The Surprising History of Copyright and The Promise of a Post-Copyright World


by Karl Fogel

Translations: 中文, Italiano, česky, Polski, latviešu valoda.

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There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies. But now that the Internet has given us a world without distribution costs, it no longer makes any sense to restrict sharing in order to pay for centralized distribution. Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically. In place of corporate gatekeepers determining what can and can’t be distributed, a much finer-grained filtering process would allow works to spread based on their merit alone. We would see a return to an older and richer cosmology of creativity, one in which copying and borrowing openly from others’ works is simply a normal part of the creative process, a way of acknowledging one’s sources and of improving on what has come before. And the old canard that artists need copyright to earn a living would be revealed as the pretense it has always been.

None of this will happen, however, if the industry has its way. For three centuries, the publishing industry has been working very hard to obscure copyright’s true origins, and to promote the myth that it was invented by writers and artists. Even today, they continue to campaign for ever stronger laws against sharing, for international treaties that compel all nations to conform to the copyright policies of the strictest, and most of all to make sure the public never asks exactly who this system is meant to help.

The reward for these efforts can be seen in the public’s reaction to the file-sharing lawsuits. While most people agree that this time the industry went too far, the error is mainly treated as one of degree — as if the record companies had a valid point, but had merely resorted to excessive force in making it.

To read the true history of copyright is to understand just how completely this reaction plays into the industry’s hands. The record companies don’t really care whether they win or lose these lawsuits. In the long run, they don’t even expect to eliminate file sharing. What they’re fighting for is much bigger. They’re fighting to maintain a state of mind, an attitude toward creative work that says someone ought to own products of the mind, and control who can copy them. And by positioning the issue as a contest between the Beleaguered Artist, who supposedly needs copyright to pay the rent, and The Unthinking Masses, who would rather copy a song or a story off the Internet than pay a fair price, the industry has been astonishingly successful. They have managed to substitute the loaded terms “piracy” and “theft” for the more accurate “copying” — as if there were no difference between stealing your bicycle (now you have no bicycle) and copying your song (now we both have it). Most importantly, industry propaganda has made it a commonplace belief that copyright is how most creators earn a living — that without copyright, the engines of intellectual production would grind to a halt, and artists would have neither means nor motivation to produce new works.

Yet a close look at history shows that copyright has never been a major factor in allowing creativity to flourish. Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors.

The arrival of the Internet, with its instantaneous, costless sharing, has made that business model obsolete — not just obsolete, but an obstacle to the very benefits copyright was alleged to bring society in the first place. Prohibiting people from freely sharing information serves no one’s interests but the publishers’. Although the industry would like us to believe that prohibiting sharing is somehow related to enabling artists to make a living, their claim does not stand up to even mild scrutiny. For the vast majority of artists, copyright brings no economic benefits. True, there are a few stars — some quite talented — whose works are backed by the industry; these receive the lion’s share of distribution investment, and generate a correspondingly greater profit, which is shared with the artist on better than usual terms because the artist’s negotiating position is stronger. Not coincidentally, these stars are who the industry always holds up as examples of the benefits of copyright.

But to treat this small group as representative would be to confuse marketing with reality. Most artists’ lives look nothing like theirs, and never will, under the current spoils system. That is why the stereotype of the impoverished artist remains alive and well after three hundred years.

The publishing industry’s campaign to preserve copyright is waged out of pure self-interest, but it forces on us a clear choice. We can watch as most of our cultural heritage is stuffed into a vending machine and sold back to us dollar by dollar — or we can reexamine the copyright myth and find an alternative.

The first copyright law was a censorship law. It was not about protecting the rights of authors, or encouraging them to produce new works. Authors’ rights were in little danger in sixteenth-century England, and the recent arrival of the printing press (the world’s first copying machine) was if anything energizing to writers. So energizing, in fact, that the English government grew concerned about too many works being produced, not too few. The new technology was making seditious reading material widely available for the first time, and the government urgently needed to control the flood of printed matter, censorship being as legitimate an administrative function then as building roads.

The method the government chose was to establish a guild of private-sector censors, the London Company of Stationers, whose profits would depend on how well they performed their function. The Stationers were granted a royal monopoly over all printing in England, old works as well as new, in return for keeping a strict eye on what was printed. Their charter gave them not only exclusive right to print, but also the right to search out and confiscate unauthorized presses and books, and even to burn illegally printed books. No book could be printed until it was entered in the company’s Register, and no work could be added to the Register until it had passed the crown’s censor, or had been self-censored by the Stationers. The Company of Stationers became, in effect, the government’s private, for-profit information police force [1].

The system was quite openly designed to serve booksellers and the government, not authors. New books were entered in the Company’s Register under a Company member’s name, not the author’s name. By convention, the member who registered the entry held the “copyright”, the exclusive right to publish that book, over other members of the Company, and the Company’s Court of Assistants resolved infringement disputes [2].

This was not simply the latest manifestation of some pre-existing form of copyright. It’s not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. The Stationers’ right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. Before this moment, copyright — that is, a privately held, generic right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libelous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership. There had also been, in some cases, special privileges (then called “patents”) allowing exclusive printing of certain types of books. But until the Company of Stationers, there had not been a blanket injunction against printing in general, nor a conception of copyright as a legal property that could be owned by a private party.

For about a century and a third, this partnership worked well for the government and for the Stationers. The Stationers profited from their monopoly, and through the Stationers, the government exercised control over the spread of information. Around the end of the seventeenth century, however, owing to larger political changes, the government relaxed its censorship policies, and allowed the Stationers’ monopoly to expire. This meant that printing would return to its former anarchical state, and was of course a direct economic threat to the members of the Company of Stationers, accustomed as they were to having exclusive license to manufacture books. Dissolution of the monopoly might have been good news for long-suppressed authors and independent printers, but it spelled disaster for the Stationers, and they quickly crafted a strategy to retain their position in the newly liberal political climate.

The Stationers based their strategy on a crucial realization, one that has stayed with publishing conglomerates ever since: authors do not have the means to distribute their own works. Writing a book requires only pen, paper, and time. But distributing a book requires printing presses, transportation networks, and an up-front investment in materials and typesetting. Thus, the Stationers reasoned, people who write would always need a publisher’s cooperation to make their work generally available. Their strategy used this fact to maximum advantage. They went before Parliament and offered the then-novel argument that authors had a natural and inherent right of ownership in what they wrote, and that furthermore, such ownership could be transferred to other parties by contract, like any other form of property.

Their argument succeeded in persuading Parliament. The Stationers had managed to avoid the odium of censorship, as the new copyrights would originate with the author, but they knew that authors would have little choice but to sign those rights back over to a publisher for distribution. There was some judicial and political wrangling over the details, but in the end both halves of the Stationers’ argument survived essentially intact, and became part of English statutory law. The first recognizably modern copyright, the Statute of Anne, was passed in 1709 and took effect in 1710.

The Statute of Anne is often held up by champions of copyright as the moment when authors were finally given the protection they had long deserved. Even today, it continues to be referenced both in legal arguments and in press releases from the publishing industry. But to interpret it as an authors’ victory flies in the face of both common sense and historical fact [3]. Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so. The only people threatened by the dissolution of the Stationers’ monopoly were the Stationers themselves, and the Statute of Anne was the direct result of their lobbying and campaigning. In the memorable words of the contemporary Lord Camden, the Stationers “…came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security.” [4]  To make their argument more palatable, they had proposed that copyright would originate with the author, as a form of property that could be sold to anyone — anticipating, correctly, that it would most often be sold to a printer.

This proposal was a shrewd tactical move, because one of Parliament’s concerns was to prevent the re-establishment of a centralized monopoly in the book trade, with its attendant potential for a renewal of censorship by the crown. Benjamin Kaplan, professor of law emeritus at Harvard University and a respected copyright scholar, describes the Stationers position succinctly:

….The stationers made the case that they could not produce the fragile commodities called books, and thus encourage learned men to write them, without protection against piracy… There is an apparent tracing of rights to an ultimate source in the fact of authorship, but before attaching large importance to this we have to note that if printing as a trade was not to be put back into the hands of a few as subject of monopoly — if the statute was indeed to be a kind of “universal patent” — a [legal] draftsman would naturally be led to express himself in terms of rights in books and hence to initial rights in authors. A draftsman would anyway be aware that rights would usually pass immediately to publishers by assignment, that is, by purchase of the manuscripts as in the past. … I think it nearer the truth to say that publishers saw the tactical advantage of putting forward authors’ interests together with their own, and this tactic produced some effect on the tone of the statute.[5]

The Statute of Anne, taken in historical context, is the smoking gun of copyright law. In it we can see the entire apparatus of modern copyright, but in still-undisguised form. There is the notion of copyright as property, yet the property is really intended for publishers, not authors. There is the notion of benefitting society, by encouraging people to write books, but no evidence was offered to show that they would not write books without copyright. Rather, the Stationers’ argument was that publishers could not afford to print books without protection from competition, and furthermore that printers could not be depended to reproduce works faithfully if given unfettered freedom to print. The corollary, they implied, was that without the prospect of reliable distribution, authors would produce fewer new works.

Their argument was not unreasonable, given the technology of the time. Making a perfect copy of a printed work required access to the original press and compositor, anyway; if reliable reproduction were to be encouraged, then a single-holder copyright system had a certain logic to it. And the publishers would now be effectively forced to pay authors in return for exclusive printing rights (although in fact the Stationers had sometimes payed authors even before, simply to guarantee the completion and delivery of a work). The authors who succeeded in selling this new right to printers had no particular motivation to complain — and naturally, we don’t hear very much about the authors not so favored. The consolidation of author’s copyright probably contributed to the decline of patronage as a source of income for writers [6], and even allowed some authors, though always a small minority, to support themselves solely from the royalties their publishers shared with them. The fact that a given copyright could only be held by one party at a time also helped prevent the proliferation of divergent variations, a problem that had vexed authors perhaps even more than plagiarism, as there was no easy method by which they could endorse or disclaim particular variations.

But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.

This is the secret that today’s copyright lobby never dares say aloud, for once it is admitted, the true purpose of subsequent copyright legislation becomes embarrassingly clear. The Statute of Anne was just the beginning. Having granted the premise that copyrights should exist at all, the English government found themselves under pressure to extend copyright terms further and further. In the long legal saga that ensued, what’s important is not the particular sequence of laws and verdicts, but the identity of the plaintiffs: they were just the sort of stable, settled business interests capable of sustaining litigation and lobbying over a period of decades — that is, they were publishers, not authors. They had proposed the author’s copyright out of economic interest, and only after the crutch of a censorship-based monopoly had been taken away from them. When it became clear that the tactic worked, they lobbied to strengthen copyright.

And this is still the pattern today. Whenever the U.S. Congress extends copyright terms or powers, it is the result of pressure from the publishing industry. The lobbyists will sometimes trot out a superstar author or musician as an exhibit, a human face for what is essentially an industry effort, but it’s always quite clear what’s really going on. All you have to do is look at who’s paying the lawyer’s and lobbyists’ bills, and whose names appear in the court dockets — publishers’.

The industry’s centuries-long campaign for strong copyright law is not merely a reflexive land grab, however. It’s a natural economic response to technological circumstances. The effect of the printing press, and later of analog sound recording technology, was to make creative works inseparable from their means of distribution. Authors needed publishers the way electricity needs wires. The only economically viable method of reaching readers (or listeners) was the bulk print run: to manufacture thousands of identical copies at once, then physically ship them to various points of distribution. Before agreeing to such an investment, any publisher would naturally prefer to buy or lease the copyright from the author, and just as naturally would lobby the government for the strongest possible copyright powers, the better to protect their investment.

There is nothing inherently exploitative about this; it’s just straightforward economics. From a business point of view, a print run is a daunting and risky project. It involves the high up-front costs of a physical medium (be it dead tree pulp, magnetic tape, vinyl platters, or pitted optical discs), plus complicated, expensive machinery to imprint the content onto the medium. There’s also the unseen investment of vetting the master copy: because a flawed master can reduce the value of the entire run, publishers and authors go to considerable trouble to generate a polished, error-free version of the work before printing. There is little room for an incremental or evolutionary process here; the work must be brought to near-perfection before the public ever sees it. If any mistakes are overlooked, they will have to be tolerated in the finished product, at least until the process is started again for the next print run. The publisher must also negotiate prices and line up distribution paths, which is not only a matter of bookkeeping, but of physical expenses, of trucks and trains and shipping containers. Finally, as if all this weren’t enough, the publisher is compelled to spend even more money on marketing and publicity, to have a better chance of at least recovering all these outlays.

When one realizes that all this must happen before the work has generated a penny of revenue, it is little wonder that publishers argue hard for copyright. The publisher’s initial investment — that is, their risk — in any individual work is greater, in economic terms, than the author’s. Authors by themselves might have no inherent desire to control copying, but publishers do. And in a world filled with publishers’ royalty-supported marketing departments, authors, of course, need publishers all the more. The concentration of distribution revenues results, inevitably, in the familiar logic of an arms race.

The arrival of the Internet fundamentally changed this equation. It has become cliché to say that the Internet is as revolutionary a development as the printing press, and it is. But it is revolutionary in a different way. The printing press may have made it possible to turn one book into a thousand books, but those books still had to travel from the press into the hands of readers. Physical books were not only the medium in which the content was consumed, they were also the medium in which it was transported to the consumer. Thus, a publisher’s total expense was proportional to the number of copies distributed. In such a situation, it is reasonable to ask that each user bear a portion of the costs of distribution. Each user is, after all, more or less responsible for her particular quantum of expense. If the book (or record) is in her hands, it must have gotten there somehow, which in turn means someone spent money to get it there. Divide those expenses by the number of copies, add in some amount for profit, and you arrive, roughly speaking, at the book’s price.

