[free-sklyarov] reasons for restriction of competition

Jeme A Brelin jeme at brelin.net
Mon Aug 20 14:58:38 PDT 2001

To Chris in particular:  I appreciate your thoughtful comments.  I
especially appreciate that you make your arguments in a complimentary (and
complementary) style without totally dismissing what I have to say in the
style of the usual email flame-war.  I was hoping to bring to light a big
gap in the profit-only argument for copyright and I think you're seeing
there might at least be a crack there, if not the crevasse I see.

On Mon, 20 Aug 2001, Chris Savage wrote:
> >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 without"?

That's invention... and NECESSITY is sometimes within and sometimes
without.  Necessity is a stronger motivator than patent... or at least a
"better" motivator in that it breeds more useful, broadly applicable
inventions that meet the actual needs of the population.

Patent encourages the creation of a market instead of the filling of a

Authorship, however, is a need from within.  A need to share what you have
inside with the world.

Let's not confuse authorship and inventing... that's like confusing patent
and copyright and inventing some broad and meaningless class like
"intellectual property" or something equally ludicrous that nobody will
accept... oh, wait.

> >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.

Well, I'm trying to point out that the profit motive ALONE doesn't inspire
truly useful or interesting work.  The useful and meaningful things get
created with or without the profit motive.

Without the profit motive, the only thing we lose is the schlock.

If the profit motive were so legitimate and powerful, we wouldn't have the
phrase "I only did it for the money"... the "only" would be an unnecessary
qualifier.  We wouldn't have the concept of "selling out".

Does any worthwhile author say "I did it so that I could make some
money"?  No, that's always the excuse... it's the reason given for doing
something WITHOUT merit.

> 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.

Mostly that's because the authors and inventors sell their monopolies to
giant oligopolies which profit indefinitely and do what they can to
prevent new inventions (or, at least, inventions that they don't control)  
in the same field from coming forward.

> 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.

Personally, I've advocated different "spheres" of public interest.  That
is to say, separate regulation of private, communal, public, and
commercial pursuits.  Laws designed to prevent unfair trade, for example,
wouldn't have any effect on private, non-commercial interactions.  
Copyright would mean something different in each sphere.  In the
commercial, it would basically mean that the total use of the work in that
sphere is under the direct discretion of the copyright holder (hopefully
we'd limit that to authors as well).  In the public and communal spheres,
copyright would mean a limit on public, non-commercial performance of a
work.  This would mean libraries could function because each "performance"
was still private, though the work is communally or publically owned, but,
say, non-commercial street performance or open-house movie viewing could
be restricted in some limited way by the author (or, worst case, copyright
holder).  In the private sphere, however, I can't imagine a reason to
restrict copyright.  Even an attribution requirement is overly restrictive
in the private sphere.  If I make new songs from clips of old ones and
share that work with my friends, no damage is done to either the integrity
of the original work or the author's profit potential.  However, once the
work is made public or even communally available (available to the members
of a community... a limited kind of public), there may be issues.

I've gotten no feedback on this.  Aside from the implausibility that our
government would adopt separate standards for separate, predefined spheres
of interaction, what do people think?

> >>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 on 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.

I mean to say that if the balance is between the profit interests of the
author (the need to invoke artificial scarcity to increase value) and the
growth of the public domain (the need to increase the amount of
information available to the people), then no balance need be struck in
the case where an author has no profit interest.

If I write a work specifically FOR the public domain, does the public
interest get served by reserving some limited exclusive rights to me, the

I would argue yes.  The public interest is served by letting the author
have some limited control over where and how a work is used in the public
and commercial spheres (which exist whether they're legally recognized or

The only reason to control the private use of a work is to protect
profits.  But the public and commercial use of a work can change the
meaning and even the content of the work itself.  The integrity of the
work can be damaged by improper use (to the author's eye).  If I, for
example, create a flyer that contains my manifesto for life and existence
and I put it on my website and hand out flyers and do everything I can to
freely distribute my work of authorship, does Chevron have the right to
excerpt that work in their advertisements?  Does Random House have the
right to reprint the pamphlet en toto and sell it on the shelves of
Borders for $9.95 without my consent?  Hell, does CBS have the right to
read it during their news hour?  Does the Independent Media Center have
the right to reprint it on their news site?  And what if they change the
work?  What if they keep it intact, but put Kurt Vonnegut, Jr.'s name on
the bottom?

I did not create the work for profit.  I have no monetary interest in the
work whatsoever.  Why would the public grant me limited, exclusive rights
to that work of my authorship?

The answer is that the public benefits from the preservation of my
original idea intact.  Posterity will learn my name, as the author of this
work, and analysis of my life can lead to insight into the work.  The work
itself will remain as I intended it (the failure to register copyrights
with a central authority like the Library of Congress does more damage to
this ability than any other copyright change) because nobody else had the
right to present an unauthorized alteration to the public.

