If copyright vanished, writing on spec would vanish, but since contract law wouldn't vanish, you could still control the duplication of material and its treatment.
Derivative works would likely flourish - is that all bad? And, of course, property rights might still attach to your work, just not copyright style protections.
And the automatic rights that come to the consumer with copyright would also vanish.
In a world without copyright, we'd have Kindles. :-)
(Of course, I'm no expert, and gave this just a few seconds thought.)
Contract law would afford some protections, but in Dean's scenario that the instant I gave or sold a copy of my work to someone, they could make copies and sell them as they please.
Under copyright law, at the basics, there is never any question of where the right to copy or use may lay. So, one can distribute copyright work without hindrance, knowing that in law your rights are secure unless sold or contracted.
If copyright pops like a soap bubble, I suspect that VERY QUICKLY, standard contracts would appear, which would continue to maintain those property rights, which could be managed and litigated under contract law. Including the right to make copies.
Now: if you write a book, and I purchase the right to make copies and sell the copies of that book, and my friend Harold buys a copy of that book - under copyright law HE cannot make copies, automatically. If copyright law vanished, what you would have to do is create a contractual agreement between the publisher of the book (me) and the purchaser of that book (Harold) that preserved the rights in our contract. It wouldn't be the default, but it would be more like shrink-wrap software is now.
That's why I joked about the Kindle - which has exactly that sort of control over the copy you receive, which is licensed and temporary and so forth.
So: I think that many of the conveniences that we gain from copyright, we would lose - but I suspect that doesn't mean the purposes and desires that copyright fulfills couldn't be largely kept.
The problem is contract only binds the contracting parties, whereas copyright binds everyone.
There is no contract between you and your publisher that would prevent me from buying a book, scanning, and redistributing it. That would require a chain of contracts between the publisher and the distributor and the distributor and the retail purchaser. But even that doesn't help. You may sign a contract with the local Borders when you buy a book. But when you give it to me as a birthday present, I am not bound by your agreement.
I was thinking of a contract that was, analogous to some of the real estate permanent easements or an entailment.
Point being, I suspect, in a world without copyright there would be model contracts for such behaviors, and so forth, that would cover cases of transfer and use.
Again, much like is frequently attempted for software, or for downloaded music.
I'm not suggesting that the world would perfectly ape our world, by re-creating copyright law through the use of consensual contracts, or even contracts of adhesion. There would be differences.
But, neither do I think it would be the utter chaos that is envisioned in the source article.
I think that, with the aid of contract law and model contracts, content creators would have and develop sufficient rights that they would not vanish into the void.
In fact, what I can envision (shades of DMCA) is that such a world would be WORSE for the content consumers, since copyright also permits fairly generous Fair Use of that content. Which could rapidly go away. If contracts for content went beyond the expression, and into the ideas, we'd deeply stifle creativity and productivity.
Of course, in a purely contractual world, the owner of the content, if they were in a strong enough position, would have zero incentive to permit the generous rights of copyright that accrue now to the consumer.
1. A quick Internet search shows that there are people out there talking about eliminating copyright. They seem to be on the fringe, but they do exist.
2. Your statement seems to imply that it's useless to do a thought experiment of any sort unless it's a likely scenario. Dean's been doing a series of these, in the spirit of the book and TV show Life After People. Thought experiments that take things to the extreme are very useful in fields such as physics...and science fiction.
WRT point 2. The problem from my perspective is that such thought experiments are often used to warp and confine the political debate. The extreme case is described and discussed as if it were the actual case. It defines the debate, and is often used to place proponents on the other side on the defensive. Indeed, the copyright debate has been dominated by precisely such an effort by proponents of copyright extension to define all opposition as supporting the elimination of copyright.
Nothing sums up my objection to this in the political science field better than the fact that every time Larry Lessig talks about copyright policy, some wag in the audience or on the panel thinks they are scoring a point by observing that Lessig charges money for his books. This is only a valid point if one believes Lessig's argument is not about modifying and moderating existing copyright, but eliminating existing copyright.
Hence my rolling of eyes at what seems to me as yet another effort to define the debate as a binary copyright yes/no rather than a sensible examination of what our copyright policy ought to be.
I imagine that without copyright, the world would turn to the complete dearth of all creativity that existed before 1705.
More to the point, without a maximalist copyright regime like the one established by the Digital Millenium Copyright Act, we'd be back in the pre-1996 world, essentially bereft of all creative work. I can't even imagine what leaving the current Golden Age of creativity would be like.
To be fair, it's a lot easier to copy (some) things than it was in 1705. But I agree that Smith is completely over-the-top in this essay - if people still want to read then there will be ways to make money writing, just like some musicians (such as Jonathan Coulton) are making money despite giving all their songs away.
