[free-sklyarov] reasons for restriction of competition

Chris Savage chris.savage at crblaw.com
Mon Aug 20 11:38:30 PDT 2001

>-----Original Message-----
>From: Jeme A Brelin [mailto:jeme at brelin.net]
>Sent: Monday, August 20, 2001 1:21 PM
>Subject: RE: [free-sklyarov] reasons for restriction of competition
>> (3) Therefore, unless we restrict copying, etc., there will be
>> insufficient incentive for creative people to actually create and
>> distribute their stuff.
>Right... just like that saying "patent is the mother of invention"...

Sometimes yes, sometimes no.

>And the Four Greek Muses:  Melete ("meditation"), Mneme 
>("memory"), Aoede "song"), and Profitmotive ("copyright").

I like it.

>Oh, wait... that's not it at all!

Sometimes it is, sometimes it isn't.

>NECESSITY is the mother of invention... and the inspiration 
>and drive to authorship come from within, not without.

Sometimes yes, sometimes no.  FWIW I just watched "Apollo 13" last night
with my kids.  There's a scene where the astronauts are going to die from
CO2 poisoning unless a filter of shape X can be mated to a frame of shape Y
by means of [a collection of stuff on the ship].  Our plucky ground-based
engineers came up with a solution.  The did it because they knew if they
didn't, the astronauts would die.  Is that motivation from "within" or

>Work is done to fill a need... either in society or in the author.
>Inventors invent because they would like to use the new gadget 
>or see it used.  Authors compose because if they did not, their
>heads would explode.


>Inventors working for the profit motive give us things like 
>Roly-Kit and the Pocket Fisherman.  Authors working for
>profit motive give us things like "Hit Me, Baby, One More
>Time", "Pearl Harbor" and "Life's Little Instruction Book".

I think you are unduly denigrating the profit motive.

>>Hence the reference in the constitution to advancing "science and the
>>useful arts."  The restrictions on competition in 
>>copying/distribution are done with the conscious purpose of rewarding
>>inventors (patents) and creators (copyright) with money, to keep them
>Doesn't it stand to reason that the artificial monopoly 
>actually REMOVES the profit motive from the process because it
>is possible to profit from a single work and never invent or author

It is possible that a particular inventor/author will get rich enough as to
not give a darn whether he/she ever invents again.  But if the vast majority
of inventors/authors toil away in aspiration of that result, that does not
seem to me to be a removal of the profit motive.

>Wouldn't I, as the patent holder to the most popular invention for
>performing a certain task, do everything in my power to 
>PREVENT progress in that industry in order to keep my invention in
>common use?   Wouldn't I, as the author of the most popular book,
>do everything I could to prevent other ideas from reaching the
>market so that my book would stay on the best-seller list?  Isn't
>this monopoly actually a HINDERENCE to progress?

I spend most of my professional life in telecom regulatory space, where I
worry daily about the evils of monopoly and how to restrain them.  One of my
personal concerns with the traditional formulation of the so-called
copyright "bargain" of monopoly for more creation is that we know monopoly
is rotten.  We've known it at least since Adam Smith's "Wealth of Nations"
in 1776.  So IMHO we need to do something more nuanced than grant naked
"monopoly rights" to inventors and authors.  Truth be told, I'm still
pondering what that more nuanced something might logically be.

>>This means that the point of copyright is to strike a balance: give
>>the inventors/creators enough money to keep producing, but 
>>not so much that the law of diminishing returns kicks in, and they max out
>>production and just take more and more of our money.
>Again, this reasoning gives the public no reason to restrict its own
>rights with regard to non-commercial work.

I think you are on to something with this comment, but I will confess I
don't fully follow it.  Please explain.

>By your reasoning, why would the public give a copyright to an 
>author who doesn't even TRY to profit financially?

The short answer is, transaction costs.  If society set out to perfectly
screw authors, it would first identify the most obsessed and compulsive, who
will invent anyway, and pay them some horrible little pittance so they will
invent rather than work at Burger King.  Then it would identify the
kinda-sorta-maybes and pay them a little more, but only the ones who were
pretty good.  Then it would identify the talented whores who are really,
really good but will only do it for money, and would pay them a lot.  The
problem is that it is impossible to do that kind of fine-grained analysis,
so we don't.  We treat all authors and all creations alike as far as
copyright is concerned.  (Not quite; music is different than books, etc.,
but you know what I mean.)

