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“Jefferson, I think we’re lost . . .”

One of the oldest talking points of anti-copyright activists is that Jefferson expressed skepticism about protecting creative works. This idea comes from an 1813 letter to Isaac McPherson, in which Thomas Jefferson himself expresses what some believe is a suspicion of copyright. The money quote, repeated ad nauseum in books like Lewis Hyde’s Common As Air, is this: “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

As Hyde sees reads this quote, the implication is clear: Sharing a creative work does not lessen the value of the original. From this, some intelligent people conclude, Thingz shud be free on teh Interwebz. The law professor David Post recently wrote a piece tracing a clear line from Jefferson’s letter to the limits on online copyright enforcement to the events of the Arab Spring. Essentially, he suggested, Jefferson + Twitter = freedom!

Maybe not. More serious academics like Evgeny Morozov have shown that the Internet played roughly the same role in toppling Arab governments that blue jeans did in the fall of the USSR: It’s an effective symbol, as way as a powerful way to communicate, but the truth is far more complicated. It’s also unclear what commercial-scale piracy on Megaupload has to do with any of this, but we’ll save that for another day.

Like many arguments made by anti-copyright academics, Post’s is not only illogical but based on shoddy scholarship. In a recent post, Copyhype blogger Terry Hart showed that Post either misrepresented or misunderstood Jefferson’s letter completely. Most important: Jefferson was talking about patents rather than copyrights. Also, the language in question doesn’t apply to copyright, since those laws covers expressions rather than ideas by definition. Bruce Springsteen has no claim to the idea of writing songs about New Jersey – just the particular songs that he wrote and recorded. For a law professor, these are significant mistakes.

Post’s response is pretty poor. (I admit that I’m biased since Terry is a friend, but it really is – see for yourself.) He argues that Jefferson’s comments are important to the debate on copyright “because he’s Jefferson,” “because he was smarter than you, or I, or anyone else currently commenting on intellectual property matters,” and “because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property.” The first two are obviously true, but just because what Jefferson says is important doesn’t make it relevant – he was talking about another subject entirely! (Famously, Jefferson also owned slaves, so the importance of what he says doesn’t make it a good basis for a legal system.) The third is completely untrue, and Terry provides several examples that prove it.

The details of the debate over Jefferson’s letter and its place in American law are best left to historians and lawyers. As a journalist, I would ask this: How could a law professor like Post make such obvious mistakes? As I show in Free Ride, this is par for the course. William Patry is a respected copyright scholar, and his book is full of embarrassing errors – the kind of stuff anyone could easily check. And the king of bloopers is Lawrence Lessig, a law professor who can’t be bothered to get his facts right. (There are many examples of Patry’s and Lessig’s mistakes in my book.) Lessig suggested that efforts to cut online copyright infringement were “rendering a generation criminal” – when the piracy he was talking about was a matter of civil law. For the average person, this is a completely understandable misstatement. But for a Harvard law professor?

(Important clarification added: Lessig points out that this behavior was illegal under the 1997 No Electronic Theft Act, which made it criminal. But the “generation” he was talking about was never charged under this; those who uploaded works to file-sharing services faced liability, not criminal charges. If you look at the specific piece I took his quote from, it only talks about RIAA lawsuits.)

By now you’re probably wondering why I – a mere journalist – think I’m as smart as these respected legal academics. I don’t. And that’s precisely the point: They seem too smart to make these kinds of mistakes. So I wonder why they keep saying things that aren’t true.

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Discussion

26 thoughts on ““Jefferson, I think we’re lost . . .”

  1. Although I generally agree with the content of your post, I found the link to techdirt under the banner “Thingz shud be free on teh Interwebz” misleading to say the least. I know you and techdirt generally don’t agree on things, but techdirt has never claimed everything should be free (on the internet). Their views on the matter are more from an economic point of view (http://www.techdirt.com/articles/20070503/012939.shtml) rather than a strict copyright perspective.

    I especially found the following points enlightening:
    —————————————-
    This whole series is from the other perspective — from that of the content creator and hopefully explaining why they should encourage people to get their content for free. That’s because of two important, but simple points:
    1. If done correctly, you can increase your market-size greatly.
    2. If you don’t, someone else will do it correctly, and your existing business model will be in serious trouble
    —————————————-
    Combined with the statement:
    —————————————-
    The first thing to understand is that we’re never suggesting people just give away content and then hope and pray that some secondary market will grant them money. Giving stuff away for free needs to be part of a complete business model that recognizes the economic realities.
    —————————————-

    Now, this techdirt article also links to the words of Jefferson, but not directly related to copyright or patent law. In stead it links it to the economics of non-scarce products, and how their production cost of practically 0 can be used to promote the market share in scarce products.