But today, the medium over which content is distributed can be unrelated to the medium in which it is ultimately consumed. The data can be sent over a wire, at essentially no cost, and the user can print up a copy at her own expense, and at whatever quality she can afford, on the other end [7]. Furthermore, it is no longer important to possess the master; in fact, the concept of the master copy itself is obsolete. To make a perfect copy of a printed work is actually quite hard, although making a corrupt or abridged copy is very easy. Meanwhile, to make a perfect copy of a digital work is trivially easy — it’s making an imperfect copy that requires extra effort.

Thus the practice of charging the same fee for each copy, regardless of how many copies there are or who made them, is now unjustifiable. The cost of producing and distributing the work is now essentially fixed, no longer proportional to the number of copies. From society’s point of view, every dollar spent beyond the amount needed (if any) to bring the work into existence in the first place is a waste, an impediment to the work’s ability to spread on its own merits.

The Internet did something the Company of Stationers never anticipated: it made their argument a testable hypothesis. Would creators still create, without centralized publishers to distribute their works? Even minimal exposure to the Internet is enough to provide the answer: of course they will. They already are. Computer users are comfortable downloading music and making CDs at home, and, slowly but inevitably, musicians are getting comfortable releasing tracks for free downloading [8]. Many short works of both fiction and non-fiction are already available online. Printing and binding entire books on demand is rarer, but only because the equipment to do it is still somewhat expensive. That equipment is getting steadily cheaper, however, and it’s only a matter of time before the copy shop down the street has it. There is no fundamental difference between music and text, from a distribution point of view. As printing and binding technology gets cheaper, authors will see more and more clearly that they have the same alternative musicians do, and the result will be the same: more and more material available without restriction, by the choice of the author.

Some might argue that authors are different, that they are more dependent on copyright than musicians. After all, a musician expects to perform, and can therefore gain indirectly by releasing recordings for free — greater exposure leads to more performances. But authors don’t perform; they reach their audience only through their works, not in person. If they now had to come up with ways to fund themselves without imposing an artificial scarcity on their works, could they do it?

Imagine the simplest scenario: you walk into the neighborhood print shop and tell the clerk the Web address of the book you want. A couple of minutes later, the clerk comes back with a freshly printed, hardbound book, straight off the Internet. He rings up the sale.

“That’ll be eight dollars. Would you like to add the one dollar author’s suggested donation?”

Do you say yes? Perhaps you do, perhaps not — but note that when museums charge a voluntary admission fee, people often pay it. The same sort of dynamic is at work in the copy shop. Most people are happy to pay a tiny extra bit on top of some larger amount, if they have their wallet out already and think it’s for a good reason. When people fail to make small, voluntary donations to a cause they like, it’s more often due to the inconvenience (writing a check, putting it in the mail, etc) than the money. But even if only half, or fewer, of all readers were to make such donations, authors would still earn more than they do under traditional royalty schemes, and furthermore would have the pleasure of finally being the readers’ ally in distribution, instead of their enemy.

This is not the only possible system, and it can easily coexist with others. Those not convinced by voluntary donations should consider another method: the Fund and Release system (also called the Threshold Pledge system [9]). This system is designed to solve the classic problem of distributed funding, which is that each contributor wants reassurance that others are also contributing, before putting in her own money. Under fund-and-release, the hopeful creator of a new work states up front how much money will be required to produce it — this is the “threshold”. An intermediary organization then collects pledges, in any amounts, from the general public. When the total amount pledged reaches the threshhold (or exceeds it by some standard percentage, to account for bookkeeping and assumption of risk), the intermediary signs a contract with the creator, and the pledges are called in. Only at this stage, when there is enough money to achieve the desired result, is anyone asked to actually pay up. The intermediary holds the money in escrow, paying the creator according to whatever schedule they negotiated. The last of the money is paid when the work is completed and made publically available, not just to the contributors, but to the entire world. If the creator doesn’t produce, the intermediary returns the money to the donors.

The fund-and-release system has some interesting properties not found in the monopolistic, copyright-based marketplace. The resultant work is available to everyone in the world, free of charge. Yet the author was also paid enough to produce the work; if she needed more, she would have asked for more and seen if the market would bear it. Those who did choose to pay paid only as much as they were comfortable with, no more. And finally, there was no risk for the contributors — if the threshold is never reached, then no one pays anything.

Not all methods will be so pleasantly high-minded, of course. A couple of years ago, the established author Fay Weldon famously accepted money from Bulgari jewelry to write a novel that featured Bulgari products prominently. She did so, titling the book “The Bulgari Connection”. The book was originally intended as a limited edition to be given away at a corporate function, but having written it, Weldon took it to a publisher for general release. Does this mean that in the future we’ll have to scrutinize all creative works for signs of hidden corporate sponsorship? Perhaps, but this is nothing new — product placement was invented in the context of traditional copyright, and has flourished there, as it probably would anywhere. Copyright is neither the cause of corporate sponsorship nor its antidote. To look to the publishing industry as a force for decommercialization would be weirdly out of touch indeed.

These are just a few examples of ways to support creative work without copyright. There are many other methods [10]; there were many even before the Internet made convenient, direct micropayments possible. Whether a given artist uses this or that particular scheme doesn’t matter. The important thing is that with little or no friction to impede the payment of tiny amounts, authors will find ways to make such payments happen on the scale they need. Those economists who are enamoured of markets as a solution to everything should be in love with the possibilities here (but, predictably, many are not, because they hate to see anything become depropertized).

To see a glimpse of the future, it may be most helpful to look not at net-savvy musicians, but at software. The flourishing Free Software movement is probably the best example we have today of a post-copyright world. Free software (some also call it “Open Source”) is the brainchild of Richard Stallman, a programmer who had the idea of releasing software under a deliberately reversed copyright. Instead of prohibiting sharing, the software’s license explicitly permits and encourages it. A number of others soon caught on to his idea, and because they were able to share and modify each other’s programs without limit, they quickly produced a large body of working code.

Some predicted that this initial success would quickly level off as the software increased in size and complexity and required centralized, hierarchical organizations to maintain. But instead of foundering, the Free Software movement has grown so quickly that even its own participants are surprised, and it shows no signs of stopping. It now produces software whose functionality rivals that available in the proprietary market. Free software is widely used by banks, corporations, and governments, as well as individual computer users. More web sites run the free Apache web server than run all other web servers combined. Free operating systems are now the fastest-growing segment of the operating system market. Although some free software authors are paid for their work (after all, their services provide a benefit to those who use the software, and some of those users are willing to pay for it), others volunteer their time. Each software project has its own reasons for existing, and each programmer their own reasons for contributing. But the cumulative effect is a direct flaunting of copyright’s entire justification: a thriving community of intellectual production now exists without enforcing copyrights, yet achieves substantially the same results as its mainstream counterpart.

According to the traditional justification of copyright, this shouldn’t be happening. The software is essentially in the public domain; its copyright serves mainly to identify the original authors, and in some cases to prevent anyone else from imposing a stricter license. The authors have given up every exclusive right except the right to be identified as the authors. They have voluntarily returned to a world before copyright law: they enforce no royalties, and have no control over the distribution and modification of their works. The software’s license gives everyone automatic permission both to use and to redistribute it. You can simply start handing out copies, there’s no need to notify anyone or ask permission. If you want to modify it, you’re free to do that too. You can even sell it, though naturally it’s difficult to charge much, since you’d be competing with others handing out the same goods at no cost. A more common model is to encourage people to download the software for free, and instead sell services such as technical support, training, and customization. These models are not fantasies, they are the basis for profitable businesses that exist right now, paying real programmers competitive salaries to work on free software. But the point is not that people are paid to do it — some are, but many more are not, and yet write it anyway. The real point is that a tremendous amount of free software is produced and maintained every year, at a rate that grows quickly even by the standards of the software industry.

If this phenomenon were isolated to software, it would be explainable as an aberration — software is different, programmers are overpaid, and so on. But it’s not just software; if you look carefully, there are signs of it happening everywhere. Musicians are starting to release their tracks online for free downloading, and the quantity of freely available writing on the Internet — starting with reference and non-fiction works, but now including fiction and poetry — long ago passed the point of measurability. Software is not fundamentally different from these other forms of information. Like poems, songs, books, and movies, it can be transmitted digitally. It can be copied in whole or in part; it can be excerpted for use in other works; it can be modified and edited; it can even be satirized.

The abandonment of copyright is farthest along in software mainly because programmers were among the first groups to have Internet access, not because of anything special about the nature of software. Gradually, creators in other areas are realizing that they too can disseminate their works without publishers or centralized distribution chains, by simply allowing the freedom to copy. And increasingly, they are choosing to do so, because they have little to lose, and because it’s the easiest way for their work to find its way to an appreciative audience. Far from being especially dependent on copyright law, creators gain the most by abandoning the copyright monopoly.

Even in their early stages, these trends raise an obvious question. If copyright is not really needed to stimulate original creation, then what purpose does it serve today? For it is quite clear that if copyright did not exist already, we wouldn’t invent it now. We just finished building ourselves a gigantic copying machine (the Internet) that doubles as a communications device, and incidentally makes it convenient to transfer small amounts of money between people. Sharing is now the most natural thing in the world. The idea that artists are somehow harmed by it is demonstrated false every day, by the thousands of new works that appear online, credited and fully acknowledged by their authors, yet free for the taking. If someone were to argue that creativity would soon dry up unless we immediately institute a system of strict controls over who can copy what, we could reasonably look on them as insane. Yet, in slightly more diplomatic language, this is essentially the argument used by the copyright lobby to press for ever stronger laws.

Creativity is not what’s at stake here, and in its more honest moments the publishing industry even tacitly admits this. Although for public relations purposes industry leaders make token declarations about the need for poor artists to earn a living, their most detailed and compelling statements are usually about the business effects of copyright. Larry Kenswil of Universal Music Group, the world’s largest record company, was quoted in the New York Times of Jan. 5th, 2003, in an article about digital copy protection schemes, saying “You’re not buying music, you’re buying a key. That’s what digital rights management does: it enables business models.”

It’s hard to imagine a more succinct statement of the industry credo. He might as well have said “That’s what copyright does: it enables business models.”

Unfortunately, not all of the propaganda put out by the industry is as straightforward and honest as Kenswil’s. The Recording Industry Association of America, for example, explains copyright this way on their web site at

You don’t need to be a lawyer to be a musician, but you do need to know one legal term — copyright. To all creative artists — poets, painters, novelists, dancers, directors, actors, musicians, singers, and songwriters — the term matters dearly.

To all artists, “copyright” is more than a term of intellectual property law that prohibits the unauthorized duplication, performance or distribution of a creative work. To them, “copyright” means the chance to hone their craft, experiment, create, and thrive. It is a vital right, and over the centuries artists have fought to preserve that right; artists such as John Milton, William Hogarth, Mark Twain, and Charles Dickens. Twain traveled to England to protect his rights, and Dickens came to America to do the same.

Recognize that? It’s a page straight out of the Stationers’ playbook — an undisguised retelling of the copyright myth, complete with references to individual authors, designed to arouse our support for struggling artists valiantly fighting for their artistic integrity. Apparently, all those artists throughout history who did just fine without copyright aren’t included in “all creative artists” as far as the RIAA is concerned. Professor Patterson’s comments, about the Stationers’ similar use of authors as a foil in front of the eighteenth century English parliament, are equally applicable today: “They [the Stationers] did so by arguments intended to elicit sympathy for the author (conveniently ignoring their role in creating the poor plight of the author that they bemoaned) and avoided sound logic and reason.” [11].

The next paragraph in the RIAA’s introduction to copyright is even worse. It’s a brief — very brief — introduction to the origins of copyright law, heavy with the cadence of historical inevitability, but rather loose with the facts:

Copyright law all started with the “The Statute of Anne,” the world’s first copyright law passed by the British Parliament in 1709. Yet the principle of protecting the rights of artists predates this. It may sound like dry history at first blush, but since there was precedent to establish and rights to protect, much time, effort, and money has been spent in legal battles over the centuries.

This breathless summary is the copyright equivalent of “Christopher Columbus sailed to America to prove the Earth was round and make friends with the Indians”. Yes, much money has indeed been spent in legal battles, but the RIAA is careful not to say who spent it, nor are any further details given about the “principle of protecting the rights of artists” that is alleged to predate these developments.

The rest of their page continues in a similar vein, with so many omissions, mischaracterizations, and outright lies that it’s hard to imagine how anyone doing even a modicum of research could have written it. It is, basically, low-grade supporting propaganda in their ongoing campaign to convince the public that copyright is as fundamental to civilization as the laws of thermodynamics.

The RIAA also indulges in one of the favorite tactics of the modern copyright lobby: equating illegal copying with the unrelated, and much more serious, offense of plagiarism. For example, Hilary Rosen, the (now former) head of the RIAA, used to speak at schools and colleges, urging the students to adopt the industry’s views about information ownership. Here is her own description of how she presents the case:

Analogies are what really work best. I ask them, “What have you done last week?” They may say they wrote a paper on this or that. So I tell them, “Oh, you wrote a paper, and you got an A? Would it bother you if somebody could just take that paper and get an A too? Would that bug you?” So this sense of personal investment does ring true with people.

Since people who duplicate CDs do not usually replace the artist’s name with their own, let’s ask the question Hilary Rosen should have asked: “Would it bother you if somebody could just show a copy of your paper around, so other people could benefit from what you wrote, and see that you got an A?” Of course, the students would have answered “No, we aren’t bothered by that at all,” which isn’t what Rosen wanted to hear.

