Tag: copyright and patent

Via Lawrence Lessig, an interesting Hollywood Reporter article:

Many old TV shows are not being released on DVD because of the cost of obtaining the neccesary rights to the music they contain. While rights to use a song in a film include rights to DVDs etc., the same does not apply to TV series. In some cases shows are being released with the original music dropped or replaced.

This looks like an instance of a wider issue of music being overpriced relative to video. Take any film more than a couple of years old, and you can buy the DVD for less than the CD of the soundtrack album. (As examples, I’ve just checked Titanic and Fellowship of the Ring on Play.com). How can the soundtrack album be worth more than the film? And how can “Who are you” be worth a significant portion of a series of CSI? Any economist got a view?

Lessig cites this as an example of an “anticommons” – an area where too many parties have the right to prevent a good being used, so it ends up underused. This may be correct (transaction costs are significant), but without an answer to my question above, I’m not sure it’s the real explanation.

Update: On reflection, there is a probable reason for the CD / DVD pricing disparity: competition from free TV. Films more than a few years old are likely to be shown on TV, leaving less reason to buy them on DVD. CDs are less subject to this kind of competition – the songs on them get more free-to-listen airplay when they’re new than when they’re old; if I want to listen to the Titanic songs, I’ve pretty much got to buy the CDs, but if I want to watch the film I just need wait a few months until it’s next on air.

It turns out this has little relevance to the TV-show music issue, so it leaves the “anticommons” theory as a strong contender.

Just a break from my current theme, to point to this piece “DRM, Incompatibility and Market Power: A Visit to the Sausage Factory” by Ed Felten. It is a superb account of the motives and incentives that produce the DRM that we are seeing today. It needs to be listed along with Cory Doctorow’s 1994 talk at Microsoft as the essential reading to understand the subject. This is why I insist that the mechanisms (technical and legal) of enforcement of copyright are more significant than the questions of what is copyrightable and what isn’t

“Running through this whole convoluted tale are two consistent threads. DRM is used as a weapon not against infringers but against market rivals. And when companies use DRM to undermine compatibility, law-abiding customers lose.”

The ippr think-tank has published a paper “Markets in the online public sphere” on Intellectual Property issues. (Author William Davies).

The paper is an attempt to identify the questions involved, rather than answer them, and as such is worthwhile but not particularly exciting. The main new idea is to classify information transfers in the digital realm according to temporality, classifying information as:
Deliberation (synchronous, interactive transfers) Service (synchronous, passive) Content (asynchronous, temporal) Heritage (asynchronous, timeless) These categories leak into each other, but are probably a useful tool in thinking about the issues.

The leakiness is what the author appears to see as the root of the problems – how one can protect commerce in Content without unacceptable impact on Deliberation or Heritage, or conversely how can one protect the freedom to Deliberate without destroying the business of Content.

While those questions are real, to me they are not the sticking point. I believe that compromise can be reached on what forms of information transfer should be restricted and what shouldn’t. Not a perfect compromise, to be sure, but some kind of widely acceptable outcome.

What I see as the most vital issue is not what should be subject to restriction by law, but who should bear the cost of enforcement. That might sound like a minor detail, but it is in fact the fundamental problem, with far-reaching consequences.

(The rest of this piece is on Anomaly UK – The Director’s Cut)

The BPI has brought more civil actions against uploaders of music to peer-to-peer networks in Britain.

Once again, this is a plea not to complain. As I said last time, the practical intellectual property debate is over whether the scope of copyright and patent law should be increased in the light of new technologies. The Right Answer is that it should not. It might be that without such expansion of copyright, certain business models will cease to be sustainable on a large scale. Whether that is the case, and whether different business models can flourish, remain to be seen.

As these matters unfold, copyright owners will attempt to apply existing laws in defense of existing business models. To the extent that this attempt succeeds, there will be less reason to extend those laws, and, most importantly, less justification for restricting the manufacture, sale and use of ordinary general-purpose tools that can be used for copying, modifying and distributing digital information. If widespread unauthorised distribution of copyrighted material can be substantially prevented by bringing civil suits against the people who do it, then the copyright owners’ problems are solved with the least impact on everyone else.

If these legal actions are not effective in protecting the copyright owners’ business models, then the real battle will follow. Showing respect for the law as it stands, and for the copyright owners’ attempts to employ it, is a solid foundation from which one can make principled objections to copyright expansion. “I want free stuff” is not.

