Patry: It's Not Copyright That Creates Value, It's Consumers' Willingness To Buy

from the indeed dept

One of the great disappointments around here was William Patry's decision to (mostly) shut down his old blog about a year ago. His contributions to the discussions on copyright were incredibly valuable, and the loss of his voice in the debates left a huge void. In part, it's why I was thrilled to read his book (which, yes, is available as a part of our Book Club), as it reminded me again of Patry's insight on these subjects. I'll be posting a full review of his book next month, but I was going to say that it was certainly a must read for those who missed the blog... However, with the book almost available, even better news came about, as he recently launched a new blog related to the book.

On it, he's hosting a back-and-forth discussion with an entertainment industry lawyer who disagrees with him, Ben Sheffner, which goes into the same discussion we had last week concerning Sheffner's highly questionable claim that the jury rulings against Tenenbaum and Thomas somehow represent the views of everyday people on copyright. In that ongoing discussion, Patry does a nice job highlighting how the entertainment industry keeps trying to kill off innovation and protect its old business models via copyright while failing to do the one thing it should have done all along: build a real business with new business models that embrace the changing market:
I don't deny the RIAA was entitled to bring all the suits it did (aside from the many false accusations of course), but the business of companies that want to sell mass market goods to consumers is not suing those consumers. The business of the RIAA may be doing that because it has to justify its own existence, but the business of business is business, not litigation. One would never know that from the industry's reaction to virtually every new digital technology that has come along; for example, the suit against MP3.com over storage lockers, and the eventual bankrupting of that company was, in my opinion, a terrible mistake and certainly anti-consumer. (I represented the defendant for awhile). There was no evidence that Mp3.com's security -- which required verification that the consumer had bought a legitimate CD -- had ever been broken; instead, the industry wanted to force consumers to buy multiple CDs of a work they had already bought, rather than letting them listen to it regardless of where they were.

The industry's suit against Launchcast, brought deliberately while it was being bought by Yahoo, was a similar anti-consumer suit. (Yes, I represented defendant there for awhile) too. Launchcast was engaged in the authorized streaming of music, in conjunction with intelligent software designed to learn consumers' test and that helped introduced consumers to new music. The service could never result in loss of sales; quite the opposite. The functionalities the industry objected to had nothing to do with violation of any rights remotely granted by the copyright act. There are many more examples in addition to MP3.com and Launchcast.

The industry's failure to offer any alternative after Napster isn't just a small oversight; in my view, when coupled with the industry's repeated suits against almost any business it had not authorized (read controlled), and the decision to send out massive cease and desist letters and suits against individuals, that failure is directly responsible for the highly negative attitude many people have toward the industry. The failure of the industry to provide a way for people to access legitimate product led consumers both to unauthorized product and to rightly conclude that copyright was the primary weapon being used to thwart consumers' desires. I really don't think these assertions should be controversial. I repeat that copyright doesn't create economic value, a statement that is not intended to disparage copyright; it is merely to state the obvious: it is only consumers' willingness to buy something that creates economic value.
Indeed. Read the whole thing and be sure to subscribe to the blog...


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    chris (profile), Aug 13th, 2009 @ 12:30pm

    i thought patry shut down over music industry knuckleheads

    i thought patry, a fairly pro copyright guy, shut down his blog because he was sick of the music industry types hijacking the conversation.

    his farewell post made it sound like the absurdity of the content industry made his own posts sound like he was anti-copyright.

    has he gone over to the copyright reform dark side?

     

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    Hephaestus (profile), Aug 13th, 2009 @ 12:38pm

    "Sheffner's highly questionable claim that the jury rulings against Tenenbaum and Thomas somehow represent the views of everyday people on copyright."

    Wasn't everyone that had used P2P software not allowed on the jury. How is that represent the views of everyday people?

     

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  •  
    identicon
    Mom, Aug 13th, 2009 @ 1:00pm

    Call me

    Michael,

    It's your Mother. I still can't get the tweet thing to work so I'll leave a message here. Your Father is going to be out of the country for a few weeks, and I need to speak with you before he leaves.

