Copyright Alliance Pretending That Gov't Backed Monopolies Are The Free Market Again
from the up-is-down,-black-is-white dept
A few months back, the big entertainment companies formed yet another copyright lobbying group -- as if they didn't already have enough -- to push for more restrictive copyright policies that would limit the rights of consumers. This was the group that just last week was trying to spread the myth that fair use was not a right and copyright holders should be able to lie about what rights copyright grants them. However, the head of the group, Patrick Ross, really seems to get into trouble when he tries to trot out free market concepts to support his positions. You may recall back in January his position that getting rid of the DMCA would go against the free market because it would represent government intervention. He seemed to totally ignore the fact that it was the DMCA that was gov't intervention in the first place. Apparently, Ross hasn't given up on this "up is down, day is night" type of debate style, as copyright expert William Patry has taken Patrick Ross to task for claiming that new laws supporting consumer rights when it comes to copyrighted content were "government intervention" against the free market. As Patry points out all copyright is government intervention -- and supporting stronger copyrights is to be calling for greater gov't intervention. To then claim that giving more power back to the consumers on copyright is gov't intervention, is being intellectually dishonest. You can support copyright by claiming that the market breaks down and there's a market failure that necessitates such gov't intervention (and, in fact, many people do). But to claim that stronger copyrights means a stronger free market is an outright falsehood. Ross seems to be under the false impression that the "natural" position of the market is to have the strongest possible copyrights, and therefore, any weakening of that is gov't intervention. That creates a complete blindspot to the fact that all copyright is government intervention, and giving rights back to consumers is less government intervention.Ross's response to Patry in the comments continues this rather twisted logic, by claiming that free markets are about property rights, and therefore, supporting stronger copyright is about supporting stronger property rights -- and therefore, it is a free market position. However, Ross's understanding of the free market is confused here. He's right that property rights are important -- but only as a means of more efficiently handling the allocation of scarce resources. That's the entire purpose of property rights in the free market. The logic breaks down, rather completely, when you talk about infinite, rather than scarce, goods. There is no need for more efficient allocation of infinite goods, because they're infinitely available, and therefore allocation is automatically efficient. Again, it's perfectly reasonable (though I would likely disagree with some of the assumptions) to argue that copyright is a necessary gov't intervention due to market failures from a true free market (which appears to be Patry's position). However, to argue that stronger copyright monopolies from the gov't is the opposite of gov't intervention isn't a supportable position.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright alliance, free markets, patrick ross
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
The Big Bad Wolf
Unfortunately, in his stories, I think I would be afraid on the Big Bad Wolf.
[ link to this | view in chronology ]
It's come to this, has it?
And some of the nonsense that results would make Mr. Orwell proud. (or very, very afraid, perhaps?)
Ah, doublespeak, how I plusunhate thee. ;)
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
I really chose the wrong line of business...
[ link to this | view in chronology ]
Re: I really chose the wrong line of business...
[ link to this | view in chronology ]
Let's see...
The folks at the RIAA and their ilk are greedy idiots is not in doubt, IMO, especially the Disney extensions to the copyright law timeframe and some of the ludicrous limits on free use that they are trying to enforce. But to say that the government has no place in enforcing intellectual property in a free market is ridiculous. Protecting property rights includes protecting the time, money and effort invested into developing something of value. Just because there is a means of cheaply distributing that valuable product does not lessen the expenditure of resources required to produce the initial product.
If you prevent people from recovering their investments to develop something, they will be much less likely to spend their time, effort and money to develop it. Instead, they will spend their resources on something that they can either use or to which they can maintain their property rights.
Artists will always create, but if they cannot make a living creating, they will create less and do other things to make a living. Personally, I think an artist has right to compensation if I choose to get a copy of his or her work for my enjoyment. Whether or not he chooses to exercise that right is up to the artist.
[ link to this | view in chronology ]
Re: Let's see...
No, you misunderstand the argument. Land *was* scarce. It's a rivalrous product. If someone is using it, then someone else cannot. That's scarce. You are confused with your definitions.
