If You're Going To Argue In Favor Of Copyright, It Might Help To Do Some Research First

from the just-a-suggestion dept

TechCrunch's Michael Arrington is a welcome addition to group of people who have come around to recognizing that copyright law is problematic these days. His arguments won't surprise many around here, but his latest post on the subject got a bizarre response from Hank Williams (not the musician) at Silicon Alley Insider, insisting that Arrington's thoughts on copyright were flat out "wrong." Williams is the same guy who wrote a troublesome post explaining that there were no reasonable business models built on "free." That was easy enough to debunk, but Williams is back making simply incorrect claims in his attempt to refute Arrington.

Let's go through some of William's assertions and point out why they're either wrong or ill-informed.
First, if music goes down, so will every other form of copyrighted material including ultimately books, movies, TV, etc.
This assumes that without copyright, content creation goes down. There's no evidence to support this. In fact, we see more content creation today than ever before in history, and most of it is not because of copyright in the slightest.
Second, there is no evidence *at all* that free music on the Internet is an effective (i.e. successful career building) marketing tool.
That's simply untrue. Mr. Williams may not have found such evidence, but it's only because he didn't look very hard. The number of bands who exist solely because of their ability to build a following on the internet is rather large at this point, with plenty of bands crediting the internet's ability for easy distribution and marketing for their own ability to exist.
There have been no blockbuster successes that have come from, for example Garageband availability. I don't think you could even count more than a handful -- if that -- internet-based artists making a living from music.
Of course, that depends on how you define "blockbuster" success. Williams seems to define it narrowly to suit his purposes, and that completely undermines his argument. Bands like the Arctic Monkeys created the following that turned them into a huge success via the internet. Maria Schneider won a Grammy with a model that relied on internet support. Flo Rida, whose music I keep hearing in random places, built up his following using the internet. And those are ones I can think of off the top of my head. We get examples sent to us practically every day of bands successfully using these models that don't rely on copyright. It's difficult to see how Williams can claim with a straight face that there's no evidence that it works. It also makes me wonder if Williams has ever been on the MySpace page of even a moderately successful independent musician.
Third, if the recorded music industry goes down, concert sales will not grow -- they will shrink. This is because the money that goes into creating concert demand (all from record label marketing) will disappear. People *will* see fewer concerts and they will cost less money because of reduced demand. So not only will the recorded music business disappear, but so will the much of the live music business. So there will be no "live music windfall" to share. Revenue in live music will shrink substantially from where it is today.
That's quite an assertion considering exactly the opposite has been happening. Recorded music sales have been shrinking rapidly over the past few years. Concert revenue, on the other hand, is at an all time high. Williams is simply incorrect and clearly hasn't done the research. In fact, the numbers we've seen have shown the same thing consistently: every single aspect of the music business is on the upswing, except for sales of shiny discs. Concert revenue is up. The number of people making music is up. The number of people earning money from their musical careers is up. Even the instrument sales business has been up. The music business is doing great -- and it has nothing to do with copyright. The demise of copyright hasn't done anything to hurt the other aspects of the business, despite William's uninformed conjecture.

As for William's reasons for why it will shrink, it shows a profound misunderstanding of how the music business works today. We've already established that he doesn't understand that internet promotion works, but it does. So the fact that you don't have a record label out pushing your CD isn't a problem for the other parts of the music business, because the internet and the ability to connect directly with fans via social networks and websites has taken up the slack.

Williams then goes on a tangent about the purpose of laws being to protect others from harm, which all sounds nice, but really is besides the point here. As we've pointed out at length, and backed up with economic research and examples, there are new business models being developed that allow everyone to be better off. Bands make more money, fans get access to more music, and everyone's better off. Where is the "harm" that anyone needs to be protected from in that situation?

Williams then chides Arrington for not having any real suggestions on how to reform copyright law -- which may be true, but that doesn't mean others haven't thought it through. But, instead, Williams immediately jumps to the false conclusion that any change of copyright law will harm nearly the entire economy:
As I see it, the concept of "rethinking copyright" without specifics and without the willingness to follow things through to their natural conclusion is dangerous. This discussion must be about consequences. If you cannot propose solutions and provide reasonable answers to what the consequences are, such suggestions are only harmful because they embolden people to think that stealing intellectual property is acceptable and that IP protections are bad. But, In fact without intellectual property and attendant protections, we will be flushing down seven or eight percent of our economy directly, and indirectly twenty percent or more.
This is simply untrue, and suggests Williams has never once looked at the economic research on this topic. We're seeing more content production and more money made from content production today than at any time in history, and much of it has absolutely nothing to do with copyright. Williams also leaps to the false conclusion that this is about "piracy" rather than about business models.
Much of our economy and our value in world markets is tied into the creation of intellectual property. The collapse of the concept of intellectual property will have devastating economic effects on everyone in every post-industrial economy. This may seem like it is just about illegal downloads, but the issue is much more serious and if not addressed portends an economic melt down of unthinkable proportions. A little "straight talk" is really critical at this point, because we really are talking here about economic Armageddon.
Again, if Williams is going to make these sorts of ridiculous claims, he owes it to himself to read some of the research first. He can start with Against Intellectual Monopoly. In the meantime, Silicon Alley Insider is usually a fantastic read. They should think twice about letting someone like Williams comment on subjects which he is clearly uninformed about, however. This is only the second time I've had a serious problem with an SAI article, and both were by Williams.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Ima Fish, May 28th, 2008 @ 10:53am

    "Williams is the same guy who wrote a troublesome post explaining that there were no reasonable business models built on 'free.'"

    So this guy has never watched or even heard of broadcast television or radio?!

     

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  2.  
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    MLS, May 28th, 2008 @ 11:11am

    Huh?

    You critize the author of the article in SAI, and then suggest he read:

    "Against Intellectual Monopoly"

    Surely this was an attempt at humor, i.e., telling someone whom you believe is making "nutty" points to read a document likewise making "nutty" points.

     

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  3.  
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    Reason, May 28th, 2008 @ 11:25am

    Re: Huh?

    Care to make a point by point debunking of the book, like Mike did of Williams' post, MLS?

     

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  4.  
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    Ferin, May 28th, 2008 @ 11:44am

    If only

    "First, if music goes down, so will every other form of copyrighted material including ultimately books, movies, TV, etc."

    God, if only that were true. Then my death obsessed goth cousin would stop sending out his godawful poetry to any of us that once pretended an interest.

     

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  5.  
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    some old guy, May 28th, 2008 @ 11:48am

    wha?

    I think MLS might actually stand for something. Mistaken Logic Syndrome. Either that or Makes Little Sense. Seriously, MLS, you're all over the place here, trying to make fun of Mike (or Tim, or whoever), but every time you make a post, you do nothing more than make derogatory statements.

     

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  6.  
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    eleete, May 28th, 2008 @ 11:52am

    Another Opinion on Greed

    I've never heard of this Williams guy, but it sounds to me like he produces/creates absolutely nothing. I'd bet the reasons behind his thinking is directly related to his wallet somehow. I am also inclined to believe that he likes the idea of buying IP works for next to nothing (dead artists, starving ones...) and turn around and soak the profits. Either way, his mentality smacks of someone who enjoys the control of taking someone who is genuinely creative into a courtroom and blasting them with both barrels. When/If he loses, he would evade payment, when/if he wins, he doesn't feel at all obligated to share with the content creators. Basically a Corporate Greed hypocrite !!

    eleete

     

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  7.  
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    eleete, May 28th, 2008 @ 11:54am

    Re: wha?

    Ummmm, Hate to point out the obvious, but isn't what you are posting derogatory ?

     

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  8.  
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    Overcast, May 28th, 2008 @ 12:49pm

    Second, there is no evidence *at all* that free music on the Internet is an effective (i.e. successful career building) marketing tool.

    Psssst... Radio.

    *Hint*

    Oh wait - Radio's not an effective marketing tool - because, umm it's free.

     

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  9.  
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    Mike (profile), May 28th, 2008 @ 12:51pm

    Re: Huh?

    You critize the author of the article in SAI, and then suggest he read:

    "Against Intellectual Monopoly"

    Surely this was an attempt at humor, i.e., telling someone whom you believe is making "nutty" points to read a document likewise making "nutty" points.


    MLS, I'm not sure what you're getting at here. Against Intellectual Monopoly is written by two respected economists, and has detailed, backed-up and well-researched arguments. Are you suggesting otherwise?

     

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  10.  
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    Kiba, May 28th, 2008 @ 12:58pm

    Re: Another Opinion on Greed

    Hey, he did produced something. It just so happen that his articles were of poor quality.

     

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  11.  
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    Kiba, May 28th, 2008 @ 1:07pm

    Re: Huh?

    Oh?

    I am pretty sure that monopoly supporters have a pretty heavy burden of proving that indeed monopolies does increase economic welfare. Because we all know monopolies are generally bad, right?

    This book is simply increasing the burden of monopolists everywhere to supply proof. Proof that we have not seen materializes.

     

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  12.  
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    MLS, May 28th, 2008 @ 1:09pm

    Re: Re: Huh?

    Not possible to debunk a 355 page book with a series of simplistic sound bites. But if I was inclined to do so I would begin with the title itself. The mere suggestion that a patent or copyright is a government granted "monopoly" is ludicrous. Perhaps the authors should have spent time actually reading our patent and copyright laws before writing their book. It seems strange to debunk a system of laws without having an intimate familiarity with what the laws actually say.

     

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  13.  
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    MLS, May 28th, 2008 @ 1:10pm

    Re: Another Opinion on Greed

    Perhaps you might consider following the links to find out just who this person is and what he does...

     

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  14.  
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    MLS, May 28th, 2008 @ 1:12pm

    Re:

    Radio is not free in the sense that broadcasters do pay royalties for the music they play.

     

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  15.  
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    MLS, May 28th, 2008 @ 1:16pm

    Re: Re: Huh?

    Yes, I am suggesting otherwise. I assumed they were respected economists after having taken a quick look at the respective CVs.

     

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  16.  
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    Kiba, May 28th, 2008 @ 1:18pm

    Re: Re: Re: Huh?

    What the hell have you been reading in the past few years to make that sort of conclusion?

     

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  17.  
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    Chronno S. Trigger, May 28th, 2008 @ 1:21pm

    Re: Re:

    You don't pay attention do you?

    Broadcast radio is free as in free to me. They still make money off of advertising and yes they pay royalties (even though I don't know why.)

    Just like if music was free to me, the artist could sell other (finite) objects like concert tickets, physical CDs, shirts, and other thinks I can't think of at the moment.

     

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  18.  
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    Kiba, May 28th, 2008 @ 1:24pm

    Re: Re: Re: Huh?

    I am pretty sure lot of other economists disagree with you.


    Make me wonder...Are you an economist?

     

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  19.  
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    PaulT (profile), May 28th, 2008 @ 1:25pm

    Re: Re:

    Not on internet radio, and it's not actually legal (payola is one thing the music industry was successfully prosecuted for)

     

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  20.  
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    PaulT (profile), May 28th, 2008 @ 1:31pm

    Re: Re: Re: Huh?

    So, erm, do you have any hints? or are you basing your opinion just on the title?

    "The mere suggestion that a patent or copyright is a government granted "monopoly" is ludicrous."

    Really? Describe how the Berne convention or the US copyright act of 1790, for example, don't fall into this category (accepting of course that Berne convention signatories were governments who enacted the agreements in their own countries).

     

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  21.  
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    Mike (profile), May 28th, 2008 @ 1:37pm

    Re: Re: Re: Huh?

    The mere suggestion that a patent or copyright is a government granted "monopoly" is ludicrous.

    Yes, which is exactly why Thomas Jefferson, James Madison and plenty of others referred to them as exactly that when designing our IP system.

    They are monopolies. I can't see how you can dispute that. Even those in favor of patents and copyrights are usually willing to admit that they are monopolies.

    And, as Kiba points out, multiple Nobel Prize winning economists seem to respect their work. I find it amusing that you think that it's some sort of fringe economic work without backing up the statement in any way, shape or form -- other than to make a statement that is false (that copyrights and patents aren't monopolies).

     

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  22.  
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    Anonymous Coward, May 28th, 2008 @ 1:41pm

    Re: Re: Re:

    And so the ignorance is exposed...

    Just as long as it is free to me then I don't care what happens to anyone.

