Wow, what an exciting day! Mark at Ditchwalk posted a great entry furthering the discussion we’ve been having about piracy and copyright. With his support, I feel like the discussion is going somewhere. In this post I want to directly respond to what he wrote, so please read his post first. Once you’ve done that, let’s talk:

Both of Mark’s scenarios that don’t involve the taking of something from someone else, but still involve physical piracy (free newspaper and concert), stem from the same given: content creators have a right to decide how, why, when, and where their content is experienced, if for no other reason than they created that content.
I’m not sure I agree with that given as it stands, and I’d like to use a silly example to illustrate why. There is an anti-corporation argument that has a place in the piracy debate and I think this is also the place to bring it into our discussion. I want to use some examples to talk about where I think that argument comes from, but also what I think it means that the argument even exists in the first place. I hope that this will also help address Mark’s ideas about stealing.

We’re going to need two people for this discussion, so let’s pick polar opposites to try to tease out the implications of the thing.

First, we need someone who’s rich and can pretty much buy and sell whatever they want. Let’s use Bill Gates, since I seem to have been thinking about him lately. I don’t know why – it might have something to do with him recently joining twitter and also donating billions of dollars to charity (although those two events might be unrelated).

Second, we need someone who’s not rich. Anti-rich, even. For this, let’s use Marian, referenced in the same blog post I’m responding to. Since we were put up as mutual mouthpieces there, that seems fitting. Marian, unlike Bill Gates, cannot buy and sell whatever she wants. She’s limited by her limited income.

So here’s the scenario:

Say that I’ve just finished writing the next great American novel. It’s the best thing since sliced bread, full of the bees-knees, wisdom, humor, and great ideas. Not only is it gonna be a best seller, a strong member of the Oprah book club, and adored by the mainstream and counter-culture alike, it’s also full of life-changing ideas that everyone on the face of the planet, young and old, should read. Say that’s what the book is, just for example.

Now say that, before it’s released, word gets around that all the hype about the book is true, that it really is better than Shakespeare, the Bible, and Twilight (for the mass market appeal) rolled into one and my publishing company and I decide to set the price of the novel at 10 billion dollars a copy, because we think, for some reason, that we can get Bill Gates to pay that price.

Lo, the novel is realized. My publishing company and I sell three copies to the three richest people in the world. We retire in luxury and never work again. Bill Gates gets to read the book, being one of the three who bought it, but poor Marian never does, because she cannot afford the price of entry.

This is an extraordinarily silly example, but a necessary one, because it demonstrates some talking points:

People should only have a right to distribute content if their profits from said content are reasonable. What right, beyond the creation itself do I have to price my novel at such an exorbitant price? I created the content, but if the book is so good that it might improve lives, what right do I have to price it so only a few lives can be improved?

That’s the point about sticking it to corporations and where it originates. Just because I create something, do I have the right to completely control access to that thing? Maybe, but only to a point. After that point, the social contract says that the work should be freely available, or at the very least, as widely available as possible.
That’s what this is really about. Did Bill Gates really have the right to make 40 billion dollars because he started a software company that provided the right thing at the right time? Does he have the right to become the wealthiest person on the planet because he won big on a social roulette game?

I don’t think so. That’s too much. Letting someone profit that much from the creation of a single thing is absurd, whether it’s a company or a novel. Now, novels aren’t as absurdly profitable as the amount of money Bill Gates has, but you get the slippery-slope gist of the thing.

Now, Marian’s point was this: if the content isn’t priced affordably, she knows how to get it for free.

I think she’s right. It’s easy to get it for free. And digitalization of work brings that into a whole new perspective. Because although piracy might be described as the theft of a sale, the hard fact is that after the content is created, an additional digital copy costs the company nothing. NOTHING.

So how in the hell can they justify pricing a book at ten dollars? It’s an unreasonable profit margin for their investment.

