Two Key Points: Copyright Isn't The Only Business Model; And When Done Wrong Makes Other Models More Difficult

from the keep-those-in-mind dept

We’ve already discussed how the House subcommittee on Intellectual Property is taking the exact wrong approach for its copyright hearings, trying to set this up as if it’s “copyright vs. technology.” Even worse, when you looked at who the actual hearings involved, the first hearing wasn’t about actual creators, but rather legacy means for funding content creators. And, not surprisingly, the argument they made was “more copyright, more enforcement and less fair use.” They built their business models around copyright, and they just want it to be stronger.

But that doesn’t mean that’s best for actual creators or for the public who are supposed to be the beneficiaries of copyright law.

Thus, the second hearing, which was supposed to be about the “technology” really showed a number of companies who demonstrated alternative business models that don’t rely on copyright and have found that many of those alternative means are not only quite profitable, but better overall. In many ways, the two hearings weren’t “creators vs. tech” at all — but rather “business models that rely on copyright and business models that either don’t rely on copyright, or which rely on fair use.” It’s worth watching the hearings, which you can see here:

As part of this, they demonstrated a key point: despite claims to the contrary, there are all sorts of ways to make money that don’t rely on copyright and, on top of that, excessive copyright or excessive copyright enforcement can actually create all sorts of problems. In fact, the focus on just using copyright as the only model can be counterproductive. As Nathan Seidle from Sparkfun pointed out:

Attempting to stop pirates is a waste of time. Show me an anti-piracy law or technology and I’ll show you a dozen 15 year-old girls and boys who can crack it. The resources spent stopping pirates comes at the expense of innovation and improving the business practices that actually serve the customers and industry. The most efficient way to get reimbursed for creative work is to make it easy to purchase and consume that content. How do you get the market to buy your product or service? Provide better support, better quality, better price, and better availability. If you show the consumer that you are a better company with which to do business, they will shop with you. This is not a new business model. This is how business has been done for thousands of years. There is no need to waste time, energy, money and resources suing infringers or pirates; our time is better spent innovating.

Unfortunately, some on the subcommittee (and some commentators) seemed to get the wrong message, thinking that the panel was arguing for no copyright. They were not. But they were making the key point that, contrary to what some believe, copyright is not the only way to make money, and setting policy based on the false belief that copyright is the only way may actually do more harm than good, by limiting many of those other means — other means that may be more effective, more available to more people, and more beneficial to the public. Worse, when copyright policy is focused solely on trying to protect the business models built to rely on copyright, then it can actually do tremendous harm to all those other models and opportunities.

For example, many legacy copyright middlemen have been pushing strongly to make third parties liable for stopping infringement. But, in many ways that would be disastrous for so many artists and so much of the public. That’s because increasing secondary liability — such as forcing companies that allow user generated content to police for infringement would mean that (a) many of those companies wouldn’t exist, as the liability would just be too high and (b) that those that do exist would offer much more limited services, making it that much more difficult for content creators to be able to create, distribute, promote and monetize their works today.

The message being sent wasn’t to do away with copyright — but to recognize that if the goal is to incentivize creativity such that the public benefits, you need to look at the whole market. That’s why it still seems like a much more beneficial effort would have been one that had the kinds of representatives seen on both panels plus content creators plus people who make use of these various platforms in a variety of ways. Then you get a fuller picture of the ecosystem — and understand why a narrow focus on merely “strengthening enforcement” or merely trying to “stop infringement” will often miss the bigger picture, and make things more difficult and less beneficial for both creators and the wider public.

Jonathan Band highlights this point in his discussion about the hearing:

Congress and the Executive branch also constantly call for more copyright education, which typically means teaching consumers about the penalties for infringement and artists about how to better enforce their rights. Indeed, at yesterday’s hearing, several members asked the Rackspace witness about how small rights-holders could better use the DMCA to remove infringing content stored on Rackspace servers. These members missed the point made by the Indiegogo and SparkFun witnesses that most individual creators may well be better off financially pursing open distribution models rather than the traditional copyright model. The government, at the urging of large media companies, has been educating artists about copyright enforcement, when it probably should have been encouraging them to explore alternative means of generating revenue.

This is really the key point we’ve been trying to make for years. This has never been about technology vs creators, as some would like it to be. Many of these services are providing tremendously powerful new opportunities to creators, if they choose to embrace them. The concern is that along with the freedoms that enable many of these platforms and services to exist, it is true that they can sometimes also be used for infringement. That’s only a serious problem if you rely too heavily on “copyright” as the only business model you use. Yet these speakers were showing that there are other ways to do things, and often those ways aren’t just better, but they’re less adversarial towards fans and the general public.

In other words, there is a way to make these things work in a manner that really does benefit creators and the public without cutting off the powerful communications channels that so many people have become accustomed to.

