August 16, 2004  ·  Tim Wu

If it is true, first, that widespread piracy at some point diminishes the incentives for industry to invest in new works;

And if it is true, second, that piracy is limited to a demographic, say, 15-25 year-olds (perhaps because people older than that are lazy or value their time more);

Won’t the eventual response of industry be to simply begin investing in films like “On Golden Pond,” and music like “Air Supply, Greatest Hits part 6?”

In other words, doesn’t piracy carry its own punishment? (And conversely, doesn’t paying brings its own rewards?) That’s how the rest of the market works — products follow willingness to pay. And if this is right, what are the arguments for government supplementing the punishment?

  • Anonymous

    The conclusion incorrectly assumes that the new works themselves are the only end result. Although piracy may be limited primarily to a certain demographic, this same demographic also has a large amount of disposable income that they are more than willing to spend. Maybe CDs don’t sell as well anymore, but pop stars launch sneaker lines and fragrances, rappers promote their own brands of vodka and custom cars, and everybody is an actor… In short, the music helps open worlds of product placement and advertising designed to tap specifically into the deep pockets of that 15-25 crowd. No one is going to stop selling to them, pirates or not. Piracy may carry its own punishment, but celebrity is always its own reward.

    Air Supply, Part 6? A frightening graphic example.

  • Rolo Timassie

    First, there is some evidence that the market for CDs is being skewed in exactly the way you suggest. See Chris Nelson, At Sea With MP3′s, Boomers Buoy Struggling Record Industry, N.Y. Times (Nov. 2, 2003).

    However, the rest of your argument is weak. It is false that “That’s how the rest of the market works.” Property law does not protect those groceries less that are more likely to be stolen — condoms and candy bars, for example. All items receive the same protection, because the grocer has the same right to be reimbursed for each. Similarly, the Copyright Act is designed to incentivize creativity across the board, that appeals to any market segment that will pay for it, not just to those segments that lack substantial numbers of infringers. Substantial amounts have already been invested in producing such content. Abolishing the Copyright Act — or at least the infringement remedies of Chapter 5 (which appears to be your suggestion) — would eliminate any incentive on even law-abiding communities to pay for content. Finally, suppose I am an artist who produces content that appeals to the 15-to-25 set. Why shouldn’t the Copyright Act incentivize my creative expression equally with other artists’?

  • http://www.elricindustries.com ross housewright

    Ah yes, but ‘us kids’ are presumably the ones buying/pirating the truly massive sellers – Britney Spears, etc (um, not me, I mean, just in general :P )… Their business model relies on mega-hits, not on consistently good sales, or else they would be working more on niche markets, etc… :/

  • http://richpizor.livejournal.com rich

    The note about megahits vs consistently good sales is a salient one. The record industry line has always been that it’s necessary to have and promote mega-artists so that more obscure artsts that aren’t profitable can be covered. Perhaps if the record industry didn’t pad their own expenses in the recording and promoting process, less popular acts wouldn’t need to sell 20 million records to break even? And really, how can anyone reasonably expect Angelfish (for example) to go gold when all the available airtime is going toward repeating the same 20 singles from the same 20 megahit bands that prop up the rest of the industry?

    It seems to me that the record industry is a victim of its own business model. They bet the farm on megahits, and now technology makes it unnecessary to buy a megahit to hear it – if anything, you’re more likely to find a megahit than an Angelfish on the P2P networks, never mind radio as defined by Clear Channel.

    It’s easy to see why the megahit model is preferred – it gives you more control over the megahit artists because if they don’t play ball they’re reduced to obscurity and poverty, and it gives you more control over everyone else because no one will ever hear them or buy their record so they’re dependant on your handouts. But since when did it become the policy of America to codify business models into federal law?

  • Ross

    What about ageing? as the 15-25 year-old market segment ages, they presumably will stop pirating, and start purchasing legitimately. By this line of reasoning, the piracy age window remains constant, while the population ages.

    Would this indicate a surge in Backstreet Boys sales in 5 years?

