The Bad Science And Greed Behind The “Intellectual Property Inhibiting Innovation” Argument.-Full Post

For some time now the web/technology lobby has been arguing that copyright and other forms of intellectual property rights are stifling innovation.  And if you don’t actually  think about it you might agree.  I mean it sound sort of like the argument against government over regulation. Having to get permission from all those IP owners.  And then having to pay them?  Bad for innovation!

But is this really true?

No. And  the evidence is right in front of us.  Sites that exploit artists by ignoring copyright obligations are not any more innovative or “better” than sites that honor copyright and don’t exploit artists.  You can easily measure this. I’ll show you  how in part two. .  The only reason consumers prefer these sites is because they get the stuff they want without paying for it. And the only way they can do that is by ripping off the artists.  This is not innovation.

Second the Apple App store provides a stunning example of the innovation that occurs when you protect intellectual property.  When you allow content creators to be rewarded for their efforts innovation blooms.  And  remember it’s not just those that create the content that profit from these works. Consumers are richly rewarded with very useful and stable products.    Everyone wins. It’s a net plus for the economy.

With a little more work you can compare the levels of innovation in countries with weak intellectual property protection and copyright protection with countries with robust IP protection.  There’s a reason China did not invent the iPhone, the web browser or search engine.

In fact you could argue that  the very triumph is of western capitalism is due to our decision to reward innovators by protecting IP.  The collectivist soviet union was brought down not so much by our missiles and aircraft  but by our robust economy and snowballing innovation.  They couldn’t compete.

That’s why I find it curious that there are a number of strange academic and “scientific” studies on the horizon attempting to show the opposite.  Call me jaded but I’m pretty sure  the next few months the digital maoists will be up on capitol hill waving their little red “internet freedom” books citing these studies.

This  is one from the National Academy of Sciences that is studying whether copyright inhibits innovation.  Much like Tony Blair telling his ministers “the fix is in” on the Bush administration’s Iraq pre-war intelligence,  I was told by several people  that this study has been “hijacked”  those that want to set us back 400 years by collectivizing intellectual property.  These studies often use private money to help fund and determine who’s on  these “ad hoc” committees,  hence they can be hijacked by commercial interests. And looking at the list of contributors to the study? I’d say the fix is in.*

Click to access w17503.pdf

Here is a study from the amusing  Pop Economist  Joel Waldfogel. Normally I like this guy.  He is arguing the same point but in reverse.   This is a little harder to explain. But basically he is arguing that he can measure the “quality” of music. And since advent of  file-sharing the “quality” has not decreased therefore file-sharing has no effect on musical “innovation”.  Which also implies that  this kind of copyright does not encourage innovation.

Don’t worry about it if you didn’t follow all that.  Just remember you laughed or scoffed when you read “he can measure the quality of music”.   And you should.   No one can measure the quality of music.

To Prof Waldfogel’s credit he has devised an ingenious and very complex way of  seemingly measuring current  music “quality” and comparing it to past music.  The only problem is it does no such thing.  Frankly it doesn’t measure anything.  Further I’m reminded of a phrase normally applied in the financial industry:  Complexity is Fraud.  In this case a needlessly complex formulation leads to false conclusions.

I say needlessly complex, because there are much simpler and concrete ways to measure whether file-sharing is harming musical innovation:  sales,  length of albums,  time between albums,  number of “hits” on each album, ratio of old to new music in films and TV, etc etc.

But regardless even if you could measure “quality” and hence make an argument that not enforcing copyright isn’t harming music “quality”.  This study is totally useless to the broader argument about IP in general. Musicians can (unfortunately) sometimes subsidize production of recorded music with live revenues. Movies studios, actors, directors,  authors, comic book illustrators can not do anything like that.  Beyond the entertainment business what would Apple do  if Foxconn could just make it’s own version iPhone?  Sell t-shirts to recoup their R&D costs?  I believe the copyleft knows that because musicians will make  at least some music regardless of whether they are paid or not,  that some musicians can fall back on live revenues, they have a golden opportunity to argue copyright stifles innovation.  If this sounds totally cynical it because it is totally cynical.  How many digeridiots are out there arguing authors and film directors need to sell t-shirts? well actually there are a few,  but not many.  Everyone knows that won’t work.   The entire copyleft is focused on musicians cause this is the only place they can sort-of-just -barely make the half assed argument.


