Ramblings

by Mike Masnick


Filed Under:
copyright



It's Time To Wean Ourselves Off An Unhealthy Addiction To Copyright

from the distorting-the-market dept

Last week we wrote about the totally ridiculous situation where a photographer had a silly fun video taken down because she got upset that a photograph of hers was used briefly without credit or license. As we pointed out at the time, this was an abuse of the DMCA to take down a creative work. It was almost definitely fair use, as it's difficult to see how it would hurt the commercial value of the image. Others who have a lot more experience in copyright law seem to agree. The group behind the video, Richter Scales, has put up a new version of the video, without the offending photograph, and are now crediting all of the content used in the video. You can see the new video here.
The debate over whether or not Lane Hartwell is in the right or wrong took off over the weekend and reached ridiculous levels on both sides of the aisle. Hartwell is now demanding payment for the use of her photo, which is only going to make things worse. She was upset the photo was in the video, and now she's upset that it's not in the new video. She's in the wrong here for a variety of reasons. She misused the DMCA and now she's demanding payment over what was fair use of her work. On top of that, she's probably convinced an awful lot of folks never to hire her -- but that's a separate issue.

The real issue here, however, is that this is a perfect example of how our addiction to copyright does more harm than good. Hartwell and her supporters insist that she has to do this because this is "how she makes a living." That's the same claim the RIAA makes as well. And it's totally bogus. For example, if I opened up a restaurant selling pizzas for $10/pizza, that would be how I make my living. Now, let's assume that someone else sees how successful my pizza place is and decides to "copy" it and open his own pizza place down the street -- selling identical pizzas for $7. Suddenly, I go out of business because "how I make my living" is no longer sustainable. The problem is that people assume that because they've made their living one way -- they should always be able to do so. When it comes to copyright, they're relying on the crutch that copyright provides. It allows them to put in place a simple business model that provides a living -- even if it's not the best business model either for the content creator or consumers.

In the pizza example, if I were a smart business person, I would learn to adjust my business model. I'd look for more efficient suppliers, so I could lower the cost of my pizza to match the competitor. Or I'd look to differentiate myself from the new competitor. I'd make the restaurant a nicer place to visit. I'd add more options to the menu. Maybe I'd install a big screen TV, if that's what people wanted. Basically -- I'd continue to adapt my business model, making everyone benefit. My restaurant would get better or I'd go out of business. Consumers would have more choice and more options that were better than before. It's a total win-win.

Yet, when it comes to copyright -- the crutch that copyright provides in that easy business model means that people don't need to think about how to adapt and how to innovate. They just scream "piracy" and complain that they've been cheated and demand that the world change to meet their needs and their business model. And copyright law often allows this to happen. It slows down innovation and hurts the ability to create win-win situations. Instead, we get lose-lose. Lane Hartwell is pissed off and sending invoices that will never get paid. The world was unable to watch this amusing video for a period of time. That's the opposite of everyone becoming better off and it's all because of our addiction to copyright which blinds people to the idea that there are better business models out there.

Now, some will cry about fairness and getting credit for the work that you do -- but that's a red herring. It's a moral argument against an economic argument. That doesn't mean that morals don't matter... but the point is that if the economics shows that everyone can be better off, the moral argument fades away. Most of these moral arguments are for preserving a world where everyone is worse off -- and that hardly seems like a good moral argument.

Others will say that I have no right to speak on this subject, because it wasn't my content that was appropriated. Again, that's ridiculous. Techdirt's content gets appropriated all the time. Sometimes blatantly in the form of spam blogs -- but as we've explained, there's no reason to worry about such things -- as they can only benefit you long term if you pay attention. However, my work has also been "appropriated" by more legitimate sources as well. There are two specific examples of this happening recently -- one involving a well known site and another involving a well known person -- both using content from this site unattributed to further their own projects. In both cases, there is no question that the content came from here (both admit to it privately, though the circumstances behind each are quite different). In both cases, while it was personally disappointing that these individuals chose not to credit myself or Techdirt, they only drove me to figure out better ways to present the content myself. Even better, if more people become aware of the ideas we talk about here from other sources, the more likely they'll be to stop by and visit this site at a later date. It's not about who was "first," but about getting more folks to recognize how these things are important -- and then using that to my advantage as well. In the short term, it may have hurt my ability to "capitalize" on these ideas -- but in the long term, it will only open up new opportunities. Yes, I would have liked to received credit -- but why waste time on something like that, when I can put my efforts into doing more interesting things?

What's exciting is that these ideas are catching on and finding an audience. Now that it's happening, I can focus more on other topics and important things like growing the business side of Techdirt and taking those ideas even further. If someone else is doing a better job presenting ideas that I've been talking about, then it's time for me to focus on something else that I can do even better -- and that's what I've been working on. And, all along, Techdirt's popularity has continued to grow. So, even if people are first exposed to these ideas from other sources, eventually some of them will find their way here and join in the conversation as well. They'll add their own ideas, and something even better will come of it. Sure, not everyone who sees or reads an idea that was discussed here will find out about Techdirt, but who cares? Those who care and those who matter will eventually figure it out if they haven't already.

So, can we please stop using copyright as a crutch and demanding "credit" for everything? There's no big scorecard in the sky. My content is built on the backs of all those who have taught and educated me -- and I'm sure I don't give nearly enough credit to everyone who has provided the ideas that are the core of what I do. I "appropriate" their teachings every day of my life -- and if others appropriate mine (even if that's "how I earn my living"), it just gives me more reasons to continue to adapt and change and use that to my advantage. It forces me to work on business models where I can take advantage of a wider distribution of this content, rather than worry about locking it down and demanding credit. If you make your living by relying on that crutch, then start dealing with the reality that it's not a good way to make a living -- and there are many better ways that can help everyone be better off. Despite Hartwell's claims, she doesn't really make her living from copyright. She gets paid upfront to take pictures, and she does so because she's good at it. That's a straight business transaction that has nothing to do with copyright. She easily could have leveraged the use of the photo in the video as free advertising for her services -- and done so in a way that made everyone happy, not pissed off (in fact, most of the other's whose content was used in the video have responded in that manner). Sure, not everyone would have known it was her photo, but you can't worry about everyone. The important people figure this stuff out.

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  1. identicon
    ChurchHatesTucker, 20 Dec 2007 @ 8:12pm

    Re: Giving credit is part of fair use

    "Basically, according to U.S. Law (and I'm not talking about the DMCA, either), if there's no credit, it's not fair use."

    Um, no. Fair use is fair use. If you make a parody song, for example, you don't have to credit the original. I believe it's assumed that the intended audience, at least, gets the reference.

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