  • raoul

    �On Piracy. If it is true, first, that widespread piracy at some point diminishes the incentives for industry to invest in new works�

    False. First and foremost, filesharing is not piracy. �Piracy� is a legal term of art that concerns criminal activity on the high seas. Second, there is no reason for �industry� to invest anything. Art flourished before corporate investment and it will flourish without it. Third, art that is created pursuant to an incentive to generate royalties is largely going to be inferior. Art, by its very definition involves risk, whereas, �industry� only wants to invest in minimal risk enterprises. �Industry� investment produces junk.

    Furthermore, copyright as it was originally envisioned was not created to provide incentives for investment, or even creation, but rather to provide an incentive to distribute works.

  • Dave Ethington

    I think that what you describe is exactly how is should work. Only what people are willing to pay for should survive as a product. I think the biggest unsubstatiated statement from the music industry is without strict enforcement of copyright everyone will stop creating. Let’s put that to the test.

  • http://www.xanga.com/publicdomain WJM

    Similarly, the Copyright Act is designed to incentivize creativity across the board

    Is it?

    Why is it, then that completely mechanical and non-creative “works” can be entitled to copyright protection?

    Why are “works” that are created out of other-than-creative impulses entitled to copyright protection?

    Why does that protection extend for so long after the lifetime of a creator? If you make the term ten billion years, dead authors can’t be induced to create more.

  • Anonymous

    hmmm…

  • Rolo Timassie

    WJM: 1) I have no idea what you mean by “mechanical and non-creative ‘works.’” If it’s non-creative, it’s non-copyrightable. See, e.g., Feist. 2) Just because the purpose of copyright law is to induce the creation of new works does not mean that every work produced has as a necessary cause the rewards promised by copyright law. Some people return wallets without a reward, but if you offer a reward, you’re more likely to get your wallet back. 3) The length of the term for copyright affects the value of the copyrighted work for the author, and if you sell the copyrights, that term is taken into account in calculating the value. The longer the term, the higher the value. Term length is thus directly related to the amount of reward necessary to create the optimal number and quality of works.

  • http://www.livejournal.com/users/roses_rejoice roses_rejoice

    I would first state that I agree with the statements previously made that (a) product placement concerns make it unlikely that a demographic with disposable income will be completely shut out and also that (b) despite the product placement, the CD market is still being somewhat skewed in the manner suggested. however, your overall argument is weak because the copyright law did not really evolve as an industry investment vehicle. it was designed to protect the rights of a particular author or artist selling to a more limited market. this is very different from patent law which evolved along lines specifically to promote investment and invention.
    the copyright law’s original premise has been malformed by cross-marketing schemes and by the application of copyright law to media such as software that it wasn’t really designed to cover.
    setting that aside, an argument for government imposing additional punishment for piracy might be the fact that government is in the best position to control dissemination to demographic arenas such as foreign markets that cannot simply be controlled or cut out by the marketeer.

  • Tim Wu

    From Tim Wu:

    The point of the question is to try and get at what copyright is trying to do. Does it really cares about the type of works created? Does it want something other than Air Supply? If so (as some of the comments suggest) there are clearer ways the system could be changed to reflect that — for example, simply funding desirable forms of music, the way government funds desirable science through the NIH.

    Conversely, if government doesn’t want to pick and choose what music comes out of the CR system, then why, when a demographic — a group — decides to hurt itself by refusing to pay for music, should the government really step in and say, you don’t know what’s good for you? That’s the real question.

    Finally, in response to Rolo. “Property law does not protect those groceries less that are more likely to be stolen.” Actually, in practice, property law over time give less protection to property rights that are too expensive to enforce. For example, speaking roughly, it was once assumed that real property rights reached “to the heavens.” Yet in the age of the airplane and helicopter it became obvious that such rights were unenforceable, and eventually property law changed to reflect that fact. The evolution of property rights in the face of enforcement costs is a topic of great importance to anyone interested in copyright today.

