Sunday, November 8, 2015

What is Copyright

Here, take my free ideas:

Copyright arguments have reared their ugly heads because the TPP (Trans-Pacific Partnership) negotiated by the Obama administration cements some strict, perhaps draconian, copyright protections into the law.

Despite knowing better, I spent some not-terribly-productive-time the other day in an argument over copyright policy on Twitter. I got swept up in an age old argument (by which I mean like a decade old argument) between musicians, euphemistically known as "content creators," and tech free-information enthusiasts, who I guess like having the internet free and filled with ads and surveillance spyware helpfully installed on your computer by benevolent multi-national corporations.

(Side note: "free-information" enthusiasts refers to half a Stewart Brand quote on the topic of information, in a legendary supposed conversation with Steve Wozniak. The idea that "information wants to be free" has been used by many to argue that the internet is the greatest force of good ever discovered, and copyright is thus standing in the way of this natural benevolent order. It's also very convenient, since many of the biggest believers in this have also made huge fortunes from the current state of affairs, but I digress.)

All very boring, I know, but I couldn't help myself because of such rhetorical zingers as this gem:

I'll leave aside the absurdity of such a claim on logical grounds, since it defies my knowledge of the world to imagine a musician successful enough to own a copyright that can form a basis for retirement whom is also "lazy." But yet, I feel compelled to confront, or at least explore, this animosity. Because apparently to some, the musician who wants money is a big problem facing society.

My first thought was, why do some seem to single out musicians as so lazy and entitled? And why do other "entitled classes" (owners of other types of capital) seem to get a free pass?

This lead me quickly to a more-meta position of thinking about ownership and capital. But my gut emotional reaction, in perfect counterbalance to the assertion that musicians are "lazy" because they want to make money off their copyrights, is to think that these free-information weirdos are selfish because they want to keep and distribute huge terabyte-sized databases of music for free without having to compensate the original creators. No generation in history has felt so entitled to have access to all the world's music at their fingertips at no cost to themselves in time or money. Anyway, we can both be knee-jerk and reactionary. And both sides have a profit motive to their position. In such arguments, this is usually the case. But I'm not going to cede the ground that only one side is being self-interested here, and the other is on the side of pure altruistic good.

Julian is Alive!, for instance, seems to be some sort of digital archivist, worried that copyright holders and the big bad bogey-man record labels personified by the evil-incarnate (or just plain stupid luddite) RIAA are going to sue her and libraries for keeping copies of their music. Defenders of copyrights are lumped together as "maximalists." She's just being reasonable. Of course, my reaction to her might be similar- it seems to me she she is the one holding some sort of "maximalist" position: that people should be able to amass all this information, as much as they can, which is by nature free, and greedy musicians and record executives are standing in the way of progress and tech and democracy and freedom.

OK ok. First, let's all stop calling each other maximalists. I believe firmly in the public domain, and think the copyright term is too long, and I'm certainly not about throwing small-time music pirates in jail or even caring about them that much. I'm sure Julian doesn't want to personally own the whole of human music for personal gain and profit.

/ Does information really want to be free, or is it other people who want it who want it to be free? Which thing actually has the agency to "want" here?

A thought experiment. Why is the musician living off their copyright lazy while the heir to a fortune, living off the ownership of some other form of rent generating capital- be is stocks, bonds, or real property (land)- industrious? Is it somehow "worse" for the children and grandchildren of Marvin Gaye to be millionaires because they successfully sued Robin Thicke in an absurd copyright claim than for the grandchildren of Sam Walton to be billionaires because they were lucky to be born into the right family? (I'll use Robin Thicke as a shorthand for the whole fiasco because it's funnier).

Neither fact of wealth would seem to serve much societal good, in my opinion. In fact, they both represent a gross economic inefficiency. But in absolute economic terms, the Walton family's $3.1 billion in annual income from stock dividends is surely the greater economic drag. They have managed to capture 42% of the private wealth of the country. I will leave aside the moral question of whether the heirs should be able to do this- instead of oh I don't know, distributing their company's income more equitably to their employees. What I'm interested in here is how they manage to do it.

