22 September 2006


Cory Doctorow criticizes the copyright system almost constantly. His latest thoughts appear at Locus Online. The copyright system does have significant problems. For example, the term of copyright is too long (a flat fifty years is probably about right), the work-for-hire doctrine undermines the very concept of author's copyright, and so on. People can disagree about this sort of thing. People should disagree about this sort of thing, because that's the best way to find problems and fix them.

The real problem, though, comes when one leaps from "the copyright system has significant problems" to "we must abolish copyright." This is Olympic-caliber conclusion-jumping. To only slightly paraphrase Winston Churchill, copyright is the worst way to "encourage Progress in the useful Arts"—except for all the others. Consider the alternatives:

  • Direct government support for artists leads to government censorship and constant fighting over who is an "artist." Just ask Boris Pasternak, or Dmitri Shostakovich, or Natalia Gorbanevskaya, why this is a bad thing.1
  • Nongovernment patronage systems just shift the identity of the censors. The work-for-hire system (particularly the US version) provides an unfortunate window into this system; so does the second half of the seventeenth century in Europe.
  • Last, and probably least plausible, there is the utopian, Bellamyesque2 system: Everybody who wants to create art has enough leisure time to do so, and has so much other economic support (and leisure time) that creating art does not result in starvation for the artists.

At least in human history, that's it. There might be another possibility out there, but I haven't seen it or heard of it.

The key point that Cory makes—and it is one that really attacks the economics of distribution of copyrighted works, not copyright itself—is that "Apple has figured out how to compete well enough by offering a better service and a better experience to realize a good business" in competition with "free" P2P networks.3 In that sense, he is absolutely right. Historically, the only way that companies have ever successfully fought "piracy" is to provide distinct added value at a very low premium over the market price of the pirated goods. Remember all of those Korean, Taiwanese, and Chinese knockoffs of designer clothing in the late 1980s? Several high-end brands (and their corporate parents) failed by not changing either their quality or their pricing policies. The parallel between the dreck put out by media conglomerates—in all media forms—and the pricing for that dreck is striking.

The true substance of what Cory is complaining about—with some justification—comes from the interaction of copyright with other parts of the legal-economic system. In no particular order, these include antitrust (and selective enforcement), distribution inefficiencies, cultural imperialism and arrogance,4 informational inequality in contracting, censorship by government and other power centers, economies of scale (and occasional diseconomies of scale), inertia from sunk costs, and securities reporting requirements.5 None of that, though, says that the copyright system is broken; it says only that it needs to adjust and evolve, not become extinct.

  1. If you don't know who all three of these individuals are—and can't infer why I chose each of them as an example—you really don't understand enough about either government censorship or its costs to argue that this is an acceptable alternative for the entire system.
  2. Cf. Edward Bellamy, Looking Backward (1888).
  3. They're not truly costless; it's just that the costs are buried in other fees gladly paid by users.
  4. Yes, I mean you, French Dictionary Police.
  5. Set aside for the moment the systemic biases toward short-term results, "profit" at the expense of "asset growth," and presumption that the securities of X Corp. bear the same relationship to those of Y Inc. as do their respective financial statuses. The publishing industry operates on a semiannual basis: It pays its suppliers (authors) every six months (when it pays them at all), typically in February/March and August/September. Why, then, should the publishing industry be reporting meaningless quarterly results half the time?