One of the most common arguments about innovation and copyrights concerns music copyrights.  In particular it is often argued that copyrights are inhibiting innovation in the music tech space.  The idea is that  sites that ignore copyright  like The Pirate Bay provide a much better service than the legitimate music sites. Never mind that these sites out-sleaze the record labels by paying nothing to the artists. Magazines like Forbes hail them as hubs of innovation! “Piracy is a service problem” the magazine states.

Here is Google’s Sergey Brin making the same argument:

“I haven’t tried it for many years but when you go on a pirate website, you choose what you like; it downloads to the device of your choice and it will just work – and then when you have to jump through all these hoops [to buy legitimate content], the walls created are disincentives for people to buy,” he said. **

And yes if you don’t think about it very hard this seems to ring true. Until you actually engage your neurons.

Are file-sharing sites really better than legitimate music sites like iTunes?  Are file sharing sites really hubs of innovation?  Do they really provide consumers with a better service?  I mean you can test this in your own living room.

And we did.  We put the Trichordist interns** to work.  We had a race.  I was to legally download “Poker Face” by Lady Gaga and the interns were supposed to illegally download it.  I beat them both times. The first time using iTunes and my iPhone and the second time using my MacBook and Amazon MP3 store. Both times I had the song in less than one minute and thirty seconds.

We tried the same thing with a much more obscure song.   “Swim” by The Glands.  Again I won handily.  Actually the interns couldn’t even find the album version of “Swim”.  About ten minutes later  they found a legitimate free live version, giving lie to the notion that File-sharing/BitTorrent provides a distribution service for obscure and independent artists.

I was intrigued by the fact that the obscure yet critically acclaimed  Glands were not to be found on the illegal sites.  I started going through my own catalogue and discovered many of the rare Camper Van Beethoven tracks were also not available on bitTorrent or other file-sharing sites.  Time and time again I have heard from people that illegal file-sharing provides fans with access to these obscure and hard to find songs and artists.  Not true.  Yet all these “rare” and hard to find songs were readily available in iTunes.

This is typical of the bad science at the heart of the “copyright stifles innovation” argument.  It is an argument that flies in the face of easily accessible facts.  It is remarkably easy to disprove this argument yet no one seems to challenge this argument.  It’s another one of those quasi-religious beliefs we often find associated with the web.  It is one of the tenets of the religion of the internet. Proponents are given a religious exemption from the facts.

Further Sergey Brin and others are confusing an illegal arbitrage strategy with innovation.  Arbitrage is a strategy whereby a buyer exploits the difference in price of a commodity in two different markets.  In other words the file-sharing sites are exploiting the price difference between the “free”  illegal unlicensed version of the song  and the licensed paid version on iTunes or Amazon. This price difference, this arbitrage, is why file-sharing is profitable.  This is not innovation.  “The wall” brin describes is not the disincentive.  “The wall”  does not exist.  The disincentive is the price. Here Brin is  simply providing  a bullshit rationalization for unethical behavior.

(All proponents of file sharing: If you want music for free, if you feel that artists don’t need to be compensated, be a man about it,  just come out and say it instead of making up these bullshit arguments.)

When Google, as it is wont to do, argues that it is being hamstrung by “Hollywood” and copyrights you have to wonder if they are smoking crack.  Google’s revenue rose 29% last year to 37 billion dollars!  The much less evil Apple saw  iTunes revenue rise to 6 billion in 2011 and is predicting growth of 39% annually.  Spotify isn’t having a problem growing,  so where is the hell is innovation being stifled?  Google TV?   That’s not copyrights stifling innovation that’s just a sucky product.

It also should be also noted that Google suffers from terrible corporate governance and maybe shouldn’t be made the example for all the tech industry.  I feel bad for Google shareholders,  If this company had some “grown-ups” on board it’s possible that someone might have suggested that “declaring war on hollywood” was a bad idea when the very success of Google TV depends on those you are declaring war upon.  Instead Google TV becomes another expensive shareholder boondoggle like the Chrome Book or Driverless Car.  But I digress.