If a publishing company spends 150,000 dollars to pay the author, the editor, the layout person, and the web guy who throws it up on the digital store – they only have to sell 15,000 copies at 10 bucks a pop to recoup that investment. Now, for a novel that they are willing to spend 150 grand on, they are easily going to sell 15,000 copies. It’s more likely that they are going to sell 100,000 copies or more, since they are banking on it being a best seller (otherwise, they would have paid 15,000 or less for the advance, layout, and editing fees). 100,000 copies at 10 bucks a pop gets them 1 million gross and 850,000 net. That’s an absurd margin.

This is simplistic, but basically how it works nonetheless. Now, if they price the book at one dollar, not only are they going to sell way more than 100,000 books, they also put it in reach of a bunch more people. They probably aren’t going to make the same margins, since they’d have to sell a million books at one dollar to make the same as selling 100,000 books at 10 bucks, but it’s possible.

And if they do sell a million books, it’s time to lower the price. Thus spake the social contract and the social contract mote it so.

(Beyond that, there is also the issue of the payment of the writer versus the payment of the publisher, but that’s another whole big thing that probably needs its own post.)

So, my belief is this: content creators have a right to distribute their content as they wish, as long as they price that content so the most people can have access to it (which means as cheap as possible) and still maintain a comfortable lifestyle that lets them continue to create that content. If you want to charge me ten bucks for a copy of a digital book, you don’t get to have a private jet. I’m sorry. No. That’s not feasible or socially responsible. Instead, people in my generation will steal your book. So it goes.

In the above scenario, I would be an asshole for writing something that could help people and then pricing it so only a select few could afford it. That’s capitalism, you say. Fine, I say, well capitalism is an asshole, too.

Information, content, entertainment, whatever you want to call it, should be priced so that the highest number of people can access it and the people who made it can live and continue to create it. When that happens, then content creators have a right to control their content. Until that level of social responsibility is inherent in the system – content creators shouldn’t have a right to do what they want with their content.

That’s the “right” of creation – bringing good to people, and as many people, as possible. If you don’t do that, you have no right to create.

In my last post I mentioned that I wanted to do one more post about copyright, detailing what a physical/digital hybrid copyright system might look like. I apologize for the delay in this follow-up post, but it’s been a pretty busy time at work in the last few weeks. I wasn’t allowed to mention why we were so busy until the deal went through, but now I’m able to talk about it. The company I work for was bought by a larger company, so transitioning to new systems, getting everything in order, soothing clients, and finishing up projects created a pretty hectic schedule. Now it’s winding down a little and I have free time again, so I can get back to our copyright conversation. Thanks for waiting.

Anyhow, I don’t want to retread already discussed ground, so let’s get right to the heart of the thing: I believe a hybrid copyright system is needed to address both physical and digital copyright issues. Specifically, the issue involved is money. I believe that copyright should be abolished, at least for text in the digital realm. I think that authors should find new business models for making a living in order to become professionals at their craft.

In the digital realm, releasing work to the public is not the financial burden it once was, since digital distribution is virtually free. However, without a copyright, there is nothing to prevent a corporation from taking a popular online work and sending it to the printing press, printing out copies to sell and make money, and more importantly, stiffing the author from making any money print copies of their works garner.

So here’s a possible solution – copyright should only apply to physical, print copies of works. Let’s walk through a couple of scenarios to see how this might play out:

We have an author named Lisa, and Lisa writes a book called “Happy Times in Hamtown: A Piggy’s Memoir.” She tries to get published via the traditional models, through agent query and all that noise, but gets no bites. Maybe her book is bad, or too niche, or maybe she just can’t write a cover letter to save her life. So after a year of rejection notices (or, that awful crime: no notification at all), Lisa decides that putting her book out to be read is more important than making money from it.
Lisa starts a website to host her book, or she releases it on a few of the document hosting sites: Scribd, Wattpad, etc, and gets her work out there. She isn’t trying to make any money, but puts a Paypal donation button on her site, just in case anyone wants to donate.

Lo and behold, Lisa’s book becomes pretty popular on the net. Even she didn’t foresee how much the story of Larry the pig’s life in Hamtown would pull at people’s heart strings and fly off the digital databases. Since it’s copyright free, Lisa’s book is passed around to whomever wants to read it, first via her website or the mainstream distribution sites, but eventually through newsgroups, bit torrent, email, and news servers.

