. Ultimately, the goal was to get artists to share so that there would be more works for the commons to build upon, thereby improving the common good. The incentive, though directed at the artist, was to indirectly further the common good.
2. The many problems with corporate media’s “infotainment” approach to journalism is also a huge problem, but one I’m not going to address here. Still, the fact that we need good journalists, and that good journalists need to be paid for their work if they’re going to be able to do it well, should require no argument.
3. The AP’s recent insanity surrounding fair use by bloggers is an excellent worst-case example of the problem.
4. And, for the frauds and sell-outs, that might be fine … but for the rest? I’m not willing to destroy the many for the sins of the few.
5. Google CEO: “Moral Imperative” To Help Newspapers – Media on The Huffington Post

The basic argument is that, as it becomes easier to duplicate and distribute digital content, the ability to make money from that content will fall. Eventually, income will have to be generated indirectly. In his words (in which he also quotes Esther Dyson):

Whatever the product — software, books, music, movies — the cost of creation would have to be recouped indirectly: businesses would have to “distribute intellectual property free in order to sell services and relationships.”

He then turns to examine books more specifically, considering the potential impact of e-books. He comes to this conclusion:

Indeed, if e-books become the norm, the publishing industry as we know it may wither away. Books may end up serving mainly as promotional material for authors’ other activities, such as live readings with paid admission.

I think this idea works just fine for writers of nonfiction (excluding memoirs). I can’t see this working, in any financially successful way, for fiction writers. Except for a few highly successful authors like Stephen King, who’s going to go see a live reading with paid admission? And what “other activities” could apply here, besides “the day job”? As for the ancillary market Krugman references, how would that apply to fiction? I mean, I love Faulkner, but I won’t be buying any Faulkner t-shirts!

Krugman admits as much:

Now, the strategy of giving intellectual property away so that people will buy your paraphernalia won’t work equally well for everything.

The other problem with this is that it’s an implicit admission that an entire segment of the market will simply disappear. Here’s why: the ancillary market has always been part of the business strategy, and it’s called ancillary because it isn’t the primary source of revenue. If “the ancillary market is the market,” in Dyson’s words, then that’s a crushing blow to the market.

He ends with a statement that is unhelpful, but also hard to argue with:

Bit by bit, everything that can be digitized will be digitized, making intellectual property ever easier to copy and ever harder to sell for more than a nominal price. And we’ll have to find business and economic models that take this reality into account.

I don’t have an answer, either, but I do worry. Even moderately successful authors are paid a pittance of the current market revenue. What’s a pittance of the ancillary market … ?

Freely Sharing Ideas

Thomas Jefferson is often quoted in the copyright debates, particularly this quote:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

I understand this quote, but I don’t understand how some people use it as an attack on copyright. Copyright law already recognizes that ideas cannot be protected. What copyright protects is the fixed expression of an idea. So, my idea for a story about a couple trapped in a house and terrorized by strangers cannot be protected. The specific expression of that idea, on the other hand, can, whether it’s the film Funny Games or the film The Strangers.

Copyright is Unethical

I’m still struggling with this one. If this is supposed to mean “preventing people from sharing ideas is unethical,” then I agree. But what people mean when they say this, whether they realize it or not, is usually that “preventing people from freely distributing copies of a fixed expression of an idea is unethical” … which doesn’t make any sense to me.

Usually, this argument is closely linked to the argument that “the cost of reproduction is effectively zero.” In other words, since it doesn’t really cost anyone anything to copy a fixed expression, it’s therefore ethical to make those copies without paying anyone anything.

Both cases ignore what I see as a vital part of the equation: namely, the efforts of the creator in creating that fixed expression, his/her right to maintain control and ownership over his/her creations, and the ethical principle of trade. Specifically: this guy spent time doing X … time he didn’t spend doing other things to provide for his basic needs (food, shelter, etc.). Therefore, since I enjoy and/or benefit from X, if I want him to continue doing more things like X, I need to help him provide for his basic needs.

Put differently, I don’t see why people have a problem with the idea of paying some reasonable amount of money to the creators of things they enjoy. I don’t see what’s unethical about a law that requires this to happen.

