…and since they host no files themselves, but merely provide an ability to search for torrents of all kinds, what liability would that be, exactly? Despite their name, they are not, in fact, pirates…

“If people want something, they will buy it if they can afford it. If they cannot afford it, they do without.”

So currently, if someone wants it but can?t afford it, they can download it illegally for free. The result is that the consumer has the product but the creator gets no money from a sale.

In your fantasy non-pirating world, if someone wants it but can?t afford it, they do without. Now the result is that the consumer has nothing and the creator still gets no money from a sale.

So given that the creator gets no money directly from either of these scenarios, which do you think is the most beneficial to the creator? A smart creator would prefer their content is out their being experienced, because that?s always to their benefit.

Of course the logical middle ground is to set the price where more consumers can afford it, then everybody wins.

For $199, you can get a Microsoft Technet subscription that gives you nearly all their desktop and many of their server products. Although it’s a “subscription,” you keep the licenses after you cancel. There are about 40 or so distinctive products in that package, including effectively every version of Windows back to 3.1.

If you value each product equivalently, Windows does cost about $5.

Why do they have to host the files themselves to be guilty for piracy? Limewire and Kazaa didn’t host files either. And the Swedish courts have already agreed the Pirate Bay is not legal.

But no one is stopping them from operating legally and focusing on the 1% they have permission for instead.

If the “copyright is working as designed”, how are people “stealing” it?

You may hear it all the time, but the fact that you cited to a student newspaper certainly doesn’t change the fact that this is a poorly informed opinion to base your article upon.

PS – why does nearly ever post from Mike start with “Heh” “Uh” or “Um”? The condescending, childish responses continue to abound here I see.

Luckily, I never asserted that copyright protection = making money.

If you’re going to criticize logical arguments, you might not do so without relying on a straw man.

I am baffled by the number of people making this argument: people created good work without copyright, therefore copyright is not an incentive.

Now, maybe you’re not going quite so far in your post, but whether good works have been created in the millennia without copyright is not really relevant to whether copyright works as an incentive.

You’re right that an increase in production correllating with copyright protection is not definitive evidence of a causal relationship, but it is some evidence of a relationship, and it’s downright bizarre to claim that there is an inverse relationship (as Masnick appears to) without at least some evidence backing that up.

Avatar, most pirated movie of 2010

Avatar, $1 billion dollars of revenue

Copyright had nothing to do with its success as you seem to believe.

Things don’t need to be published in order to be protectable or protected by copyright, so I fail to see this distinction between “copyright works” and “production in general.”

I have no idea what you are trying to say with the “cat, bag, out” business. If I frame an assertion as “despite the increased copyright protection and enforcement worldwide over the last couple decades, the amount of production of creative works has increased a gagillionfold in that time” it’s essentially the same argument as the filesharing argument you post, but is not treated the same here.

I’m not sure what “the same arguments” you’re talking about are. I was talking about applying one standard of proof to arguments supporting conclusions you agree with, and another to arguments supporting conclusions you disagree with.

If you can show where I’ve done that, I’ll be embarassed.

I am an IP lawyer. My motivation for criticizing weak arguments is to expose their flaws. You may note that I’ve criticized some “pro-copyright” arguments in this very thread, because they are weak.

I’d like to know how I am acting in the most obnoxious way possible. Am I being more obnoxious than someone who discounts someone’s arguments because of who they are, rather than the merit of their argument?

Don’t forget, 1 & 2 are the same so he really only has one argument where he’s trying to FUD something fierce by saying “because we’ve had copyright for 200 years, it’s all increased our profitability”

Never mind that Youtube has a TON of derivative work…

Never mind the fan games…

Never mind the facts about the “automatic” copyright of a man made right to “control” works distributed by one person.

Never mind the facts about how publishers abuse copyright for their own benefit.

Never mind the arguments about how normal people are silenced from rich copyright holders who want to control the market for their own purposes.

No, copyright wins because it’s been around for 200 years.

BTW, when was Leonardo da Vinci alive?

Link?

Also, what is “it” in your sentence?