  • http://thomashawk.com Thomas Hawk

    The genie is out of the bottle, the horse has left the barn, the toothpaste is out of the tube. It’s too late. Our views on copyright and privacy are almost irrelevant at this point and largely academic. It’s interesting to discuss the impact of all of this but what we’ve learned is that you can’t contain sound and light waves — at least from a technological perspective.

    The RIAA is fighting a futile battle to slow down what has already been done and cannot be undone. It’s pounding little pop ups on the children’s toy with it’s hammer only to have another one pop up someplace else.

    The only model that will work in this environment is the honor system like the one at my office where if I want that 2 pack chocolate chip cookie I drop my $.50 into the little box sitting next to it. Just as parking operators factor in a certain amount of graft and theft by employees in their business models, the entertainment industry must do the same. Somehow I really don’t think that the end result will be more Air Supply though.

    I wrote an article entitled: “Nine Things the RIAA, MPAA, Apple, Walmart.com, et. al. Do Not Want You to Know… or How to Build a Large Digital Media Library on the Cheap” at my blog at

    http://thomashawk.com/2004/08/nine-things-riaa-mpaa-apple-walmartcom_12.html

    At this point the only thing for the RIAA and record companies to do is to embrace the technology, begin working with it in a free way and recognize that their industry is the new honor system of the office snack bar. To sully their reputation and create animosity and hatred does them no good and ultimately only harms the artists they claim to represent.

  • Rolo Timassie

    �Property law does not protect those groceries less that are more likely to be stolen.� Actually, in practice, property law over time give less protection to property rights that are too expensive to enforce. For example, speaking roughly, it was once assumed that real property rights reached �to the heavens.� Yet in the age of the airplane and helicopter it became obvious that such rights were unenforceable, and eventually property law changed to reflect that fact.

    I don’t think this is an analogous situation, but even if it is, it doesn’t explain why property law should not be adapted to give less, or even no, protection to particular items that are frequently stolen: condoms, laptops, bicycles, etc. Since the community of “laptop users” has such little respect for property rights, why should government protect laptops? The market will adjust, fewer laptops will be sold, and theft will be its own punishment. Right?

    The air rights scenario is different because (a) it involved an evolution of the common law — but we’re not talking about scenes a faire or the merger doctrine here, but a statutory right (which is why I assumed you were calling for repeal of Chapter 5 — are you?); and (b) the air rights cases modified previous declarations of the extent of real property rights that encompassed areas of dubious benefit to the rightsholders, but they do not stand for the proposition that real property rights are unenforceable precisely to the extent violated, which appears to be your suggestion above. Unlike “air rights,” the reproduction and distribution rights are not ill-thought-out extensions of copyright that have never previously been applied, they’re the very lifeblood of it, and have been since copyright’s inception. Denying enforcement of them to the extent violated (which, practically speaking, means any enforcement at all) would strip copyright of all meaning.

  • http://www.xanga.com/publicdomain WJM

    I have no idea what you mean by �mechanical and non-creative �works.��

    Copyright has been asserted in webcam, weathercam, security camera images, microform images of public domain works, etc., etc. Mechanical. Non-creative. Copyright subsists in record pressings and broadcast signals. Mechanical. Non-creative.

    If it�s non-creative, it�s non-copyrightable. See, e.g., Feist.

    Tell that to the copyright vultures who like to pretend like Feist never happened.

    Just because the purpose of copyright law is to induce the creation of new works does not mean that every work produced has as a necessary cause the rewards promised by copyright law.

    I don’t think the purpose, or the effect, of CR law is, was, will, or should be, in toto, to “induce creation”. Creation existed before copyright, and it exists after copyright expires — if it does. Copyright, if you haven’t noticed, post-dates human creativity. Creativity created copyright, NOT the other way around. Copyright was invented to protect pre-existing interests, and copyright serves to further reward the already economically-successful. Which is fine, in my books… up to a limit. That limit is substantially less than forever.

    But if no one is buying your book on the primary market a year after you publish it — which is the case about 2/3 of the time — and no one is buying your book on the primary market 50 years after you publish it — which is the case somewhere in excess of 99 percent of the time — then a BILLION years of copyright is not going to result in you getting an additional dime you didn’t already realize from the sale of your work. It is certainly not going to do so during your lifetime, which is always 3) The length of the term for copyright affects the value of the copyrighted work for the author,

    Evidence?