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Comments on “Two Key Points: Copyright Isn't The Only Business Model; And When Done Wrong Makes Other Models More Difficult”

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Arthur Moore (profile) says:

Re: Re: The web cares not about privacy.

Every time you visit a website your browser tells that website where you came from.

The trick is that embedded images and videos also count as visiting a new website. Companies use this to track people all the time. In this case, they’re blocking the video because the browser is saying that the last place we looked at was

It’s very common to make the browser either not tell the website at all, or lie to the website about where you are coming from. That’s what Refcontrol forge does.

It’s pretty obvious that the standards bodies that created the internet don’t care about privacy. Otherwise many of these things would happen by default without needing special extensions.

See also:

out_of_the_blue says:

Wrong from start: Copyright Isn't A Business Model

Not even a “way” to make money. Copyright is a right to control copies of intellectual property.

No one is forced to exercise copyright, but it IS a right (deriving from common law: I made it, therefore it’s mine).

You seem as usual to only be attacking the current regime of middlemen grifters and advocating NEW ones to take their place. But I’m not going to DIG for your point when your title has so much wrong.

Techdirt: the only forum where “give away and pray” is taken seriously.

Killer_Tofu (profile) says:

Re: Wrong from start: Copyright Isn't A Business Model

Techdirt: the only forum where “give away and pray” is taken seriously.

OotB, you have been here long enough to see the articles Mike has written where he expresses serious doubts about the Give away and Pray model.
Why spout such outright lies? They discredit anything else you are trying to say.

DannyB (profile) says:

Re: Wrong from start: Copyright Isn't A Business Model

No one is forced to exercise copyright

That is ignorant and uninformed — at best.

Under US and other countries’ laws, copyright is automatic. The best you can do to not participate is to put a public domain or Creative Commons license on it.

At least Creative Commons prevents someone else from trying to re-copyright a public domain work before death of the original author + 90 years.

As for ‘exercise copyright’ that can also mean to enforce it. Only a notice or Creative Commons license can reassure someone that they have actual legal rights for specific uses granted by the copyright owner.

If an author just puts a work out there with no notice or open license, then nobody can be sure that they won’t get sued later. But maybe your Prenda buddies could try that business model next.

cpt kangarooski says:

Re: Wrong from start: Copyright Isn't A Business Model

No one is forced to exercise copyright, but it IS a right (deriving from common law: I made it, therefore it’s mine).

No, that’s wrong, as you likely know full well. There is no copyright at common law on published works. This was settled in the late 18th century in England, and the early 19th century in the US.

Further, you’ve offered no support whatsoever for your Lockean claim that any rights vest in a person who makes an article of personal property for no reason other than that he made it. It’s all well and good to argue that, but it doesn’t seem to have happened that way in the real world.

S. T. Stone says:

Re: Wrong from start: Copyright Isn't A Business Model

Not even a “way” to make money.

Explain that to Prenda Law.

Copyright is a right to control copies of intellectual property.

Explain that to the various parties who have used the DMCA to censor legitimate speech just because they didn’t like it.

You seem as usual to only be attacking the current regime of middlemen grifters and advocating NEW ones to take their place.

The current regime doesn’t have ?middlemen?, it has ?gatekeepers?. Gatekeepers do everything possible to get in the way of a transaction and take as much money as possible; middlemen try to streamline the transaction process for all parties while taking only as much money as is necessary for them to continue operating.

But I’m not going to DIG for your point when your title has so much wrong.

Except it doesn’t. Plenty of those ?middlemen? you mentioned above see copyright as a business model, especially if those ?middlemen? are merely the estates of famous content creators and rely on the copyrights they control to bring in royalties and monies from copyright lawsuits (since the deceased content creator sure as hell ain?t makin? no new content any time soon).

And when companies and individuals alike abuse copyright to strike at (or shut down) legitimate content delivery services because of fears about how those services might innovate the process without the help of the ?current regime?, that makes it harder for content creators to use those new services to experiment with new business models and ways of delivering content.

Techdirt: the only forum where “give away and pray” is taken seriously.

Nobody around here takes ?give it away and pray? seriously. It counts as an example of an alternative business model, yes, but it also sits down at the bottom of the list of ?good alternative business models? (but not at the exact bottom; you?ll find ?The Prenda Law Plan? in that spot).

Greevar (profile) says:

Re: Wrong from start: Copyright Isn't A Business Model

No one is forced to exercise copyright, but it IS a right (deriving from common law: I made it, therefore it’s mine).

Copyright is automatic, so it is forced.

You didn’t “make” it, you copied it and rearranged it into something different. To be so arrogant to claim ownership over something made from the thousands of people over generations is just beyond words. Claiming to have the right to control something made up of expressions and ideas that are part of the collective culture of mankind, is the greatest theft of all. The only thing that is yours, and I do mean the only thing, is the time and labor you invested into creating new works.