    In an interview with “Future of Copyright”, you stated: “For instance, the band Radiohead gave away their album for free, but in that way they made it harder for other bands to charge their fans for their music and make a living.” That statement in itself is perhaps true, but it also shows that point 2 mentioned above is true: You’re fighting to get a share of the market, and if you don’t do it right, someone else will. If it’s a sound business decision, a businessman will take it, no matter how that impacts the marketing position of its competitors. Radiohead didn’t make it harder for other bands to make a living; they made it harder to do so using the current business model. You have to admit that if your business model depends on others not giving their own works away for free you’ve got a pretty big problem.

    I think this is also seen in today’s market, where technology giants like Apple, Microsoft, Amazon, and Google are tired of being dragged along on the strings of copyright lobbyists, and in stead opt to simply offer their own services directly to artists. Now I won’t comment on whether it’s a good idea to go into business with these companies (for starters: I’m not qualified to do so), but truth of the matter is that they’re being quite successful in building their own business without having to ask permission to innovate from the entertainment industry. The more pressure the entertainment industry will put on them, the bigger the chance that they either start their own entertainment business or simply buy the industry out. The profits of the technology sector far outweigh that of the content sector after all.

    Posted by Pieter Hulshoff | October 20, 2011, 3:03 pm
    • Here, let me fix that for you…

      “If you don’t, someone else will do it UNJUSTLY, and your existing business model will be in serious trouble”

      TechDirt is a den of lunacy. The Kool-Aid there is neck-deep and tide is always in. Every time Masnick says he’s not a piracy-apologist I’m instantly reminded of the Fox News slogan “fair and balanced”. It’s such a stunning display of unabashed bullshit I don’t know whether to be disgusted or amused.

      Back on topic, Terry’s rebuttal to David was so thorough and unrelenting it was hard not to imagine a puppy being kicked while reading it.

      Posted by Technotopia | October 20, 2011, 7:18 pm
      • Welcome, Techno. No idea who you are but your comments on Terry’s blog are always very smart. And your Kool-Aid line is a very rich image.

        Posted by roblevine1 | October 20, 2011, 7:31 pm
      • Interesting, so in your mind what Radiohead or the Open Source community do is unjust? That’s an interesting point of view. I was under the impression that copyright holders were free to choose their own business models, even if that involved giving away some of their work for free.

        I’ll leave the rest of your comments for what they are. Just saying someone’s wrong without any kind of logical argument to support that statement is not worth my time, colourful as the expressions may be.

        Posted by Pieter Hulshoff | October 20, 2011, 9:08 pm
      • Ooh, ooh, I know this one!

        Ahem…

        The way Radiohead or the open source community conduct their business may or may not affect your existing business model, depending on whether the products they are offering are a direct or close substitute for your product.

        It is possible for a more expensive offering to nevertheless thrive in the presence of cheaper alternatives, if it is seen to have greater value than those alternatives. Since music and software are not fungible, the fact that someone is offering their own music for free may have absolutely no effect on the market for your music – for which you charge money – especially if their music is crap. I wouldn’t download In Rainbows for free (so I didn’t).

        In the context of the quote, point 2. should be read as follows:

        2. If you don’t give your content away for free (correctly), someone else will give it away for you, and your existing business model will be in trouble.

        This is both illegal and unjust.

        There, that wasn’t so hard, was it?

        Posted by Faza (TCM) | October 21, 2011, 4:21 am
    • “their production cost of practically 0 can”

      This notion comes up a lot in discussions of copyright and the internet and it’s simply not true. The costs of production aren’t zero. Not even close to zero.

      Composing a song, writing a book, creating a picture, producing a movie, staging an opera, etc. all require time, effort and resources. The people doing the work need to live and support themselves while doing it and the materials they use are not given away for free, they must be bought and paid for.

      Given electronic duplication, the cost of REproduction may be practically zero, but that’s a very different thing to the cost of production.

      So, while the economics of non-scarce products with a production cost of practically zero may be very interesting, it has no relevance to any discussion of cultural production. Pretending that it does is just being dishonest.

      Posted by zbekric | October 21, 2011, 1:06 am
      • Very true, but that’s exactly the reasoning generally given by Techdirt: your time and creative talent are scarce. As such, those are the resources your business model should target as the way to make money. Using the production cost of non-scarce resources like copies of your work to your advantage can be a part of that.