     

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  23.  
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    Lucretious, May 28th, 2008 @ 2:15pm

    It makes me wonder why this individual is so angry. Is it because he realizes the days of musicians and publishers getting multi-million dollar paydays is a thing of the past? Is it because people simply choose to buy music online? Even if it WERE piracy that accounts for the huge change in the way music is heard now all the bitching in the world won't stop it.

    Instead of crying to every site that is pro-free business model perhaps he should spend the time formulating a way to monetize what he can and take the advice of such sites.

    I know I sound like a simpleton but thats what I'm seeing here.

     

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  24.  
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    Martin Edic, May 28th, 2008 @ 3:24pm

    I have a friend whose 18 year old daughter posted her original music videos on YouTube (Julia Nunes) and she has had 1.3 million views, multiple record company offers (which she doesn't need) and is selling 10-20 CDs a day via her web site (yes, actual CDs). She is touring with Ben Folds. Not bad for a video made in a dorm room for zero dollars. She has talent...
    He is completely wrong.

     

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  25.  
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    laughable, May 28th, 2008 @ 3:38pm

    hypocritical hypocrisy?

    I've got to laugh at the absurdity of someone criticising someone else for not doing research when it's damn obvious they haven't even bothered to research the person whom they're criticising, and that goes for most of the comments here as well.

     

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  26.  
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    MLS, May 28th, 2008 @ 4:19pm

    "Huh?" 2.0

    Did a bit of research on Messrs. Boldrin and Levine. The more I read (and I have taken a look at much of their work pertaining to the field of "IP") the more it appears that many of their views are results oriented, i.e., having a view and then cherry picking for things supporting their view. This is not scholarship...this is advocacy.

    By the way, their various comments about what patents and copyrights are in a subsstantive, legal sense lend credence to my above observation that they would do well to actually study the law before waxing poetic about what it is and what it is not.

    I will be interested to see if they claim copyright in their upcoming book, or if they simply dedicate it to the public domain.

     

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  27.  
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    Anonymous Coward, May 28th, 2008 @ 4:43pm

    so lets follow mls's logic. (assuming the media industry is in bed with the senate, which they are) the law says that we need copyright. the experts (including founding fathers) disagree. who do we trust, the people who dedicate their lives to a just system, or those who dedicate their lives to profiting from the system they pay the senate off to write.

    hmm. why read a law when we know it was written with poor intentions. this argument is over what copyright law SHOUD BE, now what IT IS. it is what it is because of two of the biggest evils in america share a bed.

    if dr seus's work was law would, should we live by it. hell naw, cuz we know its imaginary.

     

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  28.  
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    Anonymous Coward, May 28th, 2008 @ 4:44pm

    are sharing*

     

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  29.  
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    dorpass, May 28th, 2008 @ 4:54pm

    Re: "Huh?" 2.0

    Says the guy who argues against "intellectual monopoly" title despite it being historically and factually correct. So you (MLS) are not only practicing advocacy, you are doing it without a modicum of basic conceptual understanding. At least it's not hypocrisy, it's just rubbish. :)

     

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  30.  
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    Mike (profile), May 28th, 2008 @ 4:56pm

    Re: "Huh?" 2.0

    Did a bit of research on Messrs. Boldrin and Levine. The more I read (and I have taken a look at much of their work pertaining to the field of "IP") the more it appears that many of their views are results oriented, i.e., having a view and then cherry picking for things supporting their view. This is not scholarship...this is advocacy.

    MLS, for someone who rails against everyone here for supposedly talking about stuff without first understanding things (often incorrectly), it's rather amusing to watch you squirm around as you've been caught quite clearly doing what you always accuse everyone else of doing.

    Yes, the book by Boldrin and Levine is advocacy, but it's the result of plenty of scholarship. They have written peer-reviewed papers on the topic, and now they're writing a book for laymen directed at advocating a specific result that came out of their scholarship. It also covers much of the scholarship done by others -- the stuff you keep mocking people for not knowing about, when now it's clear that it was you who didn't know.

    By the way, their various comments about what patents and copyrights are in a subsstantive, legal sense lend credence to my above observation that they would do well to actually study the law before waxing poetic about what it is and what it is not.

    Or, perhaps, you should learn economics before making your statements about the economic impact of copyright and patents. We've pointed this out before, and you keep repeating yourself.


    I will be interested to see if they claim copyright in their upcoming book, or if they simply dedicate it to the public domain.


    Or, you know, you can read the beginning of the book where they answer that very question.

    But why bother actually understanding when you can cast aspersions on others' work?

    Btw, I think the phrase you're searching for is "Hey, guys, sorry I jumped to conclusions without knowing what I was talking about."

     

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  31.  
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    MLS, May 28th, 2008 @ 5:13pm

    Re:

    "this argument is over what copyright law SHOUD BE, now what IT IS"

    To which I must ask "How does one argue over what copyright should be if that one does not know what it is?"

     

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  32.  
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    Kiba, May 28th, 2008 @ 5:26pm

    Re: Re:

    I know! MLS must be a laywer! Am I right?

     

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  33.  
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    MLS, May 28th, 2008 @ 5:52pm

    Re: Re: "Huh?" 2.0

    Historically correct?

    Factually correct?

    All I have said is that before calling something a "monopoly" it is useful to study that something in detail; in this case patent and copyright law.

     

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  34.  
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    MLS, May 28th, 2008 @ 6:00pm

    Re: Re: Re:

    Yes, as I have noted on several prior occasions.

     

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  35.  
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    Graeme, May 28th, 2008 @ 6:01pm

    Orlowski's response

    Mike,

    Great article as usual. If you have time you might want to peruse Andrew Orlowski's (hopefully tongue-in-cheek, though I suspect not) comments on Arrington's post on copyright, which are as ill-informed as Williams':

    Failing Web 2.0 stars pray for copyright abolition

    Some of the ego-bashing points about Arrington and the shallowness of Web 2.0 business models are probably valid (comparing Arrington's appearance to Gertrude Stein is however a little cruel). But Orlowski comes up with such gems as this:

    He's reminding us that what great internet audiences flock to is copyright material. A web that consists only of User Generated Content might be fun for a while, and even illuminating in places, since "amateurs" are doing much of the work that lazy professionals cannot, or dare not do. But with no income coming in, most will eventually cease to do it. One can only remain a sucker for so long.

    Ahem. YouTube.

    And he accuses the Harvard Berkman Centre copyright scholars of being 'sock puppets' for big media. I simply can't see Benkler and Zittrain this way - and it's utterly unsubstantiated.

    Orlowski has been making 'freetard' references continually and deserves a swift skelp around the backside in the shape of a Masnick blog post ;)

     

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  36.  
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    MLS, May 28th, 2008 @ 7:27pm

    Re: Re: "Huh?" 2.0

    I make no pretense about being an economist. I am merely pointing out that many who rail that patents and copyrights are bad economic and social policy do so using examples that manifest a clear lack of familiarity with what the law actually embraces.

     

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  37.  
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    cram, May 28th, 2008 @ 8:00pm

    King of Handwaving

    "This assumes that without copyright, content creation goes down. There's no evidence to support this."

    Of course there's no evidence to support this, because copyright's not been done away with yet. Actually, the fact that plenty of copyrighted content is still being created shows that copyright and content are not totally delinked. If that were the case, everyone should have moved away from copyright to GPL or Creative Commons by now.

    "In fact, we see more content creation today than ever before in history, and most of it is not because of copyright in the slightest."

    Is there any data to support this claim? Even if it were true, much of the non-copyright content is rubbish (Youtube is a classic example). Would it be sacrilegious to say copyright is directly linked to the quality of content?

    "The number of bands who exist solely because of their ability to build a following on the internet is rather large at this point, with plenty of bands crediting the internet's ability for easy distribution and marketing for their own ability to exist."

    Rather large? How large is that? And how big are they? Are we talking about at least 25 significant bands/musicians? 50? 100? Where do they figure on the top 100 list, if they do?

    "Of course, that depends on how you define "blockbuster" success. Williams seems to define it narrowly to suit his purposes, and that completely undermines his argument."

    How many ways are there of defining blockbuster success, at least in this context? I don't think one can "narrowly define" a blockbuster.

    "Bands like the Arctic Monkeys created the following that turned them into a huge success via the internet. Maria Schneider won a Grammy with a model that relied on internet support."

    That's skating on thin ice. Succeeding via the Internet and "relying on Internet support" are two different things. How many bands have succeeded primarily through the Internet? How many Grammy winners are using the Internet as the sole distribution channel?

    "We get examples sent to us practically every day of bands successfully using these models that don't rely on copyright."

    Could you publish a list of those bands, and maybe some info on how successful they have been? It would provide tremendous insight into how the emancipation of musicians has just begun.

    "Recorded music sales have been shrinking rapidly over the past few years. In fact, the numbers we've seen have shown the same thing consistently: every single aspect of the music business is on the upswing, except for sales of shiny discs."

    Is that a good thing, this fall in the sales of shiny discs?

     

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  38.  
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    Kiba, May 28th, 2008 @ 8:27pm

    Re: Re: Re: "Huh?" 2.0

    Can you enlighten us why patents and copyright are not monopoly grants?

    Because you're the only lawyer that I have heard of that made this assertion.

     

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  39.  
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    Ethan Bauley, May 28th, 2008 @ 8:53pm

    Thanks to Mike for fighting these fights

    Thanks for rounding up and debunking this stuff, Mike...you're like IP's unofficial ombudsman!

     

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  40.  
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    Anonymous Coward, May 28th, 2008 @ 9:15pm

    King of Handwaving - Part Deux

    "Concert revenue is up. The number of people making music is up. The number of people earning money from their musical careers is up. Even the instrument sales business has been up. The music business is doing great -- and it has nothing to do with copyright."

    And how on earth did you conclude that the fact the music business is doing great has nothing to do with copyright? If that were the case, all music should have become free by now. People should be freely publishing and redistributing music without any encumbrances, as they do in China and India. That has not happened. If the music business is doing fine, without copyright, why are they clamouring for greater copyright enforcement?

    "The demise of copyright hasn't done anything to hurt the other aspects of the business, despite William's uninformed conjecture."

    Demise of copyright? When did that happen? Or do you mean the annihilation of the idea of copyright in the digital domain, thanks to a six-letter word called piracy?

    "So the fact that you don't have a record label out pushing your CD isn't a problem for the other parts of the music business, because the internet and the ability to connect directly with fans via social networks and websites has taken up the slack."

    But you just said there has been a fall in the sales of shiny discs, which is what CDs look like. You also said Internet promotion works. Then why has it not led to a jump in CD sales? Topping handwaving with contradictions?

    "Williams then goes on a tangent about the purpose of laws being to protect others from harm, which all sounds nice, but really is besides the point here."

    Besides the point? I thought that was the core point. But of course, I'm not Mike Masnick.

    "As we've pointed out at length, and backed up with economic research and examples, there are new business models being developed that allow everyone to be better off. Bands make more money, fans get access to more music, and everyone's better off. Where is the "harm" that anyone needs to be protected from in that situation? "

    The harm or perceived harm is being done to the labels. If every band/musician can become a super success on the Internet, no one would give a rat's ass about shows like American Idol, which provide a platform for you to reach the whole world and help you strike deals with labels who will take care of promoting you and your music, touring, merchandising, press, PR, worldwide sales, etc. And when you start talking of a copyright-free world, naturally it's the labels who get jittery.

    "But, instead, Williams immediately jumps to the false conclusion that any change of copyright law will harm nearly the entire economy."

    No, that's not what he did. he said "Rethinking copyright without specifics and without the willingness to follow things through to their natural conclusion is dangerous."

    That's a whole lot different from saying he's opposed to any change in the copyright law. As usual, you are putting words into people's mouths, something you have elevated to a fine art.

    "We're seeing more content production and more money made from content production today than at any time in history, and much of it has absolutely nothing to do with copyright."

    Here we go again. Where's the data to back this up? What proof do you have that most content production and revenue generation have "absolutely nothing to do with copyright"? Most books/movies/music/newspapers still come with a copyright tag. Are you trying to say that copyleft content is all around us?

    "Williams also leaps to the false conclusion that this is about "piracy" rather than about business models."

    Isn't it? If there were no piracy, why would we even be discussing alternative business models?