    How can the author adduce additional value from additional term, if the author is DEAD?

    I’ve been studying publishing stats from throughout the 20th century, in the Canadian context anyway. Do you know what impact Canada’s adoption of the Berne term, going from fixed-28 to life+50 had?

    None.

    It had no impact on the number of works being produced. It had no impact on the length of time those works remained in print, EXCEPT that it delayed the onset of follow-on editions that can only be produced legally by third parties once the copyright expires.

    and if you sell the copyrights, that term is taken into account in calculating the value. The longer the term, the higher the value.

    Evidence? I haven’t seen any. The publishing stats, at least in this country, simply don’t bear it out. If the term was that big a cash cow, or even a middling-sized cash cow, (a) there would have been a significant trend in the number of works published to begin with, and (b) a significant trend in the length of time those works are being used economically, within the statutory term of copyright, by being kept in print. That simply hasn’t happened.

    Term length is thus directly related to the amount of reward necessary to create the optimal number and quality of works.

    Evidence? It’s a nice doctrine, bordering on religious orthodoxy, often spouted before legislative committees by the oh-won’t-someone-think-of-the-creators crowd… but it is NOT theory. It’s belief, not science.

    If copyright=good and morecopyright=better, then there should be observable and measurable differences in the artistic output of nations, and the revenues accruing therefrom to the authors, according to the term of copyright in force in the various nations under their domestic laws.

    Show the money to me!

    Evidence, please.

    Evidence.

  • WJM

    It is certainly not going to do so during your lifetime, which is always

    I used a symbol here which the software took for an opening HTML code. I meant to write:

    It is certainly not going to do so during your lifetime, which is always less than one billion years. Indeed, it’s always less than the default term of copyright (life+X). You can’t outrun your own death, and you can’t outrun your copyright.

  • Rolo Timassie

    Re: mechanical copyrights, you seem to be including copies of copyrighted works as “mechanical works.” But of course any method of creating or distributing a copy (e.g. pressing records, broadcasting a program) is going to be mechanical in some respect. As for other works, sure, anyone can send a cease & desist letter, but cite the case where copyright in some sort of author-less, mechanical work has been upheld.

    Re: term, unless I’m missing something, this is really simple. If a copyright of term t has a present value of y dollars, due to the royalties the copyright owner can expect to receive over the life of the work, then a copyright of term t+1 is equal to some value greater than y, by an additional amount representing the present value of the royalties received in year t+1. What people like Prof. Lessig argue is that that value, averaged out over the sum of all works ever created, is extraordinarily small; but even they don’t claim it’s nonexistent. Where’s your evidence that no one has ever earned royalties past 75 years of copyright (for a work for hire, or past 70 years after the death of the author for other works)? Evidence. Evidence. Evidence. Evidence.

    Also, an author can’t receive royalties after death, but an author’s estate can. Alternatively, the author can sell his or her work now for the present value of he royalties expected over the entire term, which as I just explained, increases in conjunction with the length of the term, just like any investment.

  • David Ethington

    it doesn�t explain why property law should not be adapted to give less, or even no, protection to particular items that are frequently stolen: condoms, laptops, bicycles, etc.

    Any attemps to compare IP with physical property will fail. It is not the same. It cannot be made the same. As soon as you can “steal” an exact replica of a laptop or a bicycle and leave the original behind, then you can freely make the comparison. Comparing physical property to so-called intectual property is a strawman argument, and completely avoids the issue of how you can regulate and protect a near unlimited resource.

  • raoul

    “2. The unauthorized use or reproduction of copyrighted or patented material: software piracy.”

    How far back does that definition go? Not very. Another example of the multinational media conglomerates war of attrition on the English language. A very similar strategy was used by Lenin at the communist party congress of 1917 when he negotiated the adoption of the term �Bolshevik� (majority) to identify his party, even though they were actually the minority. Lying to the public and changing the meaning of words is a very powerful weapon. One can go along with this butchering of our language if they want, but I will have no part of it and I will continually point this out.