The RIAA is extreme only in the clumsiness of their propaganda. Their message is, in essence, the same one offered by the rest of the copyright industry, which maintains a constant drumbeat of warnings that online content swapping will deprive creators of their reputations and their ability to work, despite overwhelming evidence that copyright never provided them with much of a livelihood anyway, and that they would happily continue to create without it as long as they have a way to distribute their works. The campaign might sound harmless or silly when described as I have described it here, but because they are fighting for survival, with large budgets and skilled publicity departments, the publishers have succeeded in shaping public opinion to a surprising degree. Consider this poor woman, from the International Herald Tribune of Sep. 11th, 2003, in an article about the RIAA file-sharing lawsuits:

One woman who has received a subpoena from the recording industry association said she had struggled to explain to her 13-year-old son why file-sharing was wrong.

“I said, ‘Suppose you wrote a song and a famous rock group sang it and you didn’t get paid,'” said the mother, who declined to give her name because of her legal situation. “He said: ‘I wouldn’t care. That would be awesome.’ They’re still just in that young age where money doesn’t matter.”

The mother said she had better results when she compared taking someone’s song to plagiarizing a school paper.

(One can only hope the sensible 13-year-old manages to keep his head, when so many around him are apparently losing theirs.)

The combination of a still-sympathetic public and deep pockets has unfortunately allowed the copyright industry to exercise dangerous influence at the legislative level. The result is a disturbing trend: mutually reinforcing physical and legal barriers that, while ostensibly designed to combat illegal copying, have the inevitable effect of interfering with all copying. Digital copy-protection schemes are increasingly enforced by your computer’s hardware itself, rather than by malleable and replaceable programs. And the same companies that own content often also manufacture the hardware that makes distribution possible. Have you bought a computer from Sony? What about a CD from Sony’s music division? That’s the same company, and its left hand knows what its right hand is doing. With government cooperation, this combination becomes even more powerful. In the United States we now have a law — the Digital Millennium Copyright Act — that makes it illegal to circumvent a digital protection scheme, or even to produce software that helps others circumvent a digital protection scheme. Unfortunately, since much hardware and software automatically imprints such schemes on any media it produces, the Act effectively stifles authorized copying and many other activities that would otherwise fall into the category of “fair use” under current copyright law.

It is vital to understand that these side effects are not accidents, not unexpected consequences of an otherwise well-intentioned effort to protect artists. Rather, they are an integral part of a strategy that, at bottom, has nothing to do with encouraging creativity. The purpose of this three-pronged industry effort — the publicity campaign, the legal campaign, and the hardware “protections” — is simply this: to prevent the Internet experiment from being carried out to completion. Any organization that is deeply invested in the concept of copy control cannot be pleased to see a system arise that makes copying as easy as clicking a mouse. To the extent possible, such organizations would like to see the same pay-per-copy model that we’ve been using for centuries continue, even though the fundamental physics of information have changed to make pay-per-copy obsolete.

Although the copyright lobby succeeds in getting new laws passed, and even in winning some court cases, these victories rest on a disintegrating foundation. How much longer will the public continue to believe in the copyright myth, the notion that copyright was invented to make creative work possible? The myth has been maintainable so far because it always had a tiny a grain of truth: although copyright was not inspired by authors, and was not enacted to protect them, it did enable the widespread distribution of many original works. Furthermore, there are still many publishers (generally the smaller or individually-owned ones) who behave with an admirable sense of cultural stewardship, subsidizing unprofitable but important works with money earned by stronger sellers, sometimes even losing money outright in order to print things they think worthwhile. But because they are all bound by the economics of large-scale printing, they are all ultimately dependent on copyright.

There won’t be a dramatic battle between the publishing industry and the copying public, with a climax, a denouement, and a clear winner striding out of the dust. Instead, what we will see — are already seeing — is the emergence of two parallel streams of creative work: the proprietary stream, and the free stream. Every day, more people join the free stream, of their own volition, for all sorts of reasons. Some enjoy the fact that there are no gatekeepers, no artificial barriers. A work can succeed by its merits and word of mouth alone: although there’s nothing to stop traditional marketing techniques from being used in the free stream, there’s less to subsidize them, so word of mouth and peer-review networks are taking on a greater importance there. Others enter the free stream as crossovers from the proprietary, releasing a portion of their work into the free domain as an advertisement or an experiment. Some simply realize that they have no chance of success in the proprietary world anyway, and figure they might as well release what they have to the public.

As the stream of freely available material gets bigger, its stigma will slowly vanish. It used to be that the difference between a published author and an unpublished one was that you could obtain the former’s books, but not the latter’s. Being published meant something. It had an aura of respectability; it implied that someone had judged your work and given it an institutional stamp of approval. But now the difference between published and unpublished is narrowing. Soon, being published will mean nothing more than that an editor somewhere found your work worthy of a large-scale print run, and possibly a marketing campaign. This may affect the popularity of the work, but it won’t fundamentally affect its availability; and there will be so many “unpublished” but worthwhile works, that the lack of a publishing pedigree will no longer be considered an automatic strike against an author. Although the free stream does not use traditional copyright, it does observe, and unofficially enforce, a “credit right”. Works are frequently copied and excerpted with attribution — but attempts to steal credit are usually detected speedily, and decried publicly. The same mechanisms that make copying easy make plagiarism very difficult. It’s hard to secretly use someone else’s work when a Google search can quickly locate the original. For example, teachers now routinely do Google searches on representative phrases when they suspect plagiarism in student papers.

The proprietary stream cannot survive forever, in the face of such competition. The abolition of copyright law is optional; the real force here is creators freely choosing to release their works for unrestricted copying, because it’s in their interests to do so. At some point, it will be obvious that all the interesting stuff is going on in the free stream, and people will simply cease dipping into the proprietary one. Copyright law may remain on the books formally, but it will fade away in practice, atrophied from disuse.

Or, we can sit back and allow this process to be halted, by permitting manufacturers to build in hardware “protections” that interfere with our ability to copy legitimately; by allowing the copyright lobby to capture our legislatures, to the point where we are constantly looking over our shoulders for the copyright police; and by hesitating to use the free stream to its full potential, because we’ve been taught a false story of what copyright is all about.

We can, if we choose, have a world where concepts like “out of print” or “rare book” are not only obsolete, but actually meaningless. We can live in a fertile and vibrant garden of constantly evolving works, created by people who wanted deeply to make them available, not mandated by a publisher’s market research. Schools would never be forced to stay with out-of-date textbooks because of the per-copy prices set by publishers, and your computer would always let you share songs with your friends.

One way to get there is to question the copyright myth. Copying isn’t theft, and it isn’t piracy. It’s what we did for millennia until the invention of copyright, and we can do it again, if we don’t hobble ourselves with the antiquated remnants of a censorship system from the sixteenth century.


[1] These events can be read in any history of copyright. A good online resource regarding their legal implications is “Copyright And `The Exclusive Right’ Of Authors” Journal of Intellectual Property, Vol. 1, No.1, Fall 1993, by Professor Lyman Ray Patterson, Pope Brock Professor of Law at the University of Georgia and a noted copyright scholar. His description of this earliest copyright is concise and revealing:

The event in the history of Anglo-American copyright that led to the shaping events of the seventeenth and eighteenth centuries was the Charter of the Stationers’ Company granted in 1556 by Philip and Mary …. The Charter gave the stationers the power to make “ordinances, provisions, and statutes” for the governance of “the art or mistery of [s]tationery,” as well as the power to search out illegal presses and books and things with the power of “seizing, taking, or burning the foresaid books or things, or any of them printed or to be printed contrary to the form of any statute, act, or proclamation ….”

The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition). The book-burning power thus shows the real motivation for the Charter, to secure the allegiance of the stationers as policemen of the press for the sovereign in an uncertain world.

(Note that the Company actually received its royal charter on May 4, 1557; thus one sometimes sees 1556 and other times 1557 as the date for the incorporation of the Company of Stationers.)

[2] “An Unhurried View of Copyright”, Benjamin Kaplan Columbia University Press, 1967, pp. 4-5.

[3] Patterson, in [1], goes so far as to say “The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history.”

[4] Kaplan, p. 6.

[5] Kaplan, pp. 7-9.

[6] “Five Hundred Years of Printing” pp. 218-230, S. H. Steinberg, Penguin Books, 1955, revised 1961

[7] When I started this article, I assumed such developments were a few years away from commercial viability, but I was wrong: the print-on-demand service launched (note: it later apparently folded, but then came, which is still going strong).

[8] See, for one example. (Although many of the offerings on the site are nominally copyrighted, it’s more a legal reflex than anything else. The tracks are meant to be freely downloaded, listened to, and shared — and that’s exactly what people do with them.)

[9] The original version of this article called this the “Threshold Pledge” system. However, Brandt Cannici of, who independently invented the same system, came up with the much better name “Fund and Release”, and I now try to use that term instead.

[10] For a description of one funding technique, and a survey of others, see “The Street Performer Protocol and Digital Copyrights” by John Kelsey and Bruce Schneier, at

[11] Patterson; see [1].



125 Comments on "The Surprising History of Copyright and The Promise of a Post-Copyright World"

  1. Thanks for this brilliant treat. Very illuminating and inspiring. I love it. I like the idea of uncovering this copyright myth. Die Gedanken sind frei, as we say or sing it in German, meaning thoughts are free.

    Kind regards,

  2. hi, just a quick comment to point out a typo… in the para where you mentioon fay weldon, it reads:

    Not all methods will be so pleasantly high-minded, of course. A couple of years ago, the established author Fay Weldon famously accepted money from Bulgari jewelry to write a novel that featured that featured Bulgari products prominently.

    note that “that featured” is repeated…


  3. I’ve just recommended this article on my blog, and added the site to my list of ‘principles’.

    Note that the once reached prototype stage – this enabled a member of the audience to propose a retail price and pledge to purchase the work if so priced (or lower). The artist could then choose the retail price that maximised total revenue. A far simpler version of this site has been created

    I’m currently working on a general purpose engine (free to use) that can support these sites and those that anyone else can think of:

  4. Karl,

    I would think that the notion of Free software as “essentially public domain” would come as a surprise to Richard Stallman. Without copyright, the single most important requirement in the GPL — requiring a program’s source code to be made available whenever it is copied or distributed in executable form — would be unenforceable.

    While its true that some other Free software licenses (BSD, MIT, etc.) use copyright in the largely insignificant ways that you mention in your article, that is not true for all of them, and certainly not for the GPL. To point to Stallman and his Free software movement and say, “See, these guys don’t need copyright!” is disingenuous at best.

  5. This is a copy of my post about this article from Slashdot, but I think the critical commentary is worthy of cross-posting:

    I’m replying to this post because of this statement (the rest of the parent spends its time either misinterpreting what I said in my last post ( or putting words in my mouth, and I think my original post speaks for itself). The article that it’s linked to is a very interesting one, it expands on the role of the Stationer’s Log (which is a form of copyright protection predating the Act of Queen Anne), but it has a certain tunnel vision and spin that often appears in the extremist grass-roots anti-copyright movement, and I think that it’s worth looking at it critically.

    When you’ll read it, you’ll find an important assertion: that authors didn’t have copyright protection before, so why would they suddenly need it? This is very misleading for a couple of reasons:

    1. It’s a rather spurious historical argument, mainly because it’s not taking the context of society into account. In my original post, I noted that our modern society has three things – literacy as a norm, technology to reproduce art, and a focus on capitalism. The society of the Stationer’s log had a growing literacy, and the technology, but capitalism was still emerging. Creative artists made their living not through proceeds of publication, but instead through a system of patronage where a noble patron would pay the artist a stipend to compose work in his/her honour. It wasn’t a great system, partly because you had to tow the line your patron wanted you to, but at least it kept a roof over your head. Society is not a static system, however. By the time the first proper copyright act was written in 1709, a capitalist system was emerging, and by the end of the 19th century, the patronage system was completely gone – it was now all capitalist. So, creators may not have needed a copyright system at the very beginning, but there are no wealthy patrons around today, and an author’s income is derived from royalties.

    2. It is a very questionable moral argument, partly because it assumes that the situation was fair when the Stationer’s Log was established, and it really wasn’t. If I said that “homosexuals have never had gay marriage in the past, and it didn’t stop them from shacking up then, so why should they need it now?” everybody would immediately see the injustice. The argument the article makes is very much the same. Correcting an injustice is always good.

    And there is this: “Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so.”

    This is one of the most common arguments put into play for the abolition of copyright, and it reverses the very idea of modern copyright. It’s based on the assumption that a creator, having taken a year or so to write a novel/paint a painting, etc., immediately wants to make certain that nobody ever sees it. What copyright does is allow the creator to set the terms by which the work is distributed, so that a publisher doesn’t shaft him/her, and if a third party circumvents those terms, to be able to take some reasonable action against them. It isn’t prevention – it’s creator’s rights. It’s also spin along the sames lines as “marriage is a terrible thing because it keeps you from dating other people” – basically, focusing on one negative while ignoring the context and all of the positives.

    So, when you read the linked article, please keep in mind that part of it is rhetoric, and facts are taken out of context. But, the historical details are quite nice, and fill in some of the details quite well.

    Robert B. Marks
    Author, the EverQuest Companion, Garwulf’s Corner, Diablo: Demonsbane.

  6. Thanks for the long and thoughtful comment, Robert.

    We’re certainly not trying for spin here, so let me address your points one by one:

    You say that patronage was gone by the end of the 19th century, and that “there are no wealthy patrons around today, and an author’s income is derived from royalties”. This is just not true. Some author’s livings may come from royalties, but not all. Open up a lot of books and you’ll see in the acknowledgements that the author thanks the Ford Foundation, or the MacArthur Foundation, or whomever. Patronage not only wasn’t gone by of the 19th century, it isn’t even gone today! Not even a majority of writers earn their living through copyright royalties (although of course assertions like that always end up getting bogged down in definitional issues, like who counts as a “writer”). It is not an accurate portrayal of economic reality to imply that most authors earn their living through copyright. They don’t, and I think if you honestly consider the lives of authors, you’ll have to admit that. Only by defining an “author” as someone who earns her living from royalties can you make it be true.

