The Other Future Of Copyright: The Draconian Suffocating One

from the well,-that's-unpleasant dept

The fourth piece in the Cato Institute’s Future of Copyright series is a bit bizarre. Written by Tom Bell, who we’ve mentioned before for his efforts to get people to start calling “intellectual property” “intellectual privilege”, it attempts to take a look at the “other” future of copyright. It’s sort of the opposite scenario to Rasmus Fleischer’s opening piece imagining a world without copyright. Bell’s piece tries to get into the mindset of a Hollywood exec, explaining why it seems to make sense to make copyright more and more draconian in an effort to make the “costs” of infringement go up by attacking infringers with everything they’ve got. Of course, this isn’t surprising, and even Bell sort of makes the half-hearted case for it, as he admits at the end. If anything, Bell comes to the conclusion that because we haven’t already seen even more draconian copyright laws put in place, it may mean that even Big Content execs recognize the differences between copyright and real property. Still, I’m kind of surprised to find out that Cato couldn’t at least get a Big Copyright exec to put up their opinion for this particular piece.

Filed Under: cato, copyright, tom bell

Is That The Best Cato Can Do In Defense Of Copyright?

from the yikes dept

We’ve been covering the Cato Institute’s online debate over the future of copyright, which began with a detailed explanation of how copyright has been stretched so far that it has broken, followed by a partial defense of modified copyright law where copyright would only be applied to commercial use. While I disagreed with the second piece, both were well written and thought provoking. You knew one of the pieces in the series had to be a defense of copyright, and that role seems to have fallen to Doug Lichtman, law professor at UCLA, and I’m rather disappointed. There are eloquent and interesting defenses of copyright out there — but this is not one. Lichtman basically attacks the first piece as being wishful thinking, claiming that it would be wrong to “put copyright in the corner” but can’t come up with a good reason why.

Instead, Lichtman basically complains that he personally can’t come up with good business models that would come around in the absence of copyright. The thing is, no one’s asking him to do so — they’re saying that the market can and will come up with those business models, as it inevitably does. So, his weak attempts to pick apart the business models suggested in the first piece in the series fall flat and are easily responded to. For example, Lichtman claims that since Rasmus Fleischer skipped over movie industry business models, it means there really aren’t any — other than mockingly suggesting something silly: selling action figures from movies, and notes that no one would buy action figures for “A Beautiful Mind.”

But just because Lichtman can only think of a bad business model for the movie industry, it doesn’t mean that there aren’t business models that don’t rely on copyright. For example, while he just assumes that you can’t sell movie tickets anymore — that’s not true at all. We’ve listed out plenty of ideas on ways to make the movie-going experience worth paying for — and we’re sure, given a world without copyright, many others would quickly pop up, as the history of free markets tends to show.

Lichtman really should have been able to come up with a better response than “but… but… but… I can’t think of any way to make money without copyright.” It says a lot more about Lichtman than it does about copyright.

Lichtman then claims that Rasmus Fleischer’s piece suffers from a flaw that the models he describes work for some content, but not for others. But that’s missing the point. Fleischer’s point is that a variety of business models do pop up — and, even better, new business models pop up to support content not currently being created. When Lichtman brushes off Fleisher by saying: “Fleischer is not merely interested in allowing alternative models like free peer-to-peer distribution to compete with traditional approaches; he wants to take away the traditional options and leave intact only his favorite alternatives,” he again is missing the point. Fleischer is not saying leave only his favorites intact. He’s saying get rid of the artificial system set up by government to support one favorite model — and then let any model show up.

In the end, Lichtman’s defense of copyright comes across as similar to defenses of protectionist anti-trade policies: claiming that taking away the protectionist barriers will hurt an existing business model — while ignoring all of the new business models and more free and open markets that result. History has shown time and time again, that removing such artificial protectionist barriers ends up being better for the overall market — including both producers and consumers. I would think the burden should be on Lichtman to explain why this time is different. Unfortunately, he does not shed any light in that direction.

Filed Under: cato, copyright, doug lichtman, future