    United States Code
    Title 18. Crimes and Criminal Procedure
    Part I. Crimes
    Chapter 81. Piracy and Privateering
    � 1651. Piracy under law of nations

    Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

    Robbery or forcible depredation on the sea animo furandi was piracy by the law of nations and by Act of Congress. U.S. v. Smith, U.S.Va.1820, 18 U.S. 153, 5 L.Ed. 57, 5 Wheat. 153. Criminal Law 45.50

    The crime of piracy, as defined by the law of nations and the Acts of Congress, consisted of robbery or forcible depredation upon the sea. U.S. v. Chapels, C.C.Va.1819, 25 F.Cas. 399, No. 14782. Criminal Law 45.50

  • http://www.xanga.com/publicdomain WJM

    Re: mechanical copyrights, you seem to be including copies of copyrighted works as �mechanical works.� But of course any method of creating or distributing a copy (e.g. pressing records, broadcasting a program) is going to be mechanical in some respect.

    Absolutely. But if, arguendo, copyright=inducing creativity, why should these mechanical, non-creative processes and their products, have an independent copyright protection, independent of the underlying copyrightable work being reproduced?

    If I’m going to be sued for copyright infringement, let it be for infringing a work, not for infringing atoms. The two are not the same thing.

    As for other works, sure, anyone can send a cease & desist letter, but cite the case where copyright in some sort of author-less, mechanical work has been upheld.

    Whether there’s been a decided case or not is almost irrelevant, if putative owners can get away with cease-and-desist barrattry agains putative infringers of putative works that are purely mechanical in nature.

    I’d have to go back to my six-year-old research on this subject, wherever I filed it, to quote chapternumberverse for you.

    Re: term, unless I�m missing something, this is really simple. If a copyright of term t has a present value of y dollars, due to the royalties the copyright owner can expect to receive over the life of the work, then a copyright of term t+1 is equal to some value greater than y, by an additional amount representing the present value of the royalties received in year t+1.

    That’s at best a hypothesis. In practice, it’s dogma.

    Where’s the proof that this is actually the case? Where’s the diachronous comparison of pre/post-extension jurisdictions, or synchronous comparison among several jurisdictions with varying terms?

    EVIDENCE, PLEASE?

    Where�s your evidence that no one has ever earned royalties past 75 years of copyright (for a work for hire, or past 70 years after the death of the author for other works)?

    I don’t have to disprove that; one would automatically expect, as a matter of sense, that a work, if still commerically viable, and still under copyright, after that elapse of time, will still be generating rent for the copyright owner.

    But that is NOT the same question as “does extending the term of copyright produce a measurable and statistically significant increase in the rent accruing to THE AUTHOR DURING HIS OR HER LIFETIME?”

    Evidence. Evidence. Evidence. Evidence.

    Indeed. I have yet to see ANY evidence that tends towards answering my second question in the affirmative.

    Also, an author can�t receive royalties after death, but an author�s estate can.

    Yes, they (the estate) can.

    How is that relevant?

    It does nothing to induce creativity on the part of the author (who’s dead, remember.) It also does something to “dis-induce” creativity on the part of the owner/heir, who do not have to go out and work/create for a living as long as someone else’s labour, from decades ago, is learning that living for them.

    Alternatively, the author can sell his or her work now for the present value of he royalties expected over the entire term, which as I just explained, increases in conjunction with the length of the term, just like any investment.

    Yes, they can.

    BUT WHAT EVIDENCE IS THERE THAT THIS IS HAPPENING?

    What evidence is there that authors are getting paid better, adjusted for inflation and other factors, now, than they were before term extension; and that the better pay, if it exists, is due to the extended term of posthumous copyright?

    And, moving on to a second, more important point, IF this IS happening, what evidence is there that there is a NET INCREASE in cultural creativity, and a net benefit to the economy; NET of the economic and cultural activity that is disallowed or suppressed by longer terms?

