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Comment by eganist | Hacker News Reader

"hypothetical" assumes this has never happened. Copyright and patent laws came into existence because this exact scenario happened all the time.

Edit: to counter DannyBee's assertion, I'm referring specifically to this statement -- "it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would certainly work to rob those who may have spent countless hours developing such works of the commercial value of their efforts." The history of copyright starts with printing restrictions to control the flow of "dangerous" information, but the first modern copyright statute (the statute of anne) deliberately came into existence to protect ideas by granting protections to authors of content for n years. Until this point. Copyright was a grant of a printing monopoly.

https://en.m.wikipedia.org/wiki/History_of_copyright_law

> The Statute of Anne had a much broader social focus and remit than the monopoly granted to the Stationers' Company. The statute was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the statute is a social quid pro quo; to encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works.

Comments to DannyBee's link address this mischaracterization of modern copyright history. One example: http://questioncopyright.org/comment/8491#comment-8491

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This is 100% inaccurate

Copyright law was created as a way to support a nascent publishing industry by granting it a monopoly. It was not created to help artists or whoever. http://questioncopyright.org/promise

(The history here is accurate and can be verified with other independent sources)

That's not a sufficient answer.

The claim assumes that copyright and patents are proven to be beneficial, measurably better than the prior situation. Are they? If so, how?

Not to mention, is there any proof there's no better solution?

I think you're moving the goalposts quite a bit here! The original assertion does not assume that the current implementation and interpretation of copyright law is, as you say, "proven to be beneficial, measurably better than the prior situation."

The complaint was that "that's not how facts work" but the statement in question was in fact verifiable.

If you want to provide proof of a better solution, go for it. Proof that there does not exist a better solution is logically impossible, so clearly not a reasonable request.

Were creative works shared, copied, and appropriated with impunity when it was perfectly legal to do so? Why, yes they were! Did the creatives lose out on monetary gains in those cases? Certainly. And copyright law evolved to solve that problem. You are perfectly free to believe it wasn't a problem in the first place, or that the medicine is worse than the disease, but I think you have to make the case for why creatives should not be paid for their work, or how else outside of market economies we should pay creatives for their work, if you believe that would be a better system.

> Did the creatives lose out on monetary gains in those cases? Certainly. And copyright law evolved to solve that problem.

Problem? Are you sure this is really a problem? We assume by default that it is, but think of this for a second: on the one hand, monetary benefits for a few. On the other, a restriction on the liberty to copy and publish for everyone.

This wasn't always the case: historically, only a few people had the ability to share or publish anything. Copyright wasn't so unbalanced then. Now however we have the internet.

Given this asymmetry, the well being of creative people itself is secondary to the well being of everyone else. The real reason why creative people should be paid is because we want everyone else to be able to enjoy their creations.

It's easy to get caught up in individualistic considerations, such as "I did, it so I deserve a reward", or the opposition between "the" artist and "the" consumer. This can reduce to ridiculous arithmetic errors, such as, the picture of "the" starving artist that lost significant income because "the" consumer didn't pay $5 for a song.

We need to grow a sense of scale.

One could argue whether an API is a creative work however. Are you copyrighting the syntax or the semantics? If it is the semantics, then you are essentially copyrighting a mathematical entity (a type declaration). Are we allowed to copyright mathematics at this point?

Forever unto me, the tuple (Int, Int) shall be mine.

One could argue whether an API is a creative work however.

True, though I suggest a better alternative is that some types of work -- in particular, those necessary for effective communication or for interoperability -- should be explicitly exempt from copyright protection, regardless of any creative element.

Copyright itself is an economic trade-off, sacrificing some freedom in the interests of promoting what is considered a greater good.

In the same spirit, I would argue that the ability of different parties to communicate and work together effectively is a greater good than anything copyright incentivizes and should therefore take precedence.

Curiously, the US legal system already recognises a similar principle in the way it treats typefaces. I submit that analogous treatment is appropriate for APIs, file formats, communications protocols, and the like.

Oracle claimed that their copyright covered "Sequence, Structure, and Organization."