    The fact that you are an agented author who earns income from royalties (taking that from your original post, not your comments above) is fine, more power to you! But it is not really connected to the argument I’m making in the essay. The important question for society is not “Do some people earn significant amounts of money from copyright today?” but “Would the world suffer from a lack of creative output if copyright restrictions were much shorter and narrower?” Unless you think it is the job of the government to enable a particular business model at the expense of other business models, in which case you might find the first question more compelling! But that’s exactly what we’re arguing against here. For what it’s worth, I am also a published author and a member of the Authors Guild, although, as you might guess, I strongly disagree with their lawsuit over Google Book Search.

    Regarding your point (2), I think you have a valid criticism of the essay there, and I should add to it some material better explaining the situation in the late seventeenth and early eighteenth centuries. The essay doesn’t do a good enough job of acknowledging that part of the purpose of the Statute of Anne was to give authors more power relative to printers — that is, to give authors a real bargaining chip that they could use to see to it that their books were printed as they wanted. In this, the Statue was successful, but note that in today’s world of zero-cost distribution (which didn’t exist then, of course) there are other, non-monopolistic methods of doing the same thing: tort law, for example. The method used by the Statue of Anne was appropriate for a world in which reliable reproduction was physically difficult to achieve and in which corrupt copies were difficult to track down: granting a statutory monopoly for printing makes sense when only the original compositor can possibly make more copies reliably anyway. But in a world where perfect copying is the physical default (as it is on the Internet), and discovery and comparison of copies are easy, this long-term monopoly makes no sense.

    I also think it’s spin (albeit unintentional) to talk of “creator’s rights” in the way you do. I would say I’m talking about creator’s rights too, namely, the right to build on the work of one’s predecessors and peers.

    Here’s an example. I like to play the piano, and currently I’m accompanying a singer in a cycle of songs by Franz Schubert (“Die schöne Müllerin”). Or rather, the music is by Schubert, but the texts are by the poet Wilhelm Müller, who was still living when Schubert set the poems to music in 1823. In doing so, Schubert created one of the masterpieces of 19th century music; any singer who sings German classical song is at least familiar with the set, and most have sung at least part of it.

    What if Schubert had had to enter into rights negotiation with Müller to set those songs? Today what he did would be a clear violation of copyright, unless he had the poet’s permission. The poet might have demanded artistic veto power over the settings, which in this case could have been fatal, because another composer (working in cooperation with Müller) had already set some of them once before, and Müller might have felt some loyalty to those original settings. Of course, these concerns would only have come up in modern times; fortunately for posterity, Müller and Schubert both lived at a time when artists were free to make use of each other’s work. Schubert never asked Müller for permission, and Müller apparently never even knew of Schubert’s work, and even if he had, it would not have occurred to him that he had some kind of moral right to prevent Schubert from making new settings.

    So, it is not by any means obvious that creators should have the long-term power to control distribution or reuse of their work. Attribution? Sure, that’s a no-brainer. Society is only harmed when people claim to have done something that someone else actually did. But this isn’t about attribution. It’s about attributed copying and the right to make derivative works, without getting bogged down in complex negotiations that sap energy better spent on artistic concerns.

    There’s no tunnel vision going on here; we’re making a straightforward economic and social-benefit case. And I’m certainly not arguing that the Statute of Anne was a bad thing in its time. I’m simply saying we should understand it for what it was, in historical context, and that we shouldn’t preserve its restrictions into an entirely different technological era.

  7. guyjohnston already said exactly what I would have said. Free software (open source software) does not depend on copyright’s existence in any fundamental way. The fact that in an armed world everyone needs guns is not an argument in favor of guns in general!

    Also: not everyone would agree that the “requiring a program’s source code to be made available whenever it is copied or distributed in executable form” is the “single most important” provision in the GPL. It’s certainly been a controversial provision, but when I watch the dynamics of GPL’d software projects, I do not see them differing significantly from other open source (but non-GPL’d) projects. Do you, and if so how?

    In an essay about copyright in general, detouring into the details of one clause of the GPL would have brought no benefit to the reader. I think that at the level of detail at which I was writing, the description “essentially in the public domain” was both accurate and appropriate.

    [Update: I later wrote an essay on why free software does not really depend on copyright.]

  8. Very powerful and inspiring article. Thanks a lot!

    I recently listened to a podcast produced and made public by the Carnegie Council ( Joseph Stiglitz was on, talking on “making globalization work”. I liked one of the passages a lot and thought it might be worth sharing:

    As another example, around the same time I was in Taiwan for a conference and I had a little time to go to a bookstore. Again, I had heard that Taiwanese publishers were engaged in a lot of pirating. As I walked through the bookstore, I had a little debate in my mind: Would I be unhappier if when I got to the bookstore they had pirated my book and had stolen my property, my intellectual property; or if they hadn’t stolen my book, because if they hadn’t stolen my book, that meant that my ideas were not being disseminated, they had ignored me. By the time I got to the bookstore, I had finished the debate and I decided that I really wanted them to have stolen my book. And they had. So I actually felt very pleased.

    Academics believe in the importance of spreading ideas. Thomas Jefferson talked about it much more poetically than I can. It’s in the Jefferson Memorial. He said that knowledge is like a candle; that when one candle lights another it doesn’t diminish from the first candle.

    Taken from

  9. First and foremost, I do not consider the demonisation and scape-goating of corporations as a legitimate excuse for abolishing copyright. Life is more complicated than that. It isn’t simply a case of the downtrodden consumer/artist vs. the powerful and evil content publishers. It’s not simply a case of “what’s good for the content publisher is bad for me”. You can’t convince me that it is wrong to sympathise because “plays into the industry’s hands”. Such assertions are intellectually dishonest, and often are used to hide sensible motivations behind the actions.

    For example, claiming “copyright was designed by distributors, to subsidize distributors not creators” is as disingenuous as claiming “corporations are solely in the business of making money”, or “a human’s purpose in life is to reproduce”. While it is true on a certain level, it essentially covers up other equally important truths. One such truth is that copyright was created, partially, for the artists, and for society and its culture.

    Ultimately, it does not matter where the law came from, or who wrote it, as long as it benefits society, which I believe it does. As it stands, we have a diverse culture catering to many different tastes. Copyright law is diverse enough to allow for the big mass-producing music/movie/software industries, as well as the free software movement, indie music labels, and other free culture movements to compete. Artists have a choice of how their works are distributed, publishing corporations make money for their stockholders, and consumers can pay as much or as little as they like for intellectual property, depending on what they choose to buy/licence. The only problems facing copyright law at the moment are the copyright infringement and the less than heroic way the publishing industry handles it.

    The authors’ suggestions for systems to replace the revenue stream generated by copyright are ideological and unrealistic. As the essay said:

    When people fail to make small, voluntary donations to a cause they like, it’s more often due to the inconvenience (writing a check, putting it in the mail, etc) than the money.

    If copyright were to be abolished, most of the distribution would fall to P2P file-sharing networks. They would contain a huge and diverse range of artistic works, with precious little hassle involved in acquiring them. Why would you go anywhere else? These P2P networks are designed to be simple and to be easy. They are not designed to facilitate the transfer of money to the artist. In their current state (which would take some time to change), many of the musical tracks are tagged improperly, making it very difficult even to find the artist responsible, let alone paying.

    This system also relies on the moral discipline of the consumer, and each consumer’s individual moral code. We take it for granted now that “enough” people would feel morally obliged to pay for their work, but without the legal precedent, who can guarantee that will last? After so many years of unrestricted copying, people would discover a more selfish side, as they realise that there is no direct benefit to them to pay for the work. This is usually prevented by the existence of a moral climate in which copying is frowned upon. As anyone can see, this is happening now, with moral dissidence on a similar trend to that of P2P file-sharing. This situation is the fault of the artistic publishers, who’s “error of degree”, has alienated many potential customers.

    The “threshold pledge system” is similarly faulty. It is simply another form of donation. The same problems still apply.Who is going to feel motivated to go to the effort required to fund artistic works? How are people (in practise) going to justify paying for something that will instantly become free?

    Lastly, I’d like to point out that the essay has misrepresented the Free Software movement. Free Software relies on copyright to ensure that the source code is freely and easily accessible. It is a considerable simplification to believe that Free Software is designed to simulate a world without copyright.

    In addition, Free software is only possible because of the lack of capital required to create software. This is a significant difference to music and movies, both of which require expensive equipment. Books are easier to create, but not nearly as easy to distribute, making them also significantly different. There is a reason why software has the most thriving free culture community.

    1. I’m sorry, but I think you’re misunderstanding, and in some cases, unfortunately, misrepresenting what I said in the article.

      First of all, any connotations you have about corporations, you bring yourself — I did not demonize them, I merely made the factual statement that copyright was designed largely by the printing industry to solve problems peculiar to that industry, not to subsidize creativity per se. (Could you please point to this alleged demonization?)

      I likewise am not suggesting “replacements” for the revenue stream provided by copyright, because one of my main points is that copyright is not how most creative work is actually funded anyway. If we actually look at the economic realities of most creators’ lives, instead of repeating to ourselves the myths we’ve been told, we see a variety of funding sources, of which copyright revenue is usually not even the most prominent. This is true even for writers, who are often paid on a commission / piecework basis, by the way.

      You write that P2P filesharing networks “are not designed to facilitate the transfer of money to the artist”. Right. Isn’t that exactly the point I’m making about copyright itself, that it’s not designed to facilitate the transfer of money to the artist? I don’t mean that in some figurative sense, I mean it literally: copyright is a law, it was lobbied for and “designed” by a group of people, and the problem they were solving, while real, was not the problem of how to subsidize creative work.

      Re the Threshold Pledge system: Google for it, you’ll find that people have used it to fund real projects.

      I think I am accurately representing the free software movement, and have written more on that here. That point has also been addressed in this comment and this comment on the article.

      Regarding these assertions: “This is a significant difference to music and movies, both of which require expensive equipment. Books are easier to create, but not nearly as easy to distribute, making them also significantly different.”

      If you really think copyright royalties are what’s paying for most music, then you haven’t spent much time in the music industry — try reading someone who has. About movies, you have a point: I don’t see how the levels of funding currently needed for Hollywood blockbusters can be achieved without restrictive (in the descriptive, not the pejorative, sense) copyright laws. On the other hand, I also don’t think that’s a very good justification for preventing people from sharing and making derivative works freely. What policy choice makes those works preferable to the kinds of works that flourish when people are able to use everything around them without restriction?

      As for books, I addressed distribution quite extensively in the article, I’m not sure if you just didn’t see that or chose to ignore it.

  10. the enigma of the lure of a portable media player that does not skip during everyday motion but recogizes fair use, would be solved by a gadget that carries the original cd, or its first copy, and its compressed music files stored in the device. the gadget periodically scans for the presence of the cdrom, but the music comes from the compreseed file stored in the device. this should satisfy both the media corporation and the user of the music product, and allow him/her fair use access to it in his portable media device, even if the cdrom itself would have experienced skips, not to mention scratches and unwanted battery consumption.
    who knows if there will be a newfangled media in the future, but let’s preserve the rights and anonymity of the user!
    source code is another issue involving more players.

  11. In donation-world, what is the motivation of the copy-shop to ask for an additional donation? Or can they keep a portion of it? Do they have to say how much? How do you enforce this?

    Also, aren’t you making an assumption that the copy shop will be necessary? Is that a valid assumption? I can already make CD labels or printed CDs that are, in my opinion “prettier” and “nicer” than what generally comes from a mass press. So where is the point of enforced solicitation?

    Also, I think its likely that we will reach a point, in the fairly near future, of storage and bandwidth ubiquity that it will be trivial to make and send a copy of a full length movie without really thinking of the cost. We’re nearly there now. Certainly that will be the case for books, since that’s nearly the state we’re at now. “Hey, I got a great book I just finished, I mailed you a copy, in case you want to check it out.” “Ok, maybe I will, if I get time.”… the 3-4 MB of text of even a lengthy book (the Wizard of Oz at Gutenberg is less than half a MB)… So, that really makes the problem of enforced solicitation a bit tricky… Will my friend ever even hear about the way to send money back to the author? I guess maybe if you put it at the front. But who reads the copyright notices in the beginning of books NOW?

    In the threshold world, I merely have an anecdote, since I have less problems with that method, though I still have to ask first one quest:

    Who will pay for the first work of an author? (I know, its a bit tough for them NOW to get that.) Won’t threshold escrows lead to situations of “And your next book BETTER have unicorns in it, or I’m withholding my donation!” Its just patronage, again, really. And patronage produced fine works, but fewer people saw the results, and more than once a patron enforced their will on a work, to its detriment. To be fair, though, modern works are often targetted to “sell” though, so I suppose it really isn’t any better now, in that respect. So, the point is moot. But, patrons paid to own, at least initially. Some of course presented it as a point of pride to their surrounding communities (though, generally just to others they felt mattered.)

    But my anecdote, which is more of food for though, is that there is a certain church near me, that needs to get a new organ, and they’re soliciting donations to get one, and annoucing how much they have already collected. It really didn’t take them long to reach 95% of the amount needed to get the organ… but since, there the notice has sat, week after week, waiting for that last little bit to come in. Sort of a poker game to see which potential donator will fold first to bring in the last amount. Just something to think about.

    Also, I think, perhaps, that the fundamental difference of most software from other creative works is that its mostly often a tool, and people (and lets face it, corporations, under which a great deal of open source and even free software is written now) use their own tools.