    "They should think twice about letting someone like Williams comment on subjects which he is clearly uninformed about, however. This is only the second time I've had a serious problem with an SAI article, and both were by Williams."

    You have a serious problem Mike. With people who don't share your grand unified theory of free. That's why you even want to clamp down on someone like Williams; after all it was just his opinion. Isn't he entitled to it?

     

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  41.  
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    cram, May 28th, 2008 @ 9:16pm

    That comment was from me.

     

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  42.  
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    MLS, May 28th, 2008 @ 9:28pm

    Re: Re: Re: Re: "Huh?" 2.0

    "Can you enlighten us why patents and copyright are not monopoly grants?"

    I have never seen, and I rather doubt I ever will, a patent or a copyright where substitute goods are not readily available in the relevant market. Moreover, I have never seen one that stops competitors dead in their tracks from effectively competing in the relevant market by creating their own product offerings.

    "Because you're the only lawyer that I have heard of that made this assertion."

    You obviously do not talk with many lawyers who have studied this matter, including academics, practitioners, and jurists alike.

     

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  43.  
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    Anonymous Coward, May 28th, 2008 @ 9:30pm

    Re: Re: Re: Re:

    Hell, companies pay radio DJays because they're so important.

     

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  44.  
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    Anonymous Coward, May 28th, 2008 @ 9:36pm

    Re: Re: Re: Re: Re: "Huh?" 2.0

    Jurists are not lawyers.

     

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  45.  
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    MLS, May 28th, 2008 @ 9:45pm

    Re: Re: Re: Re: Re: Re: "Huh?" 2.0

    Within law circles judges/justices are oftentimes identified using this term.

    E.g., a headline from a state bar association announcing "Judge Brunner earns "Lifetime Jurist Achievement" Award".

     

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  46.  
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    MLS, May 28th, 2008 @ 9:50pm

    Re: Re: Re: Re: Re: Re: Re: "Huh?" 2.0

    I neglected to mention that I have never met a jurist who is not a lawyer. Of course there may be some exceptions, but they likely are a number somewhere about -5 sigma on a bell curve.

     

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  47.  
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    mike allen, May 29th, 2008 @ 12:20am

    Re: Re: Re:

    at the moment radio does NOT pay royalties in the U S of A in Europe yes.

     

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  48.  
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    mike allen, May 29th, 2008 @ 12:36am

    As I said before

    copyright was originally an attempt to stop one writer from saying another writer from claiming the first writers was his or hers. the extra stuff was added over years surely now is the time to get back to that original intent and allow people to do what they wish with their copy and yes Mikes views are usually spot on. MLS go sit in a court room and cry in your port.

     

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  49.  
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    Mike (profile), May 29th, 2008 @ 1:14am

    Re: King of Handwaving

    Of course there's no evidence to support this, because copyright's not been done away with yet.

    Um. No. There's plenty of evidence to support this because you can look at the production of content that is used in ways that does not rely on copyright as the incentive of production.

    Actually, the fact that plenty of copyrighted content is still being created shows that copyright and content are not totally delinked. If that were the case, everyone should have moved away from copyright to GPL or Creative Commons by now.

    Not at all. No one denies that copyright gives an easy crutch for content creators to use. So the fact that they haven't abandoned it is meaningless.

    Is there any data to support this claim? Even if it were true, much of the non-copyright content is rubbish (Youtube is a classic example). Would it be sacrilegious to say copyright is directly linked to the quality of content?

    Well, I'm glad that we have cram to judge the quality of all content.

    And, no, I disagree with your statement that copyright is linked to quality. It's not. There is plenty of quality stuff that is created not by using copyright as the incentive.

    As for the amount of content being produced today... is that really an open question?

    Rather large? How large is that? And how big are they? Are we talking about at least 25 significant bands/musicians? 50? 100? Where do they figure on the top 100 list, if they do?

    I don't have exact numbers. But Williams claimed it was zero. That's obviously false. Who's handwaving now?

    That's skating on thin ice. Succeeding via the Internet and "relying on Internet support" are two different things. How many bands have succeeded primarily through the Internet? How many Grammy winners are using the Internet as the sole distribution channel?

    Um. You're setting up totally pointless rules here. No one said that they had to only rely on the internet. There's simply no reason for any band to do so today. So I'm not sure what sort of point you're trying to prove, because you're failing. Williams claimed there was no evidence that the internet helps a band. That's easily proven false. You seem to be attacking a different point. I'm not sure why.

    Could you publish a list of those bands, and maybe some info on how successful they have been? It would provide tremendous insight into how the emancipation of musicians has just begun.

    We do mention many of the bands here. You asking us to do some busy work doesn't change the fact that plenty of bands are where they are today because of the internet.

    Is that a good thing, this fall in the sales of shiny discs?

    If the replacement is more efficient, more cost effective and allows for more music to be distributed to more people... I'd say yes.

    I had no idea anyone contested that fact.

     

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  50.  
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    Mike (profile), May 29th, 2008 @ 1:31am

    Re: King of Handwaving - Part Deux

    And how on earth did you conclude that the fact the music business is doing great has nothing to do with copyright?

    Er, I thought it was rather obvious, but it's because all of these areas where the business don't require copyright to succeed -- and it's occurred at the same time that recorded music sales are down.

    If that were the case, all music should have become free by now.

    Rome wasn't built in a day. These things take time. When automobiles appeared, horse and buggies didn't go extinct the next day.

    I recognize that you disagree with me, but, seriously, you've got to come up with better arguments than this.

    That has not happened. If the music business is doing fine, without copyright, why are they clamouring for greater copyright enforcement?

    Don't confusing the *recording* industry with the *music* industry.

    Demise of copyright? When did that happen? Or do you mean the annihilation of the idea of copyright in the digital domain, thanks to a six-letter word called piracy?

    I was merely pointing out that the shift in making money from music has moved away from relying on copyright -- as I already explained. And it hasn't hurt the music business. And, again, no it's not about piracy, no matter how many times you insist on pinning that label on everything I describe.

    But you just said there has been a fall in the sales of shiny discs, which is what CDs look like. You also said Internet promotion works. Then why has it not led to a jump in CD sales? Topping handwaving with contradictions?

    Again, I was talking about promotion of the overall music business -- which I explained. I'm not sure what you think is handwaving, because I thought I was quite clear on that. CD sales are down because it's a substitute. The music itself acts as a promotion for all those other *scarce* goods that aren't substitutes.

    You really want to attack me, I understand, but your arguments need to at least make sense. Try to read what I actually wrote rather than what you want me to write. It'll make this debate a lot more interesting.

    Besides the point? I thought that was the core point. But of course, I'm not Mike Masnick.

    Two points:

    * Copyright was never intended to protect from harm. It was created as an incentive to create.

    * More importantly, the reason I said this was besides the point was that if there's *no actual harm* the question of why laws are in place doesn't matter. Williams entire point is based on the idea that there's harm. If there's no harm, it's besides the point.

    At this point I'm repeating myself.

    The harm or perceived harm is being done to the labels.

    And we need a law to protect harm to the labels? Where was the law to protect harm done to the horse and buggy makers? Do you support laws protecting any business that has a bad business model and goes out of business?

    My only focus is on promoting the progress, as per the constitution. And that's at a wider level. If the labels don't want to adapt, that's their problem. As we've pointed out in other posts however, there are plenty of ways they can adapt and make more money.

    If every band/musician can become a super success on the Internet, no one would give a rat's ass about shows like American Idol, which provide a platform for you to reach the whole world and help you strike deals with labels who will take care of promoting you and your music, touring, merchandising, press, PR, worldwide sales, etc.

    Huh? I know you've been commenting here for a while, but I really have to question if you've read what I've written, or if you've just decided what you think I said. You keep creating these strawmen.

    Considering that every other area of the music business is doing quite well, we've explained how there's absolutely a role for the record labels to play on the marketing side. Your statement above suggests I've said something completely different.

    Arguing against a strawman may make you feel right, but you'll find it does little to convince anyone that you're actually right.

    That's a whole lot different from saying he's opposed to any change in the copyright law. As usual, you are putting words into people's mouths, something you have elevated to a fine art.

    Funny. This from the guy who has repeatedly put words in my mouth. This from the guy who says that I've said record labels shouldn't exist. This from the guy who insists I'm really talking about piracy, when I am not.

    Your credibility here is nonexistent.

    Isn't it? If there were no piracy, why would we even be discussing alternative business models?

    Absolutely. I was talking about this stuff before Napster existed. It's still fundamental economics. The fact that piracy exists may have accelerated some of the issues, but it doesn't change the fundamental economics.

    With people who don't share your grand unified theory of free.

    That's not a sentence.

    That's why you even want to clamp down on someone like Williams; after all it was just his opinion. Isn't he entitled to it?

    He's absolutely entitled to his opinion. I've never suggested otherwise. I just suggested that it hurts SAI's credibility to publish an opinion that is clearly ill-informed and based on a clear and easily proven lack of research and knowledge.

    Just because everyone's entitled to their opinions it doesn't mean that a respected publication needs to publish and promote ignorant ones.

    Cram, again, I recognize that for whatever reason, you are still not convinced by what I write here. Fair enough. But I would suggest for the betterment of this entire conversation that you stop raising strawman arguments and focus on what I have actually said. Otherwise, you're wasting your own time.

     

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  51.  
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    Ian Ward-Bolton, May 29th, 2008 @ 5:53am

    I hope the entertainment industry does die

    Let's pretend the argument from Williams is sound (LOL!) - so what? There is virtually no utility in entertainment and it is a tremendous waste of resources that just sends money from the masses to a select few rich people who then spend that money unwisely. If it wasn't an industry, people could still create music and share music and make films, etc, etc, but it would not be part of the economy. If entertainment were free, people wouldn't need to work so much to pay for it - if we worked less, we would have more time to relax and think. Maybe then we would become aware of the real problems facing the world e.g. poverty and Climate Change.

     

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  52.  
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    TinFoilHat, May 29th, 2008 @ 6:59am

    Re:

    Shhh! That's not free-free. You're paying for it with commercials. You're selling your mind!

     

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  53.  
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    SomeGuy, May 29th, 2008 @ 7:10am

    Re: Re: wha?

    True, but sometimes some old guy adds pertinernt comments to the discussion; he posits here that MLS never does, and is only ever derogatory.

    As much as I strongly disagree with just about everything MLS posts, and despite the fact that a lot of the time he does just throw stones at Mike, he contributes meaningfully to the conversation as much as SoG does.

     

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  54.  
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    SomeGuy, May 29th, 2008 @ 7:15am

    Re: Re: Re: Re:

    We had this argument once before on Techdirt. How do you define free? If you want to qualify it as "no money changes hands ever" then yeah, nothing is free. Even this post is being paid for down some long food-chain from you through the economy to my boss to me to the ISP.

     

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  55.  
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    SomeGuy, May 29th, 2008 @ 7:26am

    Re: Re:

    "How does one argue over what copyright should be if that one does not know what it is?"

    Ask any philosopher. They spend their lives discussing things no one can really pin down, talking about the way things should be by reasoning through intents.

    What is the intent of copyright? Well, that's something you and I probably disagree on, MLS, but I hold that the intent of patents and copyrights is as an incentivising system to encourage creators to create. From that intent we can discuss what this system should be, very much aside from how the system actually is, currently. And, in particular, when a system is broken it's often times far more productive to start by looking at how such a system should be designed rather than busying oneself with examining the current (broken) system.

     

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  56.  
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    Anonymous Coward, May 29th, 2008 @ 7:27am

    Re: Re: King of Handwaving - Part Deux

    "Copyright was never intended to protect from harm. It was created as an incentive to create."

    The below is relevant to #48's comment as well as the above quote:

    http://en.wikisource.org/wiki/Copyright_Act_of_1790

    It is noteworthy that the original copyright act provided two distinct assessments against one found to be an infringer: (1) a fine (shared between the copyright holder and the government) per the provisions of Section 2, and (2) damages for harm to the copyright holder per Section 6.

    What I have always found interesting about this is that copyright, from its inception, has included both criminal and civil penalties, quite unlike patents that have always been limited to civil penalties.

    I have also found interesting that while patent law tends to remain relatively faithful to what was contained in the original act of 1790 (with changes being incremental), the same certainly cannot be said for copyright law (with changes being almost "explosive").

    I believe it is fair to say that as between these two bodies of law copyright law today bears virtually no resemblance to what was originally enacted.

