What If Copyright Only Applied To Commercial Use?

from the a-step-forward dept

Earlier this week, we wrote about the Cato Institute's new series on the Future of Copyright, with a wonderful first post about just how broken copyright has become, written by Rasmus Fleischer. Our own Timothy Lee has now penned the second piece in the series, wondering if a middle ground would be to just focus copyright laws on commercial use, and allow people to make use of copyrighted content for personal use. As he notes, throughout most of history, copyright laws really only did apply to commercial use, in part because personal use wasn't even an issue.

Lee notes the inevitable trend towards having the music industry embrace things like file sharing in one way or another, suggesting that having copyright laws just forbid commercial exploitation wouldn't hurt the industry at all -- since most of the business models they're finally embracing route around the personal copying issue -- and would stop criminalizing people who are going to get access to content anyway. As per usual with Lee's writing, it's a great, well-reasoned, thought-provoking write up. Go read the whole thing.

However, while I agree that limiting copyright just to commercial use would be a step in the right direction, I'm still not convinced that the restrictions are necessary even for commercial use. Part of the problem is that the distinction between "personal use" and "commercial use" is extremely blurry. Is my personal blog "personal" or "commercial" if I put Google ads on it? What if I don't have ads, but use it to get a job or promote my company? Commercial use and personal use are not clear cut.

On top of that, if someone else is able to do something commercially valuable with my content, why should that be a problem? If anything, that should be encouraged -- and the end result will often be that it makes the original content more valuable. Google uses fair use defenses to protect itself from copyright infringement charges, but it's ridiculous to think that anyone is even complaining, since Google makes their content easier to find. And Google is most certainly a commercial entity. Having someone else do something commercial with content is a good way to help increase the value of that content, which is likely to flow back to the original creator anyway. Yes, some of the benefit will flow to the commercial entity, and some of the benefit may flow to others -- but these are positive externalities, as plenty of benefit will flow back to the original creator as well. Once you realize that these commercial uses are likely to expand the overall market, you want to get any obstacles out of the way, even if some others might benefit as well. Sticking an artificial construct like copyright in the middle just doesn't seem necessary, and actually makes the process less efficient. Imagine if Google needed to get permission from everyone before indexing their sites?

Lee suggests that without copyright law on commercial use, you would have a free rider problem, but that's not necessarily true. Companies that pick up business models that turn the free rider problem into a benefit won't have much of an issue. Issues about "counterfeiting" can be taken care of by anti-fraud laws, rather than copyright, and there will still be plenty of value in "authentic" versions of content and other forms of scarce goods connected to the content creator (access, live performance, new content creation, etc.). So, I agree that legalizing personal use is a sensible step, but I'm still not convinced that copyright even makes sense for commercial reasons.
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Filed Under: commercial use, copyright, personal use

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  1. identicon
    John Wilson, 13 Jun 2008 @ 11:14am

    Re: Thanks Blaise

    "I think someone should be allowed to do something commercially valuable with content without having to compensate the creators because everyone would be better off for it -- creators included -- because of the freedom and positive externalities and overall benefit to society of being able to make use of creative works. The free software community is a microcosmic example of this working in practice."

    I disagree. Are you saying all software should be free? That there should be no proprietary software?

    He didn't say that if what you're trying to say is that software ought to be free as in "here's a case of beer for free".

    The free software movement is about usage freedom by the user to do what they wish with it, change it, modify it, fork it and so on. As long as they give their changes back and keep the license intact.

    In that way Free/Libre and Open Source software is both a philosophical and business model difference with proprietary software.

    Nor does it prevent the writer(s) of FLOSS software from making money on it though mostly in services to support it.

    (Come to think of it a hell of an incentive to release high quality software so that all your time supporting what you wrote isn't filled with fixing bug releases so that you actually lose money on the support end.)

    Proprietary software support is considered, at best, a loss leader and, at worst, a money sink. Why do you think it's so bad?

    What is the incentive to try another business model when the current one works fine?

    I'm wondering how much longer as the big difference between a book, till now, has been ease of use. You can dog ear the pages, make margin comments, highlight passages you find useful, flip back and forth with ease and so on.

    I'm amazed at, in the past couple of years, how rapidly PDF is coming towards that kind of ease of use. Particularly Acrobat.

    I don't have a problem with abundance; what I'm asking is how it will benefit an author if copyright goes. I see more harm than gain.

    The way I see it, which Mike and Blaise can agree with or not is that with the way copyright is used today and how it is seen to be used by the public at large is that it's rapidly losing support and being seen as a disincentive to the other half of your equation...the purchaser and user.

    If a legal construct becomes a barrier and is seen as disreputable then the consumer end of the bargain set by it in the first place falls apart.

    You can, more than anything, thank the RIAA and MPAA for that.

    Though legislators who have done some incredibly stupid things with what was once a limited monopoly have also done their fair share of damage.

    Escalating copyright violation from a civil law dispute into a criminal infraction has made the situation far, far worse.

    If the public (consumers of the content) no longer respect copyright and refuse to abide by it because it is no longer the bargain with the legal system and creators that it once was it eventually will die.

    Either because it can't be enforced or because the courts will finally get tired of it all landing in their laps and start to look back at what it was supposed to mean originally and strike down the laws that extended it so far beyond that that it's unrecognizable.

    Creators do need to be paid for what they create in line with the value set in the market for their creation. Not just because they create and can slap a copyright bug on whatever they please.

    I would say that expensive first editions will continue to be published in the traditional way, art and photograph collection books (the infamous coffee table book) will continue to appear and be purchased.

    The harm should copyright go forever will be transitory as people move from the existing business model to something more in tune with reality.

    Copyright will continue, in some form or another though it won't be DCMA type copyright nor the various Hollywood copyright extentions unto the 7th generation that the likes of Sonny Bono left us with.

    Perhaps more in line with what was actually intended by the framers of the US Constitution and those who first brought it in in England a century or so before that.



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