DISQUS

I'm puzzled by Mr. Bennett's tone here--I just don't see how MS and Apple ripping off Xerox (as opposed to MS ripping off Apple) proves much of anything. If anything, the lesson seems to be an anti-IP one--if *everyone* was ripping off Xerox (and each other) largely without legal consequences, but innovation was proceeding swiftly (and it certainly was), that's a nice example of why we don't need patents or strong copyright.

Now Bennett claims that the moral is Xerox got ripped off and made nothing from its innovation, but so what? Our copyright/patent/trademark policy should not be about Doing Justice To Innovators, it should be about allowing a free market to produce innovation and 'promote arts and useful sciences'. If some corporations fail to adequately monetize their inventions, letting nimbler startups eat their lunch, that's a crying shame but Not Our Problem.

We only have a problem if inadequate incentives lead to a suboptimal rate of innovation, but none of the arguments Bennett, Blafkin, or Le have adduced show this.

Oh, and: Graham's claim that 19th century industrialists were engaged in wealth-production *rather than* coercive extraction is rather strained--it seems pretty clear that they did both.

A nicely written essay, but it seems question-begging at some of the most central points. Saying that compensation would track marginal product in a genuinely free and frictionless market is basically right; claiming that, therefore, current compensation structures track marginal product doesn't follow (insert generalized radical critique of state capitalism, insights of economic sociology, etc.). It's telling that some of his primary examples (actors, technologists) rely so heavily on what he elsewhere derides, monopoly rights--it doesn't make his argument wrong, necessarily, but it highlights what he does and doesn't think worthy of comment. And, of course, his argument about incentives for wealth creation is true only in its most abstract, fundamental formulation; it certainly won't get you, by itself, 'X tax structure generates more wealth than Y' for any but the most extreme values of X and Y.

Absolutely astonishing! A website created and maintained mostly by American nerds reflects the biases of American nerds with respect to contested policy issues? This calls for serious action!

What really makes me laugh about the example is that the very first things I see when I look up Net Neutrality are two huge warnings telling me that, 1st, the article is about a current event, and 2nd, the neutrality of the article is disputed. Before I've even started reading, I know to be on my guard.

Reliability is a probabilistic property. Wikipedia's reliability is high but quite variable across different domains. Moreover, it's pretty easy to predict which domains will be less reliable and to take account of this. The bottom line is that saying "Wikipedia gets wrong a controversial issue I care a lot about, therefore it must be a joke" is about as valid, epistemologically speaking, as "But nobody I know voted for Bush, so there must have been fraud!"

I'm not claiming that only the original pure form has any worth; that would be absurd. I merely state the obvious: the two things are not identical. If the industry can't leverage that into profit, that is there own problem.

As for where I draw the line: it's pretty simple, actually. None of the things you list are theft. Walking into the store and taking the CD without paying for it--now *that's* theft.

I refuse to accept that 'property' entails having all rights that may be necessary to extract *maximal profit* from a given thing. But then, I'm one of those abolish-copyright extremists.

Charles: should it be legal to buy seeds, grow corn, keep some for next year's crop but sell the rest to others? Obviously not. We must outlaw this disastrous cake-eating-and-having.

Finally, a technical point: those 3000 sales directly cut into *used CD sales*, from which the record companies and artists would have received nothing anyway. The only connection to new-CD sales is through a complicated general equilibrium model of expectations: on the one hand, a thriving used-CD market lowers new-CD demand by acting as a substitute good; on the other, it *raises* new-CD demand by providing the buyer with extra value (the potential resale value). It's not straightforward *at all* what the net effect is, especially once you throw in the endogenous nature of musical tastes.

I thought we were assessing what is or isn't appropriate, and what rules ought to be in place, not what is or isn't currently legal. Steve R. has it exactly right. Why should the law be structured around prosecuting the simultaneous eating and having of cake in order to lock in business models? First off, the sky isn't falling: Dominey *doesn't* quite still have his cake; he now has MP3 files of everything, but no longer has hard-copy backups. He could burn some, obviously, but they won't be genuine original CDs; and if you think that's a trivial distinction then much of the art and culture market, where authenticity is highly prized, will be thoroughly baffling to you.

Nice work!

That is so incredibly depressing.

While Moglen's speech is nice and warm and fuzzy, it's important to remember that he was able to *get* compliance at least partly because he *could* have demanded money (coercively). When you bargain in the shadow of the law, the law helps determine bargaining power, even if neither person wants exactly what the law guarantees him as a matter of right.

The GPL is a clever way to use the tools of copyright to subvert certain aspects of it, and I admire it in many ways, but its use is a distant 2nd best to a world without copyrights/patents.

--

And Noel, obviously copyright is a more decentralized system than getting permission to write a song from the Creativity Clearing Council or something. It's a LESS decentralized system than a world without copyright, though. This isn't that hard.

I have to say, it would be so very awesome if the labels' fear of iTunes continued dominance, and the bargaining leverage that would represent, led them to sell unprotected MP3s as the only available tactic to sell directly to iPod owners. How delicious.

Oooh, snap.