But to say that the government has no place in enforcing intellectual property in a free market is ridiculous.
No, it's not ridiculous. Intellectual property is a gov't subsidy to creators. You can argue that's necessary, but it's not the free market.
Protecting property rights includes protecting the time, money and effort invested into developing something of value. Just because there is a means of cheaply distributing that valuable product does not lessen the expenditure of resources required to produce the initial product.
Ah, well there's the root of your problem. IP isn't about "protecting" anything. It's about creating incentives for creation. If the policy were about protecting, then we have a totally different conversation on our hands.
If you prevent people from recovering their investments to develop something, they will be much less likely to spend their time, effort and money to develop it.
You have an implicit assumption there that's flat out false: that removing copyright means that people are prevented from recovering their investments. That's simply not true and we provide examples of that here all the time. In fact, there's increasing evidence that the opposite is true, and that by ignoring IP, and understanding some economics, you can profit even more by freeing the infinite part of the goods you've created, and focusing on monetizing the scarce complements.
Artists will always create, but if they cannot make a living creating, they will create less and do other things to make a living.
Again, you make the same false assumption.
[ link to this | view in chronology ]
Re: Let's see...
a truly free market is truly free of government intervention. they teach you that on the first day of econ 101:
every single time the government does anything to the market, the market becomes less free.
free markets are about people, not lobbies and not corporations. free markets are about informed consumers and competition based on price and quality. anything that is anti-consumer is by definition anti free market. anything that is anti-competitive is by definition anti free market.
what is the real cost of making content? what is the real investment? the costs that go into production of content are artificially high thanks to the high barriers of entry into the content market because of the monopoly power that copyright holders wield due to copyright law.
how much does it really cost to write a book? how much does it really cost to make a song? how much does it really cost to make a movie? we don't know. all we know is what the content cartels tell us it costs. cartels are anti-competitive.
in a truly free market you don't sell things at a price that you like, you sell them at a price that the market is willing to pay. markets do that because they are about consumers, not corporations.
that is the problem with content pricing. the market can bear paying next to nothing for it. many consumers pay nothing and do it easily. if you can't bear selling it for the price the market is willing to pay, then get the hell out of the market and take your copyrights with you.
[ link to this | view in chronology ]
What is your time worth? What are the opportunity costs you give up to take the time to write your book? To make your music? To make your film.
[ link to this | view in chronology ]
Re:
What is your time worth? What are the opportunity costs you give up to take the time to write your book? To make your music? To make your film.
Everything has an opportunity cost. I'm not sure how that makes any difference in setting up artificial gov't monopolies for certain projects.
[ link to this | view in chronology ]
Re: Re:
That is just wrong. You want to write a book about a whale, go ahead. There was a book about a whale once, there is a copyright on it (I think) but that author doesn't have a monopoly on books about whales. Just books that he wrote.
People talk about how evil a monopoly is, but in this context, its a monopoly only on their creation, not on everything. Why do so many here have a problem with that?
[ link to this | view in chronology ]
Re: Re: Re:
Because the questions hould be why is that monopoly necessary? By creating a gov't subsidized monopoly, you are thereby shrinking the market for people who can do something better based on that original work. That's not beneficial to society. It harms society. If there's no societal benefit to granting the monopoly, then why should we?
Your argument is that creation won't occur without that artificial scarcity, but there's plenty of evidence to suggest that's not true. All I'm saying is that if we're going to have gov't stepping in and granting monopolies, why shouldn't there be some evidence of market failures first? The reason for gov't intervention is market failure -- but without evidence of a market failure, it's hard to support the rationale for gov't intervention.
Meanwhile, your example is quite disingenuous. IP protections don't just say you can't write the same book about the whale. It says you can't do other things with that book, even if it's to improve it. And when you move into the patent world (I like how you shift to copyright when it's convenient) then you ARE talking about cases where people are getting monopolies on concepts as broad ad "a book about a whale."
