Kort Explores conundrums of the human condition

by Kort E Patterson

Copyrights should have been a good idea - and arguably were during parts of their varied history. However, after centuries of incremental distortions, copyrights have mutated into a clear and present danger to the basic rights of citizens.

At the core of the controversy is a historical misconception regarding the nature and purpose of copyrights that continues today. The popular myth is that copyrights protect the rights and ownership of creators. The idea of protecting the rights of creators has always been more acceptable to the public than protecting the monopoly rights of reproducers.

The popular misconception of the purpose of copyrights was encouraged centuries ago for much the same reasons that it continues today. Those currently seeking to expand and extend the scope and duration of copyrights haven't gone out of their way to dispel the popular misconception since it also serves their purposes.

The name is far more accurate than the myth implies - copyright: the right to copy. The first copyrights were essentially non-compete agreements within a cartel of English printers. A copyright established a printer's monopoly right to print a particular book.

The original objective of copyrights was to protect the printer's investment in the manufacture of a book by eliminating competition from other printers. The authors of the books weren't involved or considered at all. Then as now, the reproducers effectively owned the works they produced, and copyrights had no direct beneficial effects on authors.

The writing of books was generally considered to be a work for hire, with the only compensation paid to authors (if any) being a one time purchase of their work. The aggressive suppression of competition in the printing business included the violent intimidation of competitors, and the physical destruction of their printing presses.

This constraint of trade also artificially restricted the alternatives for authors. The power of the printers allowed them to minimize the costs of purchasing content for books by minimizing the rights and compensation of authors. Control over access to the only means of publishing books allowed the printers' cartel to force authors to accept onerous conditions including constraints on their future works.

The only persistent right authors were generally considered to possess was the moral expectation that their works wouldn't be altered by the printer who reproduced them. It was only much later that the concept of paying ongoing royalties to creators appeared.

Seeking to expand their ability to control their market, the printers convinced the government to make their cartel's restraint of trade agreements official policy. The English crown recognized that the power to grant monopoly rights to printers would also increase their ability to control those printers. They were particularly interested in using the printers' cartel to attack their opposition while suppressing adverse information. The crown switched hands between Catholics and Protestants several times during this period, with the printers' cartel compliantly serving the agendas of whoever was in power at the moment.

In order to make the creation of government protected monopolies more palatable to the masses, the myth of copyrights protecting the rights of creators was wrapped around the real objective of protecting the monopolies of printers. As a concession to appearances, copyright statutes started "recognizing" the initial ownership of creators. The early printers eliminated this minor complication the same way modern record labels do today - by requiring creators to sign all of their rights over to the reproducer as a condition for producing their works.

By the time America was established, the balance between the interests of creators and reproducers had shifted in favor of creators and the public domain. The founding fathers of America attempted to implement the prevailing wisdom of their time when defining copyrights. American copyrights didn't mention the rights of reproducers at all - although they were quite clear about the timely release of copyrighted works to the public domain. Copyrights could, however, be transferred to others - including reproducers. All the reproducers had to do was convince the creators it was in their own best interests to sign over their copyrights - all nice and legal like...

The real value of current copyrights to creators can be measured by how much they typically earn from their copyrighted works. The hard reality in the music industry is that artists typically earn little or nothing from "their" recordings. It's distressingly common for artists to publicly complain that they haven't received a dime of the millions of dollars their creative works generated for the reproducers and resellers. For the vast majority of artists, the promotional value in selling tickets to their live performances is the primary benefit of having a recording in retail stores. The production and sale of recordings has become essentially a separate industry that has only an incidental connection with the creation and performance of music.

Control over the means of production and distribution has long given reproducers the coercive power to force creators to surrender the rights and protections that copyright laws sought to grant them. There has historically been substantially more material created than was needed by the reproducers - ie: number of books published each year is only a small percentage of the number of books written by creators. The gatekeepers who controlled the limited means of production and distribution routinely exploited the artificial surplus of creators to make surrendering copyrights the "standard" toll to get through the gate. An author who wanted to retain the copyright to his book was free to make as many hand written copies of his book as he pleased, and sell them any way he could. But if he wanted it printed in volume and offered for sale in "proper" book stores, he had to "voluntarily" pay the gatekeeper's toll.

