Where do you 'hear a lot about how artists ... shouldn't think about trying to monetize their work through "physical" means such as CDs or even virtual physical means such as downloads'? I've never read that view being expressed anywhere, but would be interested in reading anyone who can expound it with an ounce of credibility!

As for the leap from "since it's easy for me to download music" to "I don't want a business model that monetizes such activity", it stinks like a very flimsy straw man.

How about changing your analogy around to ask Deen how she can continue to finance her wonderful work whilst providing others with as much culinary freedom as possible? Perhaps the fact that others might try to guess her recipes, share them with friends privately and take ideas into their own professional work isn't a reason to extend her control through technological and legal measures?

Responding to a positive articulation of the purpose and benefits of fair use would be much more interesting than this exercise in self congratulation!

Where do I not hear this argument? A prominent attorney for tech hardware companies told me just last week that live performance was the best model for the future (it was a private conversation so the attorney will remain unnamed). It has been pitched by numerous professors, and two years ago was a central proposal of a Berkman Center study, which I reviewed at the time: http://weblog.ipcentral.info/archives/2005/01/law_professors.html

To be fair, it's also often argued that artists can make money through merchandise such as concert T-shirts. Think about how that would apply to writers, video game developers, screenwriters, etc. Once again, this shows a fixation on the (hated) music industry and a lack of thought given to larger copyright issues.

Patrick,

No one I know is saying that it's intrinsically immoral for people to make money from digital assets. What some people are saying is that some of the policy choices Congress and the courts have made over the last decade in an effort to prop up the market for online content, have imperiled important values such as individuals' freedom to tinker with the devices they legally own. Therefore, many of us are interested in finding policies that can create vibrant markets for content without infringing on consumers' freedom.

Now, obviously, you don't agree with that argument, which is fine. You're entitled to your opinion. But I do think that you ought to represent your opponents' argument fairly--to mention that critics of the music industry are concerned that their preferred policy conflict with other values, such as individual liberty. You might then go on to explain why you don't think those values are harmed by the policies in question, or why you think those values are overrated.

But it's disingenuous to act as though the motivations of music industry critics are a complete mystery--as though we just hate the whole idea of artists making a living. I don't know anyone who thinks that, and I think you do your readers a disservice when you insinuate that that's the primary argument against ever-stronger copyright law.

Tim, you conflate owning and licensing a product.

Also, I've posed many questions to you on DRM, the DMCA, fair use, and even your interpretation of DMCA case law, which you don't address or seek to clarify. Thus, the notion that views by those such as you are anti-industry and anti-profit is unavoidable, since you criticize every instance where copyright owners leverage and enforce their privileges under copyright policy.

I will say this- the "freedom to tinker" is not as important as an entire industrial segment. If you have a way of balancing the two, then I welcome your proposals. However, keep in mind that consumer welfare may consider some forms of economic activity more important than others.

Noel,

My point is simply that Patrick ought to represent others' view fairly before criticizing them. And, for that matter, so should you:

You criticize every instance where copyright owners leverage and enforce their privileges under copyright policy.

This is nonsense and you know it. My criticisms have almost entirely been leveled at changes to copyright law that have occurred in the last 32 years, and most of them have been focused on changes in the last decade. I've never criticized companies for enforcing their rights under copyright law as it existed for the first 180 years of the republic. My objection is to the radical expansions of copyright holders' rights that occurred between 1976 and 1998.

Tim, so you don't criticize companies for enforcing "tradintional copyright law?" I suggest you read those DMCA cases again; some of them were decided on the fact that the 1201(f) exception did not exempt violations of "traditional copyright law." You did not observe this in your paper however, and have not addressed it in any situation where I've raised the issue.

The DMCA was not a radical departure from historical amendments to copyright policy. Courts and Congress have long given copyright owners the ability to tap new market swhen they could displace or substantially compete with old markets. Otherwise, copyright owners would be pre-empted from entering those new markets by others using their copyright assets.

Patrick, not being privvy to your conversations I can't say for sure, but I'd be very surprised if anyone was suggesting that monetising performances was the *only* route for artists and policy to follow. There's a big difference between "only" and "best".