    People don’t always, or as often, “use” their own creative works. Sure, to a degree they do, and there is always the old saw of the authors that writes for their children, etc, etc, but what would motivate them to distribute? Ego (oh, call it a “need to share with the world around them” if you must)? Perhaps, but that motivation exists now with the current system. Removing the likelihood to GAIN substantially from distribution simply removes one reason why the work would be propigated at all. Making for less distribution, in all likelihood. Yes, with the technologies here and coming, the burden OF sharing is diminished, but I still know plenty of authors, particularly for whom for whatever reasons the possibility of remuneration for publishing doesn’t really strike them, who keep whole books, chapter, plot, characters, and scene, in their heads, never having committed them to paper, because the exercise of thought in creating the work alone was enough for them… I think that in a world where its unlikely they will profit from the distribution of a work, there would be more of these virtual books. In fact, I can’t logically see how it would be any other way.

  12. A passionate article about copyright, indeed. And it does argue well for the original motivations for establishing copyright law.

    But I just can’t resist but to point to some “glaring” concerns, that I thing are presented as opinion:

    * First, even if the original motivation for establishing copyright was based on publishers’ greed, it does not mean copyright itself is evil. This seems to be referred to again and again in the article.

    * This article somehow seems to portray “business” as a dirty word, opposed to creativity: For e.g. “”That’s what copyright does: it enables business models.” is seen as something of an evil insider secret: “Unfortunately, not all of the propaganda put out by the industry is as straightforward and honest as Kenswil’s”

    * The biggest issue of course is about the issue of how to get rich from creative works. I hope the author is not against getting rich from one’s works of the mind. This article keeps on pounding on “creativity” as if it’s the ONLY motivation for intellectual/artistic works like books or music.

    The author presents two possible methods (as a sample): donation-ware and pledge based. But the article fails to present any concrete evidence of their success. This is probably the biggest practical concern. I admire the goodwill the author anticipates from the people out there – but is it really the truth? Is there any significant evidence for it? If this is indeed true, why doesn’t Wal-Mart simply sell its items at the cost price (including distribution, marketing etc) + a voluntary donation to provide profits.

    There is plenty of donation-ware software out there, and I haven’t heard of any millionaires from these yet. Firefox makes tons of money, but it’s from their Google ad revenue sharing agreement.

    The pledge based system in my opinion is pretty problematic: making a pledge before even the work is created? (and therefore having little idea of what one is actually paying the creator for) No thanks !

    Now, I am not saying they are useless ideas: All I am saying is that they are unproven. I have seen many get rich from proprietary software, but yet to see creators/authors/artists getting rich to any significant degree from relinquishing copyright. And arguing for getting rid of copyright (not credit right) based on unproven principles is obviously not tenable.

    * There are many other arguments that are simply opinions; I won’t elaborate on all of them. But in the end all I can say is that if what the author believes is true, then the system will simply auto-regulate as the article argues in the end. Now should we force it on creators by changing the copyright law? That I am not too sure about. I am myself in the process of writing a book and to be honest would feel uncomfortable if I am forced to relinquish my “rights” (open to debate of course), simply because the author feels I can make enough money from people’s benevolence.


  13. You write: “The biggest issue of course is about the issue of how to get rich from creative works.”

    Why is that the issue? Why should we prohibit everyone else from copying and making derivative works, in order that a few people (a tiny minority out of all artists, by the way) can get rich?

    If you want to get rich, go into investment banking — that’s what it’s for. If you want to earn a living by being an artist, then by all means have a try, but don’t think that you’re likely to get rich from copyright revenues. You might as well play the lottery.

    I’m not against people getting rich. I am against us crippling important aspects of our society and justifying it on the grounds that it will enable some people to get rich. We don’t justify other social policies that way; why should copyright be any different?

    -Karl Fogel

  14. Hi Karl,

    Overall, I think you’ve written an excellent, thought-provoking article. However, while I was reading, a couple of things came to mind:

    1) In describing the genesis of copyright law, leading up to the Statute of Anne, I think you unreasonably give the impression that the whole thing was lobbied for by publishers solely as a means of advancing their own self-interest by falsely advocating author’s rights, and that Parliament simply fell for the ruse and passed the law. This overlooks the significance of publishing syndicates like the Conger, which was quite upfront in demanding that Parliament grant exclusive rights to *publishers* so that they could prevent competitors from distributing works that the Conger considered it owned, having paid the author for them. (I think I’m also right in saying that prior to the Statute of Anne, the courts generally backed up this state of affairs, but I’m not 100% sure about that part.)

    2) Similarly, I think you do a disservice to Parliament by portraying it as simply going along with publishers’ tale of their (and authors’) woes, when I think it’s fairer to say that in passing the Statute of Anne they were genuinely attempting to balance the interlocking interests of authors, publishers and society in general. It might be better to note that intent, but point out that the framework being used to make that decision was not very representative of the real writing-publishing environment, given that it was laid out for them by publishers, who of course had both the vested interest and the political capital to get Parliament to see things their way from the outset.

    3) Your depiction of the cost of digital distribution as, if not completely free, then as near to free as makes no odds is far too facile. In reality, digital distribution still costs money, it’s just that the distribution costs are minuscule in comparison to the traditional costs of doing a print run, or pressing thousands of records. The essay would be much improved if this side of the argument were made more accurate and fleshed out better, because once that is established it lends greater weight to suggestions about what creators of works could do to make money, i.e. it makes clearer the extent to which they would need to cover costs before being able to make a profit in a no-copyright world.

    Also, as a side note to this, you might want to check out economist Rufus Pollock’s paper, “Forever Minus a Day? Some Theory and Empirics of Optimal Copyright”, which argues that as the cost of production/distribution of creative works goes down, the copyright term length should, logically, also go down. I think it gels nicely with a lot of what you’re saying.

    Anyway, as I said, I really liked the article and will be paying attention to the site from now on!



    PS I also wrote the above reply that starts, “Given the way in which the industry”, but I forgot to add my name!

  15. I don’t even know where to start. Maybe I’ll pull some quotes from your (very interesting) article:

    “But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.This is the secret that today’s copyright lobby never dares say aloud, for once it is admitted, the true purpose of subsequent copyright legislation becomes embarrassingly clear. “

    Who cares today what the historical record of copyright looks like? Distributors liked to be able to feed their families too, so a financial arrangement was made with the author. Win/Win.

    “Although some free software authors are paid for their work (after all, their services provide a benefit to those who use the software, and some of those users are willing to pay for it.”

    Totally hypocritical. You’re implying that books provide NO benefit to those who read them. I can’t tell you how much I benefited from Windows For Dummies. And absolutely I was willing to pay for it. Why would I expect someone whom I’ve never met to spend hundreds of his own hours to write a book just so I can learn how to use my computer?

    “If copyright is not really needed to stimulate original creation, then what purpose does it serve today? For it is quite clear that if copyright did not exist already, we wouldn’t invent it now.”

    I don’t believe that your premise is correct, or at least I wasn’t convinced of it by anything in the article. And nothing is quite clear here.

    “Apparently, all those artists throughout history who did just fine without copyright aren’t included in “all creative artists” as far as the RIAA is concerned.”

    Could you name some of them? Shakespeare? No. Stravinsky? No. The Beatles? Thomas Jefferson? Ernest Hemingway? Tolstoy? Bill Gates? No, no, no, no, no.

    “Since people who duplicate CDs do not usually replace the artist’s name with their own, let’s ask the question Hilary Rosen should have asked: “Would it bother you if somebody could just show a copy of your paper around, so other people could benefit from what you wrote, and see that you got an A?” Of course, the students would have answered “No, we aren’t bothered by that at all,” which isn’t what Rosen wanted to hear.”

    Why analogize with CDs when you are discussing a paper. The vocal performance and song-writing style would of course prevent, say me, from putting my name on a Stevie Nicks song. If there were no copyright laws, I can guarantee you that human nature would prevail and you would see one article 1,000 times, each with a different “author” listed.

    ” One woman who has received a subpoena from the recording industry association said she had struggled to explain to her 13-year-old son why file-sharing was wrong.
    “I said, ‘Suppose you wrote a song and a famous rock group sang it and you didn’t get paid,'” said the mother, who declined to give her name because of her legal situation. “He said: ‘I wouldn’t care. That would be awesome.’ They’re still just in that young age where money doesn’t matter.”
    (One can only hope the sensible 13-year-old manages to keep his head, when so many around him are apparently losing theirs.)”

    The arguments are becoming more and more naive. Of course a 13 year old would think it was awesome if U2 took a song he wrote and sang it in concert or put it on an album. He’s got no bills to pay, no mortgage, no problems! Not a financial care in the world. Ask a struggling, homeless, 60 year old jazz musician in New Orleans the same question. What do you think he would say? “Sure! Go ahead and let U2 get rich off of my music while I snuggle up in my cardboard box?”

    You’re asking for a Wikipedia of great works. Don’t like something someone else has written? Change a few words here and there and put your name on it. Then sell it because it’s the only one of it’s kind.

    But it was an interesting read anyway!

  16. Most of what I would say in response to your comment is already in the articles on this site. But a few points deserve specific rebuttal:

    You seem to be claiming that Shakespeare somehow benefited from copyright, but he died almost a century before copyright was invented. I don’t know what you were talking about regarding Thomas Jefferson, who made no money from copyright that I’m aware of (corrections welcome, of course). Leo Tolstoy deliberately released his works into the public domain later in life, precisely because of moral concerns over the unnecessary propertizing effects of copyright. In all, you may not have picked the best set of examples there :-).

    (Leaving aside the question of why Bill Gates is included in the list at all… Or is the accumulation of great wealth in itself supposed to be a justification for copyright restrictions?)

    Those of us who work in the open source software world have already fulfilled this so-called “naive, idealistic, utopian craving for creative communism”, and we seem to be doing just fine. And, as I mentioned, we don’t have plagiarism problems.

    Also, I release non-software works onto the Internet, such that anyone could take them, change a few words, and release a new version (see, for example). Yet I do not suffer from plagiarism; I don’t even worry about it. It’s been a non-issue. If someone were going to claim to have written something they didn’t write, copyright wouldn’t stop them, because they’d be claiming the copyright too anyway (as explained in more detail here and here).

    Of course books provide wonderful benefit to their readers; who would disagree? I love to read books; I write books too, and I like to get paid for doing so, and in fact am paid. I have no idea what made you think I was saying otherwise. Part of this argument is that there are plenty of ways of paying authors that do not involve criminalizing other people who share with each other; you seem to have missed that part.

    The “60 year old jazz musician in New Orleans”, living in a cardboard box while U2 gets rich off his songs, is largely a creature of your imagination. The majority of musicians do not make noticeable money from copyright. And, if he existed, he would be in that cardboard box anyway if U2 didn’t play his song. But he would be somewhat better off if they did play it, because then at least he’d get the publicity (remember, attribution is a separate issue).

    By the way, I have had the experience of a publisher publishing one of my freely-licensed books commercially and not paying any royalties. And you know what? I was happy: they were keeping it in print, and my reputation was enhanced. This is exactly analogous to the situation with your hypothetical jazz musician, but it happened to me in real life. (Except for the part about living in a cardboard box, but that was just a rhetorical device on your part: I don’t think I actually have to live in a cardboard box to get the points, do I?)

    The rest of your comments are already answered elsewhere on this site.

  17. In one of the replies above, you said:
    “About movies, you have a point: I don’t see how the levels of funding currently needed for Hollywood blockbusters can be achieved without restrictive (in the descriptive, not the pejorative, sense) copyright laws. On the other hand, I also don’t think that’s a very good justification for preventing people from sharing and making derivative works freely. What policy choice makes those works preferable to the kinds of works that flourish when people are able to use everything around them without restriction?”

    I’ve thought about this at some length. In fact, I’ve seen first hand how the non-compliance to copyright on sites like Youtube can greatly enhance the public awareness of filmmakers who would be little-known otherwise – of filmmakers whose works aren’t even SOLD on DVD (because there is a large financial risk involved in publishing unusual films, many such films are never released to the public after they have been made – or are never made in the first place).

    But here’s the thing. Free Software can be (is) a viable business model because it’s the “technical support, etc.” that the buyer pays for. Book authors can easily make money from self-publishing their books; they can make it impossible to copy their works if they wish (all they have to do is not release the complete text online, and make the book hard to scan by printing close to the centre). Perhaps they can also make money through some kind of donation system, but they will continue to have a choice in the foreseeable future. Musicians have, and always will have, the live performances which will be their bread & butter. Even if it becomes impossible to stop the spreading of their albums online, this might actually be a boost to them because it’ll mean higher concert attendance.

    But film… I don’t know. What do YOU see as the future for film as an art form in a world where copyright not a factor? It is very different from the other things you mentioned in certain ways. There are so many variables that it’s hard for me to sort them all out… here are some thoughts, anyway:

    -We are rapidly approaching the point at which there will be absolutely no information loss between a 35mm film and a digitized version of the film. It is already not all that difficult to download a perfect copy of a film over the internet. (in fact, we’re there already, but I mean that soon this technology will be cheaper and more accessible)

    -Filmmaking, even on a small scale, more often than not requires the organization of many different people and is generally not an easy thing to do well. In this, it is similar to software development.

    -Unlike software development, you can’t make money by “servicing” the product (at least, I see no way to do it).

    -Like music, there might be a way to make money through “performance”. You would have to commit to keeping every single copy of it on 35mm film for theatrical showings and not digitize it (or only digitize a “reduced quality” version of it, or only part of it, or digitize it but guard it very carefully to prevent it from spreading). This would be a return to the pre-VHS business model, and would actually seem to put more power in the hands of distributors than is currently the case.

    -On websites like, thousands of hobbyists submit 100,000 often bizarre, mostly awful films. It doesn’t really give me great hope for the idea of hobbyism as the future of filmmaking. Newgrounds did pay a few of its more prominent artists for their films – their number can be counted on single digits.

    -Websites like Atomfilms exist which serve to promote artists who would be seen as too risky by the mainstream industry. However, these websites depend on the ads before the film. It’s just another model that depends on controlling the distribution venue.

