On copyright

From Wannabe Lawyer:

Copyrights are artificial monopolies created by government statute. Ideas and expression of ideas are inherently non-rival and non-excludable. While physical items such as CDs or DVDs are actually capable of being scarce, information and data can essentially be replicated infinitely. Would cinema operators raise the price of their tickets if VCD pirates were still openly selling their wares? I think not.

I am no lover of the present copyright regime, but let's be careful here. One: of course copyrights "are artificial monopolies created by government statute". Two, and again, of course "ideas and expression of ideas are inherently non-rival and non-excludable...information and data can essentially be replicated infinitely." The question is: what's all that got to do with the justifiability of copyrights?

Suppose I come up with an idea and wants the world to hear of it and I don't even care if they know that it's my idea--I trumpet the idea as much as possible and have as many people repeat it, copy it, propogate it as possible. If that's what I want to do, copyrights have nothing to do with me.

But what if I'm in it at least partly for the potential profit, or just to make a living, and--this is the crucial bit--while the idea can be replicated infinitely at very little cost, coming up with the idea involves genuine cost to me. If there is no copyright to protect my idea such that I am able to make a financial return on it, a return that outweights the cost of coming up with that idea, then--on the beginning assumption that I'm in this for the profit, my incentive to pay the cost and come up with the idea disappears. Note: in saying all this, I (as the person who seeks to profit from coming up with ideas) am not saying that what I am doing or wanting to do is inherently moral, or that people who decry what I do necessarily evil. The question for us all is: do we want to do without the profit motive in the realm of ideas (even while keeping another option open for those who are not in the ideas business for profit).

Surreptitiously (hat tip: Austin Bay, who has further comments), there is a column in the Wall Street Journal (Apr 1), "Can Justice Scalia Solve the Riddles Of the Internet?" by Daniel Henninger (subscription required), now available free on WSJ Opinion Journal. It's about the ongoing hearing in the US Supreme Court on Metro-Goldwyn-Mayer v. Grokster, about which you can read more here (WaPo, Mar 28). Henninger frames three "conundrum":

Conundrum #1: Has the Internet, the most powerful information pump the world has ever known, drowned the incentive to create in words or images?

Conundrum #2: Has the Internet effectively displaced the antique notion of the profit-motive with a newer, unstoppable reality that everything on the Internet is, if it wants to be, "free"?

Conundrum #3: How is it that millions of Americans who wouldn't cross the street against a red light will sleep like lambs after downloading onto their computers a Library of Alexandria's worth of music or movies -- for free.

The answer according to Henninger:

It may seem quaintly old school to suggest that people should stop downloading culture without paying simply because it's the right thing to do. But that may be the best option available.

For starters, if "the people" don't solve this problem themselves, Congress will, and you won't like the solution -- unless you enjoy the tax code. Try Googling "Chapter 17 Federal Code Copyrights." Then click on any of its 13 chapters or any of Sections 101 through 1332. It can get worse.

The hacker community may find fun in being on the run constantly from the copyright cops hired by Bertelsmann and Sony, but most people will find it tiresome. I suspect most nonpaying downloaders acquired the habit because the opportunity came up so fast and was just so darn easy. Other than life itself, nothing in history that is so pleasurable has been available in such quantity, so easily for nothing or next to nothing, without health effects. If this were not true, half the nation wouldn't have white earphones grafted into their ears.

But the real core of the issue is not legal but philosophical:

...most downloaders would likely concede that in a royalty-free world the incentives for the next Dylan diminish. Even writers gotta eat. But this means one has to buy into the validity of eeeek, "profit." I would push this even further; it requires a moral or at least philosophical commitment to the legitimacy of profit. Absent that, there's no hope.

New business models like iTunes and techno-fixes such as micropayments matter a lot, but the unshakable reality is that digits and microchips are not like any previous reproducing technology. If you can digitize it, you can grab it, for free.

No matter what the Supreme Court decides about Grokster's 15 minutes of fame, this is a philosophical issue for the long run. The Web isn't just a technology; it's become an ideology. The Web's birth as a "free" medium and the downloading ethic have engendered the belief that culture -- songs, movies, fiction, journalism, photography -- should be clickable into the public domain, for "everyone."

What a weird ethic. Some who will spend hundreds of dollars for iPods and home theater systems won't pay one thin dime for a song or movie. So Steve Jobs and the Silicon Valley geeks get richer while the new-music artists sweating through three sets in dim clubs get to live on Red Bull. Where's the justice in that?

If there are people out there who are willing to manufacture mp3 players and let anyone who wants one have it for free--good for them. The question is do we want to take the next step and insist that every would be maker of mp3 players do likewise?