     

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  57.  
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    MLS, May 29th, 2008 @ 7:52am

    Re: Re: Re:

    I do not agree that the patent system is broken, but I do agree that it, like any law, should always be subject to scrutiny to try and keep it relatively faithful to the intent underlying why it was created in the first place. The recent "reforms" debated in Congress do very little in this regard. I do agree, however, that copyright law is in dire need of a top-down reconsideration. The concept of limited times (originally 14 years with the opportunity of a one time extension for an additional 14 years) has morphed into something bordering on perpetuity. Criminal penalties are well past the point of being draconian; civil damages can be assessed even in instances where the copyright holder cannot prove he/she has been harmed; the "first sale" doctrine has effectively been emasculated (unlike patents where it remains a viable doctrine); public notice provisions have been totally eliminated, leaving members of the public totally in the dark about the copyright status of a work; the DMCA countenances the prohibition of activities, reverse engineering, whereas patent law has done no such thing except in very limited situations; etc.

    While my area of legal specialization involves the entire gamut of what comprises so-called "IP" law, do underatand that I am most certainly not an apologist for either system. There are some issues in patent law that could benefit from changes (albeit I believe that effective changes can be made in an incremental manner), but copyright law is an entirely differrent matter. While I do not advocate throwing it out and starting with a blank page, I do advocate significant changes to return it back to its roots.

     

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  58.  
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    MLS, May 29th, 2008 @ 7:54am

    Re: Re: Re: King of Handwaving - Part Deux

    Failed to note I presented the comments in #56

     

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  59.  
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    John Wilson, May 29th, 2008 @ 8:49am

    Re: Re: Re: Re:

    I'm not aware that many people here are arguing for the total abolition of copyright. Simply a return to its roots and intended purpose.

    To agree with you the DCMA is ridiculous and the cause of much of the hostility towards copyright. Let's all thank Sonny Bono for most of the US Senate sharing a comfy bed with the entertainment industry.

    Patents, particularly software patents are another kettle of fish completely. As the current mess rose not from legislation but by judicial extension of patent law to include common software and such silliness as business methods there is much to question here.

    This is not to say that the judiciary has no place in civil law doing that sort of thing. Quite the contrary. What it does mean is that precedent and rulings are not "cast in stone" in the same way legislation is.

    At least one of the, I hope, unintended consequences of this is that tech companies arm themselves with a mess of largely inconsequential patents (often challengeable) for the sole purpose of protecting themselves from patent claims. Microsoft, IBM, Sun, Apple, Novel and many others do this as does the Linux Foundation.

    While it may offer work for lawyers like yourself who make their living from IP law it does, I would argue, little or nothing to encourage innovation or invention. The reverse, actually.

    And like it or not patents and copyrights are limited monopolies in both economic and social terms and were described as such by the framers of the US Constitution.

    That they aren't in law, at least in terms of anti-trust law, is entirely beside the point.

    And both are open to change.

    Thank God that, in a free society, we don't rely on lawyers to push for those changes.

    ttfn

    John

     

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  60.  
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    SomeGuy, May 29th, 2008 @ 8:51am

    Re: Re: Re: Re:

    Perhaps I've misread you, then, as I agree with nearly everything you just said. I'm not a lawyer by any stretch, just a typical tech worker. That said, though, I do feel that copyright and patentys are both 'broken' in that the abuses are so much the norm that both systems actively work against their original intents in practice. Patents are used to stifle forward progression (see, for example, the whole mess with solid state drives) and copyrights are used to prevent further creativity (such as making music videos or media-mashups on YouTube). Nothing moving through congress has given much hope at all, and as has been noted here is often only more problematic than what we currently have.

    I think that if we're to keep these systems, they have to be re-worked practically from scratch. Copyright 2.0 or whatever. That being said, I don't think we need them, I feel we would be better off without them, and I wouldn't mind in the least if both systems simply ceased to be.

     

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  61.  
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    John Wilson, May 29th, 2008 @ 9:05am

    Re: King of Handwaving

    "Of course there's no evidence to support this, because copyright's not been done away with yet. Actually, the fact that plenty of copyrighted content is still being created shows that copyright and content are not totally delinked. If that were the case, everyone should have moved away from copyright to GPL or Creative Commons by now."

    Now that's a good start, isn't it? Neither the GPL or Creative Commons do away with copyright. What they do is set licensing terms on copyrighted material.

    There is a rather large difference, you know.

    "Would it be sacrilegious to say copyright is directly linked to the quality of content?"

    It would simply be wrong.

    You can copyright crap if you want. Nothing at all to stop that. And there is copyrighted material on YouTube placed there legally and often with a Creative Commons License.

    "Is that a good thing, this fall in the sales of shiny discs?"

    The decline in sales started long before things like peer to peer file sharing began and isn't directly linked to it.

    That has far more to do with the quality and pricing of those shiny discs than anything else.

    A very common and valid complaint in the 90s was that you could rely on a CD to be mostly good with anywhere from 1/4 to 1/3 of it throwaway stuff that was simply awful.

    Yes, there were artists who would release discs crammed with quality material but these were often the big players who had significant control over what actually came out. (Say U2, Dixie Chicks, Sarah McLaughlan...folks in that class.) New artists definitely didn't and don't have that kind of control.

    Still, if you describe blockbuster as being in the category of those I mentioned above they are few and far between and always have been. The music market in the late 60s and early 70s wasn't as fractured as it is now, in many ways a good thing.

    I would argue, however, that should there be the "next Beatles" floating around out there, as unlikely as that is, they'll do fine using the Internet and waiting for the industry to beat a path to their door.

    Remember, The Beatles had one hell of a time getting a recording contract.

    ttfn

    John

     

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  62.  
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    mobiGeek, May 29th, 2008 @ 9:50am

    Re: Re: Re: Re:

    You, as a lawyer whose job is to work with the law, do not agree that the patent system is broken.

    I, as a software developer who is subject to the penalties of the law, find that I am overly burdened and at risk because of the current patent system. I have my lawyers constantly reviewing our designs, our marketing, etc... to determine what we might be infringing by code that we've written ourselves.

     

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  63.  
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    Anonymous Coward, May 29th, 2008 @ 10:02am

    Re: Re: King of Handwaving

    "Of course there's no evidence to support this, because copyright's not been done away with yet.

    Um. No. There's plenty of evidence to support this because you can look at the production of content that is used in ways that does not rely on copyright as the incentive of production."

    What the...? You say there's no evidence. I say of course there's none, but then you promptly say there is plenty. Contradictions again, Mike.


    "Not at all. No one denies that copyright gives an easy crutch for content creators to use. So the fact that they haven't abandoned it is meaningless."

    I thought your fight was againt labels that push for copyright protection. If a creator wants to protect his content with copyright, how is it meaningless? Just because you say so? Are you basically saying no content creator should be allowed to copyright his material?

    "Is there any data to support this claim? Even if it were true, much of the non-copyright content is rubbish (Youtube is a classic example). Would it be sacrilegious to say copyright is directly linked to the quality of content?

    Well, I'm glad that we have cram to judge the quality of all content."

    I asked you a question and you refuse to answer it. Is there any data to prove your point? As for my opinion about Youtube rubbish, that's just it. My opinion. I don't understand why chose to pick on that point and ignore the rest.

    "And, no, I disagree with your statement that copyright is linked to quality. It's not. There is plenty of quality stuff that is created not by using copyright as the incentive."

    That's not what I was referring to. I fully agree that there's quality stuff created not by using copyright as the incentive. But there's also tons of copyrighted stuff that's of high quality. Do you agree? Should the creators be allowed to copyright them?


    "Rather large? How large is that? And how big are they? Are we talking about at least 25 significant bands/musicians? 50? 100? Where do they figure on the top 100 list, if they do?

    I don't have exact numbers. But Williams claimed it was zero. That's obviously false. Who's handwaving now?"

    Both of you are. He says there's none, which is false, of course, I agree. But your statement that there's a rather large number is vague. That's what I was picking on. You do have a strong tendency to make such statements without backing them up with data.

    "That's skating on thin ice. Succeeding via the Internet and "relying on Internet support" are two different things. How many bands have succeeded primarily through the Internet? How many Grammy winners are using the Internet as the sole distribution channel?

    Um. You're setting up totally pointless rules here. No one said that they had to only rely on the internet. There's simply no reason for any band to do so today. So I'm not sure what sort of point you're trying to prove, because you're failing. Williams claimed there was no evidence that the internet helps a band. That's easily proven false. You seem to be attacking a different point. I'm not sure why."

    The way you phrased the sentence, I read (or misread) it as an assertion that the Internet is the way out for musicians to make it big today. My bad, I admit.


    "Is that a good thing, this fall in the sales of shiny discs?

    If the replacement is more efficient, more cost effective and allows for more music to be distributed to more people... I'd say yes.

    I had no idea anyone contested that fact."

    In an earlier blog post, where I had asked you whether you were for or against CDs, you said you were for them. That you loved them. You have always touted the CD as a scarce good. Now you say a fall in CD sales is a good thing. Isn't that a contradiction again?

     

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  64.  
    identicon
    Melvillain, May 29th, 2008 @ 10:16am

    First time SAI reader

    Thanks for pointing out this article. I just recently started reading SAI and I'm glad to know that Hank Williams opinions are not their usual mo.

     

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  65.  
    identicon
    SomeGuy, May 29th, 2008 @ 10:25am

    Re: Re: Re: King of Handwaving

    You keep talking about artists being "allowed to copyright" their stuff. Now, first and foremost, Mike isn't dictating what people should be allowed to do with their content. He's just talking about why it's dumb. I'm allowed to charge people $100 for a glass of fresh-squeezed orange juice, but it's a pretty dumb idea especially if the kid down the street is offering something similar for a nickle. Mike is just pointing out that it's a smarter idea to encourage people to use your content rather than restricting who can access it and how. It's not that they shouldn't be allowed to do it, but that if they do they're going to be out-maneuvered by the competition.

    Now, when he said that the fact people haven't abandoned copyright is meaningless, his point was: copyright is broken because it is unfairly weighted against the public in favor of the artist; the artists are still hiolding to this unfair advantage is irrelivant to a discussion of how unfair the system is or ways that a better equity can be struck, where all people are better off.

    Williams says it's zero. Mike says it's lots. You say, I don't believe you, Mike, give me numbers. Sure, lots is vague, but your complaint amounts to "nuh-uh," and is less than a compelling argument. Do you have evidence that it's not a huge number?

    I'm a big fan of CDs as well, but for the most part they have historically added little value and have been priced too high. Mike says here that if the alternative to steady CD sales is a system that's more efficient and adds more value, that's a good thing. I agree, and I don't see how saying, "A is Good, but B is better," is a contradiction.

     

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  66.  
    identicon
    cram, May 29th, 2008 @ 10:40am

    "I recognize that you disagree with me, but, seriously, you've got to come up with better arguments than this.

    That has not happened. If the music business is doing fine, without copyright, why are they clamouring for greater copyright enforcement?

    Don't confusing the *recording* industry with the *music* industry."

    A large part of the "music" industry is still intertwined with the "recording" industry. How many of the top acts are independent? Do you mean to say the members of the "music" industry have freed themselves of the shackles of copyright and embraced your grand free model? With stray exceptions like Reznor, all top acts continue to be part and parcel of the recording industry.

    "Demise of copyright? When did that happen? Or do you mean the annihilation of the idea of copyright in the digital domain, thanks to a six-letter word called piracy?

    I was merely pointing out that the shift in making money from music has moved away from relying on copyright -- as I already explained. And it hasn't hurt the music business. And, again, no it's not about piracy, no matter how many times you insist on pinning that label on everything I describe."

    You'll never agree with me on this point, I know. But it is the elephant in the room. No matter how much you pretend it isn't. In another blog post, you had said people will find a way to copy their content. Wasn't that a tacit admission?

    "But you just said there has been a fall in the sales of shiny discs, which is what CDs look like. You also said Internet promotion works. Then why has it not led to a jump in CD sales? Topping handwaving with contradictions?

    Again, I was talking about promotion of the overall music business -- which I explained. I'm not sure what you think is handwaving, because I thought I was quite clear on that. CD sales are down because it's a substitute. The music itself acts as a promotion for all those other *scarce* goods that aren't substitutes."