It is a fallacy to the extent that people seem to think that if they refute this ridiculous assertion, they have refuted the justification for copyright laws.

Of course, the people making the “copyright is necessary to have any creation” assertion are just as wrong as the people saying “because copyright is not necessary it is not an incentive.”

“First, you need a source for the 99%.”

I don’t understand what you’re getting at. I am not claiming that 99% of works are not incentivized by copyright. That is something Masnick claimed, or at least used as a premise for his argument. This is what he wrote: “I think it can easily be argued that over 99% of the content created today is done for reasons that have nothing to do with copyright… If 99% of works created are not due to copyright incentives, by the very argument of the copyright maximalists, copyright should be deemed worthless.”

The point I have been making is that this is a pretty outlandish claim to make without support.

Wait…are you responding to me? I don’t see how the rest of your post is relevant to anything else I posted. Maybe that was an accidental response or something.

Well, I at least agree that you’re considering the right questions, although I probably disagree as to the results.

Can anyone give an example of a creator who DIDN’T create because of Copyright? I’m not looking for someone who didn’t distribute, but instead an example of a person who decided *not to create* because of copyright?

And if they would forego their art because they had no hope of distribution, is that person really an ‘artiste’?

Hell, for ALL the Youtube video that are removed for being infringing, you *have* to admit that those works were still created.

I make willfully infringent music every day, sometimes I make it BECAUSE it’s infringent and I like the idea of being an outlaw. I like sampling Disney just because I know it’s not cool with them. I’m not absolutely sure I would find Turntablism as exciting if it wasn’t flouting the law. Maybe I would, I can’t say. But whatever, that’s just me.

All I’m saying is that I can’t think of one artist who lets copyright, legalities, distribution, contracts, etc get in the way of CREATING anything.

It seems that people around here are of the opinion that if something doesn’t get distributed, then it was never created. That’s ludicrous, and needlessly dismissive, especially in light of the number of people who claim to champion independent artists (TRULY independent, that is). As people like to say over and over: Artists create because it is its own reward. Distribution, putting it out there, trying to make a buck, is a TOTALLY different field than artistic endeavor.

I create something new every single day, and usually I’m the only person that will ever know about it. Does that make the art meaningless? Does that mean my craft is unfulfilling for me? Of course not.

If they cannot afford it, but can get a copy for free, is there any harm?

A good place to start. If as a gaming business, you think that your competition is only other gaming companies, the harm is only the potential market shrinking by 1 consumer. But if you consider that the money that would have been spent on a game is instead spent on something else that would compete with gaming time (say, I dunno, another hobby), then not only are you losing a potential consumer, but you are also feeding your wider competition. The harm comes when the consumer can have your product for free, and pays someone else for something that makes your product less important to them.

though I do not recall a bump in music sales- link, please?

http://www.techdirt.com/articles/20100521/0343109522.shtml

Words of god himself.

Oh, so all those years that CD sales kept going up and up, they should have been going down?

Actually, I don’t remember CD prices ever going up. If anything, I have seen them come down. Funny, Radiohead is now selling their WAV files of the new album for a price that is very similar to a CD price ($14 for 8 songs), and that is without any of the overhead of a label deal or all those nasty middlemen. Can you please give me examples of CD prices increasing in the last 10 years (beyond the levels of inflation, of course).

If you have proof of a non-industry study on these supposed losses, I will cede you this point.

It’s pretty hard, because even government reports are often based on studies from one side or the other, like:

http://www.cipe.org/publications/ert/e29/E29_07.pdf

It is mostly a question of piracy. If you can forecast a 10% increase in sales because of reduced piracy, and you can perhaps lower the amount of time and money spent on securing the product, it is reasonable to assume that product prices would be lower. You don’t think that the millions a company like Sony spends on legal action doesn’t translate into higher product prices? I will admit, they may be fueling their own demise, but I suspect they see the steep cliff on the piracy side more clearly than they see the steep cliff on the overpricing side.

You want people to experience *less* art because they need to save money for food? That’s an interesting stance.

