Followups to the ebooks ethical question

When I have a moment, I’ll try to tally up the responses that I got to “An ethical question involving ebooks”and see if there are any interesting patterns based on self-identified generational markers.  Obviously, this is not a properly controlled survey, so the results aren’t going to mean much, but it is interesting that some fairly passionately written comments came from folks who self-identified as coming from generations that broke with the common stereotypes of their respective demographic groups.   If I were going to commission a study, one thing that I would almost certainly do is to ask pose a similar question about music and mp3’s, and do have the surveys asking the question about ebooks first, and half the surveys asking the questions about music first.  It would be interesting to see if (a) there is a difference in attitudes between music and books, and (b) whether the order of the questions might influence the answers or not.

A number of poeple have asked me about the author’s name and the title of the books/series involved.  I deliberately didn’t include that information, for a number of reasons.  First of all, I don’t believe idenifying the author/books/character involved is relevant to the question at hand, and in fact, might be distracting.  Secondly, given the many comments, some of them quite passionate, I don’t think it would be fair to drag her name into the discussion without her permission first.  I will say that the author does have a fairly extensive internet presence, and has apparently gotten a lot of questions about said character, and in fact whether those books would be made into ebooks.   It’s been made quite clear that while those books were successful, they weren’t that successful, and so from an economic point of view, she chooses to write books that she (and her publishers) feel will be more economically viable.   Because there will likely be no further books published containing this character, it is very unlikely that the publisher will reprint the original series of books — and when asked about whether they would be made available in ebook form, her response was effectively “it’s up to the publisher”,  Apparently she has worked with a number of publishers, and while publisher X hasn’t been willing to publish her books in ebook form, publisher Y has.  Furthermore, it seems that her contracts apparently delegate all decisions about how her books will be published, and whether a large Major Big City Law Firm with Fangs (aka MBCLFF) will go after copyright infringers to her publishers and her agent (who is a lawyer at said MBCLFF, and who could presumably inflict major Hurt on copyright infringers that curry the lawyer’s disfavor).   I don’t know if this is true, or just her way of managing her relationship with her fans by disclaiming all responsibility about publication forms and enforcement decisions to others — but some authors do make such choices, if they are much more interested in the writing and storytelling end of things than the business side of things.

Which brings up an interesting question with respect to copyright enforcement.   It’s pretty obvious that many people will give different answers to the question relating to how much deference should be given to copyrights depending on whether they are owned by The Struggling Author versus whether they are owned by The Big Media Corporate Monolith, with many more allowances given if the question is framed as being primarily about the former rather than the latter.   Another way in which how you frame the question radically changes the outcome depends on whether the focus is on making sure the author (and/or his surviving widow/widower/children) get paid or whether the focus is on control of one’s works.   If you believe the primary justification is an economic one, then that leads to a series of ethical conclusions — the most obvious of which is that if it doesn’t result in a direct (or perhaps indirect) monetary loss to the author, there should not be a moral or ethical problem.   There might be some question as to whether devaluing the secondary market might discourage the sale of new books, and hence indirectly harm the author sufficiently that this should be a concern, but those issues can be worked out.

If however, you believe the primary issue at hand is one of control, a very different set of issues have to get factored into the conversation. For example, what if the author was ashamed of a book or series, and wants it to go quietly out of print, and hopefully disappear. How should that be weighed against fans who disagree with the author and who love the series? What is the right balance? For those who argue that the author’s wishes should be sacrosanct — should we move things more in that direction? What if all texts lived in DRM’ed, encrypted containers, and electronic readers had to ask permission of a central authorization server for the text could be displayed. This would allow the author to, after the fact, disable anyone from reading his or her works, if for some reason the author so desired it. Would that be a good thing? If not — and I hope most authors would agree this would be horrific power to give copyright holders — then it’s clear that author’s moral rights as creators should not be entirely sacrosanct, and that the society also has some claims on preserving its culture, and that once a book has been published and becomes part of the culture, society should have some claim on that book as part of culture. Whether that means that copyright terms should be 14 years or 20 years as opposed to whenever the Disney corporation feels like paying off more legislators to extend copyright terms is one way that question could be asked. Another is whether society should have the right to say that if after some number of years where a work has been abandoned for commercial exploitation, whether it should automatically enter the public domain. There are no obvious answers here.