    In earlier posts, you have said CDs are scarce goods that artists could make money out of. Now this. Mike, it's getting tiresome.

    "You really want to attack me, I understand, but your arguments need to at least make sense. Try to read what I actually wrote rather than what you want me to write. It'll make this debate a lot more interesting."

    No. My point is not to attack you. I don't have any agenda, Mike. If I have given that impression I am sorry. I apologize. Maybe I should have just read the post, chuckled and moved on. I wanted to engage with you on "what you actually wrote," not what I imagine you have. I follow this blog closely, I've read a lot of your stuff. It's only when I find all these contradictions and handwaving that I get provoked and write these awfully long replies.

    "Besides the point? I thought that was the core point. But of course, I'm not Mike Masnick.

    Two points:

    * Copyright was never intended to protect from harm. It was created as an incentive to create.

    * More importantly, the reason I said this was besides the point was that if there's *no actual harm* the question of why laws are in place doesn't matter. Williams entire point is based on the idea that there's harm. If there's no harm, it's besides the point."

    Of course, that's what I was also stating. Copyright violation harms the labels. He's arguing for protection of the labels, which is why I thought it was not beside the point at all, but central to his defense.

    "
    At this point I'm repeating myself.

    The harm or perceived harm is being done to the labels.

    And we need a law to protect harm to the labels? Where was the law to protect harm done to the horse and buggy makers? Do you support laws protecting any business that has a bad business model and goes out of business?"

    Who decides what is a good or bad model? You may think this model doesn't work, but Hank does and perceives harm. Whether we need to protect the labels is a totally different issue.

    "If every band/musician can become a super success on the Internet, no one would give a rat's ass about shows like American Idol, which provide a platform for you to reach the whole world and help you strike deals with labels who will take care of promoting you and your music, touring, merchandising, press, PR, worldwide sales, etc.

    Huh? I know you've been commenting here for a while, but I really have to question if you've read what I've written, or if you've just decided what you think I said. You keep creating these strawmen."

    So the Internet is not the panacea for upcoming musicians. They do need the marketing muscle that labels provide. Again, my bad. I assumed you were touting the Internet as the be-all and end-all of music promotion. But I hope you will notice that all the other media and channels, such as television, American Idol, etc...rely heavily on copyright.

    ""Arguing against a strawman may make you feel right, but you'll find it does little to convince anyone that you're actually right."

    I am not trying to convince anyone I am right. What I am merely trying to do is hold up your contentions and see if they stand every test. We live in exciting times and your ideas seem different. I am just trying to convince myself how far Mike is right. And the more I read, the clearer the picture.

    "That's a whole lot different from saying he's opposed to any change in the copyright law. As usual, you are putting words into people's mouths, something you have elevated to a fine art.

    Funny. This from the guy who has repeatedly put words in my mouth. This from the guy who says that I've said record labels shouldn't exist. This from the guy who insists I'm really talking about piracy, when I am not.

    Your credibility here is nonexistent."


    Wow, what an ad hominem attack! You really are pissed, aren't you? Sorry mate, you just put words into Hank's mouth, trying to twist them into meaning what he did not say. I merely point it out and you refuse to accept it. Your supersensitive ego is making any sort of civil debate difficult.

    "Isn't it? If there were no piracy, why would we even be discussing alternative business models?

    Absolutely. I was talking about this stuff before Napster existed."

    I didn't know that. I was new to the net when Napster happened. But why would you want to take away so much revenue from content sales from a company by asking them to give it away free? Because if there were no piracy, everyone would be purchasing MP3 files instead of CDs, and companies would not scream from the rooftops about falling revenues.

    "Cram, again, I recognize that for whatever reason, you are still not convinced by what I write here. Fair enough. But I would suggest for the betterment of this entire conversation that you stop raising strawman arguments and focus on what I have actually said."

    You conveniently ignore points that I raise, just as you have done with others (Alexander comes to mind). I am not surprised. As for my time spent here, it's never wasted, I can assure you. It gives me a better understanding of what's happening to the content landscape and what factors shape it.

     

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  67.  
    identicon
    cram, May 29th, 2008 @ 10:59am

    Re: Re: Re: Re: King of Handwaving

    Hi Someguy

    Firstly, your take on copyright being broken was interesting. Thanks.

    "I'm allowed to charge people $100 for a glass of fresh-squeezed orange juice, but it's a pretty dumb idea especially if the kid down the street is offering something similar for a nickel."

    Classic Mike Masnick argument. He likes to compare music with air, you seem to prefer orange juice. My point is: two glasses of orange juice are pretty much the same, but no two songs or bands are. And it doesn't take much to squeeze orange juice, but I am sure you'll agree it takes a helluva lot more to squeeze out great music.

    "Williams says it's zero. Mike says it's lots. You say, I don't believe you, Mike, give me numbers. Sure, lots is vague, but your complaint amounts to "nuh-uh," and is less than a compelling argument. Do you have evidence that it's not a huge number?"

    When Mike says something like that, you have to take it with a pinch of salt. If you've been here long enough you'd know. He has a habit of throwing out such vague terms.

    Mike said it's a rather large number, which is downright vague. The burden of proof is on the one who makes the statement.

    I never said it's not a huge number, did I? Or that it's zero (which is what Hank did)? If I had, you'd be right to ask me for proof.

     

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  68.  
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    MLS, May 29th, 2008 @ 12:41pm

    Re: Re: Re: Re: Re:

    "I, as a software developer who is subject to the penalties of the law, find that I am overly burdened and at risk because of the current patent system. I have my lawyers constantly reviewing our designs, our marketing, etc... to determine what we might be infringing by code that we've written ourselves."

    Just out of curiosity, do you ordinarily liaison with outside counsel or in-house counsel? This is not a trick question, but it will help me provide you with some perspective about the differences.

     

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  69.  
    identicon
    MLS, May 29th, 2008 @ 12:58pm

    Re: Re: Re: Re: Re: Re:

    BTW, are any of the attorneys (outside or in-house) specialists in the area of "IP"?

     

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  70.  
    identicon
    mobiGeek, May 29th, 2008 @ 1:34pm

    Re: Re: Re: Re: Re: Re: Re:

    It is outside counsel, who is an expert in "software IP" law with many years working in Silicon Valley, but he is also an initial investor in our non-public organization.

     

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  71.  
    icon
    Mike (profile), May 29th, 2008 @ 3:13pm

    Re: Re: Re: King of Handwaving

    What the...? You say there's no evidence. I say of course there's none, but then you promptly say there is plenty. Contradictions again, Mike.

    Cram. Apologies, but with the way you quote previous comments, it's often quite difficult to follow. This wasn't a contradiction, it was a mistake. I thought you were referring to something else. I assumed, based on the context, that you were saying there was no evidence of the impact of what happens when there's no copyright, and I responded to that. Obviously, that's not what you were saying. So, again, it was a mistake, not a contradiction.

    I stand by the original statement, however, which is correct.

    I thought your fight was againt labels that push for copyright protection. If a creator wants to protect his content with copyright, how is it meaningless? Just because you say so? Are you basically saying no content creator should be allowed to copyright his material?

    There's no "fight." There's merely explaining the economic impact of what's going on and how to take advantage of it.

    What was meaningless was the assertion, made by you, that content creation still was closely linked to copyright simply because copyright still existed. That's not what we're debating. Of course a monopoly has some impact on the market. The question is whether or not it makes sense or helps promote the progress.

    I say it distorts the market in ways that harm the progress. If you want to argue that point, go ahead. But you are still arguing strawmen.

    I asked you a question and you refuse to answer it. Is there any data to prove your point?

    Do you really need data to have you believe that more content is being created today than at any time in history? I've yet to see anyone who disputes that claim.

    As for my opinion about Youtube rubbish, that's just it. My opinion.

    But you didn't just state your opinion. You implied that because *YOU* thought YouTube content was rubbish, it didn't matter to the discussion. Beyond being elitist, that's incorrect.

    I fully agree that there's quality stuff created not by using copyright as the incentive. But there's also tons of copyrighted stuff that's of high quality. Do you agree? Should the creators be allowed to copyright them?

    Well, you're confusing two points here. All content is covered by copyright. The question I'm discussing is whether that content is created *because* of the copyright or not. It's supposed to act as incentive. If it is not needed as an incentive then that should be noted, since the harms associated with copyright are well documented.

    So, yes, sure there's plenty of high quality content that is copyrighted. But that doesn't get to the actual point.

    As for whether or not someone should be able to use copyright, right now they legally can. But I don't believe that it's in society's *or* the creators content to use copyright. I think that eventually more creators will realize this.

    He says there's none, which is false, of course, I agree. But your statement that there's a rather large number is vague. That's what I was picking on. You do have a strong tendency to make such statements without backing them up with data.

    Cram, he made an absolute statement. All I needed to do was point to a single example to prove him wrong. I pointed to a few examples and then pointed out that we see more examples all the time, which is why I used the "rather large" phrase. If the number were small, we wouldn't hear about them so often.

    Just because I don't have exact stats doesn't make the statement false. The only false statement was Williams.

    In an earlier blog post, where I had asked you whether you were for or against CDs, you said you were for them. That you loved them. You have always touted the CD as a scarce good. Now you say a fall in CD sales is a good thing. Isn't that a contradiction again?

    No. That's a reality. I have no problem with artists who provide something of value that makes people want to buy the CD. But that doesn't mean that we need to artificially protect the CD-making business if it can't deliver what people want.

     

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  72.  
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    Mike (profile), May 29th, 2008 @ 3:31pm

    Re:

    A large part of the "music" industry is still intertwined with the "recording" industry. How many of the top acts are independent? Do you mean to say the members of the "music" industry have freed themselves of the shackles of copyright and embraced your grand free model? With stray exceptions like Reznor, all top acts continue to be part and parcel of the recording industry.

    The fact that many bands are signed to labels is meaningless here, because most record labels make their money from recorded music sales. Their contracts do not include the other parts of the business (concert revenue, merch, etc.). So, no, I'm not saying that all artists should be independent. I'm saying that the business model of selling recorded music is dying, but every other aspect of the music business is doing great. The problem is that the recording industry only makes its money from recorded music (with a few recent exceptions).

    So I am still talking about the overall music industry. But that's different than the subset that solely makes money from the sale of recorded music.

    A large part of the "music" industry is still intertwined with the "recording" industry. How many of the top acts are independent? Do you mean to say the members of the "music" industry have freed themselves of the shackles of copyright and embraced your grand free model? With stray exceptions like Reznor, all top acts continue to be part and parcel of the recording industry.

    A tacit admission of what? That piracy exists? I don't think there's anything to "admit" there. Piracy exists. But that's got nothing to do with the economic models being explained here.

    In earlier posts, you have said CDs are scarce goods that artists could make money out of. Now this. Mike, it's getting tiresome.

    You have misread what I wrote. CDs are scarce goods, and they can sell IF YOU ADD ADDITIONAL VALUE to them. That is you can't just expect people to keep buying CDs. They won't -- because the CD by itself doesn't have enough value above the digital files. But if you can provide additional reasons to buy, then it can work. There's no contradiction. The only thing getting tiresome is you looking for some sort of "gotcha" that isn't there.


    Of course, that's what I was also stating. Copyright violation harms the labels. He's arguing for protection of the labels, which is why I thought it was not beside the point at all, but central to his defense.


    Focusing on the harm to a specific subset of companies in the industry, rather than looking at the industry as a whole is a mistake. I note you didn't answer my question. If the industry is transportation, do we protect the horse and buggy makers, or do we tell them it's time to make automobiles?

    Hank is saying protect them because the horse and buggy market is important. I'm saying horse & buggies are a subset of transportation, and automobiles will serve the market better -- so let's let the market sort this out.

    You define the market not on the product (which Hank is doing) but on the benefit to the customer.

    Who decides what is a good or bad model? You may think this model doesn't work, but Hank does and perceives harm.

    HUH?!? The market decides what's a good or bad model. That's all. But you can look to basic economics to understand why a model works or does not work.

    The fact that Hank "perceives" harm is meaningless. The question is whether or not the market is *actually* harmed. And the evidence there suggests no.

    So the Internet is not the panacea for upcoming musicians. They do need the marketing muscle that labels provide. Again, my bad. I assumed you were touting the Internet as the be-all and end-all of music promotion. But I hope you will notice that all the other media and channels, such as television, American Idol, etc...rely heavily on copyright.