    -Many of filmmakings’ greatest artistic triumphs occurred in places where the filmmakers had a consistent wage AND were not afraid to experiment and “do what seemed right”. I talk about the subject a bit over here:
    This raises a somewhat different question – is it actually more efficient for a society to provide some base level of stable funding for filmmaking, and allow the filmmakers to decide with their colleagues what they should be making, and who should be given what budget? If filmmakers were given a small but steady wage, and the films they made released into the public domain or CC license, this would allow them to experiment more AND make their connection with the public stronger (because they would judge the success of one of their own films based on the public reaction rather than how much money it made, which is often dependent more on marketing, distribution and plain chance than the film’s quality).

    1. I think the solution for movies (and specifically: making enough money from movies to sustain the costs of making them professionally) in a post-copyright world may lie in the approach to business models applied.

      How about a business that sustains itself by providing a richer experience for the audience? Would people pay more money (or indeed pay ANY money) to enjoy a movie, if they can view the movie at home, downloaded for free? Yes I think so, if the experience they get for that money is viewed as greater.

      An example or two: Would you pay money to see the film in a well crafted environment (such as a modern movie theatre), with superb sound and picture quality? Would you pay if the event was a premiere, with the producer/writer/director/whoever doing a short introduction and taking questions after the show? Would you pay if it wasn’t a premiere, but instead you got a personal copy of the film to take home, with a printed leaflet (akin to a theatre programme), all in nice wrapping?

      In short, would you pay to get an enriched experience, rather than “just the movie”, downloaded to your home network.

      Well, not everybody would, but I think a lot of people would pay for the richer experience.

      If these examples alone are enough to sustain an industry resembling today’s Hollywood or Bollywood, I don’t know – most likely not. But I think the examples point to the solution; industries which have hitherto relied on the concept of copyrights (and their enforcement) to protect their business models in the face of a technology shift which threatens to render that model obsolete, are just prolonging the death struggle on the road to the inevitable solution: Change your business model when the old one doesn’t work, or perish.

      I think it’s that simple. Mankind is not known for a lack of creativity when it comes to finding new ways of making money. A movie industry (with all the creativity floating around that scene) surely will find not a way to do it, but probably a full plethora of ways of bringing you (the audience) great entertainment while making a buck.

  18. This message is licensed under the terms of creative communism. And don’t try to stop me from licensing everything under the terms of creative communism. Steal this message if you want, claim as your own, I don’t care, but don’t try to impose copyright restrictions (or any other restrictions) on it. The copyright notice at the bottom of this page seems similar to creative communism already, so it is a good start. I will make new computer system and other products, and it will be open-source and stuff, so that the general public is benefit instead of bad people (an example of bad people is the MAFIAA, the Music And Film Association of America). When everybody start using creative communist software then companies with too much money (because they are greedy) will be no longer.

  19. Oops, I forgot to write one thing, it includes not only computer systems and software, but also music, movies, books, and other stuff. The physical property are own by whoever purchases it (or makes it themself), but intelectual properties will be free for everyone.

  20. Thank you for the link to this page.

    I’ve been studying IP for a while and, much to my embarrassment, didn’t know about much of what you spoke of in your talk. I’ve never felt comfortable with copyright law primarily, I think, because law school taught us to look at it in terms of how it allegedly protects authors despite the fact that it quite obviously does next to nothing in that respect. (Personally, the only use I’ve ever had for copyright has been to use it to try to decrease the control which publishers have over an MS once it has been sent to them.)

    Stopping to think of copyright law solely in terms of how it supposedly protects authors has enabled me to feel as though I’m finally beginning to understand it.

    Nandita Saikia

  21. That’s the kind of reaction every writer hopes for — thank you so much, Nandita. Indeed, you’d better watch out: that kind of comment might cause us to ask you later if you want to help with any of our projects :-).

    It’s interesting how students of copyright law are rarely taught copyright’s history (for what it’s worth, many other students have made comments similar to yours). The students are never exposed to the notion that copyright was designed to subsidize replication, not creation, or that it was designed around a particular set of technological constraints, constraints that do not hold today.

    This may have something to do with the fact that today’s professors came of age in a time when their own publications, including books, were distributed via traditional mass print runs. Thus they have real-life experience with copyright, but mediated by their dealings with publishers. Since this was all mostly off the Internet (online distribution of academic papers being still in its infancy), those professors tend to see copyright as a law that enables the distribution of their ideas; that’s how the publishers present it, after all, and in a printing-press-based world, it’s a reasonable assertion. But this all probably informs how the professors teach copyright.

    Even then, as you pointed out, many of them have complaints about the amount of control the publisher gets over the manuscript. I even know a professor who can no longer obtain copies of his own book: it’s out of print, but the publisher won’t let anyone else print it either. (This may be a familiar story in academia, I don’t know.)

    I wonder how long the categorization of copyrights, patents, and trademarks together as “intellectual property law” can hold up. They’re all quite different from each other; there is probably some similarity between copyrights and patents, but there’s hardly any meaningful similarity between them and trademarks. Yet somehow these things all got lumped together as “IP”. Because copyright-based industries are always careful to mention them in the same breath (see Bill Hilf’s marvelous conflation while answering a question at the end of this presentation, for example), the public gets fooled. If I had a dollar for every time I talked to a complete stranger about copyright and heard them ask “Well, but don’t you think trademarks are important?”, I’d surely be able to fund from the proceeds.

    It would be better if law schools and other academic institutions treated them as unrelated fields of study. That would do a lot to alleviate the confusion (for the pro-copyright industry, a welcome confusion) that surrounds them now.

  22. First of all, thank you for the great article. You have made your point very well. I just wanted to make a quick comment about your statement “Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically”.

    Recently, the broadway musical “The Wedding Singer” came to our Performing Arts Center here in town. Being a fan of the movie, my wife and I bought tickets right away. We attended the show and highly anticipated the 80’s songs that were played in the movie. To our surprise, they did not play one song from the movie. In fact, they did not play any songs from the 80’s at all. What a disappointment.

    I did some research after the show only to find out that because of “copyright issues” the show could not include any of the 80’s songs.

    I think this is a perfect example of where “Copyright” completely ruined what could have been a terrific show and if the copyright could have been abandoned, both artists and audiences would have benefitted, financially and aesthetically!


    Avi W.

  23. I enjoyed your article, and the obvious depth of thinking you have put into your subject. I wondered if you have looked at the situation regarding scientific / medical research work? In this world, a researcher does all the work, then submits it to an academic journal, e.g. Nature, Lancet, New England Journal of Medicine etc. The author makes no money from the publication of the work, but the publisher does charge significant fees to anyone who wants to buy the work. Similarly if the researcher wants to read the works of his / her peers, he has to pay the publishing house to access those works.

    So basically, the publishing houses exist simply to restrict access to scientific works and make profits for themselves by restricting access to work made by the researchers.

    It seems to me that these situations are very similar to those of artists and other creative people described in your article.

  24. Recently I was discussing a relevant topic on a different forum, that of the anime industry and fansubs, and I think, or at least hope, that one of the posts I came up with there is actually of great use to this debate as a whole. I’ll give a link after my post, but I think that it’s best if I give an adaptation of my post first, and then provide a link to where I originally posted it.

    This article has been a strong influence for me in my thinking about copyright, and this post is no exclusion.

    First of all, I’ll quote the words of Zac, the executive editor of Anime News Network, because what he said was crucial to my post:-

    “You know, the more I read up on copyright law, the more I agree it needs to be changed dramatically.

    But not in the way you’re suggesting.

    Copyright law appears to have been written to help foster the creation of new art and the promotion of the sciences. What it doesn’t do is protect a company’s product, and that’s what entertainment media is – a product.

    Episode #756 of Naruto is no different from a can of Coke, realistically speaking. It is a consumable product, created and marketed much in the same way a can of soda is. Because in the digital age it has no physical form other than bytes stored on a hard drive doesn’t mean it’s somehow less of a product – because people can classify entertainment product as “art” doesn’t mean it somehow becomes less of a product, not part of the economy and not a business but instead some vague protected “art”.

    This argument isn’t quite fully formed – I guess what I’m trying to say is that while copyright law protects ideas, concepts and images, an episode of Naruto is not just a collection of ideas, concepts and images – it’s a product, created to be sold to a certain demographic. It is no more “art” than a candy bar. Copyright law seems to assume that there’s this grand artistic community that needs protection in order to foster the creation of new works for the betterment of all but doesn’t take into account the fact that entertainment is a business and these TV shows and movies are products. If we were to actually acknowledge this fact – that anime is not some grandiose “art” that deserves to be seen by as many people as possible but rather a commercial endeavor like any other business – the whole ‘it’s not theft if I copy it a zillion times and give it away for free to anyone who wants it!’ argument loses steam. Distributing Naruto episodes online illegally should be regarded as being no different from having a magic machine that xeroxes cans of Coke and standing in front of the store handing both the Coke and the machine out to anyone who shows interest.”

    Now, without further ado, the content of my post, adapted slightly, primarily to remove the core of referencing to anime specifically, since the issues were generally applicable.

    Great stuff Zac!

    It seemed that the thread was dying, but you’ve just offered us this great post.

    When you discuss the writing of copyright law, I guess you mean “current” coypright law was written with that in mind, because, as you can read in “The Promise of a Post-Copyright World”, copyright in its initial form was written as a censorship mechanism, which was also used as a monopoly for the Stationers.

    Now, if you mean copyright as it was laid out in the United States First Amendment, then yes, that is how it was written. However, is that the purpose it currently serves? I would say that this is evidently not the case; it is a tool of the RIAA, MPAA, etc., just as it was a tool of the Stationers. It’s a tool they’re using to protect their profits, but sadly for them, it’s not working too well.

    Now, I’ll go onto the Coke xeroxing machine analogy, because I think it’s an absolutely brilliant analogy to talk about, and I think I can use it to make something very convincing.

    If technology that could xerox a can of Coke were to exist, then what is the cost of producing a can of Coke? Zero. Would this also mean that Coke is worthless? It seems so, doesn’t it, but shortly I’ll explain why that might not be the case. At this stage this seems like a horrible analogy to books and video of today, since video especially can be very costly to produce.

    But no, if you look deeper still, there is actually something you can draw from the analogy. Either something that can be copied indefinetely is valueless (infinite supply => zero price), as one could argue easily from an economic perspective, or there is something else to the product that has some kind of inherent value.

    However, any value in such a product clearly cannot lie in the physical form of the product, and that is why it is essential that any digital product must, by necessity, be seen as having value of a different kind. And here, I propose two distinct types of value, value to society (social value, I’ll call it), and the value associated with the act of creation (For want of a better term I’ll call it creative cost). Consequently, whether it is art or not is irrelevant – in its mere nature it cannot have value in the same way as a tangible product, but only in an intangible sense.

    The very idea of trying to attach a standard, non-zero economic value to the product itself in the case of something that can be infinitely reproduced is clearly unsound. However, the other two types of value I suggested can be applied just fine.

    Now I’ll apply the value system I’ve just fleshed out to your Coke analogy, arguing that even if Coke costs nothing to reproduce (and hence produce, because the two things are equivalent in this case (though this is not the case for other products), it is not worthless. Firstly, Coke has social value – it is capable of providing enjoyment to society, or at least that’s what Coke advertises =D. Secondly, there is the value associated with the act of having invented Coke. Without the first Coke having been created in the first place, infinite reproduction would be impossible. In the case of Coke, the law attempts (or attempted) to recognise this value by giving Coca-Cola a patent for their product.

    As for any creative work, it has those same two types of inherent value. There is the social value, and the creative cost. One can agree to this without accepting any creative work as “art” at all; social value is benefit to society of any kind, it need not be artistic; many commercial works can still be said to be of value to society, even if that value is not artistic. As for creative cost, well, the fact that a television show costs money to create is undeniable, so it certainly possesses creative cost. In the case of a written work, it can be done by a single person merely by spending time, but, as is all too often said, “time is money”.

    So, with this in mind, I’ll return this to the issue of creative cost. It is clear that not everyone who produces something that is a digital (or digitizable) product can offer it for free, though that would be best for society. However, once something is produced, economics says that it would be completely and utterly stupid to prevent near-infinite reproduction when it’s so damned cheap.

    Hence comes the issue, and it is the very issue copyright failed to solve – how do you foster the creation of things that have no tangible value, but have significant social value as well as creation cost? Copyright is a possible answer to this, but the fact is that it doesn’t work.

    As far as I can see, there is no simple way to sort out such a question from a legislative perspective without significant violation of civil liberties. Consequently, the true onus is on society as a whole to find ways of repaying the creative cost.

    In the case of businesses, their role in this affair is that they will need to make profit from the social value of such a thing, rather than relying on the value of a physical “product”.

    In the thread I said that a number of solutions to these problems already exist, and mentioned some of them, but that is unneccessary on this site.

    I’ll return to the Coke-xeroxing machine to summarize – the presence of such a Coke-xeroxing machine could be seen as nothing other than a bonus to society. Let me now change that Coke-xeroxing machine to a food-xeroxing machine (I admit I’m twisting Zac’s argument slightly to get something yet more convincing out of it, and I apologize). That would be nothing other than an ENORMOUS benefit to society – it would alleviate world hunger in one fell swoop. The Internet should be seen in the exact same way.

    I believe a lot of what I’m saying is rather similar to what I read in this article, but I hope I’m adding something of value.

    Now a link to the original posts, though I think it’s unneccessary:-

    1. Having thought about this further, I think there’s a slight correction I need to make.

      When I use the analogy, I assert value in the form of creative cost, and then I use two different examples of such, the invention of Coke, and the creation of some kind of work. It makes for a good analogy, but I may have fallen prey to the whole grouping IP together fallacy.

