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Copyright In the Digital Age
Rick Garlikov

U.S. Sen. Orrin Hatch (R.-Utah) is reported to have said during a hearing that he might favor technology that can remotely destroy the computers of those who illegally download music from the Internet, as a way to teach people copyrights are serious. 

In the digital age, when so much information and media can be translated into an electronic format that can be distributed cheaply over the Internet or the airwaves, Senator Hatch is essentially trying to keep people from buying goods for less money than they need to spend. It is like putting a patent on air or sunlight and telling people they need to buy it from a distributor even though it is readily available. 

The purpose of copyright is to protect what has come to be known as intellectual property -- writings, compositions, movies, and other recordings of art, entertainment, and information in order to make it profitable enough to be made available in the first place. If you spend time and effort to create something everyone else can just copy without paying you, there would be no financial incentive to be creative, the economic theory goes. In a digital age, copies of these things can be made so cheaply, with almost no effort, that it supposedly undercuts the profits the producers can make from their labor. So the purpose of copyright is to set up an artificial legal barrier to keep people from making their own copies. There is no point in saving money by downloading music illegally if it will likely cost you a $1000 for a fine or a new computer. 

But when a society has to expend far more labor to police and guard against people's having something than the amount of labor necessary to produce and distribute it, there is something wrong. And when companies use copyright to prevent distribution of a product from those who want to purchase it, instead of using copyright to make distribution more widely available, the purpose of copyright is being defeated. 

Before, and early into, the days of cable TV, networks sometimes bought the rights to sporting events such as The Masters or Wimbledon, and then would not show the early rounds because there was not a sufficient national market. This meant, however, that smaller independent companies or local or regional stations could not show the early rounds either. So essentially the networks used their rights to an event to keep anyone from seeing it on television. 

Or take the case of an out of print book I wanted to purchase. I wrote the publisher seeking a copy perhaps left in a warehouse. I instituted a search for a used copy or one left unsold on the shelf of any bookstore. But, when all that failed to turn up a copy of the book, I also asked the publisher for permission simply to photocopy the library's copy. That was where I had discovered the book in the first place. That was denied. The publisher would neither sell me the book nor give or sell me permission to make my own copy. That seems to me to be a stupid and counterproductive use of copyright. There are many other common instances of this kind of case where copyright is used to deny access to people rather than to promote it. 

Now there are a number of better alternative solutions to Senator Hatch's problem that do not require Draconian punishments for those who swap music or other copyright material, and which will help make such materials more available to more people rather than to fewer. 

First, manufacturers who want to protect their work could sell files of their material over the Internet or satellite tv at such a low price that they would sell far more and eliminate the need and incentive of people to share free what they have purchased. If recording companies, for example, made downloadable versions of music available on automated credit card billing networks, the music would probably sell quite profitably for a fraction of the cost it takes to sell it on CD's that need to be distributed, shipped, and sold in stores. 

The $17 you pay for a CD or the $20 or more you pay for a DVD includes profit not only for the people who wrote or performed (and sometimes they get very little), but it pays for those who produce it, those who package it, those who make the packaging materials, those who transport it, and the store owners who warehouse it and the salespeople who sell it. Much of that would be eliminated if the materials were sold, via a secure automated billing and dispersal system, over the Internet or transmitted over satellite or cable tv for people to record themselves. 

People who illegally trade music over the Internet clearly do not care for all the packaging, or even all the songs on a CD. Record companies should give them the opportunity to buy from them what they want over the Internet instead of saying you can only buy music you want if you buy it on a CD from a retailer with all the attendant packaging and the other songs on it you don't care about. 

If it ended up costing something like 50 cents a song, people would have very little incentive to give away what they had to go to the trouble to download and pay for. They would just tell their friends to get their own copies at the industry site. I contend the industry needs to at least try to see whether this would not be a far more profitable way to sell entertainment and other intellectual property than the current manner of distribution. And it should give far more people access to buy the materials than can afford it now. 

Second, a solution similar to the audio tape agreement with the music industry could be provided. Ten years or so ago, Sony wanted to market a digital audio tape recording device which, because it was digital, would have meant that copy tapes would have been as good as the originals, instead of somewhat lower in quality the way analogue tape recordings were, especially if copied through different "generations" of copies. The music industry balked at the idea of generation after generation of perfect copies being able to be made. 

Finally an agreement was reached by which the price of blank audio tapes was increased by something like five cents, which went to ASCAP or the music industry in some way to be distributed among all those who produced music. The idea was that some percentage of blank audio tapes was going to be used to record copyrighted music, and this extra charge for all blank tapes would buy the right to do that because it paid for the creation and production of the music. The same sort of thing could be done with blank video tapes, blank writeable CD's, and blank writeable DVD's or any other such recording devices that might come on the market. 

Third, advertising allowed tv and radio to be profitable for decades without having to charge viewers and listeners. And advertising made newspapers and magazines affordable for readers who could not have afforded to pay the actual production and distribution costs themselves. Those who sell intellectual property could profit from various forms of advertising, as more and more movies and Internet sites are doing already, and as television did from the beginning. 

Finally, the worst case scenario is that as digital and other copying technology becomes easier and more accessible, it will cut into the profits of those who have profits which now are propped up by the artificial barrier of copyright -- a barrier that perhaps made sense when it cost a lot to produce and distribute actual physical materials, instead of merely digital "information" or reproductions. It may be that in some cases entertainment will not be as profitable as it could be without copyright protection. But that is true of a great many things. Everyone could make a greater profit for their services (and, of course, have to pay a lot more for other people's services) if we all were essentially protected from any competition because no one else was allowed to do what we did or to enjoy what we produced without paying us for it even though it was readily available to them otherwise. As a photographer, I am sure I could benefit nicely by a law that would require people to pay me to see pictures I have taken of their friends and family who want to show them. And if I were Senator Hatch, I could seek a law blinding those who would look but not pay. That would create potential profits for me, but it would be a stupid way to increase profits. 

And, anyway, suppose that it was not as profitable to create or produce intellectual property as it once was because it is too easy and inexpensive to distribute copies of material that is produced. Would that not eliminate the most mercenary producers, rather than those who felt they had something important to produce. Today on the Internet there are thousands and thousands, if not millions, of sites where people have put up intellectual property for free just because they want people to be able to find and have it. While much of it is trash, there are many good sites that teach about everything from calculus and theoretical physics to practical medical information to the most mundane issues of carpet care and cooking. There was music, literature, and entertainment long before there were recording companies, publishers, and studios. I doubt that music, entertainment, research, and other intellectual, creative endeavors will disappear from the face of civilization even if we have to give up the kind of copyright laws we have now. 

What Senator Hatch should be trying to promote is a system or systems that give enough incentive for people to produce things which do not cost any more than necessary to distribute -- in order to allow the most people to afford to buy them. It is silly to make distribution be artificially high in order to pay for the cost of production. There is no reason to harbor a contrived system that keeps intellectual property from the poor or the frugal just so that those who produce it can profit excessively by gouging the rich or extravagant who do not mind paying more than they need to.

This work is available here free, so that those who cannot afford it can still have access to it, and so that no one has to pay before they read something that might not be what they really are seeking.  But if you find it meaningful and helpful and would like to contribute whatever easily affordable amount you feel it is worth, please do do.  I will appreciate it. The button to the right will take you to PayPal where you can make any size donation (of 25 cents or more) you wish, using either your PayPal account or a credit card without a PayPal account.