    I'm sorry, but I don't see the point that you are making here. The fact that some channels use copyright isn't what we're debating. We're debating whether or not copyright is necessary to promote the progress, and if the removal of it will somehow hurt progress.

    I am not trying to convince anyone I am right. What I am merely trying to do is hold up your contentions and see if they stand every test.

    It would help if you actually found some contradictions. So far, you've been setting up strawmen and pretending there were contradictions.

    Wow, what an ad hominem attack!

    Apologies for that. I just found it odd that you would complain so much about a simple paraphrase claiming I made something up right after you had totally twisted my words. It's frustrating when you keep making up strawmen attacks on me, claiming things I didn't say. I just couldn't believe you had the gall to then suggest I was doing that. So I pointed it out. I didn't think it was an ad hominem. I just thought it was a point worth making.

    Sorry mate, you just put words into Hank's mouth, trying to twist them into meaning what he did not say.

    I paraphrased his words, based on the overall post into a manner that still appears to accurately portray what he said.

    But why would you want to take away so much revenue from content sales from a company by asking them to give it away free? Because if there were no piracy, everyone would be purchasing MP3 files instead of CDs, and companies would not scream from the rooftops about falling revenues.

    Because what if you could make MORE money giving away the content for free? That's the point I've been pointing out from the very beginning. You say "if there were no piracy, everyone would be purchasing MP3s" but that's incorrect. Because *some* musicians would realize that it gave them a leg up to give away those mp3s for free and make more money from the corresponding larger audience that resulted. That's the point that I'm making. And more bands would start to do that and the record labels would still be whining and complaining.

    You conveniently ignore points that I raise

    Please name a single point I ignored.

    just as you have done with others (Alexander comes to mind).

    Alexander who?

    As for my time spent here, it's never wasted, I can assure you. It gives me a better understanding of what's happening to the content landscape and what factors shape it.,

    Coming up with false statements about what you think I said does waste your time.

     

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  73.  
    identicon
    Time Isn't Free, May 29th, 2008 @ 4:29pm

    Re: I hope the entertainment industry does die

    It takes time, and resources, to create art. The time and resources creators spend on creating that art mean that they're not spending time doing other things to raise money. Hence the hope that their art will find an audience who will be willing to PAY to help them do things like eat.

    These anti-copyright arguments sound OK in the vacuum of blog-based discussions, but translate poorly to the real world, particularly beyond the world of music. Without funding, artists cannot seriously pursue their art in any dedicated manner ... again, because of the eating thing.

    I agree that current law unfairly favors the major corporations, but in our zeal to correct that problem, let's not create situations that overburden artists more than they already are. As it is, most are getting screwed by the corporations. Let's not swing the pendulum the other way so they now get screwed by the public. Get mega-celebrities out of your head when you're thinking about these issues ... they're the product of the corporations. Think instead about the guy working to build the set for that film and the wife and kids he has to support. Or do you think he should work for free? Because without someone who already has money paying that guy to work, the set won't get built. He's not going to take a few months to work on a project in the hope that someday the film will garner enough 'net clicks and AdSense dollars to eventually pay him for his work.

    Another aspect of all this that annoys me: some art forms take more time and resources than others. For example, it takes more to make a feature-length film than to make a five-minute song. Yet, arguments about copyright and payment tend to treat all art forms as equal.

     

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  74.  
    icon
    Mike (profile), May 29th, 2008 @ 4:43pm

    Re: Re: I hope the entertainment industry does die

    It takes time, and resources, to create art. The time and resources creators spend on creating that art mean that they're not spending time doing other things to raise money. Hence the hope that their art will find an audience who will be willing to PAY to help them do things like eat.

    Yes, as we've repeatedly said. The creation of art is a scarce good. That can and will be paid for.

    Where you're wrong is assuming that the only way to pay for the creation is to charge for each use of it after the fact. That's simply untrue.

    These anti-copyright arguments sound OK in the vacuum of blog-based discussions, but translate poorly to the real world, particularly beyond the world of music. Without funding, artists cannot seriously pursue their art in any dedicated manner ... again, because of the eating thing.

    Again, you falsely assume that this is the only model by which they are paid. That's incorrect. In fact, I'd argue that the model you support ends up with people worse off. The number of content creators, artists and writers who never make serious money off of their works is huge. Many work without ever making any money at all.

    Why do you support that model?

    I'm talking about a model where more of them are more likely to make some money out of what they do.

    Get mega-celebrities out of your head when you're thinking about these issues ... they're the product of the corporations.

    None of what I'm discussing is about the mega-celebrities, but about that long tail that currently isn't heard from. It's about enabling them to make more money by using the free distribution and promotion mechanism that are there to increase the demand for their scarce goods (such as creating new works).

    Another aspect of all this that annoys me: some art forms take more time and resources than others. For example, it takes more to make a feature-length film than to make a five-minute song. Yet, arguments about copyright and payment tend to treat all art forms as equal.

    You must be new here. We've talked about models for a variety of different artforms. Please do not accuse us of having said stuff we have not.

     

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  75.  
    identicon
    Melvillain, May 29th, 2008 @ 4:48pm

    Hank Williams

    I'm not sure if you guys saw this yet, but here is a post by Hank Williams discussing who owns comments. By the way please don't delete this, because I haven't saved it anywhere else. http://whydoeseverythingsuck.com/2008/05/who-has-comment-copyright-ownership-in.html

     

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  76.  
    identicon
    Jason, May 29th, 2008 @ 4:49pm

    Re: Re:

    Please help me understand your comment: "Because what if you could make MORE money giving away the content for free?"

    How does this make any sense whatsoever? Yes, initially, giving away music may gain you a larger audience ... but the whole point of gaining a larger audience, from an economic perspective, is so that they will PAY you later. This doesn't work if you've given it all away. Didn't you have a mother who warned you about free milk ... ?

    I understand the argument that musicians can make money from concerts and merchandise, but that's a cop-out really, for two reasons. 1) Why can't they also expect to make money from albums they create? Not every musician wants to (or should have to) perform live to make money. And who pays for the initial creation and advertising/marketing of the merchandise? And who pays for all that goes into putting on a live show? 2) This simply doesn't apply in any real sense to most other art forms. The novel is the product, for example, not the "live reading" of the novel or the author's face on a T-shirt.

     

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  77.  
    identicon
    Time Isn't Free, May 29th, 2008 @ 4:56pm

    Re: Re: Re: I hope the entertainment industry does die

    You say: "Yes, as we've repeatedly said. The creation of art is a scarce good. That can and will be paid for.

    Where you're wrong is assuming that the only way to pay for the creation is to charge for each use of it after the fact. That's simply untrue."

    My question: who/how will it be paid for? What other model do you propose?

    If you're right, then I think that will be great news. I'm just not convinced yet.

    Also, you said: "Please do not accuse us of having said stuff we have not."

    I wasn't accusing "us" (whoever that is), but talking generally. That's what "all this" meant. Sorry if that was unclear.

    And yes ... I'm new here. My comment is for this post and its discussions, not for every post on this blog.

     

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  78.  
    identicon
    cram, May 29th, 2008 @ 5:38pm

    Hi Mike

    Thanks for the clarifications. Things are a whole lot clearer now.

     

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  79.  
    identicon
    cram, May 29th, 2008 @ 7:21pm

    Re: Re: Re:

    Hi Jason

    Good points on the cop-out. I believe, and I may be wrong here, hip-hop artists derive most of their income from recorded music and not concerts. If that's true, I don't see how Mike's grand free plan would help them.

    Another point that no one seems to have touched upon is global sales of recorded music. American popular music, like Hollywood movies, has a huge following all over the world. Unless they account for a very small percentage of overall income, there's no incentive for labels to suddenly give away their music.

    As for your second point, I don't think authors would be affected by giving away their work for free, because a whole lot of people still queue up to buy books, not just in the US but across the English-speaking world.

     

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  80.  
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    Mike (profile), May 29th, 2008 @ 7:43pm

    Re: Re: Re:

    How does this make any sense whatsoever? Yes, initially, giving away music may gain you a larger audience ... but the whole point of gaining a larger audience, from an economic perspective, is so that they will PAY you later. This doesn't work if you've given it all away.

    We never said you give it ALL away. You give away the *infinite* goods to make the *scarce* goods more valuable. You can read more here:

    http://www.techdirt.com/articles/20070503/012939.shtml

    I understand the argument that musicians can make money from concerts and merchandise, but that's a cop-out really, for two reasons.

    Then you don't actually understand that argument. Because all of those ancillary markets are made larger by the free music -- often much larger. There's great research going on in the economics world about endogenous growth these days, that shows how the application of such infinite goods leads to growth.

    1) Why can't they also expect to make money from albums they create?

    And why can't horse and buggy makers expect to make money from the horse and buggies they create? Because the market isn't there for them any more. That's why.

    But if the market for the real benefit (transportation) is made much bigger by the introduction of the automobile, shouldn't they get into the automobile business?

    Not every musician wants to (or should have to) perform live to make money. And who pays for the initial creation and advertising/marketing of the merchandise? And who pays for all that goes into putting on a live show?

    And not every horse & buggy maker wants to get into the automobile business. So they go out of business. But the amount of consumer benefit (transportation) increases massively. Why? Because there's increased demand for this better product, and thus the business models make sense to build many more cars than before.

    And, we've never said that concerts are the *only* way to make money. We've given numerous non-concert examples that involve other types of scarce goods. There are a variety of models. If the demand is there, there will be plenty of ways to pay for it. We've pointed out the examples of Trent Reznor, Maria Schneider, Jill Sobule, the String Cheese Incident and many others. All of these involve some aspect of these models -- none of which did it in the same way.

    2) This simply doesn't apply in any real sense to most other art forms. The novel is the product, for example, not the "live reading" of the novel or the author's face on a T-shirt.

    You'd be amazed. The more you look, the more you find otherwise. Novels existed prior to copyright. If there's demand, business models are available to get them made.

     

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  81.  
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    Mike (profile), May 29th, 2008 @ 7:46pm

    Re: Re: Re: Re: I hope the entertainment industry does die

    My question: who/how will it be paid for? What other model do you propose?

    http://www.techdirt.com/articles/20070503/012939.shtml
    http://www.techdirt.com/articles /20030912/1032238.shtml
    http://www.techdirt.com/articles/20080115/095022.shtml
    http://www.techdirt .com/articles/20050214/1311237.shtml
    http://www.techdirt.com/articles/20060208/1030213.shtml
    http: //www.techdirt.com/articles/20080302/234646401.shtml

    If you're right, then I think that will be great news. I'm just not convinced yet.

    Fair enough. Look around, check out the research, understand the theory, and look at those putting it into practice. Hopefully, you'll be pleasantly surprised.

     

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  82.  
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    Mike (profile), May 29th, 2008 @ 7:48pm

    Re: Re: Re: Re:

    Good points on the cop-out. I believe, and I may be wrong here, hip-hop artists derive most of their income from recorded music and not concerts. If that's true, I don't see how Mike's grand free plan would help them.

    Actually, hip hop stars have been among the first to embrace the models we talk about here and have done quite well.

    http://www.techdirt.com/articles/20070817/024502.shtml
    http://www.techdirt.com/articles/20 071209/182926.shtml
    http://www.techdirt.com/articles/20080311/183620503.shtml


    Another point that no one seems to have touched upon is global sales of recorded music. American popular music, like Hollywood movies, has a huge following all over the world. Unless they account for a very small percentage of overall income, there's no incentive for labels to suddenly give away their music.


    I'm not sure what you're getting at here. Why does it matter that there's a global audience? That's only *more* reasons to give away the music to attract an even larger global audience.

     

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  83.  
    identicon
    Jason, May 29th, 2008 @ 8:21pm

    Re: Re: Re: Re:

    "And why can't horse and buggy makers expect to make money from the horse and buggies they create? Because the market isn't there for them any more. That's why."

    In this bad analogy, you're comparing one mode of transportation with another (buggy and automobile). This doesn't correlate because we're not comparing, for example, cassettes with CDs ... we're talking about payment for ANY form of the recorded piece of music. This is just bad logic and does nothing to convince me. Whether it's a buggy or an automobile, you're still going to have to PAY for the transportation.

    "And not every horse & buggy maker wants to get into the automobile business."