The final point that I want to make, which may be fairly controversial amongst the Open Source programmers in the room, is that if you believe that copyright should be fundamentally be about economic arguments of “no harm, no foul”, that this is in direct contradiction with the belief that lawsuits should be used in order to enforce the GPL. After all, the conditions imposed by the GPL are fundamentally about control, not about economic issues. Consider — if someone uses the Busybox project in an embedded device — especially if no changes has been made to the code — who has been harmed, economically? No harm, no foul, right? Or if someone uses GPLv3 code in a firmware which is protected by a digital signature — sure, it means that end users who want to modify the firmware and then use it to enhace/extend the device won’t be able to do so. But how does that economically harm the author of the GPLv3 code? Fundamentally, Copyleft schemes are all about extending control over how the code can be used. Hence, if you are an Free Software programmer who cheers on the activities of the SFLC, or who firmly believes that no one should be allowed to mix firmware which is not shipped with source with your GPL’ed software, it is completely and profoundly hypocritical to say, “F*ck the author’s wishes; if it’s not available in the from I want, I should be able to make a derived work to transfer the work into a form that I want.” What if the author is a luddite who hates eBooks and firmly believes and wants to enforce that their works should never be made available in eBook form. How is that fundamentally different from a Free Software Acolyte saying that because they abhor non-free firmware, and don’t want allow their code to be shipped alongside binary-only firmware?

25 thoughts on “Followups to the ebooks ethical question

  1. I will say that music is somewhat different for me — if I hear a song I like on the radio, I may download it without paying for it. But that’s the case where I wouldn’t have bought the album, or even the single (for $2.49 or whatever), anyway. For $1 at iTunes, I’ll pay it. But it has to be really easy (as iTunes is).

    Basically, I’m OK downloading pirated music so long as the existence of the free download doesn’t mean I’m not buying something. If I’m going to buy something, I buy it regardless of whether or not it’s available for free.

    The book thing is an interesting case, because you want to buy it, but it’s a format issue.

  2. I see nothing hypocritical about supporting FOSS licenses and not supporting the use of copyright to prevent people from getting access to a work in the first place. In the case you described, you *cannot* get access to the work legally from the author, or from any source which will support the author in any way. That seems quite evidently different from FOSS.

  3. It is good to see your thoughts have turned towards the author’s wishes in the matter.

    WRT your question on the author being able to ‘turn off the DRM’ such that no one would be able to read a work the author later decided was unsuitable. I would not be opposed to such an idea as long as I was made aware of the condition before I acquired the work. I think this should be a given with any product: the consumer knows what they are getting. It’s part of the problem with current DRM schemes: there seems to be no guarantee on how long or under what conditions the DRM will work.

    If I know what I’m getting, I can make an informed decision about how much I want it. For paid products, that will in turn set the limits on how much I want to pay. In most cases, I would want to pay much less for a product the author could shut off anytime, than for a product I knew would be accessible for the rest of my life.

    I can imagine a complexity arising here. Imagine DRM labels for the above two scenarios. Imagine more DRM labels for ‘can resell’ and ‘cannot resell’ or ‘can pass on to children’ or ‘can loan to others’ … etc etc etc. Some I’d avoid like the plague; some I wouldn’t mind. Now imagine these being standardized into something like Lessig’s Creative Commons simplified logo vocabulary.

    At the end of the day, I don’t wish to limit the amount of control (pricing or otherwise) that a creator can exercise over their product. As long as I fully understand the terms of the deal, I can exercise my own control: I can take the deal, or pass it by.

  4. not an open source programmer here, just user and supporter of some kind, but i felt the need to share some mumblings.