[ link to this | view in chronology ]
Re:
that's easy:
it will take me a minute to write this post, and my time is worth a million dollars a minute. if you read this, it is as if i gave you a million dollars. aren't i a nice guy?
how many of you are willing to pay me the million dollars i deserve for writing this? anyone? no one?
well then, i guess my time is not really worth a million dollars a minute, in spite of how badly i want a million dollars. that's how the market works, unless you can afford to tilt it in your favor.
now, if i was a huge corporation and i had enough money to lobby congress, i could have things changed so that my time really is worth millions. that is the basis for the IP industry as we know it today.
[ link to this | view in chronology ]
Copyright as Government Intervention
[ link to this | view in chronology ]
Mike, I would say that the monopoly can benefit society. Are there examples of where it hurts it? Of course. That doesn’t mean the whole system is wrong. Is a patent too broad? Fix that. Was it obvious? Fix it. Your way is to eliminate the whole system. Not all patents are good, but not all patents are bad either. That’s my only point.
Linking property rights to IP rights? Why would they be all that different? I own my property; I have a monopoly on that land. Would society be better off were that land were a park? A parking lot? The govt. can take my land if it can better all of society, but it is very reluctant to do so (some places more than others) for very good reason. Why should something I create not have the same rights?
I understand that there are advantages to freeing content that adds to revenue, but that is up to the creator, not you.
[ link to this | view in chronology ]
Re:
the only difference between my arbitrary and comically overinflated value of my IP and the arbitrary but most likely overinflated value of the intellectual property made by a content cartel is that i am a random anonymous jerkoff from the internet who cannot afford to fix the IP game in my favor. if my stuff gets infringed upon, no one will hear my screams.
unless your IP has been anointed in some manner by a powerful corporation (meaning they own it, not you) no one will hear your screams either. copyright and patents are tools that big corps with money use to fight other big corps with money. the corps keep the market small and the prices high with their licenses and royalties.
copyright will not help you, the individual creator, because you will not be able to afford to enforce it. the same is true of patents. sure you can make a post to your blog, maybe start some sort of internet smear campaign against your malefactor, hire some ambulance chaser to send some letters, but in the end, your recourse as an independant creator with no access to multi-national class fundage and my recourse as an internet jerk off are the same: sitting in your room crying while Fister Inc. gets rich off your work.
if copyright and patent weren't the weapons of anti-competition that they are today, you could repay Fister Inc. for jacking your work by jacking theirs. any improvement that you make is free for them to use, any improvement they make is free for you to use. if you can do it better/faster/cheaper then you can enjoy the lead until someone out does you.
[ link to this | view in chronology ]
Ross, Patry, and Copyrights
[ link to this | view in chronology ]
Re: Ross, Patry, and Copyrights
That said, I don't think most people want content for free...I don't...I just don't want to be gouged for it and forced to repurchase it all the time. The fact is, artists, labels, publishers, et al have taken advantage of limited protection in order to nickel and dime their customers to death. I don't download pirated material...I just buy very little. Lighten up, charge fair prices, treat me like a human and not a criminal, and you'll probably see customers return in swarms. My two cents.
[ link to this | view in chronology ]
Re: Re: Ross, Patry, and Copyrights
[ link to this | view in chronology ]
Re: Ross, Patry, and Copyrights
Hi George. I'm curious why you position Patry as being biased, but ignore the fact that Ross is paid for the sole purpose of convincing the world that stronger copyright laws are needed. Why is that not biased?
Patry actually has a pretty long and distinguished resume in the copyright field (outside of his work for Google).
First of all, I represent dozens of artists, illustrators, and designers who have lost their jobs and their livelihood due to Internet piracy
Hmm. You're blaming the wrong thing. What you mean is that you represent dozens of artists, illustrators and designers who were unable to change with the marketplace. You do realize that there are an awful lot of artists, illustrators and designers who have now been able to make a career for themselves by using the new tools of free promotions, whereas before they never would have been discovered? So one group has learned to embrace these trends and tools and view them as opportunities... and the folks you represent have not.
If I were them, I'd look for different representation.
And I'm not an IP lawyer either, so that disqualifies my opinion right away according to the Patry crowd.
