[DMCA-Activists] Re: [DMCA_Discuss] Zittrain: Call Off the Copyright War

[William Abernathy]

Jean-Michel Smith wrote:
> On Wednesday 27 November 2002 07:57 am, Seth Johnson wrote:
>
> > Nobody writes for free
> >
> > The logic of providing incentives for creative work through
> > markets is intuitive and longstanding. As Samuel Johnson put
> > it: ''No [one] but a blockhead ever wrote, except for
> > money.''
>
>
> Samuel Johnson is the blockhead.  Reducing art to an economic commodity is a 
> disservice to artists, destructive to our cultural heritage, and should 
> frankly be insulting to anyone with a creative bone in their body.

Oh, balls. I write, both for money and for free. I like to write, but if it 
weren't for a business model that provided for some payment for my work, I'd be 
dragging phone wire for a living.

> I write for free ( https://expressivefreedom.org/node.php?id=195 ), and a 
> brief perusal of USENET and the web will find countless examples of other 
> authors (some much more talented than myself) who also write for free.
> Indeed, the most popular and widely read electronic books are Free (while 
> their commercial counterparts languish and go largely unused and unread).
>
> Why do people write for free?  Because creativity is a pleasurable, enjoyable
> process, and sharing it with others (hearing their feedback, knowing that
> others enjoyed it) is a pleasurable process.

As a writer who is sympathetic to the cause of free software and fair use, the 
simplicity of my allies' understanding of writing never ceases to amaze me. 
There is a lot more to writing than late-night coding, Project Gutenberg, and 
bad sci-fi. It's work. I used to write for newspapers. In order to get a 
newspaper article onto the page, I needed to make long distance phone calls and 
burn gasoline in order to interview witnesses and sources, and I had to be able 
to head down to County Records during regular business hours, during which time 
I could not hold down another day job. To do these things required that I got 
paid, and no matter how much I loved my work, there was no way I could do it 
without either being independently wealthy or receiving some consideration for 
my services.

<snip>

> Indeed, the logic of providing incentives for creative work through markets is 
> not intuitive, but a free market is not what a government entitlement 
> monopoly represents or creates.  Creating "incentives" through government 
> entitlements such as copyrights (and patents, though that addresses a 
> different form of creativity) is both counterintuitive to economists, and 
> demonstrably problematic in numerous ways (as evidenced by the dramatic 
> decrease in published materials when copyrights were first created, as 
> evidenced by the plethora of derivative material...fan fiction and the 
> like... that is banned under the current system, as evidenced by the 
> ineffecient markets they have created in which talented artists are locked 
> out of markets by media cartels that enjoy powerful vertical monopolies over 
> their products, as evidenced perhaps most stunningly by the byzantine 
> copyright laws themselves, that bear a far greater resemblence to the planned 
> economies of the former eastern block than anything remotely resembling a 
> free market, and so on).

Look, I agree. Copyright and patent laws are sucky legal albatrosses. Do you 
propose a better alternative? This is the problem. I interviewed record company 
executives in 1994 who were way clueful about what was coming down the pike. 
Many very smart people have thought long and hard about this problem, and none 
of them has yet figured out how to make A) the legal fiction of intellectual 
property function in a world of global, high-speed internetworking, and B) 
creators work for free.

> Elevating one incentive above all others (and very arguably one of the less 
> important and less potent incentives for creating art to boot), and defining 
> an entire regime of law that assumes that to be the only incentive, and 
> worse, favors publishers, middlemen, and IP lawyers over the artists 
> themselves, is only "intuitive" because it is the system we've had imposed 
> upon us from birth and been told by every media outlet there is, multiple 
> times every day, not to question.
>
> There are other ways to provide artists with economic benefits for producing 
> art that do not require the granting of government enforced monopolies, and 
> while many such approaches may themselves be government entitlements of one 
> sort or another (tax breaks, etc.) at least, unlike entitlement monopolies, 
> they are neither antithetical to free markets, nor to the collaborative 
> creative process that lies at the foundation of virtually every project.

So your whole alternative to the legal edifice of copyright comes down to airily 
waving your hands at "government entitlements of one sort or another (tax 
breaks, etc.)?" Dude. You're punting. For starters, a tax break doesn't pay the 
rent, and only helps if I have some other source of income. And can you imagine 
the run on berets and striped shirts as hordes of bad artists descended on 
government office buildings in search of entitlements? I'm certain there are 
civil servants with a fine aesthetic eye and all, but I have a hunch that what 
would evolve is a system of schlock for dollars with the Ministry of Art as 
Patron in Chief. Putting this system to work in journalism would make for a 
robust Fourth Estate, as well, starting with daring exposees of the government 
journalist subsidy program and moving right on up to the senators and 
congressmen who vote for its funding. The copyright system does have one 
characteristic that no system of third-party patronage will ever have, which is 
that it gives the people what they want, good, bad, or indifferent, and rewards 
creators for the popularity or utility of their work. While it's easy to point 
out the deficiencies and timidity of the corporate middlemen in the creative 
industries, they ultimately play to the same master, the public. For all of 
Hollywood's and New York's flaws (and they are legion), I trust the devils we 
know far more than I am willing to entrust our aesthetic heritage to the Medicis 
on the Potomac.

The Zittrain article tries to strike a balance between the two extremes of 
having ASCAP barging into your shower for unlawfully humming a copyrighted tune 
and having no copyright/compensation scheme whatsoever. I believe Lessig takes 
this line as well. I agree with the sentiment, but am concerned that the 
fundamental tension between instant, cheap, global telecommunication and the 
restrictive monopoly publishing system may, ultimately, not be soluble. Until 
that crisis point is reached, however (and, I'm convinced it's a lot farther 
away than the RIAA/MPAA would have us believe), we must advocate, zealously, the 
side of freedom. We should not buy the corporate line that dead people need 
creative incentives, nor should we roll over and play dead when the copyright 
industries try to overturn the Betamax case or work in any of their hundreds of 
little ways to whittle away our freedoms in favor of their profits. But we 
should be ever mindful that the other side does have a point, one that cannot be 
easily dismissed by claiming that "true creativity is its own reward."

But enough of this. I have to go write for money.

--William Abernathy