    “The final point that I want to make, which may be fairly controversial amongst the Open Source programmers in the room, is that if you believe that copyright should be fundamentally be about economic arguments of “no harm, no foul”, that this is in direct contradiction with the belief that lawsuits should be used in order to enforce the GPL.”

    mmmm, i don’t agree with several of your point:

    -restrictions imposed on a utilitaristic (economic) basis may be undistinguishable from those imposed on a control (natural right) basis: how do you distinguish a drm system implemented for the control purpose such as an author that wants to disable the reading of all his old works from a drm system implemented for an economic purpose such as an author that wants to force his readers to switch to a different and more profitable distribution system? should we file class actions against authors and companies after the fact, trying to demonstrate their real goal? what if an author wants to control his works, and by chance gains an economic profit (i can think of many instantiations of the straisand effect here…)? ianal, but doesn’t the legal system have enough problems to solve already?

    -i don’t think the openwrt (and ddwrt, and the others) project would be where it is today without the enforcing of the gpl on busybox. and the possibility of running openwrt on cheap hackable hardware to extend its functionality beyond the desires of the manufacturers IS an economic benefit, even for the busybox author, isn’t it? the same with gpl3, isn’t a (maybe slightly) wider availability of easily hackable devices an economic benefit for the busybox author? and even if the busybox author doesn’t report a direct economic gain, what about an indirect economic gain? and what about the economic gain that he though was going to achieve but was simply wrong about? how is an “economic benefit” defined? how would courts decide on that? it looks more messed up than needed, and wide open to abuses… after all a law is good only as long as you don’t have to interpret it too much…

    -maybe your question wasn’t totally clear, or you asked the wrong question, or you are misinterpreting the results: where you asking where the moral line is given our current copyright regime, or where you asking for a moral line to base a new copyright regime on? was that about how things are or how things should be?
    if the copyright landscape were very different from what we have to deal with, probably the open source programmer ideas on copyright law would be very different.
    for example in the total absence of copyright restrictions maybe we wouldn’t even have a concept as open source, or we may have it but limited to the bsd style licenses, and with who knows what level of success.
    the point is that copyright restrictions today, despite their historycal introduction in the us on a utilitaristic basis for the society at large (not for the individual!), are increasingly used and abused for both the economic benefit of the individual author/company and for control purposes. so if someone doesn’t agree with these restrictions, why should he avoid using them against those authors or companies that instead support those restrictions and are very willing to enforce them against him? isn’t this merely self-defence?
    to be more clear: i’ve seen hard libertarians (totally opposed to any form of copyrigth, and with very good arguments, for example stephan kinsella) somewhat dismissing the open source movement because it is ultimately based on copyright, and without copyright there would be no copyleft. well yes, but if with copyleft you can change the copyright “zeitgeist” of our time, why not using it while it works? if you are opposed to a law why on hell wouldn’t you use that law against itself if you could? in many ways the gpl does exacly that: it could be embraced more by those opposed to the strong copyright of our times than by those willing to preserve control. and it probably is. isn’t the cc attribution share-alike an answer to the failure of eldred vs ashcroft based on copyright? in the future case of a very broad success of copyleft licenses strong copyright could be less important because it would simply be less used, and efforts to make copyright law less draconian could be more successfull.
    i’m not totally sure who is right here: someone supporting strong copyright and supporting the gpl may be right or wrong in the long term, as may be someone fighting strong copyright using the “strong copyrighted” gpl. but none of them is necessarily hypocritical.

    that said, yes, the open source programmer of the kind that is ok with how copyright works today shouldn’t break copyright, and, even if someone could violate copyright in a public attempt at civic disobedience to change the copyright system and be totally moral, the open source programmer of the kind that wants to limit copyright through the gpl shouldn’t violate copyrigth either, even if that would be a moral thing to to, simply because that violation of copyright would undermine his alternative and legal effort at changing the copyright system.

  5. @5: “WRT your question on the author being able to ‘turn off the DRM’ such that no one would be able to read a work the author later decided was unsuitable. I would not be opposed to such an idea as long as I was made aware of the condition before I acquired the work.”

    But would you want to live in a society if the vast majority of the books/music/computer programs/etc. had the property that they could disappear even after you had “purchased” them, at the author’s whim? If you do, I’ll have to disagree. I don’t believe that the rights of the author over their works is absolute. Even with the GPL, although it has all sorts of controls and conditions under how you may distribute derived works of GPL’ed source code, doesn’t give me the right to forbid users who have legitimate copies of my programs to stop using them. And even though I could imagine entertaining ways that I might be able to use such power — “Oooh…. you’re using code that I wrote to keep records on illegal wiretaps of American citizens… sorry, <poof> my filesystem code just disappeared off of your system” — on balance, it’s not a good thing.