I agree that some people have very naive fixations on musical performance, and for example seem to think that small struggling bands can recoup all of their costs on tours (which is frankly an absurd claim), then fail to discuss the many other areas of creative work. But I'd be much more interested to hear your thoughts on the more plausible claim I put to you - that it is good to look at alternative ways of financing creative work rather than copyright plus DRM. It's possible that alternative models are actually better because they introduce lower (financial) transaction costs, and fewer social / political / ethical / artistic problems, both for creative people (i.e. to some extent everyone) and for people's ability to consume, share and learn from other work.

Your cooking analogy is a trojan horse for your argument in this respect, as I outlined in my initial comment.

***It's possible that alternative models are actually better because they introduce lower (financial) transaction costs, and fewer social / political / ethical / artistic problems, both for creative people (i.e. to some extent everyone) and for people's ability to consume, share and learn from other work.***

Tom, there is a way (at least one I can think of off-hand) to push the balance more towards consumers- dual licensing. But even that concept will require some sort of DRM and enforcement via the DMCA.

"I suggest you read those DMCA cases again; some of them were decided on the fact that the 1201(f) exception did not exempt violations of "traditional copyright law." You did not observe this in your paper however, and have not addressed it in any situation where I've raised the issue."

You got a citation? I don't remember any cases like that.

And how on Earth would copyright holders be "pre-empted from entering new markets" in the absence of the DMCA? No one has ever suggested that copyright law doesn't apply to new technology. Making circumvention legal wouldn't make re-distribution of the circumvented content legal.

Patrick:

As a side note to these discussions, recipes are no copyrightable. Certainly the form in which they take -- such as how they are described and the actual word choices used -- are copyrightable, but not the fact that you add X amount of flour to Y amount of butter.

See here: http://www.copyright.gov/fls/fl122.html

Also here: http://www.washingtonpost.com/wp-dyn/content/article/2006/01/03/AR2006010300316.html

So, for instance, if I wanted to take Ms. Deen's recipe for such-and-such and put it online, as long as I changed the expression of how that recipe was presented, I'm in the clear.

This is why things such as Coca-Cola's recipe for its flagship product or KFC's famous herbs and spices combination are covered under trade secret law, and not copyright.

Of course I meant "not" copyrightable.

Tim, look over some reviews I've done on DMCA literature, and cross-reference the case law.

As far as non-copyright holders pre-empting copyright holders with their own assets, imagine a scenario where copyright holders do not enter a market because others can commodify their copyrights to monetize other revenue streams. If copyright holders have no first line of defense via DRM, and no legal backup with the DMCA, don't you think they would just avoid the market, where others are making money drawing consumers and free-riding off their copyrights?

Tim, I'm curious, you say that traditional copyright law is sufficient to deter piracy. How exactly will it be more effective than DRM and the DMCA, which you state are useless at stopping piracy (and of course, when copyright holders use the DMCA to combat piracy you criticize them for that)?

On the other hand, when DRM and the DMCA are justified to protect business models, you ask what innovations might not occur because of them - and consequently ignore innovation that actually does occur (by the way, its not really informative to ask what innovations might not occur, since you can always ask that question, whether we have DRM and the DMCA or not).

Have you thought of the ramifications of your position? Will piracy increase or decrease with only traditional copyright policy? Will various business models stay viable? Will the economic contributions of the copyright industry (the core industry, motion pictures, music, publishers) remain steady, grow or flop? I mean, I read some of your stuff, where you claim that artists can always ditch the Internet and give music lessons to make a living and I'm wondering if you're joking. And how do your views affect writers who wish to tap the Internet for revenue? Are you saying that those who rely on copyright, by means of DRM and the DMCA should not leverage the Internet because it interferes with innovation- but aren't these innovators that you're talking about and trying to squelch.

Tim, have you considered any of these things, or does the promise of more "freedom to tinker" outweigh them all?

Okay, back from the State of the Net Conference, and I see there's a bit of comment here. In response:

Commons Music: I was analogizing with Ms. Deen; are you an engineer? Just wondering, based on how literally you interpreted this, like when people freaked out over Jim's use of shopping carts and the DMCA.