In fairness, one issue here is whether we want to permit the development of a professional class of writers, which is what copyright (when done right) facilitates. Prior to the development of the printing press, and even afterward (previous to copyright, printers were licensed and no one else could use the technology), writers were either independently wealthy or made money in other ways -- such as patronage. Even after the development of copyright, most writers did not make their money exclusively from copyright but from paid appearances.
Still, copyright facilitates a class of professional writers by making it possible for people who have the skill to write to receive royalties. Interestingly, however, the real money out of copyright is not in creation, but in control of distribution. This is why many professional writers often have other jobs, because only a small percentage of professional writers live comfortably from royalty payments. Many professional writers are salaried, paid commissions, or have other, non-writing sources of revenue. But the highly profitable distribution system makes it possible to support these writers better than if they had to rely on a wealthy patron's personal largess.
I'd really like to know how corporations managed to go from *paying* for product-placement to extorting money from even the most incidental appearance of their products or anything that might be mistaken for their products in bad lighting if you squint and tilt your head just right.
DWS's story is deeply flawed because it is based on a false dilemma: Wanting to fix current copyright doesn't mean wanting to abolish all copyright. The people who are benefiting from our current deeply borked copyright system are Big Industry (the Mouse, RIAA, MPAA) who have a track record of abusing their customers, not individual writers, artists, and musicians.
As I noted above in another comment, Dean's been doing a series of these, in the spirit of the book and TV show Life After People. He's not saying that people who want to fix copyright want to abolish it (although there are some who do). He's simply starting with an interesting, if extreme, premise, and following it through to what he feels are the logical conclusion.
Also, Big Industry sometimes abuses the creators as well as their customers. That's why we have a lot of creators going their own way in this Internet age, and managing to be successful about it.
Dean's piece really provoked me, and not in a good way -- it didn't come across to me as a interesting thought experiment rather than an extreme and misleading argument in support of the *current* copyright scheme.
I ought to have rephrased my remark about Big Industry so that it was clear that I believe they benefit at the expense of the writers, artists, and musicians they claim to support. :)
And to further clarify, I'm not against businesses who actually *do* have *mutually* beneficial relationships with their talent, and I do believe such businesses exists, but they are most emphatically not the RIAA, MPAA, etc.
We already are starting to see what that kind of world would look like in the software arena and to some extent in other creative activity areas.
The idea that the profit and control motive on creative works is the only thing that makes the world go round seems pretty dodgy given a brief look at such going concerns.
Did Shakespeare or Emily Dickinson write amazing things in spite of no access to or use of copyright? Seems like they did.
Matter of fact, this Groklaw article notes that Old Will might have been in deep doo had our current copyright laws been in play. Be careful what you wish for? :)
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no subject
Date: 2009-07-07 09:42 pm (UTC)If copyright vanished, writing on spec would vanish, but since contract law wouldn't vanish, you could still control the duplication of material and its treatment.
Derivative works would likely flourish - is that all bad? And, of course, property rights might still attach to your work, just not copyright style protections.
And the automatic rights that come to the consumer with copyright would also vanish.
In a world without copyright, we'd have Kindles. :-)
(Of course, I'm no expert, and gave this just a few seconds thought.)
no subject
Date: 2009-07-08 12:27 pm (UTC)no subject
Date: 2009-07-08 01:05 pm (UTC)Under copyright law, at the basics, there is never any question of where the right to copy or use may lay. So, one can distribute copyright work without hindrance, knowing that in law your rights are secure unless sold or contracted.
If copyright pops like a soap bubble, I suspect that VERY QUICKLY, standard contracts would appear, which would continue to maintain those property rights, which could be managed and litigated under contract law. Including the right to make copies.
Now: if you write a book, and I purchase the right to make copies and sell the copies of that book, and my friend Harold buys a copy of that book - under copyright law HE cannot make copies, automatically. If copyright law vanished, what you would have to do is create a contractual agreement between the publisher of the book (me) and the purchaser of that book (Harold) that preserved the rights in our contract. It wouldn't be the default, but it would be more like shrink-wrap software is now.
That's why I joked about the Kindle - which has exactly that sort of control over the copy you receive, which is licensed and temporary and so forth.
So: I think that many of the conveniences that we gain from copyright, we would lose - but I suspect that doesn't mean the purposes and desires that copyright fulfills couldn't be largely kept.
no subject
Date: 2009-07-08 01:56 pm (UTC)There is no contract between you and your publisher that would prevent me from buying a book, scanning, and redistributing it. That would require a chain of contracts between the publisher and the distributor and the distributor and the retail purchaser. But even that doesn't help. You may sign a contract with the local Borders when you buy a book. But when you give it to me as a birthday present, I am not bound by your agreement.
no subject
Date: 2009-07-08 02:05 pm (UTC)Point being, I suspect, in a world without copyright there would be model contracts for such behaviors, and so forth, that would cover cases of transfer and use.