    Songs, poems, essays, and yes, even computer programs, once written and submitted for use/enjoyment/consideration of the society, become a part of the society’s culture, and so society has some moral claims on the work of art, just as the creator does; copyright is a delicate balancing act between the legitimate needs of the creative, as well as the needs of society. That’s why the copyright term is not infinite, even though the Disney Corporation might never want Mickey Mouse to enter into the public domain. The wishes of the creator are not absolute.

  6. I think the problem with the “no harm, no foul” test is that that isn’t where the line should be drawn. The test should rather be “Have I conducted a fair exchange of value?” In the case you described in the previous article, buying a used copy of the book would be a fair exchange of value with the previous owner of the book. Downloading the ebook causes no harm, but you have gained value without conducting a fair exchange. Downloading and then sending money to the author has it’s own problems. First, you’re forcing the author to accept your definition of fair. Second, as this followup implies, doing so may in fact be meaningless as the author might not be able to accept the money without violating the publishers terms.

    I’d say buying a used copy and downloading the ebook for convenience falls under fair use. I’d even go as far as saying borrowing it from the library, downloading the ebook and then deleting it when you return the hard copy is fair use. Essentially, how you read the book is immaterial if you have the right to read it.

    On the open source side, how does GPL stack up with the “fair exchange of values” test with a somewhat more nebulous definition of value. Not being well versed in what exactly GPL covers, I can’t comment on it as a whole, but “control” measures could be viewed as a value exchange: You get the value of our code, but you agree to freely provide something of value to others in return.

    And, for the survey, mid 20s.

  7. I don’t believe authors have any fundamental moral right to unpublish a work once published. IMHO it would be best if work no longer offered for sale by its author were to pass into the public domain after a period of a few years — if an author no longer seeks to profit from a work, it is not an infringement of their economic rights in the work to permit others to duplicate it.

    One particularly pernicious side effect of a “right to unpublish” is that it would increase the power of libel tourists to suppress work they find inconvenient. (see http://en.wikipedia.org/wiki/Libel_tourism).

    (for the survey: I’m in my early 40’s)

  8. “But would you want to live in a society if the vast majority of the books/music/computer programs/etc. had the property that they could disappear even after you had “purchased” them, at the author’s whim?”

    No. And I am confident most people would not want the “vast majority of these items would be sold with the proviso that the author could turn them off. First, I doubt that many of the original creators of those works would want this. And second, if some middleman party (like a publisher) were to try this, I think buyers would stay away in droves.

    Again, that’s the real point: accurate labeling. If I know what I’m buying, I know whether to to buy at the price offered. I don’t want to be surprised by my purchased works being turned off, that’s all.

  9. I guess I should expand on my prior post just a bit.

    If an author chooses to avail themselves of copyright, what is the basic deal there? Well, society agrees to help the author make a profit for a period, by cracking down on those who violate the copyright. In return, at the end of the period, society itself gains ‘ownership’ of the copyrighted work. It passes into public domain.

    And I am fine with that; I agree with it. It seems a good compromise. Now, within that copyright period, the author enjoys the rights to restrict the use of her works in many ways. She can set an astronomical price (no one buys), she can give it away. She can GPL it, which adds a number of control provisos but no monetary price. She can attempt to market the work under many different combinations of pricing and control stipulations. Maybe she wants a rider that says she can turn it off even as I am reading it. Maybe she wants a rider that says it must never be shown to Bill Gates. I dunno – there can be acceptable combinations, and there can be wacky ones.

    Most of the wacky ones will be self-limiting, because each potential user will exercise his or her own form of absolute control: agree to those terms or not.

    And I am totally cool with that. Let the author/creator experiment with whatever sane or wacky terms of use she wants to try. Maybe there is a (small) market for ephemeral works that disappear at the author/creator’s whim. Awesome: allow someone to service it! I won’t be part of that market, of course. And I’m confident that the mass markets will continue to serve the desires of the masses.

    By charging (whether the “price” is in terms of money or control or some mixture of the two) what the market will bear, for what the market wants.