> I think you have to make the case for why creatives should not be paid for their work

you're moving the goalposts. post you responded to was not questioning the right of creators to be compensated for their work.

> The claim assumes that copyright and patents are proven to be beneficial, measurably better than the prior situation.

It looks to me like he's only claiming that copyright protections mitigate a specific harm, not that they're necessarily a net benefit.

Proving that there's no better solution is impractical.

However, the size of the copyright-backed creative industries today, by any reasonable metric I can think of, is vastly greater than the size of the creative industries built around the alternative models that have been tried noticeably often so far. That seems to include all of volunteer-based, crowd-funded, mass donation-funded, traditional patronage where some wealthy benefactor funds an entire work, and pay-what-you-want models.

Likewise, the quality of work produced with the economic incentive of copyright tends to be better, often much better, than what is produced based on other funding models or a voluntary basis, particularly in areas that aren't things anyone is likely to do just for fun. (Some people may disagree, but I consider this point so obvious by now that it's rarely worth engaging on.)

That seems like decent evidence that no-one has found a reliably better way to incentivize creating and distributing new works so far, and it's readily falsifiable if anyone does in the future.

Patents are a different matter. I suspect the pros and cons vary significant from one field of research to another, with the general trend that patents might be useful in fields where the cost of R&D really is prohibitively high without some reliable way to exploit any successful projects, while patents are probably doing more harm than good in fields where they are more often used for sneaky legal manoeuvres than to incentivize genuinely innovative, widely useful, but expensive work.

> Likewise, the quality of work produced with the economic incentive of copyright tends to be better, often much better, than what is produced based on other funding models or a voluntary basis... (Some people may disagree, but I consider this point so obvious by now that it's rarely worth engaging on.)

Sorry you find this tiresome. The history of popular and culturally relevant music can be seen as basically a history of uncompensated outsider art becoming coopted and repackaged into dull derivatives.

You may find, for example, Elvis clearly superior to the mostly uncompensated African American traditions he pulled from, but that's hardly a position so universal as to be obvious.

I know you caveated with especially things people don't do for fun, but basically all art attracts people doing it for art's sake.

> That seems like decent evidence that no-one has found a reliably better way to incentivize creating and distributing new works so far

The overwhelming majority of artists will never see any return for their works. There is such a long tail of garage bands making music for fun that it's hard to imagine the need for financial incentives to encourage greater saturation of that industry.

Financial incentives don't encourage great art, they only incentivize commercial art. There are overlaps, but we can't pretend those are both the same thing.

Financial incentives don't encourage great art, they only incentivize commercial art. There are overlaps, but we can't pretend those are both the same thing.

I don't entirely agree. Appreciation of art is subjective by nature, but the way we usually quantify value in our society is financial. A work that is popular will be more financially successful. A work that does not have such broad appeal but which is worth a great deal to a smaller group can also be successful. So unless you want to make some argument that art that is neither widely appreciated nor strongly appreciated by a few can still be great, I don't think the concepts you mentioned are as independent as you're suggesting.

I would also point out that copyright incentivizes the creation and distribution of utilitarian creative works, not just artistic ones. In some respects this is the more valuable side of copyright, because as you point out, with artistic work there will probably always be some level of creativity whether or not it's compensated. With more practical works, say business accounting software or a high school science textbook, there's much less incentive to create the works without some form of money or other compensation involved.

But even in the case of artistic work, I think it's fair to say that a successful professionally edited and published novel is likely to be better writing on average than most popular fan fiction. There are some impressive amateur video productions on YouTube these days, but no-one is making a hobby show with the production values of Game of Thrones. A few potentially decent games have achieved quite impressive funding through Kickstarter, but some of them still haven't actually been shipped years later, and typically they're multiple orders of magnitude below what the budget for a modern AAA title.

You can draw similar comparisons in most fields covered by copyright, whether artistic or simply utilitarian. Certainly not all commercially produced works backed by copyright are successful. Copyright doesn't guarantee anyone a financial return on their hard work. However, it does provide a direct incentive to produce better works and distribute them more widely, because the more successful a work is, the greater the return it will generate.