Maybe it’s just me,  but I’m tired of hearing how artists like myself,  how our  constitutional rights to control our own artistic works are inhibiting innovation in the tech world. It’s simply not true. Further Google should stop blaming copyright for their own unforced errors. The tech/web industry has been enormously successful.  How much more money do these guys need?  When your company is  wildly profitable and you are demanding even more ?

“There’s a word for that:  Greed”


A few months ago I spoke at the SF Music Tech Summit.  My talk was entitled “Meet the new boss, Worse than the old boss?”.  As a bit of hyperbole  I compared the new digital paradigm to the old record label model.  My conclusion was that under the new digital distribution model the artist gets a lower share of recorded music revenue.  And many of the profitable players in the new digital paradigm pay artists nothing.  Zero. Zilch. Nada.  As part of my presentation I was gonna stream  Nyan Cat with the following caption:

“Our Dystopic Future: This is what you get when you don’t pay content creators”

What is Nyan Cat?  If you are under 40 I suppose it needs no explanation.  But if you’re older?  Well Nyan Cat is the Pet Rock™ of the YouTube generation.  A nearly static animation of Nyan cat with an endlessly looped theme song. This version is 10 hours long.   And it has 457 trillion views or something like that.

I wouldn’t bother making fun of Nyan Cat except for the fact that some on the Copyleft regard Nyan Cat as a great cultural achievement.  I’m not kidding.  As detailed in an earlier Trichordist post  Fight For The Future gives out Nyan Cat awards to people who do “really awesome things for the Internet”  like making sure artists continue to be exploited by for-profit file-sharing sites. ( Right on! Fight for the Power! Way to unstick it to the man!)

Fight for the Future has all the hallmarks of another one of these Astroturf  “internet freedom”  groups but they have a special twist: a teen idol pop group sort of  cuteness.  Their “about” page reads more like it was written for a teenzine than a ”foundation”. They got Justin Bieber on their side! How adorable and teen oriented! So it shouldn’t be a surprise that we get Nyan Cat showing up with Fight for the Future for extra special “cuteness”.

But cute or not we are “sharing” that Nyan Cat Award.  We’re gonna start giving out our own Nyan Cat awards to deserving Digeridiots.  


I got in a really tired and  boring argument with someone recently about what the founding fathers intended when they decided to:

promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

It’s totally clear. There are no subtle distinctions.   The founding fathers believed that people would innovate if they knew they would be rewarded for their innovations.    That’s the purpose of copyrights.

Right now some dumb ass from the copyleft is about to email me a Jefferson quote concerning patents. First of all  Jefferson would say anything after a glass of wine or four.  But more importantly quoting Jefferson instead of Madison on copyright is like asking Ringo instead of John about Strawberry Fields Forever.  Wait it’s worse. Quoting Jefferson instead of Madison on copyright is like asking Charlie Watts about Strawberry Fields Forever.  Again Jefferson was nominally  the patent guy!  But I digress.

The point is this. Copyright and intellectual property have been wildly successful.  And here are some easy quantitative ways to measure it:

Ask people how much they are willing to pay to watch Nyan Cat or any other user generated youtube phenomenon.  Compare that to how much people are willing to pay to watch The Avengers or some other Mega blockbuster forprofit and studiofunded movie. Do this over and over again. Unpaid content will always lose.

Compare the sales of state funded movies with sales of privately funded movies. (quantity)

Compare critical acclaim. Are there any notforprofit movies in the AFI top 100 movies?  (quality)

This seems obvious to everyone right? I mean it’s stupid in this day to have to defend the right of creators to profit from their work? It’s stupid to have to explain that people will innovate if they are rewarded?  That this intelligent  system benefits everyone. right?

So did I wake up this morning in Soviet Virginia?  Why is a moderately successful rock musician having to argue the basic tenets of capitalism with the tech industry?

And why is the very pro capitalist  tech industry arguing against private property rights, one of the basic tenets of modern capitalism?  You know, like the right to sell and own shares of stock?

Especially  since within the Tech sphere you see many current examples of very very strict IP protection encouraging innovation not inhibiting it.

The Apple App store as a closed and protected system ensures  software developers will be rewarded for their efforts.  There is virtually no piracy in the apple app world.  Innovation has blossomed.  Developers, Consumers and the platform creators have all been richly rewarded.