        Posted by Pieter Hulshoff | October 21, 2011, 7:35 am
      • That’s a fascinating take, Pieter: “time and creative talent are resources your business model should target as the way to make money”. I wish I knew what it meant – ‘coz it obviously can’t mean using your time and talent to actually create something.

        Nobody here has a duplication business, so it’s not like the diminishing cost of reproduction and the ubiquity of copying technologies strikes a deadly blow to our business model – not if anyone who wants to make copies actually has to pay us for the pleasure.

        Posted by Faza (TCM) | October 21, 2011, 11:04 pm
  2. I’m joking about Techdirt as should have been clear from my tone. While I don’t agree with it about law, economics, or human rights, some of the business ideas are quite useful. There’s some truth in every joke, but I’ll save my thoughts on this for another day.

    Posted by roblevine1 | October 20, 2011, 3:37 pm
  3. “And your Kool-Aid line is a very rich image.”

    Except it’s missing a definite article…the pratfalls of online commenting!

    “Interesting, so in your mind what Radiohead or the Open Source community do is unjust?”

    No, not at all. My interpretation was one of two easily derivable from your statement but apparently not the one you intended. I thought you meant “if you don’t release your work for free, someone else will release your work for free for you” (a commonly espoused sentiment in freetard circles) when what you were really saying is “good luck trying to charge for your work when all the professionals start giving their work away for free”.

    I have no qualms with the latter scenario. And in fact, something quite similar has already happened in the stock photo industry. I don’t see it happening in any other industry though. It wouldn’t be sustainable. Relative to writing novels, recording albums, coding video games or filming movies the various barriers of entry to doing stock photography are minuscule (‘time’ chief among them). It makes sense that the bottom should fall out in that market.

    And by the way, there’s a reason Radiohead hasn’t repeated the “In Rainbows” strategy — from a marketing standpoint, it’s no longer novel. And that’s exactly what it was cynically designed to be from the very beginning: a novelty, a gimmick, a fad. It was never a revolution or a herald of things to come as the Masnicks of the world endlessly professed. It was always just another cheap choking hazard at the bottom of the happy meal, destined to be played with once then forgotten.

    “I’ll leave the rest of your comments for what they are. Just saying someone’s wrong without any kind of logical argument to support that statement is not worth my time, colourful as the expressions may be.”

    Making arguments for readily ascertainable facts is not worth MY time. Masnick has always been and continues to be a Silicon Valley shill peddling self-interested snake oil. There could hardly be a better example of a piracy apologist than him. Apart from being a perfect way for a lawyer or politician to practice keeping a straight face I don’t see why anyone would bother to contest that.

    Posted by Technotopia | October 21, 2011, 1:45 am
    • Robert: is there a reason why the blog comments here are only allowed to go 3 deep? I can’t reply to some of the deeper comments directly. As such I’ll combine them in this reply.

      Let’s be very clear: both in my professional work as a chip designer and in my amateur work as an Open Source software developer and musician I depend very much on copyright. I make no excuses for copyright infringement, and I feel that infringers need to be brought to court.

      The techdirt article I linked to is very clear in its purpose; at no point is there an excuse for infringement given. It focuses very clearly on the fact that entertainment is a market, and if you want some market share you’ll have to make sure your market offering can compete with that of your competition. That means competing with amateur artists giving their work away for free because they enjoy others watching their work, and professional artists giving their work for free, because they have found a business model that uses it to their advantage. It also means competing with other forms of entertainment, like going out, computer games, etc. In no way do I feel you should have to compete with copyright infringement, though there certainly are successful business models possible that suffer much less of the existence of non-commercial copyright infringement than the current ones.

      I’m glad your opinion of Masnick has already been written in stone, but that’s not going to convince anyone in a discussion that doesn’t know him or may feel otherwise. I’m certain that it wouldn’t be hard to find at least some examples of him showing his piracy apologist image, neh? How can you have a meaningful discussion on a topic if you’re only preaching to the choir?

      Posted by Pieter Hulshoff | October 21, 2011, 7:48 am
  4. Faza:

    Why can’t it mean using your time and talent to actually create something? The only question is: what is your business model? How do you plan on making money with the work you’ve created? Using the zero cost of reproduction can be a part of such a business model, but whether you want to do so or not is of course up to you.

    Once again: I don’t believe that you should have to compete with copyright infringement. I believe the infringement problem should be solved, though the cost should of course not outweigh the benefits.

    Posted by Pieter Hulshoff | October 22, 2011, 8:32 pm
  5. As I said: that would depend quite a bit on the business you’re in. :) Are you an author? A painter? A musician?

    Posted by Pieter Hulshoff | October 25, 2011, 10:51 am
    • A musician.