I don't know Patry personally, but I've never seen him disqualify the opinion of non-IP lawyers. I'm curious why you would think he would.
But for giant publicly-funded companies like Google to use those inclusions as an excuse for outright "stealing" of someone else's property (Patry or no Patry) is a disgrace in my opinion
Well, we've had this discussion about a thousand times at this point: infringement is different than stealing. If you insist on calling it stealing, then you will most certainly miss the point of any of these debates.
Anyway, I'm curious as to what you think Google is "stealing" anyway? From what I've seen the company isn't stealing anything. In fact, it's not even infringing anything. It's created a useful service based on finding content and pointing people to the content they want.
I think anyone who supports that argument has some sort of internal axe to grind.
Why? For years I've been posting studies and research and factual evidence for my position. For you to come here and say that I have an axe to grind without any sort of factual backup... sorry, not particularly persuasive.
I have no axe to grind. I've simply seen the evidence and I believe that we would encourage *more* innovation and *more* creativity and *more* ways to make money if people stopped relying on gov't backed monopolies that *limit* possibilities and *limit* the benefit that can be gained by the consumer.
Perhaps you tried to join the new rock band when you were in middle school, and were locked out in the cold on a stormy, snowy night. Or maybe your art teacher made fun of your drawings in front of your girlfriend or others.
Uh... what?
Your anti-copyright views come out loud and clear in your blogs and other postings.
Yup. Because I support it with facts and experience.
Attempts to soften those blows comes over as disingenuous to anyone who has a ounce of "real life" experience in this complex, and very important, subject matter.
Are you suggesting that I have no real life experience in the creation of content or ideas? If you are, you'd be very, very wrong. My entire livelihood, and the livelihood of the staff of folks I employ depends on the creation of content.
I hate hypocrites, Mike. And the only thing I hate more than hypocrites are hypocrites with a blind following.
Great. Please point out my hypocracy, because you haven't done so in your comments. I don't believe I've been hypocritical, but please do share.
The least you could do is get your facts straight.
George, I'm not sure how to respond to this as you don't point out a single fact I got wrong. If I did get my facts wrong, I'd like to know so I can correct them.
The least you could do is get your facts straight. It seems to me you are trying your best to twist around every legitimate point Mr. Ross tries to make. He's not aginst "fair use" ... he's against "stealing"
Then he's got nothing to worry about, since infringement is not stealing.
However, if you read Ross's writings, it's quite clear that he is very much for limiting fair use as much as possible, as he considers it to be a problem. That's not a judgment statement. It's clear from his writing.
Perhaps you should consider writing a book, or maybe even publishing a treatise, instead. That way you don't have to listen to any constructive criticism
Now this is totally bizarre. I'm not sure what you're trying to say here. I find it odd that you seem to accuse me of wanting constructive criticism as if that's a bad thing. Am I missing your point?
Why do I have a feeling you're not going to post this response?
Clearly (despite your claims) you don't read Techdirt very often. We post all comments, good or bad, unless they're spam. In fact, unless they're caught in our spam filter, we don't review any comments before we hit the site.
So, Mr. Riddick, you were factually incorrect in claiming that we wouldn't post your response. Will you apologize and correct your mistake?
If so, please also take back your other false assertions against my character, and if you have facts to back up your positions, please post them or admit that you were wrong. I have posted facts to back up my position -- and it's rather unfair of you to then assert that I have lied without a shred of proof or evidence.
[ link to this | view in chronology ]
Re: Re: Ross, Patry, and Copyrights
[ link to this | view in chronology ]
Ross infinitely confused
You should also note that he says I should speak to a copyright attorney so I can understand fair use. That's like talking to a RIAA attorney to gain and understanding of online music.