The computer gaming world? The best talent, the most popular games and virtually all the money is in the DRM  (digital rights management) protected ecosystems like Xbox or Playstation.  Microsoft even goes so far as “banning” individual xbox’s from their servers if they detect “cracked” or pirated games.  If in fact copyrights inhibiting innovation why isn’t it hurting  the console gaming companies with their hyper strict DRM?  Shouldn’t their sales an innovation be lower?

Valve software which operates the Steam™ platform and is usually seen by gamers to be less restrictive  than the console gaming companies,  is ultimately just a digital rights management system.  A system for protecting the creators rights to profit from their copyrights.  And once again a highly innovative ecosystem of independent game makers has developed around this platform.

Sometimes the Digeridiots throw Steam into the anti-copyright pro “remix” camp because Steam has a lot of  “free” user generated content.   While it is true that Valve allows users to “mod” their games, make custom maps and host independent servers–Valve decides to let them because they have that choice. The notion that the creators of this user generated content don’t treat it as their IP and attempt to exploit it as their own is belied by a black market of kids buying and selling “admin” privileges for their custom maps and servers.  What are they selling?  Property rights in admin privileges.

The anti-copyright crowd can’t seem to bring themselves to admit that there is something  natural and fair to the notion that idea creators and authors should have the right to control and exploit their own creations.  In order to support their position that copyright laws need to be weakened or eliminated they have to make a non-reality based argument that somehow “the public” is suffering.   First the public is not suffering.  Second as my libertarian friends rightly point out, whenever someone is advocating violating individual rights  in favor of  “group rights” you are usually in a danger zone.  The copyleft is advocating a digital maoism.  A forced collectivization of intellectual property.  The “copyright is harming innovation” putsch  in academia is the first step.


This is from the home page for Lawrence Lessig’s book “Remix”.

For more than a decade, we’ve been waging a war on our kids in the name of the 20th Century’s model of “copyright law.” In this, the last of his books about copyright, Lawrence Lessig maps both a way back to the 19th century, and to the promise of the 21st. Our past teaches us about the value in “remix.” We need to relearn the lesson. The present teaches us about the potential in a new “hybrid economy” — one where commercial entities leverage value from sharing economies. That future will benefit both commerce and community. If the lawyers could get out of the way, it could be a future we could celebrate.

The academic Lawrence Lessig is the intellectual leader of the Web 2.0/ Hybrid Economy/Remix movement.   Lessig argues that there is a store of value and innovation locked up by “antiquated” copyright laws.  The idea is that if everyone could freely “remix” others work innovation would blossom and great value would be released.  In particular he states that then “commercial entities would leverage value from the sharing economies.”

Or as Stephen Colbert smartly put it to Lessig himself .

Colbert: Well let’s see (laughing)…so the hybrid economy is where everybody else does the work and Flickr makes all the money?

This in a nutshell is the main problem with Lessig’s formulation.  He would weaken copyright so that corporations could make money from artist’s copyrights (and the efforts of the “remixers”) without compensating them!  Does this sound fair to you?

I’ve been challenged before on this exact same statement.  The challenge is always  “but Lessig isn’t against compensating artists and copyrights.” And they point to some statement where Lessig says he “supports” copyright.     But the kind of “copyright” Lessig supposedly supports is quite different from the rules of copyright that the rest of the world has agreed upon for hundreds of years.  It doesn’t really  protect artists from unauthorized exploitation so it’s not really copyright at all. It’s like saying that you like “guacamole” but then you have your own private  recipe for “guacamole” that is actually creme brule but you just you call it “guacamole”.

And it is pretty clear that what he really means by “remix economy” is a system that allows commercial interests to profit from the work of artists, professional and amateur.  There is nothing groovy, idealistic or  progressive about it.  It’s unpaid exploitation for corporate profit.