Copyrights were seen as a necessary evil given the limitations of the production and transportation technologies of the time. Publishing a book and distributing it to consumers required substantial up-front capital investments, and an established distribution infrastructure. A monopoly right to produce a book for a limited time allowed the reproducer to recover his investment before the book became public domain. Note that there was always the intention that copyrighted books would become public domain in a timely manner. The benefit to the public good was the trade-off for tolerating the limited duration market abuses of copyright monopolies.

The early copyright monopolies were limited to relatively short periods. It's hardly a surprise that reproducers have been lobbying for centuries to incrementally increase the duration of copyright monopolies. By the American Revolution, the typical copyright monopoly period was around 14 years. The latest increases extend copyright monopolies to over four generations beyond the lifetime of the original creator - effectively turning a limited duration market abuse into a perpetual special right.

Enforcing extended copyrights has been getting increasingly difficult, and is already claimed to require extraordinary privacy intrusions and disruptions of society to be effective. On the other hand, enabling creators to receive fair value for their works on completion, followed by timely release to the public domain as originally intended, would eliminate the music and video piracy problem without any enforcement costs, privacy intrusions, or disruptions of society.

The core problem with nearly all of the current proposed solutions is that they tend to be primarily intended to preserve the market dominance of obsolete and unnecessary technology. They tend to involve artificially crippling the functional capabilities of new technologies in order to obstruct their usefulness in replacing the obsolete technology base of the legacy media industry.

The recording industry's response has been to seek artificial legal restrictions on the means of overcoming their efforts to interfere with the use of new technologies. They have sought to criminalize possession of even the knowledge of how their obstructive hardware and software works. Outlawing knowledge tends to be ineffective - otherwise we'd still believe that the sun goes around the earth, and DVD decryption libraries wouldn't be available for download from servers around the world. Attempting to artificially restrict knowledge does tend to be very effective at causing substantial harm as collateral damage. But past failures haven't discouraged those who are willing to inflict any cost on society in order to preserve their obsolete advantages.

It's obvious why the legacy recording industry wants to protect a highly profitable status-quo and preserve its control over consumer access to the creative works of artists. It's much less obvious why artists and consumers would want to cooperate with the creation of artificial market distortions and restrictions whose only purpose is to preserve the legacy limitations of obsolete technologies.

The transition to digital media and Internet distribution has been most beneficial for those artists who were previously denied market access by the limitations of the legacy distribution system. The natural predisposition of the legacy recording industry has been to seek to concentrate market demand on "wholly owned" celebrities created by the studio's publicity department, and minimize competition to their flagship products. The application of this conventional business logic to the music industry has produced high profits for the labels, but the results have been less than optimal for artists and consumers. The legacy system has effectively shut large numbers of artists out of the market, while limiting the selections available to consumers to the sometimes less than stellar performances by the record labels' designated "stars".

The reason the myth of copyrights protecting artists has been so politically useful for centuries, is because the idea that creators should benefit from their creative works, resonates with the public. The transition to digital media and distribution could well make it possible to convert the myth into reality. Eliminating the ability of reproducers to abuse their control over the means of production and distribution would liberate artists to retain some ownership of their creative works even after releasing certain rights to the public domain.

The legacy business model of the movie studios and recording labels is based on incremental sales over an extended period. This business model directly contradicts the original intentions of copyrights - that creative works should become public domain after a limited period. Enforcing long term copyright monopolies that directly usurp the public good is inherently problematic, and inevitably involves substantial enforcement overhead. It also creates a number of unnecessary complications, and converts what would otherwise be normal activities into copyright violations. The difficulties in enforcing this artificial criminalization of normal activities are now being used to justify further infringements on the rights of all citizens.

The much publicized piracy problem is a case in point. File sharing is only a problem because the release of recorded performances to the public domain has been delayed. Shortening the period of time required for creators to recover fair value for their recorded performances would allow music to be released to public domain sooner, eliminating the problem of piracy - and along with it all of the related costs and alleged needs to infringe on the rights of citizens in the name of enforcing extended copyrights.

The established old guard media industry has been lobbying government to corrupt and subvert the real purpose of copyrights since before the first copyright was issued. Over the last couple of centuries they've managed to transform copyrights from a means of protecting creators while acquiring intellectual property rights for the public domain, into a perpetual government sanctioned monopoly willing to cause any amount of harm to the citizens in order to preserve their power to exploit both creators and consumers.