      Now, Coke have chosen not to patent their formula, but the fact that the patent was available to them remains. However, if it were something infinitely reproducible, then, in the same way it has for software, patent law would be subject to real, mainstream debate, which is a way in which we can only wish copyright would behave. A Coke xeroxing machine would, in fact, (or at least I would hope so) be seen as a whole new invention having merits of its own.

      Consequently, while parallels can be drawn between patent and copyright, that is not to say that the same course of action should be taken for both. While both are about providing incentive to creators, patent is indeed wholly different; and, more crucially, the current patent system is viable, while the copyright system certainly is not.

  25. Karl,

    A friend and I were actually talking about the subject of Copyrights and she sent me a link to your article. Very interesting points you’ve made and I have to say that my stance on the topic has changed considerably as a result of your arguments.


  26. Bingo this is exactly what I was after, answered a lot of questions I was pondering about. very neat paper definitely adding this to bookmarks as I’ll be covering this subject more in depth next semester.


    Mark B

  27. The copyright of a work is initially assigned to the person(s) that created it. Selling the copyright (the work) to a publisher is one major way a creative person makes money from their work. Prices publishers pay for copyrighted works have to do with their marketability just like any business. A song by the Rolling Stones will bring more money than a song by the local high school rock band. A new book by J.K. Rowling commands a bigger rate than, say, a book by you.

    No one I know is making money off of what you call the free stream. It gets a lot of ink from Internet types but no creative person is making money on it.
    Suggested donation? the day I can buy my groceries with a suggested donation is the day I’ll allow a suggested donation for my labor. Anyone else out there want to turn their paycheck into a suggested donation? how much have you made with your paypal donate button on this site??

    I am not the RIAA, I am not a corporation. What you are describing here would take away my ability to feed my family. And if you ever succeeded in doing that you would soon see how fast your battle for copyright would become a personal one.

  28. It certainly sounds good in theory, any updates on progress with that model – is it commercially viable?

    1. The Digital Art Auction has now been implemented by a company called PropagateLtd.

      The Contingency Market will be demonstrated by a site called that lets readers pledge a penny to a blogger each time they publish a new article. I expect this to happen early 2009. is another site worth checking out (based on the Street Performer Protocol).

      As to whether these things are commercially viable, time will tell…

      1. A misunderstanding with our domain registrar has caused Propagate Ltd to move its web site from to

        Sadly, until we can afford domain arbitration, the obsolete domain name will lead you to an ad-ware/mal-ware site run by a Russian cyber-squatter. 🙁

        Jeffry R. Fisher
        President, Propagate Digital Content, Limited

  29. Great articles and comments, how can I translate it in another language? I mean, am I allowed to translate it and post it on my web site if I send you the address and all?



  30. A distinction needs to be made between different kinds of media and creativity. Written material is extremely easy to duplicate and tag your name to as compared to more ‘live’ material such as music and video.
    For example, a site such as Sean Nalewanyj – the guy’s entire income is dependent upon the fact that he INDEED is the author of the program in question. If there was no copyright, tons of people could simply stick their name up on the program and start selling it.

    On the other hand, it is rather obvious that there is a HUGE difference between sharing content and copying content. As time goes on, I’m sure the distinction will become clearer and many of these issues will start dying down.
    Good article nonetheless!

  31. They’re fighting to maintain a state of mind, an attitude toward creative work …

    You’ve got it in a nutshell, right there. That’s the crux of the issue. Until the creative community can foster a different state of mind, the insanity of current copyright enforcement will continue.
    Ami Ohayon

  32. Copyright is a legal concept, enacted by governments, giving the creator of an original work of authorship exclusive rights to it, usually for a limited time, after which the work enters the public domain. Generally, it is “the right to copy”, but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights. It is an intellectual property form (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete. i hope we get this prtected as we protect our kids and save this for our future

  33. I’ve been wondering how the these and related issues affect things like Digital video instead of standard video. For example, Rob Springer, the award winning TV producer, predicted that web video would take over and become the norm, especially in the face of ‘forced’ conversion to the Digital TV box. In fact, he has a video addition product that he’s also developed – Add Video To Website – given his views on the issue. Now, the response of such forced conversions is always to the contrary of what is indented, and it is almost exactly the same in the copyright market. By forcing people to use pre-determined channels of buying and selling (through distributors and copyright processes), one has to wonder if this helps promote the general good – which is distribution of knowledge – or if it simply helps a certain few gather more funds to oppose the next bill proposing reform to copyright laws.

  34. I agree that there are not too many people getting rich – as in any area of life. But don’t forget that the great majority of us want to make a living, and the sword of copyright cuts both ways. I am not an “artist,” my written work is purposeful and workmanlike at best, and designed to help me earn a living in another field. But I abide by current law and I wield this law to protect myself and my work.

    I have carefully crafted a website about evidence-based hypnosis. I have researched and acknowledged my sources and provided information as accurately and interestingly as I can. My website brings me clients and builds my reputation.

    However, as well as practicing my craft, I do protect my work. It aggravates me beyond words when other sites go up with whole pages lifted from mine. And no, I am not flattered by being copied. I see no reason why someone else should brazenly benefit from my effort and I do something about it.

    It is interesting to me that another writer here was flattered to see his book had been ripped off, and I am guessing that this difference in attitude comes at least in part from the difference in purpose between us.


    1. You’re talking about plagiarism, not copyright violation. Plagiarism is when people copy your work without crediting you. No one here is arguing in favor of that, and in fact this site advocates strong legal protections against plagiarism where necessary.

      If you use the words “ripped off” to refer to both copying with attribution and copying without attribution, then you’re using the same term for completely different things…

  35. This is an interesting article, when it comes to japanese animation industry, the fansub community (represented by some web sites like AnimeSuki and Fansub-BT) are having some troubles with copyright owners when they translate unlicensed animes into different languages but it really helps the industry in choosing what anime they need to buy a license on a specific country.

  36. Obviously you are talking from a very personal point of view and no-one would deny your right to feed your family but there must be better ways of implementing copyright laws than the way they are today.

    With the reach of the internet, they simply are not enforceable anyway. Anything you can get your hands on in data form (words, code, music etc) you can get for free on the net and some countries do not respect the copyright of others so what are we to do?

    Mr Gadgets

  37. Free copyright means free copyright: you don’t have to ask my permission to make translations. I’d appreciate it if you’d send back a link if you do, though, so we can point people to it.

  38. You’re confusing copyright with protection from plagiarism. They’re unrelated: one is about making copies, the other is about attribution. Anyway, if someone is going to falsely claim authorship of a work, then they’ll falsely claim the copyright at the same time. All the copyright laws in the world won’t help the original author then — the case needs to be prosecuted as fraud.

  39. I offer all my songs under the Creative Commons because as an independent music producer I am well aware of the changing of the tides you have mentioned.

    The fact is that the Internet, Peer 2 peer networks are comparable to one big radio station that is great for promoting artists (my site increases in traffic daily), but bad, bad, bad for record companies.

    So whats my business model? Same as any blog, and my music gets the word out.

  40. A century of censorship is hardly a limited amount of time. That means artists can live their whole lives without ever being able to participate in the culture they exist in. Your kids won’t be able to create art that has anything to do with the art owned by corporations during their lifetimes.

  41. You have made good article to share. I will destribute it to my friends via email.
    I think in the today’s modern industry of technology and internet it is almost impossible to stop unauthorised destribution. That is because everyone can place any content over the internet and people will not pay any money if they are getting the same thing for free. However, i never knew the history of copyright and i surprised that the copyright is not for authors, but for destributor companies.

  42. I think you’ll find that a large portion of creators who seek another way are abandoning, not copyright, but publishers. They retain their copyright, and one of the big reasons is to protect themselves from someone taking a copy commercial and then opening an expensive war against the sharers. Look carefully, for example, at the GNU General Public License (the “copyleft”) and you will see that it cannot operate without the existence of copyright *and its retention by the creator*.

    Other models are possible. There’s nothing to prevent an author offering a limited-term exclusive license to publish his work while retaining copyright, including the right to offer other licenses to others when the term of exclusivity has expired. Can that sort of agreement be used to optimize the benefit to the author? Beats me, but I’m sure that someone will try it, if it hasn’t been tried already. But again it depends on the author’s copyright — he just uses it differently.

    Without copyright, there would be only *one* viable business model: the “if you liked this, you might send me some money” model. Works for some, maybe not for others. Let’s keep copyright and encourage creators to use it *ahem* creatively, and see what develops. There’s a different axis for free culture.

  43. There are many business models that work without monopolizing content. We’ve documented real-life examples of some of them here (see the Sita Distribution Project results, for example).

    You’re writing from the perspective that this is just a matter of the author’s choice, that whatever the author chooses to do is okay, isn’t it great how the Internet gives authors so many more possibilities today, etc. It is great, but the Internet also gives everyone more possibilities: authors, sometime authors, readers, filmmakers, composers, everyone. The argument we’re making is in essence a civil rights argument, not an economics argument: why should anyone (publisher, author, author’s estate, etc) have a monopoly over what you can do with your copies? Or what I can do? Given that there are so many more ways to use copies now than there used to be, it doesn’t make sense to monopolize them.

    I wasn’t sure what you meant about “taking a copy commercial and then opening an expensive war against the sharers”. Without copyright, how would one wage war against sharers?

    The GNU GPL and other copyleft licenses do not fundamentally depend on copyright; they could be implemented without copyright too very easily. See this article excerpt for more on that.

    1. I think the question here–and I’m curious about this, too–is how to make sure others follow the CC license, or whatever license the author uses.  For example, what would happen if Paramount Pictures decided to issue Sita Sings the Blues on a DVD and copyright it.  Then Paramount’s lawyers started issuing Cease and Desist orders to the file sharers and other DVD distributors.  (This is a pretty extreme example, I know.)  How is the CC license enforced?  Who keeps somebody else from Copyrighting your work?  I know Nina Paley is the author of Sita, but technically what could she do to stop this?  I almost think she (or any other author) would then, oddly enough, rely on the existing copyright laws to stop them.  Is this correct?  Just curious.

  44. copyright is not needed to protect from fraud. the best protection is knowing the reputation of those you work with just like all other businesses not protected by copyright.

    copyright will become obsolete as more authors and artists make their works of authorship(information) freely available on the internet as an advertisement for the sale of a packaging(physical object) or service(presentation or website or concert) which embodies the information. with millions of creative works being published every single day, modern musicians or authors should fear obscurity
    far more than piracy.

    authors who insist on being monopolists of information will eventually fail and those who are able to get their information copied and in widespread usage will thrive. this is how things were before copyright existed.

    if copyright was abolished then the internet would become a vast source of information for everyone to access and to use and to benefit from as it should be in a free society. society has decided that it will not be deprived of the
    free flow of information. this is called progress and you cannot stop it. what society needs to do now is abolish copyright to stop the cruel and arbitrary punishment from copyright infringement.

  45. Hi there!

    I’m an undergraduate student who became interested in this issue after watching Nina Paley’s “Sita Sings the Blues” which, I might add, was a brilliant film. Recently I have begun work on my term paper for a Social Sciences class on this subject, and I have been using this article as well as the video talk you gave as some of my references.

    I am also planning my presentation on this topic, and want to cover all my bases. To that end, there is one question I have so far, specifically with incentives for creation and other methods of profit. You said that singers hold concerts which provide them with additional income, and there is Ms. Paley who has grants and funds. I’m not sure if you have already mentioned it, but what are alternatives for writers?


    Thanks in advance for your time, I hope it’s an easy question to answer!

  46. A great and well-reasoned article. many thanks for laying these points down so clearly.

    However, is dead and now redirects to some domain name holding company, while search engines claim that it used to be a site for “Publication racks and newspaper kiosks for sale in durable hardwood” (!)

    A current example of paper print-on-demand is

    Thanks again

        Martin Guy

  47. “Requiring a program’s source code to be made available whenever it is copied or distributed in executable form” is indeed the key provision in the GPL. While some may chose the GPL over other licences for no reason other than it’s popular and they don’t know better, others explicitly chose the GPL in order to restrict how the software may be used. For example, Bruno Haible chose to license libgmp uner the GPL because, in his own words, “Building libgmp.a was just too hard work. Other people shouldn’t get it for free.

    The GPL is actually against the stance expressed in this article. It grates to hear Stallman described as originating open source both for that reason and because software for personal computers and its source code had been freely distributed for many years before Stallman came along.

  48. Well done admin!

    Removing the comments that showed the one fatal flaw in your plight for the use of copyrighted material?, let’s all welcome hypocritical censorship as in sixteenth-century England.

    1. Do you remember what your comment said?  Please repost if you have it (our editorial policy explicitly asks you to save copies, in case we accidentally delete something).

      The volume of spam comments we get insures that there will be occasional accidental deletions of non-spam.  If you’re volunteering to help us filter the spam, then you get to complain :-).

      Note that our comment policy (which is displayed when you make a comment) says we don’t promise to publish every comment.  Failing to publish someone’s comment is not the same as censorship.  Electrons are cheap; you’re free to get your own web site.  Nonetheless, we wouldn’t have knowingly deleted a good comment.  So if you still have yours, please repost.

      1. “Do you remember what your comment said?  Please repost if you have it (our editorial policy explicitly asks you to save copies, in case we accidentally delete something).”

        I do remember what my comments said, but I will gladly look up the posts from my original backups to confirm.

        “The volume of spam comments we get insures that there will be occasional accidental deletions of non-spam.  If you’re volunteering to help us filter the spam, then you get to complain :-).”

        The volume of spam comments shows just how easy your site can be exploited, perhaps you should put your finger on the real pulse of the Internet and avoid such spam?. I will gladly volunteer to help with anything, but if you persist in deleting ‘spam’ comments from a comment poster along with responses by a resident artist (Nina Paley), just what exactly is accidental about that?