________________________
Thank you for writing. I find it interesting you're citing US Code and aren't familiar with "affirmative defense." It sounds like you need to speak with a copyright attorney, but you can start by reading our FAQ on fair use at http://www.copyrightalliance.org/copyrightsandyou/fairusefaqs
I'm glad you wrote because your confusion makes my point for me. As you yourself point out, fair use is a limitation on an otherwise exclusive right. Congress, empowered by the Progress Clause of the US Constitution, in 1790 granted limited monopoly rights to creators. Nearly 200 years later, a fair use section was added to copyright law, that puts limits on those rights.
Imagine I own a farm and you like to fish downstream from my farm. I have property rights over my farm, but the government imposes limits on my exclusive rights. For example, I can't leach hazardous biochemical waste produced on my farm into the stream. That's good for you and the fish that you caught, but you have no "rights" related to my farm. I have limitations on my rights that benefit you and everyone else who wishes to use that stream.
The confusion you've shown here over the use of the word "right" shows exactly why it would be dangerous to use copyright warnings to explain fair use. Whole courses in law school are taught on this; it is not summed up by citing a portion of the US Code, nor is it summed up in my op-ed. It is far more complicated than that.
[ link to this | view in chronology ]
Re: Ross infinitely confused
Notice how he conveniently leaves out the bit about how for over 200 years, until the NET act of 1997, it was not a crime in the US to infringe copyright for non-commercial purposes. He seems to be kind of selective about what history he wants revealed. What a slime bucket. Typical.
[ link to this | view in chronology ]
Of course, here NTP is called a patent troll. Seems like even here the little guy gets no respect.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Well, that's the fairy tale version isn't it? The reason people refer to NTP as a patent troll is because the company had invalid, overly broad patents on an obvious idea... and then got hundreds of millions from the company that did the actual innovating to make a worthwhile product.
That's not the little guy taking on the big guy. That's the sore loser (NTP tried to get into the market and failed) beating up on the guy who did a better job in the market. RIM was tiny before the Blackberry took off. But they actually created something of value in the marketplace.
[ link to this | view in chronology ]
Re:
dude, NTP? are you freaking serious? using the patent system to stick your hand into someone else's pockets, when they succeeded at what you failed at, makes you a troll. read a book once in a while.
[ link to this | view in chronology ]
Also, why are you so hung up on the term stealing or theft when it comes to infringement? You point out that the Supreme Court said infringement wasn't theft or stealing, but there are a few problems with the case you site. The Supreme Court did say that infringement fit the term theft, but awkwardly. I have pointed this out in the past. Also, the case you point out the charge was for the transportation of stolen goods across state lines. The Court ruled that there was a law for copyright infringement that addressed the issue directly, so additional interpretation of stolen goods was not needed.
Your whole business is based on content but it doesn’t seem like you respect the creators of that content very much.
[ link to this | view in chronology ]
Re:
Yes, and I also know what the patents were and why they weren't valid (and why the USPTO has been rejecting them one by one). What's your point?
Also, why are you so hung up on the term stealing or theft when it comes to infringement?
Because it's HUGELY important in understanding the issues. If you think infringement is theft then you can never recognize how it can be used to the content producers *advantage*. That puts anyone who believes it's theft at a TREMENDOUS disadvantage to any competitor who does figure it out.
Your whole business is based on content but it doesn’t seem like you respect the creators of that content very much.
Actually, it's EXACTLY the opposite. I respect creators of content so much I'm trying to help them MAKE MORE MONEY by showing them business models that open up tremendous new possibilities and markets. I'm not sure why you continue to insist otherwise. I've explained this to you before.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Why do you think that is a lie? If I ask you if you can dance and you say yes, but awkardly, would I be lying if I said you could dance?
And Mike, you are full of crap. You write "Because it's HUGELY important in understanding the issues. If you think infringement is theft then you can never recognize how it can be used to the content producers *advantage*. That puts anyone who believes it's theft at a TREMENDOUS disadvantage to any competitor who does figure it out."
That is just wrong. A content creator can choose to offer his creation for free. How does it put someone at a disadvantage if they choose to offer it for free? The only problem I have with your position is that you want to force everyone to offer it for free. Do people offer it for free? Yes, does copyright exist? Yes, the two exist. What part of that don't you get?
[ link to this | view in chronology ]