    Evidence. You don’t have to do the work yourself. Find a web link, a journal article, something that is based in reality, in objectively measureable data.

    Evidence.

    Evidence.

  • http://oknarb.web-log.nl Branko Collin

    Rolo and WJM, you seem to be arguing that there is a difference between the application of the law, the letter, the intention, and society’s values underlying these intentions. Surely that is not new to you?

  • Rolo Timassie

    WJM, I’m not going to search all day for a cite to prove that y+1 ‘> y. It just seems obvious to me, and unless you can find something to disprove it, I’m satisfied with my argument.

    Branko, I agree with you. Too often in this field, instead of concluding “That C&D letter is full of crap,” or “X v. Y is wrongly decided,” people conclude “See? This is why the Copyright Act should be repealed.” A little moderation goes a long way.

  • http://www.xanga.com/publicdomain WJM

    Rolo and WJM, you seem to be arguing that there is a difference between the application of the law, the letter, the intention, and society�s values underlying these intentions. Surely that is not new to you?

    No, I am arguing that the factual basis in favour of the latest term extension, the ones before that, the ones to come, and the ones to come after that, is non-existent.

    More copyright != more creative endeavours.

  • http://www.xanga.com/publicdomain WJM

    WJM, I�m not going to search all day for a cite to prove that y+1 �> y. It just seems obvious to me, and unless you can find something to disprove it, I�m satisfied with my argument.

    I’m glad you are satisfied, but don’t pretend it’s anything other than what it is: religious belief. It may seem obvious to you, but in the same way that it seemed obvious to the Babylonians that the sun revolved around the earth.

    What is “obvious” to you is simply NOT supported by any facts that I have ever seen adduced anywhere, and I’ve been looking for the buggers. And like I say, my own research, using objective and independent data from the national library here, has shown no evidence to support the supposedly self-evident proposition that “y+1 �> y” y+1 =, at best, y, at worst, Branko, I agree with you. Too often in this field, instead of concluding �That C&D letter is full of crap,� or �X v. Y is wrongly decided,� people conclude �See? This is why the Copyright Act should be repealed.� A little moderation goes a long way.

    Extending the term of copyright every time Mickey Mouse is about to do what pre-Mickey Mouse works have done, see their copyrights expire, is NOT moderation. It is the copyright extremism.

    I do not see “Hey, we only too twenty years out of the public domain, when the Congressmen we bought were willing to give us a thousand, you should be thankful.” as moderation. This is the bill of goods that the sheep in the US congress and the US public keep getting sold by Mary Bono and Jack Valenti. It’s sad.

  • Doug Lichtman

    Tim –
    As the economist in you already knows, the answer to your question is that this is a classic case of a collective action problem. That is, while we as a group are better off if each of us pays a little something for our favorite genre of music, we each individually have a huge incentive to shirk. After all, if everyone else pays and I do not, the music will still be produced; and, conversely, if no one else pays and I do, I still will not get my music. So each individual has the incentive to cheat, even though the group overall would be better off if each individual were forced to pay. Enter the law, here copyright, to provide the necessary coordination.

    What am I missinng?

  • Rolo Timassie

    WJM, unless you’re claiming that there exist some form of “negative royalties” that would take hold in years t+1 and after, I have no idea how you can possibly argue that copyrights could have the same or less value during extended terms. Whatever your evidence is, either it defies the normal rules of how royalties work or it doesn’t say what you claim it does. If just a single work makes a single penny in years t+1 or later, then y+n (where n = $0.01) > y.

  • http://www.xanga.com/publicdomain WJM

    WJM, unless you�re claiming that there exist some form of �negative royalties� that would take hold in years t+1 and after, I have no idea how you can possibly argue that copyrights could have the same or less value during extended terms.

    I am not arguing that A PARTICULAR copyright in respect of A PARTICULAR work could have “the same or less value during extended term”. I am asking (a) where is the evidence that extended POSTHUMOUS copyright is worth MORE to the AUTHOR while he or she is STILL ALIVE; and (b) where is the evidence that the extended copyright IN GENERAL — IN ALL WORKS, WHETHER BEING ECONOMICALLY USED OR NOT — results in a NET ECONOMIC BENEFIT TO THE SOCIETY AND ECONOMY AS A WHOLE, rather than being a net economic burden or neutral.