  10. Bryan,

    Unfortunately, for some art forms, especially music and video publishing, there are very few publishers that control the vast majority of the music consumed by society today. They have formed cartels (i.e., the RIAA and MPAA) and at least for some actions (such as suing single mothers and students for copyright violations) are acting in concert. So I think it is a bit naive to assume that the free market will always result in an outcome which will be desirable for consumers. With the constant extension of copyright terms, for example, effectively no works have entered the public domain for a very long time. And given the cartel power of the RIAA and MPAA, it would not be hard for them to inflict DRM onto society that would effectively prevent works from entering the public domain (the recordings would just automatically vanish thanks to the DRM technology), even if Disney got tired of buying off legislators to extend copyrights ad infinitum.

    And to get back to the point of my first post, that’s part of the problem when works go out of print, or software becomes abandonware. No one is profiting any more, and it’s rather hard to make the argument that denying these works to society is really helping to further the progress of Science and The Useful Arts.

  11. As to the length of copyright, I have little comment. That argument has been carried out many many times.

    The cartel power of RIAA/MPIAA/Disney/etc, will rapidly fade if they price themselves out of the market (again, ‘price’ as either money or control). And large chunks of siciety might (in the worst case) lose, for the remaining duration of their copyrights, whatever content these cartels own rights to.

    Again I seriously doubt that it would come to that level, but let’s go with the worst case. What happens then? A whole new crop of content appears, from authors/performers/creators who have no desire to do business in the old cartel ways. Some would no doubt be refugees from the cartel, fed up with creating content for people who simply lock it up. A new Renaissance, if you will. OSS is a thriving example of that. And the internet makes it very easy for these cartel-shunning creators to get their creations out to people.

    So yes, even having considered what you’ve said, I do believe in markets. Especially those where the barrier to entry is so low. You and I both have websites – we write for free and we give our work away. We could charge for our creative output if we chose. We could do the same whether we were making music, movies, books, or anything else easily digitizable. The tools of all these trades are getting less expensive by the day. And I want tomorrows artists to be able to try as many business models as they can think up – whether those models seem wacky to you and me, or not.

    So, while I’d strongly consider a reworking of the length of copyright, I don’t really favor any changes to the scope of it during that span. I’d love to see us form some kind of copyright registry as soon as possible, and I’d love to see there be fairly generic checkbox forms so that a creator could easily express their wishes on how the content should be treated when it goes out of print or the creator dies. A huge part of the problem is that very often, we just don’t know the answers to these questions!

    Finally, I think it may be time to start considering conditions under which society grants no copyright protection at all! Maybe there should be an option for the creator to say “No, I don’t want to ever give my work to society – I’ll protect it myself with some DRM-like scheme. And since I’m not giving it to society, I waive all rights to go into court and petition society to protect me from infringement.”

    Please note, I am absolutely not advocating the complete abolishment of copyright. I’m simply suggesting that maybe for some creators, there should be a completely self-service parallel option.

    What solutions to the problem of abandoned works do you propose?

  12. If their is an option for the creator to say, “No, I don’t want to ever give my work to society — I’ll protect it myself with some DRM-like scheme,” then society should not give any succor to the creator if someone manages to break the DRM scheme. In other words, the DMCA should be repealed. After all, if the creator isn’t going to give any benefit to society in terms of letting his or her work eventually enter the public domain, why should that creator be protected by society against attempts to break the DRM scheme? And if the DRM scheme is broken, given that s/he has disclaimed copyright protection, the content should be considered in the public domain immediately. I think that would be a fair tradeoff/bargain…

    As far as the solution to abandoned works, what I would propose is some scheme where if a given version of the work is not commercially available at the same or lower price compared to when it was originally published, adjusted for inflation, it immediately enters the public domain. Some kind of language like this is needed to protect some against some publisher attempting to game the system by saying, OK, I’ll make it a mass-marker paperback available for anyone willing to pay $10 million dollars, and then holding back a few copies of the paperback before letting it go “out of print — except to multimillionares”. Maybe it would be enough to say, commercially available with good faith efforts, as long as what those efforts would be could be easily and legally defined.

