Monday, September 12, 2005
Copyright's broken, so we need to fix it
Part One: "Intellectual property and theft"

There's a wise saying: If it ain't broke, don't fix it. In the case of copyright law many of us would argue that it is broken and does need fixing. Actually here those who dislike the polemic tone and arguments of Bell's article that I referred to below, and I are largely (I think) agreed. We probably differ mainly on the degree of brokenness and therefore "fixing" that's needed.

Incidentally don't take my word for it that copyright is "broken". Jonathan Zittrain, a co-founder and co-director of Harvard Law School's Berkman Center for Internet & Society wrote back in 2003: "Almost all those who self-identify as cyberspace law scholars agree that copyright law is a big mess."

So, my sympathies are with the "revolutionaries", copyright is so broken it would perhaps be easier to start fresh. However, being realistic that won't happen!

The sympathies of those like Ed (as – I assume from his comment – an author relying on royalty payments) and Bob (involved as an academic publisher) are with tinkering as little as possible with the system.

So, in the hopes of pushing the discussion a bit further, rather than in a desire to score points: What's wrong with copyright?

Part One: It's not copyright that prevents intellectual "theft"

One of the reasons for copyright is to prevent intellectual "theft". Most reasonable people recognise that authors (like music performers and composers etc.) have a right to benefit from people who desire their work. If copyright is changed (read weakened, though in fact almost all changes in intellectual property law have strengthened the protection it offers) the argument goes there will be no deterrent to theft. Just look at the illegal music downloads with Napster, the argument goes…

But as Shuman Ghosemajumder argued way back in August 2003, this argument assumes:
that the social treatment of intellectual property is unquestionably analogous to that of physical property. This is clearly not the case. The reason people purchase physical goods instead of stealing them comes down to the cost of stealing outweighing the cost of purchasing. Ramifications such as prison, social stigma, and shame -- in addition to guilt over wronging someone -- make stealing "costlier" for the vast majority of people, thus most people do not shoplift or commit robbery.
Experience of extreme situations (like the recent disaster in New Orleans) illustrate this thought – in such extreme situations people do steal.

The digital world means that we all live in an extreme situation. Copying an electronic file illegally is so easy – every copyright or DRM scheme so far tried to the contrary – that the "cost" of intellectual theft by this means is near zero!

So: it is not copyright that prevents some people from intellectual theft. (I write only "some", since my informal poll suggests that few are actually scrupulous in their practice! Have you made a copy of software you've bought on a home machine as well as work without checking the licence? Or ripped an MP3 from a CD you've bought without a similar check? Guilty as charged, Milord!) Despite a few high profile cases the chances of you're getting caught are near zero! It is morals, or a belief in the system, that prevents you stealing really, as opposed to the notional (though probably thoroughly illegal) copying that we do undertake…

Discussing possible reworking of copyright Zittrain said sensibly: "Such reworkings of copyright will have costs to someone — they wouldn't be reworkings if they didn't." and added:
I pay my taxes. I have no idea how to calculate them, but I do what Turbotax tells me to. I'll pay a copyright tax, too, and willingly support artists whose work I appreciate, because it's the right thing to do, and because it guarantees that more work will be made available to me. I'm not alone.
My conclusion to Part One: Copyright is broke, it does not acheive what we need, a decent income for "authors" and "publishers", so we need to fix it!

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