Before the rebuttals begin, let me say that I understand and agree that current copyright law says more than that and is, in many ways, corrupt. I’m in favor of copyright reform. What I’m addressing is the idea that no sort of copyright should exist at all.

Other Business Models

I think other business models are definitely necessary, but not ones that rely on something other than the original creation to generate the income.

I often hear the argument that musicians can make money from concerts and merchandise. Well, that’s fine if the musician wants to tour and sell T-shirts. But primarily what the musician does is create music. The music itself should be the basis of whatever money is generated. If it’s not, then the musician is forced to become something other than a musician … which kinda defeats the point.

Still Thinking

At any rate, I’ve still got a lot of thinking and reading to do on all this. I don’t have answers, and I’m pretty sure I don’t even have all the right questions yet.

Any recommendations on authoritative books, articles, or studies are definitely welcome.

Newspapers thus suffer from the classic public goods problem. Producers of quality journalism invest heavily in investigating, reporting, editing, and fact checking. But once they make their work product available, they cannot prevent many others from copying from and reading their work without payment. In the long run, they will lose out to competitors who build on their investment in quality journalism without making a similar investment in original reporting. In fact, newspapers’ public goods problem extends even wider. We all benefit from a society in which quality reporting is produced and disseminated even if we don’t actually read that reporting ourselves.¹

This is one of my main concerns in the copyright debate. I believe there should be a genuine and tangible incentive potential for the creators of original, quality work. If our concern is the good of the commons, then we should provide incentives for others to contribute to the common good and take steps to protect those incentives.

Regarding newspapers, Thomas Jefferson said:

… were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.²

But he also said:

The man who reads nothing at all is better educated than the man who reads nothing but newspapers.³

I think Jefferson would be thrilled at the possibilities that blogs and other social web tools provide for disseminating information, verifying its accuracy, and debating its significance. On the other hand, I also think he would be concerned about the loss of potential incentives for the investigating, verifying, and editing that Netanel mentions.

I don’t believe that “saving the fourth estate” is the answer, though. I see two currents in media: the concentration of mainstream media under ever-smaller numbers of major corporations, and the distribution of that content online through ever-larger networks. These two currents are in direct opposition, but I hope this won’t mean that either side “wins.”

Instead, I hope the monopoly over mainstream media is broken, resulting in new business models that can provide economic incentives to trained professionals to continue the work of the old estate, but with more freedom than the old estate could afford to allow, resulting in the freedom of content/information sharing paired with the potential economic incentives and other necessary resources of media corporations.

How this might happen, I’m still not sure, though I’ve heard a few good ideas.

1. The Demise of Newspapers: Economics, Copyright, Free Speech
2. http://etext.virginia.edu/jefferson/quotations/jeff1600.htm
3. http://www.quotationspage.com/quotes/Thomas_Jefferson

For a while now, it has seemed to me that the two “sides” of the IP/copyright debate have made little progress with the other side mainly because of fear. Each side is unwilling to admit compromise out of the fear that the other side will be unwilling to admit compromise, resulting, stupidly and predictably, in a stalemate.

If IP supporters could admit that the law unfairly benefits the corporations and that those laws need to change, and if the IP opponents could admit that a change in the law does not mean an overthrow of all laws, then both sides might be able to actually have a conversation about the best ways to bring fair and balanced change, rather than just screaming at each other across an imaginary line.

The founders were concerned with having a system in place that would encourage the sharing of ideas and thus established a “limited monopoly” on those ideas to provide the creators of those ideas the chance to profit from them. The system in which ideas are shared is certainly more complex now, but the basic principle is unchanged: a society that wants to encourage the sharing of ideas must provide those who are creating those ideas the chance (not guarantee, and only for a limited time) to profit from their work. Why is this position so hard to agree upon as a starting point for moving forward with the details?

The most reasoned discussion I’ve found on this topic so far is still Lawrence Lessig’s Free Culture, in which he argues that the laws must change, but never argues for lawlessness or the denial of creators to profit from their creations.

If we continue to argue about this issue, can we at least let go of our fear of “the other” and argue about the specifics of proposed solutions that might bring us closer to a fair and balanced compromise?