That is why Lessig takes great care in creating a public face of being against corporate exploitation and for some ill defined cultural eden.   Yet all his theories benefit corporations the most.  Especially YouTube and Google.  After a while, you start to believe that he’s way too clever by half for this to be unintentional.  I believe that he presents himself as friend of artists when he is actually a bitter, bitter foe.   Why would he choose the language he uses? “Hollywood should get over it” or “In support of Piracy”.  He telegraphs his contempt towards those that create art in virtually all his essays and books.  It’s often seems personal.  Maybe it’s like the Saturday Night Live skit  that “explains” Albert Goldman’s hatred of John Lennon. In the skit Goldman was The Beatles trombone player until Lennon fired him.   Was Lessig kicked out of a ska band?  Did  “hollywood” kick his ass in a couple court fights?   Is that what all this is about?

This reminds me of the classic book by Richard Condon and film directed by John Frankenheimer, The Manchurian Candidate.  Lessig is “for copyright” but secretly he is on a secret mission to destroy copyright and impoverish artists. This is why I refer to Lessig as The Manchurian Candidate.    And here is the rather obvious explanation:

Everything that Lessig proposes about the Hybrid/Remix economy is possible right now under the current copyright regimen.  Except for one small item.  The only difference between Lessig’s ideal hybrid economy and the copyright protected creator economy?  In Lessig’s proposed hybrid economy corporations would not have to seek permission of artists to use their work or even compensate them.  That is why he wants to weaken copyright.  (Although I would not support it)  I could understand if he wanted to create a system of collectivized ownership for state controlled exploitation, but he doesn’t want to do that.  He wants to specifically collectivize artist’s works for corporate exploitation.

Of all the digital ink that has been spilt over Lessig’s pseudo-intellectual tropes,  not one writer has noted that Lessig is proposing a solution to a problem that does not exist.  Again why is it left to a moderately successful indie rocker to do the job of serious journalists? Where are the grownups?

 The “remix” economy already exists and is doing just fine.  It’s been around for at least 35 years.  And it did not require us “mapping a way back to the 19th century”

You say, “What the remix economy already exists?!!!”

Yes.  Have you ever heard of Hip Hop?

Hip Hop already has a working system for the permissions  that Lessig says is being inhibited by copyright law—it’s called a sample license.  The one main difference is that sampling licensing in Hip Hop is generally more fair than the corporate exploitation proposed by Lessig.  This is fundamentally because it starts by respecting rights.   The permissions conventions regarding sampling at least try to treat all stakeholders fairly.  Hip Hop is the most popular form of music on the planet.  It has produced great innovation and value. And it has done it while generally respecting artist’s rights and taking the time to get a license. Further–copyright has forced corporations to share the wealth among the independent writers, producers, beat makers and sampled artists.  If we adopted Lessig’s view of copyright,  there would be nothing stopping a giant music conglomerate  from turning themselves into a Web 2.0 “remix” site and start paying the artists nothing!  Yes you read that right, nothing.

Seriously, has anyone ever thought this through?


So if it’s so obvious to everyone that intellectual property encourages innovation instead of inhibiting it  why is the National Academy of Science sponsoring a study on intellectual property and innovation?

Greed. Plain and simple.  Very narrow commercial interests would make more money if we weakened copyright or just completely got rid of IP.  They’d make more money in the short term anyway.  Never mind that the long term effect on the US economy would be disastrous.  These same commercial interests are enormously rich and powerful. They are able to manipulate the political and academic discussions through the money they funnel to political advocacy groups and academic institutions.  Just look at the list of corporate sponsors to this “scientific study” if you don’t believe what I’m saying.

 And besides, should scientific studies have commercial sponsors?  Why don’t we let the oil industry to fund a study on global warming?
Yes it would be fantastic for a very narrow set of commercial companies if they didn’t have to pay anything to movie studios,  television networks, authors or musicians to use their works. Google would be able to make billions by servicing ads to the no-longer illegal file sharing.  Heck they wouldn’t have to play charades with the “mail order brides” (a/k/a Human Trafficking) sites.   Kim Dotcom wouldn’t be in jail and he would be able to buy more yachts and pet giraffes, maybe even a Dornier Alpha Jet.  A little of that money might even trickle out to exotic game breeders and yacht manufacturers, maybe even NASA.

But this is not innovation.  This is stealing from the creators—in one of the most parasitic ways I can think of.