    Are you being disengenuous, or thick?

    You are only looking at the equation from the perspective of the copyright owner. Yes, an extended term of copyright in a work which is still “owned” in that it has an active owner who is AWARE that he or she is the owner, in respect of a work which is commerically viable between 50 and 70 years after the author’s death — which works out to roughly 80 to 100 years after a work’s publication, on an average — that extended term should result in additional economic rent to the owner of copyright in that post-extension period.

    (It can’t result in anything to the author, WHO IS BY DEFINITION DEAD! Seriously! Trust me on this one! In the post-mortem copyright countdown period, you are just as dead at life+1 minute as your are life+5 billion years. Dead. It’s forever. A posthumous copyright extension can NEVER benefit a dead person. Dead. Defunct. An ex-author. Deceased. Shuffled off. Bought the farm. Downsized. DEAD.)

    HOWEVER, regarding the benefit to the overall economy from this economic rent to the VERY SMALL (16%) proportion of first-generation post-author copyright owners who are even still alive after 50 years, let alone aware that they own a copyright, in respect of the VERY SMALL (less than 1% of PUBLISHED works — let alone unpublished and ephemeral ones) — class of works which still have commercial viability after 50 years… is that benefit to the overall economy, via those owners, LARGER than the burden and costs as against everyone else in society?

    Is it a net benefit or a net burden?

    THIS IS WHAT THE COPYRIGHT EXTENDERS HAVE NEVER BOTHERED DEMONSTRATING.

    Largely because, in the US and EU, politicians drop their pants and take whatever Big Copyright gives them. (Usually large cheques and a dirty ass.)

    Whatever your evidence is, either it defies the normal rules of how royalties work or it doesn�t say what you claim it does. If just a single work makes a single penny in years t+1 or later, then y+n (where n = $0.01) > y.

    And if just a single work is not re-used commercially because the putative re-user cannot obtain the clearance that he would automatically have, in the 50- to 70-year post-mortem period, but for the same copyright extension that gave an owner a penny; AND if that commercial re-use would have generated $0.01 worth of economic benefit to the re-user if his re-use had been legally permitted to proceed, THEN THE NET BENEFIT OF THE COPYRIGHT EXTENSION IS ZERO.

    If the copyright extension suppresses as much economic rent as it protects, the net benefit is ZERO.

    If the copyright extension suppresses more economic rent than it protects, the net benefit is NEGATIVE.

    Get it?

    The copyright-term fetishists have yet to show that the tem extension is a NET BENEFIT to the economy.

    You haven’t shown it. You can’t dig up an example of where anyone has shown it, or you won’t. You have equations and a fervent religious belief.

    BUT WHERE’S THE EVIDENCE?

    The average still-viable post-fifty-years work has to be worth 99 times the value that a stranger, if legally permitted to, could realize from the re-use of the average abandoned or orphaned work.

    And that’s just fifty years after PUBLICATION, let alone after the author’s death.

    If a third party, or a set of third parties, can, in respect of a work or set of works which were abandoned by their putative copyright owners, realizes as much economic rent as one still-viable, still-actively-owne work, then the net benefit to society from the term extension is ZERO.

    If those third parties can realize just one dollar per work used, then the 99-dollar value of the still-owned, still-viable work IS LESS THAN THE VALUE OF HAVING THE REST OF THE WORKS CREATED AT THE SAME TIME FALL INTO THE PUBLIC DOMAIN.