    First, see above. Second, you're suggesting that if a musician doesn't want to become a touring group and/or merchandising front (shirts, ad-placement, etc.), then too bad. That's a really insulting position to take toward musicians. I'm sure they don't appreciate the lack of respect you seem to have for their work.

    Your response to my second point lacked so much substance that it may as well have been as non-existent as your payment for digital copies of recorded music.

    What I don't get is why consumers are so selfish as to not be willing to pay a small amount for their digital copies--not to pay for the price of duplication (which is near zero), not to support major corporations, but to support the artists who create the music. I also don't understand why it's so objectionable to support laws that protect the artists' ability to gain financial support for their work.

    I agree that the current laws are out of alignment and greatly favor the corporation and not the artist, but I don't see why people are arguing for abolition instead of reform.

    You can talk alternative revenue sources all you want, but it's good and common sense that what musicians primarily do is create music, usually in the form of songs. They should be able to profit financially from that alone, or the whole thing is a farce. Writers produce stories, scripts, poems. Artists produce paintings, sculpture, etc. If you enjoy their work, SUPPORT THEM IN A WAY THAT HELPS THEM CONTINUE THEIR ART--WITH MONEY.

     

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  84.  
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    cram, May 29th, 2008 @ 8:29pm

    Re: Re: Re: Re:

    Hi Mike

    Horse and buggy was a model made obsolete by the automobile in the transportation business. To apply your analogy to the music business, records were made obsolete by tape, which were phased out by CDs. But the revenue model of charging for recorded music remained the same, just as the model of charging people for commuting didn't change. I don't understand how you can continue to keep using the horse and buggy analogy, when it clearly doesn't fit.

     

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  85.  
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    cram, May 29th, 2008 @ 8:36pm

    Re: Re: Re: Re: Re:

    "I'm not sure what you're getting at here. Why does it matter that there's a global audience? That's only *more* reasons to give away the music to attract an even larger global audience."

    Doesn't it matter that there's a global audience that would pay good money for your CDs? Why would you want to give away that music for free, when they are willing to pay? Also, there's a greater chance of your making money from recorded music sales, because you're less likely/not likely to tour in many ofc these overseas locations. There are literally hundreds of bands and performers who have rarely or never toured many Asian countries, even though they are hugely popular there.

     

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  86.  
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    Pet Wombat, May 29th, 2008 @ 9:48pm

    Actual numbers

    Hi Mike,

    Special request:

    I have had similar arguements with people in a variety of circles, and always the issues boils down to "show me the facts".

    So, can you help point me to were I can get hard numbers on:

    - Recorded music sales have been shrinking rapidly over the past few years.
    - Concert revenue is up.
    - The number of people making music is up.
    - The number of people earning money from their musical careers is up.
    - Even the instrument sales business has been up.

    Thanks.

     

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  87.  
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    cram, May 29th, 2008 @ 10:06pm

    Hi Mike

    I know I'm being a nuisance, but please, I'd like to know if I'm reading you right here.

    In the global context, assume a band or musician is known to, say, 5,000 fans who actively seek out their music on tape/cd/whatever. Are you saying a label should give away the music for free on the Net, possibly reach 500,000 people, of which even if 1% like it enough to buy the CD, it represents a 100% jump in sales? (Assuming of course, the CD has enough extra value in it apart from the music itself, like fine design, extra tracks, liner notes, etc.) And that there's no need to worry about the 490,000 who listened but didn't buy. After all, not much was spent to reach out to them. Who knows, they may buy the next CD.

     

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  88.  
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    Mike (profile), May 29th, 2008 @ 10:25pm

    Re: Re: Re: Re: Re:

    In this bad analogy, you're comparing one mode of transportation with another (buggy and automobile). This doesn't correlate because we're not comparing, for example, cassettes with CDs ... we're talking about payment for ANY form of the recorded piece of music. This is just bad logic and does nothing to convince me. Whether it's a buggy or an automobile, you're still going to have to PAY for the transportation.

    No, it does make sense, because you're defining the market incorrectly. When doing an economic analysis, you always should define the market by the consumer benefit, not the *product*. So you're right in the first case, the market is for transportation. But in the second case, the market is for any kind of musical enjoyment. Thus, the fact that recorded music goes free isn't an issue if all the other aspects of the music business improve -- which they are.

    So the analogy is spot on.

    Second, you're suggesting that if a musician doesn't want to become a touring group and/or merchandising front (shirts, ad-placement, etc.), then too bad. That's a really insulting position to take toward musicians. I'm sure they don't appreciate the lack of respect you seem to have for their work.

    Actually, no, as I said if you read my full statement, there are plenty of models that don't require touring or merchandising.

    But, let me ask you this, if a horse & buggy maker didn't want to make automobiles, is it an insulting position to take to tell them that they're probably not going to be able to survive? Is that a lack of respect for their work?

    And, pray tell, how is it *possibly* a lack of respect for musical creations when we're explaining business models that give them the ability to make more money? I'm really confused as to how anyone would find that insulting.

    Your response to my second point lacked so much substance that it may as well have been as non-existent as your payment for digital copies of recorded music.

    Which part lacked substance? I've gone through this so many times at this point that perhaps I just figure that you should have seen the research already.

    What I don't get is why consumers are so selfish as to not be willing to pay a small amount for their digital copies--not to pay for the price of duplication (which is near zero), not to support major corporations, but to support the artists who create the music.

    You do realize that the "selfishness" that you describe is called free market capitalism, right? And it's not really selfish.

    You know what *is* selfish? If the market price for something is zero -- such that many more people can benefit from it, AND corresponding business models can help you make more money -- and YOU still insist on charging above market prices for stuff, while asking the gov't to prop up your business model artificially. That's selfish.

    I also don't understand why it's so objectionable to support laws that protect the artists' ability to gain financial support for their work.

    Again, you make a huge false assumption there that without copyright there's no financial support for their work. That's just false. And, what's objectionable is what I described above. Artificial manipulation of the market by the gov't to favor one particular party when the end result is actually less creative output and more societal cost.

    I agree that the current laws are out of alignment and greatly favor the corporation and not the artist, but I don't see why people are arguing for abolition instead of reform.

    It's just basic economics. I'm all for reform as a first step, but the more people understand the economics, the more they realize that things like copyright artificially *shrink* a market, and that's just bad for everyone.

    You can talk alternative revenue sources all you want, but it's good and common sense that what musicians primarily do is create music, usually in the form of songs.

    Indeed. Who said otherwise?

    They should be able to profit financially from that alone, or the whole thing is a farce.

    Yes, and buggy whip makers should be supported on that alone as well.

    Writers produce stories, scripts, poems. Artists produce paintings, sculpture, etc. If you enjoy their work, SUPPORT THEM IN A WAY THAT HELPS THEM CONTINUE THEIR ART--WITH MONEY.

    Again, I don't want to sound repetitive, but did you miss the part where this model helps them get MORE MONEY?

     

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  89.  
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    Mike (profile), May 29th, 2008 @ 10:35pm

    Re: Re: Re: Re: Re:

    Horse and buggy was a model made obsolete by the automobile in the transportation business. To apply your analogy to the music business, records were made obsolete by tape, which were phased out by CDs. But the revenue model of charging for recorded music remained the same, just as the model of charging people for commuting didn't change. I don't understand how you can continue to keep using the horse and buggy analogy, when it clearly doesn't fit.

    Hi cram, I explained this to Jason above, but to repeat. When judging the actual economic market, you judge the size of the overall market for the *benefit* that people are getting, not the product. Otherwise you'll have trouble properly defining the market and complain when one thing replaces the other.

    So the benefit in the music market is the overall enjoyment of music, and that includes a wide range of things beyond just the recorded music itself, but concerts, merchandise, access to the musician and many other things as well.

    So the analogy with horse and buggy/automobile -- > transportation does absolutely apply.

     

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  90.  
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    Mike (profile), May 29th, 2008 @ 10:40pm

    Re: Re: Re: Re: Re: Re:

    Doesn't it matter that there's a global audience that would pay good money for your CDs? Why would you want to give away that music for free, when they are willing to pay?

    If you can make more money giving away the music, why wouldn't you? That's why.

    As an extreme, what you're basically saying here is if Bob will pay you $80 for one widget (but no one else will), you're crazy not to charge $80 for that widget... even if by charging $50, you'll sell 10 widgets.

    Also, there's a greater chance of your making money from recorded music sales, because you're less likely/not likely to tour in many ofc these overseas locations. There are literally hundreds of bands and performers who have rarely or never toured many Asian countries, even though they are hugely popular there.

    Again, you're making the false assumption that touring is the only way to make money.

    But, even then, if by giving away the music you can build up a MUCH larger audience, then you can better afford to tour their if you so decide.

     

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  91.  
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    Mike (profile), May 29th, 2008 @ 10:44pm

    Re: Actual numbers

    So, can you help point me to were I can get hard numbers on:

    Most of the data is widely available -- some, unfortunately, I only have in proprietary format, though I'm working to change that.

    - Recorded music sales have been shrinking rapidly over the past few years.
    - Concert revenue is up.
    - The number of people making music is up.
    - The number of people earning money from their musical careers is up.
    - Even the instrument sales business has been up.


    I gave links to the first two in the original post above, but here they are, plus some more links that cover much of the rest of the data:

    http://online.wsj.com/article_email/SB117444575607043728-lMyQjAxMDE3NzI0MTQyNDE1Wj.html
    ht tp://www.forbes.com/2008/01/04/concert-revenues-2007-biz-media-cx_lh_0104bizconcert.html
    http://www .thelongtail.com/the_long_tail/2007/10/everything-in-t.html
    http://techliberation.com/2007/01/26/mu sic-industry-booming/

    If you do some searching online you can find some additional data as well. But hopefully this gets you started.

     

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  92.  
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    Mike (profile), May 29th, 2008 @ 10:49pm

    Re:

    In the global context, assume a band or musician is known to, say, 5,000 fans who actively seek out their music on tape/cd/whatever. Are you saying a label should give away the music for free on the Net, possibly reach 500,000 people, of which even if 1% like it enough to buy the CD, it represents a 100% jump in sales? (Assuming of course, the CD has enough extra value in it apart from the music itself, like fine design, extra tracks, liner notes, etc.) And that there's no need to worry about the 490,000 who listened but didn't buy. After all, not much was spent to reach out to them. Who knows, they may buy the next CD.

    That's the basics of the plan, though I'd maybe quibble with the numbers. Also, it's not just about CD sales, but about putting together that complete business model that gives people a real *reason* to buy beyond just getting the music. As you correctly note, it requires the CD to have more value, but you can also talk about things like subscription fan clubs with access to the musician. Plus, doing an international tour to support 5k fans is not reasonable. Doing an international tour to support 500,000 is.

     

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    cram, May 29th, 2008 @ 11:48pm

    Hi Mike

    That was an eye-opener. I can't believe it took me so long to get it. Thanks, mate. I think this model can also be employed to revive interest in older, lesser-known acts. I mean, companies are sitting on a whole lot of archived stuff.

    BTW, the 5K number was just to illustrate a point. About the touring part, I don't know -- so many bands have such a huge following in Asia, but they still don't consider playing gigs there.

     

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  94.  
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    cram, May 29th, 2008 @ 11:56pm

    "Otherwise you'll have trouble properly defining the market and complain when one thing replaces the other."

    I still don't agree with the buggy whip thing, though. Because automobiles replacing horse carriages is akin to CDs replacing tapes, not Metallica replacing the Beatles.

    There are dozens of new writers on the block every week, but Shakespeare is always in demand.

     

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  95.  
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    Jason, May 30th, 2008 @ 4:00am

    Re: Re: Re: Re: Re: Re:

    Your argument about the horse and buggy analogy is obstinately foolish and doesn't fit. Furthermore, "free" does not a market make.

    The product is the song(s), not the physical or digital conveyance of the song(s). What, in your analogy, is replacing the song(s)??? If you argued that the market was no longer around for three-to-six minutes songs, and people only wanted to listen to two-hour arias, then your analogy would fit. But nothing is replacing the song. What the musician is creating, and the market is consuming, are SONGS.

    So the analogy is spot off.

    CDs never cost $14 to physically produce. The price was never dependent solely on the cost of production. It was understood that part of the price was related to the perceived quality of the music contained on the shiny disk.