The only two fields I can immediately think of where serious money is made from creative works but probably would still be made if those works weren't subject to copyright are live performances and software created to support something else rather than for sale in its own right. Even then, not everyone protected by copyrights would necessarily benefit; for example, a band or orchestra might bring in a lot of money for a live concert, but probably someone else wrote the music or songs. So again, the financial incentive to write the best music comes from wanting as many performances of that music as possible to be enjoyed, and thus to maximise the royalties.

Appreciation of art is subjective by nature, but the way we usually quantify value in our society is financial. A work that is popular will be more financially successful. A work that does not have such broad appeal but which is worth a great deal to a smaller group can also be successful. So unless you want to make some argument that art that is neither widely appreciated nor strongly appreciated by a few can still be great, I don't think the concepts you mentioned are as independent as you're suggesting.

It's good to see different world views expressed clearly, but yours is incredibly foreign to me. For me, the number of dollars that someone else with much more money than I have is willing to pay for an object has almost nothing to with its greatness as art. I instinctively react against the idea as if you were saying "How can love between two people be considered great unless one party is paying the other a large sum to stay in the relationship?"

When 'brownbat' says commercial art, I presume he means art that is created because there is known demand from those with the money to pay for it. And when you say "unless you want to make some argument that art that is neither widely appreciated nor strongly appreciated by a few can still be great", this seems like it is totally ignoring the appreciation those without the ability to pay.

Why should we allow greatness of art be defined only by those who have accumulated a surplus of money? Sure, greatness is subjective, but when it comes to art, does it possibly make sense to restrict greatness to the subset of art appreciated by the rich? I would agree that art cannot be great if it is not "strongly appreciated" by at least someone, but can't it be subjectively great for that someone even if they can't afford to pay much for it?

The difference in our world view might be that I see "appreciative but unable to pay" as the default state of the majority of the world, and thus wouldn't think of restricting great art to that which is also financially lucrative, nor quantifying it by summing the product of the audience member's degree of appreciation times ability to pay.

When I was talking about strong appreciation by smaller groups, I wasn't thinking of the kind of works that only a privileged rich elite can afford. Certainly there are people who go to art auctions and buy paintings for millions, so I suppose that would be an extreme case of the same principle.

However, when I wrote my previous post I was more thinking about products in niche markets. An academic text by an expert in a narrow field would presumably appeal to fewer people than a Harry Potter novel, but to those who are working in the field, it might be very valuable to see the insights of an authority on the subject. Thus it becomes viable to publish texts that cost far more than a novel for each copy, if there are enough people still willing to buy it at that price. There are parallels in other niche markets, say a relatively obscure music style where fans are still willing to pay for recordings by a band they enjoy, or specialist software that is only useful to a relatively small number of businesses but is so useful to those businesses that it can sell for thousands of dollars per user.

Are those specialist texts greater works than Harry Potter because they sell for more? Are those specialist software products greater works than the latest Grand Theft Auto? I don't think that's necessarily the case. To me, a popular work that brings happiness to many people can be great, even if the highbrow brigade would look down on it and say it wasn't very good. When they've brought as many smiles to as many children as JK Rowling, their opinion on that subject will mean something to me. :-)

I want to close by coming back to the idea that value is often subjective. I am certainly not implying that to any given person a work can only be great if it makes a lot of money, just as in your own example of two people being in love, only two people's opinions on the greatness of the relationship really matter. I am just saying that in the large, as an economic matter, judging a product by how much others consider it worth is one of the few relatively objective measures we have available.

Really appreciate the thoughtful reply.

While I think you make a fair prima facie case that financial value could track merit in art, as it does so in so many other domains, I would caution that 'weirdness' in the market for art could easily distort this. ('Weirdness' being the proper technical term, if I recall correctly.)

There are lots of reasons art markets are weird, imperfect substitutes, monopolies, winner-take-all dynamics. But I think the biggest factor here is that consumption of truly great art requires enormous search costs.

You can't be certain if you'll love a work unless you experience it, and no one has time to experience more than a miniscule fraction of all the art humanity produces any given day.

The impact is that producers and distributors can successfully make works of minimally acceptable quality, but then market the hell out of them to drown out other recommendations during our search for new great works.

