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L. Neil Smith's THE LIBERTARIAN ENTERPRISE Number 189, September 9, 2002 9/11 "RELIEF" ISSUE!
Practical Property: Intellectual Property in the Real World
Exclusive to TLE Every now and then I give a little thought to something besides the current US slide into the total police state. I contemplate things like how society might work once the authoritarian thugs are off our backs. Like, say.. How we'd handle copyrights and patents; intellectual property. I'm a writer, which pretty well guarantees that the apparently continuous debates about copyright law will get my attention from time to time. While trying to follow the news, I've found that only two sides to the argument ever seem to get any press. On the one hand, you have the stereotypical "artist's" position that copyrights should be absolute, eternal, enforced by every government thug in the world, and even the possibility of copyright infringement should be punishable by death. Being stout defenders of private property, libertarians tend to get grouped in here. Atrocities like the DMCA do upset them, though. And on the other manipulative member, we have the "information wants to be free" types who think it's perfectly fine to break into any system, physically or electronically, to steal any data they want to use. Well... There are also the so-called educators who don't believe that they need to respect copyrights at all. They're best dealt with at gunpoint. But I'll settle for binding arbitration and restitution. Each faction misses the mark. But I have a few ideas of my own on the subject. PHILOSOPHICAL/MORAL POSITIONS What some might call the "GNU view" holds that:
I could be nice and suggest that this is an idyllic, Utopian concept. But it isn't; it's straight-forward communism, as once exemplified by the bankrupt USSR, ugly, inefficient, and deadly. People brighter than I have spent plenty of ink debunking this weird notion. To keep the Randian intellectual snobs happy, I'll even take notice that Ayn demonstrated this with the factory scenario in ATLAS SHRUGGED. The factory workers lost all incentive to produce because their rewards were not commensurate with the effort required. It was far less strenuous to simply insist that someone else produce on demand for them. The producers, not properly compensated, stopped producing. So, next time you feel the urge to pirate a piece of music, software, or a novel, you might wonder if you're reducing the odds of ever seeing a sequel. Contrariwise, the totalitarian libertarian property view holds that:
So far as that goes, I can almost agree with them. But they miss an important fact; intellectual property is not the same thing as a physical property. If you own an acre of land, it's yours. You possess it. You can use it; plant a garden, launch bottle rockets, rent it out. But Joe Blow down the street cannot stick your acre of truck garden into a disk drive, copy it, and proceed to harvest your veggies while you continue to pick the same carrots. If the "intellectual property" is the information, you are not being deprived of the use of your property just because some guy in Argentina is also playing your copyrighted game of "Pong XXXVII, Y2K Edition". And yet, what one creates, one does own. Right? I think so. But now we've moved into a strange realm where exclusive possession is not inherent in exclusive ownership. When you ask what an author or programmer really wants from his work, we discover a different commodity: potential property. Now here's a neat concept. POTENTIAL PROPERTY In this case, the potential property is the profit to be made by selling an information product. Since I happen to be marketing such a thing, I'll use my novel, NET ASSETS, as an example. I wrote NET ASSETS. I put a lot of time and effort into it. Money, too. People value my skills and work enough that they've been buying it from me. But in a sense, what they are buying is a copy of a manuscript itself copied and uploaded to my server. No matter how many people buy the book, I still have my original master copy. If someone cracks the password and reads NET ASSETS without paying me, I'm not deprived of my novel, I've only lost the possible profit from a potential sale - five American dollars per copy, which is where things get iffy again. How do you go about quantifying potential sales? Shall I issue a declaration that one tenth of one percent of all Internet users would have bought my novel, and demand the money? I could use a couple of million bucks... But shaking down five hundred thousand strangers is going to be a dicey proposition. I'd better get that level three ballistic vest. Back to reality. Whether someone is willing to read my book depends on several factors including price. If someone can get it at no charge, he might be interested in reading it. Possibly he thinks it worth no more than two dollars. At five dollars, he may say, "Ho hum," and move on to something cheaper. Basically, anyone stealing an individual copy might not have ever been a potential customer. Such a conundrum: The book is my property, yet theft may not even damage me directly. But if he cared enough to crack the protection ...? LET'S GET PRACTICAL In the real world, "users" are not a single homogenous group, a guaranteed sale simply because they have access to my novel. They are going pick and choose based upon price, assuming all other qualities being equal. If Victor Koman runs a sale on KINGS OF THE HIGH FRONTIER, I may "lose" some sales. Perhaps I'd regain some buyers if I countered with my own discount sale. But the folks disinclined to pay for what they will read are probably going to try pirating both Vic and I. If something is free, or perceived as free, they are more likely to use it. That perception is important, and dictates the future of copyright custom and arbitration. MY VIEW Anything that can be rendered in a form readable by a human, or useable by machine, can be copied. That's a basic fact of life. Live with it. Another fact is that the "property" any creator is really interested in protecting is the earnings derived from the information created. For some people, the "earnings" may be non-monetary; recognition may work for some. This is why I allow some of my own articles to be re- used noncommercial use at no charge. (But if someone thinks my stuff is good enough for them to make money with, I want a cut.) Conversely, if satisfactory compensation isn't forthcoming, why should a creative person go to the trouble of producing material for an unappreciative audience? What so many free-info freaks miss is that, unlike an inanimate well, artists can choose to stop producing. In fact, if so few copies of a work are bought that the creator can't pay his bills, he'll have to find other work. Keeping food on the table is a powerful incentive to give up providing free reads to pirates. In the future real world, regardless of your purist feelings either way, a balance is going to be struck. And not by government. Regulatory limitations of access to copyrighted material doesn't work. We saw this with punch paper rolls for player pianos. It was even an issue with moveable type and printed score sheets. If there's a way to copy something, even at reduced quality, it will be copied. Price and availability will determine whether a desired work is pirated or sold. GUIDELINES FOR FUTURE ARBITRATORS
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