This, to me, is the central benefit of copyright: preservation of the work
for posterity in the author's intended form.  Each individual expression
is unique and may not ever be expressed again.  If there is not a method
to ensure the protection of that expression, only the most popular
expressions will be preserved in any age.

I question, however, whether this benefit is really worth the trouble.  I
often think that a simple right of attribution for a limited time would be

> >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.

This is how the labor sector is handled already.  There are gardeners who
do it for pleasure in their yards or community centers.  There are
gardeners who are paid low wages to work on public parks and other
facilities with low operating costs.  And there are highly paid gardeners
who work only for big money (and, as a result, work in places of excess
and affluence like estates, castles, and golf courses).

> The problem is that it is impossible to do that kind of fine-grained
> analysis, so we don't.

Think about cooks, sportsmen, carpenters, and doctors.  They all break
down roughly this way.

In a world without copyright, authors that have produced great works may
be paid by scholarship societies or local communities of patronage to
continue to author.  Some authors may choose to toil in obscurity (as many
surely do today).

Surely there are authors today, even in our copyright granting society,
who cannot find the time to lay down their unique expressions of ideas due
to the strains and rigors of survival.

As I say over and over, the most valuable work is the work unwritten.  And
people will PAY for an unwritten work, just as I am paid for unwritten
software.  I am paid to write software because my company NEEDS software,
not because my company SELLS software.  I write software that we
USE... and because we are not in the software business, the software I
write (or to which I contribute, more often) is also shared with the
community at large.

> >> 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.

They're functionally equivalent in their restriction of freedom.

DRMs and restriction of personal freedom are just as inherent in the idea
that copyrights exist for authorial profit as the idea that control of
distribution of a work is a "natural right".

There are three distinct transactions involved in expression: creation,
distribution, comprehension.

Copyright completely ignores creation time by only acting on existing
works of authorship.  That is to say, you've got to write it before you
can copyright it.  I can't imagine any creation time restriction that
would result in net benefit to the public.

Today, the expression industry has focussed on profitting from payment at
distribution time.  By controlling distribution, publishers were able to
extract a fee for each copy distributed to the public.  In an age of
electronic distribution (particularly across the internet), control of
distribution beyond the initial is not practical (that is to say, you can
control the FIRST distribution, but subsequent distribution is out of your

That leaves comprehension time.  TPMs are an attempt to exert control at
comprehension time.  After all, it's perfectly safe (and, in fact,
desirable) to let the world distribute a work freely and at will (and at
no cost to the authors or their agents), as long as actually ACCESSING the
work in a comprehensible form is controlled.  So anyone can make a copy,
but you have to buy a key to view the work on a particular device... and
then pay extra for printing or access for the blind or what have you.

> The issue is not that everyone would stop or everyone would go.  The
> issue is, what happens at the margins.

The margins are ambiguous in every case... that's what makes them margins.

> >Electronic distribution inherently removes publisher control.
> Yes, I think that's right.

So, if we want to keep copyrights, we have to make distribution a moral or
practical issue for every person.

The moral issue will be a tough sell because there are people (like me)
who believe they have an OBLIGATION to make sure non-personal, generally
useful information is available to anyone that wants it.

So give me a PRACTICAL reason not to share information I have with someone
who needs it.

> >Copyright itself is meaningless in a world where copying is 
> >ubiquitous and necessary.
> I think that's wrong.  It depends on metering.

Not quite sure what you mean by "metering".

> 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 moment.

I really believe that my "spheres of interaction" distinction would be
sensible and in the middle ground.

> >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
> >work.
> 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.

I agree that the profit motive exists.  But you have yet to show me why
you think we grant copyright to non-commercial works of authorship.  If
the purpose of copyright is protection of profit, why would we bother
spending public resources on protecting not-for-profit works?

> 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.

We've been coaxed, as a society, to believe that what's good for business
is good for the public... and, in a bizarre reversal, the public should
act in the best interest of business.

I don't blame anyone for being knee deep in that.  It's all around us
every day and nearly all of our information and reasoning is coming from
big business.

> 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 worse.

I totally agree.  The idea that copyright is NOT granted by the public and
is somehow an inherent Natural right like life, liberty, etc. leads
directly to law that restricts the life, liberty, etc. of the majority in
favor of a minority.

I agree that the restriction of the majority's rights is by choice in
order to grant a new, unnatural right for some limited time, for some
other benefit... a public benefit.

> 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...

Well, I point you to Shakespeare, Euclid, Van Gogh, and myriad authors and
inventors of the past who did their work for reasons other than artificial

Even today, I point you to independent filmmakers who put themselves (and
their families) into debt to create a thing of beauty that would otherwise
not exist... and people like my father, who invented and built, in his
day, numerous tools and jigs to improve his crafts and shared those
inventions with the world (and hopefully, in some small way, improved it).

     Jeme A Brelin
    jeme at brelin.net
 [cc] counter-copyright

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