Not many people use Lisa’s paypal button (She makes a grand totally of $27.13 over six months), but at least her work is being read. Sometimes, that’s enough. For her next book, she’s considering trying to find a sponsor or maybe create a threshold release system on her website – releasing a chapter to the public once a threshold has been reached, say, 5 bucks for the first chapter, 10 bucks for the second, and so on. Once the threshold is reached, she releases the next chapter to everyone. She’s not really sure, but is willing to try it, since she’s got a little bit of a name now and might be able to swing some donations.

Anyway, Dingus McGee Publishing, though woefully behind about what’s cool on the internet, stumbles across Lisa’s book about a year after it’s released. In a world with no copyright, Dingus McGee Publishing nabs the book and prints 10,000 copies to sell at 15 bucks a pop. Since there is no copyright, Dingus McGee is legally able to do this.

Now, here’s the reason behind hybrid copyright – preventing this situation. In order to get unlimited and wide digital distribution of her book, Lisa is happy that there is no copyright on her book. It allows people to pass it to someone else for free, with no legal concerns, and this is one of the reasons her book did so well on the internet. However, it also allows Dingus McGee Publishing to grab it, print it, and make money without compensating her.

Digital works should be copyright-less, since there are no costs save author costs (And Lisa is already looking into business models for her next book). Distribution costs nothing and there are no printing costs. More so, digital copyright should not exist because it is completely unfeasible to track down all the infringers. Since putting up work on the internet costs nothing, there are a potential 7 billion copyright infringers on the planet. How do you track down and sue all the people who infringe the copyright? You can’t. It’s not possible. And why have a law on the books that isn’t enforceable? It’s silly. Better to be well read and release the work copyright free.

However, physical printing costs money. Physical distribution costs money. It requires resources. It requires a company to have connections, a network, an expensive printing press. It requires them to be in the phone book. I’m not an advocate of registration of any kind, but being a physical printer requires a type of “social” registration. People know who you are, because your operation requires resources, and resources require public knowledge. You are sue-abl e because you’re findable. But more importantly: you’re out to make money. And if you make money off an author’s work, you owe the author money.

The reasoning, beyond what I’ve already stated, is simple: no costs = free release, for profit = compensation. Dingus McGee Publishing must pay Lisa to print physical copies of her work and sell them, even if she released the book on the internet for free. This is an enforceable system, since Dingus McGee Publishing is in the phone book, they have assets, whereas Mike from Norway, who passed a digital copy of Lisa’s book to Steve in Germany – he’s not in the phonebook, at least in the sense we’re talking about. Of course, Mike from Norway also isn’t trying to sell the book to Steve – he’s giving it away for free, since it’s digital.

Does this make sense? Now, let’s compile the caveats before anyone freaks out:

As I’ve been saying all along, this is a system for books, text, whatever, not music and films. The reasoning is multifaceted, but stems on text being a “consume once” media, while music and films are a “consume many times” media. More importantly, however, it’s about business. Music and films cost must more to produce, so their business models must be different. Books, separated from printing and distribution costs, take only the author’s time. Time only costs a reasonable lifestyle, which authors should be providing by finding new business models to support themselves.

Why should Lisa just not sell digital copies of her book? This is a tough one, and the best argument against abolishing copyright, so let’s look at it a little deeper.
First of all, there is nothing stopping Lisa from selling digital copies of her book. However, there is nothing stopping Mike from Norway from buying the first digital copy of her book and releasing it for free, whether her books is under copyright or not. Sure, things like DRM will make it more complicated, but the headache and inability to track Mike from Norway down as the guy who first leaked the book is very, very difficult.

Now, some might say that the headache of managing a pay system for digital copies still means more cash in hand for the author. That’s a decent argument, and very possible. It remains to be seen how new authorial business models will work. However, there’s still going to be a lot of piracy, because it’s hard to compete with free. This inability to compete with free is also what would likely prevent companies to try to sell digital copies of Lisa’s book, although some companies do try to get away with selling GPL software, so you never know.