Does information want to be free? If I say so, I mean that restricting copying and distribution of digital data is likely to be very difficult. It means that copying is likely to continue despite these suits. It does not, by itself, make a moral argument. You could say, in the same way, that petrol wants to be on fire, but it’s not an excuse to get the matches out.

Beyond what I called the “practical intellectual property debate”, there is questioning over whether copyrights and patents are a good thing at all, and whether their scope should be reduced. Some good arguments have been made, but they don’t really amount to a criticism of the BPI for seeking to protect the legal rights they hold, and have traditionally held. If their program of protecting their business model is entirely unsuccessful, that might strengthen the argument for changing the legal status of information entirely, at the same time as it strengthens the arguments for creating new IP law powers. I think it’s an entirely separate argument.

In looking at news coverage of the Sony story, I saw a piece by Bill Thompson, a technology analyst for BBC. His insight into issues seems to be consistently good. I was particularly impressed by this piece on eBay and tax, where he makes the seemingly obvious but often ignored point:

The internet is not a separate space, but part of the real world.
Politicians have to get to grips with this

He has a blog, but the good stuff seems to be copies of his BBC articles.

I am aware that some people download music files from the internet. I don’t do this myself, because of the time and hassle, and the risk of getting something other than what I wanted.

I may have to rethink this attitude, however. It is now official – buying music legitimately from the copyright owners can install trojan horses and spyware on your computer, potentially resulting in crashes and other malfunctioning. Much safer to get an MP3.

I already have a CD that I can play at work only because I made a copy of it at home – the original will not play on my work PC because of its copy protection. It’s now getting worse.

A few jobs back we bought a copy of Rational Rose – we never used it because we couldn’t get past the copy protection. It sat on a shelf for years. No repeat business there.

Illegal rip-off software, music and DVD is generally of higher quality than the legal stuff. A free MP3 is worth more than an iTunes download or an original CD, because it’s compatible with more hardware. A hacked game is worth more than the legal copy, because you don’t have to fuss with the license key.

They never learn.

Good piece at the Social Affairs Unit questioning the value and validity of intellectual property. It is very good to see that, as the reclassification of copyright infringement from something like trespass to something like theft goes on, the Right is taking the lead in dealing with the issue intellectually.

The author (Austrailan economist William Coleman) lists four justifications for property, and shows that one of them (allocational efficiency) applies to IP er, see below, and two others (justice and incentives) partly. Unfortunately, he does not examine the extent to which his other justification, far from applying to IP, actually tells strongly against it:

3. The economisation of violence: In the absence of a code of property, resources are wasted in force and violence to take possession, and defend possession.

In the modern world, enormously more force, violence and wasted resources (in the form of the policing powers under such legal frameworks as the US DMCA) are needed to maintain copyright than would be used if there were no copyright. This is what has made IP the hot issue that it now is.

To clarify: with physical property, if there is no clear legal ownership, rivals are very likely to fight over it. With legal property ownership, the violence and waste(in the form of crime and policing) is much reduced. With, say, recorded music or computer software, in the absence of legal protection, they will be freely copied; but the attempt to provide legal protection produces a huge wasteful activity of hidden, criminal copying and intrusive, destructive policing in an attempt to prevent it. Thus the “economisation of violence” argument is not merely nullified but entirely reversed.

Correction: in fact, Coleman doesn’t say that the allocational efficiency argument supports IP – he starts talking about it and wanders off the point. In fact, like the economisation of violence argument, allocational efficiency tells strongly against intellectual property: the most efficient allocation is for anyone who wants a copy of something to be allowed to make one. Only the justice and (most significantly) incentive arguments have any force in favour of IP.

“Property Rights – Property Rights – Property Rights!”, reads a slide in a presentation by the CEO of the RIAA to the National Association of Recording Merchandisers (via BoingBoing)

Intellectual Property is not actual property — legally there are differences, and practically there are huge differences. If someone uses my intellectual property, they do not interfere with my use of it.

But there is a closer analogy to IP in the realm of property law than the one the RIAA (and other copyright radicals*) use.

If I own the land, I have the right to exclude trespassers.

Trespass, like copyright infringement, is not (usually) a crime. It is a tort – I can proceed against trespassers in civil court.

The right to exclude trespassers is limited. Public rights of way can exist, or can come into being, across my land, and the public hs a right to make use of them. If I sell or rent part of my land, the necessary rights of access might be implied. (this can get legally very complex).

There is an obvious, though inexact, analogy between public rights of way across private land and “fair use” of copyrighted material.