    Can you please give me a call so we can discuss a few things?

    Love,

    Mom

     

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    William Patry, Aug 13th, 2009 @ 1:11pm

    what it means to be pro-IP

    Thanks for the post Mike. To the Chris who commented, I don't know what you mean by being fairly pro-IP. I did a post on what it means to me, here: http://williampatry.blogspot.com/2007/12/what-does-it-mean-to-be-pro-ip.html

     

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    Anonymous Coward, Aug 13th, 2009 @ 1:13pm

    The story sort of sounds like the tail trying to wag the dog.

     

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    Anonymous Coward, Aug 13th, 2009 @ 1:28pm

    "The industry's failure to offer any alternative after Napster isn't just a small oversight; "

    *cough* Itunes *cough*

     

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      Dark Helmet (profile), Aug 13th, 2009 @ 1:32pm

      Re:

      The music industry offered iTunes? Could have sworn that was Apple...

       

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        Anonymous Coward, Aug 13th, 2009 @ 1:40pm

        Re: Re:

        "the industry" could have papered them over too, and didn't. Hmmm. Maybe they saw something (like a functional business model)?

         

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          Enrico Suarve, Aug 14th, 2009 @ 2:02am

          Re: Re: Re:

          Or maybe they saw that they could work with Apple to continue pricefixing ($1 per song with virtually NO distribution costs?), DRM and generally keep the quality so low that CD sales would continue

          If iTunes is the best the inductry can come up with in terms of online sales it really isn't trying very hard

           

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      Anonymous Coward (profile), Aug 14th, 2009 @ 6:09am

      Re:

      Napster started in 1999, was caught in legal troubles in 2000, and shut its doors in mid-2001.

      iTunes was introduced as Mac-only in 2001 and wasn't available for PCs until late 2003. That's 4 years after Napster hit, and 2 years after Napster closed it's doors. What's more, iTunes for Windows only supports syncing with the iPod which limits it's usability for people who don't want to pay premium for Apple-brand products.

      Additionally, music bought from the iTunes store before 2009 was DRM-protected and couldn't be played on non-iPod devices.

      So... yeah. iTunes was late, limited, and weak. The Industry worked with Apple, for reasons I still don't understand, and THAT'S why it dominates the way it does these days -- the industry killed all it's competition for them.

       

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    Fogbugzd, Aug 13th, 2009 @ 1:39pm

    *cough* Itunes *cough*

    >>*cough* Itunes *cough*

    The recording industry was dragged kicking and screaming into the ITunes deal, and statements by a lot of recording industry execs suggest that they still would like to see iTunes go away and leave them alone, despite the fact that they are making a ton of money off of it. The would still rather sell $15 physical CD's rather than $1 downloaded tracks.

     

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      DJ (profile), Aug 13th, 2009 @ 2:15pm

      Re: *cough* Itunes *cough*

      And therein lies the myopia of the music industry.
      Short term: $15 for a CD might average about $150 that day, and about $55K per year, but ONLY if 10 CDs sell EVERY SINGLE DAY for that year.
      Long term: $1.30 for a song download may not amount to the same daily average, but more people would be willing to spend a little bit many times over, and thus will end up with more profit. (I refuse to attempt the theoretical math on that part)

       

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    Anonymous Coward, Aug 13th, 2009 @ 1:53pm

    Messrs. Patry and Sheffner are not at all as divergent in their views as your above comments imply. You extend courtesy to Mr. Patry, but consistently decline to do so to Mr. Sheffner. The two gentlemen are in fact having a thoughtful and respectful conversation. It would be appreciated if you did the same.

     

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      DJ (profile), Aug 13th, 2009 @ 2:19pm

      Re:

      Ann Coulter principle:
      "Whatever a liberal is accusing you of doing, is what they, themselves, are guilty of"
      (her's not mine)

      But this, political views aside, apparently applies to this site as well. the comment to which I'm replying is case-in-point.