  13. I think your argument that “if you believe that copyright should be fundamentally be about economic arguments of “no harm, no foul”, that this is in direct contradiction with the belief that lawsuits should be used in order to enforce the GPL” misses the point of what the GPL is meant to do.

    To quote from the preamble to the GPL (v3): “the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program–to make sure it remains free software for all its users.” Copyright, and the legal control it provides, are merely a means to this end. I see this as entirely consistent with being horrified at schemes that “allow the author to, after the fact, disable anyone from reading his or her works”. A GPLed program is meant to irrevocably become a part of the free software culture in much the same way as a published book becomes part of our literary culture.

  14. With one small reservation, I fully agree with your first paragraph. It’s basically what I was envisioning. I’m not sure if public domain status is what should happen if/when the DRM becomes broken (not sure of the full ramifications there) – I had envisioned some sort of no-mans-land. Not copyrighted, not PD, but not eligible for any sort of legal or judicial protections.

    As to the second paragraph. I think any property owner should be able to fiddle with price as they wish. So I’d be pretty worried about a proviso which mandated the work goes into PD as soon as it’s not commercially available at essentially the price it was introduced to market. A lot of creators would then feel pressure to hedge their bets by setting initial price very high. In other words, the gaming could easily happen by setting initial price to $10 million, then lowering it to $10 a week later. Remember, th market’s ‘invisible hand’ just keeps on working, day in and day out. Except in the case where a rights-owner has simply decided they want their property off the market, there’s no incentive to price oneself completely out of the market.

    But I don’t see why the playing field has to be re-balanced to essentially tell creator/owners that they must either continue selling their product, or lose it to the public domain. Is it theirs, or not?

  15. Bryan,

    The rights of the copyright owner is not absolute, even today. Copyright is a limited monopoly which is granted by society for the betterment of society. It is not just to enrich Disney (although it has managed to buy enough legislators to believe that), nor is it to give absolute control of a work to its creator.

    If you don’t believe that, take a look at the US Copyright Code, Title 17, Chapter 1, Sections 107 through 122. They list all sorts of limitations on the creator’s exclusive rights granted by Title 17, Chapter 1, Section 106. Some of those limitations make absolute sense. For example, Section 117 allows you to make a copy of a computer program from the hard drive to the memory so you can run it. Section 110, subsection 1, allows performance or displays of copyrighted materials in classrooms of non-profit educational institutions — without having to pay any royalty fees. That’s because Congress decided as a matter of public policy, supporting the mission of non-profit educational institutions was more important than the absolute right of the creators of the copyrighted works. A more interesting one is the performance of non-dramatic musical works at agricultural or horticultural fair, which similarly does not require paying royalties. (Section 110, subsection 6). That one you can probably write off to powerful senators from farm states, and is probably about as legitimate as the Infinite Copyright Extension Act for the Protection of Sonny Bono and Mickey Mouse, but the point is that copyright has never, ever been an exclusive right.

    So the question is, for public policy reasons, should it be possible for certain copyrighted works that were previously for sale for mass market consumption, and so those works have become part of our culture, but which have now gone out of print, is a good thing; and if it is not a good thing, maybe people who do own copies should be allowed to make copies and give it to others. Whether we could get such an amendment to US Copyright Law passed is a different question, but the question here is what is the Right Thing? Then we can decide whether it is possible to get past the corporate lobbyists that are bound and determined to maintain the status quo, or worse, yet extend copyright by even longer and longer terms. (In some sense, the problem of works going out of print has been made worse and worse by Congress; so it may be an that enforced repatriation of an unexploited copyrighted work to the public domain might be a patch to to fix the problem.)

    I recognize that limited edition artwork is a problem that would need to be addressed; so maybe this would only be done for books, music, computer programs, etc., that have been sold for the mass market. I don’t have all of the answers here; but perhaps this would be a starting point. The important thing to remember, especially if you look at the actual US Copyright Code, that the exceptions can be very carefully and finely drawn; it doesn’t have to be a Grand General Principle that applies to all works of arts identically.

  16. tytso: yes, I have read and re-read Title 17 many times. I’m aware of the exceptions written there, and how open to interpretation the fair use provisions are. I have not in any way been trying to say that anything written there should change, though I think we both agree that the length of copyright protections should be reconsidered very carefully – with an eye towards reduction.

