Copyright and wrong: Why the rules on copyright need to return to their roots

Let's be honest for a minute.

Copyright for music is already dead. Consumers like free music. Sometimes they'll pay for concerts, or merchandise, or convenience, or ignorance, but that's it. They might tell you it's wrong on an opinion survey, but they keep downloading.

The situation isn't going to change any time soon, either. Widespread use of DRM'd hardware might work, but the early adopters you'd need to get the new media formats off the ground already benefit the most from free downloads.

Books, movies, and TV shows haven't been devalued yet, but only because ripping and (especially) downloading them are still inconvenient to most people. Bandwidth can't stagnate forever, though. Like with music, when you can download a two-hour movie in ten minutes, and store them by the thousands on your hard drive without missing the space, the only way to prevent rampant piracy will be to stop selling media.

Regardless of the legal niceties, the marginal cost of digital media is zero plus some rounding error. Isn't that a radical enough departure for us to ask whether copyright itself, rather than just its expiration date, might have to change?

The article does not address the central problem with copyright protection: that it is founded on industrial-age assumptions which no longer apply. As long as copying was capital- and labor-intensive, copyright was enforceable with reasonable measures. But it's now so easy to privately copy a work that copyright protection has become similar to the war on drugs in that it can only be enforced with draconian measures.

Patents and copyrights are artificial government grants making the intangible tangible. It's the artificialness that bothers me.

Our culture has come to think ideas are real like real estate. But they are not. They are intangible, and so is information. This feels an awful lot like the meme "ideas are cheap; execution is everything".

As all media become more like raw information--as the cost of transmission and storage of media falls--it will act more like ideas. All that will be left is the government grant to exclusive rights. Thus IP holders lobby governments for larger and larger hammers to beat down infringement.

And anyway, the point of limited IP terms is to allow derivative works for the greater good. I don't hear this greater good argument often enough.

The system is flawed. Perhaps short copyright terms as the article suggests are more workable as the information will be fresh. It may also be the only realistic solution when the time comes that infringement is effectively free (as in beer).

I very much agree with this article, copyright terms have become way, way too long, and are very close to no longer being the 'limited time' that the constitution requires. Another good read on the matter is http://besser.tsoa.nyu.edu/howard/papers/copyright99.html .

Copyright is essentially a law of physical objects. Information is only involved superficially, to modulate it. When information doesn't need objects anymore, copyright is basically dead. It exists only by vestiges of behavioural convention.

Debating the length of copyright term is pretty much useless. As are refinements of 'fair-use'. If there are no solid 'attachment points' for payment, and no discrete identifiable product, the machine is just spinning but going nowhere. We need entirely different ways to pay for abstract creative effort. It is an opportunity to make something better -- copyright was fundamentally economically suboptimal anyway.

> The notion that lengthening copyright increases creativity is questionable

Really, I find it blatantly disingenuous. As "IP" owner I can sit on my ass milking my original creation for 90+ years or I can be "forced" to actually produce more works every 5-15 years.

Just yesterday, I ran some calculations based on a different assumption, just on raw economics. It goes like this:

1) Suppose that "intellectual property" (IP) is taxed, like real estate. Say at a T = 1% rate, to keep it simple. This pays for the property protection service the state provides.

2) But the holder does not actually pay tax. He just accumulates back payments to the state, at an interest rate R per year.

3) When the state is owed 100% of the value, the IP reverts to the public domain.

This has the advantage that the property value does not matter - it can be 1, 100, 100k; nothing to haggle there. It is just assumed to be constant for the period considered.

Run your own calculations. Mine were that with a T=1% tax rate, and a R=5% interest rate on unpaid tax, you get 37 years. (26 years for R=10%, 47 years for R=3%.)

P.S.

I got curious, and just checked with a lower tax rate T=0.5%. R seems to dominate T. Here is a little table:

            R=3%  R=5%  R=10%
    T=0.5%   66    50     32
    T=  1%   47    37     26

This is an outstanding audio essay on the state of copyright in America: http://www.negativland.com/news/?page_id=16

So, is this article interesting because it comes from The Economist? I think most of us here have been reading copyright law analysis and critique that's far beyond this since before the DMCA was passed.