Not at all. I am accepting though of the idea that Paris Hilton has probably seen more art than I have (and has made a little of her own, nice video girl!). I am understanding that someone much poorer than I who cannot afford a TV might experience less. We each live our lives within the means we have. If you are suggesting that there should be some sort of video game social assistance or top hollywood movie stamp program, that wouldn’t go over very well. I actually think that this sort of decision process would re-spawn the rental market. I actually think that netflix (and game sharing companies with monthly subscriptions) are an excellent choice both for industry and consumers. But many people don’t have to look at that choice, because they are just taking stuff for free.

It isn’t “game or food” as a nasty choice, just a reflection of the reality that many people are in. You can replace “game” with “movie” or “beer” or “drugs” or “car” or “hooker”, or any other non-essential thing they may desire.

You want people to experience *less* art because they need to save money for food? That’s an interesting stance.

When it’s a small percentage of people doing it, the harm (whatever it may be) is lost in the mix, in the shuffle. But when it becomes a large part of the market, the effects are rather staggering, see the recorded music industry. People love music, they want the latest for the pod / player / mp3 thing, but they no longer worry about buying it, because they know how to get it for free. The music industry has been gutted, even while turning out a product that people value highly and seek out aggressively. It would be different if people were not consuming what the record labels put out, but one look at your typical music trading site finds almost exclusively label content being traded.

It hurts the middle men, of course. It hurts those who would choose to invest in new music (because they risk getting no return), and it hurts the artists (who can no longer be only recording or studio artists, but must give up part of their life to perform live to be able to hopefully record more one day). It hurts the consumer, because bands are spending more time touring (where only a few people get to see them), while taking years between albums, because they cannot afford to stop touring long enough to record. It hurts the product, which is often slapped together by computer jockeys instead of the artists themselves, who are often relegated to a “special guest star” status on their own albums.

The harm, the hurt, it is very hard to stick a tape up next to and measure. But the changes are there, and they are not to really anyone’s best interesting. Short term, the “fan” gets a ton more music as they fill in their back catalog, but after a while, they get fewer and fewer new songs, and things stagnate.

It’s the old “feast today, starve tomorrow” problem. Nobody at the feast thinks too hard about tomorrow.

So wait Mike, are you saying that copyright doesn’t hurt actual creativity?

I made no argument related to that at all. Not sure how you could read that into what I wrote.

It’s sort of clear: If copyright is such a blockage of creativity, wouldn’t the production of content be dropping? With all your hand ringing over this lawsuit and that lawsuit, you make it sound like we have come to the point of having no creativity left, that everything is just replication, and that all these lawsuits are somehow stopping everything.

Yet, here we are, “ By some reports, every two days, we now create more content than was created from the beginning of time until 1993.“.

If copyright was all powerful and all harmful and all blocking, none of that would happen.

It would be a much saner conclusion that “during the time of strongest copyright, we have more content than ever.”?

n fact, I believe this is the topic where we discussed this in the past. I have never claimed that patents stopped innovation, but the evidence suggests it severely hinders the *pace* of innovation. Once again, learn the difference between absolute numbers and rates of change. It will help you look less foolish.

Good to see you down to insults already. That didn’t take long. Perhaps you can flog yourself in the same manner you flogged RD last weekend. Way to set the tone for your site.

The problem you will always face is that the pace of innovation is increasing as well. The “hindrance” you mention never seems to play out in the real world, except in very, very narrow situations. Progress is faster than ever. If we are being hindered in any way, it doesn’t seem to be hurting us.

“You’re arguing that if we believe that file sharing has not been significantly hindered then we must also believe that copyright must be responsible for the majority of created works in that they’re the same basic logic”

Whoah, that’s not what I’m arguing at all.

I’m arguing that if you accept that increased rates of file sharing shows that RIAA suits don’t hinder file sharing, you should accept that increased production of creative works shows that copyright protection does not hinder production creative works.

I don’t think either increase is definitive evidence for either conclusion.

“- however, the latter has a significantly bigger step, in that you must believe it be responsible for, not merely a lack of hindrance to.”