Tim: Not sure you are really in a good position to criticize someone for misrepresenting the opinion of others; taking misleading excerpts from opponents and building a critical blog around them seems to be a specialty of yours; seriously, you're quite good at it. But let me direct you to some of my writings (papers, not this silly medium called the blog) to see my belief in alternative distribution systems and rights models. I want those to be developed and tried in the market by rightsholders, however, and accepted or rejected by consumers, not imposed from below by end-users.

I definitely don't want limits on rights defined by the 23-year-old recent college grad sitting next to me at the music licensing session yesterday. After reps for labels, artists and songwriters spoke about the difficulty of ensuring compensation in the digital age, he stood up, accused the panelists of being greedy, and said their actions justified his generation's use of eDonkey and bitTorrent. "Do you steal music?" a panelist asked him. "No," he said. "Oh, so unlike your peers you don't use eDonkey?" the panelist asked again. "Well, I do download," the young man said, "but it's not theft."

"Taking misleading excerpts from opponents and building a critical blog around them seems to be a specialty of yours."

What on earth are you talking about?

Tim, reread every write-up you've done on IP firms' public statements (i.e. Ballmer), law reviews (Merges), govt testimonies (Myhrvold) or or hysterically, a single PowerPoint (Duffy).

Noel, you're saying that *everything I've ever written* about "IP firms" has been misleading? You want to be a little more specific?

On November 17, 2006 2:37 PM, Tim Lee wrote on Steve Ballmer's statement that Linux infringes some of Microsoft's patents:

"Microsoft's position is that no one may sell an operating system without Microsoft's permission (or unless you've amassed enough patents that Microsoft can't risk a patent war with you). Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market."

Tim, your statement was ridiculous. Did Ballmer say all of Linux is infringing. No he did not. Has Microsoft asserted that non-Linux OSs that participate in the market infringe on its patents. Nope. Has Microsoft done anything to alleviate fears of patent infringement for FOSS companies. Yes it has, only to have you write stuff like this. I can go on, but your statement here is very representative of mischaracterizations in your writings.

Noel, you omitted the phrase "in practice" from the beginning of the quote. Do you understand what that phrase means? If you did, it would be obvious that this wasn't a misinterpretation of Ballmer's views, but a description of the practical effect of the position that Ballmer has taken. Here's the full quote, in context:

"When Ballmer says that Linux 'uses our patented intellectual property,' he almost certainly does not mean that Linux is in any way derived from Microsoft products, or that the people making Linux have somehow been free-riding off of Microsoft's R & D efforts. Linux developers have repeatedly stated that Microsoft needs only to point out the infringing lines of code, and the Linux team will rip them out and replace them with code they write from scratch.

"Rather, when Ballmer talks about protecting his 'patented innovation,' he simply means that Microsoft holds patents that describe features that Linux happens to have. This isn't surprising because as I've tried to document over the last few months, software patents have become so broad that it's virtually impossible to write software without violating them. Every non-trivial piece of software violates dozens of patents.

"In practice, then, Microsoft's position is that no one may sell an operating system without Microsoft's permission (or unless you've amassed enough patents that Microsoft can't risk a patent war with you). Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market. It's hard to see how giving Microsoft the ability to extort money from their competitors promotes the progress of science and the useful arts."

So what I'm saying is that *given* that every non-trivial piece of software infringes dozens of patents, Ballmer's position *amounts to* the contention that no one may sell an operating system without his permission. I think my use of the phrases "in practice" and "seems to be implying" make that clear.

Next example of alleged misrepresentation on my part?

Tim, that still does not change the fact that you mischaracterized Ballmer's statements and misrepresented it to readers in the most extreme way.

There was one post where you said that Nathan Myhrvold does not really understand intellectual property because he used a real property analogy as an open to a Congressional testimony. Can you find the post?

And also please find a post you wrote on IBM as a patent troll because it is pursuing litigation against Amazon. You stated something to the effect of: "perhaps IP firms should simply be called patent trolls."

Patrick:

No, I'm not an engineer, but I'm just as exacting in my actual profession -- filmmaking. I just don't like factual inaccuracies, and the fact is that recipes in and of themselves are not copyrightable. My concern was more for the people who would happen to end up here and don't know any better, thinking that's actually true, and that jotting down and disseminating the recipe for cookies from Nestle's is infringement, when it isn't.