That's why, while yes, GoT has been great, we are coming off nearly a decade dominated by reality TV with no rewatchability. Commercial art has demonstrated the capacity for perfectly fine returns with either model.

Meanwhile, I'm more frequently finding that some of my favorite works have been released for free online: Down and Out in the Magic Kingdom, John Dies at the End, The Martian, How We Got Here, or Harry Potter and the Methods of Rationality.

This shouldn't be too surprising, the idea that great works are possible without strong copyrights. Shakespeare wrote at a time where copyright protections did not apply to written plays, and you might find, according to critical acclaim, test of time, or market measures that Shakespeare has produced a few superlative plays.

If we look to the median, based on my admittedly informal hunch from working a few summers at bookstores, we have to start looking at things like middle of the road trashy romance novels, which I suspect will be a pretty comparable to median fan fiction (unchecked grammatical errors and all - for a particularly memorable, but not uncharacteristic example: https://www.theguardian.com/books/booksblog/2011/sep/12/shif... ).

So we could go a few rounds where you note great commercial works and terrible amateur works, and I cite the opposite, but I think we both know that could continue forever with no resolution.

What we really need is some kind of impossible study that has amateurs and professionals performing the same works, and then some independent quality rating. Oh, and we also need to compare works with and without copyright protections.

Fortunately there is a test case for this, thanks to how many different versions will emerge of various audiobooks. Buccafusco & Heald used mechanical turk in an interesting way as well, really interesting study design:

http://emilkirkegaard.dk/en/wp-content/uploads/Do-Bad-Things...

Now, studio time and famous actors can make audiobooks incredibly expensive to produce. Production values could range from "microphone in a closet" to extremely high budget.

Even so, the study found no appreciable difference in quality for professional and amateur works, or for works with or without copyright monopolies preventing competition.

Despite all the sound and fury, I suspect you and I are closer than it might appear. I agree the utilitarian works may need help with compensation (I might quibble that copyright is an imperfect vehicle there, but sure). And copyright probably led to some very good stuff that we wouldn't have otherwise.

I really just feel like there are enough counterexamples and indications like the study above to make the value of strong copyrights an open question, I was reacting far more to your apparent certainty than to the position itself.

> However, the size of the copyright-backed creative industries today, by any reasonable metric I can think of, is vastly greater than the size of the creative industries built around the alternative models that have been tried noticeably often so far.

Even assuming that "market size" is the right metric for comparison, that comparison assumes that the existence of copyright law has had no negative effect on those "alternative" models. Numerous readily available examples suggest that it has, however.

Numerous readily available examples suggest that it has, however.

Would you share some of those examples? I've heard this argument made before, and I agree that undermining alternative models is both logically possible and a plausible concern in practice. However, the only examples anyone has come up with so far have been some form of derivative work with questionable added value.

Lacking any more compelling evidence, I tend to come back to balance that copyright is one economic principle that clearly can support the production of many useful works, and there is little empirical data to suggest either greater harms or better alternatives. But of course that position ceases to hold if and when such data is found.

YouTube Content ID and equivalent takedowns of content on other services (including false claims, videos shut down because of incidental music, or actual use of content in a transformative way). Remixers/mash-ups. Romhacks/mods/etc. "Abridged series" (of the humorous variety, not literal abridging). Fan works of all kinds. The entire emulation scene. Tools for reading and rescuing content from proprietary file formats. Drivers developed through reverse-engineering to figure out how the hardware works. Projects (both Open Source and proprietary) potentially threatened by the previous ruling on APIs in this exact lawsuit. The old SCO lawsuit and all the time and money it wasted, plus the harm done by the FUD. Any project that has ever had to defend itself over "fair use" in court, whether successful or not.

That was about 5 minutes worth of examples; plenty more where those came from.

It seems to me that many of your examples are more symptoms of today's often absurd implementations, rather than the basic idea of copyright itself.

As I argued in another post, I don't think copyright should ever become an artificial tool to limit communication or interoperability, and as such work necessary to that purpose should indeed not be subject to copyright. It already isn't, to varying degrees, in various jurisdictions.