My previous argument regarding a double standard had nothing to do with whether copyright is responsible for creative works.

In the first sentance…

“Give this a read Jay.”

With copyright amount created = X
Without copyright amount that WOULD/COULD have been created = Y

90% of X.
X

Sorry – but by law you cannot.

So sad.

Fallacious.

Under current law 100% of content is copyright.

It is automatic… and even you seem to have a problem with that.

that’s the same question.

Ok, that’s a very long post, and hard to respond to comprehensively.

First, assuming that there is only one motivator for creation of creative works and “copyright is not the motivator” I think is not based in reality. Saying that most “works” are not professionaly done (a) may or may not be true, and (b) doesn’t mean that copyright provides no incentive for such work. The kid in his garage might not be thinking about copyright, but he wouldn’t be an aspiring rock star without it (because “rock stars” wouldn’t exist, or at least wouldn’t exist the way they do now or for the last several decades).

I don’t dispute that copyright, in addition to being an incentive to creativity, is also a hindrance. However, I do believe it has a net incentive effect (which could probably be optimalized from what it is now by reducing restrictions on use of preexisting works).

“The two arguments are that more copyright enforcement may lead to:
1) Less file-sharing, and
2) Less content creation.”

That’s not really my argument.

My argument is that the increase in file-sharing was in the past conclusorily treated as conlusive proof that RIAA suits don’t hinder file-sharing. I argued then (against a tide of Techdirt commenters) that a more nuanced view is necessary to evaluate whether that’s true.

Now, increase in creative production isn’t treated as conclusive proof that copyright doesn’t hinder creative production. NOW everyone seems to accept that a nuanced analysis is needed to evaluate whether that’s true. I don’t disagree, I just wish people were willing to accept this even when it counters their pre-conceived notions.

You seem to do the same thing. You there’s not data showing a chilling effect from RIAA suits, so apparently assume there is none. Yet, where is your data for the chilling effect of copyright law? I agree that it happens in certain contexts, but that’s not data.

“the industry is notorious for presenting some of the most one-sided and deluded reports, blatantly devoid of all forms of reasoning, specially crafted for duping fickle-minded individuals into jacking up enforcement. If you think a blog owner like Mike is more guilty of gaming the system for personal gain and misrepresenting evidence, then turn to/on your masters.”

What does the existence of other falsehoods and weak arguments have anything to do with the falsehoods and weak arguments on this board? Saying “Jimmy’s a worse liar” is not a defense. Who do you presume my “masters” are? I suspect you’d might be surprised if you saw my list of clients.

Speaking of presumptuousness, on what basis do you presume to know that my “motivation is nothing other than self-preservation and greed.”

Because you disagree with me? Because you can’t imagine someone would hold an opinion different than yours based on rational thought? Please enlighten me.

I see you have no response regarding how I’m supposedly being “obnoxious.” I think your own words show who is acting in a more objectionable manner.

“That’s great news, because it means copyright isn’t stifling creativity. Not in any possible meaningful way.”

It doesn’t mean that at all.

I disagree with his premise, but the premise that copyright didn’t motivate in any way the creation of 99% of works, that doesn’t foreclose the possibility that it hindered the creation of 5 times as many works that would have been created but for copyright.

“Sorry – but by law you cannot.”

Of course he can (in the U.S. anyway). It’s called “abandonement” and you just need to make an unequivocal public statement that you abandon your copyright (there might be some other requirement, but I think that’s it).

Actually, you got it backwards. The cons of copyright (the overwhelming stifling of creativity and new content) are all gone, so there is no more issue. Mike has cleared it up, in 99% of the case, copyright isn’t an issue one way or the other. He has been bitching and moaning for years for 1%.

No wonder he hates patents, because the failure rate on patents is probably lower than that!

“They” said the same thing last year. I hope we get to prove ya wrong this one to 😉

The “they” in this case aren’t record label types, they are concert promoters and others who have been getting a windfall. See, Mike didn’t address what happened in 2010, as major tours were cancelled, shorted, moved to smaller rooms, and even festival tours that would sell big loads of tickets in the past were playing for free, just to get people in the door. With average ticket prices tripling in less than 10 years, it is surprising anyone shows up anymore.