Sadly few people really seem to understand innovation anymore.  Innovation isn’t just the “giant leaps forward”.  Yes the steam engine,  electricity,  the internal combustion engine,  wireless communications and even the Internet were all great innovations.  But much of the innovation that creates wealth and increases productivity are in the tiny improvements or  thousands of small new uses—remember the wah-wah pedal before Jimi Hendrix?  Innovation often atomizes after giant leaps forward.  Thousands of small corollaries to the big innovation are rooted out by small teams and individuals in the shadows of the original breakthrough.   For instance the unsexy project management software industry probably has probably contributed more to our GDP than Facebook.

Much of the handwringing about innovation is really unnecessary. Innovation is still occurring. It is likely accelerating.  The problem is that many in the tech industry are wrongly picturing what innovation looks like.  They are looking for big breakthroughs  like driverless cars or spaceships.  Or they are looking for things that look just like the innovations of the last decade.  Maybe we’ve wrung all the great innovations out of “social”  and web 2.0 websites.  But  it’s likely somewhere someone is creating a little app that is gonna revolutionize police work and save communities billions of dollars a year.  Or something like that.  Innovation is not always sexy.

Or sometimes innovation that creates great wealth is whimsical. Video gaming anyone?  Angry Birds?  It’s somewhere much farther up the hierarchy of needs but still adds great value to our GDP.  Many miss that innovation is occurring in areas that people now regard as luxuries but in a few decades may be seen as necessities.   May I remind you that TV, mobile phones and high speed internet access were all once regarded as luxuries.

 I read a great blog recently by Nicholas Carr on this very subject.  He proposed a Hierarchy of Innovation.  It’s well worth reading and I have to say his blog helped crystalize my thinking on this topic.  (Thanks Nicholas!)

We should be careful when listening to Silicon Valley on innovation.  While they were the most recent source of “giant leaps forward” they may have taken their technological playbook as far as it will go.  Their handwringing about innovation is actually more likely their own existential crisis,  not a problem with innovation in general in this country.    Before we throw out intellectual property-something which has time and time again encouraged innovation -we should consider that this argument is largely coming from Silicon Valley and their Manchurian Candidates.


Why are we always picking on Google?

They started it.

On the web today there exists an army of foundations, charities, bloggers, fake studies, fake musician advocacy groups, DC lobbyists and manchurian candidates that advocate  the weakening or elimination of all copyright and intellectual property protections.  What do many of them have in common?  (My hunch is all of them.) Direct or indirect funding from Google.  “Indirect” could include foundations funded by Google, or foundations that black box contributions from Google that get washed through a 501(c)(3).

Many people misunderstand something about Google.  “Don’t be evil” is not their corporate slogan.  It’s their corporate reminder.


*The project is sponsored by the National Science Foundation, Institute of Museum and Library Services, Alfred P. Sloan Foundation, Ford Foundation, Google (Tides Foundation), Microsoft Corporation, Intel Corporation, American Chemical Society, Business Software Alliance, Motion Picture Association of America, and the Entertainment Software Association.
** The Trichordist has no interns.  The “interns” consisted of (very hungover) members of the Cracker touring party.

4 thoughts on “The Bad Science And Greed Behind The “Intellectual Property Inhibiting Innovation” Argument.-Full Post

  1. David –

    You make some good points. Unfortunately, they’re drowned out by how far you take them – you’re essentially doing what you accuse Lessig of, over and over again.

    Questions – do you think there should be *any* limit on copyright? If so, do you think the current periods are fair?

    Comment – you do a fair amount of straw-manning in the piece, but one that jumped out at me was your:

    “Compare the sales of state funded movies with sales of privately funded movies. (quantity)

    Compare critical acclaim. Are there any not-for-profit movies in the AFI top 100 movies? (quality)”

    Well, ummm, since the western world is largely capitalist, by definition you’re gonna get more ‘privately funded’ movies. But you have cause and effect running sideways, if not fully backward. The implication – corporate capitalism good, other options, not relevant – isn’t exactly on point. Just to take an easy one, if you looked at the top 10 movies in Russia in, say, 1970, they’d all be state funded.

    And a lot of them would be awful. But you’d also find Tarkovsky’s ‘Solaris’ on the list, and probably a couple others worth watching.

    Moreover, ‘privately funded’ is a slippery term. I think you want it to sound like “the blood, sweat and tears of ordinary folk” but it can also include, fr’instance, patronage of both the corporate and non-corporate kind. I’m no expert, but I believe some guys named Bach, Mozart and Beethoven wrote under what was largely a patronage system.