Seriously, nice that you got cited; unfortunate that it was done in such a sloppy way.

What's particularly sad is that, because of the iTunes DRM and conservative featureset, there really is plenty of room available for a bold company to give customers things they want but can't have, even without much genuine innovation. And it's not like MS doesn't have cash to fight lawsuits if need be. Ah, well.

Erm, before Noel gets in on this, let me just clarify: I think trademarks are okay!

Ack, 'mine argument' = 'my argument.' It's noon, I should be awake by now.

... of course, the broken-windows argument applies straightforwardly to patents and some of the rights attached to copyright (esp. deriv. works and public performance). So combine mine argument with his and ta-da, we're done, only trademarks left! =P

I have to say, that was probably the best use of Atlas Shrugged in punditry I've ever seen. In the actual book, the 'strike' never seemed particularly credible to me, for various reasons--but precisely because of the normative structure that forms the heart of the F/OSS community, the threat is quite potent in this case. Great post.

Whoa, weird HTML mess-up there. My first paragraph should have read: "they have only sold enough songs to account for less than 25 songs per iPod. Almost no-one is buying an iPod ... "

Noel, please stop talking nonsense about the iPod's success. You have yet to address what seems the single most important stylized fact for this discussion about the iTunes Music Store: they have only sold enough songs to account for Almost no-one is buying an iPod with the intent to fill it with iTunes' DRM music.

Perhaps you are getting confused by the very real fact that iTunes integration is a big selling point for the iPod. But this has nothing to do with DRM, and everything to do with the fact that iTunes is a very well-designed MP3 playing music program. People like iPods because they are gorgeous, hip, and user-friendly; people like iTunes because it is a great piece of software; people like them both even more because they are designed to work well together. I repeat: none of this has anything to do with DRM. I use both an iPod and iTunes all the time, and my position on DRM is pretty obvious by now. I use both iTunes and my iPod to play DRM-free MP3s. Which is why your comment about "iPod vs MP3 players"--as if the iPod weren't an MP3 player itself!--is so bizarre.

Now: if the time comes when many consumers will have built up a significant library of DRM'd iTunes tracked, then this will, in fact, result in a lock-in effect that will help the iPod withstand rivals. But we're not there yet, not at all.

Thanks for the generous response and critique. I'll say more later, but I'll just admit right now that my main problem with copyright, by far, is the derivative works right. Take that one away, and I'll be happy to be an ignored extremist grumbling in the corner. =)

It's funny how this is the logical comment thread for a lot of what was discussed earlier, but it seems that everyone's already vented their spleens.

Still: boo Microsoft! Boo!

Very quick response:

1. It's impossible to do an exact apples-to-apples comparison, because the labels are refusing to release DRM-free music, generally. So we don't have the chance to compare 50 Cent's track on iTunes with Fairplay vs. 50 Cent's track on eMusic with no DRM. It's hard to compete with free, but it's ALSO hard to compete with big-name labels backed with massive advertising and exposure; it's rather astounding the eMusic is doing as well as it is. So I agree that my piracy comparison is *slightly* unfair, because of the 'free', but people compete with free all the time (private schools, bottled water, cable television, etc., etc.). The point about music CDs does hold, and is even stronger because here the comparison is unfair the other way--most people don't WANT whole albums.

Just be serious: are you really claiming that people LIKE DRM? At the moment, most aren't bothered *much* by it, because it doesn't interfere with their iPod use, and the iPod is still, by far, the best music player out there. But suppose in 5 years someone finally, definitively, kicks the iPod's butt and creates a player far superior on every dimension. All of a sudden there are going to be some very, very unhappy customers who realize that All Their Songs Are Belong To Apple.

2. This is pure question-begging, except perhaps for the caveat about 'obvious'. IPRs aren't LIKE other property rights; you already HAVE a property right in the object that instantiates the idea/creative expression/whatever. IPRs are PRECISELY prohibitive arrangements that grant market power--if they weren't, nobody would WANT one. Just like tariffs, their effect is limited just to the extent that people can substitute around them--Kim Harrison instead of Laurel Hamilton for vampire-romance, 50 Cent instead of Eminem, one patented process (or OSS) versus another. My claim was: IPRs, and the DMCA through DRM, restrict competition. It's not a refutation of my claim to say that market processes will mitigate these effects; that's like saying tariffs on sugar aren't bad because we get corn syrup to compete. What markets are doing is trying to route around the damage; that doesn't mean the damage isn't there.

Chris: it's not the incompatibilities *per se* that make them attractive; it's the features of each--and writing software that takes advantage of all the featuresets takes time, effort, and money. If a PS3 could play all the games of every MS and Nintendo console, it would suddenly become much more attractive. Unfortunately, this is a hard technical problem. Still more unfortunately, IPRs and exclusivity agreements get in the way of even trying. But it is very important to separate conceptually the FEATURES, which are good, and the barriers that these place in the way of interoperability, which are bad but somewhat inevitable.

In case my previous comment was too subtle, let me restate: every premise in your argument, Noel, is false. Consumers overwhelmingly choose, whether through CDs or through internet piracy (~1 billion tracks -per month-), DRM-free music.