      Posted by Faza (TCM) | October 26, 2011, 12:34 am
      • Ok, let’s give this a try. :) Please keep in mind that I’m not a business man; this is purely a theoretical exercise for some general musician.

        So what are some ways to make money from music, aside from the obvious way of selling cds and online music?
        - Live performances
        - Work for hire: movies, advertisements, write works for performing musicians
        - Sheet music (generally not a scarce product though)
        - Merchandising: clothing, perfume, cups
        - Limited edition offers: backstage passes, home invitations, studio invitations, booklets

        What do you need in order to be able to make money from these ways? People need to know you exist, and that you write good music; in other words: a fanbase. Distributing recordings for free via YouTube, your website, bittorrent, etc. can help you gain such a fanbase. It’s certainly a lot cheaper and easier than trying to get your songs played on the radio. It also helps to engage in conversation with fans via media like Facebook, Twitter, etc.

        Will it work for you? No idea. It’ll depend on how good your music is, and how well you execute a proper businessmodel. The most important part is that you actually need to have a business model: decide what you want to make your money from. Just giving away your works for free and praying someone will pay you for it is not one of them. Even then it may not work, but let’s be reasonable: most musicians that work in the traditional business of selling cds can’t make it work for them either, even way before we had this internet copyright infringement problem. The % of traditional artist that make a good enough living to live off is pretty small. One thing is certain though: you’ll have a lot less problems with non-commercial copyright infringement if your business model includes giving away recordings for free, and making your money in non-scarce ways. It’d only help promote you.

        One last remark though: just because some musicians have found good ways to make money this way is in no way an excuse for copyright infringement nor a reason to abolish copyright. I honestly feel that an artist should be free to choose his/her own business model without having to compete with infringement. You do however have to compete with other artists who may have found better business models than selling non-scarce goods, and that may be the tricky part if you don’t find one of your own.

        Posted by Pieter Hulshoff | October 26, 2011, 7:22 am
      • You know, I just knew you were going to say that.

        It so happens that I covered pretty much every single one of those points at some time or another on my blog, so I won’t carry on this OT. Let’s just say this: on the face of it, it looks sensible; in practice – it breaks down very quickly. However, for bonus value let me just give you one thing to think about: conversion rates.

        Posted by Faza (TCM) | October 27, 2011, 11:11 am
  6. Considering that I didn’t even know you had a blog, I can’t really respond to points I’m not aware of. Please provide specific links if you enjoy a discussion on the matter.

    Let’s be clear once again though: I’m against copyright infringement, and far be it from me to tell you how to make your income. What you define as your business model should be your own choice, not hindered by infringement. You do however have to compete with other forms of entertainment, including musicians who may have found a different business model that works for them. How and if you want to compete is completely up to you of course.

    Posted by Pieter Hulshoff | October 27, 2011, 2:55 pm
    • I think this discussion has gone on long enough, especially since I’m pretty much winding you up to see if you have anything more interesting to suggest than all the other folks who share your views. I am disappointed.

      Since our Gracious Host is busy promoting his book, however, and will probably have more important things to do than putting us in our place, let me just point out two important issues about competition:

      1. I (or any other musician) will not be competing with 99% of the musicians out there. We’re simply catering to different markets.

      That’s the obvious thing I wanted to get out of the way. What’s funnier is that:

      2. If anyone who is directly competing for my market decides to pursue a business model that entails giving recordings away for free, he is effectively removing himself from the competition.

      What are we competing for? There are two constraints on a consumer: utility and budget. Utility doesn’t come into play as far as music is concerned, because getting one album doesn’t preclude getting another one (or twenty more). Hell, you don’t even have to worry about where you’re gonna keep ‘em anymore.

      The other constraint is the budget and here’s where a competitor pursuing a freemium strategy actually helps me. Since the fan we are competing for got his recordings for free, he’s saved some money to buy my recordings. It’s simply a question of whether he wants them badly enough to pay for them – just as it ever was.

      I’m sorry but TechMike’s rationale (since that’s what we started from) is bass ackwards. This whole “freemium” schtick (which I tend to refer to as the Hunt for the Big Dope – I had a bit of a discussion with him about that, a while back) starts from a love for free content and then tries to cobble together something remotely sensible to justify that free content. A sensible strategy would start from various options and only arrive at free content if it turns out to be optimal (a counterintuitive conclusion in any case, since you are depriving yourself of one income stream – without gaining any new ones). It’s not even a competitive advantage if everybody else is doing it (or is having it done for them by people who like to share).

