Smarter Copyright Shills, Please

In a Feb. 15 op-ed for the New York Times, three representatives of the Authors Guild — Scott Turow, Paul Aiken and James Shapiro — raise the question “Would the Bard Have Survived the Web?”

In my opinion they have it just about backward. They’d have been better off asking whether the Bard would have survived copyright.

In the course of this piece, the authors manage to recycle just about every pro-copyright cliche and strawman known to humankind.

Their central focus is on the novel potential for making money through paid performances in Shakespeare’s day (“for the first time ever it was possible to earn a living writing for the public”), and the role of that development in the literary explosion of the English Renaissance.

Perversely, they refer to the business model of taking up admission fees in a money box as a “cultural paywall.” If that “paywall” sounds familiar, there’s a good reason: It’s the very same “paywall” model used by groups like Phish, who make all their money from live performances and concessions, and forego enforcement of copyright claims on their recorded music.

More generally, it’s the “Freemium” model of Chris Anderson: Give the content away as a promotional tool, and make money by selling accessory services that are easier to monetize. It’s also the model used by Linux distributors: Give away the software, and sell customization and support services.

If the modern copyright option had been available to Shakespeare, he might have done a lot fewer public performances. He could have instead copyrighted his written scripts and lived off the royalties for the rest of his life (as well as his heirs, for seventy years — and counting — after his death). This one-hit wonder model, of living off the rents of past work forever, considerably reduces the incentive of doing anything for us lately.

Copyright might also have worked against Shakespeare, considering how much of his work was a mashup of earlier writers. Mashups are feasible today, for the most part, only if you’re the kind of by-the-numbers blockbuster artist who’s made it past the gatekeepers of the proprietary content companies. In that case, you can mashup to your heart’s content because your corporate patron has deep enough pockets to buy up rights to all the work you’re sampling. Otherwise, no dice. So if Shakespeare didn’t want to forego writing all his plays on themes borrowed from Plutarch, Chaucer and Petrarch, he’d have had to join the stable of house dramatists at some sixteenth century equivalent of MCA. And I suspect his corporate patrons would have skimmed off a considerable share of the receipts in that moneybox.

The authors tip their hats to counter-arguments by folks like Cory Doctorow and the EFF, that “if we severely weaken copyright protections, innovation will truly flourish.” In response, they cite the historical record of innovation “based on the principle that a creative person should have some assurance of being rewarded for his innovative work.”

That’s fundamentally wrong. Nobody should have “assurance of being rewarded” for their work, if that means a guaranteed rate of return on something independent of what those in the market are willing to pay for it. That’s essentially the argument of protectionist dinosaurs like the Detroit auto industry, which claims it’s entitled to make a profit even if it means preventing foreign companies from competing with it.

Uh-uh. You have a right to sell your product for whatever the market will bear. You don’t have a right to a guaranteed return with the help of a state-enforced monopoly. And you especially don’t have a right to make money from an obsolete business model, with the help of the state, when you’re too stupid to adopt a business model that’s compatible with today’s technology. You don’t have a right to make money selling buggy whips if it means criminalizing the Model-T. As Cory Doctorow put it, a computer is a machine for copying bits; if your business model depends on preventing bits from being copied, you’re gonna die.

The proprietary content industries, bluntly, are Stoopid with a capital S. The music industry’s DMCA takedowns, Murdoch’s war on hyperlinking, ad nauseam, amount in effect to suing someone for telling people where your store is.

On top of everything else, Turow et al refer to file-sharing as trafficking in “stolen music, movies, and… books.” That is, quite simply, a lie. Even if you accept the validity of copyright law, copying protected material is — by definition — different from theft. Even if — stipulating for the sake of argument — copying is illegal, immoral, or violates the rights of the creator, that isn’t the same thing as theft. In the eloquent words of Nina Paley: “Stealing a thing means one less left; copying it leaves one thing more. Copying is not theft.”