On copyright

I saw this on BoingBoing earlier this week and thought it was especially appropriate as my own country moves towards adopting a stricter set of copyright laws. In summary, the presenter cites the fashion industry as an example of a world that not only survives but thrives under a complete lack of copyright protection. The thing that I think makes this argument especially compelling to me is that the arguments for protecting fashion under some form of copyright are the same as those being used by most media-centric industries today – and yet the fashion industry is still doing quite well without these protections. I like the comparisons drawn between music sampling and fashion sampling. When sampling music, no matter how small the sample, you're legally required to secure the rights. In fashion, you can outright copy someone, and as long as you don't use their name on the product, you're not breaking the law. The presenter argues that far from stifling creativity, the allowance of this sort of sampling in fashion drives innovation.

As a software developer who has used and worked on both open source and proprietary software, and as a musician and writer who has spent many years and will likely spend many more honing his craft (who has also sold music and played for money, albeit chump change at the local level), I think I'm pretty qualified to say something about copyright. I believe that creativity is valuable and that it needs to be compensated. It bugs me when someone says that I should do it for free. Or that I must. Anyone who's passionate about creating things will do it regardless of whether or not he's paid to do it. If we abolished all forms of protections and in fact made it illegal to make money off of works of art, we'd still have works of art. It's not a rational economic choice that one makes to be an artist. But when you allow someone who truly loves their craft the ability to also pay their bills and maintain a reasonable level of comfort with it, everyone wins. You get better quality art simply because they're able to spend a lot more time practicing their craft.

So, I don't come from the Napster-flag waving crowd. I think creative people, especially artists, are undervalued and always have been. And I hope everyone keeps in mind that even some of the most famous and wealthy artists were once independents who went home after a full day of work and, instead of turning on the TV, spent another six to eight hours sweating over their craft. If they're not deserving of at least your respect, I don't know who or what is. And if you think that what they produce is of value, you should find a way to support them, no matter how small. Yes, some people lucked out. Some people win the lottery too. That doesn't mean that there aren't a whole bunch of other people who actually deserve the credit they get.

That said, how does extending a copyright to a song seventy years after my death help me to create? Why should my heirs be able to live off of one or two very successful works, if I were to produce such things, without contributing anything of their own to society? Why should you have to jump through so many legal hoops to pay homage to another artist by sampling his work? And if you're a big fan of a band or movie, should you really have to risk legal action in order to help promote them by passing their stuff around to your friends?

That last action is, of course, classically referred to as piracy. And, to be fair, sharing music out of a hard drive and using it as a sort of currency to get other music you want (unless you're okay with the much frowned upon practice of "leeching," as it's referred to in the file sharing community), isn't quite the same thing as saying to a friend, "Hey, you've just got to hear this band! They're amazing! I'll send you a track!"

But who's fault is that? Any market that is made illegal (such as the file sharing market) is naturally distorted because of that illegality. You can't say that it would have exactly the same characteristics as a similar legal entity that had a few reasonable controls placed on it. For example, if people weren't worried about being sued for sharing files, they'd be more open about it, and you could use that data to market to them and/or implement fee structures that everyone thinks are fair.

As an indie musician, even doing short runs of 500 CDs, it costs about $2 per copy. I know this because I've done it. For a few thousand dollars, you can have the equivalent of a million dollar 1980s recording studio in your home. I know this because I have such a studio, and I've watched over the years as the sound that only the pros could afford fell further and further into my price range.

Fans trading music around can end up doing your marketing for free. Most indie artists I know would love for people to start "stealing" their music. Our enemy is obscurity, not piracy. Get the obscurity thing out of the way and most indie artists can do just fine on their own.

So where do those extra $13 per CD really go? That markup might be necessary, but you have to be able to convince your customers of that. Notice that I said "convince them of that," not "compel them to pay that." When people see indie musicians producing often more inventive music at the same or lower price (when these musicians are not able to take advantage of the economics of scale), you need to find a way to justify your own price.

In my mind, the biggest contributing factor to piracy and its more harmful aspects, is that we've barely even tried to recognize the new digital reality. The music industry is just starting to. It took them over a decade. How long for the movie industry or the book industry? Or the manufacturing industry? I can't wait until machine fabrication becomes so accessible that people start trading design specs so they can print off a brand new pair of Nikes. We might as well start thinking about how we're going to compensate people in ways that encourage the flow of ideas instead of stifling them because the world is only moving further in that direction. There's no going back. Let's just accept that, embrace the future, and try to save what's truly of value in the present.

Copyright law, at least as it was applied in the nineteenth and twentieth centuries, just isn't compatible with what's happening. We need to accept this and move on, instead of tying ourselves in administrative knots. And somehow, it seems, we need to still convince our leaders (in industry and in government) of this. Maybe we need to buy them all iPods or something.

Because instead of communicating and adapting, they've gotten the lawyers involved – and nothing drives up the cost of anything creative like getting the lawyers involved.