The answer here isn't very mysterious. The do it because they can. And they can because the law allows them to.

/ one man's inefficiency is another man's profit

In every way except in terms of dollars, when I compare "copyright" to Walmart, I'm talking about apples and oranges. As the techies are very very very quick to argue, it's an absurd comparison. But on a more meta-level, these things are interconnected. Because what is money other than an information system by which we can compare apples and oranges? Classical economics teaches us this. Money allows one guy who has oranges to sell them, and then to spend those "credits" on apples at a later time. Or alternatively, to hire Robin Thicke to sing about his sexual prowess.

So for me, when thinking about copyright, we are really forced to ask some heady questions about ownership, property, and money, and so we are lead quickly to such questions as: why do the Waltons deserve to be wealthy, while Zoe Keating is lazy?

/ Information may want to be free, but the people who create that information still need to pay the rent. The only source of information is other people.

Mine is primarily a concern of wealth and income distribution. By not thinking more-meta about how we organize society, we tend to develop big blind spots about how it actually functions. We tend to think there is law (politics), then there is economics, and then there is technology. Depending on one's area of expertise, one tends to rank them self-interestedly in terms of importance. Naturally, those working in tech tend to bias technology as trumping all three. Economists tend to think of markets as the ultimate organizing invisible-hand. And academics, lawyers, social scientists, yell from the side-lines about the importance of the state. But really, these aspects of society are always in interplay. You don't have one without the other. And changes in one always have cascading affects in the other domains. And most importantly, one area is not necessarily somehow "better" or more "pure" or "natural" than another. Ideally, they all function in balance.

It is the state and the law that creates money and markets, because it is the state that ultimately enforces property laws. It holds a monopoly on violence to do so. Economies tend to be much less functional in stateless societies, where property law enforcement is taken into individual hands. Of course, when the state overreaches and enforces laws that advantage too few at the expense of the many, the many may reclaim that right to violence in the form of revolution.

Technology does not function on some separate plain independent from the market and laws. We tend to think of technology as a benevolent truth that's out there, separate from humans, God-given even, just waiting for the right brilliant mind to discover it. But successful tech is inevitably also a successful power play. "Information technologies" represent powerful forces of economic reorganization, and they've created new economic winners (Google) and losers (musicians). This is in interplay with the powers of the market and the laws that govern them. When we talk about one aspect of society as an independent thing without considering the other forces, we have a necessarily incomplete understand of how society is working, and how power, resources, and labor are being distributed.

/ One man's new technology is another man's job.

If we decide that one force has outbalanced another, and one person has captured too much power or wealth or information, as a functioning society, we can decide to try and change the laws or invent new tech to try and balance out that distribution. In a less functional society, we can try and kill that person. But if we are a functioning democracy we shouldn't consider ourselves helpless. We, as a democracy, have passed laws that have allowed the Walton heirs to amass humongous fortunes by mere fact of inheritance and ownership of capital. The state protects rights of inheritance, and tax law preferences dividend and capital gains income.

We should be able to decide, as a democracy, that the societal benefit of this right (to act as a personal incentive to encourage the building of successful businesses) outweighs the cost of allowing one family to capture 42% of a nation's wealth. Or we could decide it's out of balance and institute a counterbalance, like say, a 90% confiscatory tax on inheritances above $20 million dollars. In doing so we would, in effect, be deciding that inheriting $20 million dollars is enough. If we wanted to anyway.

This is why all "property rights" are related. They are related whether they are real property, which is "rivalrous" and can not be reproduced, or "fictitious" property, like intellectual property, which are rights wholly created by the states. This distinction is highly semantic, and is only convenient if you are starting from the premise that "intellectual property" is by its nature peculiarly harmful, and should be restricted, and so a distinction between that and other forms of property should be found. The free-information crowd draws a big line in the sand around this point to make their legal arguments.