False takedown claims and the problems that result are more a symptom of allowing centralised hosting of content than anything else. YouTube and the like have no obligation to continue hosting anyone's content if it causes them trouble, regardless of the legitimacy or otherwise of any complaints. As long as there are also no real penalties in law for malicious or negligent actions by big rightsholders, you're going to get this sort of problem anyway.

There are already supposed to be provisions, under banners like fair use or fair dealing, for various applications of works that don't prejudice the original intent of the copyright. Here again it's clear that regulatory capture is hard at work undermining the system, but likewise here again that's due to weak political leadership rather than an inherent problem with copyright.

The areas you mentioned where I'm not so sure are things like remixes, fan works, and mods. In many cases these derivative works do depend on the original creative assets for most of their value, and as such perhaps they should not be exempt from the normal copyright provisions.

In short, I don't see any of those as particularly compelling examples against the basic idea of copyright as a temporary monopoly on reproduction of creative works, subject to reasonable limitations of scope. Rather, I think they are compelling examples of how badly copyright laws have been captured and distorted over time by powerful special interests, particularly in the US, and to some extent of the dangers of giving up control of our own content to third party hosting or distribution services with their own priorities that don't necessarily match our own.

It seems to me that you've moved the goalposts. I certainly agree that a less broken system of copyright would work better than the one we have. But the question at hand was whether there existed cases in which copyright has harmed works that might thrive more in the absence of copyright, as a part of evaluating whether it makes sense to consider the state of "alternative models" given the current legal system directly supporting the primary copyright model and in many cases harming those alternatives. You've then reasserted that you want the "basic idea" of copyright as a means of dismissing these examples, but that wasn't the question at hand.

In a model without copyright, it wouldn't matter whether a work was derivative, or whether it depended on the "original creative assets"; what would matter is whether people found it useful, interesting, and worth supporting/promoting.

(As for the comment on decentralization of services, I'd agree, but at the same time that particular set of problems also wouldn't exist in the absence of copyright.)

I suppose I did move the goalposts, however unintentional it may have been. Yes, what I'm really defending here is the basic premise of copyright. I have no interest in defending copyright that effectively lasts forever, or that has such wide scope that we see billion-dollar lawsuits over work that shouldn't have been covered by copyright in the first place, or other similarly obvious abuses from the relatively recent past.

However, if the underlying question we're asking here is still whether copyright adversely affects other potential economic models for creating and distributing new works, I think my original point remains valid. How would the scenarios you mentioned support alternative model(s) that would be more attractive to creators than what we have (or at least, should have) under some sort of copyright scheme?

> Patents are a different matter. ... patents might be useful in fields where the cost of R&D really is prohibitively high without some reliable way to exploit any successful projects

You seem to be suggesting that cost should be a deciding factor in whether to protect creative work. I disagree that there is a difference here between copyrights and patents.

1) In the tech industry, calculating the "cost" would be anything but straightforward. What would be allowed and what wouldn't? The players are not even comparable - what would stop a large corporation to include their HR, legal departments, and executive team as part of their "R&D costs"? Whereas, a small software startup with 1-3 members getting paid ramen noodles would be hard pressed to properly chalk up a tiny fraction of the costs the large corporation. The large corporation would have no problem showing that "project X cost $1million+ in R&D costs" while the startup would be in $thousands or $tens of thousands. If anything, one might argue that the OPPOSITE of cost would be better indicator - I see more innovation deserving protection from small startups creating things in a weekend than large corporations pushing some new technology developed over years using teams of people and resources.

2) There exist numerous examples where traditional artists create works in relatively short time. How many times have we read about an artist who wrote a song in an afternoon or even an hour? In those cases, the "R&D" costs of creating the song or painting would surely be considered small (if not tiny) when compared to tech R&D. It's contradictory to suggest that creative works protectable by copyrights at times with lower "costs" should be more protectable than tech protectable only by patents.

You seem to be suggesting that cost should be a deciding factor in whether to protect creative work.

I suppose I am, but only indirectly.