Fear of loss != lost value

First off, it isn’t a “fear of loss”, it is reality. You just have to go back to the music business: They make the product everyone wants, and yet sales are dropping fast. Why? People have learned to pirate. Yes, they still value the product, but not enough to pay for it. All that value and $3 gets you a good cup of coffee, but it isn’t a functional business model. There is nothing complicated about it, and cheap only competes where costs allow (and they certainly don’t on your standard console style game).

You asked specifically for someone that didn’t create because copyright was an incentive.

I picked Leonardo for quite a few reasons:

First, his works helped to create not only tanks, but helicopters and planes as well.

Second, his work was “reverse engineered”. Once someone had his drawings and figured out his sketches, they took those ideas and made them work a LOT better.

What I WAS saying is that there are ways to protect that don’t involve the courtrooms. ‘Vinci solved that with his “encryption” that stopped people for quite a number of years after his death.

“How do you go about identifying and differentiating such works and what they rely on for financial success?”

Cultural success equates to how they remain relevant. The more savvy bands and artists differentiate themselves in a number of ways. When it comes to financial success, look at all of the bands that are out there working in various places to continue what they like or love. Think about all of the various artists that tour together and “piggyback” off one another for success.

In every way you can imagine, copyright doesn’t do anything to “protect” artists. It acts more as an afterthought when the creation is already done.

“Copyright maintains millions of jobs in companies who solely exist to sell digital content.”

Copyright sure as hell doesn’t do that. There’s a business model run by a corporation that believes control of IP (read: Imaginary Property) through certain channels will maintain an above average profit margin.

What some people do is share a digital file online, that hurts those jobs and does it for free.

This act of torrenting, downloading, etc, endangers the business model hemmed up on 1980s mentality.

There is still a model of selling DVDs, TShirts, and merchandise based around certain movies and songs.

But there is also a movement for people to see and consume a show at their convenience. If your business is propped up on only using a few channels, you may want to rethink your strategy. It simply fails when people do more to distribute products on their own.

Right. Most of the great movies, TV shows, books, etc. these days are created BECAUSE of copyright. Yet Techdirt gives practically no acknowledgment of this fact. It instead focuses on a few outliers, pretending like what’s good for a few is necessarily good for all.

The music industry is getting the “You Reap What You Sow” thing.

They sued everyone, threatened and basically treated folks badly do you really think they will buy anything from those people if they find and alternative?

The game industry saw fantastic numbers these year despite piracy, the MPAA just release their numbers again at it was a wonderful year again despite rampant piracy.

The thing is nobody is buying CD’s anymore like nobody is buying vynil anymore it is an old technology that is fading away rapidly and the industry didn’t find a new format to monetize it, nobody is going to go back to a proprietary one. That industry actually failed to come up with a product and the market filed that void and no longer needs them.

Vivaelamor:

with a claim that box office revenue mean nothing

I mad no such claim. I simply encouraged Jay to understand what $1billion in box office revenues really means (a figure he cited, not me).

Your own quote makes my point clear: Avatar brought in $2.7 billion and yet Fox’s TOTAL profits for the year were $497 million for ALL of Twentieth Century Fox. There is a major disconnect there. Only stating the box office total is misleading.

Further, as the Slate article makes clear, the margins are generally much smaller for movies that aren’t the top grossing movie of all time, and that the studios depend on home-entertainment for over 80% of their revenue. Those aren’t my figures, they come directly from the studios themselves.

So, yes, copyright does have something to do with the success of movies, including Avatar (which goes to Jay’s point). When 80% of revenues comes from non-theater based sources, it is not difficult to see how piracy can quickly cut into the meat of the studios profits.

You hit it exactly. Mike is making the (unproven) assumption that copyright is massively holding back creativity, by putting out a report that shows that creativity is at an all time high. The statement in and of itself is contradictory, and the only facts actually in play here are that creativity is at an all time high, no spite required.