Again, much like is frequently attempted for software, or for downloaded music.
I'm not suggesting that the world would perfectly ape our world, by re-creating copyright law through the use of consensual contracts, or even contracts of adhesion. There would be differences.
But, neither do I think it would be the utter chaos that is envisioned in the source article.
I think that, with the aid of contract law and model contracts, content creators would have and develop sufficient rights that they would not vanish into the void.
In fact, what I can envision (shades of DMCA) is that such a world would be WORSE for the content consumers, since copyright also permits fairly generous Fair Use of that content. Which could rapidly go away. If contracts for content went beyond the expression, and into the ideas, we'd deeply stifle creativity and productivity.
Of course, in a purely contractual world, the owner of the content, if they were in a strong enough position, would have zero incentive to permit the generous rights of copyright that accrue now to the consumer.
Come back zinc . . .come back zinc . . .
Date: 2009-07-07 09:49 pm (UTC)Re: Come back zinc . . .come back zinc . . .
Date: 2009-07-08 12:24 pm (UTC)1. A quick Internet search shows that there are people out there talking about eliminating copyright. They seem to be on the fringe, but they do exist.
2. Your statement seems to imply that it's useless to do a thought experiment of any sort unless it's a likely scenario. Dean's been doing a series of these, in the spirit of the book and TV show Life After People. Thought experiments that take things to the extreme are very useful in fields such as physics...and science fiction.
Re: Come back zinc . . .come back zinc . . .
Date: 2009-07-08 01:07 pm (UTC)Nothing sums up my objection to this in the political science field better than the fact that every time Larry Lessig talks about copyright policy, some wag in the audience or on the panel thinks they are scoring a point by observing that Lessig charges money for his books. This is only a valid point if one believes Lessig's argument is not about modifying and moderating existing copyright, but eliminating existing copyright.
Hence my rolling of eyes at what seems to me as yet another effort to define the debate as a binary copyright yes/no rather than a sensible examination of what our copyright policy ought to be.
Re: Come back zinc . . .come back zinc . . .
Date: 2009-07-09 04:01 am (UTC)Re: Come back zinc . . .come back zinc . . .
Date: 2009-07-08 01:09 pm (UTC)no subject
Date: 2009-07-07 11:22 pm (UTC)More to the point, without a maximalist copyright regime like the one established by the Digital Millenium Copyright Act, we'd be back in the pre-1996 world, essentially bereft of all creative work. I can't even imagine what leaving the current Golden Age of creativity would be like.
no subject
Date: 2009-07-07 11:49 pm (UTC)no subject
Date: 2009-07-08 01:54 am (UTC)In fairness, one issue here is whether we want to permit the development of a professional class of writers, which is what copyright (when done right) facilitates. Prior to the development of the printing press, and even afterward (previous to copyright, printers were licensed and no one else could use the technology), writers were either independently wealthy or made money in other ways -- such as patronage. Even after the development of copyright, most writers did not make their money exclusively from copyright but from paid appearances.
Still, copyright facilitates a class of professional writers by making it possible for people who have the skill to write to receive royalties. Interestingly, however, the real money out of copyright is not in creation, but in control of distribution. This is why many professional writers often have other jobs, because only a small percentage of professional writers live comfortably from royalty payments. Many professional writers are salaried, paid commissions, or have other, non-writing sources of revenue. But the highly profitable distribution system makes it possible to support these writers better than if they had to rely on a wealthy patron's personal largess.
no subject
Date: 2009-07-08 12:27 pm (UTC)no subject
Date: 2009-07-08 12:50 am (UTC)no subject
Date: 2009-07-08 12:45 am (UTC)no subject
Date: 2009-07-08 12:30 pm (UTC)Also, Big Industry sometimes abuses the creators as well as their customers. That's why we have a lot of creators going their own way in this Internet age, and managing to be successful about it.
no subject
Date: 2009-07-08 12:50 pm (UTC)I ought to have rephrased my remark about Big Industry so that it was clear that I believe they benefit at the expense of the writers, artists, and musicians they claim to support. :)
no subject
Date: 2009-07-08 12:57 pm (UTC):)
Free and Open
Date: 2009-07-08 07:15 pm (UTC)The idea that the profit and control motive on creative works is the only thing that makes the world go round seems pretty dodgy given a brief look at such going concerns.
Did Shakespeare or Emily Dickinson write amazing things in spite of no access to or use of copyright? Seems like they did.
Matter of fact, this Groklaw article notes that Old Will might have been in deep doo had our current copyright laws been in play. Be careful what you wish for? :)
US Copyright Law, King Lear, and Jammie Thomas-Rasset - Groklaw