  • Rolo Timassie

    Thanks for the allcaps, WJM. You’re now making the argument that I ascribed to Professor Lessig and others about 5 pages up, namely that whatever the benefit to individual authors, it’s pretty small when averaged out over all works and is in the aggregate outweighed by other considerations. However, we started down this trail because I was responding to completely different statements of yours, such as “If you make the term ten billion years, dead authors can�t be induced to create more.” I’m not sure you’re aware of this, but it is generally possible to calculate the present value of the inflows from an investment based on two (well, really, three) things: the amount the investment will yield each year, the duration of the investment, and the rate of expected inflation. Holding inflation and the yield curve constant (I’ll grant you diminishing returns), the longer the investment, the higher the present value. This is what I was referring to by y+1 > y. The present value of a given copyright of term t is necessarily less than or equal, ceteris paribus, to the present value of a given copyright of term t+1. You can cash in on that copyright (today!) and receive the additional royalties, even though they won’t be earned until well after you’re dead. (And to think they call economics the “dismal science”!) Additional royalties equals additional incentive. I take it you now want to argue that the cost of that additional incentive isn’t worth it, but given how long it’s taken to get this far, I’m not sure it’s worth the effort.

  • http://www.xanga.com/publicdomain WJM

    You�re now making the argument that I ascribed to Professor Lessig and others about 5 pages up, namely that whatever the benefit to individual authors, it�s pretty small when averaged out over all works and is in the aggregate outweighed by other considerations.

    That, after a sufficient elapse of time, is exactly the case, and it’s hardly an argument original to Lessig or me or anyone else living today. It’s the underpinning of the limited nature of copyright, why it was limited, why it is limited, and why it should be limited, in the first place.

    In fact, that seems to be the case, measured in several different ways, at about life+35. Life+50 is gravy, and takes care of a few outlier cases. Life + anything more than 50 is long past the point of diminishing returns.

    �If you make the term ten billion years, dead authors can�t be induced to create more.� I�m not sure you�re aware of this, but it is generally possible to calculate the present value of the inflows from an investment based on…

    And those calculations show that the incremental benefit of the addtional 20 years between life+50 and life+70 is negligible, even at a generous — for “works” — discount of “only” 10%.

    …the longer the investment, the higher the present value. This is what I was referring to by y+1 > y. The present value of a given copyright of term t is necessarily less than or equal, ceteris paribus, to the present value of a given copyright of term t+1. You can cash in on that copyright (today!) and receive the additional royalties, even though they won�t be earned until well after you�re dead.

    In which case, there should already be evidence that this is happening.

    For any two countries, otherwise similar in culture, economic condition, educational achievement, etc., differing ONLY in the term of copyright, there should be measurable differences already observed in the earning of living authors.

    For any given country which has extended their term, there should be measurable differences already observed in the earning of living authors as measured before and after the term extension, adjusted for other diachronous changes, like inflation.

    So, you have a cute hypothesis, expressable in an equation.

    Until someone can dig up some FACTS, some data, some measurements, that tend towards establishing the validity of the equation, your hypothesis is more akin to religious dogma than it is to scientific theory.

    Additional royalties equals additional incentive.

    Only if those theoretical additional royalties are, IN FACT, being accrued to the author, and only to the extent that money is the incentive for creation in the first place.

    I take it you now want to argue that the cost of that additional incentive isn�t worth it, but given how long it�s taken to get this far, I�m not sure it�s worth the effort.

    “Works”, at least literary ones, lose at least 65-70% of their value by being “driven off the lot”, and about 5% annually thereafter. The difference between the value of a fifty-year posthumous term and a seventy-year one, EVEN IF ACTUALLY BEING REALIZED, is on the order of a single percentage point AT MOST. “At most” because copyright has a very broad scope, and most “works” in which copyright subsists has no commercial value at all, at any point in their life cycle.

    I would like some CONCRETE examples of where authors have leveraged this difference to increase their incomes while still alive.

    Anyone? You don’t seem to have any.

  • Joe

    Rolo Timassie, you seem to be commenting on a different text than I read. Nowhere did Lessig say anything about abolishing the Copyright Act. He was merely demonstrating that at least one of two specific assumptions held by the copyright maximalists must be wrong.

  • http://echeblahblah.blogspot.com/2005/09/egotism-in-arts.html Andrei

    Piracy is very subjective. I think it’s not necessarily evil. Just like before there are also privateers.