    I think there are a lot of pitfalls in the idea of releasing something to the public domain as soon as it falls out of print. Imagine I am a small publisher running my own presses. At what point would I have to stop accepting new books for publication, because I can’t let anything go out of print? What if I fully intend to reissue a book – but in three years, not today? What if my entire strategy is limited editions? Why should that not be allowed? I’m sure there are many other cases where such a ‘public domain when out of print’ would have unintended consequences throughout the, err … ‘creation chain’. All of the people and processes that facilitate a work going from creation to my appreciative two hands. I’d want to see people thinking about them very carefully before enacting such a thing.

    Now, I’d very much welcome it as a creator option … and as such, it exists today. An author could easily write into his publishing agreement a provision that states ‘if for two years you don’t sell x copies, then the work falls back to {me the author|the public domain|some other entity or agreement}’.

    I think we could certainly could encourage more authors to do this for their very next book.

  17. As for the software versus “static work” (music, books, film) question, I think both cases should be handled differently. And indeed they sometimes are: for example (IANAL, etc.) in my country (.cz) you can make a copy of a copyrighted work for personal use (you obviously cannot distribute it, so probably downloading via bittorrent might not be legal). However, for software – you cannot even _use_ it without the license. The fundamental difference is probably that software is not “static” – it can be used to create things, and with using the source code it can even be modified and possibly improved by other people.

    Applying copyright laws to software (which is most often not a work of art, but a work of “craft” :-) was always a bit strange for me.

  18. On the economics / freedom / intellectual property (here copyright) here are some thoughts by Hayek:

    “”” Just to illustrate how great out ignorance of the optimum forms of delimitation of various rights remains – despite our confidence in the indispensability of the general institution of several property – a few remarks about one particuilar form of property may be made. [...]

    The difference between these and other kinds of property rights is this: while ownership of material goods guides the user of scarce means to their most important uses, in the case of immaterial goods such as literary productions and technological inventions the ability to produce them is also limited, yet once they have come into existence, they can be indefinitely multiplied and can be made scarce only by law in order to create an inducement to produce such ideas. Yet it is not obvious that such forced scarcity is the most effective way to stimulate the human creative process. I doubt whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it; it seems to me that the case for copyright must rest almost entirely on the circumstance that such exceedingly useful works as encyclopaedias, dictionaries, textbooks and other works of reference could not be produced if, once they existed, they could freely be reproduced.

    Similarly, recurrent re-examinations of the problem have not demonstrated that the obtainability of patents of invention actually enhances the flow of new technical knowledge rather than leading to wasteful concentration of research on problems whose solution in the near future can be foreseen and where, in consequence of the law, anyone who hits upon a solution a moment before the next gains the right to its exclusive use for a prolonged period.”””

    The Fatal Conceit: The Errors of Socialism, 1988 (p. 35) Friedrich von Hayek

  19. @21: Yet it is not obvious that such forced scarcity is the most effective way to stimulate the human creative process. I doubt whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it; it seems to me that the case for copyright must rest almost entirely on the circumstance that such exceedingly useful works as encyclopaedias, dictionaries, textbooks and other works of reference could not be produced if, once they existed, they could freely be reproduced.

    Making statements like this are very easy; however, the question is what system of compensating authors sufficiently that they can have food with their meals. I’m reminded of the old saying, “democracy is the worst form of government — except for all of the other forms of government”. No question, using the notion of copyright to allow creators to derive income is not perfect. Some creators get far more money than would be considered “fair”, and there are plenty of creators that arguably do not get sufficient compensation for their work. The question is what we replace copyright with?

    In a pure, “there’s no such thing as intellectual property” regime, only amateurs would be able to write novels, short stories, etc. They would have to depend on some other job (maybe being waiters or waitresses, the traditional job for starving actors who are trying to make it big — except they would have to do this for their entire life?) — or maybe they wouldn’t write at all. If you consider that many books, such as War and Peace, Great Expectations, were written primarily as a way for their authors to barely make enough to live (and pay off gambling debts), the claim that “great works of literature would exist even if copyright didn’t exist” is very hard to believe.