        “Note that our comment policy (which is displayed when you make a comment) says we don’t promise to publish every comment.  Failing to publish someone’s comment is not the same as censorship.”

        The comment (actually plural) was (= comments were) published. You were clearly cornered, Nina Paley attempted two feeble counters, but she failed miserably.

        “Electrons are cheap; you’re free to get your own web site.”

        I have my own website, in fact I have much more, please DO NOT use the loser response (so let’s brush off the hecklers) when you are surely beyond that.

        “Nonetheless, we wouldn’t have knowingly deleted a good comment.  So if you still have yours, please repost.”

        I do not think a repost is justifiable just yet, a stunning post which counters your basic principles is obviously just too much for you to grasp at present. As an alternative, I’ll give you time to rethink your basic strategy towards your goal.

        To Nina Paley:
        Trying to ‘cloud over’ the Bible quote with copyright is a very poor response, with your resources you should know that copyright on the Bible is in most cases restricted to ‘derivative’, my original (deleted) comments were in fact copyrighted to me as the author of a ‘derivative’.

        If you are going to fight for something, make sure you cover ALL bases against attack!, counter ALL attacks successfully and you might just win.

  49. Thank you so much!  We link to it from the translations list at the top now.

  50. Thank you very much for the free work shared in this website. I´ll pack some of your content and will sell this nice free work and make some profit. Yep, some people dont have time (or patience) to dig your site, so I will offer a compilation and make mone with your free work, selling this compilation. Thank you again!

    1. Thank YOU! Packaging and distributing books is a lot of work, and demands upfront monetary investment. Glad you’re willing to take the financial risk on behalf of our message.

  51. Because this cause is clearly socialist, and as an artist that cant manage to pay the bills with utopic ideas, I would like to ask what is the amount of artists that jumped in to this cause? I mean REAL artists, that spends lots of money and time studing his art? Any with children to grow up? Any that pay taxes?

    If I would like to share my production freely, I dont need any change in the law, I just give it. Abolition of the copyright laws only benefit copiers (i.e. parasites).

  52. It’s apparent that you have no understanding of the real music industry.  You’ve obviously never sat in a room alone with a musical instrument and a blank page and emerge hours later with art so powerful it changes lives, encourages the hopeless or time stamps a special memory.  This act of creativity takes years or even decades to perfect.  Your theory suggests that if I master quantum physics and just because I have the technology to move objects that were designed, created and manufactured by others who spent countless hours perfecting their skills, then it would be justified to share with everyone for the good of the people.  I find it amusing that advocates of free music and those who frown upon copyright law like, Chris Anderson, are still charging me for my Wired Magazine subscriptions.  Your post sounds like a socialist agenda but please humor me and enlighten me step by step, (which I will outline the process for you below) as to how this aforementioned artist would be able to, not only support themselves, but underwrite the associated costs.  

    Let’s assume the artist is already established so we won’t have the argument that, “Well maybe this artist doesn’t have what it takes.”  

    Artist writes a song that by today’s standards feels like a hit.  The artist will need to record the song and will either have to purchase a computer with recording software and learn how to engineer or go to the local recording studio, which is like the “chicken or the egg” scenario.  Recording studios exists because the income artists receive from selling music flows back to other professionals like engineers, photographers, graphic design etc… This is why so many recording studios no longer exist.  

    Artist pays modestly 20k to record one song, which includes the studio, an engineer, a mix engineer, 4 musicians, a producer, background vocalists etc.  Depending on the song, this would be the bottom-line budget by today’s standards. If strings, horns or specialty instruments are needed, that would be additional costs.  Basic strings will cost 7500.00 to 15k per session.  Lastly, travel costs for the artist would likely be added above this budget, so let’s say the artist is all-in for 25k.  

    Artist now goes on the road to promote the song.  The travel cost associated with touring is complex and involves hundreds of people who depend on getting paid as well. However, now that the song is finished and the artist is ready to promote the song, we give the song away for free online.  Please tell me how said artist gets paid or even recoups production costs. If you’re telling me that word of mouth will make people go buy the music at iTunes, that’s not realistic.  I have an artist with 60 million youtube views.  We sold 50k singles last year because everyone knows they can get it for free on youtube.  Guess who’s making the money there?  Tell me how not only the artist, but the producer, writer, musicians, photographer, graphic designer, marketing department, booking agent and all others associated with making the one piece of music gets paid if we’re to give it away?

  53. Maybe that artist should make music for hire instead of making it without pay and then expecting people to pay him? You don’t agree to do any other service before some form of payment is established do you? Fund and release.


    Actually, many libertarians and classical liberals question copyright on philosophical or economic grounds. For example, See N. Stephen Kinsella’s essay Against Intellectual Property. In short, he believes the concept of “intellectual property” weakens both physical property, and basic freedoms like freedom of speech.




  55. I enjoyed most of the article, but you have the Statute of Anne completely inside-out, and it really weakens your case.  Consider the real story:

    First off, it’s extremely disingenuous to refer to the Stationers’ law as a copyright measure.  It doesn’t resemble what we think of as copyright in any way.  True copyright began with the Statute of Anne, not the Stationers.

    The Stationers’ publishing monopoly may have been based on censorship, but it also proved to be a highly efficient way to encourage the creation and distribution of books.  Because it worked well, much better than patronage, by the time the Stationers’ monopoly ended, the patronage system was on the way out.  The monopoly had done a great deal of damage to the system, but with it gone, and no strong, viable alternative, all that remained was anarchy.  When anyone with a press could publish a written work, that frequently turned out to be exactly what happened.  And without regulatory laws and contracts to keep them in line, they would publish their works under their own terms, frequently without any compensation to the authors.

    The simple truth is that authors asked for a copyright law in order to keep the publishing houses from abusing expensive modern technology that wasn’t generally available (the printing press) to their detriment and, quite frequently, their financial ruin.  Once authors were able to harness the publishing companies, they could use the law to suppress abusive publishers and be able to maintain an income based on their work.  Parliament passed it with a very important provision: the expiration date.  (Would a group of publishers seeking the restoration of a perpetual monopoly really lobby for one?)  The idea is not to use copyright as an incentive to get authors to create works, but as an incentive to get authors to enrich the public domain; the same idea that’s been used so successfully (originally, at least,) in patents.

    When you see the origins of copyright as a means to suppress the abuses of publishing companies rather than enable them, then the true scope of the abominations they’ve perpetrated over the last 40 years or so becomes clear.  The Statute of Anne was developed for the explicit purpose of preventing wealthy publishing companies from abusing expensive modern technology to the detriment of authors.  (It even says so in the preamble.)  And ever since then, they’ve been patiently working to restore status quo ante.  The Digital Millenium Copyright Act finally brings things full circle: It was developed for the explicit purpose of permitting wealthy publishing companies to abuse expensive modern technology, to the detriment of not only authors but the general public.

    That’s the story that you need to be telling.  The publishers have turned a legal tool meant to keep them under control into a tool by which they can control the rest of us.  The DMCA turns both law and common sense inside-out.

    DRM takes the control of a computer’s functionality out of the hands of the computer’s owner, overriding it and bending it to the will of some other programmer, against the owner’s will.  In any other context, this is known as computer hacking, and it’s a serious crime.  Instead, the DMCA arbitrarily declares that this is legal, and that it is in fact a crime for a computer owner to reassert their own natural right to control of their property by disabling or bypassing the hacker’s DRM software.

    Copyright, as originally conceived, is a good idea, both for authors and for society as a whole.  The only people it harms are the publishers, and this is by design.  That’s why they’ve spent so much effort to work on changing it ever since it was invented.  We need to work to restore it, to roll back the abusive mutations that have been introduced to the law, not abolishing it and leaving another power vacuum like the one that led to the creation of copyright law in the first place.

    1. Hi, Anonymous; thanks for your critique.  (I’d love some sources for those points, if you have time to give them.)  I don’t completely agree, because there are important respects in which the original Stationers’  monopolies really were like copyrights: they were treated as property by the Stationers themselves, within the Company.  The resemblance is too strong to pass over unremarked.

      Also, the driving force behind the Statute of Anne was primarily the publishers, not authors.  It is true that some authors understandably felt abused by printers, and this shaped the statute, but there seem to have been very few authors — who were not also Stationers, that is — directly lobbying for the model in the Statute of Anne.  Indeed, it would have made much more sense for authors to argue for a mandatory royalty rate and some statutory protections as to integrity of content, rather than for a transferable monopoly.  Yet we ended up with a transferable monopoly.  Why?  Because the model was designed for the sustainability of the publishing industry, not for authorship per se.

      Thus it seems to me more accurate to say that the Statute of Anne was essentially a publisher-driven law that contained important concessions to authors and to the public domain in order to get passed.  Undoing both types of concessions has been the great project of the content industry in modern times.

      I think I actually agree with you that it was a good idea for its time.  But today, when we have a zero-marginal-cost, worldwide copying and editing machine, the “opportunity cost” of copyright is much higher — even of copyright as originally formulated by the Statute of Anne.  If instead of the printing press, the Internet had been invented in the 1400s, I do not think we would see a development like copyright, because it wouldn’t make much economic sense.  The right thing to do today is not simply to restore copyright to its former “balance”, because it was only balanced in world that is now vanished.  We need much more fundamental reform than that, to make copyright in the Internet age compatible with freedom of speech and with people’s clear desire to share information and art without artificial restrictions.

      -Karl Fogel (too lazy to log in, so just signing here)

  56. There’s an amazing book by Eckhard Höffner “Geschichte und Wesen des Urheberrechts” (ISBN-10: 3930893169). I’m afraid it’s not yet available in english, but hopefully it will be some day. Höffner claims that the rise of germany from a rather insignificant agrarian nation to an economic super power during the 19th century is mainly due to the absence of copyright in germany during that time, causing an “explosion of wisdom”. Höffner gives numerous intersting examples and comparisons to other countries of that time.
    The book is just as eye-opening as this great article by kfogel.


  57. Hi Nina

    Great article Nina! You have put into words an idea that I have been struggling with for a while now. I’d like to add a thought:

    The debate goes far beyond the various interests of consumers, creators and distributors, but really impacts on the nature of human society. This might sound like a bit of a sensationalist statement, but consider: Imagine if the first guy (Zog) to make a stone axe had some way of controlling the distribution of the idea of a stone axe. Imagine he could get royalties on every stone axe produced. While the concept of a stone axe is still fresh – and unproven – the other guys in the cave would just say “Bugger that- I’m not going to give Zog a cut of my gatherings just so that I can also make an axe. I’ll keep on breaking the nuts with my teeth, thank you very much.”

    Without the axe we don’t get to have a spade, and without a spade there is no plough. The invention of the plough wasn’t the thing that fueled the agricultural revolution – but the fact that it was easy to copy (and modify) a plough. So, no second axe gets made, the meme never propagates or mutates, society is never born (a possible exaggeration, I know, but mull it over a bit). I believe that human society formed just BECAUSE we are, by nature, copiers.

    Copyright restricts societal evolution. Publishing is the shaman of the modern age : “I speak for the gods, so you better bring me all kinds of nice juicy offerings and I’ll get the gods to make it rain”.

    Pieter Hugo

    1. Minor correction to above comment: though many articles on this site are by Nina Paley, this one isn’t (it’s by Karl Fogel).

  58. Thanks!  Yes, we’ve been hearing a lot about that book… I’d like to read it.

    -Karl Fogel

  59. Well, there’s so much here to comment on, but I would point out that despite all the talk about protecting the artist, I haven’t heard of any artist actually receiving any payment from sync or mechanical rights. The recording companies keep these. In fact, Roger McGuinn of the Byrds testified before Congress that he hadn’t received one cent of promised royalties from the Byrds’ albums despite the albums being in print continuously for over 40 years! The record company keeps telling him that the records haven’t made a profit yet, as if it would be logical to keep something in print for 40 years that hasn’t made money! So now, McGuinn releases his songs over the Internet and controls all of his rights and collects all of his money. 

    Copyrights use to be only 20 years like patents. Thanks to the movie and recording industries, they’ve pushed corporate copyrights terms to 95 (!) years and individual copyrights to 150 years (or more).  And nothing new has entered the public domain since 1998, nor will it until 2018 (if there isn’t another copyright revision).

    The whole idea of copyright wasn’t to tie up the rights so creative works would be squirreled away for a century. If a book publisher drops a book, the author can find another publisher.  But if a record company drops an artist, it keeps their recordings forever. It’s not right.  These films and recordings are our national culture.

  60. So could I treat it like this:

    1. Authors have the right to keep secret.
    2. THose who want to share the secret should comply with the authors’ terms and conditions.
    3. The terms and conditions was to be made in synergy with the law as a whole.
    4. Secrets that were made public by the authors were not secrets anymore.
    5. So the law should allow us to share whatever it is that’s publicly available for free.
    6. Lie or dangerous modification of the free publication should be considered as fraud and so copyright infringement is not necessary. 

     How about Marketability?

    1. What made us buy the things that we’ve bought?
    2. Don’t people who gave us access to utility deserve payments?
    3. So doesn’t the creators of the internet deserve our money if we had access to good music because of the internet?
    4. I haven’t paid anything to them have you?

  61. 5. So the law should allow us to share whatever it is that’s publicly available for free.

    I should’ve said “So the law should allow us to share whatever it is that’s “publicly available for free”. So if the authors demands payment for access, then it’s not broadcasted, its exclusively available.


  62. By the way, in a world without copyright restrictions, you wouldn’t have to “hope” that someday Eckhard Höffner’s book will be available in English.  Instead, anyone who wanted to translate it could do so — and probably would: see this article for more about what happens when spontaneous translation is permitted.

  63. I would like to know your thoughts on lessening the time limit on copyright, as how it used to be; for a limited time of exclusivity where the creator made a profit then it went to the public domain.

    Are you for it or against it?


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