The third major point I see someone raising is that Dingus McGee Publishing wouldn’t try to sell a print copy of the book anyway, if the digital copy was available for free. To this I say two things: 1. Good. Physical print is wasteful and dying. If they can’t sell books, that’s fine – it gives people more money to support authors instead of publishing companies. And, 2: yeah, right. People like to collect stuff and still want physical media for video games and movies. Physical copies aren’t going anywhere for awhile, even if the market diminishes.

The only reason the market for the physical media for music is dying is because of mp3 players, which can’t consume physical media anyway. As long as people use televisions, DVD, and Blueray players to consume films, and PS3’s and Xboxes to consume video games, there will be people who want physical media. Only when the playback device can no longer consume physical media will demand for physical media slow and die. (Sony recently tried it with video games – it was called the PSP Go and it’s a friggin’ failure.) But we’re talking books, anyway. Phyical books need no device to consume them, so it’s unlikely they will ever go out of style completely, despite people like me clamoring for the death of print.

Anyway, this post is already gargantuan, so I’m going to end it here, having accomplished my objective, which was to talk about a hybrid copyright system.

Thoughts? Flames? Ice Cream?

Mark Barrett commented on my last post, the aim of which was to attempt to begin to examine the underpinnings of copyright. The substance of his comment was the idea that there was no way to protect against corporations (or rich companies/people) from exploiting the copyrights of an individual without copyright law. I thought about this for awhile, trying to find a counter argument.

When I read Mark’s comment, his arguments made sense to me, and I realized that some of our differences could be resolved (or, at the very least, explained) by outlining how we differ in a key area of the copyright debate: digital versus physical.

I know I’ve been talking about copyright from this angle already, but I feel there is more to be examined here, since I think the internet (the digital) is as revolutionary as the printing press was way back when – it represents a paradigm shift so vast that the old modes won’t work anymore.

Mark explains a theoretical situation in his comment – a guy writes an amazing novel but has no money. Without copyright, a rich publishing company steals the book and publishes it, paying the author nothing. The author is effed just because he has shallower pockets and can’t compete.

Preventing this situation is the reasoning behind copyright in the first place – it’s there to protect the little guy from the big guy. However, it still carries a few assumptions that I’d like to bring to the surface of our discussion:

1. The author will support himself from selling copies of his book.
2. Distributing and selling copies of the book costs money.
3. People will pay for a copy of a book.
4. People like physical copies of books.

Mark’s theoretical (and before copyright law, actual) situation hinges on the idea that the rich company has more resources to publish the book – they own the presses and the distribution networks. The poor author does not have those things. Thus, without copyright, the author cannot compete.

However, digital distribution blows all that away. With the internet, bit torrent, and other distribution channels, authors can distribute their works digitally for virtually nothing. In Mark’s example, the author has six bucks in his checking account. That’s pretty low, because there is a difference between virtually nothing and nothing, even it’s just the 50 bucks a year I spend for hosting costs. There are free distribution networks out there – Scribd, Wattpad, etc, but the internet is required for those things. Six bucks won’t get you internet, though I wonder how this hypothetical author is living, if he only has six bucks. Maybe in his Ma’s basement. If that’s the case, the dude should bug his old lady until she gets AOL or something. Or he should get a job.

Anyway, the copyright discussion we’re really having here needs to address those four hinge-points above, so let’s go through them one by one:

1. The author will support himself from selling copies of his book. Digital distribution, at least without DRM (or with DRM, but that’s easily crackable), does not allow for the author to profit from selling copies of the book, or at the very least, profit is limited. Other models are needed, that’s true. Finding another model should be part of our discussion, but we’ve already talked about those a little and I don’t want to get sidetracked by them here.

2. Distributing and selling copies of the book costs money. Printing costs, shipping fees, bribes for Wal-Mart product buyers, and all that stuff doesn’t exist with digital distribution. These things are virtually free. So this is a non-issue.