    You also argue – I think because you’re trying to offset the populist appeal of remixers – that ‘corporations’ will best be able to exploit weak copyright for their own nefarious ends.

    Are you seriously arguing that corporations aren’t the main beneficiaries of strong copyright? That their ability to enforce the rules ends up creating a playing field almost entirely tilted in their favor? That given free rein, they don’t decend as quickly as humanly possible to stupidly greedy behavior, as in the famous “Simpsons on in the background” case?

    You are also way too dismissive of what free can do. Its basic tendency, to read your note, is toward lolcats and the like. I think you have acknowledged in passing that the huge amount of free software available is the result of software coming from a different tradition or something, but I’d like to see your thoughts on how you reconcile Linux with your ‘only by rewarding innovation through the system of copyright will we save ourselves’ meme.

    (Linux, incidentally, is a pretty good mixed case of corporate patronage and rewards by other means, in this case, reputation.)

    Finally, I think your example of sample licensing is a good example of how two-edged this stuff gets. Again, I’m no expert, but I don’t believe the licenses are compulsory, and they can be very, very expensive, which has resulted in hip-hop artists moving more and more toward live bands. Not such a bad thing, but it does start to close off the creativity of seeing what you can do with ‘ready mades.’


    Scott Atkinson
    Waterttown NY

  2. Interestingly enough, Porn producers are having the exact same problem- free downloads have taken the profits out of the industry.
    Just like CD sales fall every year, Porn profits have been falling every year lately too, for the same reasons- who wants to pay when you can get it free?
    Atlantic article on the current state of Porn online, and the only idea they have come up with to save it- which is basically Itunes for porn.
    Except, as mentioned in the article, it probably wont work, as there is no band or brand loyalty in porn.

    This is only one of many examples of the internet doing the same thing to different old business models.

    The newspaper industry has had the same problems- only aggregators seem to exist any more, with no original content, as nobody pays reporters.

    As you mention, somebody IS making money- hardware and access suppliers. But getting a share of that to content providers, be they X-rated movie actresses, journalists, or musicians, is the hard part.

  3. The argument made here – that stripping away copyright laws and allowing piracy and “sampling” of all types hampers innovation – is compelling. It is true that if you allow parasites to step between an innovator or artist and the reward for his work, that person and others like him are less likely to innovate in the future. But this article gives the impression that all IP is good for innovation. And that is just not true. As the author states, the idea that “The founding fathers believed that people would innovate if they knew they would be rewarded for their innovations.” is the principle behind IP laws. However, today a huge segment of IP (patents, their applications, and the laws surrounding them_has become so twisted, that rather than incentivizing innovation by providing a structure wherein the public directly rewards helpful innovation, it stifles it. Patent trolls are not a myth. The fact that you can create or buy a patent on an idea (or in practice, thousands), do nothing to take that idea from theory to reality, and then, when an actual innovator (to whom the existence of this patent is unknown) puts time, capital, and effort into turning the idea into product, sue that innovator, is exactly the type of piracy this article denounces. This American Life had a compelling piece on patent trolls –

    that does a good job laying out how it happens. Beyond that, pharmaceutical companies devote huge amounts of time and money not to developing new medications, but to preventing other companies from producing a) more cost effective versions of certain drugs, even after the patents on those drugs have or should have expired, or b) a drug that does not exist yet, but that relies on some strain or component that is part of a rival’s patent. Many white shoe law firms today have IP departments, and these departments do little but throw up roadblocks to scientific innovation in medicine. Politics aside, that is a fact. And the resources wasted – from the lawyers’ fees, to the patent applications, to the research that is never actually put into practice, to the higher cost to the consumer – are enormous.

    Incentives for innovation exist on a spectrum, from complete and open use where the innovator receives no credit, to strangling protections where a wisp of a concept can be owned and locked away. The author clearly articulates how attacks on the foundation of IP will lead us to the one end of the spectrum. But the other end of the spectrum is just as active, and just as destructive. Only by operating in the middle, protecting the rights of an innovator, but only those of an innovator who actually produces something, will we get a system that rewards creators, and the public.

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