Essentially, Mike has shown one of his major pillars, one of his major points, the underlying concepts of Techdirt to be wrong, disproved by the very data he tries to use to prove it.

We have copyright, more copyright than ever – and more content is produced. In a normal world, it would be a pretty good conclusion that copyright is working within reason, protecting those who choose to be protected while not stopping those who do not.

It’s a miracle day, Mike finally admitted what has been in front of his nose for years.

“You asked specifically for someone that didn’t create because copyright was an incentive. “

No I didn’t. Is there some sort of reply bug on Techdirt? I’m getting some weird replies. Maybe I’m being mistaken for another AC.

I agree that thriving production is an indication that copyright is not very stifling overall. However, there are reasons why production might thrive despite actual stifling from copyright law.

Basically, the rate of production is one bit of evidence, but not conclusive either way, and certainly not conclusive that copyright is optimal in its current form.

while ignoring the fact that he was right in his conclusion

Where is the support that Jay is right in his conclusion that copyright had nothing to do with the success of Avatar? Do you have any proof? For instance, do you have evidence that Twentieth Century Fox would have invested hundreds of millions of dollars into the film if it were not guaranteed copyright protection on the back end? Even considering the fact that 80% of revenue comes from non-theater sources?

How is that a bad thing?

It’s not. It simply shows that box office revenue does not equal studio profit, not even a little. Which is why throwing around billion-dollar figures is misleading.

I can see how it would be misleading if it turned out that the film didn’t make a profit, but it did and a big one at that.

What is misleading is saying that Avatar made $1billion (which it didn’t according to your cite), and that therefore copyright has nothing to do with the success of the movie. The analysis is much more nuanced than that, especially when you consider how much the studios really make after expenses and how much of their ultimate profit comes from home-entertainment sales.

None of what you’ve said backs up the argument that copyright has anything to do with the success of movies

I think it does. If you consider the fact that, on average, 80% of studio revenues come from home-entertainment sales, it is clear that the studios rely on the sale of something that can be (and is) pirated. Without copyright, 80% of the studios revenue is put at risk. That is huge. This information is, at the very least, an important consideration when determining whether the studio would have put the money up at all or whether they would have invested the same amount, if they knew that copyright would not protect what amounts to 80% of their profit. The analysis is certainly not as easy as $1b = copyright is worthless!”

But on a more fundamental level, are you truly satisfied with Jay’s analysis so much that you are willing to defend him? He basically said… Avatar made $1billion therefore copyright had nothing to do with it’s success. You are really defending that grossly unfounded position?

That has nothing to do with what the previous AC said, does it?

He didn’t say copyright isn’t strong enough. He didn’t say copyright was “ineffective.” Why bring up the most ridiculous arguments some other person somewhere might have made in an attempt to counter the totally different arguments made by the person you’re actually conversing with?

Again, you’re talking about claims other people are making, not the AC.

You can’t just lump all people who aren’t in favor of abolishing copyright together and assume they all get together in their secret meetings and agree on everything, therefore if one of them says something ridiculous it undermines everything any one of them says on the topic.

I guess Mike couldn’t take a couple minutes to explain himself to us lowly readers and fans. I sure would have liked for him to explain his position. It’s a shame. This thread is really interesting.

but hey, we’re the ones who have to deal with ‘copyright infringement is theft’ all the time

Is that a reason to support a poor argument? Your comment highlights why it is difficult to have productive conversations on this blog: we’re right even when we’re wrong, and it’s someone else’s fault.

His statement is backed up by the evidence, even if not proven.

No, his statements are not backed up by the evidence. He cites two data sets that in no way support his conclusion. Why is it so hard for you to admit that?

If you want to make a case that Avatar is failing in those markets then go ahead. Strangely, you didn’t make that distinction at all in your original reply to Joe.

I’m not making the argument that Avatar is failing in those markets, which is why I never did. I wanted to provide data, however, to counter the billion-dollar figures as I have described above. I’m sorry if you don’t appreciate the value of relevant information when forming opinions.