3. People will pay for a copy of a book. This applies to physical books, but people will still do things to circumvent some of the costs – libraries, second hand shops (from which the author and publisher make nothing) argue that some people will try to get it for free or cheap if they can. With digital distribution, the free (even if illegally pirated) is almost always available. When I tried to find a print publisher for my tech poems, since they’d done pretty well on the internet (for poetry, at least), I was shot down at every turn, even before the small houses read my manuscript. I was always told, “you can’t compete with free.” That’s true. But with a different business model, authors shouldn’t have to. But then, corporations won’t be able to, either.

4. People like physical copies of books. This is a tough one, since printing and physical distribution cost money and our hypothetical author has shallow pockets. Now, there are book-printing kiosks available in some places, but those are probably just a stopgap measure. More importantly, I believe that preference for physical print is going away. As smartphones, e-reader devices, and the mythical Apple tablet start to become the favorite reading method, eventually this change will speed up. Physical books are hard to move, take up lots of space, smell funny, get stained, fall apart, and cost the planet an epic amount of trees every year. There are so many advantages to digital books that I believe physical books will eventually become the rarity, once the digital platform becomes more widespread, easier to use, and the old generation dies.

(Note: the old generation dying may sound a little harsh, but that’s how things change. People have a hard time changing their beliefs, but people don’t last forever. They still last awhile, however, and that’s why change is slow. 500 years ago when people began saying the earth orbited the sun, not the other way around, no one believed it except the scientists. However, the scientific community accepted it and began teaching a new generation that was taught this truth from a young, impressionable age. The old died, and lo and behold, the truth became universally accepted. If suddenly we realized the reverse was true, that the earth was the center of the universe (due to some trick of quantum-physics or some other scientific magic), good scientists would look at the proof, and if it was solid, they accept it. But most people wouldn’t. “That’s damn foolery. That’s not what I was taught,” they’d say. However, scientists and teachers would teach the young and eventually the idea would be universally adopted once the old guard died off. That’s how change works. The young are taught young, and the old eventually die. It’s sad, but it’s true. I believe the same thing will happen with humanity’s transition to the digital in the next X (or probably XX) number of years. Anyway, back to our regularly scheduled discussion…)

The real issue with copyright is not that the corporation can rip off the author’s work and leave the author with nothing. Digital distribution does that already. The author needs to find a new business model. That’s a cold fact. Whether it is corporations or piracy, the author needs to make money from something other than selling copies of work.

So my argument to Mark (and everyone else) is this: yes, it’s sad for that author who is relying on the old publishing model. In that model, copyright is a necessity, since the author does not have the resources to fight in the same arena as the big guys. However, this is only an issue in physical publishing. With digital publishing, this is not an issue. And therein lies the disconnect. This whole time I’ve been considering copyright from a digital standpoint, not a physical one. From a physical one, all the old arguments still apply. However, remove the physical, and most of the justifications for copyright drop away.

If I release a digital book for free, there is no reason for corporations to rip it off. My book is already out there for free. There is no way for them to make money from it unless they are going to take my digital copy and try to sell it (which is unethical, but I guess some people package and sell GPL software and people buy it, but that’s makes the consumer who didn’t research first the stupid one. And corporations will always capitalize on stupidity) or by selling print copies of my book. They can’t win in the digital market, but they can still win in the physical market.

Now, people still want print copies of books, and though I think that’s changing, it gonna be awhile.

So I guess I’m coming to this conclusion: we need a hybrid copyright law that makes the distinction between physical and digital copies, a law that treats them differently. (Keep in mind, we’re talking books here. It’s harder to transition this idea to movies or music, since CD, DVD, and Blueray media is a physical method for digital distribution (meaning you need a device to consume it). Physical books need nothing except a little education to consume. Digital books need a device.)

Anyway, this post is getting pretty long already, so I’ll examine what a hybrid copyright law might look like in the next post. We’ll take a look at some of the methods to define what’s physical and what’s digital, talk about the reasoning behind it, and maybe take a whack at what the ecosystem could look like.

Until next time, this is mispeled signing off with a famous (and probably copyrighted) line from Edward R. Murrow (not because I see myself as a muckraker, but simply because I like the weighty gravitas of the thing): good night and good luck.