       

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        Anonymous Coward, Aug 13th, 2009 @ 4:57pm

        Re: Re:

        Ann Coulter and principles in the same sentence? Please! There are a couple of ways to describe her total ignorance, most of them start with "stun" and have another four letter word after that which is NSFW.

        What I don't get is this:

        "Patry: It's Not Copyright That Creates Value, It's Consumers' Willingness To Buy"

        Mike,you slap us over the head all the time that what people pay and value are entirely unrelated, yet you let this (by your standards) misleading headline go?

        Can't consumers still value music and not pay for it? The consumer's willingness to consumer creates that value, not their willingness to pay.

        Econ101 for your titles? (I know, you didn't write the title, but you sure avoided critiquing it too!)

         

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          Anonymous Coward, Aug 14th, 2009 @ 6:17am

          Re: Re: Re:

          Word-smithing, but it's arguable that "the consumer's willingness to buy" doesn't necessarily mean that the consumer will or ought to pay. It's a bad title, I'll agree, but consumer's desire (demand) isn't the only thing that drives price.

          Yours is a better term, "the consumer's willingness to consume."

           

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      Mike Masnick (profile), Aug 13th, 2009 @ 2:40pm

      Re:

      Messrs. Patry and Sheffner are not at all as divergent in their views as your above comments imply.

      We apparently have been reading different sites. Even Patry and Sheffner have both admitted they disagree with each on many important points.

      You extend courtesy to Mr. Patry, but consistently decline to do so to Mr. Sheffner.

      I'm curious about this statement. Mr. Sheffner has, on a repeated bases, personally attacked me and this site with baseless, misleading attacks that were either blatantly false or misleading. When I called him on it, he told me that I was to be banned from posting comments on his site.

      But at no point have I ever personally insulted Mr. Sheffner. I have pointed out where his ideas are faulty. I do not see where I have ever disrespected him at all. Unfortunately, I cannot say the same is true of Mr. Sheffner.

      You can see every post where I have mentioned Sheffner here: http://www.techdirt.com/search.php?site=&cx=partner-pub-4050006937094082%3Acx0qff-dnm1&cof=F ORID%3A9&ie=ISO-8859-1&q=sheffner

      I just read through them all, and I'm at a near total loss to see where it is that I have somehow been discourteous to him.

       

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        Dark Helmet (profile), Aug 13th, 2009 @ 2:58pm

        Re: Re:

        "You can see every post where I have mentioned Sheffner here: http://www.techdirt.com/search.php?site=&cx=partner-pub-4050006937094082%3Acx0qff-dnm1&cof=F ORID%3A9&ie=ISO-8859-1&q=sheffner"

        Sigh, Mike, you seem to keep wanting to apply facts and accountability to some of the repeated detractors on this site. Please stop, it doesn't work.

        Which is not to say dissenting opinions aren't appreciated; they are, particularly by me, so long as they are based on sense and the commentor has accountability. Sadly, emotional arguments seem to be the modus operandi of the misinformation agents...

         

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        Anonymous Coward, Aug 13th, 2009 @ 5:00pm

        Re: Re:

        An alternate site search term would be:

        http://copyrightsandcampaigns.blogspot.com/

        Your 1/30/09 response, for example, does seem a bit over the top in describing your view of the commenter, especially since the commenter sought merely to accurately state/clarify a particular aspect of the DMCA.

         

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          JJ, Aug 13th, 2009 @ 5:44pm

          Re: Re: Re:

          Gee, Mike proves an anonymous commenter wrong (and makes him look silly - no wonder he's anon) and the best the AC can come back with is "do a search on some other site" but refuses to actually provide any evidence?

          Sorry, AC, you got pwned by Mike here. Looking over the links, it seems Mike's been quite fair to Sheffner. But I did a site search on that link, and it looks like Sheffner has been nothing but obnoxious and insulting to Mike.

          Game score:
          Mike: 1
          AC: 0
          Sheffner: 0bnoxious

          Lemme guess... your last name is Sheffner?

           

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