The free market has not willingly supported the expanded market abuses granted to the old guard media companies through extensions and expansions of copyright monopolies. The natural function of a free market is to eliminate market abuses and excesses by creating competitive alternatives. The huge legacy overheads that the old guard media companies are trying to protect and enforce put them at a similarly huge competitive disadvantage against new digital alternatives that aren't crippled by such legacy vested interests.

Not surprisingly, the free market has created effective solutions to the excessive costs, corruption, market manipulations, and legacy inefficiencies of the old guard business model. The media companies have responded with ever more aggressive efforts to intimidate consumers and lobby government to impose artificial restrictions on the technological progress that has made their costly and inefficient business model obsolete.

Any transition to a new business model will tend to be traumatic and disruptive - especially for the vested interests in the business model that is being displaced. The greater the vested interests dependent on the old business model, the greater the effort to resist and obstruct any change that will undermine its market dominance. Some resistance is beneficial since it forces changes to prove their worth before they can displace previous alternatives. However, the accumulating distortions in the function and exploitable value of copyrights have created vested interests that are large and powerful enough to cause substantial harm to society in their venal efforts to preserve the source of their wealth and power.

The old guard media companies have sued network services, college students, little old ladies, and even children in their efforts to enforce the extended revenues resulting from usurping the public good. The industry is now seeking substantially enhanced coercive powers in order to enforce its extended monopolies - monopolies granted by corrupt politicians willing to sell out the public good in return for campaign contributions, but actively rejected by large segments of the free market.

The first impulse of tyrants-in-the-making is to find ways to extort compliance by arbitrarily withholding something the oppressed subject values. The old guard media companies want to in effect make continued access to the Internet subject to compliance with their demands. They already have the power to arbitrarily compel service providers to disconnect the Internet access of individuals they suspect may have violated their copyrights - without having to first prove their suspicions in a court of law. They are now trying to establish that same arbitrary power over American citizens.

This new power goes far beyond simply denying a few citizen access to a commercial service. The Internet has become the most effective means of communications available to citizens. Arbitrarily denying a citizen access to his preferred means of communication seems to be a pretty clear infringement of his freedom of speech. The infringement may seem relatively minor at this point, but the critical threshold will have been crossed.

Growing sectors of the free market continue to reject the extended copyright monopolies in spite of their increasingly draconian enforcement efforts. The all too familiar pattern of spiraling escalation should by now be clear to anyone willing to recognize it. Having established the principle of granting the copyright monopolies the power to arbitrarily violate the rights of citizens in the name of enforcing extended copyrights, it's distressingly reasonable to assume that the copyright monopolies will continue to demand ever greater infringements of the rights of citizens. How many rights are we willing to sacrifice just to perpetuate the venal usurpation of the public good by the old guard copyright monopolies for a little longer? Is there some point where we will finally say no more?

The efforts of the old guard media companies will eventually fail. Their obsolete brick and mortar distribution system is already experiencing the contractions and consolidations typical of end stage obsolescence. On-line sales of digital products continue to increase while sales of physical media continue to decline. The most important question now becomes how much damage the old guard will cause to society and free market capitalism in their increasingly desperate death throes.

The bigger the dinosaur the larger the area of destruction resulting from its final convulsions, and the legacy media companies are very large dinosaurs. The best outcome would be to restore the original functions of copyrights in America. Unfortunately, the long term legacy of the old guard media companies will more likely be to contaminate the creative output of our modern era with the legality-entangled residue of their venal legalized theft of the public good. At best they have doomed generations to come with having to deal with the legal residue of extended copyrights. At worst they may well have spun such convoluted webs of legal constraints and DRM minefields around the creative works caught up in the ascendancy of the copyright monopolies, that future generations will simply write them all off as too hazardous and too much trouble to bother to exploring. Extrapolating that out to the extreme, our era could become just a toxic black hole in the popular history of mankind. Our section of the time-line would be marked with "Here be dragons - and lawyers! Stay Away!". More likely the copyright compromised works of our era will be hidden away until enough centuries have passed for all memory of the RIAA and MPAA to fade from human memory. Maybe then humanity will finally be able to safely rediscover the creative works of our time.