>> Note that the basic theory outlined above is not, fundamentally, the
>> theory that copyright-centric companies have been promoting.
>No, but it's functionally equivalent.

Not, it's profoundly different.  Both are capitalist and profit-oriented.
But one justifies horribly intrusive DRM stuff, as well as the DMCA
provisions that put Dmitry in jail, and the other does not.

>If they can convince people (as it looks like they've done) 
>that authors and inventors would just stop in their tracks
>were there not a good chance at profit, then they can keep
>the game going indefinitely.

The issue is not that everyone would stop or everyone would go.  The issue
is, what happens at the margins.  I will confess to focusing my thinking on
things that might arguably be accomplishable in the real world, as opposed
to what the ideal arrangements would be.  That is both a limitation and a
strength, obvious in both aspects.  Focusing on the ideal instead is also
both, again in obvious ways.

>Electronic distribution inherently removes publisher control.

Yes, I think that's right.

>Copyright itself is meaningless in a world where copying is 
>ubiquitous and necessary.

I think that's wrong.  It depends on metering.

>You make a copy into memory when you read a file... you
>might even swap that chunk of memory to disk while you're
>task-switching.  Or maybe you're running a RAID array and
>you've got two or three copies of everything in your
>system.  The authority to make copies cannot be an
>exclusive one in this day and age... not if we're going
>to use modern information technology to distribute and
>store the works.

I agree with that.  As noted above, I'm trying to figure out a more nuanced
view than "monopoly" or "free-for-all."  You may tell me that there is no
sensible middle ground, and you may be right.  But I'm not there at the

>>Their meme is that an author/creator has some sort of 
>>natural right to control all uses and sales of his/her
>>"creation," i.e., the abstract "intellectual property"
>>that has been created.  Under this meme, the
>>true, right and natural state of affairs is that an author (or
>>distributor) should be able to control fully (and, if so inclined,
>>separately meter and charge for) all uses to which a work is put.  It
>>may be that technical limitations in the past have made that control
>>squishy around the edges (this meme's "explanation" for fair 
>>use), but the great thing about digital technology is that DRM
>>will allow authors/distributors to finally exert the control that
>>they should have been able to assert all along.
>This is definitely the tack their pitching.  But the one 
>you're pitching isn't much better... it denies any other motive
>beside profit and removes the public's interest in non-commercial

I don't mean to do either thing.  I certainly don't subjectively do them.
There are certainly motives other than profit, and there's lots of stuff
that is non-commercial.  But the profit motive exists and lots of commercial
stuff exists, and any regime we set up has to deal with them.

>>IMHO the conflict between "copyright as a deal between society and
>>creators" and "copyright as a legal means to enforce
>>creators'/distributors' 'inherent' rights to control" is at 
>>the bottom of the DMCA/DRM/etc. imbroglio in which we are currently
>Honestly, I can't tell you which is worse; your scheme or theirs.

Maybe both are equally bad.  Bear in mind that I am a Washington DC lawyer,
basically a policy wonk doing telecom/Internet regulatory policy.  That no
doubt warps my worldview in ways I can barely perceive.

>At least the bullshit being pitched by the publishing industry seems to
>give a nod to non-commercial work as valuable and worthy of the same
>protections as commercial work.

Well, that's the power of their meme.  So you have Jack Valenti and Carey
Sherman waxing eloquent on behalf of the natural rights of the poor
struggling artists and the inherent creative good of people everywhere.  I'm
sorry if my bullshit detector goes off at full volume in that context, but
it does.  That, if nothing else, has led me to critically examine not merely
the romantic appeal of the "natural rights of authors" theory, but also the
logic it has in the real world of the studios and the publishing houses and
RIAA.  Guess where full respect for such "rights" gets you: the DMCA and

>The publishing industry wants to restrict free speech out of hand by
>claiming "ownership" on ideas.
>You want to restrict free speech de-facto by illegitimizing 
>anything that isn't done for money.

Not at all.  I don't actually think that what you suggest follows from the
(in my view) more limited view of copyright rights -- the bargain -- but I
will think about it.  That conclusion certainly was not my intention.

>Tough choice.  How about we come up with something new?  Or 
>drop the whole idea of "limited monopoly" and let the public
>keep all their rights in the first place?

Maybe.  Your suggestion contains the empirical assertion that creative folks
would produce enough good stuff we care about without government
intervention to create profit opportunities at all.  Maybe you're right.
I'll ponder this a bit and see what I think...

Chris S.

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