Gwiz (profile) says:

Re: Wrong from start: Copyright Isn't A Business Model

… but it IS a right (deriving from common law: I made it, therefore it’s mine).

Repeating this over and over does not make it anymore true than the first time you said it.

You were proven wrong here, yet you keep yapping the same old debunked crap over and over again.

And then you have the audacity to claim the article title is somehow wrong. The only thing you have ever proven is that any idiot with a computer can put a comment on the internet.

Karl (profile) says:

Re: Wrong from start: Copyright Isn't A Business Model

Ladies and gentlemen, I think OOTB has finally done it.

He’s posted a comment where every single sentence is factually wrong. Not just twisting words, or massaging the facts – but unequivocally, absolutely, factually wrong.

It’s like he deliberately tried to pack in as many lies as possible using the fewest words.

At this point, I’m starting to suspect that he’s some sort of double agent for the anti-copyright side. Nobody could possibly be that ignorant.

Killer_Tofu (profile) says:

Copyright As Oppression

The legacy middlemen know that there are plenty of ways to make money without copyright. This is what scares them. The more ways there are, the harder it is for them to sit in the middle and collect money they didn’t work for.

So, what they do work for, is to oppress and hide as many artists and creators as possible by using copyright. They use it as a blunt tool to attempt to maintain control over the entire ecosystem.

With secondary liability, their lives will be made so much better. Who will large tech and internet companies have an easier time listening to, the large middlemen currently in place, or tons of individual content creators pointing out where their content is wrongfully blocked?

We have seen plenty of stories in the past here on TechDirt about artists who have been wrongfully blocked under the current system, be it on YouTube, on review sites (dajazi anyone?), or through other avenues they used to distribute THEIR content. This private distribution and direct to fan is their absolute Worst enemy. It cuts them out. They cannot collect money for doing minor paperwork anymore once the new systems flourish.

As such, copyright is all about one thing, control. They built up tons of money under this old system from back when it actually was more efficient. Now they will use that to try to maintain their seat of power.

Digger says:

Let's really fix the economy... Return Copyrights to original 14 yr terms, abolish *AA organizations...

Companies and associations that rely on copyright to make money are actually illegal organizations, as copyright isn’t about making money, it’s about putting things into the public domain, after a short period where the artists (not corporate overlords) get to be exclusive sources of the copyrighted materials.

Once that period expires, the works have to be remitted to the public domain. Disney is one of the major illegal entities holding works away from public domain for much longer than is legal.
They need to have all of their works, older than 14 years stripped from them, and put into public domain.

All illegal extensions of copyright, including the DMCA (DMCA is illegal because by means of encryption and no public esgro of encryption keys, extends copyright to infinity on encrypted works) need to be revoked.

All business models based on copyright extortion need to be abolished.

Let’s get the economy moving by removing overzealous copyright extensions, illegal encryption extensions and laws.

Next, let’s improve the artist’s lifestyles by requiring all contracts between artists and their recording and movie studios be open to public scrutiny – let’s see these deals that are supposed to make artists rich, but instead make greedy corporate thugs rich, while crushing the artists with fees, costs, charges, etc til they often times owe the studios more than they earned.

If we were to break apart, and disallow reforming of entities like the MPAA and the RIAA, artists lives would be much better.

I won’t bat an eye, or shed a tear for a single one of the leaches that won’t be able to suck in vast quantities of income off of the artist’s hard work anymore – in fact I will cheer as they wallow in poverty, all of their illegally gotten gains stripped from them.

ECA (profile) says:

fun isnt it

Copyright enforcement is another way to take money from the artists..
THINK about how much this costs, even spread out over many artists.
And the recording industry doesnt PICK that many people to play music for.

Copyright enforcement is as bad as SPAM.
Going to sites with XX 3rd party links, insted of direct to the site. they all want to put Bots on your system to monitor you, just like DRM does for music.
Many sites stay up with Adverts, and those 3rd party ones CAN BE DANGEROUS. I try to send them a note, and ask them to incorporate them INTO the site, and SCAN THEM..
The advertisers hate it, as they want to place a BOT that monitors if you have seen their adverts, but THATS also a vulnerability. and can backdoor your computer.

anonymouse says:

The Past and VHS and Beta

What I would like to know is how they ever managed to make video recoding legal in the first place, i mean if you look at what is happening now it is the same basic principal, people can use the technology to get what they want and the copyright industry is doing their damnedest to not allow that to happen, So how the hell did they ever get the law in place that allowed home taping from TV. This is something that i think needs to be talked about, Who was involved , what was said, who said it, and where are those champions of the people now . Are they involved in this whole mess that is copyright today, where 6 year olds are charged with a crime and their property is confiscated for them just wanting to access information and content and listen to a few songs they like.

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