So, the next time someone talks about “copyright theft”, interrupt them and say “I think you mean ‘copyright trespass'”.

* The actual practical political debate over IP is over whether copyright law should be extended in scope. In this debate, I am a conservative — indeed a reactionary, since I want recent extensions to be reversed — and the RIAA etc. are the radicals with a new vision of copyright.

In the days of vinyl records, the record companies both recorded and manufactured the records. Both these steps were difficult, and there were no IP problems, as anyone attempting to set up a record manufacturing plant to make “pirate” records would be easily found.

That security was weakened by cassette tapes and destroyed by MP3 players. Now anyone can “manufacture” copies of music recordings, on a large scale or a small scale.

The pharmaceutical industry resembles vinyl records. The largest costs for the drug companies are in design and testing, but the manufacturing costs are high enough to protect their patents.

Imagine that a “generic synthesiser” were developed. I have in mind a general-purpose programmable chemical plant. If you want to produce, say, asprin, you put in some basic feedstocks, feed it a program, it churns away like a bread machine, and out comes your asprin. (or cocaine, or whatever…)

Is this feasable? I would say it’s inevitable, though I couldn’t say whether it would be closer to 2015 or 2100. Twenty years after appearing in the laboratories, it will be in your kitchen.

Once that process gets going, pharmaceuticals becomes a “pure IP” business like software or music. Development and testing (and marketing) of new drugs will still be expensive, but once a drug is on the market, it only takes one “hacker” to write the program and I can download it and synthesise the drug in my kitchen. (Or, in earlier stages, in my University Chem lab).

Think about the effects of this device: It will revolutionise medicine. It will improve many other areas of life, opening up possibilities that are hard to imagine. But it will make drug development very difficult to fund, but technically easier to do, and it will make narcotics prohibition impossible.

Attempts will be made to restrict the distribution or capabilities of the devices, but without a mass market, it will not be developed quickly enough. It is likely to be built of components that will be used throughout manufacturing industry, and the only way to restrict capabilities will be at the “programmer” component, which can be replicated with general-purpose computing equipment.

Of course by that time, the software/music/film issues will be worked out — either with a police state like this, or with a new model of development — so we will have more clues to the solution of the new problem (which, it is to be remembered is not primarily a problem, but a new world of opportunities).

Related items:
IP Confusion
Software Patents

This is expanded from a comment I left in response to this TCS article emphasising the importance of Intellectual Property to the US economy.

Britain is also a large “producer” of IP, so I don’t see a problem in dealing with the article from here on its own terms (apart from the baseball analogy; in these parts, hitting the batter with the ball is just good bowling).

Duane Freese makes points that are reasonable in themselves, but he avoids all the difficult questions.

Intellectual Property is very difficult to enforce. In a rich, orderly society like the USA or the UK, it is possible to act against sellers of unauthorised copies. It has not been possible to act against “private” breaches, such as an unauthorised public performance of a music cd at a party. Such activities have long been tolerated, despite being technical IP breaches, because the losses were low and enforcement was not practical. Another class of breach — users copying music or early computer games to tapes — was more frowned on, but still escaped legal enforcement.

Two developments have changed the situation: widespread digital hardware has made private copying easier and better, while globalisation has increased the significance of overseas jurisdictions where different enforcement policies are in use.

The domestic question is not whether authorities should attempt to enforce existing IP laws. Some people are questioning whether we should have IP at all, but that is not really a mainstream argument. The issue is that the authorities are not able to effectively enforce IP laws in all cases, and the scale of breaches that are outside the enforcable areas is growing. To reduce the volume of breaches of IP, it would be necesary to expand the reach of enforcement further into the private arena than has ever been the case in the past. This involves unprecedented police powers and loss of personal privacy, and vast government expense. This is the issue over which the “Copyfight” is being waged.

The foreign question is over countries which, through choice or necessity, take a different stance than that of the big IP producers as to what breaches of IP law can practically be acted against. Freese says should be punished for it. But for a country like Russia, where the authorities have their hands full just trying to collect taxes, imposing an IP enforcement regime like that being demanded by Freese is not remotely possible.

Finally, the breadth of IP law is such that it cannot be treated purely with generalities. The patent system is failing as patent offices and courts are unable to scale up to handle present rates of innovation. Third-world production of drugs also raises questions which deserve to be dealt with specifically. Remember that IP law has never been about absolutes (hence the time limits on copyrights and patents), but has always been subject to cost-benefit analyses that vary from one area of innovation to another.