But the distinctions between intellectual property and other property are actually not as a great as they initially seem. This is why I prefer to think of them just as different forms of capital. To the argument that "land" is "real" and copyright is only "property" because we "fictitiously" agree that it is so by statute: land is real and tangible, true, but so are ideas. There is, in fact, such a thing as ideas. If property laws protecting ownership of real-estate went away, land wouldn't go away. But ideas wouldn't stop existing either just because we do away with copyright.

We have decided there's societal benefit in distributing some income to the creators of ideas, just as we have decided that there's societal benefit in "owning" land. The law doesn't create either thing, but it does create the right to own them. The land doesn't go away, but your right to own it does without the law. Without the law and property rights, you'd be left to defend your ownership claims on land yourself, which you can do with enough guns. But then, I could defend my music with enough guns also. It would just be harder and I'd be a pyschopath. Just as we have decided to grant the right to control the copying of music protection under the law, we have decided to protect the ownership of land under the law. The two things are apples and oranges, and the law doesn't create either one. But the law does create the right to own both.

So the current law, by international treaty, has settled on a copyright term of life of the creator plus 75 years. And so it goes. By probably misguided application of that law, that Marvin Gaye's "lazy" heirs have captured some of Robin Thicke's income. It's dumb, I get it. Perhaps the term granted to copyright is too long and this should be renegotiated. (And you shouldn't be able to copyright a friggin' cowbell anyway.) I'm no maximalist. I don't actually know that it's to the benefit of society that Marvin Gaye's children be able to sue over this. But I also don't know that Walton's grandchildren should just "get" to be billionaires. And in terms of degree, the economic impacts of the two aren't even close.

Obviously, this line of thinking leads to all kinds of other arguments, tangents, side arguments, hair splittings. Like, which right is more valuable? Which is the "greater good"? Robin Thicke's song or Walmart? Or Google, for that matter, perhaps the greatest economic beneficiary from free and cheap information of all (Google has, after all, started a space program in part from the profits from aggregating and distributing other people's free ideas. All while vigorously defending its own intellectual property).

To fully unpack all this is probably a book length argument. But unless we're talking about actual dollars, it is necessarily a value judgement. Google is indeed "productive," (which I guess means useful), and Robin Thicke is not. Fair enough, you might say.

Because in this case "productive" can't mean simply "profitable." Robin Thicke's song, however stupid, did get played millions of times and generate enough income that the Marvin Gaye estate sued him for $7.2 million. So there must be some "production" there for what is effectively a catchy piece of trash.

It's very difficult to separate "production" from "profit," and this from the system of laws that allows a specific thing to be more or less profitable than another. It's all interconnected. Ultimately, it is a subjective value judgement that Google is somehow more "useful" and impactful to the good of human life and society than "music." (I'll grant that it's more useful than Robin Thicke).

But if we're talking objective dollars, that flow from the current state of laws, tech, and economies, well I made a chart! Complete with bad resolution, it compares total worldwide music revenues for 2012 with total revenues for Google, in billions of dollars:

Hey, music did pretty well! I actually thought it would be worse than this. Except when you remember that Google has 57,000 employees and Music has... well who the hell knows but I'm willing to bet a lot more mouths to feed than that. And when you remember that this is less than the net worth of the Walton family. The Walton family could in effect afford to buy all the world's music for 2012.

Is it wrong to wonder if we can't tip the balance back just a little? I'll even go out on a crazy subjective limb and suggest that music has positively impacted the lives of more human beings than Google, to say nothing of Walmart, and that that will still be true a hundred years from now. I'm nuts! I know! Copyright is one of the only tools under the law "music" has to leverage against the aggregating power of the likes of Google, or more circuitously, the Waltons. Is that really so bad?