    Also, I'm not describing free market capitalism when I reference selfishness. Free market capitalism assumes there is an exchange of money for goods or services, and the price the market is willing to pay for those goods and services is determined primarily by scarcity and quality. In the denial of payment for digital copies of SONGS (where scarcity and quality still relate ... we're not talking about buying the "copy" ... see above), there is no exchange of money, no price. That's still called theft. What I'm describing is a refusal to participate in the market and a demand for goods/services without the expectation of payment. Hence: selfishness.

    An additional point is this: if some musicians want to give away some or all of their work for free, I think that's great. I'm happy to take it. But to demand that all musicians do so because you don't want to have to pay for it is, again, selfish. It also dictates that musicians (and all other creators) MUST relinquish control over their creations. How is that possibly helpful for the common good? It strips a major (and natural) incentive from creators: the right to control what happens to their creations.

    A business model based on free (aka most of "Web 2.0") is not solvent, and open-source "businesses" continue to prove this daily. Show me a successful one, and I'll show you one that generates money through means other than the "free" services/products. Musicians produce music (the point you agreed with above). They shouldn't have to find alternative funds just because people aren't willing to pay $.99 for a digital copy. They're not in the alternative funding business, they're in the music-making business.

     

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  96.  
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    Jason, May 30th, 2008 @ 4:06am

    Re: Re:

    Again, every alternative model I've seen proposed or argued, here and elsewhere, involves musicians being forced to be something other than musicians: PR agents, touring coordinators, merchandise marketers, etc. The music itself ceases to be the thing for which they receive payment. Ridiculous.

     

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  97.  
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    SomeGuy, May 30th, 2008 @ 6:42am

    Re: Re: Re: Re: Re: King of Handwaving

    Well, if you've ever had a really well squeezed glass of orange juice, you might think differently. Anyone can juice an orange, but it takes real talent to get it just so. Anyone can write a song or bang on drums, but you needa be good for people to care. That I agree with.

    And I definitely don't think we shouldn't reward talent. I love the arts. I still pay for music when I feel the band has earned my support, but that's kind of missingf the point. I'm not saying that you CAN'T charge for music, just that it's going to get harder with the way the market is going.

    The simple fact is that the main resource an artist has to monetize is their fan base. A band's music is their best form of advertising. The more people you expose yourself to, the more fans you get and the more money you can drive from that. Even if you're still selling tracks for 99c on iTunes, a smarter artist is going to find some other model and do better than you. Maybe he won't cut into your fan base, but he'll at least be driving more profit.

    And while it's true that not all music sounds the same (arguably), and everyone like more than one band... Let's say I like two bands. I budget my monet and have, say, $50 a month for music. If you both sell on iTunes, maybe I buy 25 songs from each of you. If your competitor (because that's what he is, as you both want my money) starts offering me more value (I can get his new music AND extra swag for no additional cost), maybe I start splitting my budget $15 for you and $35 to him. The less I listen to you, the less of a fan I am, the less you can count on getting money from me. By putting up barriers to your fans enjoying your art, you're just harming yourself.

    That's really all I'm saying.

     

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  98.  
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    Mike (profile), May 30th, 2008 @ 12:00pm

    Re: Re: Re: Re: Re: Re: Re:

    Your argument about the horse and buggy analogy is obstinately foolish and doesn't fit. Furthermore, "free" does not a market make.

    The product is the song(s), not the physical or digital conveyance of the song(s). What, in your analogy, is replacing the song(s)??? If you argued that the market was no longer around for three-to-six minutes songs, and people only wanted to listen to two-hour arias, then your analogy would fit. But nothing is replacing the song. What the musician is creating, and the market is consuming, are SONGS.


    Again, you are incorrectly defining the market based on the product (songs) rather than the benefit received by the consumer (musical enjoyment). That's why the analogy remains spot on. If you define the market by the *product* rather than the *benefit* you miss what happens when a totally different product satisfies that benefit. The market for the benefit tends to grow, even if the market for the product shrinks.

    So, the point is that the market for *music* can grow, even if the market for *selling songs* shrinks. And since the musicians can benefit from the market for music in so many ways, focusing on the market for songs will have them go the way of the horse & buggy makers.

    The analogy remains spot on.

    Also, I'm not describing free market capitalism when I reference selfishness. Free market capitalism assumes there is an exchange of money for goods or services, and the price the market is willing to pay for those goods and services is determined primarily by scarcity and quality. In the denial of payment for digital copies of SONGS (where scarcity and quality still relate ... we're not talking about buying the "copy" ... see above), there is no exchange of money, no price. That's still called theft. What I'm describing is a refusal to participate in the market and a demand for goods/services without the expectation of payment. Hence: selfishness.

    You have a warped understanding of economics. The price for goods and services is determined by the market -- the intersection of supply and demand. If supply is infinite, the price gets pushed to $0. Just because the price is pushed to $0 does not make things "theft" as you call it. There is no "theft" because no one is losing anything. Besides if bands are making MORE MONEY by giving away their music, how can you POSSIBLY claim that theft is involved?

    How is it POSSIBLY "selfish" for everyone to be better off?

    Your model, where everyone is worse off, seems a lot more selfish to me.

    An additional point is this: if some musicians want to give away some or all of their work for free, I think that's great. I'm happy to take it. But to demand that all musicians do so because you don't want to have to pay for it is, again, selfish.

    I have never demanded that all musicians do anything. You are confused again, reading into what I wrote what you THINK I said, rather than what I actually said. I simply said that economics makes it clear that the price *will* go to zero. I am not demanding it. The basic market forces are making it so.

    What's selfish is irresponsibly insisting you can ignore market forces.

    It also dictates that musicians (and all other creators) MUST relinquish control over their creations. How is that possibly helpful for the common good? It strips a major (and natural) incentive from creators: the right to control what happens to their creations.

    Again, there are many different incentives for creating content, and without copyright artists can make more money by embracing these models. So I don't see how that removes an incentive.

    Besides, the law is not intended to protect all incentives to protect someone's creation. Otherwise we'd still be driving horse and buggies. After all, didn't automobiles remove the incentive to build more horse and buggies. Why aren't you complaining about the gov't not helping them?

    Finally, you claim that copyright is a "natural" incentive?!? Even the father of our IP system, Thomas Jefferson admitted it was not natural.

    A business model based on free (aka most of "Web 2.0") is not solvent, and open-source "businesses" continue to prove this daily. Show me a successful one, and I'll show you one that generates money through means other than the "free" services/products

    Not solvent? Hmm. Tell that to Red Hat. Tell that to MySQL. Tell that to Google. Tell that to IBM. All of those companies make a tremendous amount of money based on open source software.

    And, yes, of course, they're making money by means other than "free" but that's the whole damn point. The model isn't just "give stuff away free." It's give the infinite goods away free in a way that makes the scarce goods more valuable -- and charge for those. So of course they're making money on other things. But it's the infinite goods that make the scarce goods so much more valuable.

    Musicians produce music (the point you agreed with above). They shouldn't have to find alternative funds just because people aren't willing to pay $.99 for a digital copy. They're not in the alternative funding business, they're in the music-making business.

    Yes, they're in the music making business, and the business models we describe are how they make money in the music making business. I'm not sure why you disagree with that.

    As for "They shouldn't have to find alternative funds just because people aren't willing to pay $.99 for a digital copy" how is that any different than saying the horse and buggy makers shouldn't have to build cars just because people aren't willing to buy horse and buggies any more.

    It's the same thing. Do you drive a car, Jason?

     

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    Mike (profile), May 30th, 2008 @ 12:03pm

    Re: Re: Re:

    Again, every alternative model I've seen proposed or argued, here and elsewhere, involves musicians being forced to be something other than musicians: PR agents, touring coordinators, merchandise marketers, etc. The music itself ceases to be the thing for which they receive payment. Ridiculous.

    No. Again, you seem to have misread stuff. The music is still what drives the payment. That's the whole point.

    As for those other roles, that's the part that labels and managers are for anyway.

    I always find this funny too, because in the old model, with selling CDs, how was it any different? You still needed PR and marketers -- in fact you needed them even more because there weren't the same low-cost channels for marketing.

    Jason, take a step back and actually read what we're writing. You're having a typically emotional reaction when someone first comes across these ideas. If you take the time to actually read what we say, hopefully you'll realize that we're merely explaining the market forces that are changing in the industry and how to take advantage of those. And that doesn't require copyright at all.

     

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    Don't Get It, May 31st, 2008 @ 10:28am

    Re: Re: Re: Re:

    How will PR and marketers continue to be paid in a market based on free distribution?

     

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    Mike (profile), May 31st, 2008 @ 3:39pm

    Re: Re: Re: Re: Re:

    How will PR and marketers continue to be paid in a market based on free distribution?

    The bands pay them. I thought that was rather obvious.

     

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    GetReal, Jun 2nd, 2008 @ 6:18am

    Re:

    Uh ... radio is not free ... it's paid for by advertisements. Advertisements are paid for with your time spent listening to mind-numbing rubbish and your money spent buying the rubbish they're selling. If you download the music, no advertisers will pay because you won't be listening to them.

     

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    GetReal, Jun 2nd, 2008 @ 6:24am

    Re:

    Over time ... ISP's will cave. They will assign everybody on their service a fixed number ... like a telephone number. Your activity will be tied to you. Illegal sharing of copyrighted materials will be easier to track. People will be more easily busted and the ship will right itself. It's not that I necessarily agree that it is the right path, I'm just looking at history. The phone, cable, etc. were all easy to rip off when they first came out. Greater and greater controls have evolved and shut it down. Remember days of old ... when it was easy to make a prank call? Used to be ... they'd have to have the FBI involved and wait 2 minutes to trace your call. Now, people know who is calling before they pick up the phone. Not to say it's impossible to make a prank call now, just harder. Same will become true of Internet browsing my friends. It may seem impossible today, but caller ID for the average home seemed impossible in 1985. Wait for it ... it is coming.

     

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    GetReal, Jun 2nd, 2008 @ 6:27am

    Re: hypocritical hypocrisy?

    Agreed. Just saying "That is simply untrue" does not make it simply untrue. You say things like "The numbers we've been looking at ..." What numbers? Produce them or, at least, CITE them! Pathetic.

     

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    oregonnerd, Jun 4th, 2008 @ 1:12pm

    death of profits via internet

    I think it's possible that Brad at bradsucks.com might disagree with 'em.
    --Glenn

     

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  106.  
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    Dave Avery, Jun 5th, 2008 @ 1:19am

    Partner with the Pirates!

    What they should do is develop a strategy to partner with the pirates. It looks like companies are coming out with licensing tech that promote relationships with pirates to promote viral marketing. Check out this story on the subject - http://www.eweek.com/c/a/Application-Development/Make-Software-Pirates-Your-Friends/

     

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  107.  
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    JHGFF, Feb 23rd, 2009 @ 2:05pm

    VERY BAD PERSON
    Michael "Mike" Masnick (born December 8[1], 1974) is the founder of Techdirt, a weblog that focuses on technology news and tech-related issues. Additionally, Masnick is founder and CEO of Floor64.[2] He is also known for coining the term "The Streisand Effect" on the Techdirt blog in January 2005.[3] The Streisand Effect was the subject of an interview on NPR's All Things Considered hosted by Robert Siegel.[4]
    The Streisand effect is a phenomenon on the Internet where an attempt to censor or remove a piece of information backfires, causing the information to be widely publicized. Examples of such attempts include censoring a photograph, a number, a file, or a website (for example via a cease-and-desist letter). Instead of being suppressed, the information quickly receives extensive publicity, often being widely mirrored across the Internet, or distributed on file-sharing networks.[1][2] Mike Masnick said he jokingly coined the term in January 2005 “to describe [this] increasingly common phenomenon”,[3] the name being taken from a 2003 incident in which the singer Barbra Streisand attempted to use legal process to preserve her privacy, only to see the matter become far more prominent as a result.
    Technology Guardian: How did Techdirt actually get its start?
    Mike Masnick: I was in business school on the east coast, far away from Silicon Valley, and in the 1996-97 timeframe there was a lot happening in Silicon Valley in the technology world. I thought it would be a fun project for myself to do an email newsletter to keep people informed. The catalysing moment was seeing Slashdot towards the end of 1997, and saying, this is the perfect [web] format for what I'm trying to do.

     

    reply to this | link to this | view in thread ]


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