I view both copyright and patents as economic instruments. To me, the argument for temporarily restricting freedom to replicate others' work is based on the "greater good" that comes from incentivizing the creation of that work in the first place. However, that argument only makes sense where such an incentive is actually necessary, and to the extent that it is necessary.

If something really can be created by someone within a weekend, it is unlikely that the work or insights necessary to create it are particularly unique or valuable. There is little need to incentivize creating or sharing such work with years of exclusive control, because probably many others could (and some will) do the same thing anyway within that time, and granting the exclusivity is just an artificial barrier to any greater progress that any of those creators might then make.

On the other hand, maybe identifying a new antibiotic that will save thousands of people from "superbugs" takes several years of expensive laboratory research and then several more years of expensive trials and regulatory approvals, but once identified the marginal cost of manufacture is relatively low and many organisations have the resources to produce the physical product. It seems quite plausible that the research and trials and approvals won't happen in this case unless there is some extra benefit to whoever actually puts in the time and resources to do that work first. Given the likely benefit to society of having access to new antibiotics, I personally don't have a problem with incentivization in this case. (For the same ethical reasons, I also don't have a problem with revoking any exclusivity if whoever holds the rights isn't taking reasonable steps to use them by producing and selling the drug at a fair price; the goal is to promote discovery and availability of a useful drug to those who have a medical need for it, and anyone who isn't actually contributing to that doesn't need special privileges.)

Perhaps it would be more accurate to say that I think the cost/benefit should be a deciding factor in which classes of creative work receive these kinds of protections. It's not so much about the absolute cost, but rather whether it's worthwhile for creators to create already, and if not, whether the value to society of having the creation available justifies offering some extra incentive.

The problem is that proving that copyright as it stands is the cause of the prosperity of the current market is problematic. You don't and can't have an equivalent control.

Indeed, and that will hold in both directions. We can't perform an ideal experiment here.

However, we do know funding work with copyright-backed models has been widely successful for a sustained period. We also know that alternative funding models aren't precluded by copyright and that several have been tried with varying but almost always much lower degrees of success.

As 'JoshTriplett mentioned in another post, one confounding possibility is that something about how copyright works today does in fact inhibit what would otherwise be a more successful alternative model. However, so far I've yet to see any compelling examples of that, either in this discussion or elsewhere, and even then you'd need that confounding factor to cancel out multiple orders of magnitude of benefit from some other model for the most successful alternatives I've seen so far to catch up with the most successful copyright-supported work.

That is certainly possible, but until there's evidence to the contrary, it seems highly unlikely.

Market sizes isn't the same as societal benefit. Just like how a modern society built around horses and carts with all the overhead and work that would require wouldn't be an improvement.

It seems to me that it is very very rare that it is the copyright enforcement and/or necessity (will) to stay within legal limits that itself is the reason any given copyrighted offer stays profitable. People pays because they want to pay for quality, in general.

Market sizes isn't the same as societal benefit.

I'm arguing that copyright-supported creative effort overall produces and distributes significantly more and significantly better works than creative effort supported in other ways.

If that doesn't imply societal benefit to you, what does?

What's the argument based on? Compared to for example software projects under permissive licenses, Creative Commons, etc, can you show that copyright does more than to simply help somebody popularize (through marketing) things that likely already would have existed?

How many AAA games have been created with permissive licences?

What permissively licensed software is available to design ships or office buildings or integrated circuits?

When Adobe created a gap in the market by making Creative Cloud subscription-only, it took just a few years for several quite slick and professionally well-regarded alternative products to appear, with feature sets catering to former users of Creative Suite products in specific areas. Those new products are all commercial and funded by copyright-protected sales. How long have FOSS products like the GIMP or Inkscape been trying to do the same thing, without ever succeeding?

What kernels can compete with Linux in servers and embedded? How many how many network protocols are entirely proprietary? And what about Android, Blender?

> Proving that there's no better solution is impractical.

Logically impossible actually.

I avoided phrasing it that way in case we got bogged down with how we're defining terms and what assumptions are reasonable to make. Of course you can't prove the general negative case, but even if you started trying to work with a more concrete economic model, anything realistic enough to be useful would most likely also be too complicated to analyze completely.

[Citation needed]

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