    So what’s the alternative? Most wanna-be authors are in fact, pretty bad. Read some of the stories of editors who have to read submissions from first time authors. (For example, read this editorial, “Slush”, by Mike Resnick for a description of the dreck editors have to wade through to find the few good writers from wannabe authors.) Without the profit motive of the “artificial scarcity”, who gets to decide who should be paid for their work — and how much? The government? Gee, that should work well….

  20. Thanks for your detailed answer.

    You seem to imply that there can’t be any “great work” from authors without copyright. However a lot of our valuable works were made well before copyright, especialy well before copyright was life plus 95 years of exclusive and extremely extended rights – DRM etc…, you seem to forget about those. What do you suggest, all these old authors were “crap” or “fools”? I don’t think so.

    “who gets to decide who should be paid for their work — and how much? The government?”

    The government is currently deciding the form, perimeter and duration of those laws and so is in practice currently directly deciding who should be paid for their work and how much. And in some case who should die, eg drug patents. The government also directly pays lots of money to authors in many countries, for movies, the press and cultural work at large. Many creators are also public employee: think mathematics for an example where about all creators are public employees in most part of the world.

    So not much of an argument here, it’s government already.

    About replacing exclusive rights for revenue there are many options.

    One is very well known and has worked very well probably for about all of mankind history: prizes. They can be private (may be with tax incentives) or public (with votes or not). Prize in particular help getting known, once you are known many indirect ways exist to make a confortable living. Joseph Stiglitz is advocating prizes for example:

    http://www.heise-online.co.uk/news/Nobel-laureate-criticises-intellectual-property-rights-system–/111066

    There is also the option of just nuking intellectual property and let the free marlet work. In my case I’ve just stopped or nearly stopped to buy books, movie and music, most of my collection increase are now gifts by friends and relative. This part of revenue will likely be unaffected if IP is gone (think about the incentives). Some music is now legally available both free and for pay at the same time and with great success, amazon 2008 best seller was openly available for free (latest NIN album).

    Also, about selection work for good and bad, the internet still has lots of potential against the current regime of editors. When you think about software you can see how well free and open software has done in selection by quality against the still existing traditional editor monopoly. Software is of course a special form of work, but by how much really?

    I will also remark than society and politicians have already taken wide-ranging decisions that made the life of millions of blue collar worker very difficult (and sometimes deadly) all around the world (laws against unions, unlimited capital and goods movement with unexistant rights for people to move, etc…). Most of the benefits of intellectual property accrue to lawyers and big corporations, why would it be so hard to let it go? After all it’s a small decision.

    Sincerely.

  21. Way late to the discussion on this or the prior post.

    But here’s my take, based on your facts (i.e., no first sale version of the book available in any format):

    The purpose of the copyright law is to create an economic environment which encourages creativity by awarding control of the use of a created item to the author and by extension, the publisher, on the assumption that those people will be encouraged by the potential financial rewards to make the article commercially available during the period of copyright protection.

    A book which is not now available in any first sale format from the
    author/publisher has been abandoned for commercial purposes, and therefore the purposes of the copyright law can no longer be achieved.

    I can’t see any reason that an author/publisher who is thwarting the purpose of the copyright laws by not making the book available in any form should be permitted to restrain possession of the book by the public.

    I can’t see any reason to permit the author/publisher to control non-commercial redistribution of a book where commercial abandonment has occurred.

    So I don’t see any reason why, when those are the circumstances, an end user can’t do whatever he wants with a book, in whatever format, so long as he doesn’t attempt to benefit commercially during the copyright period. It’s hard for me to see why that isn’t “fair use.”

    Your obligation is to make a diligent search for an accessible point of sale for the book. If there isn’t one, then there’s nothing to feel guilty about in downloading the “pirate” copy.

    Okay, I’m sure that has all been said in one way or another. But here’s my question:

    Why, in today’s internet environment, doesn’t an author or publisher simply download a copy of the pirated book, and throw it up on a web site with a link to PayPal? Or better yet, put up the site, link to PayPal, and provide the reader with a link to the pirate site, so that readers can pay for the book, while the pirate site does all the work and pays for the bandwidth.

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