      The only possible advantage is some additional exposure – except, good luck getting any when you can’t go anywhere without getting tons of offers to listen to artists you’ve never heard of (and would probably prefer it to stay that way). You might get lucky and record a song that everybody hates – but then again, you also might win the lottery. My guess is that the odds of the latter are a bit higher, in fact.

      So, yeah. I’ll take my business models with some common sense on the side.

      Posted by Faza (TCM) | October 28, 2011, 6:55 am
      • I think you’re mistaken me for someone who has an angle on this topic. I don’t. I’m not a businessman, nor am I looking to get my stuff for free. I’m a technologist who values copyright, but who places limits on the cost of enforcing it ineffectively. I advice politicians on the ability and inability of technology for the enforcement of copyright law, and the effects certain laws will have on innovation. Far be it from me to give advice on how to set up your business model; you just asked about what might be ways to use free as part of a business model, so I wrote what I’ve read has worked for some people. The main reason seems to be to get out of obscurity; you’re not going to sell a lot of cds if no-one knows you even make music.

        If your current business model works for you: great! Why change it if it works for you? If it doesn’t work for you, that might be a good time to look at alternatives. In that case I’d advice you to find a business man; technologists are usually not the best in giving advice on that topic. :) Chances of winding me up on this topic are pretty much 0. Anti-circumvention laws … now that’s a topic I can get pretty riled up about.

        What I do find interesting though, is that where Robert seems to say that artists giving away their work for free makes it harder for others to charge for theirs, you seem to say that it will improve your chances of selling your work.

        Posted by Pieter Hulshoff | October 28, 2011, 7:59 pm
      • The Nineties called and said they want their webpage back.

        I’ve read what you’ve published on copyright there and frankly I hope that the letters you write contain a better formulated argument. For a start, you never say what is the “correct” implementation of copyright.

        I take exception to your presentation of the public domain, since your “anti-big-business” stance is simply a support for a different kind of business. The many movies based on the Three Musketeers or Shakespeare’s plays were money-making ventures, as are most uses of public-domain works which are likely to be impacted by copyright (see Eldred). It’s fine for people to be making money off of Shakespeare centuries after he’s dead (he won’t care, at least) – however, I don’t think the same could be said for somebody making money off of something a still living creator made and not giving them a cut of the money.

        Moreover, as a creator I can tell you that the only creativity “a large public domain” facilitates is the lowliest, bottom-feeding kind: the one where you don’t create anything new but simply piggyback on a recognised work. I certainly would prefer to see a completely new and original historical romance than an umpteenth version of the Three Musketeers.

        The public domain you envision promotes two kinds of businesses: ones that create adaptations of existing works and ones that publish works without paying the authors (by virtue of the fact that copyright has expired). Neither kind contributes much to content variety and the cultural ecosystem. So why should we favour these kinds of businesses again?

        Posted by Faza (TCM) | November 2, 2011, 12:21 am
  7. I take it you’re referring to the web page I put up around the year 2000, and haven’t really updated since? True, it’s hopelessly out of date, and the copyright discussion was mostly about the EUCD at that time. As for the “correct” implementation of copyright: I’m very much in favour of the reasoning of the American constitution: Copyright is meant as an incentive to promote the progress of Science and useful Arts. It is meant to benefit society. If a proposed extension doesn’t work towards that goal, it should not be considered. IMHO, anti-circumvention laws for instance should never have been accepted. In most cases it doesn’t do a thing to prevent infringement, but it destroys the balance in copyright defined by rights and limitations to those rights, and prohibits a lot of scientific innovation.

    I don’t have an anti-big-business stance as far as I know. What I do take exception to is the continuous expansion of the duration of copyright in order to keep the works of Disney out of the public domain. Actually, it has been ages since any work entered the public domain. We’ve already lost countless of cultural works due to deterioration, and most of the earlier works aren’t available anywhere, neither free nor for payment. I see no reason why copyright (or neighbouring rights for that matter) should last that long. Most people certainly don’t get paid 70 years post-mortem for work they did today. I absolutely believe copyright is needed as an incentive for people to create new works, but if you extend it for too long it takes away that incentive. Why create a new work if you can live easily off work you did 50 years ago?

    I don’t favour any kind of business. What I do favour though is society’s access to its culture. When libraries came into existence, the industry cried that no-one would ever buy a book again if they could read them for free. They turned out to be wrong. We currently have the technology to create the biggest cultural library ever in existence; why should society not benefit from that possibility? No, I’m not talking about Google scanning works still under copyright; I’m talking about works in the public domain. Not that any new works are likely to enter that any time soon.

    Posted by Pieter Hulshoff | November 2, 2011, 8:33 am

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