Copyright doesn't exist as boolean. It's a social contract-- a give and take between the owners of "intellectual property" and society-- and exists along a continuum. Copyright in the US has, in the last 50-ish years, taken a hard turn toward benefit for the owners of the "intellectual property" (not requiring registration anymore, increased duration of terms, the DMCA and everything that came along with it). I'd argue and some re-negotiation is long overdue, especially in light of how ubiquitous computer networking is changing the landscape.

One clarification: copyright was never a (direct) tradeoff between desires of the public and desires of copyright holders. It's a tradeoff between two desires of the public: the public wants plenty of works created, and the public also want plenty of rights over those works (for purposes such as building more works upon them, remixing, etc). The desires of copyright holders should only enter into that indirectly, insofar as they result in the publication of more works that wouldn't have been published otherwise, and the public wants to make that trade.

With that in mind: for any given component of copyright law, we should be asking "what would not have been produced if this particular exclusive privilege didn't exist, and does the public want to make that trade?".

The desires of the owners should be indirect. I wish they were. I think it's fair to say the owners likely started exerting their influence (money for legislative influence) a long time ago. That copyright law has continued to move toward the owner's rights end of the spectrum serves as an indicator that legislators see the owner's interests as an explicit part of the contract, intended or not.

Aside from that, insofar as US copyright takes inspiration from the Statute of Anne, I'd say that the interests of copyright holders were never completely indirect ("... and too often to the Ruin of them and their Families...").

re: The "what we should be asking" - I don't think we can conceive of the possible business models that could spring up if changes were made to copyright law. Sure-- some business models might become untenable-- but I don't think entire classes of works would just disappear. I'd rather ask "What new business models or classes of works would be permitted if this particular exclusive privilege were relaxed?"

> The desires of the owners should be indirect. I wish they were.

Right. I was stating what should be, and what was originally intended. The clause in the US constitution authorizing copyrights and patents reads "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Any such exclusive right is granted (not inherent) and should only be provided insofar as doing so will "promote the Progress of Science and useful Arts".

> re: The "what we should be asking" - I don't think we can conceive of the possible business models that could spring up if changes were made to copyright law. Sure-- some business models might become untenable-- but I don't think entire classes of works would just disappear. I'd rather ask "What new business models or classes of works would be permitted if this particular exclusive privilege were relaxed?"

Agreed completely. Another reason why it's a careful tradeoff for the public to make.

I don't think a reinterpretation where anyone is allowed to make and lend as many copies of works as they want is workable though. Like we haven't found another way to incentive producing content.

Why does the business model have to be based on counting copies of information being made (and hamstringing technology to serve that purpose)?

What about patronage? What about public performance? What about merchandising rights? (I actually have very little beef w/ Trademark law. It seems like it's functioning well and provides value to society.)

What about the idea certain livelihoods and classes of works just go away? Maybe that's sad, but maybe it's also just what happens.

You're admitting what most anti-copyright people don't want to admit – if instead of bookshops we only had the Emergency Library, certain classes of works would indeed go away, including most good fiction, not to mention history, biography, reportage etc. You say that's "just what happens" like it's some ineluctable natural process, but none of this is preordained. The traditional model has a lot of defenders – including the majority of readers who are still happy to pay for books – and with those defenders' help it can survive.

If a market's survival is incumbent upon screwing-up new technology for everybody then I say "Let it die". It it means having draconian laws that tie up the most precious products of human toil in too-lengthy "protection" terms, to the point that works of culture are lost, then I say "Let it die".

Not being able to make a living producing something that no one will pay for sounds very much like a natural, preordained process to me. I can't make a living manufacturing buggy whips or operating elevators anymore. Technology made those jobs go away. It's sad perhaps, from a nostalgic perspective, but the world moved on.

If a business model needs "defenders" in the face of technological change then it's no longer a viable model.

I don't believe a transactional model is the only one that can work. It happens to be convenient for a certain type of creator, but that doesn't mean it's the only one.

I will clarify that I'm most certainly not anti-copyright. I think a lot of value can be derived from a copyright regime based on a more balanced social contract. US copyright law, and those who have "harmonized" with the US, has shifted much too far in the direction of favoring the owners of "intellectual property".

I don't understand where you're getting the idea that books are something "no one will pay for". Sales of books are generally stable or rising. They are not like buggy whips.

I also don't understand how it is that you're describing books as "the most precious products of human toil", but you're simultaneously saying you're happy to sacrifice them if it means you get copyright reform.

And I also don't understand how copyright law is screwing up your "technology". It screws up your ability to get certain things for free. But if someone wants to create a DRM-free ebook and give it away, they are still perfectly able to do so.

> certain classes of works would indeed go away

Unlikely and definitely unproven. Historical precedent rather shows that at least 96 % of the books would be produced even without copyright, given less than 4 % bothered to register the copyright when it was mandatory. And less than 1 % of the 4 % required a copyright term longer than 14 years. https://archive.org/details/howtofixcopyrigh00patr/page/104/...

If tomorrow Congress repealed the Berne convention and shortened the copyright term to 5 years from publication, in order to make the Internet Archive's "National Emergency Library" permanent even without fair use, probably a good 99.9 % of the works would still be produced.

But this lawsuit alleges that even the IA's previous lending scheme was illegal.

I think the publishers are using the emergency library as cover for a much more broad-reaching lawsuit.

Meanwhile, all the copies of those same books which were purchased by libraries are now sitting on library shelves, unable to be loaned out.

The copyright holders have already gotten paid.